The Issue The issue for determination is whether Respondent should grant Petitioner's application for a commercial telephone seller license pursuant to provisions of Chapter 501, Part IV, Florida Statutes.
Findings Of Fact Petitioner is Gerovicap Pharmaceutical Corporation, Inc., a Nevada Corporation. Petitioner was incorporated in 1988. Petitioner has no offices in any state other than Nevada. Petitioner has been operating telemarketing services for a period of approximately 10 years. Respondent is the state agency charged with the enforcement of state regulation of telemarketing businesses in accordance with provisions of Chapter 501, Part IV, Florida Statutes. The application submitted by Petitioner to Respondent for licensure as a commercial telephone seller listed three legal actions taken against Petitioner in the states of Florida, Oregon and Wisconsin. Petitioner entered into an Agreed Permanent Injunction and Final Judgment in the Circuit Court of the 11th Judicial Circuit for Dade County, Florida, on October 5, 1992. At that time, Petitioner accepted responsibility for running a mail advertisement promotion in Florida, advising potential customers to call a toll free number to place orders although Petitioner had not met the State of Florida's registration requirements. As a part of the settlement, Petitioner agreed to refrain from advertising and promoting sweepstakes in Florida in violation of state requirements and paid a total of $2,500 to cover a civil penalty, as well as attorney fees and costs. Petitioner entered into an Assurance of Voluntary Compliance in Circuit Court in Marion County, Oregon, on August 7, 1992. Petitioner agreed at that time to refrain from engaging in telephone solicitations in the state of Oregon and to pay $7,500 in investigative costs and attorney fees to the Oregon Department of Justice. On September 11, 1992, a Consent Judgment was entered in the Circuit Court for Waukesha County, Wisconsin. Based upon the stipulation of the parties, the judgment enjoined Petitioner from engaging in certain sweepstakes activities and ordered Petitioner to pay a civil forfeiture to the state of Wisconsin in the amount of $10,000 for various violations of that state's telemarketing regulations. In accordance with provisions of Section 501.612(1)(c), Florida Statutes, Respondent denied Petitioner's application for licensure in the State of Florida as a commercial telephone seller as a result of the Florida, Oregon and Wisconsin legal actions.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered denying Petitioner's application. DONE AND ENTERED this 20th day of July, 1993, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 20th day of July, 1993. APPENDIX The following constitutes my rulings, pursuant to requirements of Section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Petitioner's Proposed Findings 1.-2. Accepted in substance. 3.-5. Rejected, relevance. 6.-8. Subordinate to HO findings on this point. Rejected, unnecessary. Accepted, but not verbatim. 11.-12. Rejected, argument, relevancy. Accepted. Rejected, weight of the evidence. Rejected, relevancy. Respondent's Proposed Findings 1.-7. Accepted in substance. Rejected, recitation of statute. Accepted. COPIES FURNISHED: Terry Fleischer, President Gerovicap Pharmaceutical Corporation 1785 East Sahara Ave., Suite 160 Las Vegas, Nevada 89104 Jerome A. DePalma, Esquire 3201 South Maryland Parkway Suite 326 Las Vegas, Nevada 89109 John S. Koda, Esquire Office of General Counsel Florida Department of Agriculture and Consumer Services Room 515, Mayo Building Tallahassee, Florida 32399-0800 Hon. Bob Crawford Commissioner of Agriculture The Capitol Tallahassee, Florida 32399-1550 Richard Tritschler General Counsel 513 Mayo Building Tallahassee, Florida 32399-0800 Brenda Hyatt, Chief Bureau of Licensing & Bond Department of Agriculture Mayo Building, Rm 508 Tallahassee, Florida 32399-0800
Findings Of Fact The proposed transmission line corridor is for the purpose of locating a 500 kV transmission line to provide dispersion of the additional power generated at the Crystal River Electric Power Plant when Unit 5 becomes operational in the fourth quarter of 1984. The northern terminus of the corridor is in Sumter County at the Central Florida Substation, located immediately south of State Road 44 in Section 24, Township 19 South, Range 23 East. The southern terminus of the corridor is in Polk County at the proposed Kathleen Substation, to be located north of U.S. Highway 98 in either Section 8 or 17, Township 26 South, Range 23 East. The length of the corridor is approximately 43 miles. The purpose of the corridor is to provide a 190 foot wide right-of-way for a 500 kV transmission line constructed upon steel lattice guyed V structures and four-legged, self-supporting steel lattice tower structures, with an approximate span between the structures of 1,200 feet. Pursuant to the requirements of Section 403.537, Florida Statutes (1980 Supp.), the Florida Public Service Commission, by order dated July 21, 1981, concluded that: The construction of the proposed transmission line will enhance electric system reliability and integrity. The proposed transmission line will improve the availability of low-cost electric energy within the State of Florida. The Central Florida Substation and the proposed Kathleen Substation are the appropriate starting and ending points of the transmission line. The Public Service Commission then determined that the proposed transmission line is needed. Notice of the final certification hearing was published on October 9, 1981, in the Leesburg Commercial, a daily newspaper published at Leesburg in Lake County, Florida, and on October 11, 1981, in The Ledger, a daily newspaper published at Lakeland in Polk County, Florida. For the purposes of this Recommended Order, the corridor for which FPC seeks certification will be broken down into three segments -- the North Corridor Segment, the Central Corridor Segment, and the South Corridor Segment. The entire corridor for which FPC seeks certification is depicted on Attachment 1 hereto. The segments are generally described as follows: The North Corridor Segment begins at the Central Florida Substation and continues to the northeast corner of the Withlacoochee State Forest and is 2,600 feet wide; The Central Corridor Segment begins at the northeast corner of the Withlacoochee State Forest and goes to a point which is the southeast corner of Section 8, Township 25 South, Range 23 East, which is generally 2 miles east of State Road 471 and south of the Withlacoochee River; and The South Corridor Segment begins at the termination of the Central Corridor Segment and continues to the proposed Kathleen Substation north of U.S. Highway 98. The three segments are described in detail in the application (Applicant's Exhibit No. 22). Parties to this proceeding agree that the North Corridor Segment and the South Corridor Segment, with certain Conditions of Certification about which the parties also agree, meet the requirements for site certification under the Transmission Line Site Certification Act. However, a dispute exists between the parties with regard to the certification of the Central Corridor Segment as proposed by FPC. The Applicant, the Department of Agriculture and Consumer Services, Division of Forestry, the Department of Natural Resources, the Florida Department of Transportation and C. M. Overstreet, et ux., argue in favor of the Central Corridor Segment as proposed by FPC. The Department of Environmental Regulation has proposed an alternative alignment to the Central Corridor Segment for which FPC seeks site certification. For purposes of this Recommended Order, this proposal by DER shall be referred to as the "DER Proposed Corridor." The Florida Game and Fresh Water Fish Commission and the Florida Department of Veteran and Community Affairs argue in favor of the DER Proposed Corridor. The DER Proposed Corridor begins at the northeast corner of the Withlacoochee State Forest and, proceeding in a westerly direction, the corridor parallels the northern boundary of the Withlacoochee State Forest and crosses North Grade Road. After approximately 6 miles (10 kilometers), the corridor crosses SR 471 and the Little Withlacoochee River, enters Hernando County, and turns due south, entering the Withlacoochee State Forest. Proceeding south on the west side of Route 471, the corridor crosses an unnamed dirt road in Section 1 (Hernando County), Richloam Clay Sink Road, and Center Grade Road, enters Pasco County 3 miles (4.8 kilometers) south of the Little Withlacoochee River crossing, and crosses unnamed roads in Section 25 (Pasco County), and exits the State Forest on the north side of Section 36, Township 23 South, Range 22 East. This alignment continues south along the west side of SR 471 to the west southern boundary of the State Forest and crosses SR 471 to the east side at the northwest corner of Section 7, Township 24 South, Range 23, East. It continues south along the east side of SR 471 to the southwest corner of Section 6, Township 25 South, Range 23 East, where it turns east southeasterly to go along the northeasterly side of a straight line connecting the southwest corner of Section 6, Township 25 South, Range 23 East and the northeast corner of Section 17, Township 25 South, Range 23 East where it joins the southern segment. This southeastern diagonal alignment crosses the Withlacoochee River in the vicinity of Trail Ford Bridge and enters Polk County. This corridor is 1,000 feet wide. The Department of Environmental Regulation has also proposed, as a second alternative to the Central Corridor Segment, deflections of that Central Corridor Segment in the area of Bayroot Slough and Cross Creek Swamp. For the purposes of this Recommended Order this proposal will be referred to as the "DER Preferred Alternate Corridor." The DER Preferred Alternate Corridor is the same as the Central Corridor Segment proposed by FPC except that the Central Corridor Segment is routed around Bayroot Slough and Cross Creek Swamp as follows: The Bayroot Slough bypass begins at the northeastern corner of Section 12, Township 23 South, Range 23 East and parallels on the south of a line from that point to the southwest corner at the same section, hence it parallels on the east a line from that point to the northeast corner of Section 24. This bypass corridor is 190 feet wide. The Cross Creek Swamp bypass begins at the northeast corner of the southeastern quarter of the southeastern quarter of Section 32, Township 24 South, Range 23 East and parallels on the northern side of a southwesterly line from that point to the northeast corner of the southwestern quarter of the southeastern quarter of Section 5, Township 25 South, Range 23 East; and then parallels on the west a due south line to the northeast corner of the southwest quarter of the southeast quarter of said Section 5 and then parallels on the southern side of a southeasterly line to the southeast corner of Section 5 and joins the FPC preferred corridor. The bypass corridor is 190 feet wide. The land uses in the North Corridor Segment consist primarily of agricultural uses, improved pasture, orange groves, row crops and some hardwood hammocks. The prevalent land uses in that part of the Central Florida Segment within the Withlacoochee State Forest are timber management and game management. The prevalent land uses within that part of the Central Florida Segment south of the Withlacoochee State Forest are private timber management and cattle operations. The DER Proposed Corridor and the Central Corridor Segment, south of the Withlacoochee State Forest, are composed of approximately the same types and amounts of wet land and forested areas. The proposed corridor in the Central Corridor Segment crosses two large wetland systems, Cross Creek Swamp and Bayroot Slough. The entire corridor proposed by the Applicant contains approximately 1,100 acres of cypress wetland. Altering the FPC corridor in the manner suggested by DER in the DER Proposed Corridor would increase the cypress wetland acreage encompassed by the corridor to 1,300 acres. A similar comparison of the two corridors with regard to fresh water marsh indicates that the DER Proposed Corridor would reduce the acreage of fresh water marsh encompassed by the corridor from 800 acres in the FPC corridor to 600 acres. Both corridors contain similar amounts of fresh water swamp. There are three large wetland systems in the FPC Proposed Corridor. They are Bayroot Slough, Devils Creek Swamp, and Cross Creek Swamp. Bayroot Slough is approximately 3,600 acres in area, Devils Creek Swamp is 8,800 acres in area and Cross Creek Swamp, 1,145 acres in area. The Applicant proposes to build an access/maintenance road completely through Devils Creek Swamp on the eastern most 20 feet of its right-of-way. This access/maintenance road would be used as a partial base for a levee proposed to be constructed in the area by the Southwest Florida Water Management District. This access/maintenance road would require the filling of approximately 9 acres, or one-tenth of one percent, of Devils Creek Swamp. In Bayroot Slough and Cross Creek Swamp, as well as all other major wetland areas, with the exception of Devils Creek Swamp, the Applicant proposes to use keyhold fills for the placement of its towers and to leave the span between towers open with no placement of fill. These construction techniques are designed to permit sheet flow to continue in a near natural state, thus minimizing adverse impact on those wetland areas. In Bayroot Slough, approximately six acres, or less than two-tenths of one percent, are proposed to be filled in connection with construction of the subject line. In Cross Creek Swamp, approximately four acres, or less than four-tenths of one percent of the total swamp area, will be filled for the construction of an access/maintenance road. The DER Proposed Corridor would require approximately four additional miles of transmission line than would the corridor proposed by FPC. That would increase the cost of construction of the transmission line from approximately $23,174,000.00 to $25,824,000.00 Thus, the DER Proposed Corridor would cost $2,650,000.00 more to construct than would the corridor proposed by the Applicant. The DER Preferred Alternate Corridor, which contains deflections around Bayroot Slough and Cross Creek Swamp, would require approximately .87 miles more transmission line than would the FPC Proposed Corridor and because of that additional length and the number of turning angles necessary,, would cost approximately $1,344,000.00 more to construct than would the corridor as proposed by FPC. The wetland systems in the region which contain Bayroot Slough, Devils Creek Swamp and Cross Creek Swamp are interrelated with regard to wildlife. This region is approximately 25,000 acres in size. Approximately 96 acres would be cleared and 19 acres filled with the construction of a transmission line along the corridor proposed by the Applicant. The right-of-way required for the proposed 500 kV transmission line will measure 190 feet in width. The transmission line will consist of one single circuit 500 kV line. The basic structure type selected for the proposed transmission line is a steel lattice guyed V. This structure will be used to support the conductors on straight portions of the line. At angles in the transmission line, the conductors will be supported by a four-legged, self- supporting steel lattice tower. These angle structures are significantly more expensive than the steel lattice guyed V structures. The structures will be constructed of steel angle sections and will be galvanized. The guy wires for the guyed V structure will be either aluminum coated steel cable or an aluminum cable with an approximate diameter of 1.0 to 2.0 inches. A four-legged self- supporting steel lattice structure may be used on some straight portions of the transmission line where required, due to soil conditions, clearances, or other engineering or environmental considerations. The structures will support a single three-phase alternating current, 500,000 volt circuit. Three conductors will be included in each phase, resulting in a total of nine conductors for the circuit. The structure also supports two overhead ground wires which protect the circuit from lightning strikes. The conductor will be supported in the structure by insulator and hardware assemblies. A typical foundation for the guyed V structure will be a cast-in-place reinforced concrete foundation. Guy wires will be attached. The angle structure will be supported on cast-in-place reinforced concrete cylinder foundations. The structures will be electrically grounded. The minimum conductor to ground clearance will be 37 feet at 120 degrees Fahrenheit. A typical span between structures is 1,200 feet. The transmission line will be designed to meet or exceed the requirements of the National Electric Safety Code, 1973 and 1981 Editions. Construction of the transmission line will be done in three phases. The first phase will consist of clearing the right-of-way and access/maintenance road construction. The second phase will consist of construction of the towers, and the third phase will consist of the actual stringing of the conductors. Because of the very small amount of the total aquifer recharge area proposed to be filled by the Applicant, there will be no significant adverse impact to aquifer recharge capabilities because of the construction of the transmission line. If constructed with an adequate amount of culverting, the access/maintenance roads proposed to be constructed by the Applicant will not significantly affect the surface regime in the areas within the FPC Proposed Corridor. Outside of the 190 foot transmission line right-of-way there will be essentially no change in-existing vegetation. Within the 190 foot right-of-way, only the inside 150 feet will be cleared with the outer 20 feet on each side being cleared only of "danger" trees; that is, trees that might fall on to the line because they are diseased, dead or leaning toward the line. Benthic organisms (microscopic, microinvertebrates, which are aquatic organisms on the lower levels of the food chain) could be adversely impacted if the wetland they inhabit is relatively small compared to the amount of fill required in that wetland for the construction activities associated with the transmission line. If the wetland is relatively large, however, there will be no discernible impact on the standing crop of benthic organisms because they can migrate to other portions of the wetland which are not filled. The DER Proposed Corridor has a greater number of relatively small wetland areas than does the FPC Proposed Corridor. No evidence was presented to establish any adverse impact by construction of a transmission line to upland wildlife habitat or upland wildlife species with the exception of the American wood stork. Although the evidence did establish that construction of a transmission line through wetland wildlife habitat could adversely affect some wildlife species within that habitat, the evidence did not establish that the extent of such an impact on any species would be significant in either the FPC Proposed Corridor, the DER Proposed Corridor or the DER Preferred Alternate Corridor. Witnesses for the Department of Environmental Regulation and the Florida Game and Fresh Water Fish Commission expressed a concern that placement of a transmission line in the FPC Proposed Corridor will allow increased human access to the large wetland areas within that corridor. The evidence considered overall, however, does not establish that placement of a transmission line in the FPC Proposed Corridor" will in fact result in any significant increased human access to the large wetland areas within that corridor or that such access per se would result in some significant adverse environmental impact. In order to attenuate potential flood damage along the Withlacoochee River, the Southwest Florida Water Management District proposes the construction of a levee to capture and hold 25-year and greater storm events in head-water areas of the Withlacoochee River. This is an ongoing project of SWFWMD which, at best, is several years from construction. In the area of Devils Creek Swamp, the Central Corridor Segment proposed by the Applicant would co-locate the transmission line with the SWFWMD proposed levee, thus minimizing the amount of fill to be placed in that area by the two projects and minimizing the adverse impact of the wetland system by the transmission line. Should such co-location occur, it would have the minimizing effect outlined above. However, because of the prospective nature of the SWFWMD project, the ultimate co-location of the transmission line and the SWFWMD levee is too speculative to assign much weight to its significance. Should a transmission line be placed adjacent to Highway 471 as proposed as an alternative by the Department of Environmental Regulation, some of that transmission line would cross property which is intended for residential development by its owners. The Florida Department of Agriculture and Consumer Affairs, Division of Forestry, has indicated its hope that the alignment of the transmission corridor as proposed by the Applicant in the area of the Withlacoochee State Forest would provide a fire break beneficial to the Division for forest management purposes. There are three endangered species to which special attention should be paid with regard to the construction of a transmission line and associated faciliti es. These are the scrub jay, the red-cockaded woodpecker, and the wood stork. The scrub jay is found in vegetation typically less than 25 feet tall so that except for tower placement, scrub jay habitat will be essentially unaffected. The Applicant has agreed to a Condition of Certification to further protect the scrub jay and its habitat by avoiding colonies where found or by leaving the oak scrub in place under the wires. The red-cockaded woodpecker nests and roosts in mature and over-mature pines. Such trees may occur within the proposed corridor. To protect colonies that may exist, a survey needs to be performed prior to final right-of-way selection and if a colony is found, a right-of-way should be chosen to avoid that colony if at all possible. It could be very costly to divert the transmission line around such a colony by angles in the line. None of the proposed corridors cross a known wood stork rookery. However, a former rookery exists at Clay Sink wading bird site and will probably again become a rookery in the future when favorable conditions again exist. The FPC Proposed Corridor is more than a mile from any known wood stork rookery which should eliminate any significant adverse impact on such a site. A 500 kV transmission line is an extra high voltage line. The highest electrical field strength directly underneath the proposed Central Florida-to- Kathleen 500 kV transmission line at ground level will be less than 10,000 volts per meter, and the field strength will diminish with distance from the line. The magnetic field associated with the proposed transmission line will be less than 0.5 gauss. Testimony and evidence establishes that the electric and magnetic field forces encountered in the vicinity of the transmission line at ground level will have essentially no biological effect and will be no stronger than similar forces encountered in the normal course of modern daily life. Because of the size of the conductors to be used on the proposed transmission line, the ozone produced by that line will be negligible and will be well below the maximum ozone concentration level (0.12 ppm) recommended by the United States Environmental Protection Agency. During fair weather, the line will be virtually silent. During wet weather, when the conductors are wet, the noise level will be approximately 38 dBA at the edge of the right-of-way. This is a low noise level. At locations near the edge of the right-of-way, some interference with the reception of AM radio signals will experienced, particularly during wet conductor conditions. No interference to reception of FM radio broadcasts is expected from the proposed transmission line at any time. Television reception may be affected similarly-to that of AM radio signals. No hazardous induced currents are expected to occur in structures or vehicles beneath the line. Except as otherwise noticed in the Findings of Fact herein, the testimony and evidence in this cause establishes that the proposed transmission line, if constructed along a right-of-way in the corridor as proposed by the Applicant, pursuant to the Conditions of Certification, would have no significant adverse effect on the environment, public health, safety or welfare. Similarly, neither the DER Proposed Corridor nor the DER preferred Alternate Corridor would have any significant adverse effect on the environment, public health safety or welfare. The evidence does not establish that the two alternative corridors proposed by DER would have an appreciably reduced effect on the environment, public health, safety or welfare. The evidence does establish, as set forth in Paragraph 13 above, that the two DER alternatives would be significantly more expensive to construct than would the FPC proposed corridor. The corridor as proposed by FPC and depicted on Appendix 1 is 2,600 feet wide from its starting point at the existing Central Florida Substation to the northeast corner of Section 1, Township 23 South, Range 23 East, also the northeast corner of the Withlacoochee State Forest. At that point, the corridor narrows to 1,000 feet and continues to proceed southerly immediately west of the Sumter/Lake County line. At a point identified as the northeast corner of Section 1, Township 24 South, Range 23 East, the corridor narrows to 500 feet and proceeds in a southwesterly direction with 250 feet-on either side of a line running from the northeast corner of Section 1, Township 24 South, Range 23 East, to the southwest corner of Section 4, Township 24 South, Range 23 East. At a point identified as the southwest corner of Section 4, Township 24 South, Range 23 East, the corridor turns due south, expands to 1,020 feet with the eastern 20 feet inside the SWFWMD west property line, and proceeds directly south paralleling the SWFWMD proposed levee for approximately one and one-half miles through "Devils Creek Swamp" to a point where the transmission line corridor end the SF4D proposed levee diverge. The corridor narrows to 1,000 feet and proceeds directly south immediately west of the SWFWMD west property line to the proposed Kathleen Substation site.
