Findings Of Fact Harlen Brown, was called and testified that he is a member of a corporation which owns the property which is the subject of this hearing and is located at 477 Northwest Lucy Street, Florida City, Florida. He testified that the licensee rented the space from the corporation on a month to month basis and that he was aware of the charges pending against the licensee. 1/ Brown stated that he was experiencing problems with licensee Washington and that residents of the community had also expressed their problems which were in the nature of a nuisance to the community but that the residents are not criminally inclined. Brown indicated that he would file an application to operate the premises as a beer and wine disco arrangement and that it was his intent to renovate the premises and cater to adults and not minors. He expressed the opinion that the problems stemmed from the prior lessees. Brown urged that if the licensee's license was revoked, that it be done without prejudice. Michael Somberg, a beverage officer for approximately 18 months testified that he visited the Spot Bar on November 2, 1975, along with public safety officers Swain, Davis and others at approximately 12 o'clock, based on complaints that minors were consuming alcohol. Police officers that were also on the scene made an I.D. check of all the occupants on the premises and detained a juvenile, Larry Melvin, whose age as subsequently established revealed that he was 15 years old. He at the time of his detainment was carrying a sealed can of Miller's Beer. Somberg tasted and smelled the beer and determined that it was an alcoholic beverage. He placed Melvin under arrest and the beer was given to Officer E. W. Pfitzenmaier, who in turn submitted it to the crime laboratory bureau of the Metropolitan Dade County Public Safety Department for a laboratory analysis report. The examination conducted on the beer submitted that it contained ethyl alcohol 2.01 percent by volume or 1.61 percent by weight. Somberg testified that there was a flurry of activity on the premises when they announced themselves as beverage agents and/or policemen and that there was an attempt by the patrons to rid themselves of several packets and other items which turned out to be contraband. Somberg found one aluminum packet which contained 8 small packets of what appeared to him to resemble cocaine. He also gathered small amounts of marijuana and other paraphernalia from the floor of the premises. He retained the paraphernalia and had a field reagent test conducted on the narcotics. Present with Somberg was Officer Pfitzenmaier who also assisted in gathering the large wrapper which contained the 8 small packets of the white substance which according to him resembled cocaine also. Pfitzenmaier testified that he, at all times, maintained the confiscated items under his care, custody and control until turned over to the Dade County Laboratory Department. The various reports and items were received in evidence and marked for identification as Board's Exhibits 3 through 10. Also introduced was the notice of hearing which was issued to Licensee Washington and as Exhibit Number 12 the notice to show cause why his license should not be revoked. An examination of the items revealed that the licensee and/or his agents sold to a minor a liquid containing ethyl alcohol; that among the items confiscated was heroin and marijuana i.e., 13.6 grams of marijuana and heroin and 8 small packets containing cocaine. Also introduced was a carton containing 100 packages of non Florida tax paid cigarettes which were found on the licensed premises on January 8, 1976. This possession violates Florida Statutes 561.29(1)(B).
The Issue The issue for determination in this proceeding is whether Respondent discriminated against Petitioner on the basis of her race, sex, familial status, or association with handicapped individuals in violation of Subsection 760.23(2), Florida Statutes (2003), by refusing to renew Petitioner's lease when it expired or by subjecting Petitioner to different treatment than other similarly situated tenants.
Findings Of Fact Petitioner is a member of a protected class. Petitioner is a female whose race is African-American. Petitioner's household includes children who are under the age of 18 and who are, or who are perceived to be, handicapped. Respondent rents dwelling units to the public at 5455 Pointe Vista Circle, Orlando, Florida. The apartment community is identified in the record as Pointe Vista Apartments (Pointe Vista). Petitioner applied to lease an apartment at Pointe Vista on November 1, 2001. Respondent approved the application and the parties entered into a written lease for a term of "one year" beginning on December 21, 2001, and ending on November 30, 2002. The parties subsequently entered into a renewal lease covering a term from December 1, 2002, through November 30, 2003. Respondent performed various repairs and maintenance jobs in Petitioner's apartment from sometime in March 2003, through September 17, 2003. Petitioner requested most of the repairs, but some of the jobs involved required maintenance. Respondent made six repairs to the air-conditioning system. Some of the repairs to the air-conditioning system were required because Petitioner, or members of her household, had damaged the thermostat. The property manager notified Petitioner in writing that Petitioner was not in compliance with the lease because Petitioner failed to operate the air- conditioning system properly and that a repeat violation within 12 months would be grounds for termination of the lease. The property manager observed the apartment during one of the repairs. On June 26, 2003, the property manager notified Petitioner in writing that Petitioner was not in compliance with the lease because Petitioner failed to maintain the apartment in accordance with the terms of the lease. In particular, doors were "punched" out, wet newspaper was in the kitchen, the carpet was damaged and "extremely" dirty, and the microwave was broken. The notice stated that a repeat violation within 12 months would be grounds for termination of the lease. Orange County scheduled an inspection of Petitioner's apartment on August 12, 2003, to determine if the apartment was eligible for continued "Section 8 rental assistance." Petitioner refused to allow the inspection, and Orange County rescheduled the inspection for August 29, 2003. Petitioner's apartment failed the inspection conducted on August 29, 2003. In order to pass an inspection, Petitioner needed to repair a living room window, stove burners, a garbage disposal, and a loose door panel. Petitioner also needed to eliminate roach infestation and improve housekeeping. The apartment passed a subsequent inspection conducted on September 19, 2003. Respondent notified Petitioner of Respondent's intent not to renew the lease on October 23, 2003. The notice informed Petitioner that she would need to vacate the apartment by November 30, 2003. Petitioner remained in possession of the apartment during December 2003, and paid no rent. The property manager issued a "Three Day Notice to Pay Rent or Deliver Possession." Petitioner returned the keys to the apartment in early January 2004.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order determining that Respondent did not discriminate against Petitioner when Respondent refused to renew Petitioner's lease. DONE AND ENTERED this 3rd day of November, 2004, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Fornetha Judge Rizos 5215 Limelight Circle, Apartment One Orlando, Florida 32839 Cathy L. Lucrezi, Esquire Law Offices of Heist, Weisse, & Lucrezi, P.A. 1661 Estero Boulevard, Suite 20 Post Office Box 2514 Fort Myers Beach, Florida 33932 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Petitioner was the subject of an unlawful employment action.
Findings Of Fact Respondent is an employer within the meaning of Chapter 760, Florida Statutes. Petitioner has had diabetes since his youth and requires regular insulin and other medications for his condition. However, even with medication, Petitioner experiences a variety of symptoms due to low or high blood sugar. At the time relevant to this proceeding, Petitioner’s symptoms ranged from mild to severe and included periods of disorientation, faintness and passing out. Around October 1986, Petitioner was hired by Bay County (County) as an Equipment Operator. In that position, he was required to drive trucks. At the time of his employment, the County was aware of Petitioner’s diabetes. However, the evidence was not clear that the County was aware of the severity of Petitioner’s diabetic symptoms at the time of his hire or that Petitioner’s diabetes might have been severe enough to constitute a handicap at the time of his hire. Unfortunately, Petitioner had two accidents during his tenure as an Equipment Operator. Petitioner’s first accident occurred in 1989 and resulted in a reduction of pay. Petitioner’s second accident occurred in 1990 and led to his demotion from the Equipment Operator position. After his demotion, Petitioner assumed the position of Maintenance II with the County. In October 2005, the County changed the title of the Maintenance II position to Senior Maintenance Worker. Under either title, the duties of the maintenance position required heavy physical labor outdoors. The duties included shoveling, lifting, road work and ditch work. Such work was performed in all types of weather experienced in North Florida, including high heat conditions. Petitioner remained in the Senior Maintenance Worker position until December 2, 2007. At some point around early 2005, during Petitioner’s employment as a maintenance worker with the County, his diabetes became a handicap that impacted his major life functions. Petitioner experienced many episodes where he became uncooperative, faint and/or disoriented because of his diabetes. Some of the episodes occurred without warning when Petitioner would become uncommunicative, begin wandering, or pass out. Other episodes had some warning when Petitioner would report that he felt ill and needed to rest or take medication. The evidence demonstrated that Petitioner’s supervisors and co- workers were aware of his diabetic condition and would assist him in recuperating from these hypoglycemic or other diabetic- related episodes. Additionally, although the record is not clear, there was some evidence that summer heat in combination with strenuous labor exacerbated Petitioner’s ability to control his diabetic symptoms. On the other hand, there was some evidence that indicated Petitioner could experience symptoms from his diabetes under any environmental or working conditions. In 2005, the episodes were significant enough for the County to require Petitioner to undergo a medical examination to assess his fitness to safely perform his duties as a maintenance worker. At that time, the doctor recommended that Petitioner learn to control his diabetes better and be monitored for several months to see if Petitioner gained control of his diabetic episodes. Significantly, the doctor did not find Petitioner unfit to perform his duties as a maintenance worker. Petitioner was never denied a break that he needed as a result of his diabetes and was not disciplined because of his diabetic episodes. Indeed, throughout Petitioner’s employment as a maintenance worker, the County reasonably accommodated Petitioner’s diabetic condition and, as needed, allowed him to sit in the shade, eat, rest, test his blood sugar levels, and/or take medications. County supervisors provided Petitioner candy bars or soft drinks to help resolve his diabetic episodes, allowed Petitioner to take unscheduled breaks, leave work early because of his diabetes, and, at least once, provided a County vehicle to transport Petitioner to his home to get medications. Throughout the years of his employment with the County, Petitioner submitted job interest forms to the County. The job interest forms did not demonstrate that there were job openings or positions available at the time Petitioner expressed an interest in those jobs. The jobs Petitioner expressed an interest in were equipment operator, heavy equipment operator, lab field technician, dump truck driver, parks maintenance worker, traffic sign technician, and water treatment plant operator trainee. Petitioner was interested in the positions identified in the job interest forms because he wanted to better himself professionally. Importantly, Petitioner did not pursue the jobs identified in the various job interest forms he submitted as reasonable accommodations for his diabetes. The fact that the County’s doctor indicated in a 2005 medical examination and report assessing Petitioner’s fitness for duty that work under less strenuous conditions might be warranted should Petitioner not gain better control of his diabetes does not demonstrate that Petitioner requested or required transfer to another position in order to reasonably accommodate his diabetes. Indeed, the documentary evidence demonstrated Petitioner did gain control over his diabetic episodes in 2006 and 2007 with reports of such episodes being substantially reduced and one doctor, in 2007, advising the County that Petitioner could drive a truck as long as he monitored his blood sugar adequately. The evidence did not demonstrate that Petitioner sought transfer to a lighter-duty position as a reasonable accommodation until late 2007 as described later in this Recommended Order. Moreover, all but one of the job interest forms Petitioner submitted during his employment with the County sought reemployment to the equipment operator position from which he was demoted. All of these positions required driving or operating machinery. They all required heavy physical exertion and lifting between 45-to-90 pounds. All positions also required exposure to the heat from the sun and exhaust from machinery. However, the evidence demonstrated that these positions were not as strenuous as the maintenance position that Petitioner held. These positions were also promotions from his maintenance worker position. Additionally, Petitioner offered no evidence that his driving had improved or that he was qualified to