The Issue Whether Petitioner is entitled to a 120.57(1) hearing although he failed to timely file a petition for an administrative hearing within twenty-one (21) days of his receipt of the final agency action letter.
Findings Of Fact The Respondent's final agency action letter was received by the Petitioner on December 11, 1990. The Respondent's final agency action letter concluded as follows: "This letter constitutes final agency action. If you do not agree with this decision, you may request an Administrative Hearing in accordance with Section 120.57, Florida Statutes, by filing a written Petition within 21 days of receipt of this letter. Enclosed is a copy of Rule Sections 28-5.111 and 28- 5.201, Florida Administrative Code, which outline the proper procedure. If you do not request such hearing within that 21-day period, then you shall have waived any right to a hearing in this matter." This was the only written notice that Petitioner received from the Respondent agency concerning his right to request a hearing to challenge the agency's action, or concerning the procedure to be followed in doing so. Copies of the referenced Florida Administrative Code sections were enclosed. The 21-day filing period for Petitioner was scheduled to end on January 2, 1991. Petitioner retained counsel for the purpose of seeking an administrative hearing to challenge the Respondent's proposed final agency action, and a petition was drafted. On December 31, 1990, the petition was ready to be transmitted to the Respondent. Counsel was uncertain whether the petition should be posted by regular mail, or by Express Mail in order to insure guaranteed delivery by January 2, 1991. The concern of Petitioner's counsel was whether the rules required posting or actual receipt of the petition during the 21-day filing period in order to insure his client's right to a hearing. Some time in the afternoon of December 31, 1990, counsel for Petitioner initiated a telephone call to an office in Tallahassee that he believed to be that of the general counsel for the Department of Administration, and asked to speak to an attorney. The woman answering the telephone advised that no attorney was presently available. Following inquiry concerning the purpose of the call, counsel for the Petitioner understood from the secretary that the 21- day filing requirement for a petition requesting an administrative hearing would be deemed satisfied by mailing, evidenced by postmark, within the applicable 21- day period. Counsel for Petitioner relied on this statement, and deposited the petition in the regular U.S. Mail prior to 5:30 P.M. on December 31, 1990. Counsel for Respondent did not call the Legal Office of the Division of Retirement where an administrative secretary and an attorney were on duty during the afternoon hours of December 31, 1990. The petition for administrative hearing filed by Petitioner was not received by the Respondent until January 14, 1991. The delay between the mailing of the Petition and its receipt is unexplained.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered granting an administrative hearing on the Petition filed by Petitioner, and dated December 31, 1990. DONE AND ENTERED this 23rd day of July, 1992, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 23rd day of July, 1992. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's proposed findings of fact. Accepted in substance: 2,3,4,5(in part),6,7,8,10,11. Rejected: 1(issue),5(in part-concllusion of law),6,9(irrelevant). Respondent's proposed findings of fact. Accepted in substance: paragraphs 1,2,3,7. Rejected: paragraph 4(cumulative), 5(cumulative), 6(irrelevant). COPIES FURNISHED: Keith F. Roberts, Esquire 240 Plant Avenue, Suite B-308 Tampa, FL 33606 Burton M. Michaels, Esquire Assistant Division Attorney Division of Retirement Cedars Executive Center Building C 2639 North Monroe Street Tallahassee, FL 32399-1560 (904) 487-1230 A. J. McMullian, III, Director Division of Retirement Cedars Executive Center, Bldg. C 2639 N. Monroe St. Tallahassee, FL 32399-1560 Larry Strong Secretary Department of Management Services 2737 Centerview Drive Knight Building, Ste. 307 Tallahassee, FL 32399-0950 Susan Kirkland Acting General Counsel Department of Management Services 2737 Centerview Drive Knight Building, Ste. 110 Tallahassee, FL 32399-0950
The Issue Which certificate of need application seeking to establish a new 120-bed community nursing home in Nursing Home District 6, Subdistrict 5 (Polk County), on balance, best satisfies the statutory and rule criteria for approval: Lakeland Oaks NH, LLC’s CON Application No. 10309, or Eighth Florida Living Options, LLC’s CON Application No. 10303.
Findings Of Fact The Parties Lakeland Oaks NH, LLC Lakeland Oaks, LLC, is a Delaware, limited-liability company formed by Greystone Healthcare Management Corporation (Greystone) for the purpose of filing its certificate of need application at issue in this proceeding. Greystone is a Delaware, for-profit, corporation which operates 26 skilled nursing facilities, two assisted living facilities, and six home health branches in Florida. It also operates 10 nursing homes in Ohio. Recently, Greystone constructed and opened a new nursing home known as The Club Health and Rehabilitation Center at the Villages (The Club Villages) in Marion County, Florida. Greystone is headquartered in Tampa, Florida adjacent to Polk County. Eighth Florida Living Options, LLC Eighth Florida Living Options, LLC, is a Florida, limited-liability company formed by Florida Living Options, Inc. (Florida Living Options) for the purpose of filing its certificate of need application at issue in this proceeding. Florida Living Options is a Florida not-for-profit corporation which operates three skilled nursing facilities, three assisted living facilities, and two independent living facilities in Florida. Among them, Florida Living Options operates an assisted living facility known as Hawthorne Lakeland in Polk County, Florida, and recently constructed and opened a new nursing home in Sarasota, Florida, known as Hawthorne Village of Sarasota. Florida Living Options is headquartered just outside of Tampa about six miles from the Greystone headquarters. Agency for Health Care Administration AHCA is the state agency that administers Florida’s CON program. Procedural History The Fixed Need Pool On October 3, 2014, the Agency published a need for 203 additional community nursing home beds in Nursing Home Subdistrict 6-5 encompassing Polk County, for the July 2017 Planning Horizon. In response, eight applicants, including Lakeland Oaks and Eighth Florida, filed CON applications seeking to establish new community nursing home beds in Polk County. On February 23, 2015, the Agency published official notice of its decisions on those applications. The Agency awarded all 203 beds from the fixed-need pool, approving applications filed by Florida Presbyterian Homes, Inc. (14 beds), Lakeland Investors, LLC (69 beds), and Lakeland Oaks (120 beds). The Agency denied the remaining applications; including Eighth Florida’s CON Application No. 10303 seeking 120 beds from the fixed-need pool. Eighth Florida initially challenged all three awards, but voluntarily dismissed its challenge to Florida Presbyterian Homes, Inc. and Lakeland Investors, LLC’s awards prior to the final hearing. As a result, only 120 of the 203 beds in the fixed-need pool are at issue in this proceeding. The Proposals Greystone’s Lakeland Oaks Lakeland Oaks’ CON Application No. 10309 proposes to develop a 120-bed skilled nursing facility (SNF) in Sub-district 6-5, Polk County, consisting of 60 private rooms and 30 semi- private rooms. Lakeland Oaks proposes to offer high quality, short- term rehabilitation services and long-term care services in a country club style atmosphere. Some of the services Lakeland Oaks plans to offer include physical, occupational, and speech therapy; wound care; pain management; and lymphedema therapy. Lakeland Oaks’ proposal is partially modeled after a new SNF established by Greystone called The Club Villages in Marion County, Florida. Greystone developed The Club Villages in 2012 through the transfer of 60 beds from New Horizon NH, LLC, d/b/a The Lodge Health and Rehabilitation Center, an existing 159-bed skilled nursing facility in Ocala, Marion County. The Club Villages provides short-term rehabilitation to patients in a resort-style environment. The Club Villages has been successful since its opening, achieving full utilization within less than six months of operation. It recently added eight additional beds, resulting in a total bed complement of 68 beds, through a statutory exemption for highly utilized nursing home providers. The Club Villages was awarded the LTC & Senior Living LINK Spirit of Innovation Award, which recognizes facilities with innovative and inspirational designs. As of the final hearing, Greystone had not made a formal decision on site selection for the proposed Lakeland Oaks project. However, the evidence at hearing showed that Greystone plans to construct the proposed Lakeland Oaks facility in Polk County at one of four potential sites located near the I-4 interstate and major roadways for easy accessibility in an area with a high concentration of residents age 65 and older. The potential sites are in close proximity to the existing acute care hospitals in Polk County, which, from a health planning perspective, would promote a coordination of care. Given the number of available potential sites, it is not expected that Greystone will have difficulty securing a location for the proposed Lakeland Oaks project. Eighth Florida Living Options Eighth Florida’s CON Application No. 10303 proposes to establish a 120-bed SNF next to Hawthorne Lakeland, Florida Living Options’ existing assisted living facility in Polk County. The proposed facility will consist of two 60-bed pods, consisting of private and semi-private rooms. If approved, Eighth Florida’s proposed SNF will be part of a campus known as Hawthorne Village. In addition to the proposed SNF and Hawthorne Lakeland, Eighth Florida affiliates also plan to construct and operate a second assisted living facility and an independent living facility on the Hawthorne Village campus. An important part of Florida Living Options’ business model is to provide skilled nursing, assisted living, and independent living services on the same campus. By providing different levels of care on the same campus, it is envisioned that residents of Florida Living Options’ facilities can transition among the facilities as their care needs change. Eighth Florida plans to model its proposed skilled nursing facility on Hawthorne Village of Sarasota (Hawthorne- Sarasota), which opened in January 2013. Compared to Greystone’s The Club Villages, Hawthorne-Sarasota had a slow ramp up and only achieved 85 percent utilization after 24 months of operation. The Agency’s Preliminary Decision On February 23, 2015, in Volume 41, Number 36 of the Florida Administrative Record, the Agency for Health Care Administration (AHCA) announced its intent to award 83 of the beds identified to be needed in Polk County to other applicants not involved in this hearing; to approve the application of Lakeland Oaks for CON 10309 for 120 beds; and to deny the application of Eighth Florida for CON 10303 for 120 beds. Statutory and Rule Review Criteria The statutory review criteria for reviewing CON Applications for new nursing homes are found in section 408.035, Florida Statutes, and Florida Administrative Code Rule 59C- 1.036.1/ Each statutory and rule criterion is addressed below. Section 408.035(1)(a): The need for the health care facilities and health services being proposed There is a need for additional community nursing home beds in Nursing Home Subdistrict 6-5, Polk County. Both Lakeland Oaks and Eighth Florida’s CON applications seek to fulfill a portion of the published need for additional beds in Polk County. In addition to the published fixed-need pool, both Lakeland Oaks and Eighth Florida have stipulated to the need and performed their own needs assessment that verified the need for additional community nursing home beds in Nursing Home Subdistrict 6-5, Polk County. At present, Polk County has 24.7 nursing home beds per 1,000 residents. Even with the addition of 203 beds as projected by the fixed-need pool, population growth will cause Polk County’s bed ratio to decline to only 23.6 beds per 1,000 residents by the end of the planning horizon. Accordingly, there is a need for additional community nursing home beds in Polk County. Polk County has a large, fast growing elderly population. According to population data published by AHCA, from 2010 to 2014, the 65 and older population in Polk County grew by nine percent, which exceeded the statewide growth rate of six percent. For the time period 2014 to 2017, the 65+ population in Polk County is expected to grow at an even faster rate of 10 percent, which is substantial. Section 408.035(1)(b): The availability, quality of care, accessibility, and extent of utilization of existing health care facilities and health services in the service district of the applicant Polk County currently has twenty-four (24) nursing home facilities with 2,945 licensed beds. Polk County’s existing nursing home beds are highly utilized. For the 12-month period ending June 2014, Polk County’s existing nursing home beds had a total average occupancy rate of 90.29 percent. That occupancy rate is higher than the national rate and Nursing Home District 6’s average occupancy rate as a whole. At such high utilization, Polk County’s existing nursing home beds are not sufficiently available to Polk County residents. Further, Polk County’s existing nursing home beds are not adequate to meet the projected increase in demand for skilled nursing services in Polk County over the planning horizon. Eighth Florida proposes to locate its skilled nursing facility in Zip Code 33813, co-located with Florida Living Option’s existing assisted living facility. The need for additional community nursing beds in Polk County, however, is countywide and not specific to a particular zip code or assisted living facility. In contrast, Lakeland Oaks’ proposed project is located and designed to address the needs of Polk County residents as a whole with access designed to locate near a major hospital, and, as such, will better ensure access to short-term rehabilitation and long-term care services in Sub-district 6-5. Section 408.035(1)(c): The ability of the applicant to provide quality of care and the applicant’s record of providing quality of care Both applicants go to great lengths to provide and improve their quality of care. Both applicants propose to use an electronic health record (EHR) system called Point Click Care (PCC). All of Florida Living Options’ facilities currently use PCC. Eighteen (18) of Greystones facilities use PCC, and, by the end of 2016, all Greystone facilities will use PCC. In addition to PCC, both Greystone and Florida Living Options use “Casamba,” a rehab-specific electronic medical record that enables the facilities to maintain electronic plans of care and track patients’ progress in real-time throughout their stay. Greystone and Florida Living Options have implemented Quality Assurance Performance Improvement (QAPI) plans in their facilities. The QAPI program is a rigorous program for the improvement of quality of care and overall performance. It addresses the full range of services offered by a nursing home and is designed to promote safety and high quality with all clinical interventions while emphasizing autonomy and choice in daily life for residents. A QAPI plan is now mandated for use in all nursing homes. Both Greystone and Florida Living Options initiated the QAPI program in their facilities before mandated to do so. Both Greystone and Florida Living Option have developed a range of policies and programs designed to promote quality of care in their respective facilities. Greystone, for example, develops “Centers of Excellence” within its facilities. A Center of Excellence has specialized expertise in treating patients with certain conditions such as stroke, pulmonary, cardiac, or orthopedics. Greystone has developed Centers of Excellence that relate to short-term rehabilitation and therapy, and partners with health systems to develop initiatives to reduce hospital readmissions. In addition to Centers of Excellence, Greystone develops other specialized programs in its facilities tailored towards common diagnoses of patients discharged from area hospitals. All Greystone facilities have an internal Risk Management/Quality Assurance program overseen by a committee that includes the medical director of each SNF. The committee meets on a monthly basis to assess resident care and facility practices as well as to develop, implement, and monitor plans of action. Greystone also routinely conducts on-site mock surveys of its facilities to ensure that they are in compliance with all federal and state laws and regulations. Greystone employs a variety of organization-specific quality improvement policies and programs, including the Believe Balance Assessment Tool, the Operation Make a Difference Policy, the Care Line Policy, and the Culture of Care Program, to promote quality of care within its facilities. The Believe Balance Assessment Tool is a scorecard that enables facilities to monitor their performance with respect to such criteria as patient satisfaction and clinical care. The Operation Make a Difference Policy is intended to help Greystone facilities identify opportunities for improvement and implement positive change to improve the facilities’ quality of care and patient well-being. Greystone’s Care Line is a toll-free number that is staffed 24 hours a day and allows Greystone to quickly address resident and/or family member concerns. Greystone’s Culture of Care program is designed to ensure that Greystone patients receive patient-centered care that meets their individual needs. Greystone also provides voluntary patient satisfaction surveys to its short-term rehabilitation patients upon discharge. For the period December 2014 to July 31, 2015, 92 percent of former residents indicated that they would recommend a Greystone facility to patients in need of short-term rehabilitation care. In sum, Greystone has developed strategies that help its facilities provide quality care. Florida Living Options is also working constantly to improve the quality of care in its facilities. Personnel in its facilities hold regular meetings with their hospital partners to track and reduce readmissions and work with hospitals to develop protocols for dealing with the diagnoses that result in most readmissions. Florida Living Options develops particular protocols for treating conditions that it sees and treats regularly in its nursing homes. Internally, they hold daily quality assurance meetings to discuss recent developments and immediate resident needs, and hold weekly “at-risk” meetings to evaluate