The Issue The issues are: (1) Whether Walter Vernon Creech (Petitioner) is entitled to purchase past service in the Florida Retirement System (FRS) for a period of service with the City of Live Oak (City), during which time he became vested in the City's local retirement plan and elected to retain those vested benefits prior to commencement of employment with the Suwannee County Sheriff's Department, and (2) whether Petitioner is entitled to variance and waiver of regulations which prohibit purchase of prior service for FRS inclusion when the member was vested at the time in a local retirement system.
Findings Of Fact Petitioner was employed as a police officer with the City of Live Oak, Florida, and is currently a deputy sheriff with the Suwannee County Sheriff's Department. On March 1, 1990, the Suwannee County Sheriff's Department assumed the functions of the Live Oak Police Department and the Police Department was disbanded. Petitioner and other members of the Police Department became employees of the sheriff's office. Petitioner has been continuously employed by the sheriff's office since 1990 and presently is the patrol commander for the Sheriff. The ordinance creating the City of Live Oak Retirement System was repealed on October 12, 1990. The pension plan was terminated. An annuity was purchased by the City of Live Oak following termination of the pension plan from the Franklin Life Insurance Company for Petitioner, a vested member of the former pension plan. The annuity entitled Petitioner to future benefits. Non-vested members of the police force were refunded their previous contributions to City of Live Oak retirement plan. Several months prior to the retirement annuity purchase and the repeal of the City of Live Oak Retirement System, Petitioner had elected, on April 9, 1990, by ballot provided by Respondent to retain his vested benefits with the annuity provided by the City and "begin membership in the [FRS] effective March 1, 1990." The ballot choice selected by Petitioner stated specifically that "I understand I may not purchase past service in the FRS for service under the local retirement system which may be used to obtain a benefit." Petitioner's position is that he was not aware on April 9, 1990, that he could select the second ballot choice that would have permitted him to withdraw from City of Live Oak Retirement system and join the FRS at that time. He represents that he was told specifically by the sheriff at the time that he could not elect this option. The sheriff is now deceased. At the time he joined the sheriff's office, Petitioner had not vested in the FRS, although he had prior service as a state employee. No evidence establishes on-site visitation by Respondent employees upon transfer of police functions to the County Sheriff's Office, or direct advice by Respondent employees to Petitioner or any other transferring employees. A letter, however, dated April 18, 1990, from Loraine Voss, a former Bureau Chief with Respondent, documents that there were communications between Respondent employees and the now-deceased sheriff. In pertinent part, the letter advised that employees were eligible to purchase past service credit in FRS provided such past experience would not be used to provide a benefit in another retirement scenario. Absent the letter authored by Voss, Respondent provided no documented direction regarding retirement options to Petitioner at the time of his election to retain his service in the city's retirement annuity. The action of local authorities (i.e., the mayor of the City of Live Oak and the county sheriff) in advising the transferees on retirement matters was not taken at the behest of or on behalf of Respondent. As established by testimony of the now-retired police chief, Jack Garret, members of the police force were aware at the time that their contributions could be withdrawn from the City's retirement fund even though a member might be vested. Before the police force of the City of Live Oak was disbanded, Marvin Clayton, a representative of the Florida Department of Insurance, addressed the members of the force. Clayton recalled that at the February 9, 1990, meeting, he informed the officers of the force that persons who were vested in the City's plan could have their contributions refunded and thereby become eligible to buy past service with the FRS. Local police and fireman retirement funds were regulated by the Department of Insurance at that time. In 1998, Petitioner changed his mind. He contacted Respondent's representative in order to purchase additional retirement credit in FRS for his time with the City of Live Oak Police Department. By letters dated June 15, 1998, and again on October 15, 1998, he was informed by Respondent's representatives that he was not eligible to purchase such service because of provisions of Sections 112.65(2) and 121.081(1)(h), Florida Statutes. As established at the final hearing, Petitioner would have to assign any benefits of his annuity to FRS and pay required FRS contributions plus interest since 1990 in order to acquire FRS credit today for his time with the City of Live Oak Police Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter an order denying (1) the Petition for Waiver and Variance and (2) also denying the request to be permitted to purchase for creditable FRS service the time spent by Petitioner in the employment of the City of Live Oak Police Department. DONE AND ENTERED this 23rd day of August, 2000, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 23rd day of August, 2000. COPIES FURNISHED: Robert B. Button, Esquire Division of Retirement 2639 North Monroe Street Tallahassee, Florida 32399-1560 Stanley M. Danek, Esquire 2114 Great Oak Drive Tallahassee, Florida 32303 Ron Poppell, Interim Director Division of Retirement Cedars Executive Center Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Emily Moore, Chief Legal Counsel Division of Retirement Cedars Executive Center Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560
The Issue Whether Respondent Banta is guilty of dishonest dealing, culpable negligence, or breach of trust in a business transaction, in violation of Section 475.25(1)(b), Florida Statutes, (1993). Whether Respondent is guilty of operating as a real estate broker without a valid and current license, in violation of Section 475.25(1)(e), Florida Statutes (1993). Whether Respondent is guilty of failing to provide written agency disclosure to a party in a real property transaction, in violation of Section 475.25(1)(q) and (1)(e), Florida Statutes (1993) and Rule 61J2-10.033, Florida Administrative Code.
Findings Of Fact Petitioner is a state licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to the laws of the State of Florida. Respondent is now and was at all times material hereto a licensed real estate broker in the State of Florida having been issued license number 0165881. As of March 31, 1992, the Respondent failed to renew his real estate broker’s license, for the 2-year period of April 1, 1992 to March 31, 1994. Renewal would have consisted of completing the required continuing education, paying the required fee, and sending the required form to the Department of Business and Professional Regulation. The Respondent’s license was delinquent after March 31, 1992. As of March 31, 1994, the Respondent had not renewed his broker’s license and his license remained delinquent. On May 9, 1994, the Respondent renewed his license, in order to make a claim for a commission. As of March 31, 1996, the Respondent failed to renew his license again. His license was delinquent after March 31, 1996, and was delinquent as of the hearing date. The Respondent operated as a real estate broker during the period of approximately February 1993 through May 1994, specifically including a period when his license was delinquent as “involuntary inactive.” Sam Morrow is a licensed real estate broker and is a real estate developer and home builder. Effective February 10, 1993, Respondent entered into an Independent Contractor Agreement with Florida’s Preferred Homes, Inc. (FPH), a company in which Morrow is a principal. Respondent was originally retained on a fixed salary basis for an indefinite term to assist in finishing a number of low-income housing tax credit apartment applications for tax credits. At the request of Morrow, Respondent assumed other duties. Respondent represented FPH, and other business entities of which Morrow was the principal, in other business dealing from February 10, 1993 through May 24, 1994, when Respondent was terminated. The Respondent received a fixed salary throughout the period of his association with Morrow with the promise of additional undefined compensation in the future. For the purposes of this matter, Respondent was an employee of FPH and was supervised by Morrow. Respondent’s association with Morrow was not an exclusive employment agreement. During this same period in February 1993, Morrow became engaged in a transaction involving affordable housing. The transaction involved the purchase of land, by a purchasing entity, the Community Housing Trust, Inc., a 501(c)(3) non-profit corporation, from the seller, Rouse Road Corporation. After this purchase the property was to be transferred to another corporation, of which Morrow was to be the principal along with another business partner, and affordable housing units would be constructed upon the land and then sold to the public. The structure of the purchasing and developing entities was complex, involving various public and private entities, including Orange County. Morrow was a principal and the overall coordinator of the entire project which came to be known as the Oak Grove Circle project. There was no specific agreement for the Respondent to receive any particular additional compensation for the Respondent’s services in the affordable housing project. Respondent was familiar with the property that the Rouse Road Corporation had for sale and brought it to the attention of Community Housing Trust, as a prospective purchaser. This particular property was suitable for purchase and development as an affordable housing project. Respondent facilitated the purchase and prepared the contract for sale and purchase which was executed by the parties: Community Housing Trust, as purchaser, and Rouse Road Corporation, as seller. The contract was executed on March 5, 1993 for the property later known as the Oak Grove Circle property. Respondent represented neither the purchaser nor the seller in the transaction. He considered himself a transactional broker. The contract indicates on its face that Respondent, J. Scott Banta, is the real estate broker in the transaction. The contract called for the payment of a 10% commission to the Respondent. Respondent was not at any time prior to or during the purchase and sale transaction, either an agent, employee, independent contractor or representative of the seller, Rouse Road Corporation. Respondent was not at any time prior to or during the purchase and sale transaction, either an agent, employee, independent contractor or representative of the purchaser, Community Housing Trust, Inc. In September 1993, Morrow formed a Florida corporation known as FPH Venture 2, Inc. He was the sole incorporator. During this period in the fall of 1993, certain negotiations took place regarding the structure and goals of FPH Venture 2, Inc. The principals of the firm were to be Sam Morrow and Long Farms North. All of the prospective partners agreed that because of the need for cash equity, the real estate commission on the Oak Grove Circle property would remain in the FPH Venture 2 proposed project. For this consideration Respondent expected to be a principal also. The goals for the FPH Venture 2 project were set out in some detail in a memorandum developed by the prospective venturers and typed by Respondent. Respondent was included as one of the principals. The goals memorandum provides that the 10% commission payable to Respondent on the Oak Grove Circle purchase and sale would be assigned by Respondent to FPH Venture 2 “for cash flow and total profit benefits.” Respondent’s understanding of the proposed FPH Venture 2 project was that he was to receive a one-third ownership participation in FPH Venture 2, Inc., which was to have included the proposed Oak Grove Circle project and another proposed project in Lakeland, Florida, in exchange for the prospective commission. The terms of Respondent’s proposed participation in FPH Venture 2 were never reduced to any form of written agreement. Nor was Respondent ever made a principal in the company or issued any stock, or otherwise given anything to evidence his interest in the proposed venture. The closing of the purchase and sale of the property, later known as the Oak Grove Circle property, as anticipated by the contract for sale and purchase, was consummated on May 19, 1994. James L. Bishop, vice-president of Community Housing Trust, Inc., executed the settlement statement which provided for payment of $28,000 real estate commission to J. Scott Banta from the seller’s proceeds of closing. The commission check was delivered to Respondent at the closing without objection. On the day after closing of the Oak Grove Circle purchase and sale, May 20, 1994, Respondent gave Morrow a memorandum suggesting a procedure for payment of the $28,000 commission into FPH Venture 2, Inc. On May 24, 1994, the matter culminated in a conversation between Respondent Banta and Morrow. Respondent requested Morrow reduce their agreement regarding his proposed participation in FPH Venture 2, Inc., to writing. Morrow refused to do so, and at 4:45 p.m. on the same day, terminated Respondent’s employment, stopped payment on Respondent’s consulting fee check for the prior week and changed the locks on his office with Respondent’s personal property still inside. Respondent has retained the commission from the sale of the Oak Grove Circle property. Morrow’s account of this business relationship with Respondent and the agreed disposition of the proceeds of the commission is not credible.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Respondent be found guilty of violating Sections 475.25(1)(e) and (1)(q) and be found not guilty of violating Section 475.25(1)(b), Florida Statutes (1993). It is further recommended that Respondent be fined the sum of $1,000 and that his license be suspended for a period of three months, subject to reinstatement upon such reasonable conditions as the Florida Real Estate Commission shall require. RECOMMENDED this 8th day of January, 1997, at Tallahassee, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of January, 1997. COPIES FURNISHED: Steven D. Fieldman, Esquire Department of Business and Professional Regulation 400 West Robinson Street Hurston Building - North Tower, Suite N308 Orlando, Florida 32801 Allen C.D. Scott, II, Esquire Scott & Scott, P.A. 99 Orange Street St. Augustine, Florida 32084 Lynda L. Goodgame, Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Henry M. Solares Division Director Department of Business and Professional Regulation 400 West Robinson Street Hurston Building - North Tower, Suite N308 Orlando, Florida 32801
The Issue Whether Certificate of Need (CON) Application Number 9478 filed by Hernando HMA, Inc. (HMA or Hernando HMA), d/b/a Brooksville Regional Hospital (Brooksville Regional) for approval to replace and relocate its existing 91-bed hospital in Hernando County, Agency for Health Care Administration (AHCA) District 3, Subdistrict 6, meets the applicable criteria for approval.