operate heavy equipment or drive trucks given his insulin-dependent diabetes and the severe symptoms that he experiences as a result of his diabetes. In fact, since Petitioner’s symptoms included disorientation, faintness and passing out, it would have been negligent for the County to allow Petitioner to operate trucks or other heavy equipment. In short, none of the equipment operator/driver positions constituted a reasonable accommodation for Petitioner. As for the other jobs of Laboratory Analyst I, Parks Maintenance Worker, Traffic and Sign Technician or the Water Treatment Plant Operator Trainee positions that Petitioner expressed an interest in, Petitioner did not know the minimum qualifications for these positions and did not offer any evidence that he was qualified for such positions. Similarly, Petitioner offered no evidence that he sought these positions as reasonable accommodations for his diabetes. Additionally, Petitioner’s interest in these jobs was expressed prior to 2007 or 2008, well outside the relevant time period for purposes of this discrimination claim. In September 2007, Petitioner provided the County a Family Medical Leave Act certification from Dr. Steven Wise that stated he could perform all of the essential functions of the maintenance worker position he held. The doctor’s notes do not state that he is unable to perform the duties of his maintenance worker position under current working conditions. In fact, Petitioner never gave the County any document that stated he could not perform the duties of the maintenance worker position and needed a less strenuous and hot job in order to accommodate his diabetes. On October 18, 2007, Petitioner conducted himself in a rude, combative, and extremely argumentative manner during a County-sponsored Diabetes Awareness Seminar. As a result, Petitioner was suspended without pay for one day. On November 1, 2007, Petitioner erupted into a profanity-laced tirade at the workplace only one week after serving the suspension for his outburst during the County’s Diabetes Awareness Seminar. Petitioner gestured his middle finger at a co-worker, threatened to beat an employee’s a _ _, and told the co-worker f_ _ _you, “if you stand up I will kick you’re [sic] a _ _,” “loud mouth punk,” and “you smart mouth d _ _ _head.” Petitioner directed his threats and profanity at co- workers and supervisors in response to another person who had parked their vehicle improperly and blocked or interfered with Petitioner’s ability to move his parked vehicle. At the time, Petitioner was undergoing a change from insulin shots to a continuous insulin pump. Such a change requires a period of adjustment in order for the pump to provide the correct dose of insulin to the user. There was no evidence that the County was aware of the change in Petitioner’s insulin regimen at the time of these outbursts. Additionally, the evidence was unclear that the change in Petitioner’s insulin regimen caused either of these outbursts although such behavior is consistent with a hypoglycemic reaction. As a result of Petitioner’s behavior, the County recommended his termination. Notably, such aggressive outbursts could have led to any employee’s termination, irrespective of whether the employee was handicapped or not, since the ability to get along with co-workers is essential to any working environment. Petitioner was provided a pre-termination hearing prior to the County making a final decision on his recommended discharge. During Petitioner’s pre-termination hearing, he explained that his profanity-laced outburst resulted from a low blood sugar episode and that he felt it was due to the changes he was undergoing in his insulin regimen. Petitioner’s spouse, who is a nurse, also explained his diabetic condition to the County Manager. Petitioner also submitted a note from his physician, Dr. Steven Wise, stating that a “job requiring less heavy physical exertion” would help Petitioner control his diabetes. Petitioner asked that he remain employed with the County and be allowed to transfer to a job with little or no physical exertion, less manual labor, and that was not exposed to the elements. Based upon Petitioner’s claim that his diabetes caused the outburst, his wife’s explanation of his diabetic condition, and the doctor’s note, the County decided to provide Petitioner an opportunity to remain employed in a less strenuous position. Ms. Smith, the County’s Human Resources Director, reviewed Petitioner’s personnel file to ascertain what jobs he had previously demonstrated an interest in and what positions he might be qualified for. After review, the Solid Waste Attendant position was the only position the County had available in November 2007 that fit the less heavy physical exertion requirement requested by Petitioner. At hearing, Petitioner submitted a list of available County jobs for 2007 and 2008. The list does not indicate which of the jobs was available in November 2007 when Petitioner first sought a job transfer as a reasonable accommodation. Additionally, the jobs Petitioner expressed an interest in were the same jobs Petitioner had expressed an interest in that were discussed earlier in this Recommended Order. As to those positions, the record shows that either Petitioner was not qualified for those jobs or there was no substantial or credible evidence that demonstrated the availability of any other less strenuous positions that Petitioner was qualified for in November 2007. Sometime after the pre-termination hearing, the County offered Petitioner the position of Solid Waste Attendant. At some point, the County met with Petitioner before he accepted the Solid Waste Attendant position. At that meeting, Petitioner was told about the duties of the Solid Waste Attendant position. Those duties included counting money, inputting data into a computer, and/or processing paperwork. Two of the essential functions of the Solid Waste Attendant position were the ability to use computers and the ability to make correct change when handling cash. At the time, and even though Petitioner now admits he is not good at math and has not used a computer to any great extent, Petitioner was pleased with the Solid Waste Attendant position and did not raise any concerns or objections regarding his ability to perform the duties of that job. In fact, Petitioner testified during the hearing that he “thought that it would be a good job.” Petitioner accepted the Solid Waste Attendant position and started work on December 3, 2007. He did not lose any pay or benefits when he was transferred to the Solid Waste Attendant position. As with any other County employee, Petitioner was on performance probation status when he assumed the Solid Waste Attendant position. The County’s probationary employee policy allows employees to be discharged prior to the completion of the probationary period. Petitioner was in the Solid Waste Attendant position for approximately two and a half months. With the exception of two weeks (December 28, 2007, until January 14, 2008) that he missed because of hand surgery on his non-dominant left hand, Petitioner spent the remaining ten weeks in training. However, prior to Petitioner’s leaving for surgery on his left hand he was having problems performing the Solid Waste Attendant’s duties. Upon Petitioner’s return to work on January 14, 2008, Petitioner was placed on light duty. He was not restricted in relation to the use of his left hand. However, for a short time, use of his left hand was difficult since it required elevation. Importantly, the evidence did not demonstrate that Petitioner’s surgery on his left hand significantly interfered with his ability to perform the duties of the Solid Waste Attendant position over the period of time he worked in that position. Nor, was there any credible evidence that Petitioner’s large hands hindered his ability to use the computer keyboard at work. Petitioner’s difficulties in mastering the duties required in the position did not involve the speed with which he could input data into the computer system. His problems did involve his ability to do math, understand the waste computer program and learn the codes for appropriately accounting for solid waste disposal. John Beals, Rose Day, and Cynthia Thompson trained Petitioner in the duties of the Solid Waste Attendant position for periods ranging from a couple of weeks to two months. Petitioner was provided training on how to complete solid waste attendant paperwork, computer operation, scale operation, customer service, and cash-handling procedures. Despite the training, his job performance in the Solid Waste Attendant position was unsatisfactory. Specifically, Petitioner was unable to retain the information necessary to complete solid waste attendant tasks, did not understand the WasteWork computer program, did not count money correctly when giving change, could not remember account numbers or material codes relevant to required environmental accounting for solid waste processing, failed to complete forms correctly, and could not multi-task while processing customers leaving waste at the solid waste facility. Petitioner’s performance did not improve after his return from the hand surgery. As a result of Petitioner’s inability to understand the Solid Waste Attendant’s job duties and unsatisfactory work performance in the position, the County terminated Petitioner’s employment during his probationary period. There was no credible evidence that Petitioner’s termination was based on his diabetic condition or was a pretext for discrimination based on his handicap. Petitioner simply could not perform the essential functions of the Solid Waste Attendant job. Finally, the evidence did not demonstrate that any other position was available to Petitioner for which he was qualified. Given these facts, the evidence did not demonstrate that Petitioner was discriminated against based on his handicap and the Petition for Relief should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petition for Relief be dismissed. DONE AND ENTERED this 31st day of December, 2009, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 2009. COPIES FURNISHED: Cecile M. Scoon, Esquire Peters & Scoon 25 East Eighth Street Panama City, Florida 32401 Reynaldo Velazquez, Esquire Velazquez Law Firm, P.A. 100 Almeria Avenue, Suite 340 Coral Gables, Florida 33134 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact William J. Colello is a registered real estate broker holding license number 0147272 issued by the Board of Real Estate. Colello is the only active firm member for Cindy Realty of Hernando, Inc., a registered corporate broker holding license number 0181975. Sea Pines, Inc., was the developer of Sea Pines Unit Three Addition. Wet Water, Inc., is a water and sewage company regulated by the Public Service Commission of Florida. Sea Pines and Wet Water agreed that the first purchaser of real property in Addition Three to Sea Pines would owe Wet Water $540. This assessment covered the cost of providing the water and sewage service to the subdivision. This was later termed a service availability charge. In addition, the property owner would have to pay water and sewer hook-up charges. The purchaser could elect to pay the assessment in a lump sum or in 100 monthly installments of $5.50. Lot 197 of Sea Pines, Unit Three Addition, the piece of property involved in this dispute, was initially bought in 1974 by J. R. Martinez, who elected to pay the water and sewage assessment in monthly installments. Martinez paid the monthly installments for approximately a year and then ceased making the payments. Colello purchased Lot 197 on June 4, 1975, and sold it on June 16, 1975, to Dennis Garcia, who was Colello's brother-in-law at the time. Colello made no payments on the water and sewage assessment. However, Wet Water billed on the first of each month, and Colello did not own the property when the bill was due. Although the Public Service Commission approved a charge by Wet Water of $5.50 per month for service availability in late 1974, there was no evidence that Colello was aware of the change in position of the Public Service Commission. Wet Water sent bills to Colello from immediately after his purchase of the property in 1975 until December of 1977. Colello denied knowledge of these bills; however, there were no bills sent to Colello after December, 1977, and as a result of a letter sent by Wet Water to Colello in August of 1978, Wet Water learned that Lot 197 had been sold to Garcia. Colello had no knowledge of the bill after December of 1977, and after August, 1978, Wet Water knew that Colello was not the owner of the property. In 1979, although Garcia's sister and Colello had been divorced for a number of years, Garcia listed Lot 197 for sale through Cindy Realty. Pat Bramanti, a salesman for Cindy Realty, sold this property to James and Mildred Mulligan. The sales agreement provided for a warranty deed, a title search and title insurance for the Mulligans. Closing was handled through the title company, and the title search did not reveal any lien against the property. Some months after the closing, the builder retained by Mulligan to construct his house sought to have the water connected and was advised by Wet Water that the water could not be connected until the arrearage of monthly payments had been paid. This amounted to $280.50. Because water was needed to complete the construction, Mulligan paid the arrearage and the hookup fees. The records of Wet Water show that the $280.50 was due from Garcia. It was Wet Water's policy not to file liens against the property of owners who owed Wet Water money, which is why the title search failed to reveal the debt. There was no evidence that Colello knew of this policy. Colello had no personal contact with the Mulligans until after the problem arose over the arrearages. Colello advised Mulligan at the time the problem arose that if the debt did not appear in the records it was not Colello's concern. Mulligan was also advised of the 1974 decision by the Public Service Commission that Wet Water could not make the assessment. There is no evidence that Colello had knowledge of any change in the Public Service Commission's decision.