particular cases and assure that the residents are being treated in the most appropriate manner. Florida Living Options’ facilities include physician treatment rooms in their nursing homes, which encourage physicians to come to the nursing home more often and to examine patients regularly. In addition, Florida Living Options has Advanced Registered Nurse Practitioners in each of its buildings to provide enhanced nursing services as directed by the doctor. In order to provide for each resident’s specific needs, residents in Florida Living Options’ facilities are fully evaluated and an individual care plan is prepared immediately upon admission, together with a discharge plan that identifies anticipated discharge so that care can best prepare residents for that event. Finally, Florida Living Options continues to follow a discharged resident to confirm that they are doing well and access any continuing needs. Both applicants propose rehabilitative facilities and equipment for its residents. Eighth Florida proposes to equip its facility with state of the art HUR equipment with the capability to transmit patient performance directly to the Casamba electronic records program. The equipment can be used for strength conditioning, transfer improvement, and balance improvement, among other things. Florida Living Options has developed specific protocols for treating rehabilitative conditions. Eighth Florida’s therapy gym will include two types of “zero G” devices: ceiling track and hydro track. These devices allow persons who are not weight bearing (or who are partially weight bearing) to develop strength and balance without having to put all of their weight on their legs. Two additional specific pieces of equipment proposed for Eighth Florida include a VitaStim device that provides electrical stimulation that helps a person relearn how to swallow, and a device called Game Ready. Game Ready is popular with football trainers and orthopedic patients that use ice and pressure to reduce swelling and pain around elbow and knee joint replacement sites. Greystone outfits the gyms in its skilled nursing facilities with a variety of rehab equipment, including high-low tables, mats, hand weights, leg weights, and modern strengthening machines. In addition, many Greystone SNFs have additional high-end, state-of-the-art equipment such as the AlterG and Biodex. The AlterG is an anti-gravity treadmill that enables patients with weight-bearing restrictions to use their muscles, preventing disuse atrophy. A Biodex is used for balance re-training. If approved, Lakeland Oaks proposes to have separate therapy gyms for its short-term rehabilitation and long-term care programs. By having two therapy gyms, Lakeland Oaks would be able to offer therapy services tailored to both patient populations’ needs. In contrast, Eighth Florida proposes to have one centralized therapy gym for its entire facility. Although quality may be measured by many metrics, the five-star rating system published by the Centers for Medicare and Medicaid Services (CMS) has become the most commonly used measure of quality among nursing homes. CMS is the federal agency that oversees the Medicare and Medicaid programs. CMS developed the five-star rating system for nursing homes in 2008. The ratings are scaled on a statewide basis and provide a mechanism to compare nursing homes within a state. Only 10 percent of nursing homes in a state receive a five-star rating. Seventy percent receive a two through four-star rating. The bottom 20 percent receives a one-star rating. A nursing home’s score is derived from a variety of criteria, including the results of its health inspection surveys, staffing data, and quality measure scores. A nursing home’s star rating is available on the CMS Nursing Home Compare website. As of July 2015, Greystone’s average star rating for its Florida facilities was 3.3 stars, which is above average. For the same time frame, Eighth Florida’s average rating was 2.6 stars or slightly below average. Further, several Greystone facilities, including The Club Villages, received five-star ratings. Greystone has also received other quality-related awards. In 2015, seven skilled nursing facilities operated by Greystone in Florida received the American Health Care Association National Quality Award Program Bronze Award. The Bronze Award is awarded to SNFs that have demonstrated their commitment to quality improvement. In addition, Greenbriar Rehabilitation and Nursing Center, a Greystone facility located in Bradenton, Florida, was awarded the Silver Award in recognition of its good performance outcomes. In contrast, only one Florida Living Options’ skilled nursing facility has received the Bronze Award. Florida Living Options explained that it decided not to pursue additional bronze awards believing that these awards reflect more of a paperwork compliance than an actual measure of quality. The greater number of awards received by Greystone, however, has not been ignored. Section 408.035(1)(d): The availability of resources, including health personnel, management personnel, and funds for capital and operating expenditures, for project accomplishment and operation Lakeland Oaks’ total project costs, as reflected in Schedule 1 of its CON application, are $22,877,084. The total project costs are based upon a detailed budget and workpapers underlying the numbers contained in the financial schedules to Lakeland Oaks’ CON application. Because of its size, Greystone is able to purchase equipment at a lower cost than other smaller providers. The project costs include $1.2 million for equipment. The equipment list is based upon consultation with Greystone’s purchasing department and identification of what items are needed, along with the cost of those items. The project costs set forth in Lakeland Oaks’ Schedule 1 are reasonable and appropriate. Schedule 2 of Lakeland Oaks’ CON application sets forth an accurate and reasonable listing of Lakeland Oaks’ capital projects (i.e., only the proposed Lakeland Oaks SNF). Schedule 3 of Lakeland Oaks’ CON application identifies the source of project funds, and reflects the two sources included in Schedule 2: cash-on-hand and non-related company financing. Based on the audit of the parent organization of Lakeland Oaks, Greystone has a large amount of cash-on-hand, totaling $21,972,271. This greatly exceeds the projected $4,575,414 cash-on-hand needed for the project. With respect to non-related company financing, Lakeland Oaks included a letter from The Private Bank, an outside lender that previously has worked with Greystone in the financing of its skilled nursing facility projects. The letter indicates the bank’s interest in funding the Lakeland Oaks project. Greystone previously has obtained approximately six mortgages from this outside lender to acquire properties and develop projects. The lender has never declined to finance a project proposed by Greystone. The lender typically funds between 75 and 80 percent of the cost of a project. Lakeland Oaks will be able to obtain the necessary outside financing to fund the remainder of the cost of the Lakeland Oaks project. Lakeland Oaks’ projected staffing for its facility is set forth on Schedule 6A of its CON application. In projecting its staffing, Greystone considered its other skilled nursing facilities that are comparable in size to Lakeland Oaks and the projected payor mix of Lakeland Oaks. Facilities with higher Medicare populations, such as the proposed Lakeland Oaks facility, generally require higher levels of staffing in light of the acuity of Medicare patients recently discharged from hospitals. In addition, Medicare patients often require physical therapy services. Lakeland Oaks specifically considered the higher resource utilization required by Medicare patients in developing its projected staffing. Additionally, Lakeland Oaks considered the needs of managed care patients and long-term Medicaid patients in connection with its projected staffing. To calculate the projected wages, Lakeland Oaks considered the actual wages paid at comparable Greystone facilities, adjusted those wages using a Medicare wage index that accounted for inflation, and utilized the wage index applicable to Polk County facilities. The projected staffing, and the annual salaries associated with staffing the facility, are reasonable and appropriate. Lakeland Oaks will be able to staff the facility at the projected salaries. While Florida Living Options explained its recruitment program and generous benefits package to attract qualified employees, its proposed funding is unconvincing. Schedule 3 of Eighth Florida’s CON application shows that Eighth Florida proposes to fund its project with $250,000 cash-on-hand and $24,452,400 in related company financing. Schedule 3 does not reflect any non-related company financing. The CON application requires an applicant to attach proof of the financial strength to lend in the form of audited financial statements. The only audited financial statement Eighth Florida included in its application is the financial statement of the applicant entity, which reflects only $250,000 cash-on-hand. Eighth Florida omitted the audited financial statements of any related entity that would reflect the ability to fund the approximately $24 million to be obtained from the related party. As a result, Eighth Florida failed to prove its ability to fund the project, and the project does not appear to be financially feasible in the short term. While there was a letter within its application discussing the possibility of outside financing, Eighth Florida’s CON application is premised upon funding by affiliate reserves. Indeed, Schedule 1, lines 32-41, indicates that information pertaining to outside financing is inapplicable because the project is 100 percent funded by affiliate reserves and no fees or interest charges are anticipated. If Eighth Florida had proposed outside financing, it would have had to complete those lines of the application. Section 408.035(1)(e): The extent to which the proposed services will enhance access to health care for residents of the service district While both applicants argue that their proposed projects will improve access to health care for residents of Subdistrict 6-5, Lakeland Oaks’ proposed project will better enhance access. Eighth Florida’s zip code analysis and focus on serving residents of Hawthorne Village is myopic when compared to Lakeland Oaks’ proposed project designed to provide access to Polk County as a whole. Section 408.035(1)(f): The immediate and long-term financial feasibility of the proposal Schedule 3 of Lakeland Oaks’ CON application sets forth an accurate and reasonable source of funds to develop the project. As previously explained, Greystone is financially capable of funding the project, partially from cash-on-hand and partially from outside financing. The project is financially feasible in the short term. Lakeland Oaks’ projected utilization of its skilled nursing facility is reflected on Schedule 5 of its CON application. The projected utilization is reasonable and achievable. Greystone has been able to achieve a high rate of utilization at The Club Villages in a short period of time. Greystone also has a process to inform hospitals and physicians of its skilled nursing services, including the placement of clinical liaisons in hospitals and physician offices. Greystone also enjoys a good reputation that serves to attract patients, including specifically Medicare patients, to its facilities. Finally, the Lakeland Oaks facility will house long-term care residents, which generally are easier to attract to a facility than patients in need of short-term rehabilitation. With regard to long term financial feasibility issues, Schedule 7 of Lakeland Oaks’ CON application sets forth revenues based on patient days and an assumed payor mix. The payor mix assumptions and projected revenues are accurate and reasonable. The assumed payor mix is based on the experience of other Greystone facilities. Specifically, Lakeland Oaks projects in its second year of operation 7.96 percent self-pay patient days; 29.2 percent Medicaid days; 41.59 percent Medicare Part A days; 15.04 percent “Other Managed Care” days. Medicare Advantage, or Medicare Part C, accounts for 90 percent of the “Other Managed Care” days. Finally, Lakeland Oaks projects 6.19 percent in “Other Payer” patient days, including VA and hospice patients. Based on Greystone’s experience at other, similar facilities, the forecast is reasonable. Schedule 8 of Lakeland Oaks’ CON application sets forth its projected income statement for the facility, including total revenues and expenses. For year two of operations, Lakeland Oaks will have a projected total net income of $1,997,665. This is an accurate and reasonable projection, and the project will be financially feasible in both the short-term and long-term. With regard to the reasonableness of Lakeland Oaks’ fill rate, Greystone facilities have experienced an average occupancy in excess of 91 percent for the years 2010-2013. Greystone has demonstrated the ability to obtain a 94 percent occupancy level in many of its facilities, and it is reasonable to project that it will be able to achieve the 94-percent occupancy projected for the Lakeland Oaks facility within two years. Eighth Florida’s expert, Sharon Gordon-Girvin, agreed that Lakeland Oaks’ projected 94-percent occupancy is achievable. Lakeland Oaks’ projected Medicare census is in line with the Medicare population served by Greystone at its other facilities, including a 150-bed home in Miami-Dade County (39 percent Medicare), a facility in Marion County (42 percent Medicare) and The Club Villages (83 percent Medicare). Eighth Florida’s own expert, Ms. Gordon-Girvin, prepared three CON applications for Greystone that reflected substantial levels of Medicare utilization and did not object to the projected Medicare population. Additionally, CMS data shows that Polk County has a high number of Medicare beneficiaries in comparison to the entire State of Florida, with 119,643 Medicare beneficiaries. Polk County is ranked in the top 10 counties in Florida in terms of the number of Medicare Part A beneficiaries. Finally, a facility in Polk County, Spring Lake, which serves a substantial number of Medicare patients in need of rehabilitation services, experiences a Medicare utilization rate of 64 percent. In sum, Lakeland Oaks’ projected Medicare utilization is reasonable and achievable. Lakeland Oaks projected $150,000 for property taxes as part of its CON application. While Eighth Florida’s financial expert, Steve Jones, opined that Lakeland Oaks’ projected property taxes were understated, his analysis computed the property tax based on certain components of Lakeland Oaks’ projected project costs. Property taxes, however, are based on an assessed value of property, not the costs to construct a facility. Lakeland Oaks’ financial expert, Mr. Swartz, examined the 2015 property taxes at Greystone’s other facilities. The highest property tax rate for any of the Greystone facilities, when inflated forward one year, is $149,381.62. This is consistent with Lakeland Oaks’ projected property taxes of $150,000. Thus, the projected property taxes as set forth in the application are reasonable and accurate. In its CON application, Eighth Florida projected a year one loss of $1,646,400 and a year two profit of $502,945. However, Eighth Florida’s CON application reflects erroneous financial projections and financial deficiencies, some of which were acknowledged by Eighth Florida’s financial expert, Mr. Jones. First, Eighth Florida’s projected Medicaid rate is erroneous. Eighth Florida assumed an incorrect occupancy rate in calculating its Fair Rental Value Rate (FRVS) rate, which is the property component of the Medicaid rate paid by the State of Florida. Specifically, Eighth Florida assumed a 75 percent occupancy in year two of its operation, while the Medicaid allowable rate is 90 percent occupancy in year two. Eighth Florida’s financial expert, Steve Jones, acknowledged the error in the assumed Medicaid rate related to the occupancy factor. In addition, Eighth Florida will not qualify for principal and interest in its FRVS calculation. A provider must have 60 percent mortgage debt in order to receive principal and interest in its FRVS computation. Eighth Florida does not meet the 60 percent test because it relies upon related-party financing, which is not considered a mortgage. Further, Eighth Florida utilized an erroneous interest rate. Because it does not project any outside financing, nor a mortgage, it should have used the Chase Prime Rate, which is about 2.25 percent less than what Eighth Florida assumed in it Medicaid rate calculations. These errors are material in that they result in approximately $135,000 in overstated Medicaid revenue and overstated net income for year two, during which Eighth Florida’s financial schedules project a net profit of approximately $500,000. In response to the opinion that Eighth Florida would not be entitled to principal and interest in its assumed FRVS rate, Mr. Jones maintained that the financing of the project would qualify for treatment as a mortgage, even though the application is premised upon related-party financing. However, AHCA’s rate setting department concluded that borrowing from a related party against reserves, as proposed by Eighth Florida, cannot be considered a mortgage. Mr. Jones conceded that he had never seen AHCA recognize affiliated entity debt as a mortgage. Considering the facts and opinions offered at the final hearing, it is concluded that related party borrowing cannot be treated as a mortgage. Moreover, Schedule 1 of Eighth Florida’s CON application did not include any construction period interest. Lakeland Oaks’ healthcare financial expert, Ronald Swartz reasonably estimated that approximately $700,000-$750,000 in construction period interest was omitted from Eighth Florida’s project costs. As a result, Eighth Florida would require more cash-on-hand to fund the extra costs. This, in turn, affects the income statement, resulting in understated expenses and overstated net income. Mr. Jones acknowledged that construction period interest is normally included. In this application, he did not include that item based upon a cost/benefit analysis and his conclusion that the inclusion of construction period interest would not provide “useful” financial information. Based upon Generally Accepted Accounting Principles and relevant financial standards pertaining to the capitalization of interest, whether construction period interest should be included in financial projections generally turns on concepts of time and materiality. Here, the construction project will take nearly two years, and construction period interest will total approximately $700,000 to $750,000. Thus, construction period interest is material and the interest charge should have been included in Eighth Florida’s financial schedules. Next, Eighth Florida projected