Findings Of Fact The Agency for Health Care Administration (AHCA) is the state agency authorized to administer the certificate of need (CON) law in Florida. AHCA is the designated state health planning agency. See Subsections 408.034(1) and 408.035(1), Florida Statutes. AHCA Health Services Planning District 3 is composed of Hamilton, Suwannee, Lafayette, Dixie, Columbia, Gilchrist, Levy, Union, Bradford, Putnam, Alachua, Marion, Citrus, Hernando, Sumter, and Lake Counties. See Subsection 408.032(5), Florida Statutes. Within District 3, Hernando County is designated acute care subdistrict 6. The three acute care hospitals in the County are Hernando HMA, Inc., d/b/a Brooksville Regional Hospital (Brooksville Regional) which was previously operated under the name of Lykes Memorial Hospital, Spring Hill Regional Hospital (Spring Hill), and HCA Health Services of Florida, Inc., d/b/a Oak Hill Hospital (Oak Hill). HMA Hernando HMA is the applicant for CON Number 9478 to replace and relocate Brooksville Regional, an existing 91-bed hospital in Brooksville, Florida. Constructed over a 40-year time period to a maximum size of 166 beds, Brooksville Regional is currently licensed to operate 91 beds. In the early 1990s, 75 beds were transferred from Brooksville Regional to establish Spring Hill. Spring Hill is located in southwest Hernando County near the Hernando/Pasco County line. Health Management Associates, Inc., the parent of Hernando HMA, is a publicly traded for profit corporation, with headquarters in Naples, Florida. Hernando HMA leases and operates, under a single state license, both Brooksville Regional and Spring Hill. Both are owned by Hernando County. In 1998, the County entered into a 30-year lease agreement for HMA to assume the management of the hospitals which were then bankrupt. HMA acquires primarily non-urban area hospitals in need of capital and/or new management strategies to reverse patient out- migration. The corporation owns or operates 43 hospitals in 14 states, including 13 in Florida. HMA has rebuilt and replaced 8 of the 43 hospitals it has acquired since its establishment in 1977. In addition to Brooksville Regional and Spring Hill, in Hernando County, HMA also operates Pasco Regional Medical Center (Pasco Regional), in adjacent northeast Pasco County, in AHCA District 5. See Subsection 408.032(5), Florida Statutes. Pasco Regional, a 120-bed hospital located on U.S. Highway 301, in Dade City, Florida, serves residents of eastern Hernando and Pasco Counties who reside along the four-lane corridor, in the communities of San Antonio, St. Leo, Trilby, Lacoochee, Ridge Manor, Dade City, Zephyrhills, and Wesley Chapel. Because of the emergency medical transport policy of taking patients to the nearest hospital, over 85% of those transported from eastern Hernando County are taken to Pasco County hospital emergency rooms. Hernando HMA's 1998 lease agreement with Hernando County required HMA to pay the debts necessary for the hospitals to emerge from bankruptcy, to provide Medicaid and charity care for Hernando County residents, and to provide $25 million in capital improvements to the two hospitals. To date, $15 million has been spent, $7 million for improvements to Brooksville Regional and $8 million for Spring Hill. Under the terms of the lease, the proposal to relocate the hospital required County approval. At a meeting held on September 25, 2001, Hernando County Commissioners vote unanimously to allow the filing of CON Number 9478. Hernando HMA proposes to replace and relocate Brooksville Regional to a 95-acre site on which it has a purchase option for $25,000 an acre. The total estimated project cost is $52 million, $33 million of that for construction. The parcel is located at the intersection of Lykes Dublin Road and a four-lane stretch of State Road 50. The proposed new site is 2.7 miles west of the existing site and 1.8 miles west of Cobb Road where the southern Brooksville City bypass of State Road 50 ends. HMA has agreed to donate the hospital, and approximately 25 acres of underlying and surrounding land to Hernando County. HMA will continue, under the terms of the lease, to manage the hospital, and also plans to build medical offices on the remainder of the parcel of land. Brooksville Regional is currently located, on approximately 11 acres on Ponce De Leon Boulevard in downtown Brooksville, a mile east of the State Road 50 bypass and one- tenth of a mile from U.S. Highway 41 which is being increased from four to six lanes. The City of Brooksville opposes the relocation of the hospital to the new site which is 1.5 miles beyond the city limits. Oak Hill Oak Hill is a 204-bed hospital, located just off State Road 50, in western Hernando County. Oak Hill was constructed 18 years ago on a 40-acre campus which includes two medical office buildings, related structures for staff offices and plant operations, and a cancer institute. Oak Hill is approximately five miles west of Brooksville's proposed new site, and eight miles west of its existing location. Oak Hill, like many Florida hospitals, experiences seasonal variations in occupancy. Typically, utilization reaches up to 90% in the first quarter of the year and goes down to 60% in the fall. Occupancy rates have been growing approximately 4% a year from 1997 to 2000, but from 2000 to 2001, patient days at Oak Hill increased 8%. Oak Hill has also recently received CON approval to establish an open heart surgery program, which is expected to reverse the out-migration of open heart surgery and other cardiac patients, primarily to another HCA facility, Bayonet Point in Pasco County. Bayonet Point is 17 miles or a 30-minute drive from Oak Hill. With the anticipated reversal of some out- migration, and a 2% annual increase in patient days, Oak Hill will have over 100% occupancy in the first quarter of 2005, going down to 74% occupancy in the fall of that year. Oak Hill opposes the proposal to relocate Brooksville Regional. Oak Hill asserts (1) that the proposed new location is less desirable than alternative sites suggested by the City of Brooksville; (2) that Brooksville Regional failed to demonstrate that replacement rather than renovation of the existing building is necessary; (3) that the proposed site will decrease access for residents in eastern Hernando County; and (4) that the replacement and relocation will adversely impact Oak Hill. The published fixed need pool for the subdistrict indicated no need for additional acute care beds. Brooksville Regional's proposal to relocate, but not add beds, is not inconsistent with the fixed need pool. CON review is required and is not expedited in this case because Brooksville Regional is proposing to relocate to a different site which is more than one mile from its current site. Review criteria The parties, in a prehearing stipulation, agreed that Brooksville Regional and Oak Hill have good records of providing quality care and can be expected to continue, as required by Subsections 408.035(2) and (3), Florida Statutes (2001). The parties agreed that Brooksville Regional's staffing projections are reasonable and sufficient based on its projected utilization, but Oak Hill disputed the accuracy of the utilization projections. The parties agreed that the design and schematic drawings for the new hospital are reasonable. The parties acknowledged that there will be an adverse impact on Oak Hill as a result of a loss of some employees, physicians, and patients, the magnitude of which has to be considered under Subsection 408.035(9), Florida Statutes (2001). The parties stipulated that Brooksville Regional has sufficient resources, including personnel and funds, to accomplish the project and operate the facility, as required by Subsection 408.035(6), Florida Statutes (2001). The parties agreed that Subsection 408.035(5), related to the needs of research and educational facilities; and Subsection 408.035(12), Florida Statutes (2001), related to nursing home beds, are not at issue in this proceeding. The parties stipulated that, at issue, are the criteria in Subsections 408.035(1), (2), (4), (7), (8), (9), (10), (11); and Subsections 408.037(1)(b)3. and (c), Florida Statutes (2001); and Florida Administrative Code Rules 59C-1.008(3) and (5), 59C- 1.030(2)(a) through (f), and 59C-1.038(6)(a). District health plan District 3 health plan criteria related to the establishment or expansion of services, the establishment of services in a community with no current service, the addition of beds, and the establishment of new facilities are not applicable to this project. Oak Hill's health planning consultant noted, however, that criteria related to bed transfers could also relate to a proposal to relocate an entire hospital. Those considerations include whether Medicare and private pay markets of disproportionate share charity and Medicaid hospitals will be adversely affected, whether access generally, and access particularly for Medicaid and indigent patients, or other traditionally underserved groups, will be improved. The criteria also overlap those in other applicable statutes and rules. See also Subsections 408.035(2), (7), and (11), Florida Statutes (2001); Rule 59C-1.038(6)(a) and Rule 59C-1.030(2)(a) through (f), Florida Administrative Code. Other relevant considerations include whether the transfer is needed and is more cost-efficient than renovation or expansion of the existing facility, and whether the proposal is financially feasible. See also Subsections 408.035(1), (4), (8), (9), and (10), Florida Statutes (2001). Medicaid and indigent care Hernando HMA, at Brooksville Regional and Spring Hill combined, provided approximately 71% of total charity care in the County in 2000, and 79% in 2001. Brooksville Regional is a disproportionate share provider of Medicaid, having provided approximately 8% of its total care to Medicaid patients. Brooksville Regional separately provided more Medicare, but half as much Medicaid as Spring Hill which, unlike Brooksville Regional, has obstetrics and neonatal intensive care programs which typically provide services to a large number of economically disadvantaged mothers and newborns. Oak Hill provided the remaining 20 to 30 percent of the charity care in Hernando County. Approximately 6% of Oak Hill's patients are in the Medicaid payor category, but Oak Hill is not a disproportionate share provider. Oak Hill provided almost 2% of its total revenues for charity care in 2000, and its Medicaid care increased from approximately $7.4 million in 2000, to $12.3 million in 2001. Although Hernando HMA did not offer a CON condition related to a specific level of Medicaid and charity care, its historic levels and Hernando County's continued ownership of the hospital provide the assurances required by the criteria. Geographical access Hernando County had a population of 130,810 people in 2,000, which increased to 136,552 in February of 2002, and is projected to be 159,400 people in 2010. There are 7,227 residents of the City of Brooksville, and 129,313 in unincorporated areas of the County. The population is more dense, more growth is projected, and more development is allowed under the comprehensive plan, in the central and western portions of the County. The population in the zip codes east of Interstate 75 was, in 2001, 4,301 of the total of 132,590. By 2010, the eastern area is projected to have 1,295 more people as compared to a projected increase of 19,401 people in areas west of Highway The projected areas of most intense population growth are in western Hernando County, clustered around U.S. Highway 19, to the north of State Road 50, and Highway 41, to the south of State Road 50. These are also areas with a high concentration of the population over 65 in a "retirement belt." East of Interstate 75, the population of Hernando County is more sparsely settled, younger, and has a lower mortality rate. More eastern area residents who need inpatient acute care, on an elective or emergency basis use the closest hospitals, Pasco Regional in Dade City and East Pasco Community Hospital (East Pasco) in Zephyrhills. In recent years, the trend towards utilization of Pasco county hospitals by eastern Hernando County residents has increased. Residents in the area also use hospitals in Lake County. The Hernando County Board of County Commissioners hired Tribrook Healthcare Consultants to report on the relocation proposal, including