The Issue The issue for disposition is whether, as alleged in the Administrative Complaint, Respondent committed various violations of Chapter 489, F.S., regulating the practice of contracting, by failing to complete a roofing job which he had agreed to perform.
Findings Of Fact At all times relevant, Michael W. Ballans was licensed by the State of Florida as a certified building contractor, holding License Number CB C036542. He qualified as an individual doing business at 1107 Oregon Avenue, St. Cloud, Florida 32769. On April 6, 1988, H. Earl Fisher signed his acceptance of a written proposal by Michael Ballans for Ballans to install a new roof on Fisher's double-wide trailer at 7650 E. Irlo Bronson Memorial Highway, in St. Cloud, Florida. The price for the job was $1,575.00, for supplies and labor. Fisher made an initial payment of $1,018.00 on June 6, 1988. Materials were delivered to the job site, but Ballans never commenced work. Fisher contacted Ballans four or five times to try to get him to do the job or to get someone else to do it. Ballans never returned the funds and at one point told Fisher that he could not do the work because he lost his insurance. Fisher did not agree to do the work himself and told Ballans he wanted the money back and the materials removed from his property. Stanton Alexander was qualified as an expert in construction industry contracting, including roofing. He has practiced in the profession for approximately thirty years. He served two terms on the construction industry licensing board, including a term as chairman. He has testified in the past as an expert in construction industry practices. A contractor terminates his responsibility under a contract after payment and final inspection and a certificate of occupancy has been issued. Until then, he is responsible for completion of the job. Proper procedure when a contractor becomes unable, to complete a job is to refund the money and remove the materials or to get permission from the building department and owner to bring in another contractor to complete the work. Michael Ballans did neither, and simply abandoned the job. This deviation from the standards of construction industry practice constitutes incompetency or misconduct.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED That a Final Order be entered finding Michael W. Ballans guilty of violations alleged in Counts I, II and IV of the Administrative Complaint, and imposing a fine of $500.00. DONE AND RECOMMENDED this 16th day of April, 1990, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of April, 1990. COPIES FURNISHED: Jack L. McRay, Esquire Dept. of Professional Regulation 1940 N. Monroe St., Suite 60 Tallahassee, FL 32399-0792 Michael W. Ballans 2314 Knob Hill Drive, Apt. #12 Okemos, Michigan 48864 Kenneth D. Easley, General Counsel Dept. of Professional Regulation 1940 N. Monroe St., Suite 60 Tallahassee, FL 32399-0792 Fred Seely, Executive Director DPR-Construction Industry Licensing Board P.O. Box 2 Jacksonville, FL 32202
Findings Of Fact Eduardo Kirksey is licensed as a certified residential contractor, holding license CR C012717. He qualified a corporation known as Modern Construction Company, Inc. (Modern) to engage in contracting.Modern entered into a contract on about July 28, 1986 with Ira Goldstein of 4440 Southwest 32nd Drive, Hollywood, Florida for construction of two-story room addition which would include a family room, bedroom and bath. Modern was to provide the plan by which the addition would be built. A rough sketch of the addition is included on the contract. More specific plans, which are similar to architectural drawings, were thereafter prepared for submission with the building application, which Modern filed with the Broward County Building and Zoning Enforcement Division. The contract was later amended to add a balcony around the second floor of the addition. The plans which are in evidence as Department Exhibit 4 are the second set of plans. According to these plans, the second floor bedroom had a 6" x 6" sliding glass door. The door opened on to a balcony which was created by cantilevered joists consisting of 2" x 10" pieces of lumber bolted to 2" x 12" rafters between the first and second floor. These 2" x 10" members extended out four feet from the building. According to the plans, 2" x 6" decking was to be placed across these joists, and an appropriate railing would then be placed around the balcony. Mr. Kirksey submitted the amended application for the permit and the plan to the Broward County Plan Review Board for approval, and it was approved. After construction began, Mr. Goldstein determined that he did not wish the floor of the balcony to be pressure treated wooden decking. Instead, he wanted a tile floor on the deck. Mr. Kirksey had already filed two sets of plans with Broward County on the project, the first for the addition without the balcony, and the second for the addition with the balcony. He did not want to file a third building permit application which would also require the submission of new drawings. Mr. Kirksey did agree to change the construction to accommodate Mr. Goldstein's desire to tile the balcony but declined to do the tile work himself as part of his contract with Mr. Goldstein. Mr. Goldstein was to arrange for the tiling of the deck. The original design for the decking would have spaced the 2" x 6" lumber which made up the decking with small spaces between each piece of lumber to allow water to fall through during rain. In order to lay tile down, it was necessary to place plywood across the joists, rather than 2" x 6" pressure treated lumber. Before the plywood could be laid, however, Mr. Kirksey had to remove the 2" x 10" cantilevered joists from between the first and second floor, because the original design called for those joists to be level. They were reinstalled at about a 1/2 inch slant so that the water would then drain from the balcony after it had been tiled. In addition, Mr. Kirksey then had to place soffit under the balcony, and put facia around the bottom of the deck. Neither the soffit nor the facia were required in the plans. Although it was more expensive for Mr. Kirksey to add these items, Mr. Goldstein was not charged any additional money for this work. The plywood that was put down over the 2" x 10" rafters instead of the pressure treated 2" x 6" lumber was 3/4 inch exterior grade plywood. Pressure treated plywood was not used because the plywood was to be covered with tile, and if properly tiled, pressure treated plywood is unnecessary. Moreover, even if tile is put over pressure treated plywood, if tile is not laid properly, the pressure treated plywood will rot as well as exterior plywood will rot. It would not have been possible to place tile over the 2" x 6" pressure treated lumber which the amended plan filed with the Broward Building and Zoning Enforcement Division had called for. The 2" x 6" members would shrink and move, causing the tile to crack. Some type of plywood had to be used instead of decking to permit Mr. Goldstein to tile the deck. The 3/4 inch plywood which Mr. Kirksey used met or exceeded the standards established by the South Florida Building Code. No sealant, or paint, was applied to the plywood, nor was the deck covered with visquine. Preparation of the plywood before the tile was placed over it would be the job of the person doing the tile work. An inspector from the Broward County Building and Zoning Enforcement Division visited the site on a number of occasions. During the course of those inspections some of the work was originally rejected by the inspector. For example, the balcony railing pickets had a spacing greater than 5 inches and the top of the rail was only 36 inches high, not 42 inches high. As a result of this rejection, the picket spacing and railing were changed. Ultimately, the inspector gave final approval after having seen the plywood deck, even though no new plans had been submitted to change the deck to have a plywood floor for tile rather than the originally permitted 2" X 6" pressure treated lumber deck. When the job was completed by Modern it was in the condition a project would normally have been left where the contractor was not responsible for laying the tile over the balcony floor. Because the floor was to be tiled, there was no reason for Mr. Kirksey to have painted the balcony floor. In addition, the contract did not require that any painting be done. Mr. Goldstein did the tile work on the deck himself although he had no prior experience in laying tile. Mr. Goldstein spoke with one of Modern's workmen about how to lay tile. This was an informal conversation, and Mr. Kirksey, the contractor, never advised Mr. Goldstein on how to lay tile. I do not accept the testimony of Mr. Goldstein that the employee of Modern who explained to him how to lay tile was the job foreman. Nothing in the contract with Modern required Modern to lay tile, or to advise Mr. Goldstein how to lay tile, so whether the person who discussed laying tile with Mr. Goldstein was a foreman is not significant. Sometime after all the work had been completed by both Modern and Mr. Goldstein, Mr. Goldstein's daughter Evette stepped out onto the balcony, and her foot and leg went through the balcony. This occurred because the plywood had not been sealed or protected before the tile was laid by Mr. Goldstein. As a consequence, the plywood had rotted under the tile. The rot also extended to the supporting joists. Broward County has adopted and incorporated into the Broward County Charter, Chapter 71-575, Laws of Florida, a Special Act of the Legislature. Both adopt for Broward County the "South Florida Building Code, Dade County 1970 edition, as amended." The Department included with its proposed recommended order portions of the South Florida Building Code, 1986 Broward County edition, for the purpose of demonstrating that the conduct of Mr. Kirksey violated Section 301(a) and 302.1(e) of that 1986 code. As a matter of evidence, the 1986 Broward County edition of the Southern Florida Building Code does not appear to apply. The Department's exhibit 7, which is "a copy of the Broward ordinance which adopts the South Florida Building Code" (Tr. 6) shows that it is the South Florida Building Code, Dade County 1970 edition which applies in Broward County. No portion of that document has been offered in the record of this case. As a consequence, there is no record evidence that Mr. Kirksey has violated a portion of an applicable code. It is true that Mr. Joseph Montagnino testified that Section 301(a) of the South Florida Building Code would not permit a change in a plan once it had been approved (Tr. 22, 104). In a case such as this, however, it is necessary for the Department to produce the text of the applicable building code, which has been adopted either by State statute or local ordinance. It cannot prove a violation through the testimony of a witness who merely characterizes his recollection of the text of an authoritative code. Moreover, other witnesses who are experts in construction trades in Broward County testified that it is common for inspectors to approve changes such as that made by Mr. Kirksey here, at the request of Mr. Goldstein, to substitute plywood flooring for pressure treated decking, without the need for amended plans or permits. (Tr. 75-77, 88- 89). Without evidence of the text of the applicable code, it is not possible to determine whether these experts, or Mr. Montagnino are correct. Since Mr. Goldstein, the homeowner, intended to do the tile work, it would not have been Mr. Kirksey's responsibility to pull additional permits for the tile work. At most, Mr. Kirksey's duty might have been to have obtained approval of amended plans, showing the slight pitch of the joists supporting the balcony floor, and the substitution of plywood and tile for 2" X 6" pressure treated lumber as the flooring for the balcony. Mr. Kirksey is in no way responsible for the inadequate preparation of the plywood surface for the application of the tile. Mr. Kirksey is in no way responsible for informal advice given by an employee of Modern, whose identity cannot be determined from the evidence in this case, to Mr. Goldstein about the proper way to prepare the plywood deck for tiling. Tiling was not part of the construction contract which Mr. Goldstein entered into with Mr. Kirksey's company. Mr. Kirksey is therefore not liable for inadequate supervision of employees on the job. Mr. Kirksey's employees performed the work required under the agreement which Modern had with Mr. Goldstein, as the parties amended it after the construction began.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered by the Board finding Eduardo Kirksey not guilty of the violations set out in Counts I, II or III of the Administrative Complaint. RECOMMENDED this 24th day of December, 1991, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. 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 24th day of December, 1991.