a utilization or “fill” rate that is higher than the fill rate Florida Living Options was able to achieve when it opened Hawthorne-Sarasota. A fill rate describes how quickly a facility reaches an anticipated occupancy level. It is appropriate to consider Florida Living Options’ prior history of filling its new facilities. With regard to Florida Living Options’ experience at Hawthorne- Sarasota, that facility reached 85 percent occupancy by the end of its second year of operation. The Sarasota facility had approximately a 35 percent occupancy level at the end of year one, which translates to a first year average occupancy of 16 or 17 percent. At the beginning of year two, it experienced approximately 43 percent occupancy. In contrast, Eighth Florida’s CON application projects an 89 percent occupancy level by month 11. Based on Florida Living Options’ experience in Sarasota, the projection is unreasonable. If Eighth Florida’s proposed facility fills at the same rate as the Sarasota facility, year two of Eighth Florida’s operation would result in a larger financial loss and a greater need for working capital. Given that, Eight Florida’s year two projected net income would actually become a net loss, and additional working capital would be needed. While Eighth Florida’s expert, Mr. Jones, sought to distinguish the Sarasota market from the Polk County market, nonetheless, it is relevant to examine the occupancy level Florida Living Options was able to achieve in connection with the opening of a new facility in the Sarasota market. The financial feasibility of a skilled nursing facility is an important consideration. Considering the issues surrounding Eighth Florida’s fill rate at the end of year one, construction period interest, and the erroneous Medicaid rate, it appears likely that Eighth Florida would experience a year two net loss, bringing into question the long-term financial feasibility of Eighth Florida’s CON application. Section 408.035(1)(g): The extent to which the proposal will foster competition that promotes quality and cost-effectiveness It stands to reason that approval of either application will foster competition due to the fact that additional nursing home beds with new amenities are proposed to be added in Polk County. The extent of that competition, however, is not evident, and the undersigned agrees with the determination of AHCA on page 93 of its State Agency Action Report submitted in this proceeding that “These projects are not likely to have a material impact on competition to promote quality and cost-effectiveness.” Section 408.035(1)(h): The costs and methods of the proposed construction, including the costs and methods of energy provision and the availability of alternative, less costly, or more effective methods of construction The Florida Building Code (Building Code) governs the design and construction of skilled nursing facilities. Under the Building Code, a skilled nursing facility may be designed based on either an “institutional” design model or a “household” design model. To obtain AHCA’s approval of a proposed SNF, AHCA requires parties to designate which design model has been selected. An institutional design model involves centralized services. By contrast, the household design model involves decentralized services contained within a “neighborhood” or unit. Section 420.3.2.2 of the Building Code regulates the household design model, and requires that dining activity in social areas be decentralized and included within the resident household. Section 420.3.2.2.1 further provides that “each resident household (unit) shall be limited to a maximum of 20 residents.” Additionally, section 420.3.2.2.2 requires that two individual households be grouped into a distinct neighborhood with a maximum of 40 residents who may share the required residential core areas. Lakeland Oaks’ architectural expert, Bo Russ, and his firm, Architectural Concepts, created the schematic design used in Lakeland Oaks’ CON application. In addition, Mr. Russ and Architectural Concepts provided cost estimates, systems descriptions, and the construction timeline for the project. Architectural Concepts has worked with Greystone in the development of other skilled nursing facilities in Florida, including the design and construction of The Club Villages, The Club at Ocala, and The Club at Kendall. The design of The Club Villages is based on a hospitality model (i.e., the resident-centered culture change model). The social and dining areas of The Club Villages are located within individual neighborhoods. Each neighborhood has a private dining room. Patient rooms surround the dining area. The Club Villages includes a Bistro Restaurant located at the center of the facility for family members and guests. The Club Villages also has space for the provision of rehabilitation services, including two large gyms within the physical therapy suite. The facility has skylights throughout the structure and other features to retain residential elements. In preparing the architectural design for Lakeland Oaks’ proposal, Architectural Concepts incorporated certain aspects of the design of The Club Villages. The Lakeland Oaks design is based on the “institutional model,” but with certain embellishments intended to give the facility a “household,” residential feel. The proposed Lakeland Oaks facility is approximately 84,000 square feet. The facility has 10-foot ceilings, a residential-oriented interior design, residential lighting, residential furniture, a large porte cochere, a lobby area similar to The Club Villages, a Bistro, a central dining area within the community that is divided into four dining rooms with unique interior vernacular, a movie theater, a satellite therapy gym, offices for staffing, a separate Activities of Daily Living suite, a doctors lounge, and three nursing units. With regard to physical therapy services, the proposed Lakeland Oaks facility will include two large gyms at the center of the therapy suite, a private outpatient therapy entrance, a large classroom, and space for other ancillary services. The design will allow for a concierge approach to therapy to treat patients in need of those services. The proposed Lakeland Oaks facility is reasonably and appropriately designed for use as a skilled nursing facility, and promotes high quality of care. In developing the design of the facility, Mr. Russ considered the fact that Lakeland Oaks proposes to offer both short-term and long-term care. Greystone has developed two similar skilled nursing facilities, The Club at Kendall, a 150-bed skilled nursing facility, and The Club at Ocala, a 154-bed facility, both of which are similar in design to Lakeland Oaks. Greystone has received AHCA approval of the design and construction for both of those facilities. Lakeland Oaks’ proposed construction costs are $17,289,054, or $185 per square foot. The estimated construction costs are based on similar projects, including The Club at Ocala at $178 per square foot. The construction costs are reasonable and appropriate. The architectural plan, design, and features presented by Lakeland Oaks satisfy the architectural criteria applicable to skilled nursing facilities in Florida. The facility complies with all applicable construction, design, and life safety code requirements. Lakeland Oaks also presented a reasonable timeline for completion of the project. The timeline is based on Greystone’s prior experience in constructing similar skilled nursing facilities. Mr. Russ reviewed Eighth Florida’s architectural plans and schematics for conformity with applicable criteria. Eighth Florida’s architectural plans and schematics were prepared by Bessolo Design Group (Bessolo Group). Because of design flaws inconsistent with the Building Code, the architectural plans and design proposed by Eighth Florida and Bessolo Group should not be approved by AHCA. Eighth Florida’s proposed design will be reviewed by AHCA based on the provisions governing the institutional design model. The design fails to meet certain distance requirements found in the Building Code provisions governing an institutional design. Specifically, Florida Building Code section 420.3.2.1.2 (now renumbered as Building Code section 450.3.2.1.2) provides that the travel distance from the entrance door of the farthest patient room to the nurse’s station cannot exceed 150 feet. In addition, the distance from a patient room to a clean utility and soiled utility room cannot exceed 150 feet. Based on the schematic plan presented by Eighth Florida and Bessolo Group, the distance from the most remote patient room to the nurse’s station well exceeds 150 feet. In addition, the distance from the most remote patient room to the soiled/utility rooms well exceeds 150 feet. These flaws cannot be remedied without substantial design changes. In addition, the Eighth Florida/Bessolo Group design includes deficiencies related to smoke compartments, nourishment stations, and other items. These more minor flaws can be remedied without substantial changes. However, as to the 150-foot limit, Eighth Florida’s non-compliance makes the design a failed model. The facility cannot be approved in its current design. In order to be approvable, the facility would need to undergo a major redesign, including a change in the size and configuration of the building. This, in turn, would impact all of the financial assumptions contained in Eighth Florida’s CON application. In response to Mr. Russ’ opinions, Eighth Florida’s architectural expert, Kevin Bessolo, contended that the deficiencies related to the 150-feet distances from the patient room to the nurses station and soiled/clean utility areas were not fatal because the plan was based upon the “household model.” Mr. Besselo acknowledged that, if the design is considered to be “institutional,” then the travel distances would exceed the 150-foot distance requirements. Mr. Besselo also acknowledged that a skilled nursing facility can either be an institutional design model or a household design model, but not both. Mr. Bessolo further acknowledged that his position that the plan is approvable is contingent upon the design being considered under the household design model in accordance with the Building Code. Mr. Bessolo disagreed with the criticism offered by Mr. Russ regarding the 150-feet distance requirements because he contended that his design presents a household model. Eighth Florida’s schematic design, however, does not comply with the Building Code’s requirements for a household design model. Eighth Florida’s proposed building is divided into 30-bed neighborhoods that exceed the Building Code’s 20-bed maximum for the household design. In addition, Eighth Florida’s plan presents three households sharing a central services area. Finally, the dining area presented in the Eighth Florida plan is centralized, rather than decentralized as required for the household design model. Because the proposal does not qualify as a household model, AHCA should review it under the institutional plan provisions. In turn, Mr. Bessolo offered criticisms of Lakeland Oaks’ proposed architectural plan. These included issues related to the distance to soiled utility exceeding 150 feet, resident storage areas, central bathing area, no emergency food storage, smoke compartment issues, secondary exit issues, and the planned movie theater. However, unlike Eighth Florida’s major deficiencies related to the 150-foot distant limits from the nurse’s station and from the clean and soiled utility rooms, the criticisms offered by Mr. Bessolo are easily rectifiable by Lakeland Oaks without substantial change. I. Section 408.035(1)(i): The applicant’s past and proposed provision of health care services to Medicaid patients and the medically indigent Greystone has a strong history of serving Medicaid patients in Florida. On a company-wide basis, 53.65 percent of all patient days in Greystone SNFs were provided to Medicaid patients during calendar year 2014. Lakeland Oaks plans to treat Medicaid patients at its proposed facility. In its second year of operation, Lakeland Oaks projects that almost 30 percent of its patient days will be Medicaid days. Additionally, if “dual eligibles” (i.e., patients with Medicare as a primary payer but also eligible for Medicaid) are taken into account, Lakeland Oaks’ provision of services to Medicaid patients will be even higher. Lakeland Oaks’ payor mix assumptions were based on Greystone’s actual experience at comparable SNFs in Florida and are reasonable. Eighth Florida projects in its second year of operation that approximately 40 percent of its patient days will be Medicaid days. As previously explained, that projection is questionable. The evidence at hearing showed that Hawthorne- Sarasota, the facility upon which Eighth Florida’s proposal is based, had only eight percent Medicaid utilization after one and a half years of operation. IV. Factual Summary The facts set forth above demonstrate that Greystone has proposed a well-funded, financially feasible, well-designed skilled nursing facility that will improve Polk County access to short term and long term skilled nursing care for residents of Polk County. Greystone has demonstrated a proven record of providing high quality of care and the ability to assure quality of care for the Lakeland Oaks proposal. In contrast, Eighth Florida’s application was largely focused on improving access to those services within a certain zip code and for residents of the Hawthorne Village community and not residents of Polk County as a whole. Greystone, Lakeland Oaks’ parent company, has a long, well-established history of providing high quality care at over two dozen skilled nursing facilities in Florida. On the other hand, Florida Living Options, Eighth Florida’s parent, only operates three skilled nursing facilities in Florida and does not have as extensive of a track record in providing high quality care. Moreover, Greystone has a well-established history of providing skilled nursing services to a large volume of Medicaid patients. On a company-wide basis, over 50 percent of Greystone’s patient days consist of Medicaid patients. Conversely, Hawthorne-Sarasota, the facility upon which Eighth Florida’s proposed project is based, had only eight percent Medicaid utilization in its first year and a half of operation, calling into question Eighth Florida’s projection of 40 percent Medicaid utilization in its application. Further, Eighth Florida has proposed to build a nursing home with questionable inter-company financing and uncertain financial feasibility. Eighth Florida’s facility design does not meet code requirements and is unlikely to be approved as proposed without substantial changes. Considering both applications and the facts submitted at the final hearing as outlined above, it is found that Lakeland Oaks’ CON application, on balance, best satisfies the applicable statutory and rule criteria.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order approving Lakeland Oaks NH, LLC’s CON Application No. 10309 and denying Eighth Florida Living Options, LLC’s CON Application No. 10303. DONE AND ENTERED this 22nd day of February, 2016, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida32399-3060 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of February, 2016.
Findings Of Fact The Respondent, Paul Rippee operates the Big Oak Trailer Park. He has owned and operated it since 1955. As part of that operation he supplies his residents with water for human consumption. At the present time there are 41 residents in the park who receive their water from 31 service connections. A majority of the residents live in the park all year. The Big Oak Trailer Park water system does not have any means for providing continuous disinfection measures. While Mr. Rippee does have available the means to inject chlorine into the water system on a one shot basis, there is no means for continuous disinfection. The Big Oak Trailer Park water system does not have installed in it a flow meter, that is, a metering device which accurately indicates the volume of water pumped for distribution to residents. Mr. Rippee does not maintain any disinfectant level in the water distributed to the residents. The Big Oak Trailer Park water system is operated exclusively by Mr. Rippee himself. He is not certified as a water system operator by the Department of Environmental Regulation and he has never employed a certified operator for the supervision of his water system. Since the beginning of the year 1980, Mr. Rippee has filed no monthly operation reports as required by Department regulations. At no time since 1955 have any of the numerous tests done on the water supplied by the Big Oak Trailer Park water system indicated that the water was in any way unsafe for human consumption. Mr. Rippee is a small business man. His sole income comes from the Big Oak Trailer Park. At present only 41 people live there. The park is modest in size with small lots which will not accommodate even double-wide mobile homes. While the most commonly used and readily available disinfectant is chlorine, adequate disinfection meeting DER standards may be provided by ozone which is commercially available or by chlorine dioxide which is not yet commercially available. The design pumping capacity of the Big Oak Trailer Park water system is 2,000 gallons per hour or 48,000 gallons per day. Since at least August 28, 1978, Mr. Rippee has been on notice from the Department of Environmental Regulation that the Big Oak Trailer Park water system as deficient under Chapter 403 and Chapters 17-16 and 17-22, Florida Administrative Code, in the following respects: the water system does not have a flow meter, it fails to provide chlorination to the water, the plant is not operated by a certified operator and the monthly operation reports are not being submitted to DER. These deficiencies have continued until November 4, 1980.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the State of Florida, Department of Environmental Regulation either return to Circuit Court to continue its enforcement action under the provisions of Section 120.69, Florida Statutes or that the Department withdraw its Final Order of August 20, 1979, and in its place substitute a new Final Order, finding that the Respondent has violated Section 403.859, Florida Statutes (1979) and order appropriate corrective action as stated in the Notice of Violation, paragraphs A through D. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 22nd day of December, 1980. MICHAEL PEARCE DODSON Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 1980. COPIES FURNISHED: Martha Harrell Hall, Esq. Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32301 Paul Rippee Big Oak Trailer Park 4024 North Monroe Street Tallahassee, FL 32304
The Issue The issue in this case is whether Petitioner should be granted an exemption from disqualification from employment with a private contractor providing adult day training to developmentally disabled clients of Respondent.