Recommendation Based on the foregoing Findings of Fact and Conclusions of law the Hearing Officer recommends that the Board of Real Estate dismiss its complaint and take no action against the Respondents. DONE and ORDERED this 18th day of February, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 18th day of February, 1982. COPIES FURNISHED: Grover C. Freeman, Esquire Suite 410, Metropolitan Bank Building 4600 West Cypress Tampa, Florida 33607 Harvey V. Delzer, Esquire Post Office Box 279 Port Richey, Florida 33568 C. B. Stafford, Executive Director Board of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Samuel Shorstein, Secretary Department of professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue is whether Respondent should have an administrative penalty imposed, take corrective action, and pay investigative costs for allegedly maintaining a sewage treatment plant in violation of applicable rules and statutes.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background Since 1969, Respondent, an active Florida corporation, has owned and operated a relatively small mobile home park (with around 55 mobile homes) at Two Tropic Wind Drive, Port Orange, Florida, known as Double D Mobile Ranch. In conjunction with the mobile home park, Respondent owns and operates a wastewater treatment plant (facility) for its residents. The facility is under the regulatory jurisdiction of the Department. Respondent's president is John D'Hondt, who is the only certified operator for the facility. On June 8, 2001, a Department representative inspected Respondent's facility and noted that Respondent had violated a number of statutes and rules. In accordance with Department protocol, on September 26, 2001, the Department sent Mr. D'Hondt by certified mail a "Noncompliance Letter" (First Letter), which identified the various violations and requested that Respondent respond within 14 days with a schedule of corrective action. Mr. D'Hondt received the First Letter but did not file a response. On February 27, 2002, a Department representative conducted a routine follow-up inspection of the facility. Mr. D'Hondt was present during the inspection. During the course of the inspection, the representative noted the following violations, some of which were repeat violations from the earlier inspection: Count I. The logbook on-site was not bound with numbered pages, and it did not contain the signature of the operators, as required by Florida Administrative Code Rule 62- 602.650(4). Count II. A copy of the operation and maintenance manual was not on-site, as required by Florida Administrative Code Rule 62-600.410(4)(f). Count III. A copy of the certified operator's license was not on site, as required by Florida Administrative Code Rule 62-620.350(8). Count IV. Respondent failed to submit Discharge Monitoring Reports from May 2001 through January 2002, as required by Florida Administrative Code Rule 62-601.300(1)(b). Count V. After effluent samples were collected and tested, the tests revealed that the Total Suspended Solids were 185 milligrams per Liter (mg/L), which exceed the permit limit of 60 mg/L for a single sample, in violation of Florida Administrative Code Rule 62-600.740(1)(b)1.d. Count VI. Advisory signs were not posted at the facility indicating the nature of the project area, as required by Florida Administrative Code Rules 62-610.418(1) and 62-610.518(1). Count VII. The percolation pond located adjacent to the plant had less than one foot of freeboard, in violation of Florida Administrative Code Rule 62-610.516. In addition to the foregoing charges, by its Count VIII, the Department seeks to recover investigative costs totaling not less than $750.00, which the Department claims were incurred during the investigation and processing of the Notice. On April 2, 2002, the Department sent Mr. D'Hondt by certified mail a second Noncompliance Letter (Second Letter) outlining the various violations and requesting that he respond within 14 days after receipt of the Second Letter with a schedule of corrective action. Although Mr. D'Hondt received the Second Letter around April 20, 2002, he failed to file a response. On July 1, 2002, the Department sent another letter (Third Letter) by certified mail to Mr. D'Hondt requesting a reply to the Second Letter previously sent in April. The Third Letter advised Mr. D'Hondt that if he wished to avoid an enforcement action, he should file a response within 7 days from receipt of the letter. Mr. D'Hondt received the Third Letter around July 20, 2002, but he failed to respond to either the Second or Third Letters. On January 15, 2003, the Department issued its Notice alleging that Respondent had violated various statutes and rules (as described in Finding of Fact 3) in seven respects. After an informal conference failed to resolve the matter, Respondent eventually filed an Amended Petition on February 18, 2004, contesting the validity of the charges. The Charges Because Respondent has acknowledged that the allegations in Counts I-VI are true, no further proof as to those matters is necessary. Accordingly, it is found that the charges in those Counts have been established. In Count VII, Respondent is charged with having "a freeboard of less than one (1) foot" in its percolation pond, as required by Florida Administrative Code Rule 62-610.516. ("Freeboard" refers to the area between the top of the water in the pond and the top of the surrounding berm.) Under that rule, "[p]ercolation ponds . . . shall be provided with an emergency discharge device to prevent water levels from rising closer than one foot from the top of the embankment or berm." This means that a facility operator must maintain at least one foot of separation between the water level in the treatment pond and the top of the berm. The purpose of maintaining this amount of separation is to prevent an overflow of treated liquids in the event of an extremely heavy rainfall or a catastrophic event. This is especially important here since Respondent's percolation pond (which is used to dispose of treated liquids from the facility) appears to be no more than 30 feet or so from several mobile homes. See Petitioner's Exhibit 3. Testimony by the Department inspector established that when the inspection occurred, there was less than one foot of separation on the right side of the pond, as corroborated by, and reflected in, Petitioner's Exhibit 3, a digital photograph of the pond taken during the inspection. Respondent's contention that a separation of at least one foot existed in the pond at the time of inspection has been considered and rejected in light of the credible contrary evidence. Therefore, the charge in Count VII has been established. The evidence supports a finding that the Department incurred at least $750.00 in investigative costs while conducting the inspection, performing tests, attempting to informally resolve the case, and issuing the Notice. This amount is based on the cost of the field and laboratory tests, the hourly compensation of the inspector, and the hourly compensation of the supervisor who reviewed the inspector's work. It also includes the time expended by Department personnel in attempting to informally resolve the matter and later issuing the NOV. See Petitioner's Exhibit 9. Therefore, the charges in Count VIII have been sustained. Under the statutory scheme in place, the violations in Counts I through VII call for an administrative penalty in the amount of $5,750.00. The derivation of this amount is found in Petitioner's Exhibit 7, which is a penalty computation worksheet. Mitigating Evidence Although he was given an opportunity to offer mitigating evidence at the final hearing, Mr. D'Hondt failed to present any evidence that the violations were caused by circumstances beyond his control or that they could not have been prevented by due diligence. While Mr. D'Hondt did testify at final hearing that he has reduced the occupancy rate in the mobile home park to 70 percent to satisfy Department flow capacity requirements, this by itself is insufficient to warrant a reduction in the penalty.
The Issue The issue in this case is whether the Petitioner, the Department of Business Regulation, Division of Hotels and Restaurants (DBR), should revoke or suspend or otherwise discipline the public lodging establishment license held by Salvatore and Carolyn Carpino for alleged violations of the requirements of licensure.
Findings Of Fact In approximately June 1988, the DBR contacted the Carpinos in writing and contacted Salvatore Carpino by telephone to advise them that the DBR had determined that the property they owned at 1323 and 1325 Charlotte Street in Tallahassee, Florida, was a public lodging establishment required to be licensed under Chapter 509, Florida Statutes. The Carpinos disagreed with the DBR's assessment of the status of the property, believing the property not to be subject to licensure, but agreed to submit to licensure as the most expedient way to deal with the matter at the time. In approximately June 1988, the DBR mailed the Carpinos an Application for License form, which the Carpinos partially completed and returned to the DBR with the application fee. Upon receipt of the partially completed form, the DBR completed the "Name of Business" and "Address of Business" parts of the form with the words "Charlotte St Apt" and "1323 Charlotte St," respectively. Based on this application, the DBR issued license number 47-1749H to the Carpinos. Upon inspection of the Carpino property on Charlotte Street on September 19, 1988, a DBR inspector found unacceptably high weed cover across the entire outside premises, together with an unacceptable amount of litter and trash, including food containers, fast food paper, bottles, and baby items. In addition, the garbage dumpster was not water tight and covered. It was missing half of the top lid, and the drain opening at the bottom of the dumpster was not plugged. Finally, the fire extinguisher at one of the four apartments at the 1325 Charlotte Street address had not been serviced and tagged since July 1981. (None of the other residents of any of the other four dwelling units at the 1325 Charlotte Street address or at any of the four dwelling units at the 1323 Charlotte Street address were available to inspection of other fire extinguishers.) The Carpinos were notified by certified mail to correct the noted violations within 10 days. Reinspection on September 30, 1988, disclosed that none of the violations had been corrected. DBR personnel inspected the Carpinos' property again; once in April and twice in August 1989. The yard and garbage dumpster were in approximately the same condition on each inspection. On the last inspection, a "prehearing inspection" on August 17, 1989, the DBR inspector was able to inspect the fire extinguisher at one of the four dwelling units at the 1323 Charlotte Street address and found that it, too, had not been serviced and tagged since July 1981. It can be inferred from all of the evidence, including the Carpinos' testimony, that none of the fire extinguishers in any of the dwelling units at either the 1323 or the 1325 Charlotte Street addresses had been serviced and tagged since July 1981. The Carpino property at 1323 and 1325 Charlotte Street consists of two separate two-story quadraplexes, each on property bearing a distinct legal description--lots 5 and 6, respectively, of Block 3 of the Westview subdivision- -and each encumbered by a distinct mortgage. Physically, the two quadraplexes both face Charlotte Street and are set the same distance back from Charlotte Street. They are very close to each other (and to the property line separating lot 5 from lot 6), separated by only a few feet. Between them is a common wooden stairway set on a concrete slab that connects 1323 to 1325. At the top of the stairs is a wooden platform that also connects the two buildings and serves as access to the second floor unit of each building that is closest to the stairway. The platform area is covered by a small roof that is part of the stair structure, not part of the roof of either of the buildings. The Carpino property on Charlotte Street is not operated under a single business name. The Carpinos identify them as, and operate them as, 1323 Charlotte Street and 1325 Charlotte Street. The name "Charlotte St Apt" was invented by the DBR for purposes of completing the license application, and the name "Charlotte St. Apartments" was invented by the DBR for purposes of the Notice to Show Cause filed in this case. The Carpino property on Charlotte Street is not regularly rented to transients or held out or advertised to the public as a place regularly rented to transients. During the pendency of this administrative proceeding, the annual license that had been issued to the Carpinos came up for renewal. The Carpinos did not renew the license but allowed it to expire on or about June 1, 1989.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner, the Department of Business Regulation, Division of Hotels and Restaurants, enter a final order dismissed the Notice to Show Cause in this case. RECOMMENDED this 18th day of October 1989, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 October 1989.