consideration of access for residents of eastern Hernando County. Residents of the three eastern zip codes accounted for 83 discharges from Hernando County hospitals from the second quarter of 1999 through the first quarter of 2000. Of those, 43% or 36 discharges were from Brooksville Regional, 18% or 15 from Spring Hill, and 39% or 32 from Oak Hill. For the year ending June 30, 2001, fifty-three discharges from Brooksville Regional and 28 from Oak Hill originated in the three eastern zip codes. From January through August 2001, the Hernando County Fire and Rescue service responded to 259 emergency health care calls from the eastern area, which represents approximately 5% of its total volume of 4,863 transports. Of the 259 transports, 109 people were taken to the emergency room (ER) at Brooksville Regional, and an equal number to the Pasco Regional ER, 14 to the East Pasco ER, and eight to the Oak Hill ER. Level one trauma patients, such as those with severe injuries from Interstate car accidents, are air lifted to trauma centers at Orlando hospitals, Tampa General Hospital or Bayfront Medical Center in St. Petersburg. If Brooksville Regional is relocated to the proposed new site, the increase in average peak travel times from various locations in the County will range from four to six minutes, for total average travel times ranging between 10 and 21 minutes. For the majority of the County residents, the average peak travel times will decrease, saving from one to six minutes, since the new location is closer to more densely populated residential areas. The acute care travel time goal is to have most residents able to reach the service within 30 minutes. The standard is already met and will, with Brooksville Regional's proposed relocation, continue to be met in District 3, Subdistrict 6. The residents of the County in the eastern areas will not be adversely affected by the relocation because relatively few use Brooksville Regional, and because, for many residents along the U.S. 301 corridor, Pasco Regional is more accessible. In addition, in return for approval of the Brooksville Regional relocation proposal, Hernando County required HMA to purchase an ambulance with advanced life support equipment to station in the eastern area near Interstate 75. There is credible evidence that, in some cases, the time it takes for paramedics to reach an emergency patient and begin treatment can be more important in saving lives than the actual travel time to a hospital emergency room. The conditions imposed by the County also required a $20,000 contribution from HMA for an indigent patient clinic and recruitment of a physician to staff a clinic in the eastern area. Relocation and replacement vs. renovation; alternative sites The proposed relocation site was criticized as inappropriate geologically. The property includes wetlands. Agricultural land across the street drains through a ditch under the road into a pond on one corner of the property. The elevation of the land at State Road 50 is 90 feet above sea level, increases to 95 feet but then slopes down to 65 feet at Wiscon Road. There are sinkhole-like depressions towards the back of the property. To meet state disaster preparedness standards, the elevation of a hospital must be equal to or above the major thoroughfare leading to the entrance. Brooksville Regional can be constructed on the proposed site with its main entrance facing and above the elevation of State Road 50. Other entrances can also be elevated using fill dirt. In general, the site meets the County land use criteria and has sufficient uplands. It also meets the criteria developed by HMA and its land planning consultant for (1) a minimum of 40 acres, (2) the potential for traffic signalization, (3) proximity to population growth centers, and (4) good visibility from passing traffic. Currently, Brooksville Regional is located on 11 acres in two separate three-story towers connected through a central building on the ground floor. The building is constructed from 10 to 15 feet below the street it faces, Ponce De Leon Boulevard. The entrance floods in heavy rains and lacks good visibility from street traffic. During the last four years, improvements at Brooksville Regional have included a new roof, lobby renovations, electrical upgrades in the operating room, the installation of new air handlers, and substantial investments in new equipment. Despite the improvements, the physical plant cannot be renovated to meet current codes and the layout of the building inevitably results in inefficiencies. Oak Hill noted, however, that the building is not technically violating any code but is "grandfathered." In addition, none of deficiencies affect Brooksville Regional's ability to provide excellent care, as measured by it score of 97 out of 100 on the most recent survey by the Joint Commission on Accreditation of Health Care Organizations. Patient corridors, in one tower, are less than eight feet wide as required by the National Life Safety Code. The building is not in compliance with the Americans With Disabilities Act (ADA). The parking area exceeds the level for a ramp to the building. Electrical, heating, ventilation and air conditioning (HVAC) systems require major upgrades to meet codes. Improvements are limited by the inadequately sized ceiling spaces for ductwork and pipes. The HVAC inefficiencies are estimated to cost Brooksville Regional from $400,000 to $500,000 a year. The major functional inefficiencies at Brooksville Regional result from the configuration in two separate towers. Staff must cross the central core and use one of two elevators in each tower to provide care, deliver food, remove trash and soiled linens, and transport patients. The elevators and corridors are shared with visitors. The separate towers divide patients into smaller, inefficient groupings which require more staff. One witness cited a cost estimate of $250,000 for a pedestrian walkway to connect the second and third floors of the two towers. Oak Hill criticized the absence of any other cost estimates for renovation of the existing building. If any major renovations are undertaken, all "grandfathered" code exemptions will be lost. The hospital would have to be closed and rebuilt. Inadequate space compromises patient privacy in various areas, including the emergency room and surgical suite. Spaces are inadequate for modern equipment in appropriate locations, so, for example, a CT scan, is located outside the radiology department, and 140 feet from the emergency room Brooksville Regional proposes to increase the size of the radiology department from approximately 6,400 square feet in the existing building to 16,000 square feet in the new building. Operating rooms currently range from 245 to 345 square feet as compared to code requirements of 450 to 600 square feet, with the larger rooms necessary to accommodate surgeries, such as orthopedics, which require larger equipment. The total size of surgical department is approximately 6,200 square feet while the guidelines suggest it should be 10,800 square feet. The new plan includes 6,300 square feet for the pharmacy and laboratory combined, which now occupy approximately 3,000 square feet. Overall, the new building will be almost 182,000 square feet, 65,000 square feet larger than the existing facility. The new plan also offers all private patient rooms, except one semi- private room, consistent with the current industry trend which is intended to allow family members to spend the night with patients. The design is taken from a prototype used by HMA to construct five other replacement hospitals in the last five years. Therefore, HMA is certain that the estimated construction cost is reasonably accurate and that the design works well for patients, visitors, and staff. Considering the deficiencies in the current structure which could only be corrected by closing the hospital completely and rebuilding it on site, taking five to six times as long as construction of a new facility, renovation of the existing structure is not a viable alternative. The City of Brooksville suggested other sites it favored over that selected by Brooksville Regional. The first parcel examined was 32 acres, not HMA's required minimum of 40 acres for the prototype. It would require assembling separate parcels and closing streets. The second, with 49 acres, is located on a two-lane city street and has a large pond in the center of the tract. A third, with 55 acres, would have to be shared with a post office carrier facility and lacks good visibility because of its location on a curve. The fourth site has 38 acres, but is too narrow for the prototype and is well below the elevation of State Road 50. The fifth tract is south of the fourth. It has 46 acres which, if acquired with the 38 acres to the north would be more than adequately sized, but is even lower than the parcel to the north and has a lake in the center. A sixth site with 66 acres is too long and narrow for the prototype. Finally, the City suggested assembling more parcels surrounding the existing building, which would require the acquisition of 38 to 40 lots, but that tract would be long and narrow. As previously noted, the hospital would have to close for reconstruction for a substantially longer period of time than required for new construction. The possibility that the City would donate a portion of an adjacent park was discussed but it was never formally offered. It is also currently the location of fire and police stations. That acquisition also would have required the condemnation of roads. Costs, financial feasibility, adverse impact and cost-effectiveness competition The cost for the new facility is estimated at $52 million. The parties stipulated that HMA can fund and operate the project. And, though previously bankrupt, Brooksville Regional had pre-tax profit of $5 million in 2001. The financial feasibility of the project was questioned. Oak Hill's expert criticized an underlying assumption that Medicare reimbursement would increase 6.4% from the first to second year. Taken in isolation, the increase looks unrealistic, but viewed over the entire time period from the base year to the second year of operation, the average annual rate of inflation is 2.5%, and is reasonable, as is the resulting projected Medicare revenues. Brooksville Regional's financial schedules included a management fee of 3% of gross revenues, although HMA has recently charged up to 4% to individual hospitals. HMA can assess a management fee of 3% rather than 4%, which one of its officers described as conservative considering that its actual corporate overhead is less than one percent of revenues. The assessment is based on tax considerations more than on actual costs. In addition to the management fee, Brooksville Regional's start-up costs, equipment costs, and depreciation costs were questioned as too low. Even when deducted from projected revenues, however, the additional expenses do not render the project financially infeasible. The proposed project is financially feasible considering either the CON-projected incremental increases in profit, $437 thousand in the first year and $868 thousand in the second year, or the revised estimates in HMA/Brooksville Regional's Exhibit 56. In Exhibit 56, the projected increase in profits, after relocation, are $860 thousand in the first year and $1.3 million in the second year. See Conclusion of Law 79. Brooksville Regional currently operates at a competitive disadvantage. In 1999, Brooksville Regional had 3,758 discharges, which increased to 3,794 in 2000. By contrast, Oak Hill increased its discharges from 10,575 in 1999, to 11,376 in 2000, and up to 12,743 in 2001. Excluding approximately 400 newborns, the increase in discharges is not entirely attributable to population growth. It also reflects Oak Hill's increase in market share. Overall occupancy rates were 80% at Spring Hill, 70% at Oak Hill, and 62% at Brooksville Regional in 2001. If the new hospital is built, Brooksville Regional projected it would have 405 more discharges in the first year of the project and 413 more in the second year, for an increase in revenue of $1.3 million in the second year. Oak Hill suggested the incremental increase in the number of patients was insufficient to justify a $52 million expenditure, yielding only $1.3 million or 2.5% return on investment, while HMA returns average