The Issue The issues in this case are whether Respondent violated Subsections 1012.795(1)(c), 1012.795(1)(f)), and 1012.795(1)(i), Florida Statutes (2004-2007),1 and Florida Administrative Code Rule 6B-1.006(5)(d), and, if so, what discipline should be imposed.
Findings Of Fact Mr. Jefferson holds Florida Educator Certificate 922324, covering the areas of Educational Leadership and Social Science, which is valid through June 30, 2013. At all times pertinent to the allegations in the Administrative Complaint, Mr. Jefferson was employed as a social studies teacher at Tarpon Springs High School in the Pinellas County School District. In 2003, Mr. Jefferson became romantically involved with Elaine Navas (Ms. Navas), who was a teacher at Tarpon Springs High School. At the time that the relationship began, Ms. Navas was married and in the process of getting a divorce. It was agreed that the relationship would not become public while Ms. Navas was still married. The relationship lasted about a year and ended in January 2005, when Ms. Navas got her final divorce decree and settlement. The termination of their relationship was by mutual agreement. However, Mr. Jefferson continued to insinuate himself into Ms. Navas’ life. Mr. Jefferson would come to Ms. Navas’ classroom and ask her for sex or money. Ms. Navas started locking her classroom door in an attempt to prevent Mr. Jefferson from coming into her classroom uninvited. Mr. Jefferson started entering Ms. Navas’ classroom by going through the connecting classroom of another teacher. Mr. Jefferson would pressure Ms. Navas to have sex with him by twisting her arm behind her back and pushing her against a wall both at school and at her home. Mr. Jefferson injured Ms. Navas’ arm by twisting it to the extent that Ms. Navas consulted an orthopedic surgeon and had eight weeks of physical therapy. He would also grab her hair and wrap it around his hand so that she could not move. Sometimes he would put his hands around her throat and push her into a corner. At times, he would throw her on the bed and put a pillow over her face until she stopped moving. After the relationship ended, Mr. Jefferson would go to Ms. Navas’ home unannounced, and Ms. Navas would tell him not to come back to her home. Mr. Jefferson did not comply with Ms. Navas’ request and continued to go to her house. Mr. Jefferson would make comments to her such as, “you’ll never keep me out of your house.” Mr. Jefferson’s actions toward Ms. Navas affected her teaching. She became shaky, nervous, jumpy, and irritable with the students because she felt she was under constant pressure from Mr. Jefferson and was stressed by not knowing what he would do next. Ms. Navas continued to have sex with Mr. Jefferson after the relationship ended because he either wore her resistance down and she felt that having sex with him would stop his harassment or he forced her to have sex with him. Sometimes they had sex at her house and, on occasion, would spend a weekend at a hotel at the beach. Wayne McKnight (Mr. McKnight) has been the assistant principal at Tarpon Springs High School for the past eight years. Ms. Navas was a friend of Mr. McKnight through their mutual involvement in the band boosters. Ms. Navas shared her concerns with Mr. McKnight about Mr. Jefferson’s harassing behavior. Ms. Navas realized that she was in an abusive relationship with Mr. Jefferson. She taught a women’s study course for the 2006-2007 and 2007-2008 school years. In the course, she was teaching students the signs to look for in an abusive relationship. As a result of teaching the women’s study course, she finally worked up the courage to do something about her relationship with Mr. Jefferson. On March 31, 2008, Ms. Navas met with the principal of Tarpon Springs High School, Edward Vermere (Mr. Vermere), to discuss her situation with Mr. Jefferson. Mr. Vermere asked her to write a statement detailing her complaints against Mr. Jefferson. Ms. Navas complied and gave Mr. Vermere a written statement dated April 21, 2008. Prior to June 5, 2008, William Peters (Detective Peters), a detective with the Tarpon Springs Police Department, had been informed by the school resource officers at Tarpon Springs High School of Ms. Navas’ allegations against Mr. Jefferson. Detective Peters started an investigation of the allegations. At 7:52 a.m. on June 5, 2008, Ms. Navas was at home asleep in her bed. She received a telephone call from Mr. McKnight. While Ms. Navas was talking to Mr. McKnight, she looked up, and Mr. Jefferson entered her bedroom. She had not invited him to come to her home, but Mr. Jefferson had entered through an unlocked side door. While still on the telephone with Mr. McKnight, she asked Mr. Jefferson how he had gotten into her home and frantically told him several times to leave. Mr. Jefferson left her house. Mr. McKnight told Ms. Navas to call Mr. Vermere. Ms. Navas called Mr. Vermere, who told her to call Detective Peters. She placed a frantic call to Detective Peters, who called the school resource officers to go to her home to check on her. Detective Peters interviewed Mr. Jefferson in Mr. Vermere’s office at the high school. Before Detective Peters began to question Mr. Jefferson, he advised Mr. Jefferson of his Miranda rights. Mr. Jefferson told Detective Peters that he had entered Ms. Navas’ home without her permission and that in the past Ms. Navas had told him to leave her alone and stay away from her residence. Mr. Jefferson told Detective Peters that he gone to Ms. Navas’ home on that day to bring her a muffin and to tell her how sorry he was for the way things had gone on between them. Mr. Jefferson was arrested for stalking. An article appeared in the local newspaper about Mr. Jefferson’s arrest. At the final hearing, Mr. Jefferson testified that he had gone to Ms. Navas’ home to tell her good morning and to see what she was doing. He had on his mind that they might discuss why Ms. Navas had not been selected for the discipline committee. Mr. Jefferson’s testimony giving his reasons for his being at Ms. Navas’ home on June 5, 2008, is not credible. After interviewing Mr. Jefferson and approximately three hours after the incident at Ms. Navas’ home, Detective Peters interviewed Ms. Navas. She was still distraught and appeared to Detective Peters to be genuinely concerned about her safety and the safety of her family. Ms. Navas filed a Petition for Injunction for Protection Against Repeat Violence against Mr. Jefferson. A Temporary Injunction for Protection Against Repeat Violence was issued on June 9, 2008, prohibiting Mr. Jefferson from having contact with Ms. Navas and prohibiting Mr. Jefferson from committing acts of violence against Ms. Navas. Mr. Jefferson agreed not to contest the entry of permanent injunction prohibiting contact with and acts of a violence against Ms. Navas. In exchange, Ms. Navas agreed to drop the stalking charges for which Mr. Jefferson was arrested. A permanent injunction against Mr. Jefferson was entered on June 19, 2008, and the stalking charges were dropped. Michelle Deweerd (Ms. Deweerd) taught at Tarpon Springs High School during the 2006-2007 and 2007-2008 school years. In April 2007, Ms. Deweerd entered into a personal, non- sexual relationship with Mr. Jefferson. She told Mr. Jefferson at the beginning of the relationship that she did not want a sexual relationship, and, at first, he agreed to such an arrangement. The relationship lasted about a month and a half. While at the public library in Tarpon Springs, Mr. Jefferson touched Ms. Deweerd’s leg. She drew away from him, and he told her that she would have to get used to him touching her. On several occasions, Mr. Jefferson told Ms. Deweerd that he “gets what he wants.” Mr. Jefferson would make inappropriate remarks to Ms. Deweerd such as asking her bra size and whether she wore thong underwear. One time when they were talking on the telephone, Ms. Deweerd advised him that she was doing her laundry. Mr. Jefferson told her, “Be careful with your underwear, you never know what might take it.” Ms. Deweerd told Mr. Jefferson that she did not want any kind of physical contact at school. Several times, Mr. Jefferson asked Ms. Deweerd to kiss him at school, and each time she declined. On May 23, 2007, Mr. Jefferson was helping Ms. Deweerd pack up her classroom materials for the close of the school year. He touched Ms. Deweerd on her arm, and she shuddered. He said he thought it was cute that Ms. Deweerd was so nervous. Later that day, Mr. Jefferson returned to her classroom and moved to kiss Ms. Deweerd. She told him, “Don’t,” and Mr. Jefferson replied, “Don’t tell me what to do.” Mr. Jefferson grabbed Ms. Deweerd’s face and kissed despite her protests. She told Mr. Jefferson that she did not want to have any relationship at all with him. Ms. Deweerd had planned to go to Michigan to spend her summer break. She was so upset by Mr. Jefferson’s kiss, that she cancelled an outing with friends so that she could pack and leave for Michigan. After Ms. Deweerd informed Mr. Jefferson that she did not want to have relationship with him, Mr. Jefferson began to call Ms. Deweerd. He called her 15 times during a 12-hour period, but she would not return his calls. He came to her home uninvited and began yelling at her through the door. He was angry because she had not returned his telephone calls. The day after Mr. Jefferson came to her house uninvited, Ms. Deweerd took her car to the repair shop to be serviced for her trip to Michigan. She rode her bicycle home from the repair shop. As she was getting near her home, she spied a pair of her underwear in the middle of the street. The evidence does not establish that Mr. Jefferson had taken the underwear. While Ms. Deweerd was in Michigan, she received numerous telephone calls from an unknown caller. She contacted the Michigan police, who in turn contacted the Tarpon Springs police. The calls were never traced to Mr. Jefferson, and the evidence does not establish that he made the calls. After Ms. Deweerd returned to Tarpon Springs High School for the 2007-2008 school year, she felt uncomfortable working in the same school with Mr. Jefferson. She shared her concerns with Mr. McKnight, who told her to talk to Mr. Vermere. She did talk to Mr. Vermere early in the fall of 2007, but did not reveal Mr. Jefferson’s name. Ms. Deweerd felt so uncomfortable around Mr. Jefferson, that she sometimes was scared to go home and spent the night at the home of Stephanie Bennett (Ms. Bennett), another teacher at Tarpon Springs High School, and her husband. Ms. Deweerd told Ms. Bennett about her fears concerning Mr. Jefferson, and, to Ms. Bennett, Ms. Deweerd appeared visibly scared. Ms. Deweerd returned to Michigan for the Christmas break in 2007. When she returned home, she found the light in her bedroom on. She walked to church the day after she returned home from Michigan and found a black pair of her underwear on the side of the road in the dirt. There is no direct evidence that Mr. Jefferson took the underwear and placed it in the dirt. Ms. Deweerd went to talk to Mr. Vermere after the latest underwear incident. He asked her to give a written statement, which she did. Neither Ms. Navas nor Ms. Deweerd was aware that the other had been asked to give a statement. Neither was aware that Mr. Jefferson had been harassing the other. As a result of the incidents with Mr. Jefferson and Ms. Navas and Ms. Deweerd, the Pinellas County School District reprimanded Mr. Jefferson and transferred him to Carwise Middle School. Ms. Deweerd did not continue her employment with Pinellas County School District for the 2008-2009 school year, but returned to Michigan. Mr. Jefferson has had no disciplinary problems since being transferred to Carwise Middle School. His work performance at Carwise Middle School has been good. The principal and the seventh-grade administrator at Carwise Middle School are pleased with his work.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Mr. Jefferson violated Subsections 1012.795(1)(c), 1012.795(1)(f), and 1012.795(1)(i), Florida Statutes, and Florida Administrative Code Rule 6B-1.006(5)(d) and permanently revoking his educator certificate. DONE AND ENTERED this 12th day of July, 2010, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 12th day of July, 2010.