Findings Of Fact Bay County's application to construct a sanitary landfill comprising nearly 80 acres located at the north end of Bay County abutting Washington County near the intersection of S.R. 20 and S.R. 77 was initially submitted to the Department of Environmental Regulation (DER) in November, 1979 (Exhibit 1). The site is surrounded by 400 feet of pine woods which buffer the site from all roads and residences . There are no residences within several hundred yards of the proposed site and the nearest natural body of water is over one-fourth mile from the site. The noise generated by the operation of the landfill will be similar to the noise generated on S.R. 20 and S.R. 77 by passing vehicles. Following conferences between representatives of Bay County and DER and several revisions of the application of May 16, 1980 DER issued its notice of intent to grant the applied-for permit (Exhibit 10) and this proceeding was initiated by Petitioners. The site is located in an area of predominately "Lakeland series" sands which provides little barrier to the percolation of surface or ground waters into the Floridan Aquifer. The site is one of the highest in Bay County and the ground water table is located about 45 feet below the surface in this area. The Floridan aquifer lies some 100 feet below the proposed site and is in direct contract with the ground water table. Accordingly, contamination of the ground water by the proposed landfill would enter into the Floridan Aquifer and degrade the water quality of this aquifer. Additionally escaping leachate could contaminate and degrade the waters of the lakes in the general vicinity of the proposed site. As initially presented the application was denied by DER and recommended for denial by the other state agencies involved, viz. Florida Game and Freshwater Fish Commission and the Northwest Florida Water Management District. The reason for disapproval was that, absent some impervious surface between the aquifer and lakes in the vicinity could occur and was likely. Not only is the site located in a recharge area to the Floridan Aquifer but also in a karst area, in which the topography is marked by sinkholes resulting from the collapse of cavernous limestone under the ground. While the possibility exists that a sinkhole could develop under the proposed landfill this is no more likely than that a sinkhole will develop anywhere else in the northern half of Bay County. As finally proposed the site will be developed into cells some 400' x 500' x 28' deep which are expected to be filled in about six months, covered with a a clayey soil and vegetation replanted over the cell. To keep leachate from escaping to the lakes or aquifer the cells will be lined with a polyvinyl chloride (PVC) liner is 20 mils thick manufactured by B. F. Goodrich. If the liner functions as proposed there will be no escape of leachate and hence no degradation of the waters. Petitioners contend that reasonable assurances have not been given that the PVC liner will adequately perform this function and this was the only real issue presented at the hearing. PVC liners for landfills have been in use for only bout 10 years. However, numerous tests have been conducted and, projecting the deterioration of the PVC observed during the test period to the estimated life of the landfill, leads to an expected liner life well beyond the life of leachate production in the landfill. To give PVC the flexibility and elasticity necessary to lay it over uneven surfaces in sheets, plasticizers are added to the PVC during the manufacturing process. These plasticizers will be released from the PVC if exposed to sunlight for an extended period. However, as proposed for use here, even if the liner was exposed to sunlight for the entire six months the cell will be open, or even for one year, no significant loss of plasticizer will result. Once the cell has been closed, no further dynamic stresses will be placed on the liner. Accordingly, even if the liner lost all of its plasticizer and thereby lost its elasticity and flexibility, it would remain impervious and prevent the pasage of leachate through the liner. To protect the liner from solid waste, trash, and equipment used in the cell to compress the solid waste, the liner will be covered with two feet of sand before any solid waste is placed in the cell. Each night the solid waste dumped that day will be covered with six inches of on-site earth material to deter flies, odors, etc. The two feet of sand cover will protect the liner from puncture by solid waste or equipment. The liner will be placed on a tight slope with a sump provided near the low end of each cell from whence leachate will be pumped from the cell and treated, if necessary. Additionally, vents will be installed to exhaust gases from the cell once it is closed. Monitoring wells will be placed around the land fill to detect if leachate is escaping from the site. These wells would allow detection of escaping leachate before it could progress to the natural water bodies in the general vicinity. The three to one slope proposed for the sides of the landfill will result in some movement of free sand resting on the liner along the sides and could bare the liner. To insure there will be a minimum of two feet of soil between the fill material and the liner the cell will not be filled completely to the side of the liner to fill in the space left between the garbage and the side wall each day when the material dumped that day is covered. Hazardous wastes will not be allowed at the site. The site will be enclosed and have an attendant on duty at all times it is opened to receive solid waste. Public access will be restricted and the attendant on duty will monitor the waste dumped in the cell. Household wastes will be accepted and these may include small quantities of paints, insecticides and other material that in large quantities would be considered hazardous. The sand over the liner, the pumping out of the leachate and overall operation of the landfill are adequate to protect against these small amounts of hazardous materials. Bay County proposes to use an existing disposal site to dump tree and hedge trimmings and may provide a place to dump this woody trash at the proposed site other than in the cells. This will increase the capacity of the cells for solid waste and diminish the possibility of damage to the liner by woody products. The only credible evidence submitted regarding the availability of alternate sited for the proposed landfill was that other areas further south were investigated and were unacceptable because the groundwater table was above the bottom of the proposed cells. This would result in dumping solid waster directly into the water table, and is unaceptable. Petitioner's principal contention is that there has been insufficient experience with PVC liners and the tests that have been conducted were not sufficiently rigorous or extensive to provide assurances that leachate would no escape from the site and contaminate the waters of the State. Petitioners also contend that joining of sections of PVC in field, which will be necessary to cover that bottom of the cells (because a liner large enough to cover the bottom of one cell would be too large and heavy to handle), would also create unacceptable risks in the making of these "field seams". Bay County has arranged for the manufacturer of the PVC to provide personnel to supervise the "field seaming" of the sections of the PVC. These seams do not need to be wrinkle-free and no particular problem with respect to joining sections of PVC liner so as to make it watertight was shown. The tests conducted by the Environmental Protection Agency on PVC liners have been ongoing for nearly ten years. None of these tests to date show any reason to question the effectiveness of a PVC liner properly installed to provide an impermeable barrier to leachate in a sanitary landfill. Petitioners also object to the use of cover material proposed by Bay County when a cell is closed. The soil analysis submitted with the application for the cover proposed does not have a high clay content and is more permeable than would be desired. At the hearing, Bay County officials testified they would use a more impermeable soil to cover the cells. Failure to do so would increase the amount of water from rainfall that would penetrate the cell, thereby increasing the quantity of leachate to be pumped from the sump. This would increase the maintenance cost of the landfill to the point it would be uneconomical not to put a water-repellant cover on the cell when it is closed. No evidence was presented that the formation of additional leachate would increase the risk of leachate escaping from the cell.
Conclusions Having considered the Recommended Order, including the Findings of Fact and Conclusions of Law, Petitioners' Exceptions, and Respondent's Response to Petitioners' Exceptions, it is, therefore: ORDERED that the Hearing Officer's Findings of Fact are adopted; his Conclusions of Law and Recommended Order, to the extent that they are consistent with this Final Order, are adopted; and ORDERED that the permit reflected in the Notice of Intent issued by the Department on May 16, 1980, be issued with the following additional conditions: The applicant shall notify the Department at least on week in advance of when the P.V.C. is to be installed and allow for on-site inspection of its installation by Department personnel. No operation permit will be issued unless the applicant has shown reasonable assurances that the P.V.C. has been properly installed and all other applicable rules of the Department and the applicable Florida Statutes have been complied with. Any operation permit issued shall be for only one cell and no permit for subsequent cells shall be approved in accordance with 2. above without a showing of proper operation for the previous cells. The final cover material for each cell shall be clay, substantially clay or other impermeable material. Any DER permits for this site shall only be valid until 24 months from the date of this order. ORDERED that the country shall submit within thirty days a plan with schedule by which this landfill site will be phased out in 24 months, which shall include selection of alternate acceptable sites or the implementation of a resource recovery program in accordance with 17-7, Part II, Florida Administrative Code. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 22nd day of December, 1980. JACOB D. VARN, Secretary Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 1980. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the foregoing "Final Order" has been furnished by United States Mail to Kenneth F. Hoffman, Esquire, Oertel and Laramore, P.A., 646 Lewis State Bank Building, Tallahassee, Florida 32302, Les W. Burke, Esquire, County Attorney, Bay County, Post Office Box 1818, Panama City, Florida 32401, and K.N. Ayers, Hearing Officer, Division of Administrative Hearings, Collins Building, Room 101, Tallahassee, Florida 32301, this 22nd day of December, 1980. DOUGLAS H. MacLAUGHLIN Assistant General Counsel State of Florida Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 (904) 488-9730
Findings Of Fact The proposed site for the resource recovery unit is located on 160 acres of the northeast quarter of Section 17, Township 53 South, and Range 40 East in Dade County. This site is presently undeveloped and bordered on the east by the Dade County Northwest 58th Street landfill. The resource recovery facility as proposed consists of a three thousand (3,000) tons per day solid waste resource recovery facility and two 38.5 meggawatt steam electric generating turbines, and one 80 acre landfill. The proposed operations call for the separation of ferrous and aluminum metals and glass from combustible material. The combustible material is to be pulped, dried, and burned in four (4) boilers to produce steam for the generation of electricity. On a daily basis the resource recovery boilers will require 1.76 million gallons of water to operate the cooling towers. Cooling tower blow- down, boiler blow-down, and landfill leachate will be utilized in a hydro- pulping process to process the solid wastes prior to combustion. As a result of this waste water usage, no industrial waste water will be discharged from the site. Potable water will be supplied by the Miami Dade Water and Sewer Authority. Sanitary wastes will be treated in a sewage treatment plant on the site. The cooling water will be withdrawn from a portion of the Biscayne Aquifer contaminated by leachate from the Northwest 58th Street landfill. The South Florida Water Management District has concluded that the Biscayne Aquifer would be capable of supplying the non-potable water requirements of the proposed facility. In addition, the withdrawal of water for the facility would alleviate the impact of the leachate plume from the 58th Street landfIll, which plume of contaminated water is moving eastward to the Miami Springs wellfield. The construction of the resource recovery facility would allow the closing of the 58th Street landfill and would thereby prevent the continued production of contaminated leachate and would reduce problems of flies, rodents, and odors. The construction of the resource recovery facility will involve extensive grading, filling, and removal of vegetation on the proposed site. Due to previous drainage and development of the surrounding area, however, the site is situated in a degraded everglades habitat the hydrologic regime of which has been drastically altered and now supports relatively little wildlife. Surrounding land uses would make future restoration difficult. The destruction of the grasses, and other vegetation on the site would have little environmental impact. The resource recovery facility site is owned by Dade County and will be operated by Dade County Resource Recovery, Inc. Steam produced at the resource recovery facility will be sold to Florida Power and Light Company for the generation of electricity. Some 61 meggawatts of electricity will be generated and distributed throughout the Florida Power and Light transmission system. The electricity generated by this facility will eliminate the need for over one million barrels of imported fuel oil each year and will produce a net savings to the customers of Florida Power and Light. The resource recovery facility will utilize cyclonic collectors and high efficiency electrostatic precipitators to remove fly ash from the burning of processed refuge. Plant air will be injected into the boiler or will be passed through activated carbon filters to eliminate odors. As a result of these control measures, the resource recovery facility will comply with state and federal emission limitations and ambient air quality standards. Although the facility may contribute slightly to a violation of the Dade County Ambient Air Quality Standards, the Director of the Dade County Environmental Resources Management Board did not feel that the facility would cause a problem. The resource recovery facility would utilize the latest reasonably available control technology for the control of emissions to the atmosphere. The use of the proposed equipment will result in a very small incremental increase of sulphur dioxide and particulate matter into the ambient air. These emissions are less than the federal significant deterioration limits and the increases in air pollution levels are not expected to significantly degrade air quality in the area. The Florida Public Service Commission report of October 7, 1977, states that 62 meggawatts of electricity would enhance the reliability of Florida Power and Light's system and would displace residual fuel oil so that some benefit would be derived from construction of the facility. The Division of State Planning did not submit a report as required by Section 403.507(1)(a), Florida Statutes. The Department of Natural Resources, Game and Fresh Water Fish Commission, Department of Commerce, and South Florida Regional Planning Counsel offered comments on the facility supportive of its construction and operation. Comments and objections from the Department of Health and Rehabilitative Services, South Florida Water Management District, the Division of Archives, History and Records Management, were resolved by the provision of additional information and proposed conditions of certification. No opposition from these agencies was presented at the conclusion of the hearing. The Department of Environmental Regulation recommended certification of the Dade County Resource Recovery facility in accordance with the proposed general and special conditions of certification. The applicant has stipulated and agreed that the general and special conditions of certification, as proposed at the hearing, should be imposed if certification is granted. At the conclusion of the presentations by the parties to this proceeding, opportunity was given to the general public to comment on the application for site certification. No such individuals appeared and no comments were offered. After examining the sum and substance of the testimony and evidence offered, it appears that the construction of the resource recovery facility would provide for the closing of inadequate sanitary landfills and inadequate air polluting incinerators. Further, the operational safe guards of the proposed facility are sufficient to protect human health, wildlife and aquatic life. Finally, the construction and operation of the proposed facility will not violate state air or water pollution standards.