The Issue The issue for determination is whether Respondent should grant Petitioner's application for a commercial telephone seller's license.
Findings Of Fact Petitioner, Stanley Sarentino, Jr. (Sarentino) is the owner and president of the The A/C Guy, Inc. (The A/C Guy) an air-conditioning service business based in Pompano Beach, Florida. The A/C Guy was incorporated in 1996, and serves residential and business customers in Broward and Palm Beach Counties. Respondent Department of Agriculture and Consumer Services (the Department) is the state agency charged with the enforcement of state regulation of telemarketing businesses in accordance with the provisions of the Florida Telemarketing Act, Chapter 501, Part IV, Florida Statutes (2000) (the Telemarketing Act). Sarentino has worked in the air-conditioning business in South Florida for over ten years. Both as an employee of other companies and since he formed The A/C Guy, Sarentino works exclusively as an air-conditioning mechanic. Sarentino has no expertise in, and has never been involved with, the daily running of the business, nor in the marketing of services, at the A/C Guy. Neither has Sarentino worked in the business side of any of the prior companies in which he was employed. Sarentino is assisted in managing The A/C Guy by his wife of 10 years. The Sarentinos have three children, and the family is well regarded in the community. Prior to the marriage, Sarentino's life was less exemplary. In 1991, Sarentino was charged with felony transportation of stolen stock certificates. Close in time to the stock charges, Sarentino was charged with unlawfully purchasing cocaine. Both incidents were disposed of by plea agreements which spared Sarentino a jail sentence. Since then, Sarentino has devoted himself to “turning his life around” by attending church, providing for his growing family, and otherwise occupying himself with lawful pursuits. Recently, Sarentino has made efforts to grow his small business. Those efforts included hiring John Frank Aiello, Jr. (Aiello) as full-time General Manager of The A/C Guy in the spring of 2001. Sarentino and Aiello came to believe that The A/C Guy had grown about as much as it could via word of mouth and print media advertising. They desired to expand the customer base for the business through telemarketing. Under the provisions of the Telemarketing Act, individuals who wish to have their business engage in telemarketing are required to be licensed (the Department). Aiello prepared a telemarketing license application for Sarentino in accordance with the instructions contained in the application package provided by the Department. Before commencing to prepare the application, Sarentino and Aiello carefully reviewed the licensing criteria. They paid special attention to the requirement that any criminal background be disclosed, and acted in good faith to disclose Sarentino’s history with as much precision as Sarentino’s 10-year-old memory would allow. The Department’s independent investigation corroborated that Sarentino had truthfully provided all requested information. Since his successful completion of probation for the decade-old incidents revealed on his telemarketing application, Sarentino has been a law abiding citizen. All applications for a telemarketer's license must be accompanied by a non-refundable $1500 processing fee. Applicants must also provide proof that they have paid the premium and have otherwise fulfilled the requirements to obtain a $50,000 bond from a private bonding company. The bond premium in this case was $1000.00. It is also necessary for applicants to provide extensive information about the business in whose name telemarketing will be conducted, along with information about individuals affiliated with the business, so that the Department may investigate their backgrounds for the public’s protection. Sarentino spent in excess of $350.00 in accounting fees for the preparation of financial statements required for the application. Prior to investing the time and incurring the expense associated with the application process, both of which are considerable, Sarentino carefully considered the question of whether he had a realistic chance to obtain a license. At the time he submitted his application, Sarentino reasonably believed, based upon the information provided by the Department itself, that his application would not be automatically rejected on account of his decade-old legal difficulties. After Sarentino’s application was submitted, Aiello, in his capacity as The A/G Guy general manager, had telephone conversations with the Department’s Regulatory Consultant Tom Kenny (Kenny) to follow-up on the status of the application. During the course of such conversations, Kenny revealed that the plea to the stock charge as well as the plea to the cocaine charge---each, by itself---would trigger the denial of the license application once the Department had independently confirmed that Sarentino had indeed truthfully disclosed the pleas. The evidence established and the Department conceded that there is an informal, unwritten practice enforced by Kenny's supervisor, James R. Kelly (Kelly), the Department’s Director of the Division of Consumer Services, that a plea of guilty to a felony charge, no matter what the felony, no matter how remote in time, no matter whether the applicant was rehabilitated or not will automatically result in the denial of a license application. The Department has no written rules, policies, or guidelines to which a citizen may refer in order to be apprised that the applications of individuals like Sarentino, and those similarly situated, are, in fact, dead on arrival. The Department's interpretation of the law is directly contrary to the discretionary language of the statute, which plainly does not foreclose all possibility that mitigating factors would be taken into account by Department officials in evaluating an applicant's criminal history. Sarentino has fulfilled all the statutory criteria for licensure. The Department would have granted the license were it not for its unwritten policy that the statute requires that any plea to a criminal charge mandates automatic denial.
Recommendation Based on the foregoing, it is hereby recommended that a Final Order be entered by the Department granting a commercial telephone seller's license to Stanley Sarentino, Jr. DONE AND ENTERED this 28th day of September, 2001, in Tallahassee, Leon County, Florida. FLORENCE SNYDER RIVAS 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 28th day of September, 2001. COPIES FURNISHED: James Curran, Esquire 633 Southeast Third Avenue Suite 201 Fort Lauderdale, Florida 33301 William N. Graham, Esquire Department of Agriculture and Consumer Services Mayo Building, Room 515 407 South Calhoun Street Tallahassee, Florida 32399-0800 Brenda D. Hyatt, Bureau Chief Bureau of License and Bond Department of Agriculture and Consumer Services 541 East Tennessee Street India Building Tallahassee, Florida 32308 Honorable Terry L. Rhodes Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Richard Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
Findings Of Fact Procedural Matters The Public Service Commission issued its Order Approving Electrical Transmission Line on October 30, 1987, determining the need for the Crane- Bridge-Plumosus 230 kV transmission line to provide additional service load capacity and maintain system reliability. Florida Power & Light Company (hereinafter "FPL") filed with the Department of Environmental Regulation (hereinafter "DER") its Application for Corridor Certification of the Crane-Bridge-Plumosus 230 kV transmission line corridor on July 14, 1988. That Application was deemed by DER to be complete but insufficient, and FPL's Sufficiency Response was filed on September 16, 1988. The certification hearing was originally scheduled to commence on February 6, 1989. PGA Property Owners' Association, Inc. (hereinafter "PGA") timely filed alternate corridors on December 13, 1988. Old Marsh Partners, Old Marsh Golf Club, Inc., and Old Marsh Homeowners Association, Inc., (hereinafter "Old Marsh" or "OM") timely filed alternate corridors on December 15, 1988. Several of the alternates filed by PGA were accepted by FPL on December 7 20, 1988. Several of the alternates filed by Old Marsh were accepted by FPL on January 5, 1989. FPL did not respond to several of the alternates proposed by PGA and Old Marsh (the burial alternates) because FPL considered these proposed alternates to be design modifications to FPL's corridor, a factual proposition that was accepted by this Hearing Officer prior to the final hearing in this cause but which was disproven during the evidentiary hearing. One of Old Marsh's alternates was rejected by FPL. The certification hearing was rescheduled to commence on April 3, 1989, due to the timely filing of alternate corridors and the acceptance of some of them. George H. Sands, Jeffrey H. Sands, George H. Sands and Jeffrey H. Sands d/b/a Princeton Arms (hereinafter "Sands") and Southern Land Group, Martin Downs Country Club, Inc., and Martin Downs Property Owners Association, Inc., (hereinafter "Martin Downs") timely filed alternate corridors on February 9, 1989. Two of those alternates were rejected by FPL, and FPL did not respond to one of those alternates because it considered that alternate to be within the FPL proposed corridor. By the time of the final hearing in this cause, alternate corridors proper for consideration were reduced to Alternate Corridors 2A and 2B filed by PGA and jointly proposed by PGA and Old Marsh (hereinafter "Alternate corridor" unless otherwise described). During the final hearing, settlement agreements between Sands and FPL and between Martin Downs and FPL resulted in Sands and Martin Downs voluntarily dismissing their petitions to intervene in this proceeding and voluntarily withdrawing their proposed alternate corridors in exchange for FPL agreeing to a number of additional conditions of certification of the Martin County segment of the Crane-Bridge-Plumosus corridor are set forth in Attachment A to this Recommended Order. Prior to the final hearing, all parties entered into a Prehearing Stipulation which included Attachment D. Attachment D set forth the minimum conditions for certification, which conditions were agreed to by FPL, and which conditions will apply no matter which corridor is certified. Those conditions are set forth in Attachment B to this Recommended Order. All statutory notices regarding the filing of FPL's Application, the filing of the PGA/OM Alternate corridors 2A and 2B, and the scheduling and rescheduling of the certification hearing were properly published, and all statutory notifications were properly accomplished. Description of the FPL Proposed Corridor Essentially, the Crane-Bridge-Plumosus 230 kV transmission line corridor would run from the existing site of the proposed Crane Substation in the immediate vicinity of the Martin Downs community near Stuart, Martin County, Florida, to the existing Plumosus Substation near Jupiter, Palm Beach County, Florida. The total length of the proposed FPL corridor is approximately 40 miles. The FPL proposed corridor is of variable width, ranging from approximately 300 feet to 1 mile wide. Crane-Mapp: The FPL proposed corridor begins at the site for the Crane Substation in Martin County and runs south to the proposed Mapp Substation siting area paralleling the Florida Turnpike so that a right-of-way could be located on either side of the Turnpike. Mapp-Hanson: From the proposed Mapp Substation siting area, the FPL proposed corridor continues to proceed south straddling the Florida Turnpike until it reaches the junction of I-95 and the Turnpike. From that point the proposed corridor runs southeast away from the Florida Turnpike and parallel with I-95 on the east side to the proposed Hanson Substation siting area. Hanson-Bridge: At a point approximately 1 mile south of the State Road 76 interchange with I-95 at the proposed Hanson Substation siting area, the FPL corridor turns west and crosses both I-95 and the Florida Turnpike until it reaches County Road 711. The proposed corridor then proceeds south along County Road 711 for a distance of 13 mi1es crossing County Road 708, County Road 706 and the C-18 Canal. As the proposed corridor begins proceeding south straddling County Road 711, it reaches the proposed Bridge Substation siting area and continues south, narrowing at one point to exclude the actual residential structures in the Foxwood development but not excluding the properties owned by the residents of that subdivision. At the proposed Bridge Substation siting area, the corridor widens to allow flexibility in connecting the proposed transmission line to an existing 230 kV transmission line. Bridge-Moroso-Alexander: From the proposed Bridge Substation siting area, the FPL proposed corridor continues to parallel County Road 711 south through the proposed Moroso Substation siting area to the intersection of State Road 710 where it connects to the proposed Alexander Substation siting area. Alexander-Steeplechase: At the intersection of County Road 711 and State Road 710 which is also known as the Beeline Highway, in the vicinity of the proposed Alexander Substation siting area, the FPL proposed corridor turns southeast and straddles State Road 710 until the Beeline Highway intersects with PGA Boulevard at the proposed Steeplechase Substation siting area. Along the Beeline Highway, the corridor narrows to exclude the residences in the Caloosa residential development but does not exclude the properties on which those residences are located. Steeplechase-Ryder: At the intersection of the Beeline Highway and PGA Boulevard, the FPL proposed corridor turns east on PGA Boulevard crossing the C-18 Canal a second time and crossing the Loxahatchee Slough. At the point where FPL's proposed corridor crosses the C-18 Canal along PGA Boulevard in Palm Beach County, the proposed corridor would be approximately 1,000 feet wide. At a point just east of the C-18 Canal, FPL's proposed corridor narrows somewhat on the south side of PGA Boulevard to exclude the residential structures in the PGA National community from the corridor. Nevertheless, the corridor width would still encompass both the north and south sides of PGA Boulevard, and on the south side it would extend through the individual backyards and actually abut the homes of the PGA National residents. FPL's corridor continues to proceed easterly on both sides of PGA Boulevard to a point where Ryder Cup Boulevard intersects the south side of PGA Boulevard. At that intersection, the corridor is widened and turns to the north to accommodate the proposed Ryder Substation location. FPL's proposed Ryder Substation siting area is located in the area adjacent to and north of the intersection of PGA Boulevard and Ryder Cup Boulevard. Ryder-Bonnette: The FPL proposed corridor continues north through the proposed Ryder Substation siting area following a dirt road past a sewage treatment plant. As it proceeds north of Hood Road along the proposed Jog Road extension, it narrows as it passes between the Old Marsh and Eastpointe residential developments. Despite the narrowing of the corridor at this point, homesites, storm water management facilities, and portions of golf courses in both of those developments are encompassed by the proposed corridor. As the corridor passes the northern boundary of Old Marsh, it again widens and continues to proceed north encompassing wetland areas, until it reaches the current western termination point of Donald Ross Road. The Bonnette Substation is proposed by FPL to be located in this area. Bonnette-Plumosus: From the proposed Bonnette Substation siting area, the FPL proposed corridor turns east and follows Donald Ross Road for approximately 2 miles, running along the Palm Beach Country Estates subdivision on the north side of Donald Ross Road and the northern edge of the Eastpointe subdivision along the south side of Donald Ross Road. Once again, the corridor narrows on the Donald Ross Road segment to exclude the actual residential structures in the Eastpointe and Palm Beach Country Estates developments but does not exclude the properties on which those residences are located. The corridor continues to run east along Donald Ross Road until it crosses the Florida Turnpike and I-95, turning north just west of the Donald Ross Road and Central Boulevard intersection. The FPL proposed corridor then runs north paralleling an existing 138 kV transmission line for a distance of 2 miles to the existing Plumosus Substation. Except for a small segment of the FPL proposed corridor located at the proposed Hanson Substation siting area in Martin County, the corridor includes the lands on both sides of the roadways it follows in order to provide flexibility to FPL in designing and constructing its proposed transmission line. The width of FPL's proposed corridor -- up to 1 mile wide -- serves the same purpose of allowing flexibility to FPL in locating a right-of-way for its transmission line facility. No specific right-of-way within the proposed corridor is contemplated at this time, and the eventual right-of-way is not the subject of this proceeding; rather, FPL can locate a right-of-way anywhere within a corridor which is certified. Description of the PGA/OM Alternate Corridor The PGA/OM Alternate corridor differs from one 4-mile segment of the FPL proposed corridor by commencing north 13 from PGA Boulevard at a point just after the FPL proposed corridor crosses the C-18 Canal for the second time. The Alternate corridor follows an existing unnamed canal for 1 mile, then parallels Sections 33 and 28 for 2 miles. Alternates 2A and 2B are coextensive with each other up to the point at which the Alternate corridor is due west of Donald Ross Road. At that point, Alternate 2A turns east at the northwest corner of Section 28 and continues easterly to reconnect with the FPL proposed corridor in the vicinity of the Bonnette Substation. Alternate 2B continues north, rather than east, at the northwest corner of Section 28 for approximately 3/4 of a mile along the west boundary of Section 21. At that point, Alternate 2B turns southeasterly following a proposed future alignment of the Donald Ross Road extension to reconnect with the FPL proposed corridor in the vicinity of the Bonnette Substation. In conjunction with the PGA/OM Alternate corridor, FPL's proposed site for the Ryder Substation would be relocated approximately 1 mile to the west so that the Ryder Substation would be located just east of the PGA/OM Alternate corridor and north of PGA Boulevard. Description of the Transmission Line The transmission line which FPL proposes to construct within its proposed corridor would be an overhead line using a single-circuit, single-pole concrete structure. The concrete poles would average 80 feet in height, but may be as tall as 100 feet. The concrete pole is 2 feet wide at its base. The wires that transmit electricity, called conductors, are connected to insulators which are attached to the concrete pole structures. Three conductors will be used for this proposed transmission line. The single concrete pole structures will have one of two types of configurations: vertical or triangular (delta). In a vertical configuration, all three of the conductors are located on one side of the concrete pole structure, and in the triangular configuration, two conductors are located on one side of the concrete pole structure, and one conductor is located on the opposite side. A ground wire is located at the top of the concrete pole structure and acts to protect the conductors from lightning strikes. The right-of-way required for the proposed transmission line will vary from 15 feet to 50 feet, depending on whether a vertical or a triangular configuration is used and on whether the transmission line structure can be placed adjacent to an existing road that can be used for access to the transmission line. Additional right-of-way up to 140 feet in width may be required for guyed corner or side tension structures. When an existing road or road right-of-way can be used for access, a 15 foot right-of-way adjacent to the road right-of-way can be used for the transmission line structures with a vertical configuration. If a triangular configuration is used adjacent to an existing road or road right-of-way that can be used for access, a 35 foot right-of-way would be required for this transmission line. Where new access roads will be required, a 35 foot right-of- way is required for the vertical configuration, and a 50 foot right-of-way is required for the triangular configuration. FPL anticipates constructing approximately 12 miles of new access roads in its proposed corridor in areas that do not have existing roads or where adjacent roads cannot be used for access, such as adjacent to the Florida Turnpike and adjacent to I-95. If the PGA/OM Alternate corridor is certified, FPL anticipates requiring a 50-foot wide right-of-way along the entire length of the Alternate corridor due to the absence of existing roads (excluding unofficial roads created by persons using all-terrain recreational vehicles) and the use of triangular configured structures. Since the segment of the FPL proposed corridor from which the PGA/OM Alternate corridor deviates follows existing roadways which FPL anticipates using for access, FPL plans to use vertical structures with a smaller 15-foot right-of-way in that corridor segment. Span lengths between structures will vary between 300 feet and 600 feet, with a minimum conductor-to-ground clearance of 24 feet. The span lengths depend upon specific right-of-way