Conclusions Having considered the entire record in this cause, it is concluded That all statements contained within the petition have been found to be true and correct. That the creation of the district is consistent with applicable elements or portions of the state comprehensive plan and the St. Lucie County Growth Management Plan, as amended. That the area of land within the proposed district is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developable as one functional interrelated community. That the district is the best alternative available for delivering community development services and facilities to the area that will be served by the district. That the community development services and facilities of the district will be compatible with the capacity and uses of existing local and regional community development services and facilities. That the area that will be served by the district is amenable to separate special-district government. DONE and ENTERED this 14th day of January, 1988, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 1988. Appendix A (Names and Addresses of Witnesses) Joseph P. Strazzula, Post Office Box 3152, Fort Pierce, Florida 34948 Bruce Scott Benewitz, c/o Gee & Jenson, Post Office Drawer 4600, West Palm Beach, Florida 33402 Fred A. Greene, c/o Gee & Jenson, Post Office Drawer 4600, West Palm Beach, Florida 33402 Dr. Henry H. Fishkind, 201 North New York Avenue, Suite 300, Winter Park, Florida 32789 Exhibit 1 Appendix B (List of Documentary Evidence) St. Lucie County Context Nap Metes and Bounds Legal Description of District Warranty Deed of October 29, 1985 Conceptual Phasing Plan of District Conceptual Water and Wastewater Master Plan of District Estimated Infrastructure Construction Schedule and Cost 8A St. Lucie County Growth Management Policy Plan 8B St. Lucie County Ordinance No. 86-92 Economic Impact Statement Authorization of agent Exhibit 2 Letter of September 29, 1987 from Secretary Robertson to Sharyn Smith Exhibit 3A Copy of Notice published in Florida Administrative Weekly Exhibit 3B Notice of publication in The News Tribune Exhibit 3C1 Service of Notice of Hearing on Edgar A. Brown Exhibit 3C2 Service of Notice of Hearing on Joseph P. Strazzula Exhibit 3C3 Service of Notice of Hearing on Douglas S. Putnam Exhibit 3C4 Service of Notice of Hearing on Charles Stone, Jr. Exhibit 3C5 Service of Notice of Hearing on Dr. Kenneth Fulton Exhibit 3D1 Service of Notice of Hearing on St. Lucie County Attorney Exhibit 3D2 Service of Notice of Hearing on St. Lucie County Commission Chairman Exhibit 3E Service of Notice of Hearing on Secretary, Department of Community Affairs Exhibit 4A Notice of St. Lucie County meeting Exhibit 4B Copy of St. Lucie County Resolution No. 87-241 Exhibit 5 Copy of St. Lucie County Ordinance 86-92 Exhibit 6 County Context Map (enlargement) Exhibit 7 Existing and Abutting Land Use Map (enlargement) Exhibit 8 Conceptual Phasing Plan of District (enlargement) Exhibit 9 Corrected Table 3 of Economic Impact Statement Exhibit 10 Table 3 of Economic Impact Statement Exhibit 11 Table 1 of Economic Impact Statement COPIES FURNISHED: Richard S. Brightman, Esquire Post Office Box 6526 Tallahassee, Florida 32314 Glenn W. Robertson, Secretary Florida Land and Water Adjudicatory Commission The Capitol Tallahassee, Florida 32399-0001
Findings Of Fact At all times material to this proceeding, Respondent, James A. Tipton ("Tipton"), has been a registered professional engineer in the State of Florida, having been issued license number PE 0018147, which expires on January 31, 1987. Tipton employed the services of Robert Corno as a field man for taking samples to establish soil profiles, site characteristics and existing water tables for septic tank applications prepared and filed by Tipton. Corno had actual authority from Tipton to conduct tests, site examinations and evaluations and to submit his findings to Tipton. Sometime before April 8, 1985, Tipton was retained to perform professional engineering services in connection with the preparation and filing of an application for a septic tank on lot 168, block 3, Charlotte Ranchettes Subdivision in Charlotte County ("lot 168"), owned by Joseph Duseo. Tipton sent Corno to lot 168 on April 13, 1985, to examine and evaluate the site, take soil samples and make other observations that would have to be reported to Tipton in connection with Tipton's work. Corno completed his work and reported to Tipton. Corno did not bring Tipton the actual soil samples. On April 8, 1985, Duseo's general contractor told Corno about a well on lot 168. When Corno visited the site, he observed the well. The well is an artesian well, about 3 feet high and six inches in diameter. The well is an irrigation-type well and is non-potable. The well was within fifty feet of the drain field of the septic system Tipton proposed for lot 168. The well also is approximately 5 to 10 feet from the north property line. Corno knew at the time of his visit to the site that the well was not plugged. However, Corno understood that Duseo was in the process of arranging with the Southwest Florida Water Management District to have the well plugged. Corno did not tell Tipton about the well before Tipton prepared and filed the application for the proposed septic tank. Therefore, Tipton did not know there was a well on lot 168 when he was preparing the application for the septic tank permit. Tipton did not ask Corno any questions calculated to reveal whether there was a well on lot 168. Corno held the belief that non-potable wells, especially those that were to be plugged, did not have to be shown on septic tank permit applications. There was evidence about a survey of lot 168 certified by a land surveyor employed by a firm of professional engineers which did not show any well on lot 168. However, Tipton did not have access to the survey before he prepared the septic tank permit application on lot 168. (The survey bears two dates, April 17 and April 18, and was not signed until April 25, 1985.) On or about April 15, 1985, Tipton signed and certified the septic tank permit application for lot 168. The application was filed at the Charlotte County Public Health Unit (Health Department) on April 16, 1985. The application indicates "none" in the space provided to indicate the "location of wells within 75 feet of property lines." The well on lot 168 is an important consideration which should have been depicted on the application. Septic tank drain fields could pollute a well. Even if Tipton had known that the well was supposed to be plugged, it was not plugged until July 1985. Failure to show the well was a serious omission. Tipton was negligent for relying on Corno without having an understanding whether Corno would report to him the existence of non-potable wells within 50 feet of the drain field of a septic system or within 75 feet of a property line if the well was likely to be plugged. If he had used due care, Tipton would have either made explicit inquiry of Corno sufficient to reveal the existence of the well or ascertained from Corno in advance that he would report to Tipton the existence of any well within 50 feet of the drain field of a proposed septic system or within 75 feet of property lines. Having failed to exercise due care, Tipton did not realize that Corno would not be reporting to him the existence of a non-potable well which was supposed to be plugged in the future. A few days after he filed the application, Tipton learned about the well on lot 168. But at about the same time, Duseo and his contractor began discussing construction alternatives that would change the septic system and require a new septic tank application. Therefore, Tipton did not immediately amend the April 15 application to show the well. In mid-May, Tipton filed a new application for the different septic system. The new application, not in issue in this case, showed the well. The application also contained a soil profile which probably is not accurate. However, Tipton's soil profile simply reflects the information reported to him by Corno. While Tipton's soil profile does not correspond with soil profiles from other test holes dug in the area of the proposed drain field by the Health Department and an expert witness, the information Corno reported to Tipton was well within the realm of possibilities for soil in the area of lot 168. Corno generally seemed to be a qualified and experienced field man who used proper tools to do his job. There was nothing suspicious about Corno's information, and there was no reason for Tipton to suspect that it was false or fraudulent. While it is the better practice for a professional engineer to require his field man to deliver the actual soil sample to support a soil profile report, this is not required of professional engineers if there is no reason to suspect that a field man's soil profile report is false or fraudulent. On the application, Tipton estimated the high water table on lot 168 at 2.2 feet below existing grade. While other expert witnesses estimated a higher high water table, the evidence did not prove that Tipton was negligent in his estimate. Some of the conflicting estimates were Health Department estimates which, the evidence indicates, tend to be high to be on the safe side. Others were estimates on permit applications which may have been influenced by the Health Department's desires and which may not reflect the engineers' actual estimates. Of all the estimates, only Tipton's was supported by testimony how the estimate was derived. (Tipton used what he called Darcy's Law.) Finally, Petitioner's own expert witness testified that Tipton's high water table estimate could not be called negligent.