Findings Of Fact Triton is a Florida corporation located in Brooksville Florida, which performs land development and construction work for Gulf Coast Diversified Corporation, owned by the same people who own Triton. Triton owns an asphalt "hatching" plant which mixes sand and aggregate with liquid asphalt which is then used as paving material. All asphalt so mixed was used by Triton and no outside sales were made. Gulf Coast Diversified Corporation contracted with Triton for site development of certain realty. The contract included the construction of roads and parking lots. The contract price was computed on a lineal foot basis for the roads and on a square yard basis for parking lots. Triton, using the asphalt mixed in its batching plant, completed the work contracted for. In addition, Triton contracted with Gulf Coast Diversified Corporation for sewer construction which included the construction of manholes fabricated from concrete batched by Triton. No concrete was ever sold to any other outsiders. The cost of the concrete was included in the overall contract price and was not separately itemized. Triton's books of account show concrete sales in the amount of $168,569.36 during the audit period. This figure reflects a $20.00 per yard "market" value of concrete which Triton picked up in its books for its own internal accounting purposes. The figure represents some 8,428 yards of concrete actually sold. For sales tax purposes, Triton valued the concrete at about $13.74 per yard, a figure established by DOR in a previous audit, and remitted 4 percent of the total value of $115,835.25 of the State of Florida. During the audit, DOR noted that 4 percent of the bookkeeping entry for concrete sales was $6,742.77, while only $4,633.41 was received as sales tax. Consequently DOR assessed Triton an additional $2,109.36 plus penalties and interest. The difference, however, reflects only differential per yard valuation of the concrete and not additional concrete yardage.
Findings Of Fact At all times material to these proceedings, Section 4-67 of the Building Regulations, Supplement Number 44, Pasco County Ordinances were in effect and said regulation is the applicable local law. During the applicable time period, the Respondent, ROBERT G. FELLENZ, SR., was registered by the State of Florida as a roofing contractor and held license number RC0027998. Mr. Fellenz is the qualifying agent for Fellenz Roofing Co., Inc. On or about March 24, 1987, the Respondent, FELLENZ entered into a contract with James J. Hoover to re-roof a portion of his residence located at 822 Crestfield Avenue, Holiday, Pasco County, Florida. On April 1, 1987, the Respondent went to the building department in Pasco County to acquire the necessary permit to begin the Hoover project. During the processing of the permit, the Respondent learned that a stop order had been placed on the job. His work crew had disobeyed his direct orders and began work before the permit was obtained. While the Respondent was in the process of having the stop order removed, he learned that his liability insurance had expired. Proof of liability insurance coverage was needed by the Respondent in order for the building permit to be issued by Pasco County on the Hoover project. The Respondent contacted his customer, Mr. Hoover, and explained that he had an insurance coverage problem which he needed to straighten out before work could continue on the roof, and before he could obtain the building permit. Mr. Hoover was not home on the day the re-roofing project was begun and completed by the Respondent. On April 3, 1987, the Respondent obtained liability insurance coverage which went into effect on that date. He began and completed the Hoover re- roofing project on that date. On April 6, 1987, the building department issued the building permit on the Hoover project. A final inspection was never called for by the Respondent. The Respondent has previously been found to have violated Section 489.129(1)(d), Florida Statutes, in Case No. 69097 Construction Industry Licensing Board.
The Issue Whether the Respondent violated Florida law regulating the manner in which pesticide chemicals are to be utilized and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with the duty to prosecute administrative complaints against operators, applicators, and licensed pest control businesses pursuant to Section 482.011, et seq., Florida Statutes. Respondent is at all relevant times a licensed operator and applicator, subject to Petitioner's regulatory jurisdiction. On or about February 21, 2004, Respondent was performing preconstruction termite treatment services at a job site at 7750 Okeechobee Boulevard in West Palm Beach, Florida, utilizing a pesticide known as Dursban TC. Label instructions for Dursban TC provide that a 0.5 percent concentration be utilized for preconstruction treatment for the prevention of subterranean termites. Baker admits he did not follow the label instruction; rather, the concentration of pesticide was less than one tenth of the 0.5 percent concentration provided for on the label instructions as regards the pre-construction soil treatment for subterranean termites. Florida Administrative Code Rule 5E-14.106(6) states in pertinent part: Pesticides used for treatment for the prevention of subterranean termites for new construction shall be applied at the specific amounts, concentration, and treatment areas designated by the label. Baker defends his failure to follow the label instructions on the grounds that such instructions call for a higher concentration of pesticide than is actually necessary to accomplish an effective termite treatment. Even if, as Baker contends, the label instructions suggest a higher concentration of pesticide than is actually necessary to accomplish an effective termite treatment, that is not grounds for him, or Petitioner, to disregard the Rule mandating that label instructions be followed. Pesticide usage is highly regulated due to the potential of such chemicals to impact public health, safety and welfare. § 482.011, et seq., Fla. Stat. Changes in the regulations must come from the legislature, and cannot be made on an ad hoc basis by individual operators.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a final order be entered assessing a fine of $400.00 against Respondent for violation of Florida Administrative Code Rule 5E-14.106 (6). DONE AND ENTERED this 5th day of August, 2005, in Tallahassee, Leon County, Florida. S FLORENCE SNYDER RIVAS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of August, 2005. COPIES FURNISHED: Howard J. Hochman, Esquire Law Offices of Howard J. Hochman 7695 Southwest 104th Street Suite 210 Miami, Florida 33156 David W. Young, Esquire Department of Agriculture and Consumer Services Mayo Building, Suite 520 407 South Calhoun Street Tallahassee, Florida 32399-0800 Brenda D Hyatt, Bureau Chief Bureau of License and Bond Department of Agriculture and Consumer Services 407 South Calhoun Street, Mail Station 38 Tallahassee, Florida 32399-0800 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Honorable Charles H. Bronson Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
Findings Of Fact At all times pertinent to the allegations involved in this administrative hearing, the Respondent, Dennis Heasley, was a licensed land surveyor having been issued license number LS 3466 by the State of Florida. In January 1981 Respondent was an employee of James Bushouse and Associates, a land surveying firm. On January 31, 1981, MidSouth Engineering (MidSouth), a licensed land surveying company, entered into a contract with Figg and Muller Engineers, Inc., and the State of Florida, Department of Transportation, to provide engineering and land surveying services for the new Sunshine Skyway Bridge project. On June 10, 1981, MidSouth entered into a contract with Bushouse for Respondent, Heasley, and other Bushouse employees to perform some of the land survey services called for in the contract MidSouth had with the Department of Transportation. Thereafter, MidSouth entered into an agreement with Respondent Heasley and one Jorge R. Saniz providing that, for a fee of $200,000.00 Heasley and Sainz would provide land surveying and consulting services to MidSouth for its work under its state contract. On or about June 26, 1981, Heasley and Sainz began their work under the agreement with MidSouth, and the work called for by the agreement was satisfactorily completed by July 31, 1981. Thereafter, Heasley billed MidSouth for the unpaid remainder of the contract price and was paid. The contract between MidSouth and the State of Florida provided for payment by the State based on crew day rates wherein the State would pay so much money per crew day expended. The work in issue here was to take no more than 85 crew days with an upper limit on payment to be approximately $300,000.00. Respondent actually completed the work in 34 days. His speedy completion of the job resulted in MidSouth receiving less under its contract than anticipated. Shortly after completion, he became an employee of MidSouth. In the course of his continuing employment, he worked on some other aspects of the bridge project that were awarded to MidSouth. Respondent's lump-sum contract with MidSouth called for payment to him of $200,000.00. Out of that sum he was supposed to pay all his and Sainz' job expenses which included the salary, housing, and feeding of the employees he hired to perform the actual surveying work. His understanding with MidSouth called for him to utilize approximately 12 to 16 crew members. During the time the work was being performed, Respondent and Mr. Sainz rented a house near the work-site in which crew members were provided a place to live. Food paid for by Respondent Sainz was provided as were laundry facilities. The sums paid for these items as well as the transportation of the workers and the worker's salaries were to come from the $200,000.00 fee paid by MidSouth. Payments were made on the basis of periodic draws. Either Heasley or Sainz would contact MidSouth and state that some money was required for expenses and a sum was furnished. As this sum was expended Respondent would ask for more. He indicates that the relationship was like a game in that he asked for as much as he thought he could get and MidSouth would pay