Findings Of Fact From April 2016 to October 2016, Petitioner Bertha Delaney ("Delaney") was employed by Cypress Place, Inc. ("Cypress"), a private, nonprofit corporation that provides services to developmentally disabled clients, and operates under the regulatory jurisdiction, of Respondent Agency for Persons with Disabilities ("APD"). Delaney was hired by Cypress as a receptionist, and her responsibilities included answering the phones, handling clerical tasks such as maintaining attendance sheets and filing, and assisting other employees as needed. Cypress operates an adult day training program, which offers "adult day training services" to APD clients. Such services include "training services that take place in a nonresidential setting, separate from the home or facility in which the client resides, and are intended to support the participation of clients in daily, meaningful, and valued routines of the community. Such training may be provided in work-like settings that do not meet the definition of supported employment." § 393.063(1), Fla. Stat. There is no persuasive evidence showing that, during her employment with Cypress, Delaney ever had face-to-face contact with a client while performing adult day training services. She was not, therefore, a "direct service provider" as that term is defined in section 393.063(13), Florida Statutes. Delaney did, however, have incidental, in-person interactions with clients, the evidence establishes, occasionally assisting clients in need of immediate help. Thus, although Delaney did not provide training services to clients, she provided some services in the broader sense of "helpful acts." In early August of 2016, an incident involving a client occurred at Cypress's facility, which the Department of Children and Families ("DCF") investigated. In the course of the investigation, the DCF investigator interviewed Delaney and learned that, because the subject client had appeared to be limping on the day in question, Delaney had helped the client walk from the bus to the building. At the time, Delaney had not yet undergone level 2 background screening because Cypress had not instructed her to do so. Rather, in or around April 2016, when she was hired, Cypress had required Delaney to go to the police department for a local criminal background check, which she did. Delaney, in fact, did everything that Cypress asked her to do with regard to background screening. Soon after (and perhaps because of) the DCF investigation, Cypress directed Delaney to submit to a level 2 background review, which she did.1/ And so it happened that in late August 2016, a search of Delaney's criminal history was performed, and the results were forwarded to DCF, which administers the background screening process for APD. By letter dated October 3, 2016, DCF notified Delaney that it had discovered her criminal conviction on a charge of grand theft of the third degree, to which she had pleaded no contest on June 13, 2001. This crime is a "disqualifying offense" under the applicable screening standards, which means that Delaney is ineligible to work as a direct service provider without an exemption from such disqualification. DCF advised Delaney that she needed to quit her job at Cypress and obtain an exemption from disqualification if she wanted to resume working there. Delaney promptly resigned her position with Cypress. Delaney then sought an exemption from disqualification from employment, submitting her Request for Exemption to DCF in November 2016. By letter dated March 17, 2017, APD informed Delaney that it intended to deny her request based solely on the ground that Delaney had "not submitted clear and convincing evidence of [her] rehabilitation." In other words, APD determined as a matter of ultimate fact that Delaney was not rehabilitated, which meant (as a matter of law) that the head of the agency had no discretion to grant an exemption.2/ APD did not, as an alternative basis for its proposed agency action, articulate any rationale for denying the exemption notwithstanding a showing of rehabilitation, assuming arguendo that such had been made. Delaney initiated the instant proceeding, hoping to prove her rehabilitation. The undersigned has considered the evidence as it relates to the statutory criteria for assessing rehabilitation, and makes the following findings of fact as a predicate for the ultimate determination. The Circumstances Surrounding the Criminal Incident. In or around September of 2000, Delaney stole cash receipts from her employer, Blockbuster Video, totaling approximately $13,800.00. She was soon arrested and charged with grand theft of the third degree, a felony offense as defined in section 812.014, Florida Statutes. At the time of the offense, Delaney, then 25 years old, was experiencing financial difficulties raising two young daughters. Although married, Delaney managed the household mostly on her own, as her husband, an interstate truck driver, was often on the road. Exercising what she now acknowledges was poor judgment, Delaney stole her employer's funds to ease her personal financial burden. On June 13, 2001, appearing before the Circuit Court in and for the Eleventh Judicial Circuit of Florida, Delaney entered a plea of nolo contendere to the criminal charge, was convicted by plea (adjudication withheld), and was sentenced to two years' probation with orders to make restitution in the amount of $13,778.00 to Blockbuster. Delaney completed her term of probation and complied with all of the other conditions imposed by the court, including the payment of restitution. The Time Period That Has Elapsed since the Incident. The disqualifying offense was committed about 17 years ago. Delaney thus has had ample time to restore her reputation and usefulness to society as a law abiding citizen following her conviction, and to mature into an older, more responsible adult. The Nature of the Harm Caused to the Victim. Delaney did not cause personal injury to any person in the commission of her crime. She was ordered to make restitution to the victim, and did, although the details of this transaction are not available in the record. Therefore, the economic harm caused by Delaney's theft appears to have been minimal. The History of the Applicant since the Incident. Since her conviction, Delaney has completed a training program to become a patient care technician and obtained a license to practice in Florida as a certified nursing assistant. She has held positions in these fields and performed admirably. Delaney lives with her two adult daughters, son-in-law, grandson, and fiancé; her current family situation is stable, both emotionally and financially. Her civil rights have been restored. She has not reoffended or otherwise run afoul of the law. APD severely faults Delaney for a so-called nondisclosure in her response to a question on the exemption request form concerning previous employment. The form asks the applicant to "provide your employment history for the last three years." Delaney answered, in relevant part, by stating: "I have not been employed for the last three (3) years." She followed this statement by describing employment predating "the last three (3) years" and explaining that an ankle injury in May 2013 (which required multiple surgeries to repair), together with the attendant convalescence and rehabilitation, had kept her out of the workforce for a couple of years. APD argues that Delaney lied about her employment history——it is undisputed that she had, in fact, worked (for Cypress) during the three years preceding her request for an exemption——and that this alleged "lie" proves Delaney had known not only that she was required to undergo level 2 background screening before taking the job with Cypress, but also that such screening would reveal her disqualifying criminal conviction, and that, therefore, to avoid detection, she had worked without being screened, in knowing violation of law. Put aside for the moment the issue of fact regarding whether Delaney "lied" about her employment history. APD's argument (that this "lie" is proof of Delaney's knowing violation of the background screening law) is illogical. For even if (as a matter of fact3/) Delany were required to be screened, and even if (as a matter of law4/) the background screening statutes were personally violable by an applicant or employee, Delaney's allegedly fraudulent answer to the employment history question does not rationally lead to the conclusion that she knew either of these premises to be true. Moreover, as discussed in endnote 1, it is unacceptable for an agency to rely upon an applicant's alleged violation of a regulatory statute as grounds to deny an exemption request where such alleged violation has never been proved in an enforcement proceeding. This is because any person charged with committing a disciplinable offense must be served with an administrative complaint and afforded clear notice of the right to a hearing, at which, if timely requested, the agency must prove the alleged wrongdoing by clear and convincing evidence. APD wants to skip all that and just have the undersigned find here, for the first time, that Delaney clearly violated section 393.0655 by working at Cypress for at least six months without being screened. See Resp.'s PRO at 9. That's not happening. The only relevant finding in this regard, which the undersigned makes, is that Delaney has never been found to have violated section 393.0655 by working at Cypress for at least six months without being screened. As for the alleged "lie," APD's position that Delaney's response to the employment history question was knowingly and intentionally false (by omitting reference to Cypress) does not make sense, because DCF already knew (from investigating an unrelated matter) that Delaney had worked for Cypress, and Delaney knew that DCF was aware of this fact when she filled out the form. That cat was out of the bag. At hearing, Delaney testified credibly and convincingly that she had not intended to mislead DCF. It is clear that she interpreted the question as asking about her employment during the three years before the job from which she had been disqualified (as opposed to the three years before completing the exemption request form). She misunderstood the question, to be sure, but it was an honest mistake, and the undersigned can appreciate how a person in Delaney's shoes could conclude that the job from which one has recently been disqualified does not "count" towards her employment history for purposes of seeking an exemption from disqualification. Delaney's testimony in this regard is corroborated by the fact that she submitted to DCF, as part of her exemption request package, two letters of recommendation from employees of Cypress, written on Cypress letterhead, attesting to her good character. These letters, taken together, make it clear that Delaney had recently been an employee of Cypress. Obviously, if Delaney had intended, knowingly, to deceive DCF by concealing her employment with Cypress, she would not have provided these letters. APD argues that one of these letters, from Rashard Williams, which is dated October 27, 2016, does not specifically indicate that Delaney ever worked at Cypress——and thus does not bolster Delaney's testimony that she never intended to conceal the fact that she had. To reach this conclusion one must discount the writer's statement that "Ms. Delaney has proven herself to be reliable, trustworthy, and compassionate both as a person and as an employee." If the Williams letter were the only written recommendation from a Cypress employee, however, the undersigned would consider APD's interpretation to be, while certainly not the best or most reasonable, at least plausible in view of Mr. Williams's additional comments about how well Delaney took care of his grandmother in a capacity, apparently, other than as an employee of Cypress. But the companion to the Williams letter, a recommendation from Mark Chmiel dated October 24, 2016, leaves no room for doubt that Delaney was a recent employee of Cypress. A short, two-sentence excerpt suffices to support this finding: "Bertha is an invaluable addition to our agency [i.e., Cypress,] and she has fulfilled the potential of her position far better than anyone before her. Her moral character is beyond reproach and I have no qualms about trusting her with our clients."5/ The letters of recommendation that Delaney furnished DCF refute the notion that she knowingly omitted Cypress from her employment history with the intent to mislead DCF. They prove, instead, that Delaney took for granted DCF's knowledge of her work for Cypress, for she was certain DCF already knew about it. In turn, that foundational assumption (which, in fact, was true) prompted Delaney to provide a history of her employment during the several years leading up to the job with Cypress. The undersigned finds that Delaney is not guilty of knowingly withholding material information from DCF in response to the question about her previous employment. Finally, the undersigned observes that APD, in its preliminary decision-making, impermissibly allowed speculation and conjecture to take the place of facts. In forming its intent to deny Delaney's application, APD took into account the "possibility that Ms. Delaney was trying to protect Cypress Place from demonstrating that they were in violation of the screening laws" as well as the "possibility that Rashard Williams might have tried to hide the fact [sic6/] that there was a violation of the screening requirements by Cypress Place." Resp.'s PRO at 10 (emphasis added). On the basis of this rank speculation, APD conjectured that "Ms. Delaney was willing to collude with [Cypress employees] in order not to spotlight their violation of the licensing law." Resp.'s PRO at 18. APD proved none of this imaginative guesswork. Circumstances Showing Applicant Poses No Danger. Yvonne Ginsberg, the executive director of Cypress, testified in support of Delaney's application. Ms. Ginsberg stated that Delaney was an "excellent" employee and affirmed that she had "no qualms" about Delaney's returning to work at Cypress once an exemption has been secured. The undersigned credits Ms. Ginsberg's testimony as to Delaney's character. In addition, Delaney submitted the written character references of Messrs. Chmiel and Williams, which were discussed above. These documents credibly attest to Delaney's trustworthiness, integrity, and ethical behavior. The undersigned finds without hesitation that Delaney would likely not present a danger in the future if an exemption from disqualification were granted. Ultimate Factual Determination The undersigned has determined, based on clear and convincing evidence, including sufficient persuasive evidence of rehabilitation, that Delaney should not be disqualified from employment because she is, in fact, rehabilitated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons with Disabilities enter a final order granting Bertha Delaney the exemption from disqualification for which she is, in fact, eligible. DONE AND ENTERED this 18th day of August, 2017, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 18th day of August, 2017.
The Issue The issue in this case is whether sanctions, including attorney's fees and costs, should be assessed against Respondent, the Lake Region Audubon Society, Inc. (LRAS), and awarded to Petitioner, Spanish Oaks of Central Florida, LLC (Spanish Oaks), under Sections 57.105, 120.569(2)(e), and 120.595(1), Florida Statutes,1 after LRAS unsuccessfully challenged the Southwest Florida Water Management District's (SWFWMD's) issuance of Environmental Resource Permit (ERP) Number 44025789.001 to Spanish Oaks.
Findings Of Fact LRAS' Amended Petition SWFWMD issued ERP 44025789.001 to Spanish Oaks on April 27, 2004. On May 11, 2005, Donna Stark, a member of LRAS, made a presentation to the LRAS board of directors asserting that Spanish Oaks was using one-to-three sinkholes to collect runoff water, instead of digging retention ponds, contrary to legal requirements and was polluting the underlying aquifer. She asked LRAS to consider filing an administrative challenge to the ERP. After the presentation, the LRAS board decided that its five-member Steering Committee--which took the place of a president, rotated responsibility for conducting board meetings, and functioned like an executive committee--would continue to investigate and make a decision as to what role LRAS should have in the future. The Steering Committee reviewed the information presented by Starks, decided to file a challenge, and invited Starks to help draft a Petition for Administrative Proceeding (LRAS Petition), which was signed by four members of the Steering Committee between May 31 and June 2, 2005, and was filed with SWFWMD on June 6, 2005. Because the timeliness of the LRAS Petition could not be ascertained from the allegations, SWFWD dismissed the Petition without prejudice. On July 11, 2005, an Amended Petition was filed, clarifying that LRAS was orally informed about the Spanish Oaks ERP by one of its members, later identified as Donna Stark, on May 10, 2005. The Amended Petition was signed by LRAS Steering Committee/Acting President Carrie Plair on July 6, 2005, and filed with SWFWMD, which determined that the Amended Petition was timely filed and substantially complied with the requirements for a petition and referred it to DOAH, where it was given DOAH case number 05-2606 and scheduled for a final hearing on September 22-23, 2005. The Amended Petition alleged in ¶5: The following evidence of the karst nature of the site is submitted: On February 3, 2005, in a meeting of Donna Stark, a member of [LRAS], with Sherry Windsor and biologist Jeff Whealton, the District personnel called in their geologist Tom Jackson for his professional opinion on this issue. Based on his training in karst geology and years of field observation at this site (prior to current ownership), Mr. Jackson referred to this structure as a fracture (an elongate sinkhole). Another individual who has graduate training in karst topography and who has studied this site for several years also has informed [LRAS] that this sinkhole has a vertical pipe and was an active "surface-to- ground water system" (Affidavit of Charles Cook - Ex. 8) Petitioners have consulted professionals who specialize in geological and geotechnical engineering and who are well recognized for their work in the state. Based on the available information they have expressed concern and have indicated that a thorough and detailed investigation consisting of geophysical and geotechnical methods should be performed to address the concerns of this Petition. Donna Stark, a member of [LRAS], observed first-hand the sinkhole in the southeast portion of Spanish Oaks collapsed during construction of the retention pond (perhaps due to heavy equipment or due to heavy rains of the fall 2004 hurricanes). Refer to Affidavit - Ex. 9. Paragraph 5. iv) of the Amended Petition continued and asserted that “[o]n November 13, 2004, LRAS member Donna Stark was informed by a man who had worked on the Spanish Oaks site [later identified as George Wilt] that the retention ponds were 30 feet deep.” It also asserted that LRAS member Donna Stark observed firsthand a sinkhole collapse that allegedly occurred in the southeast portion of Spanish Oaks site during construction of Retention Pond A. The Amended Petition alleged that on January 25, 2005, Donna Stark, along with a state employee (later identified as Timothy King), observed a "very large cone- shaped depression with smooth steeply-sloping sides – so steep that Donna Stark was nervous that the front-end loader driving up and down the slopes could end up in the aquifer if he lost traction in the loose unconsolidated sands. In the center of the depression was a lake perhaps 50 feet in diameter." The Amended Petition further alleged that “Donna Stark judged the distance from the top of the ground surface to the water surface to be about 15 feet.” It also asserted: "On February 4, 2005, Donna Stark went to the District office in Bartow to discuss this issue with the engineer in charge of the project, Sherry Windsor, biologist Jeff Whealton and geologist Tom Jackson. The engineering worksheet in the file shows a required depth of 6.5 feet from pond bottom elevation (136.5') to top of bank elevation (143.0')[.] It was suggested by one of the District scientists that the retention pond had collapsed during construction to create the observed depth. This is the only logical explanation in the opinion of Petitioner since [that would be a violation and grounds for revocation, as well very expensive, and would serve no useful purpose]." It also alleged that, "[w]hen Donna Stark returned on February 10, 2005, the area had been filled with sand to the required elevation and was flat-bottomed." On the clay core issue, paragraph 5. iv) of the Amended Petition alleged: "When Donna Stark spoke to William Hartmann, [SWFWMD] Surface Waters Regulation Manager, on April 21, 2005 he indicated that he had received no phone call from Permittee and that District staff had not inspected the clay core construction. At that time, the 'As-Built' inspection had been requested." The "Concise Statement of Ultimate Facts Alleged" included the statement: "Permittee also did not inform the District, as required, when (and if) a clay core was constructed in the berms. Serious impacts on adjacent property may be expected if the