The Issue Whether the Respondent violated Florida law regulating the manner in which pesticide chemicals are to be utilized and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with the duty to prosecute administrative complaints against operators, applicators, and licensed pest control businesses pursuant to Section 482.011, et seq., Florida Statutes. Respondent is at all relevant times a licensed operator and applicator, subject to Petitioner's regulatory jurisdiction. On or about February 21, 2004, Respondent was performing preconstruction termite treatment services at a job site at 7750 Okeechobee Boulevard in West Palm Beach, Florida, utilizing a pesticide known as Dursban TC. Label instructions for Dursban TC provide that a 0.5 percent concentration be utilized for preconstruction treatment for the prevention of subterranean termites. Baker admits he did not follow the label instruction; rather, the concentration of pesticide was less than one tenth of the 0.5 percent concentration provided for on the label instructions as regards the pre-construction soil treatment for subterranean termites. Florida Administrative Code Rule 5E-14.106(6) states in pertinent part: Pesticides used for treatment for the prevention of subterranean termites for new construction shall be applied at the specific amounts, concentration, and treatment areas designated by the label. Baker defends his failure to follow the label instructions on the grounds that such instructions call for a higher concentration of pesticide than is actually necessary to accomplish an effective termite treatment. Even if, as Baker contends, the label instructions suggest a higher concentration of pesticide than is actually necessary to accomplish an effective termite treatment, that is not grounds for him, or Petitioner, to disregard the Rule mandating that label instructions be followed. Pesticide usage is highly regulated due to the potential of such chemicals to impact public health, safety and welfare. § 482.011, et seq., Fla. Stat. Changes in the regulations must come from the legislature, and cannot be made on an ad hoc basis by individual operators.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a final order be entered assessing a fine of $400.00 against Respondent for violation of Florida Administrative Code Rule 5E-14.106 (6). DONE AND ENTERED this 5th day of August, 2005, in Tallahassee, Leon County, Florida. S 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 5th day of August, 2005. COPIES FURNISHED: Howard J. Hochman, Esquire Law Offices of Howard J. Hochman 7695 Southwest 104th Street Suite 210 Miami, Florida 33156 David W. Young, Esquire Department of Agriculture and Consumer Services Mayo Building, Suite 520 407 South Calhoun Street Tallahassee, Florida 32399-0800 Brenda D Hyatt, Bureau Chief Bureau of License and Bond Department of Agriculture and Consumer Services 407 South Calhoun Street, Mail Station 38 Tallahassee, Florida 32399-0800 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Honorable Charles H. Bronson Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
Findings Of Fact At all times pertinent to this proceeding, Respondent, Wayne Cassity, was a certified building contractor having been issued license C-6620. Respondent was the qualifying contractor for Cassity Construction, 5000 Rena Street North, St. Petersburg, Florida. On or about December 19, 1995, Respondent contracted with Mr. and Mrs. Ralph Thomas to build an addition to the back of their home located at 1537 Carson Circle Northeast, St. Petersburg, Florida. The contract provided that the construction project was to be completed in forty (40) working days, or about two months. The contract was later modified by agreement of the parties on January 26, 1995. Except for an increase in the cost of the project, the amended contract was substantially the same as the original contract. Under the terms of the modified agreement, the cost increased from $14,400.00 to $15,900.00 The increased cost resulted from changes in the plans that were necessary to comply with certain FEMA regulations. Under the terms of the agreement, payment for the work performed was to be made at various intervals during the construction project. The contract required that Mr. and Mrs. Thomas pay Respondent $3,300.00 upon execution of the contract; $5,040.00 after masonry work was completed; $5,040.00 after completion of framing; and $2,520.00 upon completion of the contract. In regard to Respondent's obligations, the contract provided in pertinent part the following: Furnish drawing to owner for approval. Obtain a building permit from the City of St. Petersburg. Remove and dispose of existing grass where the new addition is to be built. Remove and dispose of existing walls in spare room on east side of the new addition. Remove and dispose of existing 12'-0" sliding glass door. Furnish and install all material to con- struct a new concrete slab, approximately 19'-0' x 12' -0' made up of 3000 PSI con- crete, 16" x 16" footing with two no. 5 rebar continuous and 4" thick slab with 6" x 6" x 10 wire mesh on 6 mil visqueen. Furnish and install all material to con- struct exterior block wall for new addition Furnish and install all material to con- struct a new roof over new addition made up of 2" X 8" rafters 24" on center with 3/3" plywood. Overhangs to match existing house as close as possible. Furnish and install 90 lb. torch down roll roofing, for new room of new addition. (Entire flat room) Frame interior walls of new addition. Apply 1/2" drywall to interior of all walls and prepare for paint. Install electricity to new addition to include seven receptacles, four light switches and three overhead lights. Install rough plumbing for new bath to supply shower, toilet and sink. Install two new A/C ducts to new addi- tion tapping into existing trunk line. Under the terms of the contract, Mr. and Mrs. Thomas were to supply and install the following: toilet; sink; vanity; all doors; base trim; door trim; interior paint; exterior paint; carpet; bath floor tile; shower fixtures, exterior stucco; and exterior soffit. Notwithstanding the written contract terms, at some point prior to completing the project, the parties verbally agreed that the owners, not Respondent, would remove and dispose of the existing walls in the spare room and the sliding glass door. Additionally, the parties verbally agreed to reduce the price to be paid under the contract from $15,900.00 to $15,780.00. Although the written contract provided for increases and reductions pursuant to authorized change orders, no evidence was presented regarding the specific reason for the decrease in the construction cost. The Pinellas County Building Office issued the building permit to Respondent on December 18, 1994 and Respondent began work on the Thomas' project several days later. The Pinellas County Building Code requires contractors to call for inspection at various intervals during construction. This allows any code violations to be identified and corrected prior to completion of a given project. Although contractors are required to call for inspections, building inspectors sometimes make unrequested inspections. On January 10, 1995, an initial unrequested inspection was made of the Thomas construction project. Respondent's slab/footer work on the project was rejected by the inspector because it did not meet FEMA requirements. Another unrequested inspection was made by a Pinellas County inspector on January 25, 1995, and again the footer work was rejected. Respondent called for an inspection of the project on January 29, 1995. Pursuant to Respondent's request, an inspection of the work was made on February 17, 1995, by a Pinellas County building inspector. At the time of the February inspection, the footer work was in progress but not yet complete. Two or three days later, after the footer and slab were completed, the work passed inspection. The Thomas' made the first three payments to Respondent in accordance with the terms of the contract, but never made the final payment. On December 28, 1994, Respondent was paid $3,300.00 by Mr. and Mrs. Thomas. The second and third payments of $5,040.00 each were made on January 26, 1995 and February 10, 1995, respectively. The total payment paid to Respondent by the Thomas' was $13,380.00, and represents 85 percent of the total contract price. The percentage corresponds to the 85 percent of work completed by Respondent on the Thomas construction project. On March 28, 1995, Mr. and Mrs. Thomas notified Respondent in writing of their general dissatisfaction with his work. Specifically, the owners expressed a concern that Respondent had failed to complete his designated responsibilities under the contract. Mr. and Mrs. Thomas further indicated that Respondent failed to do a quality job. While several items were of concern to the owners, their primary concern was that the floor level of the new addition was not even with the existing structure. In order to placate the owners, Respondent agreed to return to the Thomas' home and perform the work which the Thomas' believed should have been done by Respondent. Respondent's attempts to comply with the Thomas' request were unsuccessful and attempts to satisfy the owners were futile. Despite the owners' personal dissatisfaction with Respondent's work, no competent and substantial evidence was presented regarding whether the actual work completed by Respondent was consistent with the approved plans and the actual contract. The contract between Respondent and Mr. and Mrs. Thomas contained a dispute resolution clause. According to that provision, "all disputes hereunder shall be resolved by binding arbitration in accordance with the rules of the American Arbitration Association." Mr. and Mrs. Thomas have failed to utilize the dispute resolution method prescribed in the contract. An investigative inspection was performed by a Pinellas County inspector on March 19, 1996, approximately one year after Respondent initially completed his work on the Thomas home. Typically, three types of inspections are conducted: construction, electrical, and roofing. However, the March 19, 1996 inspection was limited to a construction inspection, and did not include a roofing or electrical inspection. The construction inspection revealed three code violations: the framing for the roof was improperly anchored; the air flow