Recommendation It is therefore recommended that the proposed site be found and held to be in conformity with existing land use plans and zoning ordinances in effect as of this date, and it is further recommended that the responsible zoning or planning authorities be restrained from hereafter changing such land use plans or zoning ordinances so as to affect the proposed site. DONE AND ENTERED this 22nd day of November, 1977, in Tallahassee, Florida. KENNETH G. OERTEL, Director Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32304 (904) 488-9675 Copies furnished to all parties
The Issue Whether petitioners and intervening petitioners, or any of them, have standing or party status because removal of the dam would cause injury in fact of sufficient immediacy of a kind within the zone of interests protected by Section 403.91 et seq., Florida Statutes (1985)? If so, whether NWFWMD's permit application conforms to the requirements that Section 403.918, Florida Statutes (1985), Chapter 17-12, Florida Administrative Code, and Rules 17-3.001, 17- 3.121, 17-4.242 and 17-4.290(5) and (6), Florida Administrative Code, set out? Whether NWFWMD has given reasonable assurances that removal of the dam would not cause water quality violations by lowering dissolved oxygen concentrations below allowable levels, or by causing eutrophication or turbidity or an increase in heavy metals, including chromium or other battery constituents, in excess of allowable levels? Whether removal of the dam would be in the public interest, taking into account the diversity of aquatic life, including aquatic weeds, and whether fish spawning will be enhanced or hindered, whether heavy metals would reach Apalachicola Bay and affect oyster beds or marine productivity, what effects on the property of others would be, what the effects would be on fishing and other recreation, public safety for canoers and others, navigation generally, mosquito breeding and odors?
Findings Of Fact The Dead Lakes are a wide place in the Chipola River. Near Wewahitchka, a forest of towering cypress trees once flourished in the periodic inundation of the Chipola River. But when a sinkhole collapsed the river banks, widening the Chipola River and the lower reaches of Stone Mill Creek, a tributary, to form the Dead Lakes, the trees growing in the riverbed also sank. Permanent immersion eventually killed many of the trees. The dead, moss-draped remnant the loggers left inspired the name of the lakes, which stretch for some ten miles through Gulf and Calhoun Counties. The Rise and Fall of the Dead Lakes The level of the Dead Lakes depends not only on how much water flows in, but also on how much flows out. Before man's intervention, the rate of outflow depended all year round on the stage or height of the Chipola Cutoff, the fork of the Apalachicola River into which, just below the Dead Lakes, the Chipola River drains, as well as on the stage or height of the Chipola River above the Dead Lakes. When the Apalachicola River and, therefore, the Chipola Cutoff were high, a backwater or damming effect tended to keep the level of the Dead Lakes up. Although pristine conditions no longer obtain, the relative elevations of the Chipola and Apalachicola Rivers still affect the water level in the Dead Lakes, at certain stages. The Chipola River drains approximately 1,280 square miles in northwest Florida and southeast Alabama. Although the Chipola is spring fed, the flow of water into the Dead Lakes depends ultimately on rainfall in the basin, which varies seasonally. At Altha, the lowest flow ever recorded was 330 cubic feet per second, and the highest flow on record there was 25,000 cubic feet per second. The Apalachicola River, which arises out of the confluence of the Flint and Chattahoochee Rivers, drains a much larger area. Its flow has been altered by the Jim Woodruff Dam and other dams further north that the Army Corps of Engineers constructed, and now uses to generate electricity, and in an effort to keep at least nine feet of water in the Apalachicola River channel, for the benefit of commercial traffic. Although intended to bolster low flows, the Jim Woodruff Dam was first used to impound a reservoir, Lake Seminole, for the purpose. In combination with dry conditions, the result was record low water levels in the Dead Lakes of about ten feet NGVD during the years 1954 through 1958. Lakes Dammed Alarmed at this change in the Dead Lakes, people in the area decided a dam should be built. Not one of the 88 owners of property on the lake objected. The Legislature created the Dead Lakes Water Management District (DLWMD), Chapter 57-1115, Laws of Florida (1957); and the DLWMD constructed a stop log, low head weir just below and parallel to the bridge on which State Road 22A crosses the water flowing out of the lakes. The 787-foot weir was completed in late 1959 or early 1960 on the right of way of the St. Joseph and Iola Railway, alongside the bridge, not far upriver from the point where the clear water leaving the Dead Lakes joins the muddy waters of the Chipola Cutoff. The weir was designed to maintain the Dead Lakes at elevations up to 18.2 feet, in times of low flow. The stop log feature allowed adjustments so that elevations of less than 18.2 feet could also be maintained. In 1962, however, the stop log portion of the weir gave way, and that part of the weir was reconstructed, as the remainder had originally been constructed, with interlocking sheet pile, which, braced and buttressed with I- beams, did not allow any draw down of the lakes below 18.2 feet NGVD. No work has been done on the dam since 1962, and experts predict it will fail in about ten years if not attended to. The DLWMD installed four culverts about seven or eight feet high and twelve feet wide to the west of the weir in 1974, in order to restore draw down capability, as a means of controlling aquatic weeds. The DLWMD caused a channel to be excavated to these culverts, which were equipped with gates that could be raised and lowered with a screw mechanism. Although the invert elevation of the culverts is 10.5 at the upriver end and 10.3 feet at the other end, the Dead Lakes can only be drawn down to about 14 feet because of "base flow" and because of the configuration of the bottom, upriver of the culverts. With the gates of the draw down structure closed, the height of the weir (18.2 feet NGVD) is the limiting factor. Effect of Removal For about one-fifth of the year neither the weir nor the draw down structure determines how high the water in the Dead Lakes is, because interaction between flows in the Chipola River and in the Chipola Cutoff, the fork of the Apalachicola River which eventually rejoins the main river channel, keeps the Dead Lakes at or above the weir crest. During this part of the year, usually beginning in December and ending in March, Respondent's Exhibit No. 2, p. 20, the absence of the dam that NWFWMD seeks a permit to remove would make no difference. But, during times of low flow, with the dam out, the water level in the lakes would fall well below the current floor. Only one percent of the year, however, on average, would the lakes fall as low as the levels they reached in the 1954 to 1958 period. Eighty-five percent of the time the water level would be at or above 12 feet NGVD, without the dam, and the median elevation would be 14.75 feet NGVD, less than a foot above the lowest levels now reached. Without the dam, the lakes would cover more than 3,660 acres, the area covered at 14 feet NGVD, for half the year. The Dead Lakes now cover at least 5,500 acres half the time, or did before the draw down gates began staying open. No Control Over Control Gates As of the last day of the hearing, the testimony was that two of the draw down gates were open and two were closed. For some months preceding the hearing, private citizens opened and closed the gates willy nilly, although it was a good deal easier to close them than to open them, because they are quite heavy and the screw mechanisms are broken. With the dam's transfer to the NWFWMD for the purpose of seeking the permit here in contention, the DLWMD has become defunct, de facto if not de jure. According to Forest Revell, however, as quoted by Sheriff Harrison, the last word from the DLWMD on the gates was an order that they remain open. They were locked open in May of 1986 when Edward Baily, 67 years of age, found himself unable to start his outboard motor as he drifted north of the draw down structure in a small boat with his wife. The current dragged them through a culvert. Mrs. Bailey survived, but her husband did not. Charles Alford Gaskins had been sucked through a culvert some time before Mr. Edwards' fatal accident. Sheriff Al Harrison closed the gates to protect the divers who retrieved Mr. Bailey's corpse, but later opened them in obedience to the DLWMD's reportedly final order on the subject, not without, however, bringing the matter to the attention of a former member of the DLWMD board, Mr. McCarty at the NWFWMD, and various other officials, including then Governor Graham. All disclaimed authority to order the gates closed, and nobody posted any warning. In order to close the gates to protect the divers, the sheriff found it necessary to cut the locks, which were not replaced when the gates were reopened. At the time of the hearing, whether the gates were open or closed was "up to the vandals." All In Favor Sponsored by James Harold Thompson, then Speaker of the House of Representatives, House Bill No. 1262 became law with the Governor's approval on June 19, 1984. Chapter 84-380, Laws of Florida (1984). After the enactment of Chapter 84-380, Laws of Florida (1984), NWFWMD began applying for the permits necessary to remove the Dead Lakes dam, including the dredge and fill permit at issue here. So far it has obtained the requisite permit from the Army Corps of Engineers and a permit from the NWFWMD itself. The Florida Department of Natural Resources has no objection to taking the dam out. Florida's Game and Fresh Water Fish Commission, the United States Department of the Interior's Fish and Wildlife Service, and the United States Environmental Protection Agency also approve. The Department of Environmental Regulation is the state environmental agency to which the NWFWMD has made the application for the permit at issue in these proceedings. As stated in its notice of intent, DER, which actively participated at the formal hearing, supports removal of the Dead Lakes Dam. Also favoring removal of the dam is the Board of Commissioners of Calhoun County, which participated in the formal administrative proceeding as an intervenor. On March 13, 1984, Calhoun County had a "straw vote" on whether the Dead Lakes Dam should be removed. Those in favor of removal prevailed, 1,575 to 276. The County Commission endorsed removal by resolution on March 27, 1984, Respondent Intervenor's Exhibit No. 3, and subsequently voted to intervene in these proceedings in support of NWFWMD's application for a permit to remove the dam. The voters of Gulf County also favored removal of the dam in a referendum held there. The vote was 1,550 for and 594 against. The Gulf County Commission, too, endorsed removal by adopting a resolution, No. 84-7, Respondent's Exhibit No. 35, but Gulf County has not sought intervention in these proceedings. The same is true of the Cities of Marianna and Blountstown, whose City Councils have also passed resolutions in support of removal of the dam. Respondent Intervenor's Exhibits Nos. 4 and 5. Many of the owners of land on the Dead Lakes are not registered to vote in Gulf or Calhoun Counties, or in Marianna. Also participating as a party in support of removal of the dam is the Chipola Basin Protective Group, a corporation not for profit organized in July of 1983 in an effort to conserve and preserve natural resources in and around the Chipola River. Some 100 people are members, including some who own land on the Dead Lakes and others who own property elsewhere on the Chipola River and "use these natural resources." All Opposed Opposing the permit application are a number of property owners whose waterfront access to the Dead Lakes, although in times of low flow already impaired in many cases, would become still more difficult, if the water in the lakes dropped below the levels at which the dam now keeps it. The east side of the lakes are timberland in single ownership. On the west side, both permanent homes and weekend cottages have been built, and there are a number of fish camps and the like whose revenue depends on access to and fishing in the Dead Lakes. Daniel Monroe Sullivan began fly fishing in the Dead Lakes in 1935, and has fished there regularly since, except for 1939 through 1945 when he went off to the war, where he lost both knees. He "put everything [he] had" into the old Rowell landing, which he purchased in 1975, from Mr. Rowell, who since 1960 had let him keep a trailer on the property. The parcel has frontage on the Dead Lakes of 286 feet and is 394 feet deep. Improvements include a six-stall boathouse with handrails, and a floating dock. Mr. Sullivan has things arranged so that he can lower himself into a boat and set out, or could until people started opening the gates of the draw down structure. Now, at low water, some 300 yards of mud separate the boathouse from the Dead Lakes. Mr. Sullivan's physical condition makes it impossible for him to trailer a boat by himself and launch it from one of the three or four ramps where the water is always deep enough even with the gates open. Just north of Mr. Sullivan, Tullis D. Easterling, who also first fished the