clay cores were not properly constructed." The Amended Petition in ¶6 alleged the following as disputed issues of material fact: the Permit allows construction of a retention pond in a sinkhole in the southeast portion of the site; construction of a retention pond in a sinkhole creates a danger to public health and safety; Spanish Oaks failed to notify SWFWMD that it was beginning construction of the clay cores of certain berms surrounding the retention ponds, as required by a permit condition so that SWFWMD could inspect during the construction; and Spanish Oaks failed to follow SWFWMD rules by neglecting to provide for permanent erosion control measures. LRAS’ Amended Petition asserted in ¶7. ii) that the Spanish Oaks development violated Florida Administrative Code Rule 62-522.300(1) and (3),2 which provided in pertinent part: (1) . . . [N]o installation shall directly or indirectly discharge into ground water any contaminant that causes a violation in the . . . criteria for receiving ground water as established in Chapter 62-520, F.A.C., except within a zone of discharge established by permit or rule pursuant to this chapter. * * * (3) Other discharges through wells or sinkholes that allow direct contact with Class G-I, Class F-I, or Class G-II ground water shall not be allowed a zone of discharge. It was alleged that this violation required reversal or modification of the proposed agency action. It was later revealed that the professionals referred to in paragraph 5. iii) of the Amended Petition included three engineers, one named Larry Madrid, and "many, many professionals of different government agencies." The attached "affidavit" (actually, an unsworn statement) of Charles Cook set out the basis of his knowledge of karst geology in general, and the Spanish Oaks site in particular, and his "conclusion that three depressional features existed on the subject parcel and I personally explored a subterranian [sic] void in a depressional sinkhole located in the southern part of the parcel in question, and believe it was an active recharge conduit connecting with subsurface aquifers." The attached "affidavit" (actually, an unsworn statement) of Donna Stark included the statement: "I hereby certify that the information submitted to [LRAS] concerning Spanish Oaks is true and accurate to the best of my knowledge." It also repeated some of the allegations in the Amended Petition and gave her "qualifying credentials for the above observations and interpretations" including: Ph.D. in Ecology from the University of Minnesota - 1971 with thesis title "Paleolimnology of Elk Lake, Itasca State Park, Northwestern Minnesota" Post-doctoral Research at Limnological Research Center, University of Minnesota 1972-1973 - published 1976 Science teaching at Southeastern College in Lakeland 1973-1974. Full Professor. The Amended Petition also was buttressed with citations cited to several scientific publications about karst geology, sinkholes, and stormwater retention ponds. It is clear that LRAS relied heavily on Donna Stark and her educational background and scientific knowledge, her alleged personal knowledge, and her alleged discussions with various professionals, including District personnel. Starks actually drafted almost all of the Petition and Amended Petition for the LRAS Steering Committee. Proceedings in Case 05-2606 LRAS was represented in Case 05-2606 by Paul Anderson, a member of LRAS' Steering Committee. By letter filed July 27, 2005, LRAS requested that the ALJ enter an order requiring a halt to all work on Spanish Oaks. On August 1, 2005, Spanish Oaks filed a Motion to Dismiss, or in the Alternative, Motion to Strike. The grounds were that there was no jurisdiction to enforce compliance with permit conditions, which the prayer for relief in the Amended Petition seemed to seek, and that allegations of non-compliance with ERP conditions should be stricken as irrelevant to issuance of the ERP. Discovery was initiated in Case 05-2606. In addition, in response to concerns expressed in the Amended Petition, Spanish Oaks hired Sonny Gulati, a professional engineer and expert in the field, to undertake a sinkhole investigation on the Spanish Oaks property using ground penetrating radar (GPR) and standard penetration testing (SPT). Mr. Gulati concluded that there were no active sinkholes on the site and prepared a report to that effect. Spanish Oaks presented the report to LRAS in August 2005; Spanish Oaks also served LRAS with a Motion for Attorney's Fees under Sections 57.105, 120.569(2)(e), and 120.595(1)(a-e), Florida Statutes (Motion), and informed LRAS that Spanish Oaks would file the Motion within 21 days if LRAS did not drop its opposition to the ERP. The Motion specifically alleged the impropriety of the sinkhole and clay core issues raised in the Amended Petition but did not mention the erosion control issue. LRAS' first attempt at discovery was defective in that its interrogatories and requests for production were directed to witness Tom Jackson instead of SWFWMD. SWFWMD moved for a protective order, which was granted on August 17, 2005. LRAS promptly served interrogatories and requests for production on SWFWMD and Spanish Oaks. Also on August 17, 2005, an Order was entered explaining to LRAS the procedure for obtaining qualified non- attorney representation, and an Order on Motion to Dismiss or Strike and Request for Stop-Work Order was entered. The latter Order recognized that the peculiar procedural posture of the case (namely, that LRAS' Amended Petition was timely even though it challenged an ERP purportedly issued in April 2004) contributed to the incorrect wording of LRAS' prayer for relief; placed a gloss on LRAS' prayer for relief as seeking denial, not revocation, of the ERP; and declined to strike allegations of non-compliance with the ERP, as they could be relevant to LRAS' challenge to the provision of reasonable assurance by Spanish Oaks. The stop-work request was denied for lack of jurisdiction to give injunctive relief in an enforcement matter. (Unbeknownst to the ALJ, on July 22, 2005, SWFWMD approved the transfer of the ERP to the operation phase, with responsibility for future operation and maintenance transferred to the Spanish Oaks of Central Florida Homeowners Association (HOA), notwithstanding the requirement of Section 120.569(2)(a), Florida Statutes, that SWFWMD take no further action on the ERP except as a party litigant.) By letter dated August 26, 2005, LRAS requested that Spanish Oaks allow its retained engineer to enter, inspect, and conduct investigations on the Spanish Oaks site. Spanish Oaks denied this request. At the end of August and in early September 2005, the parties exchanged hearing exhibits and witness lists in accordance with the Order of Pre-Hearing Instructions. When LRAS followed the procedure for obtaining approval of qualified, non-attorney representation by Mr. Anderson, Spanish Oaks objected to Mr. Anderson's qualifications. On September 7, 2005, an Order Authorizing Qualified Representation was entered. It recognized the short- comings in Mr. Anderson's qualifications, and the possibility that representation by a Florida attorney would benefit LRAS and make the proceeding fairer to all (including LRAS). Also on September 7, 2005, Spanish Oaks filed its Motion for Attorney's Fees under Sections 57.105, 120.569(2)(e), and 120.595(1)(a-e), Florida Statutes. Cf. Finding 14, supra. On September 12, 2005, LRAS filed a request for permission to add Mr. Madrid to its witness list. On September 14, 2005, an Order Denying, without Prejudice, Request to Add Witness was entered because the request did not indicate whether LRAS had conferred with the other parties. On September 15, 2005, Spanish Oaks filed a Response in Opposition to Request for Entry upon Land for Inspection and Other Purposes and Motion for Protective Order. Spanish Oaks asserted that it no longer had control over the retention ponds, which were controlled by the HOA, and that home construction was in progress, making timing and coordination of the request problematic, if not impossible. Spanish Oaks also asserted that, if the inspections were allowed, multiple issues would have to be addressed, including potential liability and insurance issues, and that more detail would be required to ensure that LRAS' inspection, which could include drilling sample borings in the retention ponds, would not compromise the integrity of the stormwater system and retention ponds. By letter dated September 19, 2005, LRAS requested that Spanish Oaks agree to the addition of Mr. Madrid as a witness. By another letter dated September 19, 2005, LRAS requested that Spanish Oaks produce back-up documentation supporting Mr. Gulati's sinkhole investigation report, including site maps of GPR test locations, the uninterpreted GPR raw data, the GPR strip charts, as well as the actual SPT soil borings, because LRAS' retained expert geologist, Marc Hurst, had advised LRAS that the information was necessary for him to determine the reliability of Mr. Gulati's report and conclusions. A telephone hearing was held on September 20, 2005, on LRAS' requests to add Mr. Madrid to its witness list, for Mr. Hurst to be allowed entry on the Spanish Oaks site to inspect and investigate, and for Mr. Hurst to be allowed to review the back-up documentation and SPT borings supporting Mr. Gulati's report. No party ever requested a continuance of the final hearing (set to begin in just two days), and the request to add Mr. Madrid as a witness was denied as too late. It is not known what Mr. Madrid's testimony would have been. LRAS dropped its request for entry on land in the face of the opposing arguments from Spanish Oaks. As to the back-up documentation supporting Mr. Gulati's report, Mr. Gulati was required to bring the documents to the final hearing but Spanish Oaks was not required to produce the SPT borings, which were represented to be numerous and a large quantity of soil. Immediately before the start of the final hearing, Spanish Oaks filed both a Motion in Limine, which was denied, and a Motion for Summary Recommended Order. Ruling on the pending motions was deferred. Spanish Oaks' Motion for Summary Recommended Order Motion was based on arguments that LRAS' filing of the Amended Petition was "ultra vires" and that LRAS had no standing. These issues (which ultimately were resolved in favor of LRAS and against Spanish Oaks) were the focus of much of the effort of Spanish Oaks in discovery and in the final hearing, as reflected in the Recommended Order in the case. Recommended and Final Orders in Case 05-2606 After the final hearing, Spanish Oaks filed a proposed recommended order suggesting that jurisdiction to rule on its Motion for Attorney's Fees under Sections 57.105, 120.569(2)(e), and 120.595(1)(a-e), Florida Statutes, should be retained. A Recommended Order that ERP 44025789.001 be issued to Spanish Oaks was entered in Case 05-2606 on November 10, 2005. Jurisdiction was retained to consider Spanish Oaks’ Motion for Attorney's Fees under Sections 57.105, 120.569(2)(e), and 120.595(1)(a-e), if renewed within 30 days after issuance of the final order. On November 30, 2006, SWFWMD entered a Final Order adopting the Recommended Order in its entirety and issuing ERP 44025789.001 to Spanish Oaks. As to the ERP criteria, the Recommended Order found in pertinent part: Alleged Sinkholes * * * Marc Hurst, a geologist who testified for LRAS, opined that Mr. Gulati’s sinkhole investigation was insufficient to demonstrate whether or not the Spanish Oaks retention ponds were constructed over sinkholes.11 However, Mr. Hurst offered no opinion as to whether the retention ponds are located over active sinkholes. Nor did Mr. Hurst specifically disagree with Mr. Gulati’s conclusion that the Spanish Oaks retention ponds have not been impacted by active sinkholes.12 To the contrary, Mr. Hurst admitted that the retention ponds were holding water on the day that he observed them--indicating that to him that the ponds were not acting as a strong conduit to the aquifer. Mr. Gulati also noted the significance of the presence of water in the ponds, stating that, if there were active sinkholes in the ponds, they would not hold water.13 EN. 11 - Notably, Mr. Hurst has only participated in four sinkhole investigations and reviewed the reports of approximately six other such investigations, while Mr. Gulati has conducted between 700 and 800 during the past ten years. EN. 12 - The anecdotal testimony of Charles Cook and Tom Jackson regarding their observations of depressions and “cracks” at the site several years earlier did not support a finding that there is an active sinkhole. Mr. Jackson, a geologist for SWFWMD, was not willing to draw such a conclusion. EN. 13 - Mr. Gulati acknowledged that, in areas where the aquifer is under artesian pressure, an active sinkhole will hold water. However, that aquifer condition does not exist in the vicinity of Spanish Oaks. T. 358. The only suggestion of any sinkhole- related damage to the retention ponds came from Donna Stark, who testified that George Wilt--a heavy equipment operator at the site incorrectly identified by Ms. Stark as “an employee of Spanish Oaks”--told her that there had been a sinkhole collapse during the excavation of Pond A. This hearsay testimony was directly contradicted by Mr. Wilt himself, who testified that he made no such statement. Despite the allegation in LRAS’ petition regarding observations of collapse of sinkhole by Donna Stark, Ms. Stark herself admitted at hearing that she did not witness any actual collapse. Rather, she testified that, on January 25, 2005, she saw what she believed to be the aftermath of a sinkhole collapse. Stark may have been confused by the amount of excavated material being stored on the ground surface around the pond. 43,906 cubic yards of dirt was excavated from Pond A alone and was stacked to a height of 8-10 feet higher than the natural ground elevation. Others who observed the site on January 25, 2005, saw no evidence of a sinkhole collapse. Tim King, a Florida Fish and Wildlife Conservation Commission employee who was with Ms. Stark on January 25, 2005, merely reported seeing pond excavation in process. Laura Howe, a SWFWMD employee who inspected the site on that date, observed that “[i]t appears depth of ponds are [p]robably close to permitted depth.” Moreover, Ms. Stark admits that, on February 10, 2005, she observed the ponds to be “[s]even and a half feet, or six and a half, whatever it should be.” Ms. Stark’s suggestion that the collapse was filled in between January 25 and February 10, 2005, is belied by testimony that repairing a sinkhole collapse of the size suggested by Ms. Stark would have required much more material than was available. (No dirt was imported onto the site.) The evidence admitted at hearing requires a finding that there was no sinkhole collapse onsite. Spanish Oaks provided reasonable assurance that the System was designed and constructed to include sufficient separation between the pond bottoms and the Floridan Aquifer to prevent groundwater contamination. Construction of Berms LRAS contended in its Amended Petition that Spanish Oaks failed to give notice prior to constructing clay cores in some of the berms onsite, as required as a condition of the ERP, and that this failure constituted failure to provide reasonable assurances.14 EN. 14 - The Amended Petition actually alleged that this was a permit condition violation requiring revocation of the ERP. However, it was ruled prehearing that "the Petitioner's request for revocation actually is a request for a final order denying Spanish Oaks' application for a permit" and that "the allegations of non- compliance with permit conditions should not be stricken but instead should be considered only as they might relate to Spanish Oaks' provision of required reasonable assurances for issuance of a permit." See Order on Motion to Dismiss or Strike and Request for Stop-Work Order, entered August 17, 2005. The interconnection of the three ponds that are part of the System will allow them to function as one pond, while a perimeter berm around the entire Spanish Oaks project will ensure that surface water runoff is retained onsite and directed toward the ponds. Ponds A and C are located, respectively, at the southeast and northeast corners of Spanish Oaks.15 The design plans submitted with the ERP application indicated that the berms alongside the eastern side of Ponds A and C are to include clay cores, a design feature that was included as a specific condition in the ERP. The purpose of the clay cores was to prevent offsite impacts caused by lateral movement of water. EN. 15 - Pond B is centrally located in the Spanish Oaks’ interior. The specific conditions of the ERP also required that Spanish Oaks notify SWFWMD's "Surface Water Regulation Manager, Bartow Permitting Department [William Hartmann], at least 48 hours prior to commencement of construction of the clay core, so that District staff may observe this construction activity." LRAS proved that Mr. Hartmann did not personally receive a phone call prior to the construction of the clay cores, as required by the ERP, and that SWFWMD staff did not observe the construction. Mr. Hartmann explained that this constituted a permit condition compliance issue which would prevent the ERP from being transferred to the operation phase until SWFWMD was assured that the clay core was, in fact, constructed as required. To confirm proper construction of the clay core, Spanish Oaks undertook soil borings. SWFWMD staff engineer Sherry Windsor was onsite to observe the soil borings. Spanish Oaks also submitted a report from its engineering consultant certifying that the clay cores had been properly constructed in accordance with the ERP. SWFWMD typically relies on a project engineer’s signed and sealed certifications of compliance matters. SWFWMD staff observations and the certification provided by the Spanish Oaks engineer satisfactorily resolved the issue of proper clay core construction. Failure to notify Mr. Hartmann prior to construction, as required by the ERP, does not undermine Spanish Oaks' provision of the necessary reasonable assurance for issuance of the ERP. Endnote 3 at Finding of Fact 4 in the Recommended Order in Case 05-2606 stated: "The Amended Petition also alleged that Spanish Oaks failed to follow SWFWMD rules by neglecting to provide for permanent erosion control measures, but no evidence was presented by LRAS on this issue, which appears to have been abandoned." As to the ERP criteria, the Recommended Order concluded in pertinent part: The applicable criteria for the issuance of a standard general ERP for the Spanish Oaks project are set forth in Rules 40D-4.301 and 40D-4.302, as well as SWFWMD's Basis of Review (BOR), which is made applicable pursuant to Rule 40D-4.301(3). LRAS’ challenge to the ERP alleges the presence of a sinkhole or a sinkhole collapse in one or more of the retention ponds for the Spanish Oaks subdivision, and the impact that such alleged sinkhole or sinkhole collapse would have on conditions for issuance relating to groundwater quality. LRAS’ case reflects a basic misperception of the permitting criteria applicable to surface water management system retention ponds. Section 6.4.1.b. of the BOR, which establishes specific design criteria for retention areas, requires as follows: Depth – The detention or retention area shall not be excavated to a depth that breaches an aquitard such that it would allow for lesser quality water to pass, either way, between the two systems. In those geographical areas of the District, where there is not an aquitard present, the depth of the pond shall not be excavated to within two (2) feet of the underlying limestone which is part of a drinking water aquifer. As found, the Spanish Oaks retention ponds comply with this criterion. LRAS also contends that the Spanish Oaks retention ponds violate Rule 62- 522.300, a rule which, in LRAS’ view, prohibits the location of a stormwater retention pond in or over a sinkhole. LRAS’ reading of the rule is incorrect. Rule 62- 522.300(1), with certain exceptions not relevant here, provides that no installation shall directly or indirectly discharge into ground water any contaminant that causes a violation in the . . . criteria for receiving ground water as established in Chapter 62-520, F.A.C., except within a zone of discharge established by permit or rule pursuant to this chapter. The purpose of a zone of discharge is to provide a mixing zone “extending to the base of the designated aquifer or aquifers, within which an opportunity for the treatment, mixture or dispersion of wastes into receiving ground water is afforded.” Fla. Admin. Code R. 62-520.200(23). No evidence introduced at hearing suggests that the surface water runoff that infiltrates through the bottom surfaces of the Spanish Oaks retention ponds, and then travels approximately 70 feet through soil before reaching the Floridan aquifer, will exceed applicable ground water criteria when it reaches the aquifer. For that reason, the Spanish Oaks retention ponds do not need a zone of discharge. Rule 62-522.300(3) provides that Other discharges through wells or sinkholes that allow direct contact with Class G-I, Class F-I, or Class G-II ground water shall not be allowed a zone of discharge. (Emphasis supplied). Classes F-1, G-1, and G-II groundwaters are designated for potable use and are located within an