duct was blocked by the insulation; and the window frames were not sealed. The Code violations discovered as a result of the March 19, 1996, inspection were not included in the Administrative Complaint filed against Respondent. On or about March 24, 1995, Respondent entered into a contract with B. G. Diehl to convert an apartment building to an Assisted Living Facility. The first payment under the contract was made on or about March 28, 1995. Work on the remodeling project began on March 28, 1995, although the permit was not obtained until the first week of May 1995. Respondent's failure to obtain the building permit was based on his belief that Ms. Diehl had verbal assurance from county or city officials that prior problems with permitting for this project had been resolved and that the permit would be issued. The Pinellas County Building Code requires that building permits be obtained by contractors prior to beginning a project. This requirement is directed to licensed contractors, and it is the responsibility of the contractor, not the property owner, to ensure that proper permits were obtained prior to beginning the Diehl construction project. The contract provided that the job would be complete on August 15, 1995, and also included a "time is of the essence" provision. The work was substantially complete by August 15, 1995, and certified for occupancy in October 1995. One of the reasons for the delay was the issuance of a Stop Work Order issued in April 1995. Ms. Diehl's dissatisfaction with Respondent was affected by and escalated when Respondent placed a lien against her property. Though Ms. Diehl indicated she was generally not satisfied with Respondent's work, no competent and substantial evidence was presented demonstrating that the work was not completed or performed in a workmanlike manner. During the course of the construction project there were numerous disputes between Ms. Diehl and Respondent. The primary dispute involved a work order which would have required Ms. Diehl to pay an additional $10,000-$20,000. The change was deemed necessary by Respondent after he consulted with the civil engineer employed by Ms. Diehl for this project. The civil engineer informed Respondent that the plans initially drawn by the engineer and which had been relied upon by Respondent in his bid would not work. Similarly, additional changes were required after Respondent conferred with the structural engineer retained by Ms. Diehl. These changes, at least in part, required a modification of the location of bathroom fixtures. The essence of Ms. Diehl's complaints regarding the work performed by Respondent involve changes that were made to the plans without her approval. However, Ms. Diehl met with Respondent, the civil engineer and the structural engineer, and was aware that the engineers knew and agreed that the changes were necessary. Ms. Diehl was responsible for the electrical work involved in this project, and approved Randy's Electric as the company to perform the electrical work required by the contract. Respondent subcontracted with Rainbow Gas Company to install the gas piping which was required for this remodeling project. The total contract amount for the Diehl construction project was $158,750.00. Ms. Diehl paid Respondent all payments except the last one and employed another contractor to complete the job. No evidence was presented indicating the amount of money Ms. Diehl paid to Respondent or the amount of money, if any, paid to the contractor who completed the work.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner Pinellas County Construction Licensing Board enter a final order that finds that: Respondent did not violate the provisions of Chapter 89-504, Section 24(2)(d), (h)2., and (d), Laws of Florida, as alleged in Counts One, Two, and Four of the Administrative Complaint. Respondent violated the provisions of Chapter 89-504, Section 24(2)(n), Laws of Florida, as alleged in Count Five of the Administrative Complaint, and which assesses an administrative fine against Respondent in the amount of $100.00 for that violation. Respondent did not violate the provisions of Chapter 89-504, Section 24(2)(g) and (n), as alleged in Counts Six, Seven and Eight of the Administrative Complaint. Respondent did not violate Rule 2-15.003, Florida Administrative Code, as alleged in Count Nine of the Administrative Complaint. DONE and ENTERED this 4th day of June, 1996, in Tallahassee, Florida. CARLOYN S. HOLIFIELD, 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 4th day of June, 1996.
The Issue The issue to be resolved in this proceeding concerns whether the above-named Respondents applied pesticide chemicals to a pre-construction application site for pre-treatment for termites and wood-destroying organisms, which was contrary to label instructions, by not applying the specific amount (volume) and concentration designated by the label in alleged violation of Section 482.051(5), Florida Statutes, and Rule 5E-14.106(6), Florida Administrative Code.
Findings Of Fact The Respondents are certified operators and applicators employed by pest control companies in the Panama City area. Stephen W. Daniels holds License No. 43026. Earl G. Pettijohn holds License No. 92006. Mr. Pettijohn is an applicator at Killingsworth Environmental, Inc., and Mr. Daniels is a certified operator for Environmental Security of Panama City. The Petitioner is an agency of the State of Florida charged with regulating the licensure, operations, and practices of pest control operators, applicators, and licensed pest control businesses in the State of Florida. The pre-construction termite treatment in question occurred on October 16, 2001. The treatment or job site was at the new construction of the Northwest Florida Community Hospital at 1360 Brickyard Road, in Chipley, Florida. Two trucks were used on the October 16, 2001, job: one was a truck marked "Killingsworth Environmental," driven by Mr. Pettijohn; the other truck was marked "Atlas" and was driven by Mr. Daniels. The chemical used in the pre-treatment for termites at the job site was a soil pesticide known as "Cyren-TC." The label for Cyren-TC indicates a requirement of 0.50 percent to 1.0 percent concentration, with an aqueous emulsion used for pre-treatment for termites. The laboratory report and analysis of the pesticide sample taken from Mr. Daniels' truck tank, at the hose end, was found to contain 0.38 percent chlorphyrifos (active ingredient), which represents a 24 percent deficiency from the minimal required rate of 0.50 percent per the Cyren-TC label. The Respondents, Mr. Daniels and Mr. Pettijohn, were called by the contractor of the job in Chipley on the evening of October 15, 2001, with his request that they perform a pre-treatment termite treatment the next morning for a monolithic slab described as being of an area of 12,000 square feet. The Respondents, therefore, filled their trucks, mixing the pesticide, based upon that measurement on the evening of October 15, 2001. They arrived at the job site the following morning at 7:15 a.m. They did not use the two trucks to treat any other sites between the filling of the trucks and their arrival on the job site in question on the morning of October 16, 2001. Upon inspecting the job site, Mr. Daniels measured the slab and determined the actual square footage to be approximately 9,300 square feet. That figure is not disputed. The truck Mr. Daniels was driving had a tank and spray capacity of 700 gallons. The 700 gallons was represented by a 500-gallon tank and by an additional 200-gallon tank. The truck was completely filled when it arrived on the job site. The truck Mr. Pettijohn was driving contained a capacity of 600 gallons in two tanks of 300 gallons each. It was completely full when it arrived at the job site. Mr. Owens, the Department's field inspector who testified in support of the Administrative Complaint, did not inspect either truck to determine or estimate their total capacities. He was not aware of how much either truck employed on the job in question actually held in total volume. He also did not observe how much chemical was left over still in the tanks in each truck when the first treatment application effort had concluded, on or shortly before 9:00 a.m., on October 16, 2001. The Respondents applied an aqueous emulsion of Cyren-TC to the 9,300 square foot monolithic slab by spraying a volume from each truck. Mr. Daniels' truck pumped five to seven gallons per minute, and Mr. Pettijohn's truck pumped seven to nine gallons per minute. Both trucks were fitted with gravity-fed pumps. The pumps on each truck would pump a higher volume, closer to seven gallons per minute or nine gallons per minute respectively, as to Mr. Daniels' and Mr. Pettijohn's trucks when the tanks were more nearly full because of the higher pressure feeding the gravity-fed pump. The volume per minute pumping rate would gradually decrease as the level in the tank became lower. Both Mr. Daniels and Mr. Pettijohn started pumping at essentially the same time or within one minute of each other. Mr. Daniels testified that he and Mr. Pettijohn applied the pesticide for 73 minutes measured by the digital clock on his radio. Mr. Daniels determined the amount of time necessary to pump the pesticide on the site from both trucks by taking an average of the output volume of the pumps on each truck. He began timing the application when he pulled the hose to the far end of the slab and turned it on. When the treatment application was complete, Mr. Daniels had approximately 50 gallons of chemical remaining in the 500-gallon tank on his truck. He had not yet used any of the 200-gallon tank on his truck. Mr. Pettijohn had approximately 55 to 60 gallons of chemical left from the two tanks totaling 600 gallons on his truck when he started the application. The testimony as to the amount of chemicals left in the tanks after this first application is unrefuted and is accepted. Mr. Daniels established that, although when the tanks were approaching empty (when the calibration was made by Mr. Owens), at which time Mr. Daniels' tank would only pump at a rate of five gallons per minute, that the pumps would pump at a higher rate, approaching seven gallons per minute as to Mr. Daniels' truck and nine gallons per minute as to Mr. Pettijohn's truck, when the tanks were full. Consequently, if one takes an average of the output