Dead Lakes more than 50 years ago, owns two lots, comprising about an acre and a half, with 212 feet fronting the western shore of Dead Lakes. He has a mobile home, a cook shack and other improvements, including a shed for three boats and a 60 to 70 foot dock, which extended 40 feet out into the water, when it was built. With two of the draw down gates closed, he can still use the dock, which is no small convenience for a man 77 years old. At low water, with the gates open, 300 yards of mud separate his dock, too, from the Dead Lakes. From his property north of Mr. Easterling's place, Charles L. Nowlin was able to launch his boat by backing his trailer down a sort of ramp he fashioned with patio blocks. He has about 400 front feet, "when there's water," and a two bedroom cottage on the property. Usually the water is from 2 to 2.5 feet deep in the "natural slip" in which he keeps his boat, but in 1985 and in again in 1986 the slip went completely dry at times. He had to launch his boat elsewhere and pole into a neighbor's dock. Thomas C. Brock, a 64-year-old retiree, has a two bedroom cottage on the Dead Lakes, and a 45-foot dock at the end of which the water was 4 to 4.5 feet deep at the time of the hearing. At low water, however, with all the draw down gates open, "you can plant a turnip patch" in front of his place. Once the lakes attain a height of 15 feet, Mr. Brock can reach his dock by boat. An avid fisherman, Mr. Brock fishes on the Dead Lakes regularly, having first fished there in 1945. James W. Quick and his wife live year round in a home on the Dead Lakes. Retired from the Air Force, he fishes continuously. At the time of the hearing, the water was 3.5 to 4 feet deep at the end of the Quicks' 80-foot pier, but last summer the pier was 300 yards from the water and you had to go another 100 yards into the water before it got knee deep. Oscar G. Clark has owned the property next to the Quicks since 1951. He bought the place for the fishing, which has long been his main recreation. Fishing on the Dead Lakes is what he mainly does since his wife died. He has a ramp and space for four boats under a boat shed, and has no trouble using the ramp in high water, but the last two years in a row the water has been too low seven or eight months running. James C. and Dorothy Taylor own a house on the west side of the Dead Lakes, on the Chipola River channel. The water is 12 to 14 feet deep only some ten feet beyond the end of their dock, which extends 28 feet into the lake. The depth of the water at the end of the Taylors' dock ordinarily fluctuates between 2.5 and 4 feet, but three or four times since 1981, the water's edge has receded two feet beyond the end of the dock. The Taylors' neighbors on the channel, Messrs. Linton and Bidwell are in essentially the same situation. Paris Wayne Carter, a Wewahitchka businessman, bought a place on the Dead Lakes two years ago, with a dock that ordinarily extends 25 feet out into the water, where the water is ordinarily two to five feet deep. But last year at low water with the gates open, he walked 300 yards from his boat dock to the water's edge. James Carroll Stokes, who is totally and permanently disabled, sold his house and used the proceeds to buy six acres on the west arm of the Dead Lakes. He lives there now in a mobile home. He has 18 hookups on the property for recreational vehicles, and charges campers $8.00 a night. When the lakes are at 18 or 19 feet, the boat ramp he has is half out of the water, but at low water with the draw down gates open the ramp cannot be used to launch boats, which affects his business adversely. In 1980, the year Leland Taylor bought the Jerry Gates Fish Camp, business was pretty good. The fish camp consists of five cabins and a house on five acres with 1,200 feet on the lake, and has eight boats and six motors. Even at low water with the gates open, he can get from the end of his 300 foot pier, where he keeps two of the boats, to the middle of the Dead Lakes, but, under such conditions, the boat shed where most of the boats are kept is separated from the water by 200 feet. With the opening of the draw down gates, business has slackened considerably. Mr. Taylor has had to telephone people planning to come to his camp to fish to tell them the water level would not allow it. Juanita Dill put the Cypress Lodge up for sale over two years ago. The Cypress Lodge was once a thriving business. Gulf Life agents 40 to 50 strong used to come every year to go fishing, but business fell off sharply in the last few years, and Ms. Dill has closed the placed down. The evidence did not establish that the decline in business was on account of problems with access to the lakes, as opposed to poorer fishing. But interrogatories adduced as evidence at hearing established that Ms. Dill, Max W. Kilbourn, Jim Gross, R. F. Martin, G. W. Hobbs, J. M. Whittaker, Lee Thompson, Duncan Smith, J. C. Blanton, C. D. Ramsey, Sr., Theodore Elchos, and V. D. Hilton, "have already suffered loss of their access to navigable water." For 45 or 50 years, Clyde Finch Brogdon has owned 165 acres with about three quarters of a mile fronting on the Dead Lakes. Mr. Brogdon raises sheep and cattle on the property. When the water recedes, the animals stray into the mud and bog down. He has to pull them out with a tractor and a length of line. Mr. Brogdon also has a boat ramp on his property that stops well short of the water when the lakes are down. Snails or something die and stink when the water recedes. For a day or two afterwards there is an expanse of "souring mud." Water Quality The clear "fast flowing Chipola River slows and spreads to form the strangely beautiful Dead Lakes," Respondent's Exhibit No. 40, but remains relatively free of suspended solids both in the Dead Lakes and when the river narrows again near the dam, until its confluence with the muddy Chipola Cutoff. In the long run, removal of the dam would lessen turbidity below the dam by increasing the volume of clear water mixing with the Chipola Cutoff during periods of low flow. In the long run, removal of the dam would lessen turbidity even in times of high flow because it would virtually eliminate the erosion now occurring in the vicinity of the draw down structure. In the short run, removing the dam would occasion a temporary increase in turbidity. The plan is to station equipment on the bridge (instead of on a barge) to "vibrate out" the sheet piles and to remove the steel from the site, leaving the riprap on the bottom to damp turbidity and curtail the movement of sediment. If the vibration shears a sheet pile, however, the contractor will have to go one foot beneath the bottom and cut the pile there. Under a proposed special permit condition, the contractor will not start work until the water level upriver of the dam is within one foot of the water level downriver, in order to avoid a sudden rush of water. This will help keep turbidity down and is also important for the safety of the bridge. Dissolved Oxygen In August of 1984, with flows low enough so that the Dead Lakes Dam had impounded the waters of the Dead Lakes, investigators took water samples from the Dead Lakes and from "the Chipola River above the influence of the dam." DER's Exhibit No. 8. Analysis of a sample taken from the bottom, at a point where the lake was nine feet deep, revealed 3.3 milligrams of dissolved oxygen per liter. A sample taken only one foot below the lake surface was not much better: 3.5 milligrams of dissolved oxygen per liter. By comparison, the upriver samples yielded results of 7.0 milligrams of dissolved oxygen per liter, or higher. The samples demonstrate the negative net effect impoundment has on dissolved oxygen levels, even though impoundment makes for more aquatic weeds, which add more dissolved oxygen to the water than they remove. The Dead Lakes Dam is in part responsible for these depressed levels of dissolved oxygen in the summer months, and its removal would alleviate the situation. By slowing or stopping the flow of the Chipola River, the dam increases precipitation of organic sediments, which gather on the bottom and compete with living organisms for the limited amount of dissolved oxygen available. Not only would removal of the dam decrease precipitation by increasing the velocity of the flow, it would cause a greater expanse of lake bottom to be uncovered, permitting oxidation of sediments exposed to sunlight and air. As a consequence, when the water again covered the sediment, the sediment would require less dissolved oxygen. Eutrophication Water hyacinths (Eichornia crassipes), limnophila (Limnophila sessiflora) and Brazilian elodea (Egenia densa), which are species of aquatic weeds not indigeous to Florida, all grow in the Dead Lakes, although they are under control and do not present a serious problem. Indeed, some vegetation, even of this kind, is advantageous. Exotic aquatic weeds flourish at the expense of native species, however, and, in overabundance are detrimental to game fish. Herbicides have proven effective against them, except perhaps in the case of Brazilian elodea which, however, such fluctuations as now occur in the level of the lakes seem to keep in check. The impounding effects of the Dead Lakes Dam create favorable conditions for the exotic, aquatic weeds' growth; the lakes tend to grow more shallow and weeds spread. The dam causes accumulation of the nitrates that enter the Chipola from agricultural operations upriver. Without the dam, no abundance of aquatic weeds could persist. Periodic draw downs or natural fluctuations are a good means of controlling most weed species. Water hyacinths, which can germinate in a draw down, are the exception. With the dam removed, sedges and slender rushes would grow up quickly and, in 10 to 20 years, a cypress forest would reestablish itself closer to the river channel, shading the river. Not only cypress, but also willow and button bush would grow up and keep sunlight from aquatic weeds underneath. Heavy Metals From 1970 until it went out of business in 1979, the Sapp Battery Company (Sapp) operated a battery salvage facility on the bank of Little Dry Creek, an intermittent tributary that empties into the Chipola several miles upriver of the Dead Lakes, north of Altha. While it operated, Sapp disposed of heavy metals, including lead, zinc, mercury and cadmium, improperly, so that these materials made their way into the Chipola River, caused at least one fish kill, and apparently caused the elevated levels of heavy metals found in the tissues of native mussels and corbicula alike. Finfish as well as mollusks exhibited these elevated levels at one time. Although several intervening ox bows or deep bends have been "deposition areas," there are no impoundments in the Chipola River between the Sapp site and the Dead Lakes. In 1984, the U.S. Environmental Protection Agency secured the site of the battery salvage facility, and heavy metals have not entered the Chipola River from that source since. Any manganese still in the water may be geologic in origin. A gladiola farm nearby may contribute to mercury in the river by dipping bulbs in mercurial fungicides. Cadmium is found in phosphate fertilizer, and both manganese and zinc are also used in agriculture. Heavy metals tend to bind to fine clay grains which precipitate out of the water and end up in the sediment and this seems to have happened in the Chipola River, including the Dead Lakes, where occasional sediment samples have revealed high concentrations of heavy metals. But the water itself is now free of measurable quantities of heavy metals. No heavy metals were detected in a sample of the water column taken on April 3, 1987, just above the Dead Lakes. The evidence rules out the hypothesis that removal of the Dead Lakes Dam would let water contaminated with heavy metals escape into the Chipola Cutoff and ultimately into Apalachicola Bay, with its extensive oyster beds. The only conceivable mischief along these lines would be the transport downstream of contaminated sediment into a marine environment in which chemical reactions binding heavy metals would be altered or reversed, releasing them into the water. But the weight of the evidence suggests that, for better or worse, contaminated sediments bound for a marine environment have probably already migrated downriver. In times of low flow, the dam slows or stops the river, precipitating all manner of suspended solids, including materials on the periphery which may never be resuspended or reach the estuary. On the other hand, accumulations of muck up to 12 inches deep in the river channel are regularly resuspended, as the water rises above the weir crest and the current scours the channel bottom. In times of high flow, rocks, fine sand and shells lying on the upriver side of the Dead Lakes Dam are stripped clean of all organic sediment. The dam has not prevented the movement of large quantities of sediment downstream. Public Interest Removing the Dead Lakes Dam would enhance the public safety. When the dam is underwater, as it is, on average, more than two months a year, it is a submerged barrier presenting a considerable hazard to the unwitting boater. Although the application does not contemplate removing the draw down structure, removal of the dam would take away the incentive to open the draw down gates. Even if the gates remained open, moreover, and the water was high enough to flow through the culverts, the absence of the dam would reduce the rate of flow through the draw down structure and the attendant danger. Apart from the matter of safety, the evidence did not show that removal of the