widths determined by FPL after corridor certification and on final line design also determined by FPL after corridor certification. The transmission line poles may also be used for other utility attachments, such as distribution or communication lines. Access to the transmission line concrete poles must be provided for both construction and maintenance purposes. Any new access roads to be constructed will typically be unpaved and 14 feet in width. Finger roads connecting access roads to the pole location will typically be 30 feet in width. A structure pad for location of trucks for maintenance purposes will be constructed at the location of each pole. The structure pads surrounding each concrete pole will typically be 30 feet by 40 feet. Substations Between the existing site for the proposed Crane Substation and the existing Plumosus Substation, the proposed transmission line will connect 8 proposed intermediate substations in Martin and Palm Beach Counties. Proposed intermediate substations in Martin County include the Mapp, Hanson, and Bridge Substations. The proposed Moroso Substation will be located in the vicinity of the Martin County and Palm Beach County line. Proposed intermediate substations in Palm Beach County include the Alexander, Steeplechase, Ryder, and Bonnette Substations. Most of the proposed substation siting areas are one square mile or 640 acres in size. However, Bridge is one-half mile square, Moroso is 5 miles square, and Alexander is 4 mile square. Prior to filing its Application for Corridor Certification for the Crane-Bridge-Plumosus 230 kV transmission line, FPL enlisted the aid of an advisory committee composed of representatives from agencies and local governments and two home owners. At the time the advisory committee convened, the substation locations were already identified and the geographical areas already determined. The advisory panel did not provide input into the location or size of the substation areas. Rather, the advisory panel merely looked for a corridor which would connect the already-designated substation siting areas. It is unclear how much input the advisory committee actually had into the corridor proposed by FPL in this proceeding. Only the location proposed for the Ryder Substation is at issue in this proceeding, since it is proposed to be located along the segment of FPL's proposed corridor from which the PGA/OM Alternate corridor deviates. If the PGA/OM Alternate corridor is certified, the proposed Ryder Substation siting area would be moved approximately 1 mile west of the Ryder Substation location proposed by FPL. Locating the Ryder Substation adjacent to the Alternate corridor on the east side of that corridor is appropriate from a land use perspective and will not materially affect the efficiency and reliability of electrical service to the area to be served by that substation. The actual difference in service reliability of the Ryder Substation if located adjacent to the Alternate corridor on the west side of the Alternate corridor would be an increase of 0.3 service interruptions per year, or one additional service interruption every 3 to 4 years. The difference in service reliability if the Ryder substation were located adjacent to the Alternate corridor on the east side of the Alternate corridor would be even less. Therefore, essentially the same service reliability would result. Engineering and Design The construction techniques for the proposed transmission line set forth in FPL's Application are standard construction techniques in the industry. The proposed Crane-Bridge-Plumosus transmission line will be designed for two types of load: structural and electrical. The structural load of the proposed transmission line will be designed to hold the weights of the poles, insulators, and conductors in a sustained wind of 115 mph. The electrical load for the proposed transmission line will be designed to carry 230 kilovolts with a conductor capacity of 647 megavolt amperes (MVA). Under normal operation, the proposed transmission line will carry between 250 and 350 MVA. The design and construction of the proposed transmission line will comply with all applicable codes and standards including the National Electrical Safety Code, the American Society of Testing Materials, the American National Standards Institute, the American Concrete Institute, the Southern Building Code, and the Florida Department of Transportation Utility Accommodation Guide. Transmission lines can be constructed adjacent to or within road rights-of-way, with the road drainage facility or swale between the road and the concrete pole. The maintenance finger road to access the pole structure is culverted where that road crosses the drainage facility or swale. The transmission line can be constructed, from an engineering perspective, within the right-of-way east of Old Marsh. FPL has constructed transmission lines within road rights-of-way for other transmission line projects. FPL has entered into agreements with local governments for other projects to share road right-of-way. From an engineering perspective, the transmission line can be constructed to span Impoundment 2BE (discussed hereinafter), if necessary. From an engineering perspective, the design and siting of the transmission line within the FPL proposed corridor would be more flexible if located on the north side of PGA Boulevard near PGA National. From an engineering perspective, the design and siting of the transmission line within the FPL proposed corridor would be more flexible if located south of the Beeline Highway near the Caloosa Development. From an engineering perspective, the design and siting of the transmission line within the FPL proposed corridor between the Old Marsh and Eastpointe developments offers limited flexibility. From an engineering perspective, the design and siting of the transmission line within the Alternate Corridor is preferable because line siting flexibility is increased. From an engineering perspective, location of the Ryder Substation adjacent to the Alternate corridor or in the location proposed by FPL is appropriate. Impacts to the Environment Wetlands Both the FPL corridor and the Alternate corridor may impact wetlands within the jurisdiction of DER, the South Florida Water Management District, and the United States Army Corps of Engineers. DER has not formally identified jurisdictional wetlands within the FPL corridor or within the 20 Alternate corridor. The South Florida Water Management District and the United States Army Corps of Engineers have expressed jurisdiction over certain wetlands within the FPL corridor and within the Alternate corridor. The actual extent of wetlands impacted is unknown and will ultimately be determined at the time of actual line siting within the certified corridor. Section 3.2 of the FPL Application states that FPL will provide detailed information on dredging or filling (locations and volumes) to DER after a corridor is certified, when the right-of-way is determined and engineering is completed. Mitigation for wetland impacts will be required at the time of line construction. Attachment D to the Prehearing Stipulation sets forth specific mitigation criteria as conditions of corridor certification acceptable to DER and the South Florida Water Management District for wetland impacts. Implementation of those mitigation conditions will not result in any conflicts or problems with the mitigation practices and policies of the Corps of Engineers, DER, or the South Florida Water Management District. The jurisdictional determination evidenced in PGA/OM Joint Exhibit 18A, though not a "binding jurisdictional" pursuant to DER rules, is an accurate representation of the DER jurisdictional areas in the proximity of the Loxahatchee Slough and the Alternate corridor. That jurisdictional drawing was participated in by DER personnel. That informal jurisdictional determination evidences minimal acreage of wetlands within the jurisdiction of DER within the Alternate corridor. Along the FPL corridor route, numerous altered or disturbed wetland areas exist. Road construction, land clearing, and other human activities have altered the natural state of wetlands previously associated along the FPL proposed corridor. The wetlands within the southern half of the Alternate corridor are altered or disturbed due to existing canals and ditches as well as dirt roads within and adjacent to the Alternate corridor. Over time, due to the altered hydrology and transitional vegetation within and adjacent to the Alternate corridor, the acreage of wetlands impacted due to construction of a transmission line would approximate the acreage of wetlands impacted within the FPL corridor from the same transmission line construction. Certain wetlands within the FPL corridor are comparable to the wetlands within the Alternate corridor in terms of hydrology, quality, and habitat. The FPL corridor will cross 26 water bodies, all of which are classified as Class III, except for the C-18 Canal which is classified as Class I. The FPL corridor also crosses several isolated wetlands and the Loxahatchee Slough. There will be no significant impact to water quality from the construction of the Crane-Bridge-Plumosus transmission line. Short-term turbidity caused by the removal of vegetation will be controlled through the use of erosion control practices, such as fabric fences and straw bales. Long-term water quality will be maintained by allowing the vegetation around access roads and structure pads to re-establish. Any impacts to wetlands caused by the proposed transmission line can be mitigated consistent with regulatory agency mitigation criteria and the DER dredge and fill criteria. Wildlife Species of plants or animals designated as endangered, threatened, or species of a special or regional concern by the Treasure Coast Regional Planning Council, the United States Fish and Wildlife Service, the Florida Game and Fresh Water Fish Commission, the Florida Department of Agriculture and Consumer Services, and/or the Florida Committee on Rare and Endangered Plants and Animals, and species based on literature surveys and agency consultations were researched for potential occurrence within the FPL and Alternate corridors. The species studied are listed in FPL's Application. None of the species were found to have breeding or viable populations in the FPL or Alternate corridors. The presence or absence of specific plant species is primarily based upon suitable habitats. None of the corridors under consideration herein is expected to have any significant impact on important plant species. Of the 48 vertebrate species identified as occurring or possibly occurring within the proposed corridors, most are characteristic of or restricted to coastal habitat or estuarine habitat. Therefore, presence of these species would be of a migratory nature. Because of the absence of these species, impact to such wildlife would be expected to be minimal. Since the FPL corridor and the Alternate corridor include areas of disturbed habitat, the probability of occurrence for threatened and endangered species and other regionally significant species is diminished. Wildlife observed actually within the Old Marsh community included the sandhill crane, a threatened species listed by the Florida Game and Fresh Water Fish Commission. From a wildlife perspective, the FPL corridor and the Alternate corridor are appropriate locations for the construction of a 230 kV transmission line. The Prehearing Stipulation entered into by the parties requires the identification of endangered species prior to any clearing for the construction of the transmission line. Vegetation Vegetation communities associated with the FPL corridor include hammock, wet prairie, grassland and rangeland, pine flatwoods, cypress, freshwater marsh, pinewood, pinewood prairie, forested old field and mixed hardwood swamp. Vegetation communities associated with the Alternate corridor include tropical hammock, cabbage palm, wet prairie, cypress, pine wet prairie and pine flatwoods. The majority of vegetation within the Alternate corridor is pine wet prairie. The transmission line can be constructed to avoid the tropical hammock community. The alteration of habitat and associated vegetation due to human activities and altered hydrology in both the FPL and the Alternate corridors has resulted in the transition of vegetative communities including the introduction of exotic, nuisance plant species such as Melaleuca, Brazilian Pepper, and Australian Pine to those corridors. If the hydrologic condition remains the same within and adjacent to the Alternate corridor, additional exotic, nuisance plants would invade the area. Due to changes in the hydrologic condition east of the C-18 Canal and west of the Alternate corridor, a portion of the historic Loxahatchee Slough, exotic plants such as Melaleuca and Brazilian Pepper have invaded that area. The eastern boundary of the Loxahatchee Slough, as identified through analysis of vegetation, is a north-south line approximately half-way between the eastern leg of the C-18 Canal and the western boundary of the Alternate corridor. The Alternate corridor is not located within the historic Loxahatchee Slough. The implementation of the Loxahatchee River Basin Water Resources Plan (discussed hereinafter) would result in the creation of a littoral zone, Impoundment 2BE, not currently present within the geographical proximity of the Alternate corridor and would restore the historic hydroperiod of the Slough, limiting the introduction of additional exotic species to the area. From a vegetative perspective, both the FPL corridor and the Alternate corridor are appropriate locations for the construction of the 230 kV transmission line. Construction of the Crane-Bridge-Plumosus transmission line in the FPL 25 corridor or in the Alternate corridor will produce a minimal impact to existing vegetation. In wetland areas, the vegetation root mat will be retained in the right-of-way areas not occupied by access roads or structure pads. Construction of the proposed transmission line in the FPL corridor or in the Alternate corridor will not destroy the vegetative communities, but will merely force the shift in the successional stages of those communities within the right-of-way. Hydrology Due to human activities such as road construction and channelization, the hydrology associated with the FPL corridor is altered. Further, the Hood Road and Jupiter wellfields have contributed to altered hydrologic conditions in the proximity of the FPL corridor and the Alternate corridor near Old Marsh. The construction of the C-18 Canal in the early 1950's contributed to the lowering of the water table and altered the natural hydrologic conditions, impacting the wetlands lying east of the C-18 Canal but west of the Alternate corridor. Drainage of the Slough is increased when compared to drainage patterns prior to canal construction. The altered hydrology rendered the former Loxahatchee Slough area, east of the C-18 Canal and west of the Alternate corridor, a seasonally flooded area. In the area of the Alternate Corridor the C-18 Canal has altered the natural hydrological regime, impacting the associated vegetation and habitat. Further, the area within the southern half of the Alternate corridor is subject to persistent draining due to the location of an unnamed canal and other ditches within and adjacent to the Alternate corridor. The area within the Alternate corridor immediately north of Old Marsh is subject to minimum channelization. Adjacent developments and the Hood Road and Jupiter wellfields have lowered the water table, altering natural hydrologic conditions. In the geographical area immediately south of Old Marsh, both within and adjacent to the FPL corridor and the Alternate corridor, a series of connected channels have had a drastic impact on the wetlands and hydrology of that area. This channelization has resulted in the general lowering of the water table, altering natural hydrologic conditions. Attachment D to the Prehearing Stipulation includes conditions for certification regarding culverts and construction techniques to maintain historical drainage patterns along the eventual transmission line right-of-way. Construction of the transmission line along PGA Boulevard through the Loxahatchee Slough will not significantly impact water quality or water resource hydrology. From a water quality and hydrologic perspective, the FPL corridor and the Alternate corridor are appropriate locations for the construction of the transmission line. Construction techniques used will maintain water flows, existing drainage patterns, and hydroperiods. Impacts to wetland storage volumes will be minimized through removal of vegetation within the wetlands and installation of culverts. Installed culverts will be designed to accommodate the design storm of applicable agency design criteria. Loxahatchee River Basin Water Resources Plan The Loxahatchee River Basin Water Resources Plan (hereinafter "Plan") is a regional plan extending from southern Martin County into the northeastern part of Palm Beach County. The Plan's purpose is to capture surplus water during the rainy season or during an extremely rainy year, store the water in reservoirs, and deliver that water when necessary during times of drought. Additionally, the Plan would increase the hydroperiod in the Loxahatchee Slough, offsetting the adverse impacts of C-18 Canal construction. The Plan would result in releases of water into the historic Northwest Fork of the Loxahatchee River. The Plan would also augment recharge of two impacted municipal wellfields, the Hood Road wellfield and the Jupiter wellfield. The Northern Palm Beach County Water Control District is proposing the Plan and will seek regulatory approval for the Plan. By the time of the Final Hearing in this cause, the Plan had been informally discussed and reviewed by all regulatory agencies involved. The public hearings held thus far on the Plan by the Northern Palm Beach County Water Control District had brought forth no objections to the Plan. Although the Plan had not been filed with the South Florida Water Management District at the time of the Final Hearing in this cause and formal application for approval had not yet been made, it was anticipated that the Plan and applications for approval would be filed with the regulatory agencies involved around June 1, 1989. The Plan calls for reservoirs to be constructed on both sides of the C-18 Canal. The location of one of those reservoirs, Impoundment 2BE, may be partially within the Alternate corridor. Impoundment 2BE borders the eastern edge of the traditional Loxahatchee Slough. That reservoir, starting at PGA Boulevard, as currently designed, would occupy an area immediately to the east of the Alternate corridor, extending northerly along the eastern side of that corridor, crossing the corridor at the reservoir's narrowest point, then continuing parallel to the west side of the Alternate corridor into the northern portion of the Alternate corridor area. Impoundment 2BE is adjacent to, but will not be located within, the Loxahatchee Slough. Implementation of the Plan would not result in additional standing water within the Alternate corridor altering existing impacted wetlands. Hydrology of the Alternate corridor would be minimally impacted by the Plan due to the impoundment of the natural west to east water sheet flow. The location of Impoundment 2BE is subject to minimal change during the permitting review and approval process due to the nature of valuable wetlands to the west of the proposed location of the Impoundment, the location of existing and planned development to the east of the proposed location, and because the planned location maximizes the environmental benefits of Impoundment 2BE to recharge the Loxahatchee Slough. The impact of the reservoir on the wetland area incorporated as part of the proposed Bonnette Substation site is minimal because the reservoir water levels are not high enough to effectuate sufficient seepage nor will there be releases of surface water into that area. Direct releases from the Impoundment will be only through existing channels. The direct release channels are the south canal of the South Indian River Water Control District, north of the Alternate corridor, and the east channel from Impoundment along the south boundary of Old Marsh into the Eastpointe development. These two channels are the only two areas for direct releases of surface water. Impoundment 2BE will include an 8-foot berm constructed around its perimeter. The Plan includes a 16-foot wide road atop the impoundment berm to maintain berm side slopes. It is anticipated that the water level in the reservoir will average 3 feet above natural grade, and it is not expected to be higher than 4 feet. To avoid seepage impacts, the Plan includes construction of toe drains to capture seepage and deliver that seepage to a pump system, returning the seepage to the reservoir. The Plan includes an access road surrounding the toe drains which surround the berm to access and maintain the toe drains. The access road next to the toe drains will be approximately 10-15 feet wide. FPL and the Northern Palm Beach County Water Control District have shared maintenance access roads in other 30 locations. A conflict would not exist between FPL and the Water Control District in sharing the Impoundment 2BE access road. The South Florida Water Management District, through the Loxahatchee River and Slough Restoration Program (hereinafter "Program"), intends to restore the historic hydrologic condition of the Loxahatchee Slough. The Program and the Plan are compatible and