aquifer. Fla. Admin. Code R. 62-520.410. “Aquifer” is specifically defined as “a geologic formation, group of formations, or part of a formation capable of yielding a significant amount of ground water to wells, springs or surface water." Fla. Admin. Code R. 62- 520.200(2). Unless the alleged sinkholes allowed "direct contact" with the Floridan Aquifer, a zone of discharge would be permitted, assuming one were needed. No evidence introduced at hearing suggests that discharges from the retention ponds will come into direct contact with Class G-1, Class F-1, or Class G-II groundwaters. Instead, the discharges from the Spanish Oaks ponds only indirectly contact a drinking water aquifer, after infiltrating through tens of feet of separating soil layers. LRAS has not identified any applicable rule that prohibits the location of a retention pond in or over a relic sinkhole. Indeed, the record establishes that the presence of a sinkhole in or under a retention pond is problematic only if sinkhole activity affects the approved design of the retention pond. See Findings 47 and 49, supra. LRAS’s assertion of a sinkhole collapse at Spanish Oaks during the time frame alleged is contrary to the greater weight of the evidence, which established that the ponds have been constructed and are operating as designed and that there is no active sinkhole on the Spanish Oaks site that adversely affects the quality of receiving waters such that state water quality standards would be violated, or that otherwise affects Spanish Oaks’ ability to provide reasonable assurance of meeting applicable permitting conditions. LRAS offered no evidence to establish that water percolating through the Spanish Oaks retention ponds will come into direct contact with a drinking water aquifer or that a state water quality standard would be violated by the project. The greater weight of the evidence established that the Spanish Oaks retention ponds comply with the applicable construction requirement as stated in BOR Section 6.4.1.b. There is more than sufficient soil underlying the Spanish Oaks retention ponds to assure compliance with this requirement. As found, Spanish Oaks' failure to notify Mr. Hartmann before beginning construction of the clay core berm does not prevent Spanish Oaks from providing reasonable assurance that permit criteria will be met. As a result, Spanish Oaks has met its burden of proof and persuasion that all conditions for issuance of the permit have been satisfied and that it is entitled to the requested ERP. As suggested in the proposed recommended order filed by Spanish Oaks in Case 05-2606, the Recommended Order retained jurisdiction to consider Spanish Oaks’ Motion for Attorney's Fees under Sections 57.105, 120.569(2)(e), and 120.595(1)(a-e), if renewed within 30 days after issuance of the final order. Spanish Oaks "renewed" the motion by filing its Petition in this case. SWFWMD's Final Order adopted the Recommended Order in its entirety. Petition in Case 05-4644F The Petition in this case asserts essentially that LRAS had no competent substantial evidence: that there was an active sinkhole under the retention ponds on the Spanish Oaks site; that the required clay core was not installed; or that erosion control measures were not used. As to the sinkhole allegations, Spanish Oaks asserts that, even if there were a reasonable basis for filing the Amended Petition in Case 05- 2606, it should have been withdrawn upon receipt of Mr. Gulati's report and Spanish Oaks' Motion for Attorney's Fees under Sections 57.105, 120.569(2)(e), and 120.595(1)(a-e), Florida Statutes. As indicated in the findings of fact and conclusions of law in Case 05-2606, Donna Stark and Charles Cook did not testify precisely as LRAS had been led to believe from their "affidavits" in the Amended Petition that they would. Likewise, the testimony of Timothy King and George Wilt was not supportive of Donna Stark's "affidavit" as to a sinkhole collapse during construction on the site, or her testimony as to Mr. Wilt's statements to her. The testimony of Tom Jackson and Charles Cook also did not completely support Donna Stark's "affidavit" as to the existence of sinkholes on the site. But while the use of "discovery" to establish the testimony of those individuals before the hearing certainly might have alerted LRAS to problems with the "affidavits" it was relying on, it was not incumbent on LRAS to undertake such "discovery" in order to avoid sanctions. It is not found that LRAS's prosecution of its Amended Petition in reliance on those "affidavits" was frivolous, for an improper purpose, or to needlessly increase the costs to Spanish Oaks of having its ERP approved. LRAS' prosecution of the Amended Petition after receiving Mr. Gulati's report and notice of Spanish Oaks' intention to file its Motion for Attorney's Fees under Sections 57.105, 120.569(2)(e), and 120.595(1)(a-e), Florida Statutes, also was not proved to be frivolous, for an improper purpose, or to needlessly increase the costs to Spanish Oaks of having its ERP approved. LRAS attempted to follow up on Mr. Gulati's report so as to enable its retained expert, Mr. Hurst, to verify whether it should be accepted as conclusive proof of the hydrogeology of the site, and perhaps assure LRAS that its Amended Petition could be withdrawn, but LRAS' attempts were unsuccessful. As a result, LRAS was left to presentation of Mr. Hurst's testimony based on the information he had. Mr. Hurst testified to the likely existence of at least three sinkholes at the site. He based this testimony on his knowledge of the area's stratigraphy, aerial photographs and topographical maps showing unexplained surface depressions, and evidence reported in Mr. Gulati's report. In addition, there are two documented sinkholes in the "immediate vicinity" of the site and about a dozen more within two-to-three miles. Based upon his review of all of the pertinent data, Mr. Hurst testified that the surface depressions on the site probably are part of a "lineament"--i.e., a fracture in the limestone formation below the earth's surface along which sinkholes tend to form. While he was unable to testify that an active sinkhole existed at the site, he maintained that the information presented to him was insufficient to disprove the existence of an active sinkhole at the site. He also testified to his opinion that relic sinkholes probably existed under the retention ponds. As found in the Recommended Order in Case 05- 2606: A relic sinkhole, as contrasted to an active sinkhole, has either been sealed or has self-sealed, so that there is no connection between the sinkhole and the underlying aquifer. An active sinkhole provides a direct connection--referred to by both LRAS’ and Spanish Oaks' experts as a “good communication”--between the surface and the aquifer. Mr. Hurst testified that, even if no active sinkhole existed at the site, the likely relic sinkholes made it more likely that active sinkholes would open there and create a direct conduit to the aquifer. At the final hearing and in its proposed recommended order in Case 05-2606, LRAS argued that the Spanish Oaks retention ponds violated Rule 62-522.300, even if they were not constructed over active sinkholes but rather only over relic sinkholes. As concluded in the Recommended Order and Final Order in Case 05-2606, such an interpretation of the Rule would be "incorrect" and a "misperception." But LRAS' primary argument was that Spanish Oaks did not provide reasonable assurance that there were not active sinkholes at the site, and the "fall-back" argument was not unreasonable to make based primarily on Mr. Hurst's testimony. The Petition also asserted that LRAS had no evidence in support of its allegation that the required clay core was not installed, or that required erosion control measures were not provided. But facts supported a finding that Spanish Oaks did not notify SWFWMD, as required, which was ruled to be relevant to the provision of reasonable assurance in general, and the erosion control issue was a minor feature of the Amended Petition, and the Motion for Attorney's Fees under Sections 57.105, 120.569(2)(e), and 120.595(1)(a-e), Florida Statutes, filed in Case 05-2606 did not mention it. Evidence was presented during the final hearing in Case 05-2606 that the challenge in LRAS' Petition and Amended Petition was virtually identical to a challenge to Spanish Oaks' ERP that was filed by Donna Starks on behalf of her not-for- profit corporation, Central Florida EcoTours, in early May 2005 but was time-barred and dismissed because Starks and Ecotours received mailed notice of the issuance of the ERP to Spanish Oaks on April 27, 2004. Spanish Oaks implied during the final hearing in Case No. 05-2606 that Donna Starks told LRAS about the fate of the EcoTours challenge and asked LRAS to file its Petition and Amended Petition at her behest to block the Spanish Oaks development for leverage to accomplish her ulterior motive- -namely, purchase of the property by EcoTours. But those allegations were denied by LRAS and were not proven during the hearing in Case 05-2606.
The Issue The issue is whether Respondent violated section 112.313(6), Florida Statutes (2013), by corruptly using his position as a member of the Live Oak City Council to direct the Live Oak Fire Chief to perform duties at his sister’s apartment, thereby securing a benefit for himself or others, and, if so, what is the appropriate penalty.1/
Findings Of Fact Background At all times material to this proceeding, Respondent served as a member of the Live Oak City Council. At the time of the events giving rise to this proceeding, Respondent had served as a councilman for two years, and had been employed full-time as a corrections officer for the Suwannee County Sheriff’s Office for five years. Respondent is subject to the requirements of Part III, chapter 112, Florida Statutes, the Code of Ethics for Public Officers and Employees, for his acts and omissions during his tenure as a member of the City Council. George “Chad” Croft is the Fire Chief for the City of Live Oak. At the time the relevant events took place, he had been the Fire Chief of the City of Live Oak for about 10 years. Prior to that, he served as the Assistant Fire Chief, as a Lieutenant with the fire department, and as a firefighter. He has worked for the Fire Department for over 25 years. Chief Croft injured his shoulder in July 2011. He had surgery on his shoulder on May 30 or 31, 2012. The injury was deemed work related and thus placed him under workers’ compensation. Chief Croft was on workers’ compensation leave during the relevant time period. However, he was coming in periodically as needed to take care of certain city business as instructed by then City Administrator Bob Farley. This included attending city council meetings, answering e-mails, working on the fire department budget, and working on time sheets. Chief Croft considered these assignments to be “light duty.” Tropical Storm Debby In late June of 2012, Live Oak was inundated with rain from Tropical Storm Debby. There was widespread flooding of businesses and homes. The flooding began the evening of June 25, 2012, but it had been raining for three or four days prior to that evening. While Live Oak is prone to flooding, multiple witnesses testified to the severity of the flood and the damage it caused. This was an unusually severe flood, even for Live Oak. The city fire station was the hub for the City’s initial response to the storm and resulting flooding, and operated as the Emergency Operations Center (EOC) until a formal EOC was opened. The fire station was noisy and bustling with activity the evening of June 25, as one would expect during such an emergency. Sand had been dumped in one of the fire station bays, and state prisoners and volunteers were filling sandbags. Residents were coming in to pick up the sandbags. Calls were coming in for rescue and assistance. On June 25, 2012, Respondent had worked the 6:00 a.m. to 6:00 p.m. shift at the Suwannee County jail, and then went home. Shortly after 8:00 p.m., Respondent received a call from Keith Mixon, a newly elected councilman, who advised Respondent that Helvenston Street, a main street in Live Oak, was flooding. Respondent went to Helvenston Street to meet Mr. Mixon and saw the flooding. Respondent called the police chief, Buddy Williams, and told him that barricades were needed to keep passing cars out of the water on Helvenston Street. Respondent and Mr. Mixon stayed in that area for a while to assist in traffic control until help arrived. Respondent then went to the fire station. While at the fire station, Respondent inquired as to the whereabouts of the city administrator, Bob Farley. Alan Bedenbaugh is the training safety officer for the Live Oak Fire Department, and the safety officer for the City of Live Oak. At the time of the storm, Chief Croft was his supervisor, and continues to serve in that capacity. Mr. Bedenbaugh was at the fire station on the evening of June 25, as he was working a 24-hour shift. Mr. Bedenbaugh called Chief Croft, who was at home, to update him on how the city was being impacted by the storm. He informed Chief Croft that Respondent was at the fire station asking the whereabouts of department heads who were not at the fire station. During emergencies such as tropical storms, the Fire Chief is responsible for directing the necessary assistance to various entities to minimize the overall impact of the storm to the city. Examples of his responsibilities would be rescuing citizens and assisting with road closures. Chief Croft had information regarding the whereabouts of the department heads, and drove to the fire station in his city-owned vehicle to give Respondent this information. When Chief Croft arrived at the fire station, it was dark. Chief Croft informed Respondent that the city administrator, Bob Farley, and the public works director had gone to an out-of-town conference. This news upset Respondent. Respondent then called Mr. Farley at 10:35 p.m. and asked Mr. Farley where he was and why was he not at the fire station. Mr. Farley recalls Respondent saying, “Where the hell are you” and telling him to “get your ass down here,” and informed Mr. Farley that people were being rescued from their homes. Mr. Farley responded that he did not know the flooding was that bad, informed Respondent that he had not yet left town for the conference, and drove into town. At that time, Mr. Farley lived about nine miles outside of the City. When Mr. Farley got there, he met with Respondent. Chief Croft and Police Chief Williams were there as well. Four witnesses, including Respondent, testified as to what Respondent said to Mr. Farley during this telephone call. Chief Croft and Mr. Bedenbaugh, who were at the fire station and overheard Respondent talking on the phone, testified that Respondent told Mr. Farley that he needed to come down to the fire station or he could be dismissed. However, Respondent and Mr. Farley insist that Mr. Farley was not threatened about his job or about anything else. While Respondent’s tone was harsh, Mr. Farley was not offended by Respondent’s tone of voice or choice of words in light of all the circumstances surrounding the phone call. Respondent and Mr. Farley were the participants of the phone call and, therefore, heard both sides of the conversation and its context. Therefore, more weight is given to their description of the phone call between Respondent and Mr. Farley that night than to those witnesses who overheard only one side of the phone call in a noisy environment. In any event, Mr. Farley drove to the fire station, saw the extent of the flooding, and agreed that he needed to be there. After arriving at the fire station, Mr. Farley authorized Respondent to use a city truck to deliver sandbags. Mr. Farley met Mayor Garth Nobles at City Hall where Mr. Nobles signed a formal Declaration of Emergency. The Declaration is dated June 26, 2012 at 12:01 a.m. At some point during the evening, Respondent assisted with removing several Hispanic residents from a flooded mobile home in the area. Respondent speaks Spanish, and translated for these residents during this process. Respondent also filled sandbags and, at some point during the storm, delivered the filled sandbags to residents’ homes. At 1:08 a.m. on June 26, Marilyn Prins, Respondent’s mother, called Respondent and informed him that there was flooding in an area of town called Tara Trace where his sister, Debby Prins, lived. Mrs. Prins asked her son to check on his sister who lived alone. Respondent and Chief Croft got into Croft’s assigned city vehicle and drove to Tara Trace. There is conflicting testimony as to exactly what was said prior to their leaving. Chief Croft did not recall Respondent’s exact words, but testified that Respondent essentially told him to get in the car, and that they were going for a ride. Respondent testified that Croft offered to go with him. Mr. Bedenbaugh testified that he overheard Respondent say “Let’s get in the car and go for a ride.” Mr. Croft, while acknowledging that Respondent was not verbally abusive to him and made no actual threats against him, insists he felt compelled to accompany Respondent because of what he overheard in the fire station during the phone conversation between Respondent and Mr. Farley. Regardless of whether Respondent asked Chief Croft to accompany him or whether Chief Croft volunteered, there is no dispute that Respondent did not threaten him. Chief Croft drove to Tara Trace with Respondent in the vehicle. He was familiar with Tara Trace but did not know Debby Prins or where she lived. Respondent pointed out her apartment. When they arrived at Debby Prins’ apartment, there was already flood water in the home. Debby Prins was inside and asked if Respondent and Chief Croft would help move seven boxes of food out of a bedroom closet and onto the kitchen counter to keep the boxes out of the flood water. Again, there is conflicting testimony about exactly what was and was not said, but all three persons moved the boxes as Ms. Prins had requested. Respondent and his sister saw Chief Croft wince in pain while moving the boxes. When Respondent asked him what was wrong, Chief Croft responded that he recently had shoulder surgery. Chief Croft did not assist in moving any boxes after that. There is again conflicting testimony about what happened after Respondent and Chief Croft exited Debby Prins’ apartment. The totality of the evidence establishes that Respondent and Chief Croft then left to go knock on doors of several neighbors in the Tara Trace subdivision to warn them about the impending flood. Flooding was severe in the Tara Trace neighborhood, and some of Ms. Prins’ neighbors were elderly. This was done in the very early hours of the morning of June 26, at a time when, but for Respondent and Chief Croft going door to door to awake and alert them, most residents would have been asleep and otherwise unaware of the severity of the flood. After leaving Tara Trace, Respondent returned to the fire station and continued volunteering his time to assist the residents of Live Oak. After having worked a 12-hour shift at the county jail, Respondent worked as a volunteer from 8:00 p.m. Monday, June 25, until about 10:00 a.m. on Thursday, June 28. Respondent and other city councilmen volunteered their services and assisted residents by delivering sandbags to residents in their districts. At some point after the events of June 25, Chief Croft told the Mayor, Sonny Garth Nobles, about going to Tara Trace and moving boxes in Ms. Prins’ apartment. Approximately one year after Tropical Storm Debby, Chief Croft prepared a written statement in which he addressed the above described events of June 25, 2012, at Mayor Nobles’ request. In this statement, Chief Croft stated that he was directed by Respondent to go to Tara Trace and to move and relocate boxes in Ms. Prins’ apartment, and that he felt that Respondent misused his powers as a Councilman in doing so. Chief Croft did not inform Mr. Farley of the events regarding moving boxes at Debby Prins’ home, or of any problem Chief Croft may have had with Respondent’s actions the night of June 25 and early morning of June 26. Mr. Farley was Chief Croft’s immediate supervisor. Mr. Farley learned about these allegations upon reading a newspaper article about the ethics complaint investigation. The investigation did not commence until more than one year after the events of June 25 and 26, 2012. In June 2012, while Mr. Farley as City Administrator supervised at-will employees, such as the Fire Chief, a majority vote of the City Council had the power to terminate such employees. Now retired, Bob Farley was terminated from his position as City Administrator by the City Council in October 2012. The Fire Department has no written or unwritten policy regarding the removal or relocation of personal private property during an emergency. Based on the totality of the evidence, there is not clear and convincing evidence that Respondent corruptly directed Chief Croft to perform duties at his sister’s apartment in an attempt to secure a benefit for himself or others.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order finding that Respondent, Adam Prins, did not violate section 112.313(6), Florida Statutes. DONE AND ENTERED this 20th day of August, 2014, in Tallahassee, Leon County, Florida. S Barbara J. Staros 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 20th day of August, 2014.