volume for each truck of slightly over six gallons per minute for Mr. Daniels' truck and slightly over seven gallons per minute for Mr. Pettijohn's truck, one arrives at an application volume for Mr. Daniels' truck of 438 to 450 gallons of chemical applied. One also arrives at a volume applied for Mr. Pettijohn's truck of approximately 547 gallons if one uses an average application rate of 7.5 gallons per minute. Since the testimony as to the remaining product in the tanks is unrefuted because Mr. Owens did not observe the amount of product left in the tanks on the two trucks, and if one uses an average application rate of 7.5 gallons per minute for Mr. Pettijohn's truck and six gallons per minute or slightly more for Mr. Daniels' truck, one arrives at a figure of between 50 and 60 gallons of product remaining in Mr. Pettijohn's truck, and approximately 50 to 60 gallons remaining in Mr. Daniels' truck if one uses Mr. Daniels' factor of 73 minutes to multiply times that average application per minute rate. Thus, the approximate amount of product remaining in the tanks of both trucks being unrefuted, it is thus established that Mr. Daniels' figure of 73 minutes as the application time is most nearly correct. While the pre-treatment application was being performed, Investigator Owens was parked at a nearby parking area observing the application procedure and timing it with a stopwatch. Mr. Owens determined that Mr. Daniels had pumped for 45 minutes and 30 seconds and Mr. Pettijohn pumped for 45 minutes. Using Mr. Owens' figure of seven gallons per minute for Mr. Pettijohn's truck and five gallons per minute for Mr. Daniels' truck (the lowest pumping rates) for the entire pumping operation (which for the reasons found above is not accurate), Mr. Owens came up with an approximate application volume for Mr. Daniels' truck of 228 gallons and approximately 315 gallons for Mr. Pettijohn's truck. This figure is not realistic when one considers the amount of product left in the tanks of the two trucks at the end of the first application operation. There certainly was not an excess of 250 gallons of product left in the 500-gallon tank of Mr. Daniels' truck and 285 gallons of product left in the tank of Mr. Pettijohn's truck at the end of that first pumping operation on or before 9:00 a.m., on October 16, 2001. It cannot be determined from the testimony and evidence why there is such a great disparity in the time period Mr. Owens postulated for the treatment operation he observed, versus the most accurate 73-minute period established from Mr. Daniels' testimony. After confirming that the Respondents had completed their application effort, Mr. Owens conducted an inspection with regard to both trucks, obtaining information, and filling out necessary paperwork. Mr. Owens then took a sample from Mr. Daniels' truck only when he completed the calibrations of the trucks. That calibration, as found above, noted an application rate of five gallons per minute for Mr. Daniels' truck at a point when there was only approximately 50 gallons of product left in the 500-gallon tank to feed the gravity-supplied pump on Mr. Daniels' truck. Mr. Owens took a sample of the pesticide from the hose-end of the pump on Mr. Daniels' truck and placed it in a 32-ounce jar covered with a lid. The jar was not pre-labeled with a sample number. Mr. Owens taped the lid of the jar, and initialed it, so that the tape seal could not be broken without disturbing his initials and put the jar in the trunk of his car in an ice chest with ice. As a matter of practice, Mr. Owens does not offer a duplicate sample to an operator unless he asked for one and he did not ask Mr. Daniels to sign the tape on the jar. Mr. Owens did not take a chemical sample from Mr. Pettijohn's truck and there is no evidence as to what concentration of pesticide was in the tank on Mr. Pettijohn's truck. In the two pesticide applications on the morning of October 16, 2001, Mr. Pettijohn's truck pumped a total of 600 gallons of product on the site. It is not possible to make a factual determination as to the chemical concentration of the volume of product in Mr. Pettijohn's truck. The water used to mix the chemical for application at the job site was obtained from the water plant in Panama City. It had been, at some point, chemically treated with chlorine. There is no evidence as to any chlorine content in the water, which is chemically treated with chlorine, at least in the potable water stage and possibly in the waste water treatment stage. The sample was collected, as noted above, on October 16, 2001, but was not delivered to the laboratory to be analyzed as to the pesticide concentration until October 26, 2001. There is no indication on the laboratory report of the actual date of processing by the lab, but the final report was issued on November 14, 2001. There was at least a lapse of ten days from collection to analyzation by the laboratory. Testimony was presented concerning a study done by a Clemson University scientist which indicated that chlorine in municipal tap water was enough to degrade pesticides like that involved in this case by a factor of 32 percent in three hours. It has not been established that that occurred here, although logically some chlorine content may have been in the water that was used to mix the chemical. It is also well-known in the pesticide industry that an appropriate reaction and safeguard for a chemical spill of Chlorpyrofos is the application of bleach or chlorine to neutralize or degrade the chemical. It is not clear whether the deficient concentration pumped from the Daniels'-operated truck resulted from only chlorine content in the mix water or by the lapse of time caused by mixing the chemical the evening before it was to be used the following morning (in the interest of arriving at the job site early that morning per the instructions of the contractor). It may have been simply operator error in the proportions of water to chemical which were mixed when the tanks were filled or a combination of these three factors. Moreover, it cannot be determined precisely what concentration was actually deposited on the surface at the job site because Mr. Pettijohn's truck pumped approximately 600 gallons of total volume on the site in two applications and Mr. Daniels' truck pumped approximately 438 to 450 gallons in the first application and approximately 220 gallons in the second application, and the concentration of the chemicals pumped from Mr. Pettijohn's truck is unknown in so far as the evidential record in the case is concerned. Thus, it cannot be definitively determined what concentration of chemical actually was deposited on the surface of the job site. In any event, after Mr. Owens had calibrated the pump on Mr. Daniels' truck and taken his sample, both Mr. Daniels and Mr. Pettijohn rolled up their hoses, got in their trucks, and left the job site. After they left the job site, Mr. Owens notified the builder that the pre-treatment had been inadequate in terms of the volume of pesticide applied and so the builder requested that Mr. Daniels and Mr. Pettijohn return and apply more chemical. They arrived at the job site some 15 to 20 minutes after they had initially left and began spraying the additional chemical in the second application that morning. When Mr. Daniels and Mr. Pettijohn returned to the site, Mr. Daniels told Mr. Owens that he disagreed with Mr. Owens' volume calculations. In any event, Mr. Owens directed both Mr. Daniels and Mr. Pettijohn to pump additional volume onto the site. Thus, at Mr. Owens' direction, they pumped the volumes remaining in their trucks onto the site (with the exception of approximately 30 gallons, which was finally remaining in Mr. Daniels' truck), for a total of approximately 1,280 to 1,300 gallons being pumped on the job site. Thus, in light of the above calculations and findings, the site actually received approximately 280 to 300 gallons more than the prescribed labeled rate.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered assessing a fine against Respondent Stephen W. Daniels in the amount of $350.00, and it is further recommended that the Administrative Complaint as to Respondents Earl G. Pettijohn and Environmental Security of Panama City be dismissed. DONE AND ENTERED this 3rd day of January, 2003, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 3rd day of January, 2003. COPIES FURNISHED: Robert O. Beasley, Esquire Litvak & Beasley, LLP 220 West Garden Street, Suite 205 Post Office Box 13503 Pensacola, Florida 32591-3503 Jack W. Crooks, Esquire Department of Agriculture and Consumer Services 407 South Calhoun Street Room 520, Mayo Building Tallahassee, Florida 32399-0800 Honorable Charles H. Bronson Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Brenda D. Hyatt, Bureau Chief Bureau of License and Bond Department of Agriculture and Consumer Services 407 South Calhoun Street Mail Stop 38 Tallahassee, Florida 32399-0800