complementary water resource plans. Conflicts would not result due to the implementation of the Plan and the Program. Implementation of the Plan and construction of the 230 kV transmission line would not conflict from an engineering perspective. Impoundment 2BE and the line can be constructed sharing access roads, and conflicts would not result in maintaining the reservoir and the transmission line. If the Plan is implemented as proposed, much of the wetlands in the vicinity of the Alternate corridor would be significantly impacted, if not completely obliterated. Thus, the possible wetland impacts which might occur as a result of construction of the transmission line through the Alternate corridor would be minimized, or would already have occurred, if the proposed reservoir is constructed. In the event the reservoir is constructed as currently envisioned, construction of the transmission line through the Alternate corridor would have to span the reservoir at its narrowest point where it crosses the Alternate corridor. The reservoir is anticipated to be 400 feet wide at its narrowest point, and the normal span length for an FPL transmission line varies between 300 and 600 feet. Accordingly, spanning the reservoir does not pose a significant engineering problem, and the two projects could be constructed in a compatible manner. Impacts To The Public Land Use: The FPL corridor originates just south of the Martin Downs development and is adjacent to, incorporates, or is in the proximity of industrial parks, low and medium density residential development, a communications tower, borrow pits, the St. Lucie Canal, vacant and undeveloped land, trailer parks, agricultural land, the Foxwood subdivision, the Pratt-Whitney industrial complex, Palm Beach Park of Commerce, service stations, the Caloosa subdivision, a platted undeveloped subdivision, the C-18 Canal, the proposed North Palm Beach County General Aviation Airport, the Loxahatchee Slough, PGA National subdivision, the Seacoast Utility sewage treatment plant, a plant nursery, Old Marsh and Eastpointe residential developments, Palm Beach Country Estates, North Palm Beach Heights, and the Hampton residential development. The FPL corridor is aligned immediately adjacent to the edges of homes in the PGA development and includes the backyards and setbacks of those homes. The FPL corridor includes several golf course holes, buildings, and critical water management facilities within the Old Marsh development. The Alternate corridor from south to north beginning at PGA Boulevard, is adjacent to, or in the proximity of, an unnamed canal, undeveloped but disturbed land, the west boundary of Old Marsh, and more undeveloped, partially disturbed land. Numerous changes in the extent and type of development, whether commercial, industrial, or residential, occurred between the filing of the FPL Application in July, 1988, and subsequent land use review by FPL personnel conducted immediately prior to the Final Hearing in April, 1989. The Florida Department of State, Division of Historical Resources, did not find any archaeological or historical sites recorded within the FPL or the Alternate corridors. The City of Palm Beach Gardens has annexed the geographical area bordered by PGA Boulevard, the proposed Jog Road extension, the south boundary of Old Marsh, and the Alternate corridor. The City of Palm Beach Gardens' plans to annex the Old Marsh, Eastpointe, and, possibly, the Caloosa developments. The City of Palm Beach Gardens plans to annex the area bordered by the proposed Donald Ross Road extension, west to the Beeline Highway, south to the section line just south of PGA Boulevard, and east to PGA National. The Palm Beach Gardens land use plan for the areas north and south of Old Marsh between the Alternate and FPL corridors is low density residential development. The Palm Beach Gardens land use plan for the area north of PGA Boulevard, south of the Eastpointe development, and east of the FPL corridor is low density residential development. The FPL corridor, north from Ryder Cup Boulevard where that Boulevard intersects PGA Boulevard, would bisect planned low density residential communities. Associated with the sewage treatment facility adjacent to the FPL corridor, north of Ryder Cup Boulevard along the existing dirt road, is a planned golf course to buffer developing residential areas from the sewage treatment plant and to effectuate the use of spray water irrigation to comply with DER's water reuse rule. The proposed Jog Road extension, as depicted on the draft of the Palm Beach County Thoroughfare Plan, is subject to possible relocation and realignment due to environmental concerns, absence of reserved right-of-way, and the history of the road as previously depicted within PGA National. The FPL corridor provides numerous opportunities for paralleling other linear facilities within the corridor. Linear facilities within that corridor include the Florida Turnpike, I-95, County Road 711, State Road 710 (the Beeline Highway), PGA Boulevard, the sewage treatment plant access road, the proposed extension of Jog Road, Donald Ross Road, another transmission line, and numerous overhead distribution lines. Although FPL contends that the existing linear facilities also can be used as access roads to the transmission line structures thereby minimizing the amount of land required for the transmission line right- of-way, the accuracy of that position cannot be determined until an actual right-of-way is located and the transmission line is designed. For example, I- 95 and the Florida Turnpike are limited access roads, and FPL potentially would construct its own access road outside the rights-of-way of those highways. Similarly, FPL has a preference to not use Florida Department of Transportation road rights-of-way. Further, the location of the proposed Jog Road extension is yet to be determined. The wide corridor proposed by FPL to maintain maximum flexibility for siting the eventual transmission line right-of-way and for designing the actual transmission line would allow FPL to site the transmission line far enough in distance from the existing linear facilities so that the existing rights-of-way of those facilities need not be shared by FPL. From a land use perspective, the narrower Alternate corridor also tracks linear facilities, conforming to coexisting and proposed land use patterns. The existing unnamed canal, the proposed Donald Ross Road extension, section lines, and the possible Impoundment 2BE and its maintenance road serve as such linear facilities. None of these linear facilities have restricted rights-of-way. Land use patterns are more than conceptually developed in the area of the Alternate corridor. The section line serves as an edge of a clearly established land use pattern. The annexation plans and Comprehensive Plan of Palm Beach Gardens evidence future development plans. From a land use perspective, it is appropriate to site a transmission line and allow developing residential areas to adjust and to mitigate impacts from that line. Development can build around a transmission line if the transmission line is placed in the landscape first. From a land use perspective, the Alternate corridor is more appropriate than the FPL corridor for construction of a 230 kV transmission line due to its greater distance from existing and proposed residential areas, which reduces the potential for visual impacts, adverse health effects, and reduction in property values. Old Marsh is a golf course community of 120 acres constructed in an area of pristine, natural prairie marsh wetlands. Two hundred and seventeen lots are platted within the Old Marsh development, with a maximum lot price of $250,000. Heavy vegetation, including palm and pine trees, borders the western boundary of Old Marsh. A 25-foot vegetative buffer borders the eastern boundary of Old Marsh. Old Marsh expended significant sums of money to bury all electrical distribution lines within the community to maintain the visual aesthetics of that unique, environmentally-sensitive community and to avoid injury from overhead electrical lines that may occur during a hurricane or other storm. The naturally occurring wetlands in the center and western part of the project were preserved. In the eastern part of the project, within the FPL proposed corridor, are located several golf course holes and water control facilities consisting of lakes and littoral zones. A canal system, which serves to manage the water resources for stormwater and environmental purposes, flows throughout the development. The lakes and littoral zones within the proposed FPL corridor serve as part of the project mitigation plan. The same facilities provide part of the storage volume retaining stormwater runoff, maintaining the project's water quality and reducing nutrient loading. The Northern Palm Beach County Water Control District, through the establishment of Unit of Development No. 21, constructed, operates, and maintains the water control facilities for Old Marsh. The operation and maintenance are in accordance with approved federal, state, and local permits and a judicially-approved plan. Securing permits for the Old Marsh project was extremely difficult because approximately one-third of the project land area was required to be preserved. The portion of the Old Marsh project included within the FPL proposed corridor includes land subject to conservation easements in favor of DER and the Northern Palm Beach County Water Control District. Transmission line construction within the FPL corridor through the Old Marsh property would severely impact the water control facilities and golf holes which are fully constructed. Old Marsh maximized the land area available such that relocating or reconfiguring the water management facilities or golf holes is not possible. Relocation or reduction in size of the water management facilities would destroy the function of the facilities. PGA National is a resort community located in the City Of Palm Beach Gardens which includes approximately 5,700 homesites, 4 golf courses, a hotel, a sports and recreation complex, and commercial and light industrial areas. It is an "upscale" community. One of the amenities of PGA National is that electrical distribution lines within the community are buried. The lines were buried for two reasons: to maintain the visual aesthetics of the community and for safety reasons, to avoid injury from downed electrical lines during hurricanes and other storms. The cost of burial of the distribution lines throughout the community was in the hundreds of thousands of dollars, which was part of the overall development cost of the community. The homes within PGA National along PGA Boulevard are traditional, single-family homes with permanent residents. The approximate cost of a home is $300,000. From a land use perspective, the north side of PGA Boulevard near PGA National would be a more appropriate location for a transmission line than the south side. The proposed FPL corridor parallels the Beeline Highway between the Beeline's intersection with County Road 711 and the Beeline's intersection with PGA Boulevard. This segment of FPL's proposed corridor is approximately 800 feet in width. On the north side of the Beeline, at the intersection with County Road 711 is the developing Palm Beach Park of Commerce. Just below the Park of Commerce is the Caloosa subdivision. Although the FPL proposed corridor is narrowed at that point, it is only narrowed to exclude the physical structures on the residential lots in the Caloosa development; it does not exclude the backyards of those properties. North of the Beeline Highway right-of-way, the FPL proposed corridor includes a 70 foot recreation, utility, and drainage easement within the Caloosa subdivision. The northern boundary of the corridor for much of its length corresponds to the northern boundary of that easement. The easement includes a canal which is an integral part of Caloosa's drainage system and is also a source of recreation for Caloosa residents. The Caloosa canal system will also be an integral part of the proposed Northern Palm Beach County Water Control District Water Resource Management Plan. Residential lots and homes are located immediately adjacent to the 70-foot easement. The corridor also includes portions of some of the residential lots of Caloosa property owners. Caloosa is the only residential area which abuts FPL's proposed corridor along the Beeline Highway segment. South of the Beeline Highway, the FPL proposed corridor also includes additional Florida Department of Transportation right-of-way, a railroad right- of-way, other easements for underground utilities, and approximately 200 feet of vacant undeveloped land. These linear facilities run parallel to the Beeline Highway corridor. The vacant land within the corridor south of the Beeline Highway, which is not a part of any existing right-of-way or easement, contains some scattered disturbed or impacted wetlands. There are no residential developments on the south side of the Beeline Highway. The land uses of the Beeline Highway segment of the corridor include vacant or undeveloped land, agricultural land, and residential land only where Caloosa is located. There are no planned residential developments along the Beeline Highway segment other than Caloosa. The linear facilities located on the south side of the Beeline Highway provide an opportunity to efficiently plan the transmission line corridor. From a land use perspective, the south side of State Road 710 (the Beeline Highway) would be a more appropriate location for a transmission line than the north side. Sharing of rights-of-way means either actually co-locating structures within the right-of-way or, for example, locating the FPL concrete structure within an FPL easement adjacent to the existing right-of-way but overhanging the conductors in the existing right-of-way. Such sharing of rights-of-way is important from a land use planning perspective in that it represents an opportunity to avoid impacting residential property and reduces the amount of land necessary for rights-of-way. Although it is FPL's preference to obtain its own rights-of-way, it is common practice for linear facilities to share rights- of-way. A transmission line is a linear facility. Along the Beeline Highway, FPL would have the opportunity to share existing rights-of-way on the south side of the Beelihe Highway with the Florida Department of Transportation, with the railroad, and with the other utilities in the utility easements. On the north side of the Beeline Highway, FPL would have the opportunity to share the Beeline Highway right-of-way. To locate the transmission line facility within the recreation, utility, and drainage easement within the Caloosa subdivision, FPL would need the approval of the Northern Palm Beach County Water Control District. It is the opinion of the Executive Director of the Northern Palm Beach County Water Control District that the Crane-Bridge-Plumosus 230 kV transmission line should not be located north of the Beeline Highway in the Caloosa easement. The construction of the transmission line in that easement creates a potential for conflict between FPL's construction and maintenance of its transmission facility and the Northern Palm Beach County Water Control District's maintenance of that easement and the canal system in Caloosa. Aesthetics At the PGA National community, on the south side of PGA Boulevard, there is currently a berm along the residential lot lines, approximately 4 feet in height with vegetation extending another 4 feet in height. Despite the presence of the berm, the 38-foot wooden distribution poles on the north side of PGA Boulevard are clearly visible from the backyards and patios of those residents living along PGA Boulevard as well as from the homes located across the street to the south. The transmission line structures in FPL's proposed corridor would be visible from the homes and the yards within the PGA National subdivision despite the berm and landscaping between the homes and the proposed 230 kV transmission line. Similarly, the transmission line structures would be visible from the homes and yards of the residents in the Martin Downs, Foxwood, Caloosa, Eastpointe and Palm Beach Country Estates subdivisions. Further, the entrance ways and entrance roads to those subdivisions and to the Old Marsh subdivision would be spanned by the proposed 230 kV transmission line. Although there are existing distribution lines along the roadways adjacent to those subdivision, those existing distribution lines utilize wooden poles approximately 38 feet high. On the other hand, the proposed Crane-Bridge- Plumosus transmission line will utilize concrete poles 80 feet or more in height, 2 feet wide at the base. The placement of the Crane-Bridge-Plumosus transmission line in the FPL proposed corridor will result in a new visual intrusion to residents of existing and planned residential communities. The visual impact of the proposed line is not the same impact as the existing distribution lines and is not merely an increased impact over the existing distribution lines; rather, the proposed transmission line utilizing tall concrete poles is a different visual impact than that currently caused by any existing wooden distribution poles. FPL does not contemplate any landscaping improvements in constructing the transmission line in order to visually block the line from the view of adjacent residences and residential property. To screen the view of a power pole such as is contemplated by FPL for this transmission line from a home 100 feet from the transmission line would require a 35-foot-high vegetative buffer. A power pole 150 feet away would require a 28-foot-high vegetative buffer. At a distance of 300 feet, a 20-foot-high buffer would be required; at 500 feet, an 18-foot-high buffer would be required. The proposed Crane-Bridge-Plumosus transmission line is not aesthetically pleasing and will have a substantial impact on the residents of subdivisions adjacent to it. Electric and Magnetic Fields When energized with electricity, a transmission line produces both electric and magnetic fields (hereinafter "EMF"). The Environmental Regulation Commission of DER adopted a rule on January 18, 1989, which established EMF standards to be met at the edge of transmission line rights-of-way or at the property boundary of new substations. Although the Crane-Bridge-Plumosus transmission line will meet the standards set forth in that rule, the rule itself specifically provides that the standards contained therein are interim standards pending further research and study. The rule provides that the standards contained within that rule will be re-visited within 2 years and further provides that there does exist evidence of potential for adverse health effects on the public and that existing knowledge is inadequate to conclude that no further action is needed. On the day following the passage of its EMF rule, the Environmental Regulation Commission passed a resolution recognizing the potential for adverse health effects on the public from EMF, and recognizing that it would be prudent to keep the long-term exposure of the population to low values of EMF by routing transmission lines outside of residential areas. That resolution specifically provided that new electric transmission lines of 69 kV or greater should be sited in a manner that would consolidate those lines with existing corridors, and, further, that new corridors should be planned in coordination with the land use plans of local governments to avoid placing corridors through residential areas. Members of the public testified in this proceeding that the recently- promulgated standards adopted by the Environmental Regulation Commission were not reassuring regarding public concerns of health hazards associated with electric and magnetic fields. The standards themselves are not a guarantee of safety. Moreover, the standards may not prove safe in the future. Of the numerous persons who testified at the two public hearings held in this cause, a substantial majority of them expressed fear for the health and welfare of themselves and their families from ENF. Burial of the transmission line within the FPL proposed corridor would alleviate the concerns of the residents of the PGA National, Caloosa, and Palm Beach Country Estates subdivisions who testified in this proceeding. Property Values Limited studies have been completed analyzing the impact of single concrete pole transmission lines on residential property values. Factors associated with power lines impacting property values include the proximity of homes to the line, the price range of the homes, the type of power line, lot sizes, and the public perception of transmission lines. The higher the price of the residence, the greater the potential impact on the residential value caused by a transmission line because purchasers of more expensive property favor and expect a more attractive visual environment. FPL's study of the impact of transmission lines on residential property values focused on communities on the west coast of Florida. That study was of little value since there was no showing of the similarity of the real estate markets in those communities and the real estate markets in Palm Beach County and Martin County. On the other hand, a Palm Beach County study indicated a devaluation of residential property as high as 32 percent when comparing sales of comparable homesites adjacent to and not adjacent to several types of transmission lines. Prior to the Final Hearing in this cause, parents of school age children had sued the Palm Beach County School Board to