Recommendation Based upon the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Board of Professional Engineers enter a final order holding Respondent, James A. Tipton, guilty of negligence in the practice of engineering under Count I of the Amended Administrative Complaint (but dismissing Count II of the Amended Administrative Complaint) and imposing an administrative fine in the amount of five hundred dollars ($500.00). RECOMMENDED this 19th day of May, 1986, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of May, 1986. COPIES FURNISHED: Ms. Sarah Logan Executive Director Board of Professional Engineers 130 North Monroe Street Tallahassee, FL 32301 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 Salvatore A. Carpino, Esq. General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 Wings Slocum Benton, Esq. Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 John Charles Heekin, Esq. C-1 Ocean Plaza 21202 Ocean Blvd. Port Charlotte, FL 33952 APPENDIX The following are specific rulings on all the parties' proposed Findings of Fact as required by Section 120.59(2), Florida Statutes (1985). Rulings on Petitioner's Proposed Findings of Fact Petitioner's Proposed Findings of Fact 1 through 3, 9, 10, 13 through 16, 19, 21 and 22 are accepted as substantially factually accurate and are incorporated in the Findings Of Fact in the same or similar format to the extent necessary. Petitioner's Proposed Finding Of Fact 4 would have been included in paragraph 1 above except that the last sentence is unnecessary. Petitioner's Proposed Finding Of Fact 5 would have been included in paragraph 1 above except that the third sentence is unnecessary. Petitioner's Proposed Findings Of Fact 17, 18 and 27 would have been included in paragraph 1 above except that they are unnecessary. Petitioner's Proposed Finding Of Fact 26 would have been included in paragraph 1 above except that whether Alligator Creek is a "significant" drainage feature would depend on the definition of "significant" which was not established by the evidence. In addition, Petitioner's Proposed Finding Of Fact 26 is unnecessary. Petitioner's Proposed Findings Of Fact 6 through 8 are rejected as conclusions of law and because the last sentence of Proposed Finding Of Fact 6 is cumulative. Petitioner's Proposed Finding Of Fact 11 is rejected because the first sentence is contrary to the greater weight of the evidence and Findings Of Fact and the second sentence is, subordinate to Findings Of Fact. Petitioner's Proposed Findings Of Fact 12, 20, 23 and 24 are rejected as subordinate to Findings Of Fact. Petitioner's Proposed Finding Of Fact 25 is rejected because the first sentence is subordinate to Findings Of Fact and the second sentence is contrary to the greater weight of the evidence. Rulings on Respondent's Proposed Findings of Fact. Respondent's Proposed Findings Of Fact 1 through 3, 5 and 12 are accepted as substantially factually accurate and are incorporated in the Findings Of Fact in the same or similar format to the extent necessary. Respondent's Proposed Finding Of Fact 4 would have been included in paragraph 1 above except that the second sentence is unnecessary. Respondent's Proposed Finding Of Fact 8 would have been included in paragraph 1 above except that it is unnecessary. Respondent's Proposed Finding Of Fact 9 would have been included in paragraph 1 above except that it is in part unnecessary. Respondent's Proposed Finding Of Fact 11 would have been included in paragraph 1 above except that it is contrary to the greater weight of the evidence and Findings Of Fact that there is "no way" for an engineer to avoid relying on a field man's error such as Corno's error in omitting to report the existence of the well. Respondent's Proposed Finding Of Fact 14 would have been included in paragraph 1 above except that it is irrelevant. Respondent's Proposed Finding Of Fact 6 is rejected because it is subordinate to Findings Of Fact and is unnecessary. Respondent's Proposed Finding Of Fact 7 is rejected because it is simply a recitation of conflicting evidence, some of which is accepted but some of which is rejected as contrary to the greater weight of the evidence and Findings Of Fact. Specifically, it was found that Corno did not tell Tipton about the well and that Tipton did not have the survey in his possession at the time the application was filed. Respondent's Proposed Finding Of Fact 10 is rejected as contrary to the greater weight of the evidence and Findings Of Fact. Specifically, the evidence supported a finding of negligence on the part of Tipton for failure to utilize due care and to have due regard for acceptable standards of engineering principles whether or not practicing in Charlotte County. In addition, Mr. Murray's expert testimony must be disregarded because it was given upon a hypothetical assumption that an engineer had possession of a sealed survey showing no improvements on the property as the time of the application, a fact not proved by the evidence. Respondent's Proposed Finding Of Fact 13 is rejected as contrary to the greater weight of the evidence and Findings Of Fact. Specifically, personnel in the Health Department, part of the "general public," were misled. (The general public also reasonably could have been led to a fallacious conclusion, but there was no "misconduct" on Tipton's part. See Conclusions of Law.) ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF PROFESSIONAL ENGINEERS DEPARTMENT OF PROFESSIONAL REGULATION, FLORIDA BOARD OF PROFESSIONAL ENGINEERS Petitioner, vs. DOAH CASE NO. 85-2684 DPR CASE NO.0058289 JAMES A. TIPTON, Respondent. /
Findings Of Fact Respondent Pasco County Utilities (County) seeks the issuance of Permit Number DC 51-143059 for construction of a 400,000 gallon per day wastewater treatment plant and spray irrigation disposal system. The County presently has an interim 100,000 gallon per day (gpd) capacity domestic wastewater treatment facility, including a 10 acre spray irrigation field, which is on the 80 acre site proposed for the expanded facility. The site is located in the northcentral portion of Pasco County near McKendree and Tucker Roads. The facility is known as the Pasco Central Subregional Wastewater Treatment Plant (Pasco Center). The site on which the facility is located was purchased by the County in 1987 as part of a plan dividing the geographical area of the county into 17 subregional service areas. It is contemplated that each of these areas will eventually be served by a wastewater treatment plant with a capacity of up to nine million gpd. Development representatives, seeking to have new developments served by county treatment plants such as Pasco Center, are required by the County to agree to accept treated reclaimed water for disposal via irrigation on golf courses, road medians, common green areas and similar areas within the developments. Such agreements with developments require that a gallon of reclaimed water be accepted for each gallon transferred to the plant for treatment. Further, the County is actively seeking additional spray irrigation disposal areas for the Pasco Center. A recent contract with an owner of an adjacent 40 acre orange grove will soon make that site available for reclaimed water irrigation. The Pasco Center plant site is located in a rural area. As a result of site design and selection, adverse effects on neighboring properties are minimized. The present plant facility, which will also serve the expanded facility, is located more than three thousand feet from Petitioner's residence, separated by Tucker Road and a 100 foot buffer of pine trees surrounding the perimeter of the entire site. The pine trees have been planted around the facility to provide a visual buffer and to minimize any aerosol drift that may occur on a windy day. Since the aeration process utilized by the facility minimizes any aerosol drift, any resultant aerosol odor after expansion of the facility will likely be minimal to nonexistent. The property is fenced, but accessible to authorized personnel. While the County is exempt from zoning regulations by Section 25.82 of the County Zoning Ordinance, the property upon which Pasco Center is located is zoned for agricultural use and allows public and quasi-public buildings and structures of either county, state or federal governments. The proposed treatment plant is intended to substitute for the present 100,000 gpd plant at Pasco Center. The proposed plant will have a 400,000 gpd advanced secondary wastewater treatment capacity using the extended aeration method. The plant itself will be contained within an 80 foot diameter concrete tank divided into separate aeration, settling, digestion and chlorine contact chambers. Following treatment and filtration, treated reclaimed water will be routed to a clay-lined, 1.2 million gallon capacity holding pond. From the holding pond, spray irrigation will occur. The proposed plant is designed to meet or exceed plant construction standards set forth in Rule Chapter 17-6, Florida Administrative Code. Reasonable assurance has been provided by the County that the proposed plant will not cause pollution in violation of applicable rules of Respondent Department of Environmental Regulation (Department). In order to accommodate the plant's proposed increased plant capacity of 400,000 gpd, the County proposes expansion of the existing 10 acre spray irrigation field. The enlarged field will include two zones where irrigation will occur on alternate days. Irrigation will automatically commence when the treated wastewater fills the holding pond to a preset level. Two agricultural-type sprinkler systems will be activated at these times for irrigation purposes. The entire system will include 40 individual spray heads. The holding pond capacity of 1.2 million gallons will retain three days of treated effluent produced by the plant to meet any contingency that rain or other site conditions may make irrigation temporarily impossible. The proposed spray irrigation area is not located within the 100 year flood plain. A small portion of the property which is within the flood plain will not be used for spray irrigation. The irrigation area is located on a sand ridge and contains good permeable soils which increase the disposal capacity of the site. Depth to groundwater averages between 6 to 18 inches to the surficial aquifer and 30 feet to the Floridan aquifer. An adequate buffer zone has been established between the spray irrigation area and a sinkhole located on the property. Further protections include a surficial monitoring well and Floridan aquifer monitoring well between the sinkhole and the spray site. The irrigation area is very large in comparison to the quantity of effluent proposed for disposal. The proposed 400,000 gpd application rate proposed by the County is a conservative one, and the site, in all likelihood, will be able to utilize more than that amount. Spray irrigation at the proposed rate will not cause surficial runoff or affect the Floridan aquifer. There is no likelihood that the Cypress Creek Wellfield, located 2.5 miles from the Pasco Center location, will be affected by the spray irrigation at the facility. Travel time for groundwater to reach the CypressCreek field drawdown area in the eventuality of a spill of effluent from the treatment plant is estimated at 2800 years. Six shallow wells have been installed at the site by the County for monitoring the surficial aquifer and two deep wells for monitoring the Floridan aquifer. As previously noted, one of each type of well is located between the spray site and the sinkhole. All wells are located both up gradient and down gradient of the property to measure both background levels and to sample the quality of groundwater leaving the site. The ground water monitoring plan is adequate for the protection of surface waters and the Floridan aquifer. The Pasco Center site is an appropriate location for the spray irrigation of 400,000 gpd of reclaimed water. The proposed spray field complies with the requirements of the Department's land application manual. The County has provided the Department with reasonable assurances that the disposal of 400,000 gpd on the site by means of spray irrigation will not cause pollution in violation of rules of the Department.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered dismissing the petition and issuing permit number DC 51-143054 to the County. DONE AND ENTERED this 31st day of October, 1989, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Fl 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1989. APPENDIX 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. None Submitted. Respondent County's Proposed Findings: 1.-7. Adopted in substance. 8. Adopted by reference. 9.-23. Adopted in substance. 24.-26. Adopted by reference. 27.-29. Unnecessary to result reached. 30. Rejected as a legal conclusion. Textual analysis of 403.412, F.S. indicates applicability of this statutory section as a basis for the award of attorney fees and costs in this proceeding is inappropriate. Respondent Department's Proposed Findings: 1.-13. Adopted in substance. COPIES FURNISHED: Lisa C. Bennett, Esq. Pasco County Attorney's Office 7530 Little Road, Room 203 New Port Richey, FL 34654 Richard Donelan, Jr., Esq. Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Jack Roth P.O. Box 845 San Antonio, FL 33576 Dale H. Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, Esq. General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue The issues are whether Offshore Shipbuilding, Inc., (Offshore) is entitled to reimbursement from the Florida Coastal Protection Trust Fund, pursuant to Sections 376.011-.21, Florida Statutes, for costs and expenses incurred by Offshore in a spill cleanup at Offshore's Green Cove Springs facility or whether the Department of Natural Resources (DNR) correctly denied Offshore's application for reimbursement.