as little as it thought it could get away with. In any event, no actual per diem monies were paid by Respondent to the employees who were working on the survey crew. Respondent admits that during the 34 days this arrangement was in effect, he kept very few records and receipts. He relied on MidSouth to keep all the expense records and whatever receipts he received for money spent, he sent in to MidSouth which made up the payroll for Heasley and Sainz' crew members from the times he called in. Several months after the subcontract between Heasley, Sainz, and MidSouth was completed, Heasley was called by Tom Heinly, Executive Vice- President of MidSouth and his immediate supervisor, with a request that he, Heasley, prepare, sign and submit a list of per diem expenses for the crew which worked on the contract referenced above. In the course of the conversation, Heinly asked that it be prepared a certain way. In response, Respondent told Heinly that he could not do that because he had not paid the money as per diem payments but had provided payment in kind in the form of food, lodging, and laundry. Heinly advised Respondent to think about it and later called back again asking that Heasley prepare and sign a statement indicating per diem money paid. Heinly argued that MidSouth was entitled to the money and asked that Heasley do this as a favor. Again, Heasley refused. The third time Heinly called Heasley, he indicated that the list would be strictly a memorandum between Heasley and MidSouth to account for some of the money advanced by MidSouth and that the list had nothing to do with the State. Heinly assured Heasley that the improper, inaccurate list would not go to the State since this was one of Heasley's concerns. Heinly indicated that he had talked with representatives of the State and had been assured that it was legitimate to file an invoice such as this. Heasley was led to believe that the State would not reimburse MidSouth for advances made for in-kind payments but would reimburse for actual per diem expenses. Ultimately, since Heasley was convinced by Heinly that MidSouth was entitled to be reimbursed for these monies and since, to the best of his recollection, he, Heasley, had paid out in in-kind expense a sum similar to that claimed on the per diem list, it would be all right to so certify. Therefore, he agreed to sign the list after the third request. The list which Heasley signed was prepared by MidSouth personnel, not Heasley, and was brought to Heasley by Mr. Duffer, MidSouth's chief accountant. Respondent does not recall going over the list at the time he signed it and verified neither the names nor the amounts set out thereon. When he checked it over much later, he found that some of the names on the list should not have been there. Respondent admits signing the document and admits that the document as signed was false. When investigators from the State Attorney's Office initially talked with Mr. Heasley about this incident he was less than forthright. Though they had advised him they were investigating the relationship between MidSouth and the Department of Transportation, the tenor of their questions indicated to him that they were investigating him and his answers were evasive and, in fact, erroneous. However, when he subsequently found out the nature of the investigation, he attempted to get word to the investigators that he would like to continue the discussion. He was unable to do so, however, and was not interviewed by these officials again. He was, however, subsequently interviewed by Mr. Cartwright who, in mid to late 1981, was conducting an investigation into the MidSouth, Heasley and Sainz relationship with the Skyway Bridge project. An engineer with the State had expressed some concern regarding invoices submitted by MidSouth and the preliminary inquiry showed some cause for concern. As a result, a full investigation was begun which revealed that MidSouth had little if any documentation to cover invoices submitted to the State. It also showed that the company's accounting procedures and internal control were almost nonexistent. As a part of the investigation Cartwright interviewed Heasley who admitted that he had signed the documents referred to above regarding per diem payments. Heasley also admitted that in some cases the payees did not receive the money claimed but in his opinion, the bottom line balanced out and MidSouth was entitled to the total sum.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent, Dennis Heasley's license as a land surveyor in the State of Florida, be placed on probation for a period of two years, under such terms and conditions as shall be established by the Board of Land Surveyors, and that he be reprimanded and pay an administrative fine of $1,000.00. DONE AND ENTERED this 16th day of January 1985 in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of January 1985. COPIES FURNISHED: Joseph W. Lawrence, II, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 E. C. Deeno Kitchen, Esquire Melissa Fletcher Allaman Post Office Drawer 1170 Tallahassee, Florida 32302 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Allen R. Smith, Jr. Executive Director Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue is whether Respondent's construction activities violated Department standards and created an unsafe road condition, as alleged in the Department's Amended Violation and Notice to Show Cause - Non-Compliance with Permit Conditions (Notice to Show Cause) issued on March 1, 2016.
Findings Of Fact Background The Department is the state agency responsible for regulating access to the state highway system. See § 335.182, Fla. Stat. To ensure that the motoring public is safe, the Department has adopted and incorporated by reference design standards, standard specifications, and a Plans Preparation Manual (PPM) that must be adhered to by contractors when working on state roads. See Fla. Admin. Code R. 14-96.008. Respondent is an Orlando engineering firm whose principal is Zhi "George" Guo, a registered professional engineer. The Guo family is the fee simple owner of a 37-acre tract of land located at 5615 Recker Highway (State Road 655) in an unincorporated part of the County. Around eight years ago, Mr. Guo began the process of developing the family property as a business park to be known as the Recker Highway Business Park Development. To provide access to the property from State Road 655, Mr. Guo was required to construct turn lanes, widen from two lanes to four lanes around 1,700 feet of roadway, construct paved and unpaved shoulders, and install guardrails and sod. The Department considers road widening to be a major project. Because all work was within the Department's right-of-way, a driveway connection permit and drainage connection permit were required. The project begins at Station 594.00 and ends at Station 611.00 on State Road 655. On October 16, 2008, Mr. Guo submitted to the Department an Access Application for a driveway connection permit. Among other things, the Access Application identifies the engineer of record (EOR), general contractor (GC), and certified engineer inspector (CEI) on the project. The EOR signs the plans and verifies that all work will be in accordance with Department standards. The GC is essentially the manager of the project and is responsible for its overall coordination. The CEI is responsible for making all inspection work on the project to ensure that the GC is performing work according to the permitted plans. This requires that the CEI be on the job site to observe and verify work done by the GC. The CEI must also submit daily reports to the Department documenting activities that take place each day while work is being performed. When all work is completed, the CEI requests that the Department make a final inspection and issue a final acceptance of the work. Although the CEI is normally one person, the CEI can be a combination of multiple people if they have a Construction Training and Qualification Program (CTQP) certification required to complete the components of the work, e.g., earthwork, asphalt, and maintenance of traffic (MOT). Mr. Guo's Access Application indicated he would serve as EOR and GC. It did not identify who would be the CEI, but Mr. Guo does not deny that he served as CEI. Notably, Mr. Guo submitted daily reports and assumed the duties and responsibilities normally associated with that position. Mr. Guo has never managed a highway construction project such as this, although he has done design work on several highway projects, mainly related to drainage-improvement work. As the GC, Mr. Guo signed and sealed the permitted drawings. As a general rule, different individuals serve as the EOR, GC, and CEI. If the CEI is also the GC, there are no checks and balances to ensure the project is built according to the permitted plans. According to the Department's expert, it is unethical for one person to serve as GC, EOR, and CEI on the same project. However, the expert had no explanation as to why the Department issued a permit to Mr. Guo under these circumstances, and the Department cited no rule or statute that prohibits this arrangement. The charging document does not allege any wrongdoing in this respect. Mr. Guo was concerned about an apparent conflict of interest created by him being the owner of the property, EOR, GC, and CEI. Accordingly, he hired two outside laboratories to perform materials testing, and he used two of his employees, one certified in earthwork and the other in MOT, but neither in asphalt, to act in his stead. There is no evidence that Mr. Guo informed the Department that he had delegated any CEI inspection responsibilities to other individuals. Although he asserts a request was made for the Department to inspect the paving progress as it was installed, there is no record of such a request. Indeed, Mr. Guo had no reason to assume, as he did, that the Department permit inspector would "fully perform the inspection work." If this were so, there would be no need for the CEI to perform any inspections on asphalt work. After being informed by the Department that a drainage construction permit was required, on January 28, 2009, Mr. Guo filed a second application for that type of permit. After additional information was provided by the applicant, on December 14, 