Findings Of Fact At all times material hereto, Respondent has been a certified general contractor in the state of Florida, having been issued license number CG C027718. At all times material hereto, Respondent has been the qualifying agent for Classic Design Builders. William R. DeFreitas describes himself as a broker of building materials for third world countries. His wife is also employed in that same business. They had their office building constructed for them. When they subsequently determined to add an addition to their residence, they solicited bids from that contractor and from two other persons. Aaron Ware, who held himself out to be an architect and the president of a company known as L. A. Designs, Inc., was one of the persons from whom the DeFreitases solicited a bid. He submitted a bid dated April 26, 1990, and a draw schedule on May 3, 1990. The extent of the work to be performed was finalized on June 6, 1990, when Mr. DeFreitas initialed the changes to the initial bid. The construction project contemplated under that contract was the addition of a family room, a laundry room, a shower off the master bath, and a small bath at the front of the house. The June 6, 1990, contract also called for replacement of the garage door and "painting of some interior doors." The total contract price was $50,000. While Ware was negotiating with the DeFreitases, he was also discussing with Respondent entering into a joint venture agreement between Classic Design Builders and L.A. Designs for the DeFreitas construction project. Their verbal agreement was memorialized in a written agreement dated June 18, 1990. Thereafter, Respondent did not advise Petitioner that he had entered into a joint venture agreement and, similarly, did not qualify the joint venture as a separate business entity for licensure purposes. Pursuant to instructions from Ware, Mr. DeFreitas directed a letter to the City of Boca Raton advising the building department that he had entered into a contract to construct an addition to his residence with "L.A. Designs/ Classic Designs." On July 2, 1990, Respondent on behalf of Classic Design Builders obtained a building permit from the City of Boca Raton for the DeFreitas addition. On July 6, Ware began work on the addition. Ware worked on the project from July of 1990 through the end of that year. During the course of that construction, the DeFreitases made many changes in the scope of the work contemplated by the original contract, which increased the contract price to above $56,000. Additional work was performed, which was not covered by the contract and which the DeFreitases agreed to pay for directly to the supplier or subcontractor. On February 4, 1991, the DeFreitases directed a letter to Ware advising him that the construction was close to completion and that it was time for them to "settle our account" as to the extras for which the DeFreitases had not paid. In that letter, the DeFreitases also offered to produce the invoices for materials and labor that they had agreed to pay to finish the job. In July of 1991 the DeFreitases complained to the City of Boca Raton. Respondent, as the holder of the building permit, was contacted and advised that the DeFreitases were alleging that their contractor had failed to complete the project. Respondent immediately went to the DeFreitases' business, met with Mr. DeFreitas, inspected the home, and prepared a punch list of items to be completed, many of which were not covered by the construction contract but were done by Respondent in an attempt to achieve customer satisfaction. Respondent completed the project, obtained the final inspections, and presented the DeFreitases with a warranty and release of lien. The DeFreitases refused to accept the warranty or release of lien. As a result of the DeFreitases' complaints, Respondent and Ware were charged with violating local ordinances. In those prosecutions, as well as in this case, the DeFreitases have attempted to obtain $11,000 from Respondent as "restitution" for moneys they have had to spend or will have to spend to complete the work envisioned by their contract with L.A. Designs, Inc. Most of the items listed as components of the claim for restitution are not even part of the construction contract. Of those few items covered by the contract, the money claimed is not. For example, the contract allocated $500 to be expended on the bathroom cabinets. The DeFreitases spent $1,670 on the cabinets and, surprisingly, are claiming that Respondent should pay them the difference because they spent more than their contractual allowance. Finally, they have claimed the cost of replacing inferior building materials provided by them, such as wood French doors. The DeFreitases paid to Ware approximately $4,000 less than they had promised to pay him as a result of the work completed by L.A. Designs. Rather than suffering a loss, the DeFreitases have actually received a windfall. At no time material hereto was either Ware or L.A. Designs licensed in the state of Florida as a contractor, architect, professional engineer, or landscape architect. Respondent knew that Ware and L.A. Designs were not licensed. At the time that Classic Design Builders and L.A. Designs entered into their written joint venture agreement and at all other times material hereto, Respondent was not an officer, director, stockholder, or employee of L.A. Designs, and Ware was not an officer, director, stockholder, or employee of Classic Design Builders. When Ware approached Respondent about entering into a joint venture for the DeFreitas project, Respondent had already suffered a minor heart attack and two mini-strokes. The joint venture agreement itself recites Respondent's need to limit his activities due to health reasons. In July of 1990 Respondent additionally tore an Achilles tendon in his left leg and was in a cast until Christmas of 1990. Due to his immobility during that time period, Respondent delegated all of his construction jobs to others, understanding that he was ultimately responsible for those projects since he was the contractor of record on them. In the same way, he delegated to Ware the day-to-day responsibility for the DeFreitas project. Other than "pulling the permit" for the DeFreitas project, Respondent's only other involvement in the job until the time that he was contacted as a result of the DeFreitases' complaints to the City of Boca Raton in July of 1991, was right after the job was commenced regarding some problem concerning the lot line. He was able to resolve that problem with the City of Boca Raton by telephone. The DeFreitases did not know that Respondent was the contractor for their construction project and ultimately responsible for that work. Although Ware had advised them that a "buddy" would somehow be involved in the construction, and although Mr. DeFreitas referred to both L.A. Design and Classic Design Builders in his letter to the City of Boca Raton authorizing a building permit to be issued, the evidence is clear that had the DeFreitases known of Respondent's responsibility, they would have been insisting that he perform services months earlier. In 1987 Respondent was charged with abandoning a construction project and/or failing to timely complete it. Respondent entered into a settlement stipulation admitting that fact and agreeing to pay a fine to the Construction Industry Licensing Board in the amount of $1,000. A Final Order Approving Settlement Stipulation was entered on June 8, 1988. Respondent received no money from the DeFreitases or from Ware for the work Respondent performed on the DeFreitas addition. Respondent's out-of-pocket expenses for labor and materials on the DeFreitas residence between July of 1991 and June of 1992 total $1,747.50.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered: Finding Respondent guilty of Counts I, II and VII of the Administrative Complaint filed against him; Finding Respondent not guilty of Counts III, IV, and V of the Administrative Complaint filed against him; Requiring Respondent to pay an administrative fine in the amount of $1,000; and Placing Respondent's license number CG C027718 on probation for a period of two years. DONE and ENTERED this 16th day of November, 1994, at Tallahassee, 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 16th day of November, 1994. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact numbered 2-10, 16-20, and 22 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 11-15, 21, and 24 have been rejected as not being supported by the weight of the evidence in this cause. Petitioner's proposed finding of fact numbered 1 has been rejected as not constituting a finding of fact but rather as constituting a conclusion of law. Petitioner's proposed finding of fact numbered 23 has been rejected as being subordinate. COPIES FURNISHED: John David Ashburn, Esquire Department of Business and Professional Regulation 3932 RCA Boulevard, Suite 3210 Palm Beach Gardens, Florida 33410 Diane Perera, Esquire Department of Business and Professional Regulation 401 N.W. 2nd Avenue, Suite N-607 Miami, Florida 33128 Peter Mineo, Jr., Esquire 8220 State Road 84 Fort Lauderdale, Florida 33324 Copies furnished, continued Richard Hickok, Executive Director Construction Industry Licensing Board 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Jack McRay, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue for consideration in this hearing is whether Respondent’s license as a residential contractor in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, Petitioner, Construction Industry Licensing Board, was the state agency in Florida responsible for the licensing of contractors and the regulation of the construction industry in this state. Respondent, Kenneth Ronald Boaz, was a residential contractor holding license CR C035360. He was the qualifying agent for Revival Remodelers, and was doing business under that name. On or about August 23, 1996, Respondent, doing business as Revival Remodelers, entered into a contract with Vicky L. Smith to construct a 20 by 24-foot room addition to her residence located at 13281 Clay Avenue in Largo, Florida. The contract price for the addition was listed as $25,000, plus permit fees, and Respondent accepted a partial payment of $21,072.60 from Ms. Smith. Respondent was instrumental in helping Ms. Smith get the financing for the project. On September 5, 1996, Respondent obtained permit No. 146699 from the Pinellas County Building Department. Before starting construction on the room, Respondent arranged for several large trees to be removed from the area of Ms. Smith’s back yard near where the rear wall of the addition would be located. When the trees were removed, the holes left by their removal were to be filled with dirt. Though Respondent arranged for the trees to be moved, Ms. Smith paid an additional $680.00 to the sub-contractor who removed them. Respondent was aware that the trees had been removed and the holes filled with dirt. Respondent began work shortly after the removal of the trees and the filling of the holes. Ms. Smith claims she did not see anyone do any compacting of the soil where the trees had been removed, but the footers and slab were poured and finished. Whereas the Pinellas County Building Code does not require a soil compaction test, it provides that foundations shall be built on undisturbed soil of properly compacted fill. At Ms. Smith’s request, construction slowed down but continued while she tried to find additional financing to complete the work. Finally, Respondent and Ms. Smith agreed the work would cease until she could obtain the amount remaining due under the project. At this point, Ms. Smith owed Respondent approximately $4,000. Ms. Smith claims that even before this, however, she noticed cracking in the concrete slab. This worried her because she wanted to