prevent the School Board from opening a new school facility which was built adjacent to large transmission lines. That litigation had been extensively covered by the media, and residents in at least Palm Beach County had become generally aware of the controversy regarding the impact of transmission lines on the health of children and the general population. That litigation was still pending at the time of the Final Hearing in this cause. At least in Palm Beach County there is a public perception that transmission lines are hazardous to human health. The public awareness of the controversy in Palm Beach County had caused one developer to cease sales of residential units located near transmission lines in that development. In other developments, the lots adjacent to transmission lines have been sized two or three times larger than lots located away from those transmission lines in order that the sales price of the lots near the lines could be comparable to the sales price of the lots away from the lines. Other developers have established large vegetative buffer areas or unusually wide setback areas between transmission lines and the lots nearest those transmission lines in order to offer to potential buyers an extra factor of privacy to compensate for the location of those homesites near transmission lines. In the Caloosa, PGA National, and Palm Beach Country Estates subdivisions, real estate sales have already been negatively impacted due to public knowledge of the proposed location of the FPL proposed corridor for the Crane-Bridge-Plumosus 230 kV transmission line. The numerous public witnesses testifying in this proceeding believe the property value of their homes will be severely and negatively impacted if the transmission line is constructed near their property. No one testified in this proceeding that he or she would be willing to purchase a home, or live, in the near proximity of a 230 kV overhead transmission line. The public perception of adverse health effects from overhead transmission lines, coupled with the adverse visual or aesthetic impact of transmission lines in residential areas, does have an adverse effect on residential property values. Policies of Public Bodies Just as the Florida Environmental Regulation Commission has issued a policy statement that transmission lines should be routed away from residential communities, the regional planning agency and local governments in the geographical area through which the proposed Crane-Bridge-Plumosus transmission line will be constructed have addressed similar positions. The Treasure Coast Regional Planning Council reviewed the FPL proposed corridor for the Crane- Bridge-Plumosus transmission line and concluded that burial of the proposed transmission line within the FPL proposed corridor may represent the best solution to provide a balance between environmental and socioeconomic impacts. Palm Beach County, by Resolution passed on April 4, 1989, adopted the comments of the Treasure Coast Regional Planning Council. That Resolution further strongly recommended that, based upon the policies of the County's Comprehensive Plan, as an additional condition of certification, the Crane- Bridge- Plumosus transmission line be placed underground where its right-of-way is to be located adjacent to existing or developing areas of densities of one unit per acre and above to minimize potential health, safety, aesthetic and property value impacts. The Resolution also recommended as a condition of certification that the FPL proposed corridor be narrowed to the south side of the Beeline Highway and the north side of PGA Boulevard to avoid the existing residential developments located on the north side of the Beeline Highway (Caloosa) and the south side of PGA Boulevard (PGA National). The current Palm Beach County Comprehensive Plan even calls for the burial of electrical distribution facilities in new growth areas. Martin County also adopted the Treasure Coast Regional Planning Council's report on the Crane-Bridge-Plumosus line and, therefore, the same comments regarding burial of the proposed line within the FPL proposed corridor as the best balance among the competing interests. The City of Palm Beach Gardens, by Resolution adopted April 21, 1988, after reviewing the FPL proposed corridor for the Crane-Bridge-Plumosus transmission line, opposed the establishment of the corridor for the proposed above-ground transmission line on PGA Boulevard. The Resolution further recited that the impact of such transmission lines pertaining to potentially adverse health consequences from both electric and magnetic fields and to the aesthetic balance of the PGA National entrance ways and the general community being destroyed far outweighed the other values that could be placed on the proposed location of the corridor. The City Council of Palm Beach Gardens prefers an alternate corridor alignment corresponding to the alignment of the Alternate corridor. The subdivision regulations of the City of Palm Beach Gardens require electrical distribution lines to be placed underground, and the City's proposed Comprehensive Plan in its current draft calls for the burial of transmission lines. Burial Burial of transmission lines has been used as an alternative engineering design where, for example, the transmission line is to go through residential areas or is to be located in the vicinity of airports. The Crane- Bridge-Plumosus proposed corridor is located in the same area as the proposed North Palm Beach County General Aviation facility on the south side of the Beeline Highway near the Caloosa residential community. Burial of the transmission line would negate the impacts to the public described above, i.e., the potential impacts from electric and magnetic fields, and the negative impacts to property values based upon the visual impact of the transmission line and the public perception of the hazardous nature of the transmission line. From a land use perspective, from a transmission line engineering perspective, and from an environmental perspective, the burial of transmission lines is an appropriate and desirable design technique. Burial of the Crane-Bridge-Plumosus 230 kV transmission line is not a design modification since the proposed transmission line has not been finally designed. This proceeding involves only the location of the corridor in which the line is to be designed and constructed, and FPL will not determine the design of the line until after this cause has reached final resolution. Rather, burial of the transmission line is an appropriate condition of certification to be considered, similar to the other design criteria agreed to previously by FPL in Attachment D to the Prehearing Stipulation as other conditions for certification of the Crane-Bridge-Plumosus corridor. The public bodies which have considered burial of the Crane-Bridge- Plumosus transmission line have determined burial to be an appropriate and desirable design condition for certification. Additionally, the witnesses who testified during the public hearing portions of this certification proceeding overwhelmingly endorsed burial of the transmission line as a condition of certification and expressed an enthusiastic willingness to pay the costs of that additional design criteria. Other Considerations During fair weather, noise from the proposed 230 kV transmission line normally will be below ambient levels. The noise from the proposed Crane- Bridge-Plumosus transmission line will comply with applicable local government noise ordinances. Radio and television interference from transmission lines is generally inversely proportional to the frequency of the radio or television transmission, the lower the frequency, the greater the potential for interference. FM radio transmissions, because of their higher frequency, have no noise interference from transmission lines. AM radio frequencies may be susceptible to interference from transmission lines. The effect can generally be corrected by simply adjusting the position of the receiver or antenna for the radio receiver. Television is broadcast using both AM and FM frequencies. The audio portion of the television is transmitted using FM frequency and, therefore, there is no transmission line interference. The video portion of television uses AM frequency and, therefore, may be susceptible to interference from foul weather on the lower television channels of 2 through 6. This interference can generally be corrected by reorienting the TV antenna. Pursuant to a condition of certification in Attachment D to the Prehearing Stipulation, FPL will investigate all complaints regarding radio and television interference and will provide appropriate mitigation for all impacts. If FPL complies with all of the conditions of certification contained in Attachment D to the Prehearing Stipulation, those conditions of certification agreed to in the settlement agreements entered into with Sands and with Martin Downs during the certification proceeding, the policies set forth in the resolutions of the public bodies discussed hereinabove, and the conditions of certification contained in this Recommended Order, then the Crane-Bridge- Plumosus 230 kV transmission line is expected to comply with all non-procedural requirements of agencies. Variances or exceptions from local zoning ordinances will likely be required, and these are expected to be obtained. Although none of the comprehensive plans of Martin County, Palm Beach County, the Town of Jupiter, or the City of Palm Beach Gardens requires transmission lines to be buried, the draft of the future Palm Beach Gardens Comprehensive Plan calls for the burial of transmission lines, and it is reasonable to believe that that provision will be retained in the final Comprehensive Plan in view of the policy statements of the City of Palm Beach Gardens discussed above. A waiver from the Martin County Comprehensive Plan prohibition on development in wetlands may be required once the ultimate right- of-way for the Crane-Bridge-Plumosus transmission line has been selected by FPL. I. Initial Costs FPL has provided estimated costs per mile for the construction and location of the Crane-Bridge-Plumosus line in its proposed corridor, including right-of-way acquisition costs, line construction costs (conductor installation costs and all other construction costs) and access road construction costs. According to FPL's estimates, the total cost per mile for the location and construction of the transmission line along the entire distance of the FPL proposed corridor averages $297,500. For the 4.0 miles of the FPL proposed corridor segment located between the beginning of the PGA/OM Alternate corridor and the Bonnette Substation (that segment where the FPL proposed corridor and the PGA/OM Alternate corridor deviate from each other), FPL estimates the total cost per mile to be $273,400, for a total cost of $1,093,600 for that 4.0 mile segment. FPL estimates the total cost per mile for the location and construction of the Crane-Bridge-Plumosus transmission line in PGA/OM Alternate corridor 2A to be $425,700. FPL adds to that cost the sum of $640,300 for "relocating" the Ryder Substation to the west of the PGA/OM Alternate corridor. Using those figures, the total cost for PGA/OM Alternate corridor 2A for the 4.1 miles from the beginning of that corridor to the Bonnette Substation is $2,385,700. For the PGA/OM Alternate corridor 2B, FPL estimates the total cost per mile to be $458,300. Adding the cost of $640,300 for "relocating" the Ryder Substation, the total cost for the 5.2 miles of PGA/OM Alternate corridor 2B would be $3,025,500. It is erroneous to include in the cost estimates for the PGA/ON Alternate corridor the figure of $640,300 for the cost of relocating the Ryder Substation. First, no relocation is involved since the Ryder Substation does not exist. What does exist is a site that FPL has selected for placement of a substation to be called the Ryder Substation. Second, PGA/OM does not propose that the Ryder Substation be relocated to the west side of the Alternate corridor, but rather proposes that the Ryder Substation be relocated to the east side of the Alternate corridor, a difference of approximately 1,100 feet less. Even FPL's experts admit that relocating the Ryder Substation to the east side of the Alternate corridor rather than the west side would only cost $490,000, rather than the $640,300 which they have computed in their cost estimates. Third, the only cost identified in the "relocation" figure is the cost of distribution lines (radial feeds) which would be increased in length and therefore be more expensive due to locating the Ryder Substation one mile west of FPL's projected load center. Although computing the extra expense for the longer lines running in one direction, FPL fails to compute the decreased costs of the necessarily shorter lines running in the opposite direction. Most importantly, there is no basis for computing the costs of the location of the Ryder Substation and adding those costs to the cost estimates for the PGA/OM Alternate corridor since FPL does not compute the cost of the seven other intermediate substations in computing the costs of the transmission line to be constructed in FPL's proposed corridor. Since the cost of the substations along the FPL proposed corridor are not computed in FPL's cost estimates, so should the cost of the Ryder Substation be similarly excluded from the cost estimates for the Alternate corridor. Only the location of the Ryder Substation is at issue in this proceeding. Even if the costs of the Ryder Substation were an issue, they are highly speculative. The cost difference estimated by FPL between Alternate 2A and the FPL corridor is approximately $1.3 million. The cost difference estimated by FPL between Alternate 2B and the FPL corridor is approximately $2 million. Estimated costs are higher for the Alternate corridor, if evaluated under present conditions, in part due to the dissimilarity between the FPL proposed corridor and the Alternate corridor in the extent of roads available for construction and maintenance access purposes. The difference attributable to access road construction is speculative for two reasons: first, until FPL actually selects a right-of-way, the extent of access roads necessary in the FPL proposed corridor is uncertain. Second, approval of the Loxahatchee River Basin Water Resources Plan and/or the other two water management plans proposed in the area east of the C-18 Canal may well reduce the extent of access roads needed to be constructed in the Alternate corridor. It appears that transmission line initial costs for PGA/Old Marsh Alternate corridor 2A would be less than for Alternate corridor 2B, primarily because of Alternate corridor 2A's shorter length. FPL estimates costs for right-of-way acquisition in the FPL proposed corridor between Old Marsh and Eastpointe to be $39,000 per mile. FPL's estimate for right-of-way acquisition does not include the cost of acquisition of improvements within a right-of-way, severance damages, or costs of litigation. FPL calculated its estimated costs based upon present conditions and factors. Final costs of line construction may be substantially different from those estimates for both the FPL and the Alternate corridors based upon an increase or decrease in construction materials costs, the ability of FPL to enter into agreements with local governments or the Northern Palm Beach County Water Control District for access easements, the ability of FPL to enter into agreements with private land owners for access easements, the ability of FPL to site the line to minimize wetlands impacts and the associated costs of mitigating those impacts, the ability of FPL to site the transmission line to minimize land use impacts existing at the time of actual siting and construction of the line, and the ability of FPL to use transmission line construction techniques developed during the time between the Final Hearing in this cause and the actual line construction that may further reduce construction line costs. These costs could vary whichever corridor is certified. Further, engineering design problems are created when a transmission line corridor is designed to go through already developed property or developing property as opposed to vacant land. Design problems which occur because the transmission line is designed for developed or developing property increase. The cost of the transmission line. Generally, the cost of constructing the transmission line is reduced where there is less congestion. As to the approximate cost for burial of a 230 kV transmission line, FPL estimates the cost per mile for materials and labor to install a double circuit 230 kV transmission line underground ranges from $1.6 million to $2.2 million. Added to these costs is $1.2 million for the two terminal ends required at the beginning and ending points of each underground segment of the transmission line, however many miles long that transmission line segment might be. The FPL estimates for burial costs are based upon historic FPL costs, such as the previous burial of transmission lines under Biscayne Bay. It is likely that such a project would have been more costly than burial of transmission lines in any of the segments of the corridors proposed for the Crane-Bridge- Plumosus transmission line. Another historical cost project in which FPL buried its transmission line was a project in which FPL chose to place that line underground because burial costs were much less expensive than the cost of acquiring the right-of-way needed through the residential area. Underground placement of 230 kV transmission lines is technically feasible and has been done by FPL in the past. The decision to bury transmission lines is primarily a decision based upon cost considerations. The costs of burying transmission lines are decreasing. Typical underground transmission line design calls for the cable to be oil-insulated and encased in concrete. Other technology involving solid dielectric trunk cable which is less expensive and easier to handle than oil-insulated cables has been used throughout Europe for many years. Other utility companies have buried transmission lines at less cost than FPL's estimates. The Jacksonville Electric Authority recently constructed an underground transmission project at a cost of approximately $1 million per mile utilizing typical oil-insulated technology. The utilization of solid dielectric cable would have been even less costly.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that the Siting Board enter a Final Order: Approving FPL's application for certification of its proposed `Crane- Bridge-Plumosus 230 kV transmission line corridor subject to the following conditions: FPL's proposed corridor shall be modified so that it substitutes PGA/OM Alternate 2A for that portion of the FPL proposed corridor from which PGA/OM Alternate corridor 2A deviates; The Ryder Substation siting area shall be moved so that it is located adjacent to PGA/OM Alternate 2A on the east side of that Alternate corridor; The transmission line shall be buried in all other segments of the FPL proposed corridor where the corridor is within 300 feet of any existing subdivisions as specifically described in the Conclusions of Law section of this Recommended Order. FPL shall comply with all conditions set forth in Attachments A and B to this Recommended Order; and FPL shall seek any necessary interest in state lands prior to engaging in any activity on or affecting that land, pursuant to Section 403.531(3), Florida Statutes. In the alternative and as a second choice to the recommendation contained in paragraph numbered 1, approving FPL's application for certification of its proposed Crane-Bridge-Plumosus 230 kV transmission line corridor subject to the following conditions: FPL shall bury the transmission line where its proposed corridor is within 300 feet of existing subdivisions as specifically described in the Conclusions of Law section of this Recommended Order; FPL shall locate the Ryder substation in the interior portion of its proposed siting area and north of PGA Boulevard; FPL shall comply with all conditions set forth in Attachments A and B to this Recommended Order; and FPL shall seek any necessary interest in state lands prior to engaging in any activity on or affecting that land, pursuant to Section 403.531(3), Florida Statutes. Dismissing as parties to this proceeding for non-appearance at the Final Hearing the Department of Community Affairs, the Treasure Coast Regional Planning Council, the Florida Game and Fresh Water Fish Commission, the Town of Jupiter, the City of Palm Beach Gardens, Donald Ross Landowners Association, Inc., and Box Ranch Management Corporation. DONE AND ENTERED this 30th day of June, 1989, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 30th day of June, 1989. COPIES FURNISHED: Honorable Bob Martinez Governor State of Florida The Capitol Tallahassee, Florida 32399 Honorable Robert A. Butterworth Attorney General State of Florida The Capitol Tallahassee, Florida 32399 Honorable Doyle Conner Commissioner of Agriculture State of Florida The Capitol Tallahassee, Florida 32399 Honorable Betty Castor Commissioner of Education State of Florida The Capitol Tallahassee, Florida 32399 =================================================================
The Issue The issue to be determined in this proceeding is whether the Governor and Cabinet, sitting as the Siting Board, should certify the Polk 2-5 Combined Cycle Conversion Project (“Project”) of Tampa Electric Company ("TEC"), including its associated electrical transmission lines, subject to the proposed Conditions of Certification.