2012, or around four years later, the Department issued to Mr. Guo Driveway/Connection Permit No. 2008-A-190-0071 and Drainage Connection Permit No. 2009D- 190-0003. The permit conditions required, among other things, that all work be performed in accordance with current Department standards, specifications, and permit provisions; the driveway connection not be used until final acceptance was given by the Department; the applicant be totally responsible for the cost of all work performed inside the Department's right-of-way; and the applicant accept all conditions of the permit, once work began. At hearing, Mr. Guo agreed that he must comply with all permit conditions. A pre-construction meeting was conducted on January 2, 2014. Mr. Guo attended the meeting and acted as the EOR, GC, and CEI for the applicant. Among other things, the purpose of a pre-construction meeting is to discuss the conditions in the permit and to answer any questions that an applicant may have before work begins. See also Fla. Admin. Code R. 14-96.003(2). At the meeting, Mr. Guo was given a copy of the construction guidelines, which spell out exactly what a contractor must do before, during, and after construction. He was also given a copy of "Minimum CEI On Site Inspections and Notifications," which identifies the specific duties of the CEI. These documents are also attached to his permits. At the heart of this controversy is a dispute over the actions taken by the Department's permit inspector while monitoring the project. A permit inspector is assigned to monitor the work on all state highway projects. The Department's Bartow District Office has only one permit inspector, Steve Logan, who is responsible for 400 lane miles of road in the County. Mr. Logan must drive through all the jobs that are under construction in the County and bring matters to the attention of the CEI on each project to ensure compliance with the Department's permitted plans, including items such as traffic control, lane closures, and spot slope measurements. He must also observe and verify the work done by the CEI, accept and review the daily reports submitted by the CEI, forward those reports to the permits director at the District Office, and work as the Department's communication contact with the contractor. He also receives asphalt mix designs from the CEI and forwards them to the Materials Department for approval. Mr. Logan replaced another permit inspector in February 2015, or just before the friction course of asphalt was placed on the roadway. The friction course is the third and final layer of road surface. When he assumed the position, Mr. Logan understood the Department had previously inspected the first two layers of road surface, i.e., the installation of an eight-inch lime rock base and a one and one-half inch structural asphalt layer. However, he knew that no final acceptance had been given since all work was not yet completed. Mr. Logan holds an asphalt level 1 CTQP certification, is currently an engineer intern, and is scheduled to take the professional engineer examination in April 2017. The certification means that Mr. Logan is qualified to perform acceptance tests for asphalt work on highways. Mr. Logan does not have authority to accept or reject any of the roadway construction on a permitted project. Authority to issue a final acceptance letter lies with the permits director in the District Office. A letter is normally issued after the permits director, permit inspector, CEI, contractor, and Department maintenance team jointly inspect the project after all work is completed. Mr. Logan himself made no final inspection. The Work To Date The asphalt paving work began in March 2014, the final course was laid in March 2015, and the last corrective work was completed in July 2015. Mrs. Asphalt, LLC, was the paving contractor used on the job. Although a final inspection was never performed, one of Respondent's employees made final payment and released Mrs. Asphalt after the July 2015 corrective work was completed. A release and final payment are normally given after all paving work has been approved and accepted by the Department. Although he was not on the site in July 2015, Mr. Guo contends Mr. Logan gave final approval for the work at that time. In April, May, October, and November 2015, the Department sent a punch list of items to Mr. Guo to be completed by his firm. A punch list identifies deficiencies that need to be corrected before a final inspection is made. It does not inform the CEI on how to resolve the deficiencies, and it places the permittee on notice that final acceptance will not be given until the items on the list are corrected. Slope deficiencies were not noted until several months after the corrective work was completed when a Department project administrator happened to be driving on the road after a heavy rain and observed ponding on many sections of the roadway. Mr. Guo met with the Department in early December 2015 in an effort to address not only the items in the punch lists but also the sloping concerns. On December 11, 2015, he submitted an alternative solution of spot repair. The Department rejected this proposal, as the proposed repairs would negatively impact surrounding asphalt that was constructed at a different slope. Mr. Guo submitted a second alternative solution, which would allow him to mill out (remove) 1.5 inches of pavement and overlay the friction course at 1.5 inches with a two percent slope. The Department rejected this proposed solution, as the best solution was to "remove what was out there." The Department has never issued a final acceptance letter for the project. The Notice to Show Cause, as amended, was issued on March 1, 2016. The Charges The Department is authorized to initiate an enforcement action whenever work on a state road does not conform to the permitted plans or violates the PPM. See Fla. Admin. Code R. 14-96.007(8). The Notice to Show Cause alleges that "the majority of paved areas, paved and unpaved shoulders, slopes, guardrail and other items" do not comply with Department standards or abide by the permitted plans. It further alleges this creates "an unsafe road condition" and constitutes a violation of Department rules. The Department estimates the cost to correct these violations is between $430,000.00 and $650,000.00. Although Respondent disputes this amount, it is unnecessary to resolve that issue at this time. State Road 655 is an undivided, two-lane arterial highway probably built around 100 years ago when different design standards applied. According to current PPM standards, a two-lane state highway must have a minimum eight-foot-wide shoulder that includes a minimum five-foot-wide paved section constructed with a two percent negative slope for the turn lane and a six percent negative slope for the paved shoulder area. See Dep't Ex. 8. The negative slopes allow water to drain off the road. A construction tolerance of no more than .2 percent is allowed. Id. To conform to these standards, Respondent's permitted plans call for the same slopes on travel lanes and shoulders. Although State Road 655 probably had a slope of one to one and one-half percent when it was first built, and paving slopes on the pre-existing lanes being widened are not exactly two percent, any current overlaying of the road requires a two percent slope. Mr. Guo contends he was told by two permit inspectors, "Chris" and Steve, that a slope of two percent or less was acceptable. Mr. Logan denies this assertion. There are nine items in the charging document, which identify necessary changes to reduce the hazardous roadway conditions and correct the improper construction. Items one, two, four, and seven relate to improper pavement slopes and improper paved and unpaved shoulder slopes on both the east and west sides of the roadway. Item three identifies a missing paved shoulder on the west side of the roadway. Items five and six identify the absence of a stabilized shoulder (material placed adjacent to a paved shoulder) on the east side of the roadway and the lack of any sod on the same shoulder. Item eight alleges the guardrail in front of the cross drain is deficient. To avoid flooding, item nine alleges the shallow ditch on the east side of the roadway should be relocated closer to the Department's right-of-way line and the roadside slopes should be modified, as shown in the permitted drawings. While not containing a specific charge, a tenth item warns Respondent that other issues may arise before final acceptance is given. The more persuasive evidence supports a finding that the slopes and shoulders identified in items one, two, four, and seven do not conform to the plans or PPM. Mr. Guo's own daily reports for the friction course corroborate this finding. Those reports reflect the slopes are two percent or less for the travel lanes and four percent for the shoulder slopes. This is contrary to the plans, which call for a two percent slope for travel lanes and a six percent slope for shoulders, with not more than a .2 percent deviation. The absence of appropriate negative slopes can create dangerous ponding conditions on the highway. Therefore, the charges in items one, two, four, and seven have been proven. The more persuasive evidence supports a finding that the work described in items five, six, and eight has not been performed. If not completed, these deficiencies can create a safety hazard and cause soil erosion. Therefore, the charges in these three items have been proven. At hearing, Respondent admitted that this work has not been performed and agrees to complete the work after the paving dispute is resolved. The more persuasive evidence supports a finding that the charge in item nine has been proven. When a roadway is widened, and a drainage ditch is located adjacent to the original roadway, to avoid possible flooding, the ditch must be relocated closer to the Department's right-of-way and roadside slopes must be modified. Although Mr. Guo contends otherwise, this work is an integral part of any road construction project. Mr. Guo has proposed an alternate design to address this item. Respondent's Contentions Respondent first contends that sections of other nearby state roads are not built to current standards and therefore the exact standards required by the PPM should not apply. Respondent