approximately 15%. Oak Hill also maintained that Brooksville Regional underestimated the projected increase in discharges which would result from the proposed relocation and replacement. Oak Hill's expert estimated that Brooksville Regional would have 770 discharges in the first year and 1,146 in the second year of operations. If Brooksville Regional has more discharges, its revenues and profits will also be higher. Of those 1,146 year two discharges, Oak Hill estimated that it would have captured 823 admissions in the absence of a new Brooksville Regional hospital. Oak Hill's expert planner also asserted that the loss of patients would make Oak Hill less efficient and less cost- effective, and result in higher charges at Brooksville Regional. In addition to opening a new open heart surgery program, Oak Hill is undergoing $10 million in emergency room renovations. With these, Oak Hill is projected to reach between 82 and 83% average occupancy, in 2004 and 2005, before Brooksville Regional could become fully operational. The optimum is around 75%. Oak Hill argued that it could absorb the projected growth through the CON-exempt addition of 20 beds which would return occupancy to reasonable levels between 75 and 76%. The costs incurred for the addition, however, will be unnecessary if Brooksville Regional is more competitive and utilized more efficiently. As estimated by Oak Hill's expert, the proposed relocation of Brooksville Regional will leave Oak Hill with 12,243 discharges in 2005, and 12,265 discharges in 2006. Assuming the estimate is correct, Oak Hill will be at approximately the same volume as it currently experiences. There is no suggestion that its operations are not cost-effective or efficient at between 11,000 and 13,000 discharges. The pre-tax income decrement could be as high as $1.93 million. In the context of the Oak Hill budget of $17.1 million for 2002, and considering its competitive advantages, the adverse impact to Oak Hill is outweighed by the need for improvements at Brooksville Regional. Oak Hill's expert estimated that Brooksville Regional's projected volume was understated and that additional admissions should be expected based on more recent trends in utilization. If Brooksville Regional reached that volume, then revenues at the new facility would increase an additional $1.8 million, to a pretax total exceeding $6 million. The project is financially feasible, therefore, and the costs are justified to enhance the efficiency and competitiveness of Brooksville Regional. Oak Hill noted that the impact of the development of the entire 95-acre site is likely to be greater than that of the 25-acre hospital tract. Whether the same owner held the entire tract or not, there is no reason to expect that land surrounding a hospital would not become medical office buildings and related health care services. Oak Hill will face competition from a 60-bed Healthsouth comprehensive medical rehabilitation hospital currently under development approximately two miles away on State Road 50 in the direction of the Brooksville Regional site. The impact of the rehabilitation hospital, a reduction in acute care lengths of stay, will apparently be felt by all acute care hospitals throughout the region not just Oak Hill. There is no evidence to indicate that the combined impact of Healthsouth and Brooksville Regional on Oak Hill justifies the denial of the proposed relocation of Brooksville Regional. HMA's letter of intent and financial statements HMA's letter of intent indicated that the project costs would not exceed $40 million, but the CON project cost is $52 million. Since letters of intent are not required to include project costs, AHCA has taken the position that the error in the letter of intent is insignificant as long as the project was identified with sufficient specificity. AHCA received the audited financial statements for Hernando H.M.A., the applicant, but not separate audited financial statements for Brooksville Regional. Oak Hill's expert suggested that AHCA received inadequate information to determine the financial feasibility of the project. Hernando HMA's audited financial statement and Schedule 2, with its other financial commitments, demonstrated its ability to provide the funds. The separate financial schedules related to Brooksville Regional's operations, especially Schedules 7 and 8 provided the information necessary for AHCA to determine if the project is financially feasible. Hernando HMA has demonstrated that it met the letter of intent and application content requirements, and that, on balance, it meets the criteria to relocate and replace Brooksville Regional as proposed in CON Application No. 9478.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order approving CON Application No. 9478 for Hernando HMA to relocate and replace Brooksville Regional as proposed in the application. DONE AND ENTERED this 24th day of December, 2002, in Tallahassee, Leon County, Florida. ELEANOR M. HUNTER 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 24th day of December, 2002. COPIES FURNISHED: James C. Hauser, Esquire Metz, Hauser & Husband, P.A. 215 South Monroe Street, Suite 505 Post Office Box 10909 Tallahassee, Florida 32302-2902 Stephen A. Ecenia, Esquire R. David Prescott, Esquire Thomas W. Conrad, Esquire Rutledge, Ecenia, Purnell & Hoffman, P.A. 215 South Monroe Street, Suite 420 Post Office Box 551 Tallahassee, Florida 32302-0551 Gerald L. Pickett, Esquire Agency for Health Care Administration 525 Mirror Lake Drive, North Sebring Building, Suite 310H St. Petersburg, Florida 33701 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308-5403 Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308-5403
The Issue The issue in this case is whether Respondent, Oakmonte Village, committed an unlawful employment practice against Petitioner, Paulette 1 All statutory references are to Florida Statutes (2019). Relevant provisions of chapter 760 have been unchanged since 2015, prior to any allegedly discriminatory acts. Lewis (Ms. Lewis or Petitioner), on the basis of her race, color, national origin, marital status, religion, age, and/or in retaliation for engaging in a protected activity, in violation of the Florida Civil Rights Act (FCRA).
Findings Of Fact Royal Senior Care Management is a healthcare facility campus operating in Lake Mary, Florida. The campus includes an independent living facility, an assisted living facility, and Oakmonte Village, which is a stand- alone memory care facility that caters exclusively to residents suffering from Alzheimer’s disease and dementia. Ms. Lewis is a 52-year-old black woman. She self-identifies as light- skinned. Ms. Lewis testified that her skin color is lighter than the other black employees who worked for Oakmonte Village. She was born in Jamaica. She is married and a Christian. 3 On January 2, 2020, Oakmonte Village filed Respondent’s Response to Notice of Ex Parte Communication and Motion to Strike (in part), directed to Petitioner’s first post-hearing filing. The motion sought to strike/disregard all references in Petitioner’s filing to a settlement agreement. The motion was granted. References to a settlement were not considered in the resolution of this case. At all times relevant to Ms. Lewis’s complaint, Mr. Jones was the director of Resident Care at Oakmonte Village. Mr. Jones is a 42-year-old black man. He is of American and Jamaican descent. He is currently married, but was not married at all times relevant to the allegations in Ms. Lewis’s complaint. Mr. Jones’s current wife, who was his then romantic companion, is half-Jamaican. Mr. Jones reports directly to Mr. Marshall. Mr. Marshall is the director of Oakmonte Village. Mr. Jones and Mr. Marshall conducted a joint interview of Ms. Lewis for the position of resident caregiver. Mr. Jones and Mr. Marshall, collectively, agreed to hire Ms. Lewis.4 Ms. Lewis began working for Oakmonte Village in November 2017, starting as a part-time resident caregiver. On December 10, 2017, her employment status was changed from part-time to full-time. Ms. Lewis was a resident caregiver throughout her time with Oakmonte Village. By all accounts, Ms. Lewis was an excellent caregiver, with no marked deficiencies in her job performance. Oakmonte Village hires both resident caregivers and medication technicians to care for its residents. At the time Ms. Lewis was hired, resident caregivers were paid $9.00 per hour and medication technicians were paid $10.00 per hour. Ms. Lewis was hired at a rate of pay of $9.50 per hour, more than a typical resident caregiver. She was not hired as a medication technician because she did not have the required certification. Oakmonte Village offers medication technician training to its resident caregivers when it has a need for more medication technicians. Oakmonte Village also offers recertification training to its certified medication technicians. These trainings are conducted at Oakmonte Village by an 4 Ms. Lewis testified that Mr. Jones and Mr. Marshall were aware that she was Jamaican when they hired her. Ms. Lewis also testified that she believed Mr. Jones desired to be Jamaican and had an affinity for Jamaican culture. These facts offered by Ms. Lewis are inconsistent with her claim of discrimination based on her national origin. affiliated company. If a resident caregiver successfully completes certification training, he or she is reclassified as a medication technician and given a raise. Not all resident caregivers can be trained upon request. Certification training is provided by Oakmonte Village based on facility needs. Oakmonte Village typically requires two to three medication technicians per work shift. If Oakmonte Village loses a medication technician, because of a resignation or shift change, it fills the vacancy with a new medication technician by training and certifying a resident caregiver. Employees are not allowed to enroll in the medication technician certification training on their own; they must be nominated by Mr. Jones. There are no strict requirements for the nomination. Mr. Jones testified that he makes the nomination decision based on the employee’s work ethic, skills, and level of responsibility, among other things. Mr. Jones also considers the facility’s needs. Ms. Lewis testified that, upon hire, Mr. Jones told her that in 60 days, she would be promoted to a medication technician. Mr. Jones and Mr. Marshall credibly testified that they tell all new employees that a medication technician certification is a potential means to get a pay increase, but no assurance is given, because none can be given, that certification will definitely be offered to a particular caregiver on a particular timetable. It is based on facility need and that need changes. Ms. Lewis was not nominated to complete the medication technician certification. In April 2018, Ms. Lewis saw a list of caregivers who were nominated by Mr. Jones to complete the certification. She added her name to the list, which was inappropriate because she was not authorized to nominate herself. When Mr. Jones noticed the list had been revised, he removed Ms. Lewis from the list. As Ms. Lewis was not nominated to attend the training, she was, essentially, prevented from getting a raise. Ms. Lewis testified that Oakmonte Village’s failure to nominate her for the medication technician training in April 2018 was based on a discriminatory act. Ms. Lewis offered no evidence to prove that she was treated differently, with respect to a nomination to complete a medication technician certification training, than any other similarly situated employee outside of her protected classes, or that she was not nominated because of her race, color, national origin, marital status, religion, and/or age. Newly hired Oakmonte Village employees are on probation for 90 days. Oakmonte Village directors are strongly encouraged, but are not required, to formally discuss an employee’s job performance after the 90-day probationary period. After employees successfully complete the 90-day probationary period, they are considered permanent employees. Ms. Lewis testified that during her time at Oakmonte Village, she was not given a three-month or six-month evaluation. A formal evaluation is not required at the three-month mark. Oakmonte Village conducted an informal evaluation of Ms. Lewis after her 90-day probationary period (at the three- month mark). Mr. Marshall