lay tile as flooring. But when she mentioned this to the Respondent, he told her not to worry as he would take care of it. He did not do so, however. Because of her concern, in the Spring of 1999, Ms. Smith called the Building Department in Clearwater and the building inspector from the county came out to inspect the work. The inspector issued a red tag for the work, signifying it was unacceptable. Ms. Smith also contacted other contractors to see if tile could be successfully laid on that slab. Each has said it could not. No other contractor with whom she has spoken is willing to take over the job without additional soil compaction. One contractor gave her an estimate of $47,500 to re-build the room. Another contractor quoted a price of $44,800, but both include items not on the contract she had with Respondent. Respondent last worked on this job in December 1996. Since that time, Ms. Smith has talked with him about the quality of his work and has had two mediation sessions with him without any success. The room has not been completed because there is substantial question whether the existing work done by Respondent can be successfully completed. The defects in the construction are manifested by the following: There is a separation of the additional wall from the existing house wall of from between 1/2 to 1 inch. The roof of the addition leaks and the insulation is moldy and falling. There are cracks all over the additional floor and outside patio slab. The corners of the addition are dropping. Cinder blocks in the addition walls are cracking The lintel is broken in three places. Ms. Smith has done no more construction on the addition because she filed her complaint with the Department and is waiting to see what is done. However, she has painted and sealed the exterior walls. The leak is not through the wall cracks but through the roof. After her complaint, Respondent had someone from PSI, an engineering consulting firm, come out and perform a soils compaction test. As a result of that test, several different formulae were offered to fix the problem, but Ms. Smith was not satisfied, considering it no more than a "cover-up." Finally, Respondent offered her a structural solution to the problem that would remove the red tag. Ms. Smith would put the balance owed, plus some additional money into an escrow account, whereupon Respondent would fix the problem. However, because Ms. Smith no longer has any confidence in the Respondent, she does not want him to do any of the work. She contends that Respondent never agreed to fix the problem if she would put what she stilled owed him in escrow - only if she would add to it. Kevin McGinley is a licensed general contractor who in 1997 was asked by Ms. Smith to give her an estimate on making repairs to and completing the addition started by Respondent. His examination of the site showed severe settling on the addition. The work appeared to have been built on an uncompacted pad which caused settling, and McGinley did not want to be responsible for the work. Therefore, he gave Ms. Smith an estimate to tear down what had been done by Respondent and to rebuild from scratch. His work would include an inspection by a soils engineer to see if the existing soil would support the project. While cracks in a slab can be repaired, in the instant case, without knowing what caused the problem, he would not want to try to fix it. Wendell G. Wardell, a building inspector for Pinellas County, first inspected this project on September 16, 1996, when he went out for the slab inspection. There were several problems with the site, none of which related to the instant problem, and all of which were cleared up by November 21, 1996. He was again sent to the site somewhat later based upon a complaint by the owner. On this visit he saw cracking and settlement of the slab and he issued the red tag. Neither Respondent nor the owner called for a re-inspection that would be required before work can resume because work was not resumed. Mr. Wardell noted that a compaction test was not required by the county before the permit was issued in this case, though sometime it is required. Mr. Yaxley, a consulting engineer, visited the site in April 1998. Ms. Smith was present at the time. He observed the cracking in the floors and walls and the mildew in the roof. The most obvious defects were the 1/4-inch cracks in the floors and walls of the addition. After studying the site and the results from the two other laboratories that tested the site, he concluded that the removal of the trees caused the holes several feet deep that were then filled with 20 square yards of dirt. This fill dirt should have been compacted in a reasonable manner, and it was not. Yaxley reasoned that Respondent knew of the holes and the placement of the fill dirt and he should have done tests to ensure the compacting was done properly. The use of a bob-cat, a front-end loader, as used here, did not provide the appropriate compaction. However, removal of the trees was a clue that a closer look at the soil was required. Yaxley examined the laboratory work done on the property and determined there are two voids left under the soil from the removal of the trees. One is about 18 inches down and the other at about three to four feet down. Compaction may or may not cure this. Settling may continue for a long time. While one void could have been an unknown factor, the existence of the three trees was a known factor, and proper caution and judgment would have called for further inquiry to determine the status of the sub-surface. Respondent claims he had no knowledge of any voids in the soil. He compacted with water and soil in layers but this compacting was done under the slab area, not where the holes were filled. He used a concrete contractor to do this work and has always found it to be consistent with acceptable standards before. There are several other defects in Respondent’s performance, according to Yaxley. The core of the slab shows no reinforcing of the concrete either by welded steel or fabric fiber mixed in with the concrete; the roof deck is mildewed; there are cracks in the slab and between the main building and the addition; there are step cracks in both the north and east wall of the addition; and the bracing and attachment of the east gable above the concrete block is not adequate. Mr. Yaxley went back to revisit the property on October 5, 1998, and found that as of that time, no corrective work had been done. The problem with the property can be fixed with injections of grout and the installation of pilings. If that were done properly, Ms. Smith would be able to safely install the tile flooring she wants. However, if nothing is done, the cracks will remain and probably get worse. Respondent contends that the removal of the trees did not create holes that required fill. He asserts that the fill dirt brought in was procured at the request of the Building Department that wanted it to construct another swale on the property. Mr. Boaz admits to not using reinforcing steel in the concrete slab he poured. Instead, he ordered the fiber- reinforced concrete at a thickness of more than six inches, which exceeds the code requirement of four inches. He did not know, until he heard Mr. Yaxley’s testimony, that the concrete poured by his sub-contractor was not fiber-fill.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Construction Industry Licensing Board issue a final order in this case finding Respondent guilty of negligence resulting in danger to property, and misconduct in contracting, and imposing an administrative fine of $5,500. It is also recommended that Respondent be ordered to pay restitution to Ms. Vicki Smith in the amount of $21,072.60 or, in the alternative, within 90 days from the date of the final order, undertake such remedial construction activity as is necessary to remove the red tag issued by the Pinellas County Building Department regarding this project. DONE AND ENTERED this 25th day of May, 2000, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of May, 2000. COPIES FURNISHED: Robert A. Crabill, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32388-2202 Warren Knaust, Esquire Knaust & Valente, P.A. 2730 Central Avenue St. Petersburg, Florida 33712 Barbara D. Auger, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Rodney Hurst, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467
Findings Of Fact The Petitioner is comprised of residents of the residential neighborhood in close proximity to the construction and demolition debris disposal site or pit maintained by Whitrock Associates, Inc.. Its President is Jim Whitfield, a party Respondent to the subject Consent Order. The Petitioner complains that illegal dumping is occurring at the disposal site, that there is no guard maintained at the gate, and that the gate is not locked when no one is present. It complains that DEP does not inspect the facility enough by only inspecting it once per year and that the facility should be closed down. Its chief objections are that refuse is being dumped in what it considers to be a stocked fishing lake. The "lake" is a borrow pit partially filled with water, which resulted when excavation of the dirt in the pit penetrated below the ground water table. The chief objections raised by the Petitioner amount to the nuisance "eye-sore" nature of the facility and the concomitant deleterious effect its presence and activity has arguably had on property values and the Petitioner's members' ability to re-sell homes. The Petitioner's standing is not contested. The Respondent is an agency of the State of Florida charged with regulating landfills, construction and demolition debris disposal sites and other such waste sites, within the purview of Section 403.161, Florida Statutes, concerning pollution discharge and, more specifically, rules contained in Chapter 62-701, Florida Administrative Code, concerning solid waste and similar materials and disposal facilities. DEP is a party Respondent to this proceeding because the Consent Order it has entered into with the owner and operator of the site, Whitrock Associates, Inc., has been challenged, within the point of entry period afforded by that Consent Order, by the above-named Petitioner. Whitrock Associates, Inc. maintains a construction and demolition debris disposal site, in the form of an excavated pit, located between Carmel Drive and