identified various locations on State Road 655 and other state roads within a five-mile radius of the project that do not have an exact two percent slope. See Resp. Ex. C1, pp. 1-6; Resp. Rebut. Ex. 2. Because of this slope variation, Respondent asserts strict compliance with the PPM and plans should not be required. Consistent with this argument, Respondent admits that any pre-existing travel lanes on State Road 655 with slopes of 1.6 to 1.8 percent were overlaid with new asphalt using the same slope measurements. But this concern should have been raised at the pre-construction meeting before work began, and not after the paving was completed and a Notice to Show Cause issued. The contention is rejected, as the evidence supports a finding that a permittee is required to build to current standards, regardless of the condition of the existing roadway. In its PRO, Respondent argues the Department is equitably estopped from enforcing the requirement that the final paved surface have a slope of exactly two percent; the Department waived the requirement that the final paved surface have a slope of exactly two percent through representations made by Department employees; its liability, if any, was extinguished because Mr. Logan accepted the work; and the actions and representations of Mr. Logan render the Department liable for the as-built conditions.1/ These contentions are based mainly on the premise that Mr. Logan made representations to the subcontractor and/or Respondent's employees regarding the quality of the paving work and gave final approval after the corrective work was completed in July 2015. The friction course was installed over a three-day period during the week of March 18, 2015. The asphalt was installed by Mrs. Asphalt. On the first day, Mr. Guo arrived on site two hours after work began and on the other days he was not on site at all times. However, James Bearden, who is Respondent's foreman, and one other employee, Kerry Bearden, were on site at all times. Neither is certified to inspect asphalt. Except for the afternoon of the second day, Mr. Logan was present at all times. Using a four-foot calibrated smart level, Mr. Logan performed spot checks on the slopes while the asphalt was being laid, while James Bearden made slope checks every 25 feet or so. Mr. Bearden confirmed that Mr. Logan did not "check it as often" as he did. Although the spot checks he made appeared to be "acceptable," Mr. Logan did not perform any spot checks after the rolling was completed, and he did not write down any measurements that he took. At one point, Mrs. Asphalt's foreman requested information regarding the target slope. Mr. Logan informed him he should check with the client to obtain that information. Mr. Logan did not advise anyone that the work would pass final inspection. During the March paving work, Mr. Guo took no measurements, but after the paving was completed, he was observed making a few sloping measurements. Normally, the CEI will make numerous checks while the paving is being laid to ensure that the subcontractor is providing quality work and the equipment is adequate to perform the job. Respondent asserts, unpersuasively, that by allowing Mr. Logan to inspect the asphalt paving, function as the asphalt inspector on site, and give final approval, the Department interfered with the road construction. The facts belie this contention. At no time did Mr. Logan interfere with, or prevent, the contractor from taking slope or depth measurements. Although Mr. Logan would sometimes tell the subcontractor that work was not acceptable, he did not order the subcontractor to fix the unacceptable work. This is the responsibility of the CEI. Mr. Logan told Mrs. Asphalt's foreman that the July 2015 corrective work looked "good," but he was not asked by anyone if the subcontractor could be paid and released, or if his characterization of the work as "good" constituted final acceptance of the work. Contrary to Respondent's assertion, no representation was made by Mr. Logan that he was giving final approval. In fact, there has never been a request by the CEI for the Department to make a final inspection. It is evident from Mr. Guo's testimony that he either misunderstood the type of oversight provided by a permit inspector, or he never sought clarification on that issue before the work began. It is the CEI's responsibility to be present on the job site to observe and verify the GC's work. This means that Mr. Guo, or his certified designees, if any, and not the Department, are responsible for all inspections and to provide daily reports documenting the work activities that take place each day. Mr. Guo believed the subcontractor "only listen[s] to Steve," and the subcontractor "report[ed] directly to Mr. Logan" for "quality [control] decisions" rather than the CEI. As to the July 2015 corrective work, Mr. Guo instructed "the subcontractors [to] completely follow the instruction[s] from Steve" in making the necessary corrections to the slopes. He also believed, incorrectly, that all asphalt inspection work had been delegated to Mr. Logan and assumed that Mr. Logan was essentially supervising the project. In other words, he turned over all responsibility for inspecting the asphalt to the permit inspector. But as the record shows, Mr. Logan only made sporadic measurements, he had no authority to approve the work, and he did not direct the subcontractor's performance, reject its work, or put a stop work order on the project. James Bearden attended a meeting with Department personnel in November 2015. He recalled telling John Hayes, a Department construction engineer, that he paid and released the subcontractor after Mr. Logan "okayed the work." Mr. Hayes responded that "Steve didn't have authority to authorize that asphalt." Mr. Hayes did not testify, and Mr. Bearden's representation to Mr. Hayes that the work had been approved is incorrect.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order sustaining the charges in the Notice to Show Cause and requiring Respondent, within 60 days, to demonstrate satisfactory progress in completing the road construction. Otherwise, the Department may initiate action to effect the satisfactory completion of the work at Respondent's expense. DONE AND ENTERED this 12th day of October, 2016, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of October, 2016.
The Issue Whether Respondent violated provisions of Chapter 75-489, Laws of Florida, as amended, as more specifically alleged in Administrative Complaint dated February 10, 1992.
Findings Of Fact At all times relevant hereto Respondent was licensed by Petitioner as a certified building contractor having been issued license C-608, and was qualifying agent for Bay City Builders, Inc. Bay City Builders, Inc., entered into a contract to add four bedrooms and two baths to a residence in Dunedin, Florida, being used as an Adult Congregate Living Facility (ACLF) (Exhibits 1 and 2), at a price of $32,000. The contract provided, inter alia, that the contractor would provide all permits and fees directly associated with the project. Upon signing the original contract on September 26, 1991, the owner paid Bay City Builders $3200 (Exhibit 3). On October 8, 1991, the owner paid Bay City Builders an additional $7200 (Exhibit 3) when the plans were presented to the owner. Prior to the issuance of the permit for this project, Bay City Builders poured the footing for the building addition. The permit application was signed by Respondent. After entering into the contract, Bay City Builders found there was an impact fee involved, the project was never completed and was subsequently abandoned. Bay City Builders prepared a second contract for this project which increased the price to $41,789 (Exhibit 5) and presented this to the owner who did not accept the new contract. Respondent admits that he was the qualifying contractor for Bay City Builders, and the permit was pulled under his license, but contends he had nothing to do with the financial arrangements between Bay City Builders and the owner. Respondent was paid a flat fee by Bay City Builders for obtaining permits under his license for work Bay City Builders contracted to perform. He occasionally visited the sites where work was being performed by Bay City Builders. Bay City Builders is not licensed. The permit for the ACLF addition was applied for on November 1, 1991, but was not issued by the City of Dunedin until February 13, 1992 (Exhibit 6). It could have been picked up any time after November 30, 1991. On September 5, 1991, Bay City Builders entered into a contract with an owner living in Seminole, Florida, to replace the roof over a rear porch of this residence for a total price of $900. (Exhibit 8) This was a flat roof, and the initial intent was to replace the tar and gravel roof with tar and gravel. At the time construction started on September 11, 1991, the person doing the installation used a rubberized roof, which was satisfactory to the owner and gave the owner a 5 year unconditional warranty. Respondent's license does not authorize him to reroof an existing building, and no permit was applied for to perform this job. No certified roofer was engaged to do this reroofing, the rubberized compound applied to the roof was improperly applied and the roof started leaking when the first rain came. Workers from Bay City Builders came to the residence several times to attempt to patch the leaks, but the leaks persisted. Ultimately, the owner had to employ a qualified roofing contractor to redo the roof. While Bay City Builders was attempting to stop the leaks, the ceiling over the porch was also ruined and had to be replaced. In his testimony, Respondent admitted that he was the sole qualifying contractor for Bay City Builders, that his function was to give Bay City Builders a price estimate for the work intended, including the ACLF addition, but the owner of Bay City Builders entered into a contract for $5000 less than Respondent's estimate for the ACLF. Respondent also acknowledged that Bay City Builders, acting under Respondent's license, entered into contracts for some 150 jobs, but that Respondent was told or learned of only 60 of these projects. Respondent was paid a fixed fee by Bay City Builders for each permit obtained, and he prepared estimates of cost.