Findings Of Fact The parties stipulated there are no disputed issues of fact. TEC is an investor-owned electric utility regulated by the Florida Public Service Commission. It is headquartered in Tampa and has supplied electricity to customers in the Tampa Bay area since 1899. TEC's electric service territory covers approximately 2,000 square miles and includes all of Hillsborough County and portions of Polk, Pasco, and Pinellas Counties. TEC has five generating stations, Big Bend, HL Culbreath Bayside, JH Phillips, Polk Power Station, and Partnership Station. The Project is proposed for the Polk Power Station. Existing Facilities The Polk Power Station was certified pursuant to the Power Plant Siting Act in January 1994. It is located in southwest Polk County, 17 miles south of the City of Lakeland and 28 miles southeast of the City of Tampa. The original site consists of 4,348 acres bordered by the Hillsborough County line on the west; County Road 663 (Fort Green Road) on the east; County Road 630, Bethlehem Road, and Albritton Road on the north; and State Road 674 and several former phosphate clay settling ponds on the south. The Polk Power Station has five electric generating units and associated facilities. Polk Unit 1 is 260 megawatt integrated gasification combined cycle facility fired with synthesis gas or “syngas” produced by gasifying coal and other solid fuels. Polk Units 2 through 5 are 165 megawatt simple cycle combustion turbine generators fueled primarily with natural gas. Support facilities at the Polk Power Station include a 755-acre cooling reservoir, oxygen blown gasifier, air separation unit, sulfuric acid plant, slag byproduct storage area, and switchyard. The station is served by four 230 kilovolt (“kV”) transmission circuits, a railroad line, and a natural gas pipeline. Water is supplied from four onsite groundwater wells for the cooling water reservoir and other plant processes. Other existing facilities include an administration building, control room, warehouse, and construction management building. The Proposed Project Need On January 8, 2013, the Florida Public Service Commission issued its Final Order Granting Certification of Need for Polk 2-5 Combined Cycle Conversion. The Commission determined that the most cost effective and reliable alternative to meet future power needs is the construction of the Project at the Polk Power Station. The Commission's Final Order is TEC/Department Joint Exhibit 2. Among other findings, the Commission determined that the Project would improve fuel diversity and supply reliability, incorporate renewable energy and conservation factors, and is needed to maintain electric system reliability and integrity. Power Generation The Project involves the conversion of the four existing simple cycle combustion turbine generator units to combined cycle operation. The Project would be a four-on-one combined cycle unit consisting of the four existing combustion turbine generators, each combined with a new heat recovery steam generator, and a new steam turbine generator. The Project would achieve improved efficiency in electrical power generation. When operated in a simple cycle mode, a combustion turbine generator releases hot gases to the atmosphere. In the proposed combined cycle configuration, this exhaust heat would be routed to the heat recovery steam generators and the steam produced by the heat recovery generators would be routed to the new steam turbine generator to produce additional electricity. The Project is designed to allow the combustion turbine generators to be operated in simple cycle mode when the steam turbine generator is not in service. The combustion turbine generators may also be operated in simple cycle mode to meet peak power demands. The conversion would increase the nominal net generating capacity of the four existing generators from 660 megawatts to 1,160 megawatts. Total capacity for the Polk Power Station would be increased from 1,150 megawatts to 1,420 megawatts. The proposed generating facilities would be state-of- the-art, incorporating improvements in technology that have occurred over the past 20 years. They are designed by Black & Veatch, an internationally-recognized engineering firm with significant experience in designing similar facilities. Fuels The four combustion turbine generators would be fired with natural gas as the primary fuel. Ultra-low-sulfur diesel fuel would be the backup fuel. The four heat recovery steam generators would have natural-gas-fired duct burners for peaking operations. The existing onsite natural gas pipeline would provide the natural gas for the Project and the backup ultra-low-sulfur diesel fuel would be stored in existing onsite fuel storage facilities. Water Use Groundwater withdrawals from four wells are authorized by the current Conditions of Certification for 4.3 million gallons per day (“mgd”) on an annual average and 7.6 mgd on a peak monthly average. The Project will require additional water for cooling and plant process water uses. To minimize use of groundwater, TEC would treat and reuse 5.7 mgd of treated reclaimed water from the City of Lakeland. The treated reclaimed water would primarily be used to supply the makeup water for the proposed new cooling tower and the existing 755-acre cooling reservoir, as well as some process water needs. The cooling reservoir would be used for condenser cooling purposes. The new six-cell mechanical draft cooling tower would provide cooling for the Project’s auxiliary systems, which would be modified to use the new cooling tower instead of the reservoir. The reclaimed water would be initially provided by the City of Lakeland through a 15-mile pipeline. Later, reclaimed water would be provided by the City of Mulberry and Polk County. The Project systems are designed to maximize water reuse and recycling to reduce groundwater consumption. However, TEC requests that the maximum groundwater withdrawals currently authorized -- 4.3 mgd on an annual average and 7.6 mgd on a peak monthly basis –- be maintained in this certification to ensure that TEC can reliably and safely operate the facilities and manage water quality and levels in the cooling reservoir during extended periods of low rainfall conditions and in the event there is an interruption in the delivery of reclaimed water. The Project’s proposed water uses comply with all applicable agency requirements. Stormwater and Wastewater Discharges Stormwater and wastewater treatment systems are already in use at the Polk Power Station. These systems would be used for the Project facilities. The proposed facilities will not significantly affect the quantity or quality of stormwater runoff at the Polk Power Station. The current wastewater streams include runoff from industrial areas and process wastewaters. Wastewaters would continue to be collected and treated by the onsite industrial wastewater systems, including the equalization basin, neutralization basin, filtration system, and oil/water separator, and then discharged to the cooling water reservoir. With the addition of the Project, cooling water blowdown from the new cooling tower and treated reclaimed water will be introduced to the cooling reservoir. TEC has a permit for underground injection control wells which it plans to test for disposal of nonhazardous wastewater such as reverse osmosis reject water from the reclaimed water treatment process. The Project’s stormwater and wastewater discharges would comply with all applicable agency requirements. Air Quality Impacts Construction of the Project facilities at the Polk Power Station would generate fugitive dust emissions. These would be controlled by dust suppression control measures such as watering. The vehicles used by construction workers would release nitrogen oxide, carbon monoxide, and other fuel combustion- related air pollutants. These kinds of emissions from construction equipment would be minimized through the use of ultra-low-sulfur-diesel fuel in various diesel engines. Even under worst-case conditions, the air quality impacts caused by construction activities would be minimal, temporary, and limited to the construction site. The Project qualifies as a major modification to an existing major source. Air quality impacts from plant operations would be primarily nitrogen oxide, sulfur dioxide, and carbon monoxide emissions from the four combined cycle units, particulate emissions from the cooling tower, and various combustion emissions from operation of the emergency diesel generator. Air quality analyses were performed for nitrogen oxides, sulfur dioxide, particulates, and carbon monoxide. The dispersion modeling analyses demonstrate that the Project’s air quality impacts would not exceed the applicable regulatory limits and would not cause or contribute to an exceedance of any Prevention of Significant Deterioration Increment or National Ambient Air Quality Standard. For certain air emissions, Best Available Control Technology ("BACT") is required. BACT controls for nitrogen oxide would include the use of dry, low-nitrogen-oxide burners when firing natural gas and water injection when firing ultra- low-sulfur diesel fuel, and the installation of selective catalytic reduction technologies for the combined cycle combustion turbines. For sulfur dioxide emissions and emissions of sulfuric acid mist, BACT controls would include the use of low-sulfur natural gas as a primary fuel and ultra-low-sulfur diesel fuel as a backup fuel. For carbon monoxide and volatile organic compounds, BACT calls for good combustion design and operation. BACT for combustion particulates would be the use of low-ash natural gas as a primary fuel and ultra-low-sulfur diesel fuel as a backup fuel. For the emergency diesel engine, proposed BACT for all pollutants would be compliance with the applicable Standards of Performance for Stationary Combustion Ignition Internal Combustion Engines, which are federal standards that have been adopted by the Department. Proposed BACT for particulate emissions from the cooling tower is the use of high efficiency drift eliminators. The proposed air quality control technology for the Project and the expected emissions from the Project’s construction and operation would comply with all applicable agency requirements. Transmission Lines and Corridors The Project includes two new transmission line corridors. The proposed “Polk-Pebbledale Corridor” is a 5.5-mile, single-circuit 250 kV transmission line from the Polk Power Station north to the Pebbledale substation in Polk County. The proposed “Polk-Fishhawk Corridor” would be a single-circuit 250 kV transmission line running west from the Polk Power Station to the Mines substation near the intersection of State Road 674 and County Road 39 in Hillsborough County; from there, north and then west again to connect to a new Aspen switching station to be located near the intersection of County Road 672 and Balm-Boyette Road; and from the Aspen station, two separate 230kV transmission lines would run northeast to the existing Fishhawk substation near the intersection of Fishhawk Boulevard and Boyette Road; a total length of 27 miles. TEC exercised its option under section 403.5064(1)(b), Florida Statutes, to allow parties to file alternate transmission line corridors. No alternate corridors were filed or reviewed in this proceeding. TEC used a multidisciplinary team to evaluate alternative corridors for the new transmission lines. The team conducted initial data collection, prepared regional screening maps, identified alternate route segments, developed evaluation criteria, evaluated the routes, and selected the preferred routes. Public participation was a part of this effort. A regional screening map was created to identify existing infrastructure, roads, railroads, rivers and other water bodies, and siting constraints within the study area. TEC has existing transmission line rights-of-way in much of the study area, which together with public road rights-of-way provided co- location opportunities. The Polk-Pebbledale Corridor runs across former phosphate mining lands and follows roads and existing transmission line corridors to a point south of the town of Bradley Junction where it turns to the northeast and follows a transmission line through reclaimed phosphate lands to the intersection with another existing transmission line. In this certification proceeding, no party or non-party expressed opposition to the Polk-Pebbledale transmission line corridor. The Polk-Fishhawk Corridor runs across former and active phosphate mining lands, along road rights-of-way, and agricultural lands. As it approaches the Fishhawk substation, however, it passes through a residential development, referred to as the Fishhawk Community. The portion of the corridor that runs through the Fishhawk Community follows an existing TEC-owned transmission line right-of-way. No developer, agricultural operator, commercial entity, agency, or local government expressed opposition to the Polk to Fishhawk transmission line corridor, but residents of the Fishhawk Community testified in opposition to the corridor at the public hearing held in the Fishhawk community center. Their testimony at the public hearing is discussed later in this Recommended Order. The proposed transmission lines would be installed on steel poles embedded in the ground. Guy wires are generally not needed except where a transmission line makes a large angle turn or guy wires are otherwise necessary for safety and sound engineering. Pole heights would vary from 80 to 135 feet. The typical span length between poles would be 500 to 700 feet, but it can range up to 1,000 feet, when necessary to avoid natural or manmade obstacles or other siting constraints. The corridors are wider than the rights-of-way that will ultimately be determined in order to allow for flexibility in the final selection of the rights-of-way. The proposed rights-of-way would be reviewed by the agencies to insure compliance with the Conditions of Certification. Each transmission line would be designed, constructed, operated, and maintained in compliance with good engineering practices and all applicable codes, standards, and industry guidelines, including the National Electric Safety Code, the North American Electric Reliability Corporation, the American Society of Civil Engineers, requirements of the Florida Public Service Commission and the Federal Energy Regulatory Commission, the DOT Utility Accommodation Guide, applicable local and state government requirements, and TEC's internal design standards. TEC designs all of its 230 kV transmission lines to withstand a 130-mile-per-hour wind band, which exceeds the criteria in the National Electric Safety Code. Electric and Magnetic Fields The electric field produced by a transmission line is relatively constant over time. The magnetic field fluctuates over time depending on the load on the line. Electric and magnetic fields have been calculated for each of the configurations that may be used for the Project, based on the maximum requested voltage and current. The maximum expected levels for the electric and magnetic fields are within the limits in Florida Administrative Code Chapter 62-814. Considerable scientific research has been conducted in the past 30 years to understand the potential health effects associated with electric and magnetic fields. There is general agreement among scientists in national and international health agencies that the available evidence does not show adverse health effects can occur from exposure to the electric and magnetic fields associated with transmission lines. The Department’s limits for electric and magnetic fields at the edge of a transmission line right-of-way are lower than the limits recommended by the World Health Organization. Noise Impacts The noise limits applicable to the Project are those contained in the Polk Land Development Code and the in the rules of the Environmental Protection Commission of Hillsborough County. The Polk County noise limits are 75 decibels, A-weighted measurement (“dBA”) from 7:00 a.m. to 9:00 p.m. for non- residential areas and 65 dBA from 7:00 a.m. to 9:00 p.m. for residential areas. The noise requirements applicable to transmission lines in Hillsborough County are 60 dBA from 7:00 a.m. to 10:00 p.m. and 55 dBA from 10:00 p.m. to 7:00 a.m. Noise levels measured at four locations in the vicinity of the Project site varied between 41.9 and 51.1 dBA. Offsite noise levels during construction of Project facilities at the power station would be minimal because of the distance from the construction area to the site boundaries. Noise levels at the power station during operation are not expected to differ significantly from existing levels. Audible noise associated with transmission lines is usually associated with “corona,” which is a phenomenon that occurs when there is an irregularity on the surface of the conductors, such as water droplets or other significant particles. If the noise occurs during a rainstorm it is usually masked by the noise of the rain. At other times, corona noise will often be masked by other outdoor noises. Noise calculations were conducted for the proposed transmission lines and ranged from 32.0 to 45.2 dBA. These levels do not exceed the applicable limits. Wetlands and Terrestrial Ecology The areas proposed for the Project’s generating and associated facilities have been altered by the construction and operation of the Polk Power Station. These areas are also surrounded by lands altered by phosphate mining and reclamation. Wildlife habitats have already been destroyed, altered, or diminished by these activities and no longer have high functional values. Construction activities at the power plant site would not disturb any native or reclaimed wetland or upland habitats. Wildlife species expected to be found onsite would be common species for the region. Only two listed species of special concern were documented at the power station, the American Alligator and Tricolored Heron. They are both found in the reclaimed wetland west of the construction area and would not be affected. Impacts to other wildlife caused by construction at the Polk Power Station would be temporary and insignificant. There are no known threatened or endangered plant species at the Polk Power Station. No reclaimed or natural upland or wetland habitats are proposed to be affected. Wildlife habitats along the proposed transmission line corridors includes pine flat woods, mixed forested uplands, and various wetlands, including cypress forests, mixed hardwood swamps, and marshes. Surrounding land covers are dominated by current or former phosphate mining, farmsteads, or landscaped residential properties. The Balm-Boyette Scrub Preserve, Little Manatee River, Hurrah Creek, Fishhawk Creek, and Little Fishhawk Creek provide the best wildlife habitats along the transmission line corridors, but the corridors would cross these areas where there are already existing transmission line rights-of-way or roads. Wildlife found along the corridors are species commonly found in the region. No listed species are known to occur. Construction and maintenance of the transmission lines within the corridors would not significantly impact the habitats of fish and wildlife found in these areas. Impacts to vegetation along the transmission line corridors would be minimized by siting the rights-of-way within the most disturbed areas or on existing road and transmission line rights-of-way. TEC would span all open waters such as streams and tributaries. For smaller water crossings and wetlands, the facilities would be co-located with existing linear facilities to minimize impacts. Restrictive clearing practices on forested wetlands would be utilized, removing vegetation selectively. Impacts from filling would be avoided or minimized to the greatest extent practicable through a careful alignment of the transmission line rights-of-way and through the choice of span distances between structures. Where wetland impacts cannot be avoided, the impacts would be minimized and mitigation would be provided. Prior to the final selection of rights-of-way and the beginning of construction, surveys would be conducted to determine the presence of protected plant and animal species and the results would be shared with the FWC to determine if mitigation may be required in accordance with Conditions of Certification. Archeological and Historic Sites When the Polk Power Station was first certified and subsequently, archeological surveys were conducted to determine the presence of cultural and historical resources of significance. No such resources were identified. Cultural and historical resources in the study area for the transmission line corridors were evaluated during the corridor selection process. All National Register of Historic Places sites and districts as well as other known cultural resources were mapped and candidate corridors were laid out to avoid those resources. Corridors were laid out to co-locate with other transmission lines and linear facilities that have already disturbed the land to reduce the potential for new disturbances to cultural resources. After the rights-of-way within the corridors have been determined, cultural resource surveys would be conducted to identify the location of any archeological or historical resources and determine potential impacts whether they can be avoided. The surveys would be submitted to the Division of Natural Resources for its review and consideration. Transportation Impacts No additional transportation impacts are expected from the operation of the Project because there would be no addition to the current Polk Power Station staff of 78 employees to operate all facilities. The construction phase would generate 357 daily trips by construction workers and 50 additional delivery trips. The trip distribution per day is expected to be 228 northbound trips on State Road 37, 82 southbound trips on State Road 37, 75 northbound trips on Fort Green Road, and 22 southbound trips on Fort Green Road. Even at the peak of construction activities, the surrounding roadway network is expected to operate at acceptable levels of service. Land Use Compatibility The Project facilities would be located within the existing power station site, which is the logical and efficient location for the Project. There are no conflicting land uses in the vicinity of the Project site. Most of the land uses along the corridors are former and active phosphate mining lands, undeveloped lands, agriculture, and rural residences. The key exception is the segment of the Polk-Fishhawk Corridor that runs through the developed Fishhawk Community, which is a suburban residential area. Transmission lines of the types proposed are frequently located in proximity to all of these affected land uses, including the suburban residential areas. It is officially recognized that many people, if given a choice, would prefer not to have high voltage transmission lines near their homes, primarily based on aesthetic considerations. However, it is also officially recognized that many people are willing to live near transmission lines. Until there is a practical alternative to above-ground transmission lines, they will have to be located in developed areas in order to supply electricity to residences. The proposed transmission lines are not incompatible with residential uses. Polk County and Hillsborough County do not oppose the Project on any basis, including land use compatibility. The Project is consistent with the comprehensive plans and the land development regulations of these counties. Socioeconomic Impacts The Project would provide additional clean and reliable energy, additional jobs during construction, an increased property tax base, and increased economic activity in the form of purchases of goods and services. Local revenues from property taxes levied on the new plant facilities would primarily benefit Polk County. The estimated additional property tax revenue is between $6 million and $6.5 million annually. Significant revenues are also expected from sales taxes on goods purchased directly for the plant or indirectly from purchases of goods and services by the construction workers. Sales taxes are estimated to be $105,000 per year. Construction of the Project would employ an average of 250 workers, with a peak projected in 2015 of about 500 workers. Most of the construction workers would be drawn from an area within a commuting distance from the Project site. The construction payroll for the overall Project is expected to be $88 million and much of this would likely be spent in Polk County and the region. Site Boundaries TEC requests that the