testified that he informally discussed Ms. Lewis’s job performance with Mr. Jones and that they agreed that Ms. Lewis was doing a “fantastic” job and warranted permanent status. As a result, Ms. Lewis was removed from probationary status and made a permanent employee. It is undisputed that Ms. Lewis continued to work at Oakmonte Village for several months after her 90-day probationary period ended. Oakmonte Village does not conduct a six-month evaluation. After the three- month (90-day) evaluation, which may be formal or informal, the next evaluation that Oakmonte Village conducts is at the one-year mark. Ms. Lewis failed to offer evidence showing how Oakmonte Village’s failure to provide a formal evaluation at the three-month or six-month mark adversely affected her or constituted a discriminatory act. Further, Ms. Lewis offered no evidence showing that she was treated differently, with respect to evaluations, than any other similarly situated employee outside of her protected classes, or that Oakmonte Village’s failure to provide a formal evaluation was because of her race, color, national origin, marital status, religion, and/or age. Oakmonte Village employees who work 64 hours or more per pay period (or 32 hours or more per week) are considered full-time employees. Full-time employees have extra benefits, including paid time off. Ms. Lewis reported directly to Mr. Jones. Mr. Jones was in charge of setting her schedule. During the weeks of June 17 through 23, June 24 through 30, and July 1 through 7, 2018, Ms. Lewis was scheduled to work two days (16 hours) per week. As Ms. Lewis was a full-time employee, this amounted to a 50 percent reduction in her scheduled hours. On June 15, 2018, Ms. Lewis emailed Mr. Marshall to complain about her reduced scheduled hours. Mr. Marshall was on vacation when he received the email, but agreed to discuss the matter with her when he returned. On June 16, 2018, Ms. Lewis emailed Mr. Jones to complain about her reduced scheduled hours. Mr. Jones told Ms. Lewis that he and Mr. Marshall would discuss her hours with her the following Monday. Mr. Marshall testified that upon his return to work, he discussed Ms. Lewis’s reduced hours with Mr. Jones and directed him to increase her hours to at least 32 hours per week. Ms. Lewis corroborated that this was accomplished when she testified that Mr. Jones called her in to work on several days to make up her reduced hours. For the week of June 17 through 23, Ms. Lewis worked and was paid for 16 hours. For the week of June 24 through 30, although she was initially scheduled to work for 16 hours, after Mr. Marshall spoke with Mr. Jones, Ms. Lewis worked and was paid for 40 hours. For the week of July 1 through 7, Ms. Lewis worked and was paid for 27.25 hours. Ms. Lewis’s last day at Oakmonte Village was July 5, 2018. She was scheduled to work eight hours on July 7, 2018. Had she worked on July 7, her total hours worked for the week of July 1 through July 7 would have been 35.25 hours. Ms. Lewis testified that the reason her hours were cut in June was due to Mr. Jones’s disdain for her because of her national origin, religion, color, and because she was a poet.5 Contrary to that description, Ms. Lewis testified that, during a meeting with Mr. Jones about her reduced hours, he told her that her hours were reduced because she was confrontational and not a team player. Ms. Lewis testified that she was the only Jamaican working at Oakmonte Village and that no other employees experienced a reduction in hours during this time. Ms. Lewis did not present any evidence at the final hearing, outside of her own assertions, that she was treated differently, with respect to scheduling of hours, than any other similarly situated employee outside of her protected classes, or that the reduction in work hours was because of her race, color, national origin, marital status, religion, and/or age. In fact, except for one week in June 2018, Ms. Lewis worked and was paid for more than 32 hours each week. Oakmonte Village operates continuously with three employee shifts: 6:00 a.m. to 2:30 p.m.; 2:00 p.m. to 10:30 p.m.; and 10:00 p.m. to 6:30 a.m. On July 4, 2018, Mr. Jones asked Ms. Lewis to come in to work the 10:00 p.m. to 6:30 a.m. shift (the night shift). She was not initially scheduled to work that day, and generally did not work the night shift, but in an effort to provide her more hours, she was asked to come in. During the July 4 to 5 night shift, Ms. Lewis worked alongside Monica Nurse (Ms. Nurse), Adrianna Rivera (Ms. Rivera), and Shanece Newman (Ms. Newman). Ms. Lewis testified that shortly after she arrived, she noticed Ms. Newman asleep at a desk, where she remained asleep for approximately two hours. Ms. Rivera asked Ms. Lewis to provide care to one of 5 Ms. Lewis testified at length that Mr. Jones disliked her because she was a poet and a writer. Writer/poet is not a protected class under the FCRA. Ms. Newman’s assigned residents. After tending to the resident, Ms. Lewis complained to Ms. Rivera about having to help Ms. Newman while also carrying out her own duties. This complaint instigated a verbal altercation between Ms. Lewis and Ms. Rivera. Ms. Nurse and Ms. Newman quickly joined the argument. Ms. Lewis testified that all three coworkers began screaming at her. Feeling threatened, Ms. Lewis called 9-1-1. As Ms. Lewis spoke to the 9-1-1 operator, Ms. Rivera contacted Mr. Marshall by telephone. A police officer arrived at the scene. Ms. Lewis testified that, by speaker phone, Mr. Marshall told her to return her emergency keys (which allowed her entrance to the building) and told her that she was fired. Mr. Marshall disputes this testimony. Mr. Marshall credibly testified that, by phone, Ms. Lewis told him that she could no longer work under those conditions and that she resigned. The persuasive and credible evidence presented at the hearing demonstrated that Ms. Lewis resigned because of the conflict with her coworkers. On July 5, 2018, Mr. Marshall emailed Ms. Lewis stating: “Thank you for your service I will mail your final check[.]” In response, Ms. Lewis emailed: “John my safety comes first. Sorry you didn’t see it that way. May God bless Oakmonte Village[.]” Ms. Lewis asserted during the final hearing that the events of the July 4 to July 5 night shift were planned by Mr. Jones and Mr. Marshall. Ms. Lewis testified that she was “set up” by Mr. Jones and Mr. Marshall so that the other three employees working that night would “jump” her. Mr. Jones and Mr. Marshall denied these allegations. Ms. Lewis presented no credible evidence that Mr. Jones and Mr. Marshall orchestrated the alleged “set up.” Further, even if this allegation were true, Ms. Lewis presented no evidence to prove that the “set up” was because of her race, color, national origin, marital status, religion, and/or age. Ms. Lewis asserts that during her time at Oakmonte Village, she experienced persistent discrimination.6 Ms. Lewis generally complained that Oakmonte Village had a hostile work environment. Ms. Lewis described an incident in November 2017, during her interview for the position for which she was hired, when Mr. Jones seemed taken aback by her non-existent criminal history. Ms. Lewis also testified that Mr. Jones once asked her “who the F do you think you are that your coworkers have to say please and thank you?” Ms. Lewis also had other personal conflicts with a few of her coworkers. Ms. Lewis complained, specifically, about her relationship with Ms. Debbie Perry (Ms. Perry). Ms. Perry is a 53-year-old black woman. Ms. Lewis testified that Ms. Perry frequently cursed at her and once intentionally bumped into her. Ms. Lewis complained to Mr. Marshall about her interactions with Ms. Perry. Mr. Marshall met with Ms. Lewis to discuss the issue and directed her to speak to him should the issue arise again. Mr. Marshall testified that he also spoke to Ms. Perry. Mr. Marshall indicated that after he met with them separately, Ms. Lewis presented no additional complaints about Ms. Perry. Ms. Lewis did not claim that either Ms. Perry’s alleged harassment, or Oakmonte Village’s response to Ms. Lewis’s complaint, was because of Ms. Lewis’s race, color, national origin, marital status, religion, and/or age. On or about July 3, 2018, a state agency conducted an investigation of Oakmonte Village. The nature of the investigation is unknown as no evidence about the type of or reason for the investigation was offered at the hearing. Ms. Lewis testified that rumors swirled at Oakmonte Village about a possible “informant.” Ms. Lewis testified that she was not the informant and she 6 Ms. Lewis offered several anecdotal circumstances, in addition to the ones provided in paragraph 29, such as whether Oakmonte Village’s work schedule listed her as a caregiver or medication technician, which she suggested were somehow discriminatory. None of her examples were persuasive. None could reasonably be considered evidence of discrimination because of her race, color, national origin, marital status, religion, and/or age. presented no evidence that her coworkers or supervisors believed she was the informant. Ms. Lewis suggested that Oakmonte Village retaliated against her for participating in a protected activity, but she did not identify a protected activity on which she is relying to make this claim, nor did she specify what action was taken in retaliation for the unidentified protected activity. Ms. Lewis alleged several bases for discrimination, including race, color, national origin, marital status, religion, and age, but did not present a persuasive case of discrimination based on any of those protected classes. Information related to claims based on her marital status and religion was not mentioned in any relevant detail at the hearing. Ms. Lewis failed to prove that Oakmonte Village’s reduction of her work hours, its decision to not nominate her for the medication technician certification training, and its failure to formally evaluate her were based on race, color, national origin, marital status, religion, and/or age discrimination, nor did she prove that any other similarly situated employees outside her protected classes were treated more favorably. Accordingly, Ms. Lewis failed to meet her burden of proving that Oakmonte Village committed an unlawful employment action against her in violation of the FCRA.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing Ms. Lewis’s Petition for Relief. DONE AND ENTERED this 18th day of February, 2020, in Tallahassee, Leon County, Florida. S JODI-ANN V. LIVINGSTONE 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 18th day of February, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed) Paulette Lewis 1658 April Avenue Deltona, Florida 32725 Timothy Tack, Esquire Fisher Phillips Suite 2350 101 East Kennedy Boulevard Tampa, Florida 33602 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
Conclusions THE PARTIES resolved all disputed issues and executed a settlement agreement which is attached and incorporated by reference. The parties are directed to comply with the terms of the attached settlement agreement. Based on the foregoing, this file is CLOSED. DONE AND ORDERED on this the /7 day of 5.erf=l/lYlfJk , 2009 in Tallahassee, Florida. HollyBeson, Secretary Agency for Health Care Administration 1 Filed September 22, 2009 3:49 PM Division of Administrative Hearings. A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Copies Furnished to: Peter A. Lewis, Esquire Attorney for Petitioner 2931 Kerry Forest Parkway, Suite 202 Tallahassee, Florida 32309 (U.S. Mail) Brevin Brown, Senior Attorney Agency for Health Care Administration 2727 Mahan Drive, MS #3 Tallahassee, Florida 32308-5403 (Interoffice) Carlton D. Snipes, Deputy Secretary Agency for Health Care Administration 2727 Mahan Drive, MS #8 Tallahassee, Florida 32308 (Interoffice) Wesley Hagler, MPA Administrator Agency for Health Care Administration 2727 Mahan Drive, MS #21 Tallahassee, Florida 32308 (Interoffice) _t CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to the above named addresses by U.S. Mail on this the of ke,209' 9' RICHARD SHOOP, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308-5403 (850) 922-5873 ' . STATE OF FLORIDA
The Issue Whether petitioner should rescind its approval of prospectus amendments contained in amended prospectuses petitioner accepted for filing on June 23, 1988?