The Issue Whether Polk County Comprehensive Plan Amendment 17D-08/DMS 59550, adopted by Ordinance 2017-049 on October 3, 2017 (the Plan Amendment), is “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes (2017).1/
Findings Of Fact The Parties and Standing Petitioner, WHS Visions of Lakeland, LLC (WHS Visions), is a limited liability company with its principal place of business at 2506 Longhorn Avenue in Lakeland, Florida. WHS Visions owns property in Polk County. William H. and Brandy L. Stanton are the managing members of WHS Visions, and Mr. Stanton is the registered agent. Petitioner, BS Ranch and Farm, Inc. (BS Ranch), is the operating company for the property owned by WHS Visions in Polk County. BS Ranch began operating a soil manufacturing facility on property owned by WHS Visions in Polk County in 2011. Ms. Stanton is the President and a Director of BS Ranch, and Mr. Stanton is a Vice President and Director thereof. The County has challenged Petitioners’ standing to bring the instant action, alleging Petitioners did not submit oral or written comments relating to the Plan Amendment to the County during its consideration of the Plan Amendment. Petitioners argue they made verbal comments concerning the Plan Amendment at both the transmittal and adoption hearings on the Plan Amendment through their agent, Stuart Cullen. Stuart Cullen is a registered Professional Engineer and Vice President of Engineering for George F. Young, Inc., an engineering consulting firm with a business address of 1905 South Main Street in Gainesville, Florida. On February 5, 2014, Mr. and Mrs. Stanton executed “Property Owner Affidavits” authorizing George F. Young and Mr. Cullen to represent “William H. Stanton, Jr. and/or Brandy L. Stanton and/or BS Ranch” in connection with “Land Use Changes and/or associated development plan or permitting applications” regarding the properties owned by them as evidenced by the attached legal descriptions. Petitioners’ Exhibit 12 is a copy of the executed Property Owner Affidavits attached to a development review application dated November 6, 2014, for conditional use approval for the soil manufacturing facility. Mr. Stanton testified that the Property Owner Affidavit was created by him, was a generic form for use by the Stantons, and was submitted with several different applications for land use approvals and permits from the County. In 2015, BS Ranch engaged George F. Young, Inc., on an hourly basis for services related to expansion of the soil manufacturing facility. Mr. Cullen was listed as the contact for George F. Young, Inc., on the contract with BS Ranch, and Mr. Cullen executed the contract on behalf of George F. Young, Inc. The scope of services for the contract included “design, engineering, permitting, meetings” among other services “as necessary for expanding the facility’s operations.” George F. Young, Inc., and Mr. Cullen’s representation has not been limited to permit approvals for BS Ranch operations. Mr. Cullen represented BS Ranch in an application for an amendment to the LDC in 2015 to allow soil manufacturing facilities in Industrial (IND) land use districts. All appearances by Mr. Cullen before the County Commission beginning in 2014 through the date of the final hearing have been on behalf of Mr. and Mrs. Stanton and BS Ranch.3/ The County considered the subject Plan Amendment, CPA 17D-08, concurrently with an amendment to the LDC, LDC 17T-10. On August 22, 2017, the County conducted the transmittal hearing on the Plan Amendment. The County opened a public hearing on the Plan Amendment together with the LDC amendment. Mr. Cullen appeared, introduced himself, and gave his business address in Gainesville. Mr. Cullen did not state whether he was speaking on behalf of any person or entity at the public hearing. Mr. Cullen testified that Mr. and Mrs. Stanton requested him to speak on their behalf and, that, given his numerous appearances in front of the County Commission on behalf of these same clients, it was “well known” that he was speaking on behalf of BS Ranch. Mr. Cullen explained that his representation of BS Ranch “was essentially the only reason I would have been talking.” Mr. Cullen’s comments were limited to the LDC amendment, rather than the Plan Amendment. The substance of his comments was a request to restore a previous version of the LDC which allowed Solid Waste Management facilities to be sited in IND land use districts. His concern was clearly with the effect of the LDC amendment on Petitioners’ existing operation. Mr. Cullen explained to the Commission, “So, in effect, you are taking a [use] that exists in an available land use category that is available for somebody to develop . . . and telling them, no, you can’t do it anymore because of your land use category.” On October 3, 2017, the County Commission opened a public hearing on the Plan Amendment together with the LDC amendment. Mr. Cullen appeared, introduced himself, and gave his business address. Mr. Cullen did not identify whether he was speaking on behalf of any person or entity. Mr. Cullen was the only speaker during the public hearing. Mr. Cullen addressed both the Plan Amendment and the LDC amendment. His comment on the Plan Amendment was limited to a procedural issue. His comments regarding the LDC amendment mirrored the comments he made at the transmittal hearing. Soil Manufacturing Facility The Comprehensive Plan contains the following definition of Soil Manufacturing, adopted in 2016: A facility that makes soil and soil-related products using natural products as the primary ingredients. The manufacturing process utilizes various waste product streams including, but not limited to, yard waste, tree trimmings, other plant materials, pre-consumer food waste, post- consumer food waste, septage, bio-solids, and sludge. These materials are then treated and processed using the natural aerobic and anaerobic decomposition process to create a soil product that is sold and removed from the facility. The Plan Amendment The Plan Amendment makes the following pertinent changes to Division 4.400, Glossary, of the Comprehensive Plan: MATERIALS RECOVERY FACILITY: A solid waste management facility that provides for the extraction from solid waste of recyclable materials, materials suitable for re-use, repurposing, use as a fuel or soil amendment, or any combination of such materials including without limitation a Soil Manufacturing facility but shall not include soil manufacturing. * * * SOLID WASTE MANAGEMENT FACILITY: Any solid waste disposal facility, solid waste transfer station, materials recovery facility, volume reduction facility, other facility, or combination thereof, the purpose of which is resource recovery of the disposal, recycling, processing or storage of solid waste. Salvage Yards, Construction Aggregate Processing, and Construction Aggregate Storage and Soil Manufacturing are excluded from this definition, but may by [sic] accessory uses to a solid waste management facility. Generally, the change brings a soil manufacturing facility within the definition of a Solid Waste Management Facility. The full impact of the change is not apparent from the face of the Plan Amendment alone. The Plan Amendment must be analyzed in conjunction with the LDC amendment.4/ LDC 17T-10 deletes Soil Manufacturing from Table 2.1, the LDC “Use Table for Standard Land Use Districts,” and deletes Soil Manufacturing as a conditional use subject to regulations of Chapter 3. This change effectively eliminates soil manufacturing facilities as an allowable, albeit conditional, use in IND land use districts. LDC 17T-10 further deletes in its entirety the stand- alone criteria for conditional use approval of soil manufacturing facilities, instead regulating those facilities as follows: Section 303 Criteria for Conditional Uses Manufacturing, Soil All Soil Manufacturing facilities shall be regulated by the Solid Waste Management Facilities standards set forth in this LDC Section 303 and the Comprehensive Plan except as provided in subsection 2, below. Any Soil Manufacturing facilities with a valid level 4 review approval issued under the LDC as of the effective date of LDC 17T- 10 may continue to develop in accordance with the approval in place as of the effective date of LDC 17T-10. Any such previously approved facility shall continue to be governed the Soil Manufacturing regulations adopted by Ordinance 16-040. Any such previously approved facility may be modified or expanded pursuant to Section 120 without becoming subject to the Solid Waste Management Facility standards set forth in this LDC Section 303 and the Comprehensive Plan. This change brings soil manufacturing facilities under the County’s regulatory scheme for Solid Waste Management facilities. Both the existing Comprehensive Plan (Future Land Use Policy 2.125-O1) and the LDC restrict location of Solid Waste Management Facilities to Institutional land use districts. Together the Plan Amendment and the LDC amendment restrict soil manufacturing facilities to Institutional land use districts. Petitioners’ property and soil manufacturing operation is located in the IND land use category. Thus, together the Plan Amendment and the LDC amendment render Petitioners’ use non-conforming.5/ Solid Waste Siting Ordinance The LDC Amendment changes the development review process and criteria for siting, operating, and expanding a soil manufacturing facility, by bringing them under the purview of the Solid Waste Siting Ordinance (Siting Ordinance). The Siting Ordinance requires a Level 4 site plan review and consideration of the following: The haul routes from the nearest arterial roadway, and proposed points of access to the property; The proposed date the construction will commence; The volume of waste to be received; An explanation of the types of wastes to be received; A statement specifying the hours of operation; The source of the solid waste to be received; The levels of odor, dust, and noise anticipated to be generated by the facility and proposed mitigation thereof; Proposed buffering, which may include more landscape buffering than required by the code; and The height of all structures and other improvements. The Siting Ordinance prohibits direct access to a paved local commercial, collector, or arterial roadway, or to a local residential road. It also sets mandatory setbacks for Landfills, Incinerators, and Materials Recovery facilities. The setbacks applicable to Materials Recovery facilities are 100 feet on all sides, and 500 feet “when adjacent to residentially used or designated property.” The 2016 Amendment In 2016, upon application by BS Ranch, the County amended the Comprehensive Plan and LDC to create “Soil Manufacturing Facility” as stand-alone use, and created a “carve out” from the Siting Ordinance for soil manufacturing facilities. Under existing LDC section 303, soil manufacturing facilities are subject to a minimum size of 100 acres, located a minimum of one-half mile from residential uses and any school or hospital, 200 feet from any natural waterbody, and 1,500 feet from any