Vicky Leigh Road in Fort Walton Beach, Okaloosa County, Florida. An inspection of the facility by DEP personnel on October 13, 1994 revealed the disposal of organic debris in surface water at the site, the disposal of which is illegal in ground or surface waters. It also came to DEP's attention at this time that the facility was operating with an expired general permit. Consequently, an enforcement action was initiated against the owner and operator of the facility. After extensive negotiations, the subject Consent Order resulted, which has been challenged by the Petitioner. The essential provisions of the Consent Order would require that the Respondent to it, meaning Whitrock Associates, Inc., cease disposal of construction and demolition debris at the facility, which is not "clean debris". "Clean debris" is inert debris, such as brick, glass, ceramics, and uncontaminated concrete, including embedded pipe or steel. The Consent Order provides that within 60 days of its effective date, all such non-conforming construction and demolition debris shall be removed from the water at the site and that the Respondent, Whitrock Associates, Inc., shall submit a notification of intent to use a general permit for the construction and demolition debris disposal facility to DEP. Failure to proceed to obtain the general permit would result in closure of the facility, pursuant to Rule 62-701.803(10), Florida Administrative Code. The Consent Order also provides that a $2,300.00 civil penalty and cost payment shall be made to DEP in full settlement of the matters addressed in the Consent Order. That payment shall be made within 30 days of the effective date of the Consent Order. The Consent Order then enunciates, in great detail, the manner in which future penalties will be assessed for any violation of the Consent Order and related time limits, as well as payment methods and circumstances. It also provides a means for handling of delays in compliance with the Consent Order. It provides the means for enforcement of the terms of the Consent Order. Billy Ross Mitchell is an Environmental Specialist with 14 years of experience with DEP. He works in the solid waste section. Among his other duties, he inspects solid waste disposal facilities. He has a degree in environmental resource management. Mr. Mitchell established that this is the type of facility, where, because of the disposal of inert construction debris, which does not pose a significant pollution threat, a so-called "general permit" is sufficient authorization for operation of the facility. The facility was operating with an expired general permit at the time of Mr. Mitchell's inspection, but a new general permit has since been authorized. Mr. Mitchell performed the inspection of the facility, at which he observed illegal construction debris being placed in the water at the site. DEP's rules allow inert material, such as brick, glass, ceramics, and so forth to be placed in water at the site, which, in essence, is a borrow pit. The rules forbid organic materials, such as shingles, lumber and other similar materials, which can sometimes be constituted of pollutant substances, from being placed in the surface or ground water. As shown by the Respondent's Exhibit 3, a letter from Mr. Cooley, a District Director of DEP, to Mr. Lawrence Sidel of the Petitioner, uncontaminated dirt and "clean debris", such as chunks of concrete and the like, are not considered under Florida law to be solid waste. DEP takes the position that there is no prohibition against a person using clean fill, without a required permit, to fill land or bodies of water that are not "state jurisdictional water." The water body on the Whitrock property is not a state jurisdictional lake or water body. It is an old borrow pit, wholly contained on the Whitrock property. State law allows its owners to fill it with dirt or clean fill. Whitrock is not allowed to use any material classified as "solid waste" in filling the pit, hence the violation cited to that firm in the particular mentioned above, concerning the non-inert construction debris that was placed in the water. The Respondent's Exhibit 4 is an engineer's report prepared for the Whitrock facility involving the "notification of proposed use of a general permit" process for the operation of the construction and demolition debris disposal facility. This is the general permit notification process and general permit referenced in the Consent Order. 1/ The site has been used for many years as a borrow pit for dirt fill material or sand, as well as a disposal site for construction debris. In the general permit achievement process, the owner proposes to grade the site so that the final grade is the original, natural grade, with a slight two percent top slope to promote runoff to surrounding retention swales which will be installed at the site. The soil borings reflect that at all depths tested, sand is the underlying soil at the site. The borrow pit has been excavated below the natural water table, which has resulted in ponding of water on the floor of the borrow pit. This is proposed to be filled with "clean" debris, as it is received on site. Clean debris is solid waste which is virtually inert and which poses no pollution threat to ground or surface waters, is not a fire hazard, and is likely to retain its physical and chemical structure under expected conditions of disposal or use. Examples of it are as depicted in paragraphs six and seven, supra. Clean debris disposal is thus proposed within the pit bottom to an elevation of one foot above water table, above which construction and demolition debris will be disposed. The owner of the facility will be the person responsible for operation, maintenance, and closure of the proposed disposal facility. Procedures will be followed to control the types of waste received, the unloading, compaction, application of cover, final cover, and control of storm water at the site. The existing perimeter fence will remain with a lockable gate at the entrance to the site. In accordance with Rule 62-701.803(8), Florida Administrative Code, at least one spotter/operator will be on duty when the site is operating to inspect incoming waste. If prohibited waste is discovered, it will be separated from the waste stream and placed in appropriate containers for disposal at a properly-permitted facility. A commercial dumpster is located on site for unpermitted waste and is regularly emptied by a sanitation contractor. This practice is proposed to continue with the issuance of the general permit for the construction and demolition debris facility. Construction and demolition debris filling operations will proceed from the northwest corner of the site and progress in an easterly direction along the north property fence line. Due to the depth of the existing cut, approximately 25 feet, it will take approximately three separate "lifts" of waste and compacted material in order to reach a finished grade elevation, to match the original grade of the surrounding terrain. Additional soils required for intermediate cover material and final cover will be obtained off site from other sources. Filling operations should allow for approximately a 100-foot wide working face to aide in keeping a manageable disposal area. A dozer and front-end loader will be available on the site to compact waste material into the "working face." Each lift will be six to eight feet thick. Closure of each portion of the facility will occur as waste compaction approaches original grade. Final cover, seeding or planting of vegetated cover will be placed during stages, within 180 days after reaching final-design waste elevations. The final cover will consist of a 24-inch thick soil layer, with the top six inches being capable of supporting vegetation. The site shall be graded to eliminate ponding, while minimizing erosion. Upon final cover placement across the site, the owner will notify DEP within 30 days. Storm water will be controlled via retention swales surrounding the site. The swales are sized to accommodate one-half inch volume across the site. These specifications are those proposed to be installed and operated at the site in return for the grant of the general permit and are necessary elements of the negotiations and ultimate settlement agreement reached embodied in the Consent Order. Thus, they are required by the Consent Order, should it become final agency action. Chief among the Petitioner's concerns is the matter of the alleged non-compliance of the disposal site and facility with zoning for that area and land-use ordinances, as well as concerns regarding property values, tax assessments and the inherent difficulty in re-sale of homes caused by the presence and operation of the facility. 2/ The Petitioner, whose members, among others, are a number of adjoining landowners, some of whom testified, also complains of pollution of the water body involved, the standing water in the bottom of the borrow pit. Witness Mitchell, as well as Respondent's Exhibit 4, concerning the conditions under which the general permit will be obtained and operated (conditions also repeated in the Consent Order), established that the deposition of only construction and demolition debris and clean fill in the water will pose no pollution which violates Section 403.161, Florida Statutes, and attendant rules. The terms in the Consent Order, which require the general permit and the conditions referenced in the Respondent's Exhibit 4, concerning the general permit, will result in minimal hazards of pollutants entering surface or ground waters, or in polluted air or water emanating from the site in violation of regulatory strictures, assuming frequent inspections by DEP are made to insure compliance. Thus, it has been established that the proposed Consent Order is reasonable under the circumstances. 3/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Consent Order issued in the case of State of Florida, Department of Environmental Protection v. Whitrock Associates, Inc. be ratified and adopted as final agency action, in accordance with Chapter 120, Florida Statutes. DONE AND ENTERED this 16th day of January, 1996, in Tallahassee, Florida. P. MICHAEL RUFF, 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 22nd day of January, 1996.
The Issue The issue in this matter is whether Petitioner's application for a Type-A site plan should be approved.