dam would have any effect on the public health, although Sheriff Harrison did testify to parts of dead fish being strewn on the ground near the dam where fishermen gathered. Petitioners raised the possibility that the river would leave isolated pools of water as it receded, pools in which mosquitos might breed. But the weight of the credible testimony was that gambusi or other fish trapped in such pools would eat the mosquito larvae; and that the mosquito population should not increase, in the absence, at least, of some man-made interference with drainage. Andromadous Fish On balance, taking the dam out should enhance the conservation of fish and wildlife, including endangered or threatened species, and their habitats. During spawning season, with the dam in place, fishermen gather on the downriver side of the Dead Lakes Dam and catch substantial numbers of roe-laden fish. They are "all bottled up trying to get in." At one time, Alabama shad, striped bass and Gulf of Mexico sturgeon were found in the Dead Lakes and still further north in the Chipola River. During the summer months these andromadous fish seek a "thermal refuge" in cooler fresh water. Now only the Alabama shad swims north of the dam. Before the dam went in, striped bass occurred in fairly substantial numbers north of where the dam now is. Evidently they cannot navigate the dam now. Even when the water is well above the weir crest, certain species that swam upriver to spawn before the dam was built no longer do so. Either they swim too close to the bottom, or they are unable to contend with currents through the draw down structure and over the weir. Beginning last century and as late as 1970, commercial fishermen took Gulf of Mexico sturgeon, some of which weighed as much as 350 pounds each. By 1983, the number of Gulf of Mexico sturgeon had dropped to 380 fish, and the number fell to 69 in 1986. Now the Gulf of Mexico sturgeon is in category two under the federal endangered species law. The Dead Lakes Dam closes off 80 miles of the Chipola River to this dwindling population. The temperatures in the Chipola River are more constant and the flows more stable than those in the Apalachicola River to which the sturgeon are now relegated. Only 17 percent of the open river system formerly available to the Gulf sturgeon is still accessible. Removal of the dam may also increase the numbers and widen the distribution of the greyfin redhorse, the snail bullhead, the spotted bullhead and the dusky shiner. Respondent's Exhibit No. 27. Fish who do reach the Dead Lakes to spawn come when the water is above the weir crest, and go to the shallow periphery to deposit their eggs. At such times, it is not the dam that determines the height and configuration of the Dead Lakes, and its removal would not interfere with this spawning. On the contrary, removal of the dam would help matters. During times of low flow, the dam slows or stops the water occasioning precipitation of soft organic material in the shallows. When spawning time comes, roe can sink into this material and fail to hatch for want of oxygen. Little Effect On Birds Restoration of a more natural hydroperiod would let certain trees reestablish themselves in areas now covered year round, improving the habitat for nesting birds. Newly uncovered land would be seasonally available to deer, turkey and squirrel, but less hospitable for alligators and others. Aquatic organisms trapped in sloughs would become food for predators, like the wood stork. During periods of low flow, the black bear and the indigo snake would have additional foraging. The little blue heron, the snowy egret and the tricolored heron might benefit from removal of the dam as might, theoretically, the limpkin, although there is no proof the limpkin is present in the area. If bald eagles are present, removal of the dam would work to their disadvantage, but no record exists of their nesting or making any other use of the area. Thousands of ducks flocked to the Dead Lakes regularly as recently as 1964 or 1965. Now perhaps a tenth that many come, mainly wood ducks and a few mallards. On the other hand, the number of ospreys has increased since the dam went in. This may in part be attributable to protection they have received under the game laws in recent years. For most birds and other air breathing wildlife, removal of the dam would not have a significant effect one way or the other. Fish Stories Fishing is the main recreational use to which the Dead Lakes are put. The short-term effect of impounding the Dead Lakes during times of low flow was an increase in the number of fish who multiplied or congregated to avail themselves of the newly prolonged enlargement of their aquatic habitat. Over time, however, other effects have become evident and taken their toll. If the numbers of fish have not fallen dramatically, their average size has. Diminished oxygen attributable to the impoundment has increased fish mortality by its direct effect on the fish, as well as indirectly by its effect on organisms further down the food chain. Hardest hit among the fish have been some of the most sought after: shellcracker, large mouth bass, blue gill and channel catfish, among others. Removing the dam would improve the fishing. Fishing on the Dead Lakes was once almost too good to be true, to hear the old-timers tell it. As late as 1959, there were 20 fish camps on the lake. Mr. Brock remembers seven "major" ones in the 1940s. Now six are open, if that. Sixty years ago, Sam Casey fished the whole summer, and for many summers after that, but now he doesn't bother after the willow fly season is over. Cyrus Royce Lewis also began fishing on the Dead Lakes in the 1920s, and now he, too, goes almost exclusively during late spring and early summer, when may flies and willow flies hatch. After that, it's no use, he finds. Expert fishermen like Mr. Sullivan, Mr. Easterling, Mr. Brock, Mr. Quick, and Mr. Leland Taylor, who testified he caught a ten-pound bass last spring, still catch fish regularly, but the fishing is not what it once was. It is a lot harder to catch fish now, and some owners of property on the lakes, including Charles Cook Bridges, want to see the dam out so the fishing will improve. In the 1950s, you might see 200 boats tied to each other fishing over a five-acre shellcracker bed. The Game and Fresh Water Fish Commission roped off some of the beds to protect spawning fish; the game warden had to sleep in his boat to guard the beds. As late as 1964 there were single shellcracker beds that covered three acres of lake bottom. Now you only see "pocket beds," maybe half the size of the courtroom in Calhoun County Courthouse. The first time Alton Coxwell, now 55 years old, went fishing on the Dead Lakes was with his mother who put an umbrella over him. When, as a small child, he began getting bait for his uncle, his uncle sold all of it to people going fishing on the Dead Lakes. Before the Second World War, Willy Rowell alone had 300 boats but nobody had outboard motors to speak of. People fished with flies, or catawba worms and crickets then. Nowadays Mr. Coxwell sells lots of earthworms. He put retail sales of earthworms at 21,000 for Thursday the week of the hearing. But only two to five percent of these earthworms were used as bait in the Dead Lakes. Nineteen years ago, more than 20 percent of the earthworms Mr. Cox sold were used for bait in the Dead Lakes. In 1977, the Bay County Bass Club had four tournaments on the Dead Lakes, but for the last two or three years they have held only one tournament a year on the Dead Lakes. They have considered not scheduling any more there. Two fishermen in each of 23 to 27 boats, all of whom are familiar with the Dead Lakes, participate in these tournaments. Jim Bozeman of Wewahitchka caught 14 pounds of bass in his first tournament in 1977, but did not finish in the top three. Last tournament the winner caught less than five pounds of bass. The biggest bass caught in a 1977 tournament on the Dead Lakes weighed 7 pounds 4 ounces. In last year's tournament on the Dead Lakes, the biggest fish weighed three pounds. The biggest bass (eight pounds) that Mr. James C. Taylor ever caught he took in July of 1978. The Chipola River is more productive both above and below the Dead Lakes. Increased fishing pressure cannot account for the decline in numbers and the even more remarkable decline in the size of game fish in the lakes. Indeed, the weight of the credible evidence was that less fishing occurs on the Dead Lakes now than 10 or 20 years ago when the fishing was better. Since 1981, the number of permits sold for fishing on the Dead Lakes has declined. The fisheries' biologists corroborated the testimony that, after an initial beneficial effect, the impoundment of the Dead Lakes has had an adverse effect on the numbers and weight of fish in the Dead Lakes. Very likely the low dissolved oxygen levels in the summertime keep many fingerlings from surviving to grow larger. Mr. Leland Taylor's testimony that he has never seen mature fish floating dead on the lakes is consistent with the hypothesis that many do not survive the critical fingerling stage. Removal of the dam would increase fish production. While the volume of water in the Dead Lakes and therefore the fish habitat would shrink further in low flows than it does with the dam in place, the fish would have access to habitat downstream without having to contend with the dam. Invertebrates Other aquatic life has waned with impoundment of the Dead Lakes, including snails of the kind that leave a white, snail-wide streak of eggs on trees growing at the water's edge. When they hatch, they fall into the water and become food for the shellcrackers, but their numbers have been declining since 1966. The drought in 1955, which like last year's, was among the most severe the Chipola River has experienced, did not affect the diversity of aquatic life in the Dead Lakes adversely. In August of 1984, a sampling of benthic organisms, bloodworms and the like, in the Chipola River near State Road 71 above the Dead Lakes yielded 1,256 individuals comprising 33 species, with a Shannon-Weaver diversity index of 4.07. A sample taken at the same time in the Dead Lakes near the dam yielded 304 individuals representing only eleven species, and a Shannon-Weaver diversity index of 2.38. A contemporaneous sample taken downriver from the dam had a comparable Shannon-Weaver diversity index (2.41), although 18 species were present. Of 975 organisms in the downriver sample, 575 were tubificid worms, a species which does not contribute significantly to fish productivity. Although less water during drier periods would mean less bottom area for benthic organisms, some of these organisms depend on periodic fluctuation. Even those that require constant immersion can survive, when the water level falls slowly enough for them to adjust. The loss of some organisms would not necessarily diminish the diversity of species. Historically prolific throughout the Chipola River, native mussels are now found only in the upper reaches of the river. Removal of the dam would restore the environment in which they prospered before the impoundment. The impoundment has affected larger invertebrates adversely too. Dr. Nowlin testified he had not seen any crawfish lately. Higher dissolved oxygen in the lakes would increase the diversity of species of macro- and benthic invertebrates alike. Mr. Stokes, Mr. Brogdon, Mr. Leland Taylor and others testified about the stench of souring mud that persisted for a day or two after each of the abrupt draw downs which the erratic opening of the control gates occasions. As Mr. Brogdon testified, the odor arises because "something dies." Removal of the dam will bring an end to the sudden, random outrushing of impounded water through the draw down structure. Without the dam, the water level will fall and fall further, but the drop will be more gradual so that organisms that need water to survive will have a chance to migrate and remain submerged. A more gradual lowering would also mean that less bottom would be newly exposed in the same interval of time. For both these reasons, removal of the dam should make odors associated with changes in the level of the Dead Lakes less, not more, of a problem. Public Welfare And The Property Of Others The Dead Lakes dam serves no flood control function. In times of low flow, it creates a reservoir, but the weight of the evidence was that such a reservoir is not needed. Nothing in the record suggests that removal of the dam would affect any significant historical or archaeological resources. There are two public boat ramps on the Dead Lakes, one at Oak Grove in Calhoun County and one in the Dead Lakes Recreational Area. Removal of the dam would render both of them useless for much of the year, unless they were extended. With the dam gone, fishermen and other recreational boaters would be able to navigate the Chipola River from a point in Jackson County down to its confluence with the Chipola Cutoff and from there down the Apalachicola River to Apalachicola Bay and the Gulf of Mexico, during much of the year. Boaters coming upriver could enter the Dead Lakes under a wider range of conditions. The dam, of which neither buoys nor anything else gives warning, presents a considerable navigational hazard. On the other hand, removal of the dam would impede navigation for riparian owners, who would need to extend their docks or boat ramps or take other measures to gain access to the water during times of low flow. Bound up with the environmental effects of removing the dam are certain economic realities. The