The Issue Live Oak Plantation No. 1, Ltd. (Live Oak) through Stanford Development Group filed application number 4-117-0464AC-ERP with the St. Johns River Water Management District (SJRWMD) in April 1997, seeking a conceptual approval environmental resource permit. After SJRWMD issued its notice of intent to grant the permit, the Petitioners filed their petitions challenging the intended agency action. The central issue in this proceeding is whether the permit should be issued pursuant to Chapter 373, Florida Statutes, and Chapters 40C-4, 40C-41 and 40C-42, Florida Administrative Code, including specific provisions of the Applicant's Handbook adopted by rule and identified in the parties' prehearing stipulation filed July 8, 1998.
Findings Of Fact The Parties Michael D. Rich is a former resident of Seminole County who lived on the property contiguous to the Live Oak site. He is the legal representative of his mother who still resides on the property and he is president of C-RED. C-RED is a Florida non-for-profit corporation with members from the City of Oviedo and unincorporated areas of Seminole County who are interested in assuring that development is done without improper impact on the taxpayers and the rural character of the area. Mr. Griffin is a resident of Seminole County living on Horseshoe Lake, which adjoins the Live Oak site. Live Oak is a Florida Limited Partnership which intends to develop the project that is the subject of this proceeding. SJRWMD is a special taxing district created by Chapter 373, Florida Statutes, and charged with responsibility for various permitting programs, including the one at issue here. The Project Live Oak proposes to develop a large multi-phased single family project with two small commercial sites. The project, to be known as "Live Oak Reserve," will be on approximately 1,041 acres on the south side of county road 419 in southeastern Seminole County in the City of Oviedo. The project site is located near the confluence of the Econlockhatchee River (Econ River) and Little Econlockhatchee River. The Live Oak Reserve property includes approximately half of Horseshoe Lake, as well as a small creek, Brister Creek, which flows from Horseshoe Lake across the property to the Econ River. The Econ River, a class III water and designated an Outstanding Florida Water (OFW), crosses the southwestern corner of the Live Oak Reserve property. The Econ River is the receiving water body of Live Oak Reserve. The Live Oak Reserve property is located within the Econlockhatchee River Hydrologic Basin. A portion of the Live Oak Reserve property lies within the Econlockhatchee River Riparian Habitat Protection Zone (RHPZ). The Live Oak property lies within a 1,500 acre drainage basin; approximately 450 acres off-site drain through Live Oak Reserve. Horseshoe Lake has approximately 500 acres that drain through it, then through the wetlands and into the Econ River. Historically, the Live Oak Reserve property has been used for agricultural practices, including siliviculture and cattle production. Some areas of the property have been logged and some areas have been converted to pasture. Cattle have grazed in wetlands, thereby decreasing the amount and diversity of groundcover vegetation on portions of the property. Additionally, on-site drainage ditches have had a major impact on the hydrological characteristics of the wetlands on the property, including the reduction of surface water elevations. The Live Oak Reserve property is currently vacant and undeveloped. The Application Process In April 1997, Live Oak submitted to the SJRWMD an Environmental Resource Permit Application, N4-117-0464AC-ERP, for conceptual approval of a master stormwater and floodplain management system for the development of Live Oak Reserve. A conceptual permit is utilized in complex multi-phased projects which are expected to have a longer build-out period than a single phase project. A conceptual permit does not allow any construction activity, but provides the outline for final engineering calculations and construction drawings. Further permits are required before any sitework or construction is undertaken. In conjunction with its permit application Live Oak submitted detailed technical information, including but not limited to charts, maps, calculations, studies, analyses and reports necessary to show that the conceptual development plan was consistent with the permitting criteria of the SJRWMD found in Chapter 40C-4, Florida Administrative Code, and the Applicant's Handbook. The master plan for the Live Oak project was designed by Donald W. McIntosh Associates, Inc.(McIntosh) using input from: (a) land planners who were required to consider issues related to the comprehensive plans, open space requirements and related issues; (b) landscape architects who were responsible for the proposed park systems and landscape treatments throughout the project; (c) geotechnical engineers responsible for evaluating the soil and groundwater conditions; and (d) environmental consultants, Modica and Associates, who were responsible for wetland delineation and flagging and wildlife surveys. The first version of the Live Oak Reserve site plan prepared for the project by McIntosh included development of all upland areas and filling several portions of the mixed forested wetlands to maximize lot yield. This included development of the upland adjacent to the Econ River and development of an upland parcel on the west side of the river. After much consideration and revision by the developer and its consultants, a site plan was developed which minimizes impacts to wetlands and other surface water functions, particularly as it relates to the Econ river, and maximizes the benefits to wildlife by establishing a series of wildfire corridors across the site. The final plan submitted to the SJRWMD at the time of the application includes the preservation of the entire Econ River floodplain and two adjacent developable upland areas, a large mixed hardwood forested wetland which traverses the site from the northeast to the southwest, and upland and wetland areas in the southern portion of the site that provide a corridor between a large undeveloped parcel to the east and the Econ River to the west. After submission of its application, Live Oak participated in a review process with SJRWMD staff to further eliminate and reduce wetland impacts. Specifically, SJRWMD requested changes to the site plan which included reductions in impacts to various wetlands and additional buffers to other wetlands. Several changes to the site plan were made to accommodate the SJRWMD's concerns relating to reducing impacts to wildlife, particularly the Florida sandhill crane. The reductions in wetland impacts and other design changes resulted in a revised site plan which the SJRWMD staff recommended to the district's governing board for approval. The staff recommendation of approval, with associated conditions, is set forth in Technical Staff Report dated February 10, 1998. On July 14 and 16, 1998, the SJRWMD revised the technical staff report to reflect changes to the project design and mitigation plan, as well as to add conditions inadvertently omitted from the earlier technical staff report. Condition no. 8 was mistakenly added to the July 16 technical staff report and by stipulation of all the parties, this condition was removed from the technical staff report. (See transcript, page 521) Stormwater Analysis McIntosh utilized information from different sources in preparing the stormwater calculations submitted to the SJRWMD. The developer provided information regarding proposed lot sizes and types so as to determine the impervious surface area for developable lots. The geotechnical consultants, Universal Engineering Sciences, (Universal) provided McIntosh with preliminary, interim, and final geotechnical reports, soil boring logs, and groundwater table estimates. The input from Universal primarily involved the establishment of seasonal high and seasonal low groundwater elevations for the pre-development and post-development conditions on the site. The estimated seasonal high and seasonal low groundwater levels refer to the range of levels the groundwater is expected to attain on the site during the wetter (high) and dryer (low) periods of a normal year. These elevations were then utilized in the stormwater calculations prepared by McIntosh. Topography on Live Oak Reserve consists of elevations ranging from 48 feet to 25 feet NGVD. In its pre-development condition, Live Oak Reserve has 6 distinct drainage patterns. Off-site drainage basins also contribute runoff to the property. The conceptual post-development design will modify the project's on-site drainage patterns into 28 drainage basins. At the request of the SJRWMD, Live Oak prepared seasonal high and seasonal low groundwater elevation contour maps. Live Oak performed approximately 200 borings on the Live Oak Reserve property. From the borings, Live Oak determined the soil types present and the existing groundwater elevations. Live Oak also used the borings to assist in establishing the estimated seasonal groundwater elevations. With the exception of several shallow borings in wetland areas, all borings were taken by split spoon sampling. Seventy-nine piezometers were installed next to bore holes to measure groundwater levels. In establishing the seasonal high groundwater levels, Live Oak evaluated the groundwater level at the time of boring; the time of year the groundwater level was measured; the time span of the investigation and its relationship to normal rainfall patterns; soil indicators such as coloration, mottling, and particle size; site specific topography; USGS quadrangle maps depicting site topography; Soil Conservation Service (NSCS) estimates of the expected seasonal high groundwater levels; and vegetative indicators. It is not essential to evaluate rainfall data when determining the seasonal water levels because the historical seasonal water levels are recorded in the soils. The estimated seasonal high groundwater level can be determined during the dry season. The range of the estimated seasonal high groundwater level on the Live Oak Reserve property is from standing water on the ground to five feet below the existing grade. In evaluating Live Oaks estimated seasonal groundwater levels, the District reviewed Live Oak's submittals, and also reviewed the NSCS soil survey to confirm that the estimated seasonal groundwater levels were reasonable. Wetland seasonal surface water levels were estimated using biological indicators such as lichen lines, buttressing, water lines, and sand lines. Lichen lines were apparent on the Live Oak Reserve properly and reflective of normal rainfall conditions. Seasonal high water levels are expected at the end of September. Seasonal low water levels are expected in May. The wetland surface water levels encountered in January 1997, when the seasonal levels were estimated, were neither exceptionally low nor exceptionally high. The water levels were representative of a period of normal rainfall. Water quantity attenuation and stormwater treatment will be accomplished through wet detention ponds and vegetative natural buffers. Due to the location of Live Oak Reserve in the Econlockhatchee River Hydrologic Basin, special basin criteria apply this project. The special basin criteria, also known as the "Econ Rule," is more stringent than the stormwater management criteria set forth in Applicant's Handbook sections 9 and 10. The special basin criteria, as it relates to the surface water management systems, requires Live Oak to control its discharge from two design storms: the mean-annual design storm, and the 25-year, 24-hour design storm. A design storm is a hypothetical storm with a predetermined rainfall amount, a predetermined intensity and 24 hour-duration. Designing the system to control the peak discharge during the mean-annual storm will prevent erosive velocities that would be harmful to Brister Creek and the Econ River. The conceptually proposed system is designed to limit peak rates of discharge to those of pre-development for the mean-annual and the 25-year, 24-hour design storm events. The system, as conceptually proposed, will limit post-development discharge rates to the same as or lower than the pre-development discharge rates. Each stormwater management area will pre-treat its respective post-development basin's pollution volume prior to discharge downstream. Live Oak proposes to use vegetative natural buffers for a portion of the rear lots within the post- development condition to fulfill treatment requirements. Live Oak Reserve is designed for the retention of the first inch of runoff from the total area of the post-development basins or the total runoff from 2.5 inches times the post- development basin's impervious area, whichever is greater. Furthermore, because Live Oak Reserve conceptually discharges to the Econ River, an OFW, the system is designed to provide an additional 50 percent of treatment. For discharges to an OFW the system must treat to a 95 percent removal standard. The outfall structures within each wet detention system are designed to draw down one-half the required treatment volume between 60 to 72 hours following storm event, but no more than one-half of this volume will be discharged within the first 60 hours. Each wet detention pond is designed with a permanent pool with a 31.5-day residence time during the wet season. Residence time is the time that the water within a pond will stay in the pond prior to discharge. The residence time includes the 14-day residence time required of all wet detention systems, an additional 50 percent residence time (7 days) for discharging into an OFW, for a total of 21 days. In addition, each system has been designed to provide an additional 50 percent residence time (10.5 days) because Live Oak has elected not to plant littoral shelves within each pond. As conceptually designed, Live Oak reserve's post- development drainage pattern will have no effect on the drainage patterns of Lake Eva or Horseshoe Lake. As conceptually designed, Live Oak Reserve's post-development drainage pattern will reduce the rate of flow during the storm events, which is a positive effect on the drainage pattern of Brister Creek. The reduction in flow velocity reduces the erosiveness of the storm. Live Oak has demonstrated that the 25-year and 100- year, 24-hour storm events' post-development peak stages for Lake Eva and Horseshoe Lake are not changed as a result of this conceptual project. Based upon Live Oak's calculations, the Live Oak Reserve project will not cause any restriction to the flow of water as it outfalls from Horseshoe Lake to Brister Creek. The conceptual wet detention systems within Live Oak Reserve are proposed to have a maximum depth of 12 feet. However, Live Oak requested consideration at the time of final engineering for each phase of development to maximize selected stormwater management areas for maximum depths of up to 25 feet. That consideration will be made in subsequent application review and is also subject to the City of Oviedo's approval. The conceptual wet detention ponds are designed with an average length to width ratio of two to one, and are configured to minimize the occurrence of short circuiting. As such, they will meet the criteria of the applicable rules. Tailwater conditions for the project were based on published flood elevations. Live Oak analyzed the tailwater condition for the mean-annual, 25-year 24-hour, and the 100-year 24-hour design storms. Live Oak completed a 100-year flow analysis for Live Oak reserve. Pre-development floodplain elevations for Lake Eva, Horseshoe Lake, and the Econ River were referenced from previous studies (Seminole County) and the Federal Emergency Management Agency. Live Oak determined that the 100-year floodplain elevations effecting Live Oak Reserve to be 40.2 feet NGVD from Horseshoe Lake, 45.0 feet NGVD for Lake Eva, and 32.5 feet NGVD for the Econlockhatchee. The U.S. Geological Survey (USGS) has produced a map of flood prone areas which indicates that the elevation delineating the flood prone area for Horseshoe Lake is 40.14, not 40.2, and for Lake Eva is 43.38, not 45.0. Therefore, the area indicated by USGS as the flood prone area is included in the 100-year floodplain analysis of Live Oak. Live Oak, in its conceptual design, has demonstrated that it will provide compensating storage for any encroachments into the 100-year floodplain. Live Oak has conceptually proposed to fill approximately 18.69 acre- feet within the 100-year floodplain. Live Oak will compensate the filling of the floodplain by providing a cut with the 100-year floodplain of approximately 27.09 acre-feet. By meeting the criteria in the "Econ Rule" the project conceptually meets all other relevant standards for stormwater management as the basin rule is more stringent. Live Oak has provided reasonable assurance that the development will not affect surrounding property or raise stagewater elevations of any surrounding property; the development will not displace the 100- year flood plain area; and the development will not restrict or impede the natural flow from Horseshoe Lake. Wetland and Wildlife Impacts Approximately 430 acres of wetlands cover the project site. Two general types of wetlands on found on the Live Oak reserve property: herbaceous wetlands and forested wetlands. Twenty-three herbaceous wetlands are classified as freshwater marshes. These wetlands range in size from 0.2 acre to over 8 acres. Wetlands 10 and 16, the largest on the property, are mixed hardwood forested wetlands. Approximately 525 acres of the Live Oak Reserve property are located within the RHPZ. Of this area, approximately 410.5 acres are wetlands, and the remainder are uplands that are predominantly pine flatwoods and xeric scrub. A few of the wetlands on site are considered RHPZ wetlands, not "isolated," solely because they are connected to floodplain wetlands by ditches. These wetlands and 50 feet of the uplands surrounding them are considered part of the RHPZ. The wetlands within the RHPZ are intact with little disturbance, especially in the Econ River corridor that is a part of wetland 16. Wetland 10 has been logged and the species composition in that wetland has changed. Wetlands 12 and 14 have ditch connections to the Econ River, but these ditch connections do not appear to have adversely impacted the wetlands hydrologically. Wetlands 2,3, and 8 have ditch connections to the Econ River. These wetlands have been adversely affected (drained) by the ditching. The RHPZ uplands are in good condition