Findings Of Fact Petitioner, Dan Gilbertson, has owned and operated Potbelly's restaurant, a student-oriented eating/drinking establishment, located at 459 West College Avenue, since 1994. Petitioner also operates a similar establishment known as The Painted Lady located directly adjacent and to the east of Potbelly's. Potbelly's and The Painted Lady are within the Institutional, Cultural, and University Transitional (DI) Zoning District. Surrounding uses to Petitioner's property include a Florida State University parking lot across Macomb Street to the west of the site, a privately owned parking lot across College Avenue to the north, a fraternity house to the east, and an apartment complex to the south. The existing Potbelly's and Painted Lady structures were constructed prior to the adoption of a 25-foot minimum building setback from Macomb Street codified in Section 10.3.O.2.d.3, Tallahassee Code. The Potbelly's building is partially within the 25-foot setback and is considered a pre- existing, nonconforming structure. Potbelly's is licensed to operate a full service kitchen while The Painted Lady is authorized to serve previously prepared food. Both parties agree that Potbelly's and The Painted Lady are licensed to serve alcohol within the premises identified in Respondent's supplemental exhibit. Respondent, The Tallahassee-Leon Planning Commission, is the legal entity responsible for reviewing and approving or denying applications for site plans. In September 2002, Petitioner submitted a site-plan application seeking to add a deck, handicap ramp, and bathrooms in the southwest area of the Potbelly's property and a deck behind The Painted Lady. The site plan application for the additional deck, restrooms, and handicap ramp behind Potbelly's seeks a deviation from the 25-foot setback requirement. In its application, Petitioner included architectural drawings of the premises but did not attach engineering drawings. Petitioner also enclosed a copy of a previously issued order dated June 14, 2001, from the Tallahassee-Leon County Board of Adjustment and Appeals granting a variance to the setback requirement for an existing deck on the west side of Potbelly's. Pursuant to Section 23.1, Tallahassee Code, Respondent may grant the deviation request to development standards only if it is consistent with the comprehensive plan and creates no adverse impact on the general health, safety, and welfare of the public. Petitioner's site plan application addresses less than 60,000 square feet and is subject to Type-A site plan review. Accordingly, Petitioner's application was reviewed by City staff including members from the Growth Management Department, Planning Department, Fire Department, Police Department, Utilities Department, and Public Works Department including Solid Waste and Traffic Engineering. Upon review, in October 2002, the Department advised Petitioner that his application had been denied. Petitioner timely appealed the decision. Code Deviation Criteria Pursuant to Section 23.3, Tallahassee Code, a request for deviation from the existing development standards is generally not favored and may only be granted upon a showing by the applicant that seven specific criteria have been met by a preponderance of the evidence. First, the applicant must demonstrate that the deviation will not be detrimental to the public good or to the surrounding properties. The evidence in this case demonstrated that, although the Tallahassee Police Department (TPD) reported that it received approximately 17 complaints over a two-year period for noise, physical disturbances, underage alcohol consumption, and other offenses, approximately 1 every 50 days, the frequency and severity of complaints has significantly declined. Further, Petitioner employs significant private security to curtail adverse incidents and has routinely attempted to hire off-duty TPD officers, but to no avail. There has been inadequate showing that a reasonable increase in the size and occupancy of Petitioner's premises will be detrimental to the public good or to the surrounding properties. Second, Petitioner must demonstrate that the requested deviation is consistent with the intent and purpose of the Zoning Code and the Comprehensive Plan. Respondent admits that "the intent of the DI zoning district is to provide a transition between downtown and the two universities, and to encourage pedestrian friendly or pedestrian oriented activities and development." Respondent further acknowledges that the intent of the 25-foot setback from Macomb Street and the 35-foot setback from College Avenue is to provide a transition for pedestrian activities along the roadways, a reduced scale of buildings along the pedestrian accesses and room for landscaping for enhancement of pedestrian activities. The evidence demonstrated that Petitioner's adjacent restaurant/bars primarily target and attract college students in the area and are pedestrian friendly. While the structures preceded the setback requirements, Petitioner has comported with the intent of the Tallahassee Code and Comprehensive Plan by enhancing vehicular and pedestrian access to the premises and improving their visual aesthetics. Third, Petitioner must demonstrate that the requested deviation is the minimum deviation that will make possible the reasonable use of the land, building, or structure. While the restaurant/bars maintain consistent business, additional patrons and/or a diversified, multi-use eating/drinking establishment, given the area, is a reasonable use of the land. Petitioner's deviation request is the minimum deviation necessary to garner the additional and diversified business. Fourth, Petitioner must demonstrate that strict application of the zoning requirements would constitute a substantial hardship that is not self-created or imposed. Strict application and unreasonable adherence to the 25-foot setback requirement, given the minimal external expansion requested and the fact that the existing structures currently extend into the setback, create a substantial and unnecessary hardship upon Petitioner's expanding business. Fifth, Petitioner must demonstrate whether there are any exceptional topographic, soil, or other environmental conditions unique to the property. The parties stipulate that there are no such environmental features on the site and the criterion is not relevant to Petitioner's application. Sixth, Petitioner must demonstrate that the requested deviation would provide a creative or innovative design alternative to substantive standards and criteria. Petitioner has shown that he intends to moderately expand the student- oriented, pedestrian friendly, eating/drinking establishment in the college campus area utilizing a consistent, creative, and attractive design alternative to the setback requirement. Finally, Petitioner must demonstrate that the impacts associated with the deviation will be adequately mitigated through alternative measures. Any impacts associated with the deviation are de minimus, however, Petitioner has agreed to adequately mitigate such impacts. First, Petitioner has constructed noise insulators on the south fence of the property to filter out excess sound to the apartment dwellers. Petitioner has also agreed to provide additional security when necessary and plans to significantly improve the visual aesthetics on the southwest side of the building. Respondent argues that Section 14.6 of the Zoning Code requires one loading berth for any site up to 8,000 square feet receiving goods and merchandise via motorized vehicle. The evidence demonstrates that Petitioner's property contains two parking spaces, identified as a loading berth, located directly in front of Potbelly's. Respondent, however, persuasively argues that the existing dumpster on the Potbelly's site does not comply with the City's Solid Waste requirements. Solid Waste and the Tallahassee Code require each site to provide sufficient space for a dump truck to enter the site, collect the refuse, and exit the site without backing into traffic. Although Waste Management empties the refuse at approximately 3:00 a.m., the current location of the dumpster presents a significant safety hazard which Petitioner must eliminate. Respondent argues that it cannot determine whether Petitioner's proposal meets the Floor Area Ratio requirements for the DI zoning district. The evidence presented during the hearing demonstrates that Petitioner's proposal satisfies the requirements. While the Tallahassee-Leon County Board of Adjustments and Appeals of Petitioner's previous approval of the existing deck variance is interesting, it is not relevant to this case. The formal proceeding before the Administrative Law Judge was properly noticed in the Tallahassee Democrat on November 24, 2002.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Tallahassee-Leon County Planning Commission enter a final order approving Petitioner's Type-A site plan and requested deviation contingent upon Petitioner's safe and acceptable relocation of the dumpster. DONE AND ENTERED this 2nd day of May, 2003, in Tallahassee, Leon County, Florida. WILLIAM R. PFEIFFER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of May, 2003. COPIES FURNISHED: Sylvia Morell Alderman, Esquire Katz, Kutter, Haigler, Alderman, Bryant & Yon, P.A. Post Office Box 1877 Tallahassee, Florida 32302 Dan Gilbertson 459 West College Avenue Tallahassee, Florida 32301 Linda R. Hurst, Esquire City Attorney's Office 300 South Adams Street City Hall, Box A-5 Tallahassee, Florida 32301-1731 Jean Gregory, Clerk Tallahassee-Leon County Planning Commission City Hall 300 South Adams Street Tallahassee, Florida 32301-1731