Findings Of Fact Offshore engages in the business of dry docking and repairing boats, barges and other types of marine vessels. Its primary facility and business offices are in Palatka, but it also leases a facility at the Clay County Port in Green Cove Springs, Florida. The scallop vessel, Theresa R. II (Theresa), was repaired by Offshore at the Green Cove Springs facility from August 2 to August 7, 1991. The vessel was hauled out of the St. Johns River and placed on a dolly located on a marine railway which extends south from the river about 500 feet. Prior to coming to Offshore's facility, Theresa had undergone major reconditioning at another facility. In the course of that work, the vessel's bilges had been pumped out by Envirotech Southeast on May 3, 1991. Envirotech pumped 2,200 gallons of water from the bilge. When the Theresa arrived at Offshore, it did have some water in the bilge. There was oil floating on top of the water and most likely a sludge of waste matter from the painting and scraping had settled to the bottom of the bilge. John Rita, the owner of the Theresa, indicated that he wanted to pump out the bilge onto the ground, but was advised by Offshore that he would need to have it pumped out by a qualified pumper. The repairs to be performed by Offshore included repairs to the sea valve in the engine room where the bilge was also located. Hawkins, an employee of Offshore, could not make that repair until the bilge water level was lowered. Hawkins performed some other tasks and then found that the bilge was empty enough to perform those repairs. He did not know how the bilge water level was lowered and did not see that the bilge had been pumped on the ground and did not see or smell diesel fuel or oil on the ground. On Saturday, August 3, 1991, Rita acknowledges that he pumped water from the bilge over the starboard side of the vessel. Rita says the source of the water was rain and water from the St. Johns River. He did not pump the bilge dry, but pumped enough water to lower the level and permit the repairs. He pumped only water, leaving the solids in the sludge on the bottom and the oils floating on top suspended above the water. Solid materials tend to cling to surfaces and are not easily removed by water. In order to remove solid materials, it is necessary to physically remove them by some sort of tool, like a hoe or shovel. The Theresa was launched on August 7, 1991, around 3:30 p.m. Cleanup around the yard where the Theresa had been began the morning of August 8, 1991. Later that afternoon, an unidentified employee of Offshore reported discovering a spill to Fred Willshier, Offshore's yard superintendent at Green Cove Springs. Willshier called the Palatka office and told Tony Bucknole, Offshore's Vice President and General Manager, about the spill. Bucknole told Pam Barrett, an employee whose duties included environmental matters, personnel and payroll. Willshier reported the spill to Barrett around 3:00 p.m. Bucknole told Barrett to go to the Green Cove Springs yard the next morning on her way to work. Barrett and Willshier examined the spill the morning of Friday, August 9, 1991. The spill contained some oil and smelled of diesel fuel. The area of the spill was approximately 4 or 5 feet from the marine railway next to where the Theresa had been. Various witnesses described the spill as being 30 feet, 50-75 feet and 30 yards from the St. Johns River. No contamination was threatening the river and no spill material had reached the beach area adjacent to the shoreline. Barrett ordered the necessary materials such as barrels and shovels for the removal of the contaminated soil. She told Willshier to remove all the contamination that could be seen, to put the soil in drums, to seal the drums and to label the drums. Soil was removed from the site on August 9 and 10, 1991. The soil was placed into drums without lids, because no lids were available on such short notice. Some of the soil in drums was taken to Palatka and put into a large steel bin. The drums were then taken back to Green Cove Springs for reuse with this spill. The drums were sealed with visqueen and duct tape. No one labeled the drums as to date, source, or number, although some drums were apparently labeled so as to show that they contained soil and diesel fuel or oil. Willshier was supposed to supervise the cleanup, but he does not know who wrote on the drums, how many drums were filled or what happened to those drums. The steel bin at Palatka had no cover. No one knows if it was empty when the drums were emptied into it or if other materials were added after the contents of those drums was put into it. Barrett, who was responsible for the inventory of such materials, didn't know that any of the soil was put in the steel bin. She also could not account for the number of drums or their location immediately after the cleanup was completed. On August 29, 1991, Sgt. Jesse Baker of the Florida Game and Fresh Water Fish Commission and Jane Mears of the Department of Environmental Regulation participated in the execution of a search warrant related to Offshore's handling of hazardous waste at the Palatka facility. That search revealed numerous 55-gallon drums at the Palatka site, many of which were not labeled. Of those drums with labels, some had partially disappeared or were unreadable, some were labeled during the execution of the search warrant and some had more than one label. Additionally, four drums were located next to a derelict tugboat, the Victoria, and the crane operator was in the process of lifting drums of contaminated soil and liquid waste and dumping those contents into the bilge of the Victoria. Sgt. Baker saw several metal bins containing soil, rust, and other waste materials, including one large steel container which was full of soil. These containers of soil were not labeled. Sgt. Baker was informed by Offshore employees that for three days they had been combining the contents of the various drums and there was no way to determine with certainty "what soil came from where." He was also advised that the combined contaminated soils and liquid waste had been placed in the tugboat for ultimate "disposal." Sgt. Baker observed a large quantity of waste material in the Victoria's hold and several crushed metal drums in a dumpster. The next day, August 30, 1991, Ms. Mears and Sgt. Baker inspected the Offshore facility at Green Cove Springs. They found additional drums of contaminated soil and waste material at Green Cove Springs. The condition of the drums was similar, with some having visqueen and duct tape sealing them. The labeling was similarly haphazard or nonexistent. As a result of these inspections, all waste material at both sites was appropriately sealed, labelled, and inventoried. The resulting inventories were offered by Offshore as the only proof that 43 drums of contaminated soil were removed from the spill site. Numerous witnesses, including Ms. Mears and Sgt. Baker, examined the site from which this contaminated soil was allegedly removed. There was no observable hole or depression which would account for removal of soil down to one foot below grade just three weeks earlier. Offshore did not notify the Department of Natural Resources of the alleged spill until January 28, 1992. Offshore did not notify the Florida Marine Patrol or the U.S. Coast Guard of the alleged spill until on or about that same date. Offshore never sought or received authorization or approval of its cleanup activities from the Department of Natural Resources prior to its activities to remove the alleged spill. Offshore first filed an application for reimbursement from the Florida Coastal Protection Trust Fund on February 26, 1992. That application, filed by counsel for Offshore, sought reimbursement of $3,603.93 for expenses allegedly incurred by Offshore in containing and cleaning up a spill of diesel fuel from the Theresa R. II. The application claimed $3,218.75 for labor costs and $385.18 for materials. That application was incorrect about several material facts. First, the date of the alleged spill was August 8-9, 1991, even though the vessel alleged to be responsible for the spill had been launched on August 7, 1991, and even though at hearing, Offshore took the position that the spill occurred on August 3, 1991, when Rita pumped water from the bilge. The second error in the application is the assertion that the spill occurred when the vessel's owner pumped the contents of the fuel tank over the side of the vessel and onto the ground. In fact, only the contents of the vessel's bilge were involved. The application also seeks reimbursement for labor costs for the alleged cleanup of $25.00 per hour and $37.50 per hour for overtime. In fact, the employees who cleaned up the alleged spill were paid only their regular hourly wage. None of the employees were paid even $25.00 per hour. Offshore was claiming its regular hourly charge for repairs performed in its yards rather than the amount actually paid to the employees. That regular hourly charge is based on Offshore's annual average hourly cost for all its services which includes salaries, insurance, overhead, fuel, and other expenses necessary to run the yards, presumably including some profit. Fourth, the application asserts that the contaminated soil had been drummed and transported to the Palatka facility. In fact not all the contaminated soil was drummed or taken to Palatka. It cannot be determined precisely how much soil was removed or where it is now located. Offshore billed Mr. Rita, the vessel's owner, for the cleanup by sending him a bill for $5,887.53 on August 23, 1991. Offshore presented evidence regarding sampling and testing of the contents of certain drums which it alleges contained soil from the alleged spill. Because there is insufficient evidence to establish the true origin of the contents of the various drums and because Offshore was so haphazard in maintaining records of the contents of the drums, the testimony and evidence regarding the sampling and testing is simply not material or probative of any issues significant to the resolution of this reimbursement claim.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Natural Resources enter a Final Order and therein DENY the reimbursement claim filed by Offshore Shipbuilding, Inc., and DISMISS the petition filed herein. DONE and ENTERED this 18th day of December, 1992, in Tallahassee, Florida. DIANE K. KIESLING 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 18th day of December, 1992. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-3946 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Offshore Shipbuilding, Inc. 1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1 & 2(1); 3(8); 4(9); 5(2); 13(2); 17 & 18(4); 19-22(5); 24(5); 29(3); 32(3); 35(3); 38(6); 42 & 43(8); 45(8); 48(10); 59(9); 60(10); 86(9); and 103(11). 2. Proposed findings of fact 6, 10-12, 14, 16, 25-27, 30, 31, 33, 39, 40, 46, 47, 49, 50, 56, 61-64, 71-74, 76-79, 83, 87-93, 95, 107, 108, 111, 121, 122, 136, 187-192, 198, 216-219, 221, and 222 are subordinate to the facts actually found in this Recommended Order. 3. Proposed findings of fact 7, 8, 15, 23, 28, 34, 36, 37, 41, 52, 53, 58, 65- 67, 69, 70, 75, 80, 84, 85, 94, 97-100, 102, 117, 124-132, 141-184, 186, 193- 197, 199-215, 220, 223-236, and 238-240 are irrelevant. 4. Proposed findings of fact 9, 44, 51, 55, 57, 68, 96, 101, 104-106, 109, 110, 112-116, 118-120, 123, 133-135, 137-140, 185, and 237 are unsupported by the credible, competent and substantial evidence. 5. Numerous proposed findings of fact, including but not limited to, 151-153, 155-157, 159, 160, 167, 218, and 219 are mere summaries of testimony and are not appropriate as findings of fact. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Natural Resources 1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 2(1); 3-7(24-28); 9(29); 10 & 11(27); 12(22); 13(23); 15 & 16(2); 19(3); 20(3); 21(6); 22 & 23(7), 24(8); 25 & 26(9); 28(9); 29 & 30(10); 32 & 33(12); 34(14); 35(12); 36(14); 43(15); 44 & 45(16); 46(17); 47 & 48(18); 49 & 50(16); 51(19); 54(21); and 65(30). 2. Proposed findings of fact 1, 8, 14, 17, 27, 31, 37, 38, 41, 42, 55, 56, 60, and 61 are subordinate to the facts actually found in this Recommended Order. 3. Proposed findings of fact 18, 39, 40, 52, 53, 57-59, and 62-64 are irrelevant, primarily for the reasons stated in Finding of Fact 30. COPIES FURNISHED: Virginia B. Wetherell Executive Director Department of Natural Resources 3900 Commonwealth Boulevard, MS-10 Tallahassee, FL 32399-3000 Kenneth Plante, General Counsel Department of Natural Resources 3900 Commonwealth Boulevard, MS-10 Tallahassee, FL 32399-3000 L. Kathryn Funchess Assistant General Counsel Department of Natural Resources 3900 Commonwealth Boulevard, MS-35 Tallahassee, FL 32399-3000 Robyn A. Deen Sidney F. Ansbacher Attorneys at Law Brant, Moore, Sapp, MacDonald & Wells Post Office Box 4548 Jacksonville, FL 32202
The Issue Whether Respondent's professional engineers' license should be disciplined.