boundaries of the Polk Power Station site be reduced from 4,348 acres to 2,837 acres to reflect that the original certification required a donation of 1,511 acres to the Board of Trustees of the Internal Improvement Trust Fund as a wildlife management area and recreation area. The donation was completed in 2012. Construction Schedule Construction of the project is anticipated to begin in January 2014 and be completed in time to allow commercial operation in January 2017. Public Notice and Participation TEC engaged in extensive public outreach for the Project, using direct mail, a survey, public meetings, newspaper advertisements, a project webpage, a toll-free telephone number for information, and communications with agencies and public officials. TEC used two direct mailings, totaling over 10,000 letters in both English and Spanish. The letters were mailed to landowners and residents within one-quarter mile of the proposed transmission line corridors, all homeowners' associations within one mile, and all landowners and residents within three miles of the plant site boundaries. Three public meetings were held regarding the Project. The first meeting was held on April 10, 2012, at the Little Union Baptist Church. The second was on April 12, 2012, at the Fishhawk Fellowship Church. The third was on April 19, 2012, at the Wimauma Senior Center. TEC held meetings with county commissioners, mayors, state senators, and state representatives to inform them of the Project and the certification process. TEC representatives also met with developers in Hillsborough County who could be affected by the corridors to provide information and answer questions. Copies of the Application were available for inspection at the Polk County Library in Bartow and the John Germany Public Library in Tampa. A copy was also available for public review at TEC’s offices in Tampa. On October 24, 2012, public notice of the filing of the Application was published in The Tampa Tribune and The Ledger. On April 18, 2013, notice of the Certification Hearing was published in The Tampa Tribune and The Ledger and on April 19, 2013, in the Tampa Bay Times. When the certification hearing was rescheduled, TEC published notice of the rescheduling in The Tampa Tribune, The Ledger, and the Tampa Bay Times on June 16, 2013. The Department published notices of the Application, the certification hearing, the public testimony hearing, and rescheduling the certification hearing in the Florida Administrative Register. Hillsborough County published notice of the public testimony portion of the proceeding in The Tampa Tribune on June 19, 2013. Public Testimony A hearing was held in Lithia, Florida, on June 25, 2013, in the Fishhawk Community to provide members of the public who are not parties to the certification proceeding an opportunity to present sworn testimony concerning the transmission line portion of the Project. Twelve members of the public testified. Eight comment letters were received into the record as Public Testimony Composite Exhibit 1. A number of the residents expressed anger about what they perceived as the failure of the developer who sold them their homes, and TEC, to disclose to them that a transmission line might be constructed near their homes. As previously stated, the corridor is on property owned or controlled by TEC for the installation of transmission lines. The record evidence does not indicate any duty to disclose, any misrepresentation, or any obfuscation by TEC in this regard. If there was a failure to disclose or a misrepresentation by the developer, those are matters between the homeowners and the developer and beyond the scope of this proceeding. Several residents expressed concern about possible adverse health effects from exposure to electric and magnetic fields associated with the transmission lines. However, no speaker referred to personal knowledge or to any study results to support their comments on this subject. It is likely, therefore, that their concerns are based on rumors or speculation. As discussed above, independent scientists have not been able to substantiate the occurrence of adverse health effects from exposure to the electric and magnetic fields associated with transmission lines. There is a tennis court and there are nature trails underneath existing transmission lines located in another part of the Fishhawk Community, indicating that the fear of electrical and magnetic fields is not universal. Some residents urged that TEC be required to install the portion of the transmission line in the Fishhawk Community underground. There are substantial engineering difficulties associated with underground installation of high voltage transmission lines. TEC has never installed this type of transmission line underground. The cost for underground installation could be as much as 15 times greater than for overhead installation. Agency Reports Agency reports with proposed conditions of certification were submitted to the Department by SWFWMD, FWC, Florida Department of Transportation, Hillsborough County, and Hillsborough County Environmental Protection Commission. Agency Reports without recommended conditions of certification were submitted by the Florida Department of Economic Opportunity, Central Florida Regional Planning Council, Tampa Bay Regional Planning Council, and Polk County. The Department of State, Division of Historical Resources did not file an agency report, but recommended conditions in its Completeness Review. On January 28, 2013, The Department issued its Project Analysis Report for the transmission line portion of the Project, incorporating the reports of the reviewing agencies and proposing Conditions of Certification. On April 26, 2013, the Department issued its Project Analysis Report on the power plant and proposed Conditions of Certification. The Report was modified on May 21, 2013. No agency opposes certification of the Project. Conditions of Certification The Department recommends certification of the Project subject to the revised Conditions of Certification set forth in Department Exhibit 8, which supersedes all prior statements of conditions. The Conditions of Certification address numerous subjects and are designed to ensure that the construction and operation of the Project is protective of the public and the environment. The Conditions of Certification provide for post- certification reviews and investigations to confirm, for example, that sensitive areas will be avoided and that transmission lines structures will avoid or have minimal adverse impacts. TEC has agreed to construct, operate, and maintain the Project in compliance with the Conditions of Certification. No variances or exemptions from applicable state, regional, or local standards or ordinances have been requested or are needed for the construction, operation, and maintenance of the Project. Certification Considerations In determining whether TEC's application for the Project should be approved, approved with conditions, or denied, the Siting Board must determine whether, and the extent to which, the location, construction, and operation of the Project would: Provide reasonable assurance that the operational safeguards are technically sufficient for the public welfare and protection. Comply with applicable nonprocedural requirements of agencies. Be consistent with applicable local government comprehensive plans and land development regulations. Meet the electrical energy needs of the state in an orderly, reliable, and timely fashion. Effect a reasonable balance between the need for the facility as established pursuant to s. 403.519 and the impacts upon air and water quality, fish and wildlife, water resources, and other natural resources of the state resulting from the construction and operation of the facility. Minimize, through the use of reasonable and available methods, the adverse affects on human health, the environment, and the ecology of the land and its wildlife and the ecology of state waters and their aquatic life. Serve and protect the broad interests of the public. § 403.509(3), Fla. Stat. The evidence presented demonstrates that the location, construction, and operation of the Project would provide reasonable assurance that the operational safeguards are technically sufficient for the public welfare and protection. The evidence presented demonstrates that the location, construction, and operation of the Project would comply with applicable nonprocedural requirements of agencies. The evidence presented demonstrates that the location, construction, and operation of the Project would be consistent with applicable local comprehensive plans and land development regulations. The evidence presented demonstrates that the location, construction, and operation of the Project would meet the electric energy needs of the state in an orderly, reliable, and timely fashion. The evidence presented demonstrates that the location, construction, and operation of the Project would effect a reasonable balance between the need for the facility as established pursuant to section 403.519 and the impacts upon air and water quality, fish and wildlife, water resources, and other natural resources of the state. The evidence presented demonstrates that the location, construction, and operation of the Project would minimize, through the use of reasonable and available methods, the adverse effects on human health, the environment, and the ecology of the land and its wildlife and the ecology of state waters and their aquatic life. The evidence presented demonstrates that the location, construction, and operation of the Project would serve and protect the broad interests of the public.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Siting Board enter a final order: approving TEC's application for certification to construct, operate, and maintain the Polk 2-5 Combined Cycle Conversion Project, including its associated transmission lines, subject to the Conditions of Certification set forth in Department Exhibit 8; approving the increase in ultimate site capacity for the Polk Power Station site from the previously approved 1150 megawatts to 1420 megawatts; and modifying the Polk Power Station site boundaries from 4,348 acres to 2,837 acres, as depicted in TEC Exhibit 5. DONE AND ENTERED this 23rd day of August, 2013, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of August, 2013. COPIES FURNISHED: Lawrence N. Curtin, Esquire Holland and Knight LLP Suite 600 315 South Calhoun Street Tallahassee, Florida 32301 Toni Sturtevant, Esquire Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Kimberly Clark Menchion, Esquire Department of Transportation Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399 Anthony Justin Pinzino, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399 Adam Teitzman, Esquire Florida Public Service Commission 2450 Shumard oak Boulevard Tallahassee, Florida 32399-0850 Michael S. Craig, Esquire Polk County Attorney's Office 330 West Church Street, Drawer AT01 Post Office Box 9005 Bartow, Florida 33831-9005 Marva M. Taylor, Esquire Hillsborough County Attorney`s Office 27th Floor 601 East Kennedy Boulevard Tampa, Florida 33602-4156 Richard Tschantz, Esquire Environmental Protection Commission of Hillsborough County 3629 Queen Palm Drive Tampa, Florida 33619 Patricia Anderson Department of Health Environmental Engineering 4042 Bald Cypress Way Tallahassee, Florida 32399-1742 Laura Kammerer Bureau of Historic Preservation R. A. Gray Building 500 South Bronough Tallahassee, Florida 32399 Manny L. Pumariega Tampa Bay Regional Planning Council Suite 100 4000 Gateway Center Boulevard Pinellas Park, Florida 33782 Patricia M. Steed Central Florida Regional Planning Council 555 East Church Street Bartow, Florida 33830-3931 Forrest Watson Department of Agriculture and Consumer Services Division of Forestry 3125 Conner Boulevard Tallahassee, Florida 32399-1650 Martha A. Moore, Esquire Southwest Florida Water Management District 7601 Highway 301 North Tampa, Florida 33637 Herschel T. Vinyard, Jr., Secretary Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Matthew Z. Leopold, General Counsel Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Findings Of Fact Sundial is a limited partnership authorized to do business in the State of Florida and is a developer and builder of a condominium complex known as Sundial of Sanabel. In order to provide the purchasers of the condominium units with a means of renting their units when the units were not occupied by the owners, a second limited partnership was formed, Sundial Rental Partners Ltd., in which Sundial is the general partner and each of the condominium owners are limited partners. On August 1, 1973, a management agreement was entered into between Sundial Rental Partners Ltd. (hereafter Rental Partners) and Sundial whereby Sundial agreed to provide management services in connection with the operation of the condominium units as rental accommodations. The terms of this agreement provided that Sundial would be compensated for its management services in the amount of five percent (5 percent) of the gross revenue of the rental partners. On April 7, 1973, an Additional Facilities Lease Agreement was entered into between Sundial and Rental Partners. By this agreement, Sundial leased to Rental Partners additional facilities to be constructed by Sundial and used by the condominium unit owners, the persons who rent the condominium units from the Rental Partners and their guests. Compensation to Sundial is set forth in paragraph 3 of the agreement: Sundial Associates shall be paid an annual rental fee for the additional facilities equal to fifteen percent of the gross revenues of the Rental Partnership. Sun- dial Associates shall operate the additional facilities for its own account. All incom- ing profits shall inure to its benefit and the rental partnership shall have no interest in such incoming profits. The limited partnership agreement between Sundial and Rental Partners was amended on August 6, 1974. Paragraph 5.1 of the Amended Agreement provides that a total of five percent (5 percent) of the gross revenues of the partnership shall be paid to Sundial for its management services and that fifteen percent (15 percent) of the gross revenues of the partnership shall be paid to Sundial as rental payments for those additional facilities to be constructed by Sundial Paragraph 6.1 provides for a management deed to be paid to Sundial in the amount of four percent (4 percent) of the gross revenues of the partnership and paragraph 6.4 provides that the partnership shall lease from Sundial the additional facilities at the rate of fifteen percent (15 percent) of the gross revenues of the partnership. Paragraph 6.4 of the limited partnership agreement calls for the construction of additional facilities, the cost of which is to be some two million one hundred fifty thousand dollars ($2,150,000.00). During the tax period in question, the only facilities actually constructed were a lobby and registration area, the value of which is significantly less than the total value of the expected construction. Nonetheless, during the tax period in question, the Rental Partners have paid Sundial the full five percent (5 percent) management fee and the full fifteen percent (15 percent) rental payment. Sundial recorded receipt of these amounts in separate accounts in their financial records. Sundial received as income during the tax period in question, certain tennis court admission fees which DOR did not intend to include in its computation of the sales tax due from rental proceeds. Yet, the record reflects that the total of fifteen percent (15 percent) of gross sales was three hundred seventeen thousand three hundred ninety-three dollars and ninety-four cents ($317,393.94) while the total from tennis court admission fees was eighteen thousand four hundred ninety-seven dollars and sixty-seven cents ($18,497.67). The sum of these two figures is three hundred thirty-five thousand eight hundred ninety-one dollars and sixty-one cents ($335,891.61) which, when multiplied by four percent (4 percent) equals thirteen thousand four hundred thirty-five dollars and sixty-six cents ($13,435.66). This is the exact amount of the tax assessed by DOR exclusive of interest and penalties. The assessment is in error to the extent that tennis court admission fees were included in the figure purporting to reflect gross receipts of rental fees.
The Issue The issue is whether Petitioner was subjected to a hostile work environment based on his gender in violation of section 760.10(1)(b), Florida Statutes.
Findings Of Fact Respondent, EarthLink, is a nationwide telecommunications company that employed more than 15 employees at all times relevant to this matter. EarthLink provided managed network, security, and cloud solutions to individual and multi-location businesses located nationwide, including Florida. EarthLink is an employer as that term is defined by the FCRA, as amended. At all times material to the complaint of discrimination, Petitioner, Mr. Tensen, worked at EarthLink. Mr. Tensen worked at EarthLink from November 2013 until his position was eliminated on March 20, 2015. Mr. Tensen began his employment at EarthLink as a major Channel manager in 2013 and he was then promoted to senior director of partner development in 2014. Mr. Tensen is a male. Mr. Tensen was an employee of EarthLink as that term is defined by the FCRA. Petitioner is a member of a protected class. Mr. Tensen filed a complaint with the Commission alleging EarthLink, through Ms. Turpin, created a hostile work environment and had bias against men; promoted a woman despite his being qualified for the position; and retaliated against him for complaining about the alleged hostile work environment. The Commission issued a no cause determination and Mr. Tensen filed a Petition for Relief, which is the matter before the undersigned. By way of background, Mr. Tensen applied for a position with EarthLink in or around October 2013 based on encouragement of J.R. Cook, who was then leading the EarthLink Channel (“Channel”) organization. At the suggestion of Mr. Cook, Mr. Tensen listed Sherri Turpin as a professional reference. At that time, Ms. Turpin was the vice president of the master agent program, and she ran the Channel in partnership with Mr. Cook. Mr. Cook asked Ms. Turpin to interview Mr. Tensen for a Channel manager position, a junior position in the Channel organization. Mr. Tensen was more than qualified for and perhaps, over-qualified for the position. Ms. Turpin interviewed Mr. Tensen by phone and then, participated in the decision to hire him. EarthLink hired Mr. Tensen as a senior Channel manager for the southeast region, and he reported to James Dunn (southeast regional director). EarthLink Organizational Structure EarthLink had a model for the Channel team that was based on a sell-through model, where the goal is to motivate partners and brokers to sell EarthLink’s products to their customers. The Channel team leverages relationships with consultants or partners, pitching EarthLink’s services to them, and differentiating EarthLink’s services to the consumer. The Channel team is comprised of Channel managers, who report directly to regional directors. Channel managers are tasked with the primary responsibility of working directly with partners to manage sales of EarthLink’s products and services. At the time Mr. Tensen was hired, the regional directors were Mr. Dunn, Randy Landers, and Paul Keefe, all males. They reported to Ms. Turpin who, in turn, reported to Mr. Cook. A separate group of employees, known as partner development directors or PDDs, work with the Channel managers to focus on the largest partners, identified as “master agents.” Master agents have ties to national or regional carriers. The PDDs offer additional support to Channel managers to facilitate sales with partners. The PDDs are in an overlay role, meaning their primary task is to assist the direct contributors (Channel managers and regional directors) in making their quota. In 2013 through 2014, EarthLink experienced difficulties with retaining some accounts after the initial sale, a problem commonly known as “churn.” Mike Toplisek, the then executive vice president and chief revenue officer, decided that EarthLink should create an organization dedicated to the retention of existing customers and he selected Ms. Turpin to develop, implement, and lead the organization. In the new churn organization, Ms. Turpin worked with, among others, Ashley Powell. After Ms. Turpin left the Channel team in January 2014, Mr. Tensen was promoted to a PDD position in the Channel team, reporting directly to Mr. Cook. PDDs have responsibilities for overseeing relationships with three to seven master agents, and they are charged with business development, hosting marketing events, and developing collaboration and alignment between the consultant and Channel managers. In essence, the PDD role is a marketing role in a triangular relationship between the Channel managers, the master agents, and the PDD. In early 2014, Mr. Cook informed Mr. Toplisek of his intention of leaving the Company, prompting a need to find a new Channel chief. Mr. Toplisek interviewed two or three internal candidates, including Petitioner and Ms. Turpin. In the meantime, Mr. Toplisek appointed Ms. Turpin as the interim Channel chief based on Mr. Cook’s recommendation. Ms. Turpin worked in telecommunications her entire career. In fact, Ms. Turpin worked for XO Communications for 17 years before working at EarthLink. At XO, she was responsible for a direct sales course and she ran a Channel as a sales executive. Similar to the Channel at EarthLink, she also worked on a sell-through-model. Ms. Turpin testified that she had approximately seven to eight years of experience working in the Channel when she applied for the Channel chief position. EarthLink’s then CEO recruited Ms. Turpin away from her position to work with Mr. Cook, who was the Channel chief at that time. Ms. Turpin and Mr. Cook created the national master agent program at EarthLink. Ultimately, Mr. Toplisek selected Ms. Turpin based on her prior experience running the Channel with Mr. Cook and Mr. Cook supported Mr. Toplisek’s decision. Mr. Tensen disagreed with the decision to hire Ms. Turpin as Channel chief because he believed that he should have been selected. He believed that he had the necessary qualifications and experience and that Ms. Turpin was lacking in experience as purportedly indicated in Ms. Turpin’s 360 assessment review. Ms. Turpin did have negative comments on her 360 assessment review. However, those comments were a small fraction of the overall assessment. In the 360 assessment review, she was described as an extreme asset to EarthLink with the ability to problem-solve, build relationships, and motivate her team for success. Ms. Turpin’s rating in each category of assessment and overall rating was “fully productive.” Ms. Shmalo (Earthlink’s former human resources partner) testified that Ms. Turpin’s rating was positive. The preponderance of evidence presented at the hearing establishes that Ms. Turpin had the necessary qualifications and experience to be the Channel chief. Mr. Cook and Mr. Toplisek agreed that Ms. Turpin was the best candidate for the position. Mr. Cook believed that Mr. Tensen might be disappointed in not being selected to lead the Channel and he suggested that Mr. Toplisek ensure that Mr. Tensen did not feel slighted and was made to feel important. Accordingly, Mr. Toplisek reached out to Petitioner and invited him to have confidential discussions from time to time so that Mr. Toplisek could get his perspective on the Channel, employee morale, and messaging. Mr. Toplisek credibly testified that he never claimed he was forced to select Ms. Turpin over Mr. Tensen as the Channel chief, nor did he promise that Petitioner would replace Ms. Turpin in the future. The undersigned is not in a position to second-guess EarthLink’s decision to promote Ms. Turpin, who was qualified for the position, to replace Mr. Cook as the Channel chief absent evidence that the decision was based on a discriminatory practice. The fact that Mr. Tensen met the qualification for the position did not give him the exclusive right to being hired for the position. Petitioner failed to establish that the decision to select Ms. Turpin as the Channel chief was based on bias against males or any other discriminatory practice. Ms. Turpin’s Actions In May 2014, shortly after assuming the position of Channel chief, Ms. Turpin initiated a meeting with all her new Channel employees in Dallas, Texas. The two purposes of the meeting were to better