Findings Of Fact Respondent (Water Oak) manages a mobile home park in Lake County known as Water Oak Country Club Estates (the park). The previous owner envisioned phased development of an eventual total of 1,479 lots, and so stated in the original or "P" prospectus filed with petitioner's Bureau of Mobile Homes (the Bureau). The "P" prospectus contemplated a 587-lot "Golfside Villas" section when phase II of the park was developed. The "P" prospectus disclosed plans to build a separate recreational complex for Golfside Villas, leaving the main recreational complex for the exclusive use of other park residents. But the "P" prospectus stated: Water Oak Estate Mobile Home Park has a clubhouse, swimming pool, tennis courts and a shuffleboard center, which will be available for use by the park residents. The maximum number of lots that will use these shared facilities at the present time is 1,479, which is the total number of lots within the park. The Golfside Villas Section will use these facilities until November 1, 1987, at which time they will use their own facilities, and will no longer use Water Oak Estate facilities except by invitation from the Water Oak Residents' Association, or the Park Management. After Water Oak, Ltd. acquired the park, respondent or its agent filed an amended prospectus ("P86") with the Bureau. The "P86" prospectus differed from the "P" prospectus only to the extent required by the 1986 amendments to Chapter 723, Florida Statutes (1989), and did not alter disclosures regarding recreational facilities. A third Water Oak prospectus ("P2"), preserved the Golfside Villas concept and the idea of a separate recreational complex. As filed with the Bureau, however, the P2 prospectus stated: The recreational and other common areas discussed above are completed and available for use by the residents. The maximum number of home sites that are presently entitled to use these facilities is 590. FUTURE IMPROVEMENTS-- Water Oak Country Club Estates will build an additional clubhouse, a swimming pool, and a shuffleboard center, which will be for and in the Golfside Villas Section. Management may increase or decrease the size or modify the use of any of the shared facilities to serve the changing needs of the community, as determined by management. Petitioner's Exhibit No. 4, p. 7. In due course, the Bureau approved all three prospectuses, "P", "P86" and "P2", one after another. In approving prospectuses "P86" and "P2", the Bureau implicitly deemed them consistent with earlier approved prospectus(es). Because of considerations not pertinent here, Water Oak decided to abandon the idea of a discrete Golfside Villas section with its own exclusive recreational complex. Instead, it proposed, in developing phase II, to build the recreational complex contemplated in prospectuses "P", "P86" and "P2" (the original prospectuses) but to make both the phase II recreational complex and the original complex available to all residents of the park. Accordingly, Water Oak proposed amendments to the original prospectuses outlining its revised plans, and on April 16, 1988, filed them with the Bureau. Water Oak's cover letter explained: More specifically, a new clubhouse, heated swimming pool and shuffle board center open to all park residents will soon be available for use and so information concerning those facilities has been moved from the "Future Improvements" sections of these documents to the "Recreational and Other Common Areas" section. The proposed amendments are designed to make the "RECREATIONAL AND COMMON FACILITIES" section of all these prospectuses identical, and thus the existing versions of that section are deleted in their entirety in each prospectus and the new language substituted. . . . One other point is relevant to your consideration in this matter. The original owner of Water Oak Country Club Estates intended to designate a section of the park as the "Golfside Villas." However, no such section was ever developed ant the current owner has decided not to develop that section as such. Therefore, the Golfside Villas section of the park will not be created. Thus, all references to the Golfside Villas are now proposed to be deleted from all of the prospectuses in use in the park. No homeowner has leased a lot in an area designated as "the Golfside Villas," nor has any resident received any lease or other notification stating that his lot is in an area known as the Golfside Villas. Petitioner's Exhibit No. 3 (Emphasis in original.) Bureau personnel reviewed the amendments and approved the applications. Respondent's Exhibits Nos. 4 and After the approval, Water Oak gave prospective lessees amended P2 prospectuses, and entered into 60 or more leases with new residents to whom they had furnished amended prospectuses. Petitioner's Exhibit No. 7, a printed map of the park that is not part of any prospectus, labels a shaded portion in the northeast as "GOLFSIDE VILLAS AREA." Margerie Monski received a copy of the map on August 4, 1987, (T.411) before she and her husband leased a lot depicted on the unshaded portion of the map, in phase I. Respondent leased lot No. 2472 to Mr. and Mrs. Edward Reposa on April 4, 1988. T. 445; Petitioner's Exhibit No. 11. When respondent filed proposed prospectus amendments two days later, it had leased no other lot within the shaded area on Petitioner's Exhibit No. 7. Respondent leased lot No. 2510 to Mr. and Mrs. Alador Kurucz on April 20, 1988, and lot No. 2519 to Mr. and Mrs. Lloyd W. Wunder on June 8, 1988. Petitioner's Exhibits Nos. 12 and 13. Lots Nos. 2472, 2510 and 2519 all lie within the part of the park represented by the shaded area on Petitioner's Exhibit No. 7. But, as far as the evidence showed, none of the three lots' lessees has ever seen Petitioner's Exhibit No. 7 or any other map of the park on which Golfside Villas was depicted as a discrete section. No prospectus ever indicated that lots had been or were being leased in Golfside Villas. Unbeknownst to Water Oak, Mel Bishop Enterprises, Inc., the predecessor in interest who initially continued as park manager for Water Oak, filed a map similar to Petitioner's Exhibit No. 7 with the Bureau on October 27, 1987 (a prerequisite to its lawful use as advertising.) Petitioner's Exhibit No. 6. Lots depicted in the shaded area number far fewer than the 587 mentioned in the original prospectuses. The three original prospectuses, "P", "P86" and "P2", contain maps of phase I only. Front, back, left side and right side lot dimensions are listed for phase I, lot by lot. With respect to Golfside Villa lot dimensions, only the following appears: Front Left Side 1-587 - - - - 56 90 Petitioner's Exhibit No. 4. On April 6, 1988, respondent's principals were under the impression that no specific area within the park had ever been officially designated as Golfside Villas. Nothing in any of the materials they reviewed when respondent acquired the park located Golfside Villas at a particular spot on the land reserved for development in phase II. Testifying at hearing, petitioner's personnel conceded that respondent had no intention to mislead the Bureau with regard to any fact material to approval or acceptance of respondent's prospectus amendments. Nor did the evidence show that the fact that the respondent leased three lots depicted within the shaded area on Petitioner's Exhibit No. 7 would have been material in the Bureau's original decision to approve respondent's prospectus amendments.
Recommendation It is, accordingly, RECOMMENDED: That petitioner dismiss its notice and order of rejection. DONE AND ENTERED this 21st day of November, 1990, in Tallahassee, Florida. ROBERT T. BENTON, II 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 21st day of November, 1990. APPENDIX Petitioner's proposed findings of fact Nos. 1, 2, 3, 4, 5, 7, 8, 9, 11, 12, 13, 14, 16, 17, 18, 26, 30, 31, 32, 35, 37, 38, 41, 45 and 49 have been adopted, in substance, insofar as material. With respect to petitioner's proposed finding of fact No. 6, the pertinent part of the letter is quoted. Petitioner's proposed findings of fact Nos. 10, 15, 28, 33, 34, 39, 40, 42 and 50 pertain to immaterial matters. With respect to petitioner's proposed finding of fact No. 19, 24, 27, 43 and 44, no prospectus located a "Golfside Villas section of the park" at any specific place. Petitioner's proposed findings of fact Nos. 20, 21, 22, 23, 25 and 47 pertain to subordinate matters. With respect to petitioner's proposed finding of fact No. 29, Mr. Stoppa made the allegation, but no prospectus located a "Golfside Villas section of the park" at any specific place. With respect to petitioner's proposed finding of fact No. 36, only two such leases were proven. With respect to petitioner's proposed finding of fact No. 46, see paragraph 10 of the findings of fact. With respect to petitioner's proposed finding of fact No. 48, it was not clear from the evidence what the basis was. Respondent's proposed findings of fact Nos. 1, 2, 3, 5, 6, 7, 8, 9, 11, 12, 21 22, 24, 28, 29, 30, 31, 34, 35, 37, 38, 42, 43, 44 and 45 have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 4, the number was 587. Respondent's proposed findings of fact Nos. 10, 25 and 39 pertain to immaterial matters. Respondent's proposed findings of fact Nos. 13, 14, 15, 16, 17, 18, 19, 20, 26, 27, 32, 33, 36 and 41 pertain to subordinate matters. With respect to respondent's proposed finding of fact No. 23, it is not clear what petitioner's policy was at any given time. With respect to respondent's proposed finding of fact No. 40, petitioner failed to prove its materiality. Copies furnished: Debra Roberts, Esquire Assistant General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32301 Daniel C. Brown, Esquire Katz, Kutter, Haigler, Alderman Davis, Marks & Rutledge, P.A. 215 South Monroe Street First Florida Bank Bldg., Suite 400 Tallahassee, FL 32301 E. James Kearney, Director Department of Business Regulation Florida Land Sales, Condominiums, and Mobile Homes 725 South Bronough Street Tallahassee, FL 32399-1000 General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1000
The Issue Live Oak Plantation No. 1, Ltd. (Live Oak) through Stanford Development Group filed application number 4-117-0464AC-ERP with the St. Johns River Water Management District (SJRWMD) in April 1997, seeking a conceptual approval environmental resource permit. After SJRWMD issued its notice of intent to grant the permit, the Petitioners filed their petitions challenging the intended agency action. The central issue in this proceeding is whether the permit should be issued pursuant to Chapter 373, Florida Statutes, and Chapters 40C-4, 40C-41 and 40C-42, Florida Administrative Code, including specific provisions of the Applicant's Handbook adopted by rule and identified in the parties' prehearing stipulation filed July 8, 1998.
Findings Of Fact The Parties Michael D. Rich is a former resident of Seminole County who lived on the property contiguous to the Live Oak site. He is the legal representative of his mother who still resides on the property and he is president of C-RED. C-RED is a Florida non-for-profit corporation with members from the City of Oviedo and unincorporated areas of Seminole County who are interested in assuring that development is done without improper impact on the taxpayers and the rural character of the area. Mr. Griffin is a resident of Seminole County living on Horseshoe Lake, which adjoins the Live Oak site. Live Oak is a Florida Limited Partnership which intends to develop the project that is the subject of this proceeding. SJRWMD is a special taxing district created by Chapter 373, Florida Statutes, and charged with responsibility for various permitting programs, including the one at issue here. The Project Live Oak proposes to develop a large multi-phased single family project with two small commercial sites. The project, to be known as "Live Oak Reserve," will be on approximately 1,041 acres on the south side of county road 419 in southeastern Seminole County in the City of Oviedo. The project site is located near the confluence of the Econlockhatchee River (Econ River) and Little Econlockhatchee River. The Live Oak Reserve property includes approximately half of Horseshoe Lake, as well as a small creek, Brister Creek, which flows from Horseshoe Lake across the property to the Econ River. The Econ River, a class III water and designated an Outstanding Florida Water (OFW), crosses the southwestern corner of the Live Oak Reserve property. The Econ River is the receiving water body of Live Oak Reserve. The Live Oak Reserve property is located within the Econlockhatchee River Hydrologic Basin. A portion of the Live Oak Reserve property lies within the Econlockhatchee River Riparian Habitat Protection Zone (RHPZ). The Live Oak property lies within a 1,500 acre drainage basin; approximately 450 acres off-site drain through Live Oak Reserve. Horseshoe Lake has approximately 500 acres that drain through it, then through the wetlands and into the Econ River. Historically, the Live Oak Reserve property has been used for agricultural practices, including siliviculture and cattle production. Some areas of the property have been logged and some areas have been converted to pasture. Cattle have grazed in wetlands, thereby decreasing the amount and diversity of groundcover vegetation on portions of the property. Additionally, on-site drainage ditches have had a major impact on the hydrological characteristics of the wetlands on the property, including the reduction of surface water elevations. The Live Oak Reserve property is currently vacant and undeveloped. The Application Process In April 1997, Live Oak submitted to the SJRWMD an Environmental Resource Permit Application, N4-117-0464AC-ERP, for conceptual approval of a master stormwater and floodplain management system for the development of Live Oak Reserve. A conceptual permit is utilized in complex multi-phased projects which are expected to have a longer build-out period than a single phase project. A conceptual permit does not allow any construction activity, but provides the outline for final engineering calculations and construction drawings. Further permits are required before any sitework or construction is undertaken. In conjunction with its permit application Live Oak submitted detailed technical information, including but not limited to charts, maps, calculations, studies, analyses and reports necessary to show that the conceptual development plan was consistent with the permitting criteria of the SJRWMD found in Chapter 40C-4, Florida Administrative Code, and the Applicant's Handbook. The master plan for the Live Oak project was designed by Donald W. McIntosh Associates, Inc.