Findings Of Fact At all times material to the allegations of this case, Respondent, Lester M. Maples, P.E., has been registered as a licensed engineer in the State of Florida, holding license number PE 10214. He has been licensed since 1964. There was no evidence that Respondent had been disciplined by the Florida Board of Professional Engineers in the past. Panhandle Fire Protection, Inc. (Panhandle) is owned by Chris Thomas and is in the business of designing and constructing fire protection systems. Respondent is the engineer for Panhandle. Respondent is the engineer of record for the fire protection plans for Longleaf Elementary and McArthur Elementary in Pensacola, Florida. Both plans were prepared in conjunction with Panhandle, the eventual contractor for the construction of the fire protection systems at both schools. The fire protection plans for both schools were signed, sealed, and dated by Respondent, with some revision dates also listed. The date does not appear immediately under Respondent's signature. However, the technicality of placement of the date is at best a de minimus violation which does not warrant discipline. Since the plans are dated, the portion of the Administrative Complaint alleging that Respondent failed to date the plans should be dismissed. Both plans were drawn by using data generated by a generally recognized computer program used for designing fire protection systems and generating the hydraulic calculations for such a system. Both plans show a fairly detailed layout of the fire protection piping and sprinkler heads at each school. Lengths of pipe, as well as diameter are shown. By looking at the plans, a person can generally trace the route of the pipes planned for each school and determine each system's construction. Both drawings are drawn to scale and otherwise appear to meet rule and building code criteria for such drawings. See Florida Building Code 104.2.1 and Rule 61G15-32.003(1), Florida Administrative Code. Indeed, both school's fire safety systems have been constructed and are in place at each school. However, prior to construction, Gene Schmidt, P.E., was the engineer of record for the Escambia County School Board. Fire protection systems is not his area of specialty. While he was not responsible for the fire safety plans for the two schools, he performed a courtesy review of the fire protection drawings and hydraulic calculations for Longleaf Elementary and McArthur Elementary. After review, Mr. Schmidt felt that the hydraulic calculations could not be reconciled with the drawings. He felt the plans did not comply with NFPA 13 with which fire protection plans must comply in Florida. NFPA 13 6-1.1.1 only requires that the hydraulic reference points or nodes shown on the plan correspond or correlate with comparable reference points on the hydraulic calculation sheets for the drawings. Hydraulic reference points or nodes are any intersection of piping where the flow of water through the pipes can change. Nowhere in NFPA, rule or statute, is the manner for describing these intersections or sections of pipe prescribed. Mr. Schmidt had difficulty in identifying the node points and section of pipe listed in the hydraulic calculations on the drawings. Once the method of description used by Respondent to describe these nodes and sections of pipe was explained to Mr. Schmidt, he could identify the reference point calculations on the drawings. Indeed, at the hearing, Mr. Thomas, a contractor, and another independent witness with expertise in engineering design principles, had no problem in tracing through the hydraulic reference points on the drawings. Both witnesses were of the opinion that the drawings contained sufficient information and continuity so that a person could trace through or determine how the water would flow throughout the sprinkler system. On the other hand, Petitioner's expert witness had great difficulty in so doing. He was of the opinion that Respondent's drawings lacked continuity and a person could not trace through or follow the flow of water through the system because the hydraulic reference points were not all defined or locatable on the drawings. What was clear from the evidence was that these various experts had real disagreements over the terminology to be used for describing hydraulic reference points and the theory underlying one method of description over another. In any event, the evidence showed that Respondent's descriptive methods were valid even if somewhat unique and that the hydraulic reference points did correlate to the hydraulic calculations for the two projects. As indicated, both systems were built and accepted by the owner. Therefore, the portions of the Administrative Complaint related to the lack of detail or clarity in the drawings and the relation of the hydraulic reference points to the drawings should be dismissed. The drawings do show pipes penetrating rated walls in corridors and around the kitchen at angles other than at 90 degrees. However, there is nothing in any rule, building code, or NFPA provision which prohibits such a design. Indeed, Petitioner's expert, who decried the angled design, has designed piping in such a manner. Additionally, the drawings do not specify the type of sealant the contractor should use when a pipe penetrates a firewall. However, there is no code or rule requiring such a specification. Indeed, proper sealing of the pipes in the area of penetration of a firewall, as is proper sealing of windows and doors, is required by Section 104.2 of the Florida Building Code. However, such standard building code requirements are not required to be specified in the drawings since all such construction requirements must be met by the contractor and is not otherwise a special design detail to be specified on the drawings by an engineer. Therefore, the portions of the Administrative Complaint related to the sprinkler systems' pipes entering the wall at an angle other than 90 degrees and the failure of Respondent to specify the type of sealant to be used where pipes penetrate a firewall should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Board of Professional Engineers enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 2nd day of July, 2003, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of July, 2003. COPIES FURNISHED: Alvin L. Peters, Esquire Peters & Scoon 25 East Eighth Street Panama City, Florida 32401 Douglas Sunshine, Esquire Florida Engineers Management Corporation 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303 Natalie A. Lowe, Executive Director Florida Board of Professional Engineers Department of Business and Professional Regulation 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue The issue is whether the comprehensive plan amendment adopted by Ordinance No. 96-28 is in compliance with Chapter 163, Part II, Florida Statutes, and Chapter 9J-5, Florida Administrative Code.