understand the Channel organization that Mr. Cook had assembled in Ms. Turpin’s absence and to transition Ms. Turpin’s churn duties to other members of the churn organization. Ms. Turpin allowed some members of the churn team, including Ms. Powell, to sit in on the meetings with the Channel team. Ms. Powell did not have prior experience in Channel sales, but she was interested in learning about it. Ms. Powell testified that Ms. Turpin took her to the meeting to meet the new team and to get an idea about the Channel. Ms. Powell claimed that Ms. Turpin had informed her that she would have a position in the Channel sales team. At the Dallas meeting, Ms. Turpin conducted a review of all of the regions, Channel managers, and master agents. In the meeting, each of the regional directors, including Mr. Dunn, presented on their respective teams and Channel managers. During Mr. Dunn’s presentation, Ms. Turpin raised concerns about one of his Channel managers, Andrew Butts. Ms. Turpin criticized Mr. Butts based on his production, practices, and/or work habits. Mr. Dunn noted that in the year 2013, Mr. Butts received an award for the top five percent performance in the company. Mr. Tensen testified that Mr. Butts was the highest achiever for multiple years. Although Mr. Butts had good past performance, Ms. Turpin was concerned about his performance at that time.2/ Mr. Dunn believed that it was inappropriate to speak about Channel managers in the manner Ms. Turpin used. Mr. Dunn asked Ms. Turpin to refrain from degrading Andrew Butts. Although Mr. Dunn maintained that he raised his concerns in a calm manner, several witnesses, including Ms. Powell and Ms. Bouras, contradicted that assessment. For example, Ms. Powell said that Mr. Dunn was “very emotional” and that he “raised his voice” when he expressed his concerns. Stephanie Bouras recalled that Mr. Dunn’s voice was “[e]levated” and that “[h]e was frustrated and angry.” Ms. Turpin recalled that Mr. Dunn stood up, screamed, and yelled, and that he refused to follow her direction to manage Mr. Butts’ performance. Mr. Dunn conceded that after he challenged Ms. Turpin, “the room got quiet, as quiet as it could get.” Further, Mr. Dunn noted that several people approached him after his comments and counseled him to apologize to Ms. Turpin. Mr. Dunn did not apologize for his actions. Mr. Tensen claimed Ms. Turpin targeted Mr. Butts because he was male. To the contrary, however, Ms. Bouras and Ms. Turpin credibly testified that the discussion about Mr. Butts was not because of his gender. Following Mr. Dunn’s outburst, Ms. Turpin consulted Mark Hopkins, the vice president of human resources, to seek guidance. Based on the guidance from Mr. Hopkins, she ultimately spoke with two prior supervisors who described separate incidents in which Mr. Dunn “exploded” or “lost his cool” at an off-site meeting. Based on the conduct she observed during the Dallas meeting and the events relayed to her by Mr. Dunn’s prior supervisors, Ms. Turpin decided to terminate his employment for insubordination. Mr. Dunn claimed that he was told his position was eliminated and he received a severance package. Ms. Turpin played no role in deciding whether Mr. Dunn should be offered a severance package in exchange for a release. Likewise, Ms. Shmalo had no involvement in Mr. Dunn’s separation and has no knowledge of whether he was offered a package in exchange for a release. According to Ms. Shmalo, generally an employee who is separated for cause, i.e., insubordination, is not eligible for a severance package. However, any individual offered a severance package, even if for business reasons, would be classified as having their position eliminated. Although Petitioner claimed that Ms. Turpin said, “Sometimes you have to throw one of the boys under the bus” after the Dallas meeting, that alleged statement is inconsistent with the statement Petitioner provided in an email to Ms. Turpin and Mr. Toplisek which noted, in part, “Sherri, thank you for creating an environment where we could all have our own breakthrough moments. Best off site I've ever attended!” This email makes no reference to Ms. Turpin making references to throwing “a boy under the bus,” nor does the email make any reference to discrimination, bias, or harassment. Based on the description of Mr. Dunn’s actions at the meeting as related by Ms. Bouras, Ms. Powell, and Ms. Turpin, the preponderance of the evidence supports that Mr. Dunn was terminated for insubordination, rather than his position being eliminated. Mr. Tensen failed to produce evidence to support a finding that Mr. Dunn was terminated because he was male. Following Mr. Dunn’s termination, Ms. Turpin interviewed four candidates to replace him: Petitioner, Ms. Powell, Rob Olson, and an external candidate. Despite Ms. Powell’s claims, Ms. Turpin did not discuss or offer a director position to Ms. Powell before the Dallas meeting or prior to Mr. Dunn’s termination. Ms. Turpin first gave Mr. Tensen the opportunity to replace Mr. Dunn, but he deferred to Ms. Turpin’s judgment about his optimal role. Ms. Turpin ultimately selected Ms. Powell for the role. Shortly after Ms. Turpin became the Channel chief, she further restructured the partner development organization, promoting Mr. Tensen to senior partner development director, with the remaining PDDs reporting directly to him. Petitioner received a raise of more than $20,000 per year in total compensation. Ms. Turpin also advocated for Petitioner to be eligible to receive stock options. Ms. Turpin succeeded in obtaining stock options for Petitioner, an extremely valuable benefit. In arguing for extra money and stock options for Mr. Tensen, Ms. Turpin referred to him as her “right hand guy” and noted he would be vital for the growth of the business and the plans for the Channel. Around the same time, Ms. Turpin received approval to add a new PDD to her team. She selected Michael Brennan for the position, resulting in a promotion and increase in compensation. Ms. Turpin had promoted Mr. Brennan on other occasions and advocated for several increases in compensation during her tenure at EarthLink. In addition to the promotion and raises, during the time Mr. Tensen reported to Ms. Turpin, she provided him with a positive performance review, and she described him as an “amazing employee.” Though she noted some areas where Petitioner could improve, she largely praised his contributions to EarthLink. The review notes a “billed revenue” number of $36,062,382, which was 109.15 percent of the stated goal. The billed revenue number in this review reflected all revenue across all customers in the Channel, regardless of whether Mr. Tensen drove or impacted the sales. The 109-percent figure was largely driven by churn, reflecting that customers were not leaving the EarthLink as rapidly. In addition to Mr. Brennan and Mr. Tensen, Ms. Turpin had a good working relationship with Travis O’Keefe, who consistently met his quotas. There was some evidence offered at hearing that Ms. Turpin had a “girl’s club.” Although Mr. Risse testified there was a “women’s team” in management, he admitted that all of the leaders in the Channel organization, except Ms. Powell and Ms. Turpin, were men. Further, he based his belief in part on Jim Dunn’s termination and the mistaken belief that Ms. Powell was selected to replace Mr. Dunn without consideration of external candidates. In fact, the evidence shows Mr. Dunn was terminated for insubordination and four candidates (two males, including Mr. Tensen, an external candidate, and Ms. Powell) were interviewed for the position. The undersigned notes that Mr. Risse did not make any complaints of discriminatory behavior regarding Ms. Turpin’s actions. Reduction in Force In early 2015, EarthLink had a relatively new CEO who shifted EarthLink’s prior strategy and focused on providing the greatest value to shareholders. Around that time, the teams were also not consistently meeting their quotas. The strategy focused on maximizing profits, which, based on the EarthLink’s core business, necessitated a greater emphasis on cost reduction. Specifically, EarthLink focused on reducing operational expenses. Based on the nature of the business, the biggest operational expense was employees. As such, EarthLink would undergo a reduction-in-force (“RIF”). To satisfy this directive, Mr. Toplisek directed his direct reports, including Ms. Turpin, to reduce cost while keeping revenue flow as high as possible. Upon receiving this directive from Mr. Toplisek, Ms. Turpin considered several options to comply with his directive. Ultimately, Ms. Turpin decided to eliminate Mr. Tensen’s position. Because this was a position (the only such position) she had created, Ms. Turpin believed she could absorb majority of the work being performed by Mr. Tensen without significantly increasing the burden on the rest of the Channel team. Ms. Turpin notified Mr. Toplisek of her decision and explained the basis for her selection. Mr. Toplisek supported her decision. On March 9, 2015, Ms. Turpin (and a human resources representative) notified Mr. Tensen by phone that his position was eliminated. Because Mr. Tensen’s position was eliminated as part of the RIF, he was given a severance package. Ms. Turpin testified that elimination of Mr. Tensen’s position was unrelated to his job performance. Ms. Turpin settled on eliminating Petitioner’s role because she believed it had the least amount of impact on sales, as he was in an overlay role and, moreover, one step removed from the PDDs who worked directly with the Channel managers. After Mr. Tensen’s position was eliminated, Ms. Turpin absorbed his responsibilities. No one replaced Mr. Tensen as the position was never refilled. Although Petitioner was the only employee eliminated in the Channel organization, several other employees were also downsized during the RIF. Ms. Shmalo testified that she notified 21 employees in March 2015 that their positions were being eliminated, including both male and female employees. Moreover, in March 2015, EarthLink eliminated the positions of 40 to 50 employees in Toplisek’s sales organization. The preponderance of the evidence supports that the decision to eliminate Mr. Tensen’s position was based on the directive to reduce operation expenses by a RIF and not related to his gender or retaliation. Use of Profanity/Hostile Work Environment Mr. Tensen asserts that Ms. Turpin terminated him because she had a bias against men and that she would use profanity against and “verbally castrate” men. Several witnesses testified at hearing that Ms. Turpin used profanity. Ms. Turpin admitted that she used profanity but it was not in a derogatory or offensive manner. She also stated that no one complained to her that they were offended by the use of profanity. Mr. Toplisek testified that EarthLink employees (men and women) used profanity. He considered the term “bitch(es)” as an endearing term and it was used by Ms. Turpin and others at EarthLink. The term was used for men and women. Ms. Turpin testified that it was an acronym3/ and that she "never referred to a person directly as a bitch." While, this is contradicted by the testimony of Stephanie Bouras, who testified that Ms. Turpin used the term “bitch” as addressed directly to a person, Ms. Bouras noted that the term “bitches” was directed toward men and women, rather than only to men. Ms. Powell also testified that Ms. Turpin called everyone “bitches.” According to Ms. Shmalo, if an employee was uncomfortable with the use of profanity, that individual would be instructed to notify his or her direct supervisor that they felt uncomfortable with the language. Ms. Shmalo also stated that harassment or discrimination is based on conduct involving an individual in a protected class. At all times material to this matter, EarthLink had a policy which prohibits discrimination based on any protected categories, including sex. EarthLink has policies which express its commitment to a workplace free from discrimination. The EarthLink handbook provides, “[w]e respect the individual and our business success depends on employees being able to express their ideas and doing their jobs without fear of harassment or unlawful treatment.” Accordingly, EarthLink requires all employees to be given equal opportunity in “every aspect of employment, including recruitment, hiring, training, promotions, transfers, compensation, benefits, discipline, terminations, and all other privileges, terms and conditions of employment.” Discrimination or harassment on the basis of gender or any other protected characteristic is prohibited. EarthLink provides employees with detailed instructions for reporting any violation of EarthLink’s equal employment and anti-harassment policies, and retaliation against employees who complain about harassment or discrimination is also prohibited. Mr. Tensen claimed that he complained of Ms. Turpin fostering a hostile work environment in a letter to then CEO, Mr. Eazor. Ms. Shmalo had no knowledge of the letter and thus, was not aware of any complaints regarding Ms. Turpin maintaining a hostile work environment. Ms. Shmalo did receive complaints regarding Ms. Turpin from employees working in the Channel. Ms. Powell and Mr. Brennan complained about Ms. Turpin’s leadership style and communication practices. However, they did not complain of discrimination, harassment, a hostile work environment, or bias in favor of women (also known as the girl’s club). Mr. Tensen spoke to Ms. Shmalo after his position was eliminated, but he did not complain to her that he believed his separation was based on discrimination against him because he was male or due to bias against males. Mr. Tensen’s exit interview questionnaire complained of dissatisfaction with Ms. Turpin’s leadership and management style but did not mention any complaints of discrimination or bias against males. EarthLink's Anti-Harassment Policy provides that an employee who is subject to or a witness of harassment must report it to any manager or member of management. Mr. Tensen never complained that he felt uncomfortable with the use of profanity. He never complained that he felt discriminated against. He also never complained to anyone at EarthLink that he believed there was a bias against men before his position elimination. Moreover, he had confidential meetings with Mr. Toplisek and he never mentioned discrimination or a hostile work environment to him before he was terminated. On March 12, 2015, three days after his position elimination, Mr. Tensen spoke with Mr. Toplisek in a phone conversation. During the call, Mr. Tensen expressed that he believed Ms. Turpin terminated him because he sent an email to Mr. Eazor. Mr. Tensen did not state that be believed he was terminated because he is male, or as a result of discrimination or harassment. Mr. Tensen followed up on the conversation with Mr. Toplisek by email later that same day. Although he was critical of Ms. Turpin, he did not mention that he believed he was terminated based on discrimination, harassment, or because he is male. Mr. Tensen alleged that Ms. Turpin retaliated against him after he sent the letter to Mr. Eazor complaining about Ms. Turpin. Ms. Powell testified that before Mr. Tensen was terminated, Ms. Turpin was aware of the letter Mr. Tensen sent to Mr. Eazor and instructed her not to talk with Mr. Tensen because of that “letter.” Ms. Turpin denies this. Ms. Powell’s testimony, which is largely uncorroborated, is found to be not credible on whether Ms. Turpin knew about the letter before Mr. Tensen was terminated. The evidence supports the finding that Ms. Turpin did not learn of the letter until after Mr. Tensen’s position was eliminated. Mr. Tensen sent two emails regarding Ms. Turpin’s leadership and management style. Mr. Tensen sent the first email to Mr. Eazor on February 2, 2015, where he outlined his concerns about Ms. Turpin, including that she created and sustains a hostile work environment. On March 12, 2015, a second email was sent to Mr. Toplisek (three days after Mr. Tensen was terminated). Similar to the first letter, Mr. Tensen complained about Ms. Turpin and it also mentioned the first letter to Mr. Eazor. On March 12, 2015, Mr. Toplisek forward Mr. Tensen’s second email (mentioning the letter to Mr. Eazor) to Mark Hopkins in human resources. Mr. Hopkins discussed Mr. Tensen’s email with Ms. Turpin. Mr. Hopkins agreed with Mr. Toplisek that he should cease communication with Mr. Tensen. Ms. Turpin and Mr. Toplisek credibly testified that they did not learn of the letter to Mr. Eazor until after Mr. Tensen was terminated. Mr. Tensen failed to provide evidence to demonstrate that he complained of discrimination or a hostile work environment before he was terminated from EarthLink. It is undisputed that Petitioner received a positive performance review for 2014 and exceeded his quota for that year by more than nine percent. He was recognized for his ability to drive results. He was successful in motivating his team to focus on driving sales. He was recognized as very efficient and effective when it came to putting customers first. He was characterized as a key to the success of his department. However, the credible evidence supports that Mr. Tensen’s position being eliminated had nothing to do with his work performance; rather, it was due to the company-wide RIF. Petitioner offered no credible evidence that EarthLink’s elimination of his position was in retaliation for any complaint of discriminatory employment practices or due to gender bias against males. While Petitioner was employed with EarthLink, he never complained about discrimination or a hostile work environment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing Petitioner’s discrimination complaint and Petition for Relief consistent with the Findings of Fact and Conclusions of Law of this Recommended Order. DONE AND ENTERED this 1st day of June, 2017, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 2017.
Findings Of Fact The following findings of fact are based upon the stipulation of the parties, as well as the evidence presented at hearing, including the demeanor of the witnesses: Polynesian Isles Developers, Ltd., was a developer of a time-share property, within the meaning of Section 721.05(9), Florida Statutes, in Osceola County in 1984. Bailey M. Weldon was a general partner of Polynesian Isles Developers, Ltd., and a developer of time-share property known as Polynesian Isles Resort Condominium I from November 23, 1982 to January 16, 1985. Polynesian Isles Developers, Ltd., submitted certain advertising to Petitioner for approval on January 9, 1984, and was noticed of deficiencies in its Polynesian Isles- Super Bowl advertising materials by notice issued by the Petitioner on January 17, 1984. These advertising materials were distributed in the January 18, 1984 Super Bowl Supplement to the St. Petersburg Times without correction of the noticed deficiencies. No time-share unit weeks were sold as a result of this ad. It was represented in the Polynesian Isles Developers, Ltd., public offering statement, and its sales contract with purchasers of time-share unit weeks, that purchasers would obtain fee title to purchased unit weeks free and clear of encumbrances. It was also represented in such sales contracts with purchasers of time-share unit weeks that Polynesian Isles Developments, Ltd., as Seller, would provide purchasers with an owner's title insurance policy upon closing Respondent agrees and stipulates that no owner's title insurance policy was issued for some of the unit weeks sold and closed in 1984. The evidence establishes that no title insurance policies were issued for 329 unit weeks. Respondent established an escrow account for the deposit and withdrawal of all funds received from, or on behalf of, time-share purchasers. Daniel Giannini served as escrow agent for Polynesian Isles Developers, Ltd., for the purpose of receiving and disbursing funds pursuant to Section 721.08 Florida Statutes. Respondent agrees and stipulates that some affidavits for release of escrow funds were delivered to Daniel Giannini as escrow agent when all conditions required by Section 721.08, Florida Statutes, had not occurred. The evidence establishes that these affidavits falsely stated that all conditions for closing had occurred when, in fact, closing had not properly occurred on 331 unit weeks in 1984 because title was not conveyed free and clear of all encumbrances. As a result, purchasers' funds in escrow were released to Respondent without the conveyance of free and clear title or the issuance of title insurance policies. Goldome Savings Association held the primary mortgage on the first phase of the Polynesian Isles Development. This mortgage encumbered unit weeks sold by the Development. Respondent failed to obtain partial releases from Goldome of the mortgages on 331 unit weeks which closed in 1984, and therefore the sale of these weeks closed without free and clear title. Deeds to the 331 unit weeks were recorded without disclosure of the underlying mortgage. Title insurance policies were not issued on 329 of these unit weeks as a result of the failure to obtain releases. Respondent Weldon was the general partner who was in charge of legal matters, closings and title insurance. He also supervised the general manager of Polynesian Isles with his other general partner, Richard Barcley. It was Weldon's general practice to sign escrow affidavits in blank and to rely on his employees to insure that they were used properly at closings. The general manager of the development during 1984 was Frank Cuyler. Respondent terminated Cuyler when he learned that Cuyler had agreed to an unfavorable change in the terms of Goldome's mortgage as an inducement to obtaining financing for phase II of the development, and had failed to report such change to Respondent, or obtain his approval. The effect of the change which was agreed to by Cuyler was to increase the amount the development had to pay to Goldome for a partial release on each unit-week from $1800 to approximately $3800. When it became apparent that it was not financially feasible for the development to pay this increased amount for releases, Cuyler simply proceeded to close on 331 unit-weeks without releases. Respondent was unaware of this practice, and when it came to his attention he immediately gave instructions that it be discontinued, and terminated Cuyler. In addition, he raised approximately $1.4 million, including $300,000 of his own money, to obtain the releases on these 331 unit-weeks, and to cure any mortgage default. However, the evidence does not establish that releases were ever obtained.
Recommendation Based upon the foregoing, it is recommended that Petitioner enter a Final Order assessing an administrative penalty against Respondent Bailey M. Weldon in the amount of $10,000. DONE AND ENTERED this 17th day of May, 1988, in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of May, 1988. APPENDIX (DOAH Case No. 86-1003) Rulings on Petitioner's Proposed Findings of Fact: 1.(a)-(c) Adopted in Finding of Fact 1. 1(d) Adopted in Finding of Fact 2. 1(e) Adopted in Finding of Fact 3. 1(f)-(g) Adopted in Finding of Fact 5 1(h)-(i) Adopted in Finding of Fact 3. 2(a)-(b) Adopted in Finding of Fact 2. 2(c)-(e) Adopted in Finding of Fact 5. 2(f) Rejected as unnecessary and cumulative. 2(g)-(h) Adopted in Finding of Fact 8. 2(i)-(j) Adopted in Finding of Fact 6. 2(k) Adopted in Finding of Fact 2. Rulings on Respondent's Proposed Findings of Fact: Rejected since this is a conclusion of law rather than a finding of fact. Adopted in Finding of Fact 1. 3A Rejected as irrelevant to the charges in this case. 3B Adopted in Finding of Fact 2. 3C Adopted in Findings of Fact 3, 5. 3D Adopted in Finding of Fact 3, assuming typographical error of 229 which should be 329. 3E Adopted in Finding of Fact 4. 3F(a) Rejected in Finding of Fact 7. 3F(b) Rejected as not based upon competent substantial evidence in the record. 3F(c) Adopted in part in Findings of Fact 6, 7 and 8. 3F(d) Adopted in part in Findings of Fact 4, 6. COPIES FURNISHED: Pamela S. Leslie, Esquire Eric H. Miller, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Charles Edwin Ray, Esquire 6534 Central Avenue St. Petersburg, Florida 33707 E. James Kearney Director Division of Florida Land Sales, Condominiums and Mobile Homes Department of Business Regulation 725 South Bronough street Tallahassee, Florida 32399-1007 Van B. Poole Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Joseph A. Sole General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007
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.