(McIntosh) using input from: (a) land planners who were required to consider issues related to the comprehensive plans, open space requirements and related issues; (b) landscape architects who were responsible for the proposed park systems and landscape treatments throughout the project; (c) geotechnical engineers responsible for evaluating the soil and groundwater conditions; and (d) environmental consultants, Modica and Associates, who were responsible for wetland delineation and flagging and wildlife surveys. The first version of the Live Oak Reserve site plan prepared for the project by McIntosh included development of all upland areas and filling several portions of the mixed forested wetlands to maximize lot yield. This included development of the upland adjacent to the Econ River and development of an upland parcel on the west side of the river. After much consideration and revision by the developer and its consultants, a site plan was developed which minimizes impacts to wetlands and other surface water functions, particularly as it relates to the Econ river, and maximizes the benefits to wildlife by establishing a series of wildfire corridors across the site. The final plan submitted to the SJRWMD at the time of the application includes the preservation of the entire Econ River floodplain and two adjacent developable upland areas, a large mixed hardwood forested wetland which traverses the site from the northeast to the southwest, and upland and wetland areas in the southern portion of the site that provide a corridor between a large undeveloped parcel to the east and the Econ River to the west. After submission of its application, Live Oak participated in a review process with SJRWMD staff to further eliminate and reduce wetland impacts. Specifically, SJRWMD requested changes to the site plan which included reductions in impacts to various wetlands and additional buffers to other wetlands. Several changes to the site plan were made to accommodate the SJRWMD's concerns relating to reducing impacts to wildlife, particularly the Florida sandhill crane. The reductions in wetland impacts and other design changes resulted in a revised site plan which the SJRWMD staff recommended to the district's governing board for approval. The staff recommendation of approval, with associated conditions, is set forth in Technical Staff Report dated February 10, 1998. On July 14 and 16, 1998, the SJRWMD revised the technical staff report to reflect changes to the project design and mitigation plan, as well as to add conditions inadvertently omitted from the earlier technical staff report. Condition no. 8 was mistakenly added to the July 16 technical staff report and by stipulation of all the parties, this condition was removed from the technical staff report. (See transcript, page 521) Stormwater Analysis McIntosh utilized information from different sources in preparing the stormwater calculations submitted to the SJRWMD. The developer provided information regarding proposed lot sizes and types so as to determine the impervious surface area for developable lots. The geotechnical consultants, Universal Engineering Sciences, (Universal) provided McIntosh with preliminary, interim, and final geotechnical reports, soil boring logs, and groundwater table estimates. The input from Universal primarily involved the establishment of seasonal high and seasonal low groundwater elevations for the pre-development and post-development conditions on the site. The estimated seasonal high and seasonal low groundwater levels refer to the range of levels the groundwater is expected to attain on the site during the wetter (high) and dryer (low) periods of a normal year. These elevations were then utilized in the stormwater calculations prepared by McIntosh. Topography on Live Oak Reserve consists of elevations ranging from 48 feet to 25 feet NGVD. In its pre-development condition, Live Oak Reserve has 6 distinct drainage patterns. Off-site drainage basins also contribute runoff to the property. The conceptual post-development design will modify the project's on-site drainage patterns into 28 drainage basins. At the request of the SJRWMD, Live Oak prepared seasonal high and seasonal low groundwater elevation contour maps. Live Oak performed approximately 200 borings on the Live Oak Reserve property. From the borings, Live Oak determined the soil types present and the existing groundwater elevations. Live Oak also used the borings to assist in establishing the estimated seasonal groundwater elevations. With the exception of several shallow borings in wetland areas, all borings were taken by split spoon sampling. Seventy-nine piezometers were installed next to bore holes to measure groundwater levels. In establishing the seasonal high groundwater levels, Live Oak evaluated the groundwater level at the time of boring; the time of year the groundwater level was measured; the time span of the investigation and its relationship to normal rainfall patterns; soil indicators such as coloration, mottling, and particle size; site specific topography; USGS quadrangle maps depicting site topography; Soil Conservation Service (NSCS) estimates of the expected seasonal high groundwater levels; and vegetative indicators. It is not essential to evaluate rainfall data when determining the seasonal water levels because the historical seasonal water levels are recorded in the soils. The estimated seasonal high groundwater level can be determined during the dry season. The range of the estimated seasonal high groundwater level on the Live Oak Reserve property is from standing water on the ground to five feet below the existing grade. In evaluating Live Oaks estimated seasonal groundwater levels, the District reviewed Live Oak's submittals, and also reviewed the NSCS soil survey to confirm that the estimated seasonal groundwater levels were reasonable. Wetland seasonal surface water levels were estimated using biological indicators such as lichen lines, buttressing, water lines, and sand lines. Lichen lines were apparent on the Live Oak Reserve properly and reflective of normal rainfall conditions. Seasonal high water levels are expected at the end of September. Seasonal low water levels are expected in May. The wetland surface water levels encountered in January 1997, when the seasonal levels were estimated, were neither exceptionally low nor exceptionally high. The water levels were representative of a period of normal rainfall. Water quantity attenuation and stormwater treatment will be accomplished through wet detention ponds and vegetative natural buffers. Due to the location of Live Oak Reserve in the Econlockhatchee River Hydrologic Basin, special basin criteria apply this project. The special basin criteria, also known as the "Econ Rule," is more stringent than the stormwater management criteria set forth in Applicant's Handbook sections 9 and 10. The special basin criteria, as it relates to the surface water management systems, requires Live Oak to control its discharge from two design storms: the mean-annual design storm, and the 25-year, 24-hour design storm. A design storm is a hypothetical storm with a predetermined rainfall amount, a predetermined intensity and 24 hour-duration. Designing the system to control the peak discharge during the mean-annual storm will prevent erosive velocities that would be harmful to Brister Creek and the Econ River. The conceptually proposed system is designed to limit peak rates of discharge to those of pre-development for the mean-annual and the 25-year, 24-hour design storm events. The system, as conceptually proposed, will limit post-development discharge rates to the same as or lower than the pre-development discharge rates. Each stormwater management area will pre-treat its respective post-development basin's pollution volume prior to discharge downstream. Live Oak proposes to use vegetative natural buffers for a portion of the rear lots within the post- development condition to fulfill treatment requirements. Live Oak Reserve is designed for the retention of the first inch of runoff from the total area of the post-development basins or the total runoff from 2.5 inches times the post- development basin's impervious area, whichever is greater. Furthermore, because Live Oak Reserve conceptually discharges to the Econ River, an OFW, the system is designed to provide an additional 50 percent of treatment. For discharges to an OFW the system must treat to a 95 percent removal standard. The outfall structures within each wet detention system are designed to draw down one-half the required treatment volume between 60 to 72 hours following storm event, but no more than one-half of this volume will be discharged within the first 60 hours. Each wet detention pond is designed with a permanent pool with a 31.5-day residence time during the wet season. Residence time is the time that the water within a pond will stay in the pond prior to discharge. The residence time includes the 14-day residence time required of all wet detention systems, an additional 50 percent residence time (7 days) for discharging into an OFW, for a total of 21 days. In addition, each system has been designed to provide an additional 50 percent residence time (10.5 days) because Live Oak has elected not to plant littoral shelves within each pond. As conceptually designed, Live Oak reserve's post- development drainage pattern will have no effect on the drainage patterns of Lake Eva or Horseshoe Lake. As conceptually designed, Live Oak Reserve's post-development drainage pattern will reduce the rate of flow during the storm events, which is a positive effect on the drainage pattern of Brister Creek. The reduction in flow velocity reduces the erosiveness of the storm. Live Oak has demonstrated that the 25-year and 100- year, 24-hour storm events' post-development peak stages for Lake Eva and Horseshoe Lake are not changed as a result of this conceptual project. Based upon Live Oak's calculations, the Live Oak Reserve project will not cause any restriction to the flow of water as it outfalls from Horseshoe Lake to Brister Creek. The conceptual wet detention systems within Live Oak Reserve are proposed to have a maximum depth of 12 feet. However, Live Oak requested consideration at the time of final engineering for each phase of development to maximize selected stormwater management areas for maximum depths of up to 25 feet. That consideration will be made in subsequent application review and is also subject to the City of Oviedo's approval. The conceptual wet detention ponds are designed with an average length to width ratio of two to one, and are configured to minimize the occurrence of short circuiting. As such, they will meet the criteria of the applicable rules. Tailwater conditions for the project were based on published flood elevations. Live Oak analyzed the tailwater condition for the mean-annual, 25-year 24-hour, and the 100-year 24-hour design storms. Live Oak completed a 100-year flow analysis for Live Oak reserve. Pre-development floodplain elevations for Lake Eva, Horseshoe Lake, and the Econ River were referenced from previous studies (Seminole County) and the Federal Emergency Management Agency. Live Oak determined that the 100-year floodplain elevations effecting Live Oak Reserve to be 40.2 feet NGVD from Horseshoe Lake, 45.0 feet NGVD for Lake Eva, and 32.5 feet NGVD for the Econlockhatchee. The U.S. Geological Survey (USGS) has produced a map of flood prone areas which indicates that the elevation delineating the flood prone area for Horseshoe Lake is 40.14, not 40.2, and for Lake Eva is 43.38, not 45.0. Therefore, the area indicated by USGS as the flood prone area is included in the 100-year floodplain analysis of Live Oak. Live Oak, in its conceptual design, has demonstrated that it will provide compensating storage for any encroachments into the 100-year floodplain. Live Oak has conceptually proposed to fill approximately 18.69 acre- feet within the 100-year floodplain. Live Oak will compensate the filling of the floodplain by providing a cut with the 100-year floodplain of approximately 27.09 acre-feet. By meeting the criteria in the "Econ Rule" the project conceptually meets all other relevant standards for stormwater management as the basin rule is more stringent. Live Oak has provided reasonable assurance that the development will not affect surrounding property or raise stagewater elevations of any surrounding property; the development will not displace the 100- year flood plain area; and the development will not restrict or impede the natural flow from Horseshoe Lake. Wetland and Wildlife Impacts Approximately 430 acres of wetlands cover the project site. Two general types of wetlands on found on the Live Oak reserve property: herbaceous wetlands and forested wetlands. Twenty-three herbaceous wetlands are classified as freshwater marshes. These wetlands range in size from 0.2 acre to over 8 acres. Wetlands 10 and 16, the largest on the property, are mixed hardwood forested wetlands. Approximately 525 acres of the Live Oak Reserve property are located within the RHPZ. Of this area, approximately 410.5 acres are wetlands, and the remainder are uplands that are predominantly pine flatwoods and xeric scrub. A few of the wetlands on site are considered RHPZ wetlands, not "isolated," solely because they are connected to floodplain wetlands by ditches. These wetlands and 50 feet of the uplands surrounding them are considered part of the RHPZ. The wetlands within the RHPZ are intact with little disturbance, especially in the Econ River corridor that is a part of wetland 16. Wetland 10 has been logged and the species composition in that wetland has changed. Wetlands 