Findings Of Fact Petitioners are residents of Tarpon Springs. By stipulation, Petitioners have standing. This case arose out of a final order sustaining a challenge to a land development regulation adopted by Respondent City of Tarpon Springs (Tarpon Springs). The land development regulation allowed the construction of swimming pools and enclosures up to within eight feet of seawalls, despite Plan requirements of a 15-foot buffer along all wetlands and a 30-foot setback for all shoreline construction outside of the Sponge Dock Area. In Jeff and Laura Johnson and Department of Community Affairs v. City of Tarpon Springs, Case No. 95-6206GM, the Administrative Commission determined that the land development regulation was inconsistent with provisions of Tarpon Springs' comprehensive plan (Plan). However, the Administrative Commission withheld sanctions, as long as Tarpon Springs repealed the land development regulation, amended the land development regulation to make it consistent with the Plan, or amended the Plan to make it consistent with the land development regulation. Choosing the third option, Tarpon Springs amended its Plan by adopted Ordinance No. 96-28 on August 5, 1997. The ordinance revises Policy 2 of the Coastal Zone and Conservation Element (Conservation) of the Plan. Petitioners have challenged Conservation Policy 2, as amended by Ordinance No. 96-28. With the new language underlined, Conservation Policy 2 declares that the policy of Tarpon Springs is to: Require a minimum 30 foot aquatic lands setback for non-water dependent uses along the City's shoreline with the exception of the historic Sponge Dock Area and accessory structures on parcels where an existing seawall has effectively eliminated the natural function of the shoreline. Accessory structures are defined as those detached from the principal building located on the same lot and customarily incidental and subordinate to the principal building or use. Accessory structures shall not include any structure having an impervious roof supported by columns or walls and intended for the shelter, housing, or enclosing of any individual, animal, process, equipment, goods, or materials of any kind[.] (Objectives 1 and 11) The Plan contains several other relevant provisions, which were not the subject of the amendment. In general, Tarpon Springs has taken a comprehensive approach to comprehensive planning by adopting, as part of its Plan, supporting data and analysis and even provisions of Chapter 9J-5, Florida Administrative Code (Chapter 9J-5). For instance, the Conservation Element recites each provision of Chapter 9J-5 requiring a goal, objective, and policy. As for objectives, various parts of the Conservation Element state, "It is the objective of the City of Tarpon Springs to . . .," and the Plan restates individual provisions of Rule 9J-5.012(3)(b). Responding to each objective reprinted from the rule, the Plan states various planning provisions. Eight Conservation policies follow Rule 9J-5.012(3)(c)1, which requires a policy identifying regulatory or management techniques for: "Limiting the specific impacts and cumulative impacts of development or redevelopment upon wetlands, water quality, water quantity, wildlife habitat, living marine resources, and beach and dune systems." The eight policies provide: Place all wetland areas in the preservation designation as shown on Schedule A, and ensure that no additional loss of wetland vegetation occurs; (Objectives 1, 2, and 11) [This is Conservation Policy 2 cited above. Require a minimum 15 foot buffer zone adjoining all wetlands; (Objectives 1 and 11) Identify design alternatives and funding sources for bayou erosion control; (Objective 3) Utilize wetlands for stormwater filtering in accordance with the discussion under Section II.D.5, FDER, SWFWMD, and Chapter 17-25 requirements for water quality, quantity, and use; (Objectives 1, 6) Restrict seawalling along the Gulf Coast shoreline, and require the replacement of seawalls in the Coastal High Hazard Area with stabilization techniques as exhibited by Figure 9 of this element in the event they are destroyed in excess of 50% of their replacement cost; (Objectives 1, 2, 3) Require all development or redevelopment adjacent to wetlands or upland natural areas to assess the impact upon wildlife in order to evaluate and eliminate or minimize adverse impacts; (Objectives 1, 2, 11) Require that post development runoff shall not exceed pre-development runoff for the 25 year frequency storm, 24 hour duration[,] in order to limit adverse impacts of water quantity and quality resulting from development or redevelopment; (Objectives 1, 2, 4 and 6 Other Conservation provisions are: Goal 2. Reduce shoreline conflicts through the land use planning process. Policy 11. Include the restoration and utilization of wetlands as a part of the Master Drainage Plan[.] (Objectives 4, 6) Policy 14j. Existing hazard mitigation programs that include shoreline restoration and enhancement, building code and floodplain regulations, development management techniques such as land regulations, development management techniques such as land use, zoning, and subdivision regulations, and other applicable hazard mitigation measures[,] shall continue to be implemented. These mitigation programs shall be amended, as necessary, to remain consistent with federal and state requirements. Policy 22. All hurricane evacuation routes will be clearly posted within the City of Tarpon Springs by the Tarpon Springs Fire Department[.] (Objective 14) Petitioners and Respondents dispute the meaning and effect of Conservation Policy 2. It is necessary to interpret Conservation Policy 2 before considering specific challenges to whether it is in compliance with various provisions of Chapter 163, Florida Statutes (Chapter 163), and Chapter 9J-5. The obvious purpose of adding the accessory-structure exception to Conservation Policy 2 was to liberalize land uses within the 30-foot aquatic lands setback. Petitioners argue that the amendment also liberalizes land uses within the separate 15-foot wetlands buffer. This argument is incorrect; the amendment does not affect the restrictions accompanying the 15-foot wetlands buffer. Before and after the amendment, the 15-foot wetlands buffer applies a separate land use restriction whose effect is not in any way dependent upon the existence of the 30-foot aquatic lands setback. Regardless of the amendment, if a proposed land use is within the 15-foot wetlands buffer, the land use is subject to the restrictions imposed by the buffer. The Future Land Use Element contains the following definition of "buffer": "A reserved area attractively landscaped and perpetually maintained as common open space, free of structures, impervious surface, roadways, storage, and other enclosures or appurtenances." The 15-foot wetlands buffer thus prohibits the conversion of open space to other uses, which would include swimming pools. The accessory-structure exception in no way lessens the restrictions imposed by the 15-foot wetlands buffer. After consideration of the definition of "buffer," it is clear that the accessory-structure exception would only allow the installation of a swimming pool in the portion of the 30-foot aquatic lands setback that is outside of the 15-foot wetlands buffer. Petitioners contend that the phrase, "existing seawall," is vague and ambiguous. The Plan fails to define these two words. As for the meaning of "seawall," the record contains some evidence that Tarpon Springs officials may have difficulty determining whether a deteriorated seawall constitutes an "existing seawall" or, effectively, riprap. Less likely, there may be some confusion as to whether a seawall fronted by riprap constitutes a seawall. However, it is at least fairly debatable that Conservation Policy 2 is not so vague or ambiguous as to be unenforceable with respect to its definition of an "seawall." The word, "existing," is not entirely free of ambiguity. The two best alternative interpretations are that "existing" refers to seawalls in existence when the subject Plan amendment becomes effective or that "existing" refers to seawalls in existence when the landowner files an application for a building permit for the accessory structure or when Tarpon Springs grants the permit application. The better interpretation of "existing" is that it refers to seawalls in existence when the landowner files his or her application or Tarpon Springs grants the application. Conservation Policy 2 addresses the installation of accessory structures, not seawalls. Although the accessory-structure exception is dependent on the presence of a seawall, the exception directly addresses accessory structures, not seawalls. Absent an explicit attempt to regulate seawall construction, nothing in the accessory-structure exception in Conservation Policy 2, or the policy itself, suggests an attempt to grandfather in only those seawalls in existence at the time of the adoption of the Plan amendment. The focus of the accessory- structure exception in Conservation Policy 2 is not on limiting the construction of seawalls, but on assuring that landowners will install accessory structures only behind functional seawalls. The more natural and practical reading of "existing" is thus that it applies to seawalls in existence as of the time of the filing or granting of the application. An interpretation that requires that the seawall be in existence as of the time of the granting of the permit serves the practical purpose of assuring that the seawall is in place when the accessory structure is installed. This important practical effect is not assured by the grandfathering-in interpretation, unless Tarpon Springs artificially stretches its interpretation of "existing" to mean only those seawalls in existence as of the effective date of the subject amendment and continuing in existence from that time through the date of the granting of the application. Lastly, Petitioners contend that the clause, "effectively eliminated the natural function of the shoreline," is meaningless. This contention is legitimate. No seawall effectively eliminates the natural function of a shoreline, if "effectively" means "completely" or even "substantially completely." There is no fairly debatable definition of "effectively," "eliminate," "natural function," or "shoreline" that can assign meaning to this clause. Tarpon Springs apparently intended to use the "effectively eliminated" clause to limit the applicability of the accessory-structure exception to uplands immediately landward of some, but not all, seawalls. However, the record offers no real guidance as to the grounds on which Tarpon Springs would distinguish between these two classes of seawalls. Undoubtedly, the natural functions of a shoreline can be substantially reduced by a seawall, but a seawall cannot eliminate all of the numerous natural functions of a shoreline. Two examples should suffice. Biologically, the installation of a seawall does not eliminate all of the organisms occupying the shoreline ecotone, including the seawall. Physiographically, the installation of a seawall does not eliminate the natural function of a shoreline as a geographic line of demarcation between uplands and open waters. However, the shortcomings of the "effectively eliminated" clause do not render Conservation Policy 2 meaningless. This attempt to differentiate between functional and nonfunctional seawalls is merely an attempt to create a nonfunctional-seawall exception to the accessory-structure exception. If the "effectively eliminated" clause were disregarded as meaningless, Tarpon Springs could continue to apply the accessory-structure exception without regard to the functional status of the seawall. Although, as far as this case is concerned, Tarpon Springs may attempt to distinguish between those seawalls that it believes have effectively eliminated the natural function of the shoreline and those seawalls that have not done so, the remainder of this recommended order will consider Conservation Policy 2 as though it would apply to all seawalls. Crucial subsidiary issues in this case involve the effect of the amendment on various natural resources. Given the proximity of the area affected by the 30-foot aquatic lands setback to wetlands and open waters, the environmental issues primarily involve the effect of stormwater runoff on nearby wetlands and open waters. In analyzing the stormwater runoff issue, the first issue involves the extent to which the accessory-structure exception may cause the conversion of pervious to impervious surface. However, the record fails to reveal two important pieces of information: the extent of the affected area that is presently pervious and the extent of this pervious area that will likely become impervious. In considering the extent to which pervious area will likely become impervious, due to the accessory-structure exception, it is necessary to consider the types of accessory structures that landowners will likely construct. Although it is possible that the accessory-structure exception may facilitate paving, which obviously creates an impervious surface, swimming pools are the most likely structures to be installed under the accessory-structure exception, which prohibits roofed structures. Where a swimming pool replaces pervious surfaces, the pool could adversely affect stormwater runoff. If one were able to project the pervious surface area annually to be converted to swimming pools, possibly one could model progressively more intense storm events and durations (but not in excess of the design storm event) to determine whether (and, if so, to what extent) the typical swimming pool would receive runoff, rather than divert it around the pool, as is normal construction practice. Other calculations would need to consider the capacity of the typical pool to collect additional water prior to discharging the water and the input received by wetlands and open waters, in relevant storm events, directly from rainfall and, if applicable, indirectly from runoff. The record contains no such analysis, nor is the issue so clearcut as to permit an inference that swimming pools, or other accessory structures, would, in storm events up to the design storm event, adversely affect the quality, quantity, rate, or hydroperiod of the runoff through nearby wetlands and into nearby open waters. The absence of a demonstrated relationship between the accessory-structure exception and adverse environmental effects is independent of the area of land affected by the accessory- structure exception. The absence of such a demonstrated relationship is further underscored, though, by the relatively small area of uplands that would likely be converted annually to swimming pools. Although the record contains varying estimates of the amount of land involved, Petitioners have failed to demonstrate that the area of affected land is more than minimal. In terms of water quality, the record does not establish the net effect of converting the pervious portion of the affected area into pool areas. If grassy or planted, the pervious area may receive undisclosed infusions of insecticides, herbicides, and fertilizers. Undisclosed amounts of these substances may enter the nearby wetlands and open waters directly in runoff, leading to adverse environmental effects. The pool areas probably will receive undisclosed infusions of pool chemicals. Undisclosed amounts of these substances may enter the nearby wetlands and open waters directly in spillage and indirectly through evaporation and atmospheric deposit, leading to adverse environmental effects. The state of the record precludes findings, at a level of probability as to exclude fair debate, with respect to which land use would likely have a greater impact on water quality. Other environmental issues raised by Petitioners are insubstantial. For instance, the record