weight of the evidence established that the value of most of the private residences, permanent and others, along the west shore of the lakes, would tend to decrease with removal of the dam, because removal would aggravate the access problem most of these landowners now have. On the other hand, other environmental consequences of removing the dam, notably better fishing, will have a beneficial economic effect, tending to increase land values not only for riparian landowners but also for owners of other property in the area. For riparian owners of land lying on the Chipola River above the Chipola Cutoff and below the Dead Lakes, the economic consequences of removing the dam would all be good. Jim Bozeman lives on the bank of the Chipola Cutoff 4.5 miles downriver from the dam on the site where his father has a public boat landing. Still further downriver are two other major businesses of this kind. With installation of the dam closing off the Dead Lakes, the Bozemans' business, which includes renting boats and motors as well as launching others' boats, fell off. Removal of the dam should have the opposite effect. Ten fish camp properties have docks or ramps on the Dead Lakes between the dam and Cypress Creek, as do 41 or 42 private landowners. Land upriver from Cypress Creek fronts the river channel, and lies beyond the influence of the dam. If the dam is removed, these property owners will have to extend their docks in order to have access to the water year round. In some cases, extending boat ramps may be an alternative. There is a statutory exemption from permitting requirements for private docks of up to 500 square feet. DER generally permits private docks no wider than six feet if they are built in T- and L- shapes, whatever their length. The environmental authorities do not favor excavating channels. The remains or "skeletons" of early docks reflect adaptations to fluctuations in the level of the lakes of the magnitude likely to recur upon removal of the dam. There are multi-tier docks on the lakes today. Only a few inches of water at the end of a dock will allow access to the lakes by boat, although it may be impossible to use the motor close to the dock. The prosperity of the fish camps depends more on the size of the fish population than on the length of the dock necessary to reach the fishing boats. William Setterich, who owns Stokes Fish Camp, which is located midway along the western shore of the Dead Lakes, wants to see the dam removed. It will mean more mud in front of his fish camp more of the time and he would have to spend some more money on the dock, but the prospect of better fishing would justify the investment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petition of Daniel M. Sullivan, et al in Case No. 84- 4468, and the "Petition" of Raymond Drainville in Case No. 85-0129, be dismissed. THIS RECOMMENDED ORDER entered this 8th day of July, 1985 in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS 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 8th day of July, 1985. COPIES FURNISHED: Carroll L. McCauley, Esquire Ms. Victoria Tschinkel Post Office Box 3567 Secretary Panama City, Florida 32401 Department of Environmental Regulation Mr. Raymond Drainville Twin Towers Office Bldg. 2027 N. Roberts Circle 2600 Blair Stone Road Cantonment, Florida 32533 Tallahassee, Florida 32301 William J. Rish, Esquire Post Office Box 39 Port St. Joe, Florida 32456 B. Suzi Ruhl, Esquire 203 N. Gadsden Street Suite 7 Tallahassee, Florida 32301 Patria Fitzpatrick, Esquire Post Office Box 2464 Panama City, Florida 32402 J. David House, Esquire 119 River Street Blountstown, Florida 32424 Douglas L. Stowell, Esquire Gary J. Anton, Esquire P. O. Box 1018 Tallahassee, Florida 32302 Susan Swihart, Esquire Asst. General Counsel Twin Towers Office Bldg. 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue The ultimate issue to be resolved in this proceeding is whether the Department of Environmental Regulation should issue a permit to Broward County authorizing construction of the proposed Cell 14 extension of the Broward County landfill located in the Town of Davie, Florida. Broward County and the Department of Environmental Regulation contend that Broward County has provided reasonable assurance that the proposed facility will meet the requirements of the Department's rules and regulations and not cause pollution in contravention of the Department's standards. The Town of Davie contends that the proposed facility will not meet the Department's requirements and will result in pollution in contravention of the Department's standards.
Findings Of Fact Broward County presently operates a landfill known as the Davie Landfill on a tract of land comprising 200 acres within the Town of Davie, Broward County, Florida. The existing sanitary landfill includes 13 cells which cover approximately 20 acres on the northeastern portion of the site. The landfill had an original design elevation of50 feet. The Department of Environmental Regulation, in a separate permitting proceeding, has authorized an increase to the height of the existing landfill to 90 feet. The permit authorizing increasing the height of the existing landfill has been challenged by the Town of Davie and is the subject of a separate proceeding before the Division of Administrative Hearings. The site which includes the landfill also has a sludge lagoon and trash landfill located in close proximity to the sanitary landfill. The sludge lagoon was used until sometime in 1981 for disposal of septic tank clean-out, sludges, grease trap waste, and wastewater treatments. The trash landfill was designed primarily for disposal of yard trash. The existing landfill has vertical side slopes of 3.5 to l. In other words, the height of the landfill increases along sides by i foot for every 3.5 feet traveled horizontally. Through this application, Broward County is seeking approval to expand its sanitary landfill by adding a proposed Cell 14. Cell 14 would constitute a Class I landfill since it will receive in excess of 20 tons of solid waste per day. The proposed Cell 14 would be constructed along the existing western face of Cells 1 through 13. It would ultimately be constructed to a height of 90 feet and would be capped with an impervious substance. The western side slope of the proposed cell would also be 3.5 to 1. Cell 14 would cover approximately 11 acres, bringing the total size of the sanitary landfill to just over 30 acres. With Cell 14, the sanitary landfill would continue to operate until approximately 1986. Containing leachate and preventing it from entering surface or ground waters is a most important consideration in determining whether to permit sanitary landfills. Leachate is water that has passed through refuse and been contaminated by the refuse. If significant amounts of leachate from Cell 14 enters into surface and ground waters, violations of the Department's water quality standards would be likely. Several features have been designed into Cell 14 to prevent introduction of leachate into surface and ground waters. The base of the cell would have a high density polyethylene liner to prevent percolation of Leachate that collects at the bottom of the cell into groundwater. A leachate collection system consisting of pipes and manholes has been devised. As leachate collects at the base of the cell, it will be dumped into tank trucks and carried to nearby wastewater disposal plants where it will be treated. A stormwater collection system has been designed so that initial stormwater runoff will be pumped to the leachate collection system and tested. If significant pollutants are contained in the stormwater runoff, it can continue to be pumped into the leachate collection system and ultimately removed to off-site treatment plants. If there are not significant pollutants in the runoff, runoff will be collected in a swale system and ultimately percolate into groundwater. Water that leaves the site in this manner is not likely to cause violations of Department of Environmental Regulation standards either in surface or ground waters. Numerous technological advances have occurred since Cells 1 through 13 of the Davie Landfill were designed and constructed. These cells have a designed-in leachate collection system. The system presently functions adequately, except that the liners under the earlier cells appear to be breaking down. It is apparent that the liner under Cells 1 through 4 has deteriorated to the extent that all leachate from these cells is not collected in the leachate collection system, but enters the groundwater below the landfill. Leachate from a landfill of this sort and magnitude that enters groundwater is likely to cause pollution in violation of the Department's standards. Leachate is presently entering the groundwater from Cells 1 through 4. The nature of the liner under the remaining original cells is not known. It is thought to be made of asphalt. Many forms of asphalt, obviously including the kind that was used to line Cells 1 through 4, are not capable of containing Leachate for an extended period of time. If the liner breaks down, the leachate collection system under all of the original cells will no longer function, and leachate will enter the groundwater, causing violations of Department of Environmental Regulation standards. There will not be an impervious liner between the existing cells of the Davie Landfill and the proposed Cell 14. It has been estimated that the cost of such a liner would be prohibitive. There will be limerock placed between the existing cells and the proposed cell; however, limerock is permeable. Some Leachate from Cell 14 will seep into the existing cells. Some of the leachate from the proposed Cell 14 that enters the existing Cells 1 through 4 will find its way into groundwater under the landfill. Leachate that enters the remaining cells will also find its way into groundwater if the liner under these cells breaks down as the liner under Cells 1 through 4 has broken down. If Leachate from the proposed Cell 14 enters groundwater under the site of the landfill, it is likely to cause pollution in violation of Department of Environmental Regulation standards. Groundwater in the area of the Davie Landfill flows generally from the northwest to the southeast. Some of the groundwater from the site of the sanitary landfill is likely to find its way into a canal which is located just to the south of the site. this is the C-11 Canal. If leachate from the proposed Cell 14 enters groundwater under the site of the landfill, it is likely to ultimately cause violations of Department of Environmental Regulation standards in the C-11 Canal. Except for the fact that the liners under the existing cells of the sanitary landfill are subject to deterioration, the leachate collection system can function appropriately. The leachate collection system for the proposed Cell 14 can also function without allowing introduction of leachate into surface and ground waters. The leachate collection systems utilize pipes that are presently buried under the existing landfill and will be further buried by the construction of Cell 14. The pipes that are presently being used, and are proposed to be used, are designed to withstand pressure greater than would be imposed on them. Furthermore, they are being placed in such a manner (surrounded by rock and utilizing ball joints) as to reduce the pressure imposed upon them. It is possible that one of the pipes could break and that leachate could thus escape from the Leachate collection system. This possibility is not a likely one, however, given the design parameters of the pipes and the nature of their installation. The fact that the leachate collection system for existing cells of the Davie Landfill would be buried under the proposed Cell 14 does not raise a significant danger that the system will break down. Again, the design parameters of the pipes and the nature of their installation render breakage unlikely. The sludge pit that is located just to the southwest of the sanitary landfill and the trash landfill that is located just to the south of the sanitary landfill offer potentially severe threats to the integrity of ground and surface waters on and off of the site. The sludge pit is a hazardous waste site. The trash landfill is not designed to prevent substances placed on the landfill from percolating into groundwater. It does not appear that construction of the proposed Cell 14 addition to the sanitary landfill would increase the risk of pollution that the sludge pit and trash landfill present. It does not appear that construction of the proposed Cell 14 would cause significant additional surface or ground water flows that would increase the risk of material from the sludge pit or the trash landfill from entering surface or ground waters. The applicant has failed to provide reasonable assurance that its proposed addition to the Davie Landfill will not result in violations of Department of Environmental Regulation standards contained in Chapters 17-3, 17- 4, and 17-7, Florida Administrative Code. While the proposed cell has been designed with appropriate liners and with an appropriate leachate collection system, its location abutting an existing landfill which does not have an adequate liner preventing percolation of leachate into groundwater increases the risk of that occurring. It appears that the only means of preventing or reducing that risk is either to close off the existing cells, or to place a liner between the existing cells and any addition in order to prevent flows of Leachate from new landfill activities into the existing cells.