wellhead supplying a public water system. The restrictions include a minimum setback of 300 feet from residential districts and a requirement to sequester all processed liquids on site either with a liner or other physical barrier. Under the existing regulations, a soil manufacturing facility must submit a Facility Operating Plan (Operating Plan) including the following: General explanation of the types of wastes to be received; Identification of the general sources of the waste to be received; Regulatory permits required to operate all phases of the proposed facility; Vehicle circulation on and off site; Methods for mitigation of all odor, dust, and noise anticipated to be generated by the facility to include: best management practices to address potential odor sources; the monitoring of odors at the project perimeter; the identification of potential off-site odor receptors; and a response protocol for complaints and the resolution of substantial complaints; Description of the treatment process in map and narrative form; Description and mitigation plan to address the facility’s interaction with environmentally sensitive areas, any structures, and the safety of residents. If a soil manufacturing facility is the “substantiated source of objectionable off-site odors,” the LDC requires the operator to “immediately take steps to resolve the odor event or curtail operations until the necessary course of action has been identified and implemented.” Lastly, the LDC deems any modification to the facility Operating Plan to be a major modification subject to Level 4 review. The Plan Amendment essentially reverses the 2016 amendment, restricting the location of soil manufacturing facilities to Institutional land use districts and subjecting them to regulation as a solid waste management facility pursuant to the Siting Ordinance. Challenges to the Plan Amendment Data and Analysis The overarching basis on which Petitioners challenge the Plan Amendment is a lack of supporting data and analysis. Section 163.3177(1)(f) requires all plan amendments to be “based on relevant and appropriate data and an analysis by the local government that may include, but not be limited to, surveys, studies, community goals and vision, and other data available on that particular subject at the time of adoption of the . . . plan amendment.” The County suggests the Plan Amendment is supported by three categories of data. Survey Data First, the County points to the data from a survey undertaken in 2016 during review of the BS Ranch application to treat soil manufacturing facilities as a stand-alone use. In 2016, staff undertook a survey of 11 local government jurisdictions to evaluate the use classifications given to soil manufacturing facilities, land use districts in which they were allowed, the process by which they could be sited (e.g., use by right, conditional, special exception), required setbacks, and whether an operation plan was required. County staff surveyed the two adjoining jurisdictions, Highlands and Hardee Counties, and nine jurisdictions with “similar land use characteristics,” industries, and access to the I-4 corridor. County staff found, “[i]n the 11 counties, the proposed Soil Manufacturing use . . . is mostly considered a solid waste management facility and often limited to the same places that landfills are placed.” Of the 11 counties, six classified the facilities as solid waste management facilities or solid waste composting facilities, and a seventh as a landfill. Staff continued, “[h]owever, nine out of the 11 counties direct private landfills to industrial districts . . . . This supports the applicant’s request to locate these facilities in IND districts.” In 2016, staff analyzed the then-current regulating scheme which categorized soil manufacturing within a broad umbrella of Solid Waste Management facilities. In the staff report on the 2016 plan amendment, staff found that some uses under that umbrella “have manufacturing characteristics such as dust and noise . . . and the manufacturing of soil or soil amendments as described in the Materials Recovery facility.” In the report, staff concluded as follows: The applicant’s use has a significant manufacturing component and has more off site impacts than a typical Institutional Future Land Use designation which typically includes a school or fire station. Furthermore, Institutional Future Land Use designations are located throughout the County where manufacturing impacts would be significant to neighboring property owners. Therefore, this amendment better aligns a manufacturing component with the most appropriate land use which helps protect the environment and quality of life. In the 2016 staff report for the accompanying LDC amendment, staff concluded, “The IND district is the most appropriate location for this proposed use.” Staff made a finding that the 2016 amendment was internally consistent with Policy 2.113-A1 of the Comprehensive Plan governing the uses and activities allowed in the IND district. Based on this data and analysis, staff recommended allowing soil manufacturing facilities as a conditional use in IND districts requiring Level 3 review (Planning Commission approval). The County adopted soil manufacturing facilities as a conditional use in IND districts requiring Level 4 review (County Commission approval). With regard to off-site impacts, staff found as follows: Whenever solid and liquid wastes are brought onto a property, the immediate response is to be concerned about neighboring property values, particularly that of permanent residents. The best form of protection from the impacts associated with wastes (smell primarily) is separation. Staff reviewed the 11 counties surveyed for their setback requirements between residential properties and proposed salvage yards, solid waste facilities, and any uses that process septage waste. The majority of the setback distances exceeded 150 feet. The ones that were less required conditional use approval for which the setback could be established based on location. The County adopted a requirement to site soil manufacturing facilities a minimum of one-half mile from residential uses and require a minimum 300-foot setback from residential districts. Finally, staff addressed the risk of environmental effects. In the staff report, staff stated: As a condition of approval in the amendment, it is recommended that soil manufacturing processes have an operation plan. Such a plan not only assesses risk and provides for contingencies, but also demonstrates the applicant’s competency in running the facility. In the survey staff conducted, four of the 11 jurisdictions required this for their soil manufacturing equivalents. Key to all of the required operation plans are reporting of the type of waste coming in, the process and byproducts, as well as the environmental analysis and waste containment assurances. The County implemented staff’s recommendation by requiring the above-summarized Operating Plan. The County argues that the 2016 survey is relevant and appropriate data to support the Plan Amendment because the survey found that most jurisdictions classified soil manufacturing facilities as a solid waste management facility and often limited those uses to the same land use categories in which landfills are located. Staff did not testify at the final hearing. No evidence was introduced to counter staff’s 2016 findings that Institutional land use districts are located “throughout the County where manufacturing impacts would be significant to neighboring property owners”; that IND designations comprise less than .6 percent of the unincorporated land area; and staff’s opinion that “[t]he IND district is the most appropriate location for” soil manufacturing facilities. In support of the Plan Amendment, which regulates soil manufacturing facilities as solid waste management facilities, the County introduced expert witness opinions that soil manufacturing facilities exhibit many of the same characteristics as solid waste management facilities, and are, in fact, solid waste management facilities. For example, the waste streams accepted at a soil manufacturing facility are the same types of waste processed at a solid waste management facility; the soil manufacturing facility employs the same treatment operations as a solid waste management facility; the two types of facilities pose many of the same environmental, human health, and nuisance risks; and soil manufacturing facilities are subject to Department of Environmental Protection (DEP) permitting as solid waste management facilities. The expert witness testimony was persuasive: soil manufacturing facilities have many of the same characteristics as waste management facilities; thus regulation of those facilities as solid waste management facilities is entirely appropriate. DEP Enforcement Data The County’s conclusion that a soil manufacturing facility is practically identical to a solid waste management facility, and thus should be regulated the same, was based largely in part on DEP permitting and enforcement records the County deems to be data and analysis supporting the Plan Amendment. BS Ranch has obtained several permits from DEP. BS Ranch received a Source Separated Organics Processing Facility Registration in 2010, which was renewed annually through 2013. DEP issued an Environmental Resource Permit (ERP) for construction of certain facilities at the site on February 26, 2016. On March 25, 2016, DEP issued BS Ranch both an Industrial Wastewater Permit (IWP) and an Organic Recycling Facility permit. DEP conducted a wetlands jurisdictional determination on the property and issued a wetland delineation determination on May 3, 2016. As new data supporting the Plan Amendment, the County introduced documentation of DEP enforcement actions taken against BS Ranch’s Organic Recycling Facilities permit. The documents include an October 2014 Warning Letter which culminated in denial of BS Ranch’s Organic Recycling Facility permit, entry of a Consent Order on February 3, 2015, and a Consent Order with Corrective Action Plan on November 25, 2015. The County also introduced a Warning Letter and other correspondence from 2017 relating to alleged violations of BS Ranch’s IWP and ERP. Among the issues addressed in the Warning Letter are off-site odor mitigation and the unauthorized location of septage and biosolids on the property. Code Enforcement Data The last category of data relied upon by the County to support the Plan Amendment is the County’s own code enforcement actions against Petitioners’ operation. The County issued its conditional use approval of Petitioners’ operation, including its Operation Plan, on December 6, 2016. On March 24, 2017, the County issued notices of violation6/ citing WHS Visions with violating various LDC provisions based largely on Petitioners’ operation as “the reported source of objectionable off-site odors.” The notices both require WHS Visions to seek additional approvals of the facility and impose a deadline of April 5, 2017, for WHS Visions to correct the violations. The County