does not disclose the significance of the loss of assertedly contiguous wildlife corridor following the conversion into swimming pools of 15-foot wide strips of backyards running parallel to the shoreline starting at a distance of about 15 feet from the edge of the wetlands. On these facts, Petitioners cannot show, to the exclusion of fair debate, that Tarpon Springs' planning decision to adopt the accessory-structure exception to the 30-foot setback is inconsistent with the various environmental and planning criteria of Chapters 163 and 9J-5. This deferential evidentiary standard acknowledges the basically political or legislative nature of the process by which local governments plan land uses. In general, to overturn this political or legislative process, Petitioners must make a more definitive showing of environmental or planning harm caused by the adoption of the subject Plan amendment that will allow landowners to construct swimming pools in their backyards relatively close to open water. The absence of such a showing generally precludes a determination that the subject Plan amendment is inconsistent with the relevant criteria of Chapters 163 and 9J-5--such as supporting data and analysis, internal consistency, and other specific provisions. For instance, on the basis of the present record, it is impossible to determine whether the conversion of pervious surfaces to swimming pools would be environmentally harmful, especially on the scale reasonably envisioned by Tarpon Springs. This state of the record precludes a finding that Petitioners have shown, to the exclusion of fair debate, the alleged environmental inconsistencies that they must show in order to prevail. Petitioners have failed to prove to the exclusion of fair debate that the subject Plan amendment is inconsistent with Sections 163.3177(6)(g)1-5 and 10, and Rules 9J-5.012(3)(b)6 and 8 and (c)2, 3, and 7. These criteria require local governments to adopt plan provisions serving various planning, environmental, aesthetic, and public-safety criteria. No plan amendment addressing a single topic, like the accessory-structure exception, is required to address all of the criteria contained in Chapters 163 and 9J-5. It is possible that the effect of a plan amendment addressing a single topic may be to cause the plan, as amended, to fail to satisfy certain criteria. If so, the more likely challenge would be that the plan amendment is internally inconsistent with the various plan provisions that, prior to the amendment, satisfied the criteria in question. Petitioners have failed to prove to the exclusion of fair debate that the subject Plan amendment is inconsistent with the criterion of Sections 163.3177(8) and (10)(e) and 163.3178(2)(b) and Rule 9J-5.005(2). As previously found, the data and analysis contained in the record would support a planning decision to adopt the accessory-structure exception, even without the functional-seawall exception, or to reject the accessory-structure exception. Petitioners have failed to prove to the exclusion of fair debate that the subject Plan amendment is internally inconsistent with Conservation Goal 2 or Conservation Policies 2, 3, 6, 11, 14j, and 22. As already noted, there is no inconsistency between Conservation Policy 2, as amended, and Conservation Policy 3, which imposes the 15-foot wetlands buffer. To the extent that Petitioners have adequately raised an issue of internal inconsistency between the subject Plan amendment and Plan provisions governing the coastal high hazard area, the record does not support a finding that the accessory-structure exception would result in a material increase of either persons or property in the coastal high hazard area. Petitioners also assert that the process by which Tarpon Springs adopted the subject amendment was inconsistent with the criterion of public participation. In challenging the process by which Tarpon Springs adopted the subject amendment, Petitioners assert that Tarpon Springs failed to comply with the Plan Administration Element, which Tarpon Springs adopted as part of its Plan. As described by Petitioner Constance S. Mack in her proposed recommended order, this element generally requires that Tarpon Springs notify all landowners affected by a proposed amendment, encourage public participation, and consider and respond in writing to comments from the public. The record reveals an imperfect planning process. Tarpon Springs probably considered some erroneous data and analysis. Tarpon Springs ultimately adopted a Plan amendment containing the meaningless nonfunctional seawall exception to the accessory-structure exception. Petitioners correctly contend that little real dialogue took place between them and Tarpon Springs officials during the planning process. Communications between the two sides were less than ideal. By the end of the planning process, relations between the opposing parties deteriorated to the point that the Tarpon Springs planning director was, at times, treating legitimate attempts by Petitioners to participate in the planning process as unreasonable attempts at interference, and Petitioners were, at times, equating an unfavorable planning decision as a denial of public participation. But Tarpon Springs nonetheless satisfied the minimum criteria involving public participation. Petitioner Constance S. Mack accurately concedes in her proposed recommended order that Tarpon Springs allowed public participation at a "minimal level." The record reveals that Tarpon Springs complied with all state law governing public participation. Tarpon Springs also materially complied with all local law governing public participation. Any shortcomings in individual notice notwithstanding, published notice effectively put the community of Tarpon Springs on notice of the proposed amendment. The origin of this planning exercise was in a prior case that had been recently concluded. Tarpon Springs is a small community that, as evidenced by Petitioners' presentation of a petition with over 225 signatures protesting the proposed amendment, was in fact well informed of the ongoing planning process involving accessory structures. The record reflects that Tarpon Springs entertained Petitioners' objections, and the record supports the inference that Tarpon Springs considered these objections. In a perfect planning process, Tarpon Springs would have opened a dialogue with Petitioner Lisa Mack and responded to her carefully developed aesthetic vision of the future of Tarpon Springs' waterfront with an aesthetic vision of its own. In a better planning process, Tarpon Springs would have given more thoughtful consideration to Petitioners' objections to the language of the accessory-structure exception and eliminated some of the ambiguities present in the subject Plan amendment. In the end, the planning process resulted in a decision by Tarpon Springs to allow waterfront landowners to build swimming pools in their backyards, relatively close to the water. Petitioners worked hard during the planning process to achieve a different result. However, these facts, together with the shortcomings in the planning process, do not describe a planning process that is inconsistent with the criterion of public participation. Petitioners thus did not prove, to the exclusion of fair debate, that Tarpon Springs failed to give Petitioners reasonable notice of the proposed amendment and a reasonable opportunity to participate in the planning process. Petitioners failed to prove to the exclusion of fair debate that the adoption process failed to satisfy the public- participation criteria of Sections 163.3181(1) and (2) and Rule 9J-5.004.
Recommendation It is RECOMMENDED that the Department of Community Affairs enter a final order determining that the subject Plan amendment is in compliance. DONE AND ENTERED this 1st day of June, 1999, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 1st day of June, 1999. COPIES FURNISHED: Laura Johnson 30 Central Court Tarpon Springs, Florida 34689 Sam H. Mack 23 Central Court Tarpon Springs, Florida 34689 Thomas R. Cuba Qualified Representative Post Office Box 3241 Saint Petersburg, Florida 33731 Marika Samarkos 944 Bayshore Drive Tarpon Springs, Florida 34689 Lisa L. Mack 23 Central Court Tarpon Springs, Florida 34689 Thomas J. Trask Frazer Hubbard Post Office Box 1178 Dunedin, Florida 34698 Karen Brodeen Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts relevant to the issues presented for determination are found: Quality of Service The prime concern and complaint of the customers who testified at the hearing was the quality of water they receive in their homes. The water was described as containing high levels of chlorine, to the extent that it smells of chlorine and, on occasion, fades or bleaches colored clothing when washed. At times, the water is cloudy or rusty in appearance and contains debris, such as sand, dirt or pebbles. One witness testified that clothing had been stained by rust in the wash water. Samples of water received into evidence illustrate the muddy appearance of the water, with debris visible. At times, the water is colored with algae, resulting in greenish-colored ice cubes. Broken appliances are attributed by several customers to have resulted from the debris contained in the water. Customers have experienced low water pressure in their homes and water outages for up to ten hours without prior notice from the petitioner. It was not established whether such water outages were the result of routine maintenance or emergency repairs. Several witnesses found it difficult to contact petitioner regarding billing errors and that slow or no responses to their inquiries were received. The billing errors included mailing the bill to the wrong address and the amounts of the bill. One such latter complaint is presently before the consumer affairs division of the Public Service Commission. The only complaints regarding sewer service were that there is often an unacceptable odor and that "there was sewage boiling out on my street two days in a row." (T.51) Notice of the hearing in this cause was mailed to all customers on February 25, 1981. The rate case documents were delivered by an employee of petitioner to the Clerk's office of the Lake County County Commission in the Lake County Courthouse on February 17, 1981. Water samples are taken on a monthly basis from each of the petitioner's plants. These samples are then analyzed for water quality in a state-controlled laboratory and the results are then sent to the Florida Department of Environmental Regulation and the local Health Department. Personnel from these regulatory bodies occasionally visit the plants and make independent tests. None of the petitioner's water systems or its sewer system are presently under citation from any regulatory body. A citation existing prior to the petitioner's acquisition of the Palms Mobile Home Park water system has been removed. Prior to the hearing, Petitioner's vice-president of operations, Charles Sweat, had not received any complaints from customers regarding the level of water pressure in their homes. With regard to notification of customers of water outages, it is the petitioner's policy to give a twenty-four hour written notice to all customers for planned, scheduled maintenance which would require the water to be off for any length of time. When accidents or emergencies occur, petitioner devotes its concentration to the restoration of service and advance notice is not possible. The Department of Environmental Regulation has minimum requirements relating to the amount of chlorine which must be added to a water system. There are no maximum requirements. One of the Fern Terrace water samples received into evidence at the hearing was very brown in appearance. On the day upon which that sample was taken, the system had experienced a malfunction of the air compressor, causing all the water to go out of the system. The brown-colored water was the result of debris and rust that had built up in the bottom of the tank. The inside of the tanks are cleaned on a periodic basis, and that particular tank had been cleaned approximately six months ago. Petitioner does have a main flushing program, and each system is flushed on a regular basis, the frequency of which is dependent upon the type of pipeline used and the quality of the water in the system. A flushing report is maintained to record the appearance of the water at the beginning and at the end of the flushing, the chlorine residual in the water, the amount of time taken and the estimated gallons flushed out of the line. No explanation was provided for another muddy water sample received into evidence. Rate Setting for the Morningview Sewer System The Morningview sewer system is capable of supporting a maximum of forty-two (42) residential connections. At the end of the 1979 test year, the system had only twenty-six (26) connections. The respondent, Public Service Commission seeks to impute sewer revenues from the unsold lots in the Morningview subdivision so as to recognize the plant capacity of 42 connections. It was undisputed that the sewer plant was 100 percent used and useful and no adjustment was made to this figure. Since petitioner's acquisition of the Morningview sewer system, it has experienced an average annual growth rate of 13.16 percent. During the last year and one-quarter, the growth rate has been approximately 25 percent. The number of connections has increased from 19 in 1976 to the present 30. Eleven connections have been added in a little over four years. The revenues from the imputed connections were obviously not collected during the test year, nor were they collected in 1980. It would take approximately three years to collect the imputed revenues at the current rate of growth. The Public Service Commission has not adopted a rule allowing this imputation method of ratesetting. The pro forma approach has been used in setting rates for a new utility or development, and has been described as an "innovative" method of adjusting used and useful plant. Expenses in addition to increased costs for electrical power and chlorine necessitated by the increased number of connections were not considered by the Public Service Commission to be material. Additional connections to the sewer system would involve some additional billing and service costs, though the difference in fixed costs for serving 42 connections and 26 connections is minimal.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that no adverse consequences be imposed upon the petitioner in its application for rate increases as a result of the quality of water and sewer service provided to its customers in Lake County, Florida. It is further RECOMMENDED that revenues not be imputed for 42 connections to the Morningview sewer system. Respectfully submitted and entered this 24th day of April, 1981, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of April, 1981. COPIES FURNISHED: R.M.C. Rose Myers, Kaplan, Levinson, Kenin and Richards Suite 103, 1020 Lafayette Street Tallahassee, Florida 32301 M. Robert Christ Legal Department Public Service Commission 101 East Gaines Street Tallahassee, Florida 32301 Jack Shreve Public Counsel Room 4 - Holland Building Tallahassee, Florida 32301 Steve Tribble, Clerk Public Service Commission 101 East Gaines Street Tallahassee, Florida 32301 Joe Cresse, Chairman Public Service Commission The Fletcher Building 101 East Gaines Street Tallahassee, Florida 32301 Anna Marie Norman 1219 LaSalida Way Leesburg, Florida 32748 Marilyn Smith 2924 North Porto Bello Avenue Leesburg, Florida 32748 Patti L. Wolf 2922 Alta Street Leesburg, Florida 32748 Anna P. Cowin 2913 North Porto Bello Avenue Leesburg, Florida 32748 Pam Angelillo 2922 Cocovia Way Leesburg, Florida 32748
The Issue The issue in this case is whether City of Tarpon Springs Ordinance 94-29 is consistent with the City's comprehensive plan.