and provide very valuable habitat, except for 12 acres that are adjacent to upland cut drainage ditches. These 12 acres have no habitat value. The portion of the Live Oak Reserve property within the RHPZ provides good habitat important to fish and wildlife, and is part of the Econ River floodplain. The upland areas outside the RHPZ on the Live Oak Reserve property primarily consist of pine flatwoods and pasture. The pine flatwoods have been logged and are overgrown. The pasture appears to have been cleared many years ago and planted with bahia grass. Twenty-two isolated wetlands, which total approximately 17.9 acres, are located on the Live Oak reserve property. The isolated wetlands are intact and in good condition, except for temporary impacts due to cattle grazing and logging. The isolated wetlands provide habitat for wading birds, frogs, toads, and other wildlife. Ephemeral wetlands are wetlands that are seasonally inundated, but not necessarily inundated every year. Ephemeral wetlands provide important functions to wildlife, including gopher frogs and other amphibians for breeding, wading birds and sandhill cranes for foraging, and invertebrates. Ephemeral wetlands or "seasonal" wetlands occur on the Live Oak Reserve property. Although Live Oak did not separately address any of the wetlands as ephemeral, the value and functions of ephemeral wetlands were assessed by SJRWMD staff-person, David Eunice. While several small ephemeral wetlands are being impacted by the proposed development, several others are being preserved. Live Oak conducted wildlife surveys of the Live Oak Reserve property in accordance with the Florida Game and Fresh Water Fish Commission's approved Wildlife Methodology Guidelines. Based on the surveys, Live Oak determined that three listed species occurred on-site: the Florida sandhill crane, the gopher tortoise, and the Sherman's fox squirrel. The Florida sandhill crane is a threatened species. Live Oak found no evidence that the property hosts Florida panthers. Although the wildlife surveys did not identify gopher frogs, a species of special concern, the SJRWMD recognized the potential for the gopher frog to use the wetlands, including the ephemeral or seasonal wetlands, on the Live Oak Reserve property. Florida sandhill cranes have been observed foraging in a few areas on the Live Oak reserve property. In the spring of 1997, Live Oak identified two active nests in freshwater marshes (wetlands 21 and 29). There is no evidence that the sandhill cranes are currently nesting in wetland 29; however, Florida sandhill crane nests have been located in wetlands 14 and 21 this year. The typical critical nesting habitat for Florida sandhill cranes is a large, isolated marsh, generally either dominated by maidencane or pickerel weed. The marsh must maintain a surface water level between 12 and 24 inches so that the birds can construct a suitable nesting platform in the marsh. Nesting success, in part, depends upon wetland type used and water depths. The Florida sandhill crane also requires a certain amount of pasture-like upland habitat in which to forage. However, the crane forages in both uplands and wetland. Upland pasture is the sandhill crane's preferred foraging habitat. The sandhill crane's second most preferred foraging habitat is freshwater marsh. When the sandhill cranes have chicks and fledglings, the birds forage in the wetlands. After a period of three to four months, the juvenile and adult sandhill cranes will move to open pasture to forage. The Econ River floodplain wetlands and their associated upland habitats on the Live Oak reserve property are regionally ecologically significant. Overall, the Live Oak Reserve property provides good ecological value. It is part of the river corridor, has a tributary that runs through it and has uplands that have had little disturbance. Live Oak has eliminated certain wetland impacts and reduced others during the design of the Live Oak Reserve project. Live Oak eliminated some road crossings, and redesigned the pond configuration to eliminate or reduce encroachments into wetlands. Live Oak's site plan that was submitted as part of the initial April 14, 1997, application reflects Live Oak's initial attempts to eliminate or reduce impacts. Live Oak, in its application, proposed a project design with 46 acres of wetland impacts. The site plan has changed since Live Oak made the initial application to the SJRWMD. The initial project design called for the removal of the southern one-half of wetland 29 for the construction of a stormwater pond. Live Oak redesigned the project to preserve wetland 29 with a 50-foot upland buffer around it to eliminate direct impacts to the sandhill cranes nesting there. Live Oak further reduced impacts by preserving wetlands 14 and 15, and by placing upland buffers around them to protect sandhill crane habitat. The revised design of the surface water management system reduced wetland impacts by approximately 7 acres. The SJRWMD February 10, 1998, technical staff report includes the design plans reducing impacts by 7 acres. After the SJRWMD issued its February 10, 1998, technical staff report, Live Oak once again redesigned the project to preserve wetland 12. This redesign reduced wetland impacts by an additional 3 acres. In this case, SJRWMD staff worked with Live Oak to reduce or eliminate its impacts. Nonetheless, staff believed Live Oak's proposed mitigation qualified for the exception under Section 12.2.1.2b, that is, the on-site preservation of the Econ River floodplain and associated uplands, in concert with Live Oak's contribution to acquiring a conservation easement over the Yarborough parcel, discussed below, provides regional ecological value and provides greater long term ecological value then the areas impacted. Live Oak proposes practicable design alternatives, but it is not required to reduce or eliminate all impacts. Some design alternatives, such as whether to use a bridge or culverts for the Brister Creek crossing, must be addressed and considered at a later permit application stage and not at this conceptual permit stage. The proposed design includes dredging or filling of approximately 35.9 acres of wetlands and construction in approximately 38 acres of RHPZ uplands. Of these 35 wetlands on the Live Oak Reserve property, Live Oak will completely impact 23 of the wetlands (17.64 acres of wetland impact); partially impact 5 wetlands (18.28 acres of wetland impacts out of 370.15 acres of wetlands); and will avoid impacts to 7 wetlands (40.63 acres). The impacts are mostly limited to the small isolated wetlands, the upland/wetland transitional edges of the floodplain wetlands, and portions of RHPZ already degraded by a ranch roadway and ditch placement. Live Oak focused its impacts on areas, including wetlands, that were historically disturbed. SJRWMD staff considered that the isolated wetlands less than 0.5 acre were used by sandhill cranes and other threatened or endangered species. Therefore, staff required Live Oak to offset impacts to the small isolated wetlands. In addition to physical impacts to wetlands and RHPZ, the habitation of the proposed subdivision, which will result in noise and intrusion into wildlife habitat by humans and their pets, will cause secondary impacts. Those secondary impacts are offset in part by the upland buffers proposed by the applicant (a total of 10 acres of 25 foot buffers and 47.86 acres of 50- foot buffers.) After considering the type of impact proposed; past, present and future activities that may occur in the Econ River Hydrologic Basin; and that Live Oak off-site mitigation of adverse impacts is located within the same hydrologic basin; SJRWMD staff appropriately determined that Live Oak Reserve would not have an adverse cumulative impact. Mitigation Live Oak's mitigation plan consists of both on-site and off-site preservation. The proposed on-site component of the mitigation plan entails the preservation of 19.3 acres of herbaceous marsh, 373.2 acres of forested wetlands, and 124.9 acres of uplands. The mitigation plan preserves approximately 5.65 acres of isolated wetlands on-site, and approximately 386.86 acres of RHPZ wetlands on-site. The cornerstone of Live Oak's on-site mitigation is the preservation of the Econ River forested floodplain swamp, as well as two upland areas, in the southwestern corner of the property. One of the upland areas is a 15-acre upland scrub island on the east side of the river that is surrounded by forested wetlands. The other upland area is 24 acres of uplands located near the Econ River on its west side. Portions of both uplands are within the RHPZ. Both the forested floodplain and the associated upland areas provide habitat of regional ecological significance. The forested floodplain wetlands and the uplands that are part of the RHPZ are protected to a large degree by SJRWMD regulations. These regionally significant wildlife communities, however, can be temporarily, but chronically, impacted, if not permanently degraded, by timbering and other activities that are relatively unregulated. Live Oak proposes to protect and preserve these areas by placing them in a conservation easement. Placing Econ River forested floodplain wetlands and the upland RHPZ areas in a conservation easement will provide a greater level of protection and assurance that they will mature to an "old growth" condition, which will benefit many wildlife species. The Econ River floodplain wetlands, the upland scrub island and the small isolated wetland in the scrub island will accommodate the smaller wildlife species that currently use the Live Oak Reserve property. Live Oak has preserved most of the larger isolated wetlands with high ecological value. The large isolated wetlands preserved on-site will continue to maintain a high level of ecological function even with the surrounding development. Wildlife, such as frogs, toads, snakes, and wading birds will continue to use those wetlands. The on-site portion of the mitigation plan preserves approximately 71.87 acres of upland buffers, of which 2.04 acres are located in 25-foot buffers and 69.83 acres are located in 50- foot RHPZ buffers. The buffer areas will be placed in a conservation easement. The wildlife values of the uplands on this property that are not within the RHPZ are protected to some degree by local government regulations; they are, however, largely unprotected by the existing regulations of SJRWMD. Without the proposed conservation easements, this habitat may be developed or significantly degraded by other activities. As a component of its on-site sandhill crane nesting site management plan, Live Oak preserves a 6.83-acre upland buffer next to wetland 21, which hosts a sandhill crane nest. Additionally, Live Oak provides enhancement of 3.88 acres on the southside of wetland 21 within the 6.83-acre buffer area by converting this area to improved pasture for sandhill crane foraging habitat. The mitigation plan sufficiently offsets the impacts to the smaller isolated wetlands, even if these wetlands have more than a typical resource value. When evaluating impacts and mitigation, Applicant's Handbook Section 12.2.3.7 requires the SJRWMD to evaluate the predicted ability of the wetland or other surface water to maintain their current functions as part of the proposed system once the project is developed. Many of the smaller isolated wetlands, when located in a natural setting such as a pine flatwood, are very critical and provide very high ecological value. However, once a project is developed and the small isolated wetland is surrounded by homes, the resource value of the small isolated wetland is diminished. Many of the smaller wildlife species, such as frogs and snakes, will be extirpated from the developed area of property, whether or not the smaller isolated wetlands remain. SJRWMD considered the value of the off-site mitigation to offset the adverse impacts to the smaller isolated wetlands. In determining the adequacy of the preservation component of the mitigation plan, SJRWMD staff did not rely upon any specific rule, regulation, or comprehensive plan of the City of Oviedo. However, the staff did consider the overall protections afforded by the regulatory and comprehensive plan requirements of the city and determined that preservation of the mitigation areas by conservation easement provided greater assurance that these areas will be protected than the local government rules, regulations, and comprehensive plan. The off-site component of the mitigation plan is the contribution of $160,525 towards participation in the SJRWMD acquisition of a conservation easement over the 3,456 acre Yarborough parcel. The Yarborough parcel is located in the northeastern corner of the Econ River Hydrologic Basin. The Yarborough parcel encompasses property north and south of the Econ River. A portion, mostly sovereign lands, lies within the Puzzle Lake/Upper St. Johns River Hydrologic Basin. The Yarborough parcel is part of a large working ranch. The parcel contains improved and unimproved pasture, significant cabbage palm hammocks, pine flatwood communities, and freshwater marsh. Live Oak's participation equates to the acquisition of a conservation easement over 200 acres of the Yarborough parcel. However, Live Oak is not purchasing any particular 200 acres with the Yarborough parcel. Live Oak's contribution is applied to 200 acres of the Yarborough parcel within the Econ River Hydrologic Basin. SJRWMD estimates that of the 200 acres, 165 acres are wetlands and 35 acres are uplands. This assessment is based on the composition of wetlands and uplands on the Yarborough property within the Econlockhatchee River Hydrologic Basin. SJRWMD has purchased development rights over the Yarborough parcel. Yarborough is authorized to continue its cattle operation on the Yarborough parcel for 20 years in accordance with the conditions of the conservation easement. However, Yarborough is not permitted to increase the amount of improved pasture or further develop the parcel. On the contrary, the conservation easement requires Yarborough to decrease the number of cattle on the parcel over the next 20 years. Purchase of the conservation easement over the working ranch has positive environmental benefits. The conservation easement will protect the wildlife species that use the ranch. This environmental benefit can be used to offset adverse impacts on the Live Oak Reserve property. To participate in this type of mitigation, the acquisition must be imminent so that the SJRWMD is reasonably assured that the purchase will go forward. Participation is precluded for a parcel after its acquisition is concluded. Live Oak's mitigation plan, with its on-site and off- site components, offsets Live Oak Reserves adverse impacts. SJRWMD calculates the mitigation ratio and compares it to the guidelines in the Applicant's Handbook to determine if mitigation is adequate. SJRWMD however, is not required to adhere to any set ratio. The upland preservation ratio (area preserved to area impacted), excluding the 12 acres of uplands along the upland cut ditches and the Yarborough parcel uplands, is 6 to one. The rule guidelines for upland preservation is from 3 to one to 20 to one. The wetland preservation ratio is 15.5 to one. The rule guidelines for wetland preservation is from 10 to one to 60 to one. Public Interest Criteria Live Oak Reserve will not have any effect on the public health, safety or welfare or property of others. Because the mitigation plan adequately offsets all adverse impacts, Live Oak reserve will not adversely affect the conservation of fish and wildlife, including endangered or threatened species or their habitats. Because of the benefits of lowering the discharge rates in the post-development condition and reducing the velocity of stormwater in Brister Creek, Live Oak Reserve will reduce the potential for erosion. Live Oak Reserve will not have any affect on the fishing or recreational values or marine productivity in the vicinity of the site. Live Oak Reserve will be of permanent nature. However, its adverse impacts have been offset by mitigation. The permanence of the project is beneficial in that it provides treatment of untreated off-site runoff from county road 419 by the Live Oak surface water management system and it reduces the discharge rate of stormwater down Brister Creek. Therefore, the permanence of the project is not contrary to the public interest. In accordance with Section 373.414, Florida Statutes, the Florida Department of State Division of Historical Resources determined that the Live Oak Reserve project will have no possible impact to historic properties listed, or eligible for listing, in the National Register of Historical Places, or otherwise of historical or architectural value. Furthermore, the Division of Historical Resources determined that the project is consistent with Florida's Coastal Management Program and its historic preservation laws and concerns. The current condition and relative value of functions being performed by the various vegetative communities on the Live Oak Reserve property is good. However, there is no guarantee that the value and functions would remain good if the property is not managed for species like the sandhill crane or if agricultural and silvicultural practices continue to occur on the property. The mitigation plan, preserving regionally ecologically significant wetland and upland communities on both the Live Oak Reserve and Yarborough parcel by conservation easement, should provide a greater protection of those communities than what currently exists.
Recommendation Based on the forgoing, it is RECOMMENDED That a final order be entered granting Live Oak's application for a conceptual approval environmental resource permit with the conditions set forth in the SJRWMD technical staff report dated July 16, 1998, with the exception of condition 8, deleted by stipulation. DONE AND ENTERED this 2nd day of November, 1998, in Tallahassee, Leon County, Florida. MARY CLARK 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 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 1998 COPIES FURNISHED: Henry Dean, Executive Director St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 Scott M. Price, Esquire J.A. Jurgens, P.A. 505 Wekiva Springs Road Longwood, Florida 32779 Charles H. Griffin, pro se 250 West 7th Street Chuluota, Florida 32766 Michael L. Gore, Esquire Meredith A. Harper, Esquire Ken W. Wright, Esquire Shutts and Bowen, LLP 20 North Orange Avenue Suite 1000 Orlando, Florida 32801 Anthony J. Cotter, Esquire St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429