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: l. At all times pertinent to this proceeding, the Department was the state agency responsible for receiving applications for, and the issuance of, general permits for the construction and operation of a construction and demolition debris disposal facility in the State of Florida. Petitioner Frank Strout, submitted an application for a General Permit for the construction and operation of a Construction and Demolition Debris Disposal Facility with the Department dated April 26, 1995, which was received by the Department on May 2, 1995. On May 16, 1995, the Department issued a Notice of Denial to Use a General Permit advising the Petitioner that his request for operation of a construction and demolition debris disposal facility did not qualify for a general permit based on the information submitted by Petitioner in his application dated April 26, 1995, and received by the Department on May 2, 1995. The property upon which the proposed construction and debris disposal facility was to be placed is located at 11163 Agnes Avenue, Southwest, Arcadia, DeSoto County, Florida, and is owned by Petitioner Frank Strout. This location is the same as the location of the construction and demolition debris facility owned by Petitioner that previously operated under a permit issued to Petitioner in April, 1990, which expired due to Petitioner's failure to timely file for an extension of that permit with the Department. However, the disposal area will not cover the entire area of the disposal area of the previous permitted facility. The Notice advised Petitioner that he had not provided the Department with supporting information demonstrating compliance with the construction demolition debris disposal requirements of Chapter 62-701, Florida Administrative Code, as follows: The prohibitions of Rule 62-701.300(2), Florida Administrative Code, have not been addressed. Documentation indicating that the site does not violate these prohibitions was not provided. The airport requirement of Rule 62- 701(12), Florida Administrative Code, was not addressed. Information indicating the location of airports within a 5 mile radius of the site was not provided. A site plan which meets the requirements of Rule 62-701.803(1)(a), Florida Administrative Code, was not submitted. A geotechnical investigation which meets the requirements of Rule 62-701.420, Florida Administrative Code, was not submitted as required by Rule 62-701.803(1)(b), Florida Administrative Code. A description of facility operations (operations plan) was not submitted as required by Rule 62-701.803(1)(c), Florida Administrative Code. A boundary survey was not submitted as required by Rule 62-701.803(1)(d), Florida Administrative Code. Closure plans and cross section details of the final cover which meets the requirements of Rule 62-701.320(7)(f), Florida Administrative Code, were not submitted as required by Rule 62- 701.803(1)(f), Florida Administrative Code. The Department has received a copy of a letter from Southwest Florida Water Management District (District) to the applicant, dated May 23, 1995, which indicates that the District is concerned about the proximity of the C&D debris to on- site wetlands. The letter from District, dated March 13, 1990, provided an exemption from surface water permitting requirements based on the District's understanding that the proposed operation would not change surface water drainage patterns, stormwater runoff quantities or quality. However, site inspections by the Department and District staff have indicated that surface water drainage patterns have been changed by the operation at the site. Therefore, a copy of a permit for stormwater control issued by the Department or the District shall be required pursuant to Rule 62-701.803(4), Florida Administrative Code. Information indicating the availability of equipment for the temporary storage of unacceptable wastes at the site, and segregation methods were not submitted as required by Rule 62-701.803(5), Florida Administrative Code. Compaction procedures and equipment were not described as required by Rule 62- 701.803(6), Florida Administrative Code. A description of access control methods and devices was not submitted as required by Rule 62-701,803(7), Florida Administrative Code. A description of waste inspection procedures was not submitted as required by Rule 62-701.803(8), Florida Administrative Code. The facility's operating hours were not provided to ensure compliance with Rule 62- 701.803(9), Florida Administrative Code. The closure plan submitted as required by Rule 62-701.803(10), Florida Administrative Code, is insufficient. Pursuant to Rule 62-4.070(5), Florida Administrative Code, the Department shall take into consideration a permit applicant's violation of any Department rules at any installation when determining whether the applicant has provided reasonable assurances that Department standards will be met. Reasonable assurance that Department standards will be met has not been provided. Pursuant to Rule 62-701.803(10), Florida Administrative Code, final cover and vegetation shall be established on each disposal unit within 180 days of final receipt of wastes for that unit. Since waste has not been disposed at the site since approximately March, 1993, and the area has not been closed, the requirements of Rule 62- 701.803(10), Florida Administrative Code, has not been met. There is pond on the Petitioner's property which is located to the north of both the existing and proposed disposal areas. The pond is located within 200 feet of the proposed disposal area. The pond is contained completely within the boundaries of the disposal site and on at least one occasion has discharged to surface waters. However, there is no evidence to show that there was at least a 25 year/24 hour storm event on the occasion when the pond discharged to surface waters. Petitioner has failed to furnish the Department with the necessary information for the Department to determine if the pond discharges from the site to surface waters in a 25 year/24 hour storm event. Likewise, Petitioner has failed to provide the Department with either a copy of a storm water permit or documentation that a storm water permit was not necessary Wetlands are located along the southern boundary of Petitioner's property upon which the proposed construction and debris disposal facility will be located. These wetlands are located within 200 feet of the proposed disposal area. Petitioner has offered to reconfigure the disposal area to meet the 200 feet setback. However, Petitioner has not submitted a site plan to demonstrate the manner in which compliance with the 200 feet setback would be achieved. There is a potable water well located on Petitioner's property upon which the proposed facility is to be located which is located within 500 feet of the proposed disposal area. The permit application proposes a maximum elevation of 84 feet for the disposal area with a 3:1 slope for the entire disposal area. Petitioner has not furnished the Department with the existing elevations within the proposed disposal area. Without these elevations the Petitioner cannot show how he would comply with the proposed maximum elevation while maintaining the required 3:1 slope. Likewise, without these elevations, the Department would be unable to determine if Petitioner is complying with the proposed maximum elevation while maintaining the required 3:1 slope. Petitioner has not provided the Department with a geotechnical investigation so as to allow the Department to determine if the site's subsurface features would adequately support the proposed disposal area. The evidence in the record shows that Petitioner has not addressed all of the Department's concerns set out in Finding of Fact 4 (a) through (o). However, based on the testimony of Petitioner and Robert Butera, the Department's witness, it appears that the Department would consider the concerns set out in Finding of Fact 4 (b), (e), (f), (k), and (m) to have been adequately addressed by Petitioner. Petitioner has failed to provide the Department with reasonable assurance that the construction or operation of the facility would be in accord with applicable laws or rules.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Protection enter a final order denying Petitioner's application for a permit for the construction and operation of a demolition and debris disposal facility. DONE and ENTERED this 19th day of January, 1996, at Tallahassee, Florida. WILLIAM R. CAVE, 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 19th day of January, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-3760 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the Petitioner and the Department in this case. Petitioner's Proposed Findings of Fact. Petitioner's proposed findings of fact are set out in three unnumbered paragraphs which shall be considered as proposed findings of fact 1 through 3. Proposed findings of fact 1-2 are not supported by evidence in the record. Adopted in substance as modified in Finding of Fact 14. Department's Proposed Findings of Fact. 1. Proposed findings of fact 1 through 12 are adopted in substance as modified in Findings of Fact 1 through 15. COPIES FURNISHED: Virginia B. Wetherell, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Kenneth Plante, Esquire Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Frank Strout, Pro se 11163 Agnes Street, Southwest Arcadia, Florida 33821 W. Douglas Beason, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Findings Of Fact Roger Newbold was employed by Allen Electric Company, Inc., as a laborer working on its contract with the State. Newbold was employed during two different periods. The first time was prior to January 1, 1977, and the second, from March 13, 1977, to May 22, 1977. The addition to the Polk County Correctional Institution was bid in two phases; the first for heavy construction for site preparation, and the second, the actual building construction. Allen Electric Company, - Inc., had a contract from the general contractor during the first phase to install the main electrical distribution facilities on the site. All of this work was not associated with and carried on prior to the commencement of building construction. The heavy construction was in progress during Newbold's first period of employment with Allen Electric Company, Inc. Allen Electric Company was also a subcontractor with Delta Electric Company on the second phase of construction; however, Allen Electric Company did not do any building construction. They subcontracted with Delta to install secondary distribution lines and perimeter fence lighting on the site. See Delta Electric Company contract, late filed exhibit No. 7. Allen Electric Company did not go into the building with their workmen because their contract called for them to stop five (5) feet outside the building with the secondary distribution lines. All work and wiring done from this point into the building was carried on by Delta Electric. Newbold's job during his entire employment with Allen electric was to dig ditches and lay conduit. The conduit runs then were reinforced with concrete poured over reinforcing steel. During his entire employment, he was involved in digging the necessary ditches, setting the reinforcing rods, and pouring the concrete. The rate for heavy construction laborers under wage rate 398-W filed as a portion of late filed exhibit No. 7 was three dollars and thirty-six cents ($3.36) per hour. The wage rate for laborers working on building construction pursuant to wage rate 397-W also filed as a portion of late filed exhibit No. 7 was six dollars and fifteen cents ($6.15) per hour. Wage scale 397-W specifically states that it is applicable to nonresident building construction. All of the skills listed on the wage rate apply specifically to building construction except the general term "laborer." The record shows that the work done by Allen Electric Company, Inc., in the building construction phase was the same type of work undertaken by Allen Electric in the heavy construction phase. In both phases, Newbold was engaged in exactly the same duties. Newbold did not work on building construction but on laying conduit for secondary distribution systems and perimeter lighting systems during the second phase. All of this work took place outside of the building.
Recommendation The Hearing Officer recommends that the claim of Roger Newbold be dismissed by the agency. DONE and ENTERED this 5th day of 1977, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Marvin Woods, Esquire 440 S. Florida Avenue Post Office Box AR Lakeland, Florida 33801 David A. Perry, Esquire Corporate Officer Allen Electric Company, Inc. 1271 LaQuinta Drive Orlando, Florida 32809 Mr. Luther J. Moore Administrator of Prevailing Wage Department of Commerce Division of Labor 1321 Executive Center Drive Fast Tallahassee, Florida 32301