also issued a “Cease and Desist Illegal Activity” letter to WHS Visions. The letter refers to “numerous instances of fugitive objectionable odor emissions severely impacting a large number of offsite residents, employees of nearby businesses, and Polk Parkway employees.” In the letter, the County required WHS Visions to “immediately cease and desist” operations, particularly receipt of “putrescible wastes such as vegetative wastes, food scraps, animal by-products, animal manure, wastewater treatment facility effluent, biosolids, septage, and organic sludges” until all levels of approval are completed. Petitioners argue these enforcement documents are not the type of data contemplated in section 163.3177(1)(f), which includes “surveys, studies, community goals and vision, and other data available at the time of adoption” to support the Plan Amendment. Petitioners are correct that the enforcement actions are neither quantitative nor qualitative data regarding the off-site impacts associated with soil manufacturing facilities. The documents are data, however anecdotal, regarding the experience of this one facility and its related permits. They are not categorically excluded from data contemplated by 163.3177(1)(f). Appropriate Reaction to the Data The statute requires the local government’s reaction to the data be “appropriate” and “to the extent necessary indicated by the data.” § 163.3177(1)(f), Fla. Stat. The DEP enforcement and code enforcement data arguably support the County’s decision to subject soil manufacturing facilities to a different regulatory scheme. Expert witnesses testified that the Siting Ordinance was superior to the existing regulations for the spatial location of waste streams on site, as well as the length of time wastes could remain on site.7/ The Siting Ordinance also contains a stop-work order enforcement tool. However, the Plan Amendment is not an appropriate reaction to anecdotal data regarding the off-site odor and environmental impacts of one soil manufacturing facility by allowing those facilities in land use districts which are more dispersed throughout the County. The enforcement actions do not overcome the County’s 2016 analysis and findings that the use “has more off site impacts than a typical Institutional Future Land Use designation,” that “Institutional Future Land Use designations are located throughout the County where manufacturing impacts would be significant to neighboring property owners,” and its conclusion that, for Polk County, “the IND district is the most appropriate location for this proposed use.” None of the expert planning witnesses had evaluated the proximity of Institutionally-designated properties to residential properties in the County or offered opinions regarding the appropriate placement of soil manufacturing facilities within the County. There is no record evidence that the County has fewer Institutional land use designations than it did in 2016, that those locations are less dispersed, or that fewer properties with those designations are located adjacent to residentially- designated properties. Armed with new data documenting fugitive air emissions from the existing facility, as well as potential for human health risks, the County made a decision to site similar facilities in the future in land use districts closer in proximity to residential properties. That decision was not an appropriate reaction to the data. Internal Inconsistency In the Petition for Administrative Hearing, Petitioners alleged the Plan Amendment “has created internal inconsistencies . . . by relying on the same data and analysis” relied upon in support of the 2016 amendments. Petitioners did not identify any specific Comprehensive Plan element, policy, or map with which the Plan Amendment is alleged to be inconsistent. Instead, Petitioners’ expert testified generally that the Plan Amendment created internal inconsistencies because the data on which it was based, namely the 2016 survey of jurisdictions, was likewise the basis for the County’s 2016 amendment establishing IND as the appropriate land use category in which to site soil manufacturing facilities. Petitioners’ evidence was insufficient to support a finding that the Plan Amendment creates an inconsistency with any element, policy, or map of the existing Comprehensive Plan. Meaningful and Predictable Standards Finally, Petitioners challenge the Plan Amendment as contrary to section 163.3177(1), which requires comprehensive plans to “guide future decisions in a consistent manner” and establish “meaningful and predictable standards for the use and development of land and provide meaningful guidelines for the content of more detailed land development regulations.” Petitioners’ expert testimony on this issue was conclusory and the logic somewhat circular. The underlying criticism was, again, the inconsistency of using the same data to reach diametrically-opposed conclusions regarding the appropriate land use district to site soil manufacturing facilities. Further, the expert testified that because the Plan Amendment rendered Petitioners’ property non-conforming (both in its use and applicable development standards), it created “uncertainty . . . for any property owner wanting a reasonable and consistent development plan” for his or her property, and “uncertainty and inconsistency of standards for controlling the distribution of land uses” because it “changes the standards by which uses are classified as Industrial.” On the contrary, the Plan Amendment does not create uncertainty for siting soil manufacturing facilities in the future. Under the Plan Amendment those facilities are clearly limited to Institutional land use categories, subject to the Siting Ordinance and Level 4 development review. While the Plan Amendment renders Petitioners’ property non-conforming, that is not a sufficient basis on which to find that the Plan Amendment renders the entire Comprehensive Plan without “meaningful and predictable standards for the use and development of land” generally. Other Issues Petitioners included in the joint pre-hearing stipulation as disputed issues, whether the Plan Amendment was “vague” and permitted the County “to arbitrarily and capriciously approve or deny plan amendments or development approvals, thereby subjecting landowners to financial burdens and creating internal inconsistencies in the [Comprehensive Plan].” Respondent objected to these issues as outside the scope of this proceeding. The issue in this case is whether the Plan Amendment is “in compliance,” as that term is defined in 163.3184(1)(b). The governing statute does not include “vagueness,” “arbitrariness,” or “capriciousness” as a standard for compliance determinations, and Petitioners cited no authority supporting such a reading of the statute. Petitioners’ arguments on this point appear to recast the data and analysis argument in hopes of getting a second bite at the apple. Assuming, arguendo, the Plan Amendment could be invalidated on the basis of vagueness, arbitrariness, or capriciousness, Petitioners did not introduce any credible evidence to support a finding that the Plan Amendment is either vague, arbitrary, or capricious.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order determining Polk County Comprehensive Plan Amendment 17D-08/DMS 59550, adopted by Ordinance 2017-049 on October 3, 2017, is not “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 14th day of March, 2018, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 14th day of March, 2018.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, and the documentary evidence adduced at the hearing, the following relevant facts are found. During times material herein, Respondent, Sebastian R. Sirven, was a certified general contractor and has been issued license numbers CG C003075 and CG CA03075. At all times material, Respondent was sole qualifier of Dynamic Construction Land Development Corporation. Dynamic Construction Land Development Corporation (herein Dynamic) was the developer of homes in the Gil-Mar Subdivision in Sweetwater, having been listed as such on all pertinent official records, including all building permits obtained for the aforesaid homes. Dynamic commenced construction on Lots 19 through 28, Block 3 in Gil- Mar Subdivision without first obtaining building permits there for. In this regard, construction had progressed to various stages in several of the homes, including the pouring of footings in some and the erection of walls and roofs on others before permits were issued. (TR p. 13, Respondent) It was noted that while application for the building permits for the above-referred homes had been filed by the President of Dynamic, Jorge Gomez, such applications had not been approved by the City of Sweetwater until a date subsequent to the commencement of construction. (See, Exhibit #1, pages 38 and 56.) Tie beams were poured on residences being constructed on Lots 19, 20, 21 and 22 of the Gil-Mar Subdivision without first having been inspected pursuant to the code. (Testimony of Delaney and Respondent) Frank Lubien, building official for Dade County, issued several verbal stop work orders to Dynamic which were briefly obeyed, and then were consistently and repeatedly ignored. On July 28, 1980, written stop orders were issued which again were disregarded by employees and representatives of Dynamic. (Testimony of Lubien and Delaney; Exhibit #1, pages 9, 45-50) Respondent, while not being directly in control of construction until after Dade County Building Department issued stop work orders for Dynamic at the subject subdivision, frequently visited the construction site subsequent to the issuance of the stop work orders. As testified to by Inspector Lubien, inspections of the subject construction activities by Dynamic were made and appeared to have been in conformity with acceptable contracting practices. In this regard, evidence reveals that the code violations as to the method of permissible construction alleged in Count VI of the Administrative Complaint filed herein, were timely corrected. Respondent avers that he was not at fault in the constructing activities here complained of inasmuch as he was not on the scene until it came to his attention that stop orders had been issued for the construction project. In support thereof, Respondent refers to the fact that he was working on another construction project in Volusia County, Florida and was unaware of the alleged violations here complained of. Finally, Respondent contends that once he came to the construction site, no further violations occurred by Dynamic.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Petitioner find Respondent guilty of Counts I through V and be ordered to pay an administrative fine of $100 per count; That the Respondent's licenses to practice contracting (License Nos. CG C003075 and CG CA03075) be placed on probation for a period of one (1) year. RECOMMENDED this 15th day of April, 1983, in Tallahassee, Florida. JAMES E. BRADWELL, 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 15th day of April, 1983.