Findings Of Fact The City of Tarpon Springs Comprehensive Plan (the City's Plan) was adopted by City Ordinance 89-35. The Coastal Zone and Conservation Element of the Plan provides in pertinent part: IT IS THE GOAL OF THE CITY OF TARPON SPRINGS TO: Preserve, protect and enhance the natural and functional characteristics of the Coastal Management Zone; and to protect human life and limit public expenditures in areas subject to destruction by natural disasters; . . .. * * * IT IS THE OBJECTIVE OF THE CITY OF TARPON SPRINGS TO: 9J-5.012(3)(b) - Protect, conserve, or enhance remaining coastal wetlands, living marine resources, coastal barriers, and wildlife habitat: 1. Protect the natural resources of the Coastal Management Zone as identified by Schedule A of this Element; (Goal 1) . . .. * * * IT IS THE POLICY OF THE CITY OF TARPON SPRINGS TO: 9J-5.012(3)(c)1 - Limiting the specific impacts and cumulative impacts of development or redevelopment upon wetlands, water quality, water quantity, wildlife habitat, living marine resources, and beach and dune systems: Place all wetland areas in the preservation designation as shown on Schedule A, and ensure that no additional loss of wetland vegetation occurs; (Objectives 1, 2 and 11). 6/ Require a minimum 30 foot aquatic lands setback for non-water dependent uses along the City's shoreline with the exception of the historic Sponge Dock Area; (Objectives 1 and 11 7/ Require a minimum 15 foot buffer zone adjoining all wetlands; (Objectives 1 and 11 8/ ) . . .. Swimming pools and their screened enclosures are "non-water dependent uses" for purposes of Coastal Zone and Conservation Element Policy 2 (Coastal Zone Policy 2). Data and analysis adopted along with the City's Plan noted that the City would retain its ordinance providing for a 30 foot setback for aquatic lands and wetlands subject to the possibility of a variance under certain conditions on a case-by-case basis. Data and analysis also stated that areas designated for preservation would be preserved in their natural state through use of transfer of density/intensity rights and vegetative buffers and setbacks. City of Tarpon Springs Ordinance 94-29, adopted on September 20, 1994, revised Section 55.01 of the Land Development Code in pertinent part as follows: Wetland and Shoreline Buffers The following buffers shall be provided: A shoreline buffer of thirty (30) feet along the Gulf of Mexico, Anclote River, and tributary bayou shorelines. The buffer shall be measured from the mean high tide. * * * (E) Pools and their pool screened enclosures shall comply with the buffers listed above except where adequate seawalls or rip-rap stabilization exist, the setback requirement shall be 15 feet from the seawall or the landward limit of rip-rap stabilization. Pools and pool screened enclosures may be constructed within the required buffer provided a minimum setback of 8 feet is maintained from the seawall and provided that certification from an engineer registered in the State of Florida is submitted prior to issuance of a permit stating that the proposed structure will not effect [sic] the integrity or functioning of the seawall or its deadmen. The "shoreline . . . along the Gulf of Mexico, Anclote River, and tributary bayou shorelines" described in Ordinance 94-29 is included in the Schedule A "natural resources" identified in Coastal Zone Objective 1 and in the "shoreline" identified in Coastal Zone Policy 2. The bayous constitute wetlands required to be preserved under Coastal Zone Policy 1. At the same time, it is clear that the natural and functional characteristics, marine and other natural resources, and wildlife habitat of City shoreline that has been seawalled or stabilized by rip-rap have been compromised, in many cases severely. Approximately 15 percent of the City's approximately 45 miles of shoreline has been seawalled (approximately nine miles); approximately 5 percent (approximately three miles) has been stabilized by rip-rap. Much of the shoreline seawall within the City has been in place since 1924. In some cases, seawall has deteriorated to one degree or another, allowing some natural vegetation to begin to reestablish itself. In some cases, natural vegetation (e.g., mangrove) has reestablished itself along entire lot lines. Although no evidence was presented as to rip-rap, it is logical to infer that rip-rap stabilization also may be found in a similar range of conditions. The more that seawall and rip-rap has deteriorated and that natural vegetation has been reestablished, the more natural and functional characteristics, marine and other natural resources, and wildlife habitat can be expected to be restored. At some point (not specified by the evidence) in the process of the deterioration of seawall and rip-rap and the reestablishment of natural vegetation , the regulatory agencies with jurisdiction will not allow the repair and reconstruction of seawall or rip-rap. Similarly, some natural and functional characteristics, marine and other natural resources, and wildlife habitat might be expected to remain in areas of isolated segments of seawall or rip-rap stabilization. Swimming pools and their screened enclosures constructed under Ordinance 94-29 behind an area of competent seawall or rip-rap stabilization in accordance with would not be expected to have an adverse impact on water quantity or water quality. As to water quantity, water retention capacity of the pool would approximately compensate for additional run-off from loss of pervious surface. (To the extent that pool construction replaces an impervious surface, a net reduction of run-off would be expected.) Besides, construction of a swimming pool on a residential lot is exempt from surface water management regulations because of the relative insignificance of the impact on run-off. As to water quality, generally the pollutant loading of water running off a residential lot with a swimming pool probably is less than, or at least the same as and not significantly more than, the pollutant loading of water running off the same lot without a swimming pool. Generally, pool chemicals are retained in the pool whereas lawn fertilizer, pesticides and insecticides often used on residential lawns would be more likely to run off into adjacent water bodies. 9/ According to the evidence presented at final hearing, it is at least fairly debatable that the construction allowed by Ordinance 94-29 would improve the housing stock in the City, increase property values, increase the tax base, and increase and improve the mix of adequate housing. One of the goals of the housing element of the City's Plan is to provide a mix of adequate housing. 10/ The City also presented evidence that one purpose of Ordinance 94-29 was to bring the City's land development regulations (LDR's) into conformity with the LDR's of Pinellas County, which surrounds the City and even has jurisdiction over enclaves within the perimeter of the City's boundaries. However, the DCA presented evidence that the City narrowly focused on the County's zoning regulations and overlooked the County's environmental regulations. The County's environmental regulations require a 50-foot upland buffer from all wetlands other than isolated wetlands, waterways not designated for preservation, and certain County-approved retention ponds. Jeff and Laura Johnson and Lisa Mack live on lots abutting City shoreline. The Johnsons own their home; Mack does not own her residence. The Johnsons' next door neighbors are building a swimming pool and screened pool enclosure in their back yard under the authority of Ordinance 94-29. At the time of the final hearing, a building permit had been obtained, and the construction of the pool had been virtually completed; only the screen enclosure remained to be built. In addition to their general interest in Ordinance 94-29 and its impact throughout the City, the Johnsons also have more immediate and direct concerns. They are concerned first and foremost that their next door neighbors' screened pool enclosure, which will be very close to the shoreline, will block their view of Minetta Bayou, especially since the residential lots where they live are very narrow. They also are concerned about loss of privacy due to use of the swimming pool. (The pool is elevated above ground level and quite close to the Johnsons' lot and house, which itself is situated practically on the side lot line.) In addition, they are concerned that noise from the pool pump, as well as from pool users, will disturb their peace and tranquility. Finally, the grading of the ground around the pool may direct more surface water onto the Johnsons' property. 11/ Unlike the Johnsons, no pool is being built next door to Mack's residence at this time. Her concern that one might be built there under the authority of Ordinance 94-29 is more remote. She also shares with the Johnsons concern over what would happen to the City, including its shorelines, aquatic lands and water bodies if full advantage is taken of Ordinance 94-29. Much of the City's seawalled and rip-rap stabilized shoreline is in residential areas, and Ordinance 94-29 conceivably could be utilized to build swimming pools and screened enclosures within the 30 foot setback specified in Coastal Zone Policy 2 on between 500 and 1000 residential lots.