12 and 14 have ditch connections to the Econ River, but these ditch connections do not appear to have adversely impacted the wetlands hydrologically. Wetlands 2,3, and 8 have ditch connections to the Econ River. These wetlands have been adversely affected (drained) by the ditching. The RHPZ uplands are in good condition and provide very valuable habitat, except for 12 acres that are adjacent to upland cut drainage ditches. These 12 acres have no habitat value. The portion of the Live Oak Reserve property within the RHPZ provides good habitat important to fish and wildlife, and is part of the Econ River floodplain. The upland areas outside the RHPZ on the Live Oak Reserve property primarily consist of pine flatwoods and pasture. The pine flatwoods have been logged and are overgrown. The pasture appears to have been cleared many years ago and planted with bahia grass. Twenty-two isolated wetlands, which total approximately 17.9 acres, are located on the Live Oak reserve property. The isolated wetlands are intact and in good condition, except for temporary impacts due to cattle grazing and logging. The isolated wetlands provide habitat for wading birds, frogs, toads, and other wildlife. Ephemeral wetlands are wetlands that are seasonally inundated, but not necessarily inundated every year. Ephemeral wetlands provide important functions to wildlife, including gopher frogs and other amphibians for breeding, wading birds and sandhill cranes for foraging, and invertebrates. Ephemeral wetlands or "seasonal" wetlands occur on the Live Oak Reserve property. Although Live Oak did not separately address any of the wetlands as ephemeral, the value and functions of ephemeral wetlands were assessed by SJRWMD staff-person, David Eunice. While several small ephemeral wetlands are being impacted by the proposed development, several others are being preserved. Live Oak conducted wildlife surveys of the Live Oak Reserve property in accordance with the Florida Game and Fresh Water Fish Commission's approved Wildlife Methodology Guidelines. Based on the surveys, Live Oak determined that three listed species occurred on-site: the Florida sandhill crane, the gopher tortoise, and the Sherman's fox squirrel. The Florida sandhill crane is a threatened species. Live Oak found no evidence that the property hosts Florida panthers. Although the wildlife surveys did not identify gopher frogs, a species of special concern, the SJRWMD recognized the potential for the gopher frog to use the wetlands, including the ephemeral or seasonal wetlands, on the Live Oak Reserve property. Florida sandhill cranes have been observed foraging in a few areas on the Live Oak reserve property. In the spring of 1997, Live Oak identified two active nests in freshwater marshes (wetlands 21 and 29). There is no evidence that the sandhill cranes are currently nesting in wetland 29; however, Florida sandhill crane nests have been located in wetlands 14 and 21 this year. The typical critical nesting habitat for Florida sandhill cranes is a large, isolated marsh, generally either dominated by maidencane or pickerel weed. The marsh must maintain a surface water level between 12 and 24 inches so that the birds can construct a suitable nesting platform in the marsh. Nesting success, in part, depends upon wetland type used and water depths. The Florida sandhill crane also requires a certain amount of pasture-like upland habitat in which to forage. However, the crane forages in both uplands and wetland. Upland pasture is the sandhill crane's preferred foraging habitat. The sandhill crane's second most preferred foraging habitat is freshwater marsh. When the sandhill cranes have chicks and fledglings, the birds forage in the wetlands. After a period of three to four months, the juvenile and adult sandhill cranes will move to open pasture to forage. The Econ River floodplain wetlands and their associated upland habitats on the Live Oak reserve property are regionally ecologically significant. Overall, the Live Oak Reserve property provides good ecological value. It is part of the river corridor, has a tributary that runs through it and has uplands that have had little disturbance. Live Oak has eliminated certain wetland impacts and reduced others during the design of the Live Oak Reserve project. Live Oak eliminated some road crossings, and redesigned the pond configuration to eliminate or reduce encroachments into wetlands. Live Oak's site plan that was submitted as part of the initial April 14, 1997, application reflects Live Oak's initial attempts to eliminate or reduce impacts. Live Oak, in its application, proposed a project design with 46 acres of wetland impacts. The site plan has changed since Live Oak made the initial application to the SJRWMD. The initial project design called for the removal of the southern one-half of wetland 29 for the construction of a stormwater pond. Live Oak redesigned the project to preserve wetland 29 with a 50-foot upland buffer around it to eliminate direct impacts to the sandhill cranes nesting there. Live Oak further reduced impacts by preserving wetlands 14 and 15, and by placing upland buffers around them to protect sandhill crane habitat. The revised design of the surface water management system reduced wetland impacts by approximately 7 acres. The SJRWMD February 10, 1998, technical staff report includes the design plans reducing impacts by 7 acres. After the SJRWMD issued its February 10, 1998, technical staff report, Live Oak once again redesigned the project to preserve wetland 12. This redesign reduced wetland impacts by an additional 3 acres. In this case, SJRWMD staff worked with Live Oak to reduce or eliminate its impacts. Nonetheless, staff believed Live Oak's proposed mitigation qualified for the exception under Section 12.2.1.2b, that is, the on-site preservation of the Econ River floodplain and associated uplands, in concert with Live Oak's contribution to acquiring a conservation easement over the Yarborough parcel, discussed below, provides regional ecological value and provides greater long term ecological value then the areas impacted. Live Oak proposes practicable design alternatives, but it is not required to reduce or eliminate all impacts. Some design alternatives, such as whether to use a bridge or culverts for the Brister Creek crossing, must be addressed and considered at a later permit application stage and not at this conceptual permit stage. The proposed design includes dredging or filling of approximately 35.9 acres of wetlands and construction in approximately 38 acres of RHPZ uplands. Of these 35 wetlands on the Live Oak Reserve property, Live Oak will completely impact 23 of the wetlands (17.64 acres of wetland impact); partially impact 5 wetlands (18.28 acres of wetland impacts out of 370.15 acres of wetlands); and will avoid impacts to 7 wetlands (40.63 acres). The impacts are mostly limited to the small isolated wetlands, the upland/wetland transitional edges of the floodplain wetlands, and portions of RHPZ already degraded by a ranch roadway and ditch placement. Live Oak focused its impacts on areas, including wetlands, that were historically disturbed. SJRWMD staff considered that the isolated wetlands less than 0.5 acre were used by sandhill cranes and other threatened or endangered species. Therefore, staff required Live Oak to offset impacts to the small isolated wetlands. In addition to physical impacts to wetlands and RHPZ, the habitation of the proposed subdivision, which will result in noise and intrusion into wildlife habitat by humans and their pets, will cause secondary impacts. Those secondary impacts are offset in part by the upland buffers proposed by the applicant (a total of 10 acres of 25 foot buffers and 47.86 acres of 50- foot buffers.) After considering the type of impact proposed; past, present and future activities that may occur in the Econ River Hydrologic Basin; and that Live Oak off-site mitigation of adverse impacts is located within the same hydrologic basin; SJRWMD staff appropriately determined that Live Oak Reserve would not have an adverse cumulative impact. Mitigation Live Oak's mitigation plan consists of both on-site and off-site preservation. The proposed on-site component of the mitigation plan entails the preservation of 19.3 acres of herbaceous marsh, 373.2 acres of forested wetlands, and 124.9 acres of uplands. The mitigation plan preserves approximately 5.65 acres of isolated wetlands on-site, and approximately 386.86 acres of RHPZ wetlands on-site. The cornerstone of Live Oak's on-site mitigation is the preservation of the Econ River forested floodplain swamp, as well as two upland areas, in the southwestern corner of the property. One of the upland areas is a 15-acre upland scrub island on the east side of the river that is surrounded by forested wetlands. The other upland area is 24 acres of uplands located near the Econ River on its west side. Portions of both uplands are within the RHPZ. Both the forested floodplain and the associated upland areas provide habitat of regional ecological significance. The forested floodplain wetlands and the uplands that are part of the RHPZ are protected to a large degree by SJRWMD regulations. These regionally significant wildlife communities, however, can be temporarily, but chronically, impacted, if not permanently degraded, by timbering and other activities that are relatively unregulated. Live Oak proposes to protect and preserve these areas by placing them in a conservation easement. Placing Econ River forested floodplain wetlands and the upland RHPZ areas in a conservation easement will provide a greater level of protection and assurance that they will mature to an "old growth" condition, which will benefit many wildlife species. The Econ River floodplain wetlands, the upland scrub island and the small isolated wetland in the scrub island will accommodate the smaller wildlife species that currently use the Live Oak Reserve property. Live Oak has preserved most of the larger isolated wetlands with high ecological value. The large isolated wetlands preserved on-site will continue to maintain a high level of ecological function even with the surrounding development. Wildlife, such as frogs, toads, snakes, and wading birds will continue to use those wetlands. The on-site portion of the mitigation plan preserves approximately 71.87 acres of upland buffers, of which 2.04 acres are located in 25-foot buffers and 69.83 acres are located in 50- foot RHPZ buffers. The buffer areas will be placed in a conservation easement. The wildlife values of the uplands on this property that are not within the RHPZ are protected to some degree by local government regulations; they are, however, largely unprotected by the existing regulations of SJRWMD. Without the proposed conservation easements, this habitat may be developed or significantly degraded by other activities. As a component of its on-site sandhill crane nesting site management plan, Live Oak preserves a 6.83-acre upland buffer next to wetland 21, which hosts a sandhill crane nest. Additionally, Live Oak provides enhancement of 3.88 acres on the southside of wetland 21 within the 6.83-acre buffer area by converting this area to improved pasture for sandhill crane foraging habitat. The mitigation plan sufficiently offsets the impacts to the smaller isolated wetlands, even if these wetlands have more than a typical resource value. When evaluating impacts and mitigation, Applicant's Handbook Section 12.2.3.7 requires the SJRWMD to evaluate the predicted ability of the wetland or other surface water to maintain their current functions as part of the proposed system once the project is developed. Many of the smaller isolated wetlands, when located in a natural setting such as a pine flatwood, are very critical and provide very high ecological value. However, once a project is developed and the small isolated wetland is surrounded by homes, the resource value of the small isolated wetland is diminished. Many of the smaller wildlife species, such as frogs and snakes, will be extirpated from the developed area of property, whether or not the smaller isolated wetlands remain. SJRWMD considered the value of the off-site mitigation to offset the adverse impacts to the smaller isolated wetlands. In determining the adequacy of the preservation component of the mitigation plan, SJRWMD staff did not rely upon any specific rule, regulation, or comprehensive plan of the City of Oviedo. However, the staff did consider the overall protections afforded by the regulatory and comprehensive plan requirements of the city and determined that preservation of the mitigation areas by conservation easement provided greater assurance that these areas will be protected than the local government rules, regulations, and comprehensive plan. The off-site component of the mitigation plan is the contribution of $160,525 towards participation in the SJRWMD acquisition of a conservation easement over the 3,456 acre Yarborough parcel. The Yarborough parcel is located in the northeastern corner of the Econ River Hydrologic Basin. The Yarborough parcel encompasses property north and south of the Econ River. A portion, mostly sovereign lands, lies within the Puzzle Lake/Upper St. Johns River Hydrologic Basin. The Yarborough parcel is part of a large working ranch. The parcel contains improved and unimproved pasture, significant cabbage palm hammocks, pine flatwood communities, and freshwater marsh. Live Oak's participation equates to the acquisition of a conservation easement over 200 acres of the Yarborough parcel. However, Live Oak is not purchasing any particular 200 acres with the Yarborough parcel. Live Oak's contribution is applied to 200 acres of the Yarborough parcel within the Econ River Hydrologic Basin. SJRWMD estimates that of the 200 acres, 165 acres are wetlands and 35 acres are uplands. This assessment is based on the composition of wetlands and uplands on the Yarborough property within the Econlockhatchee River Hydrologic Basin. SJRWMD has purchased development rights over the Yarborough parcel. Yarborough is authorized to continue its cattle operation on the Yarborough parcel for 20 years in accordance with the conditions of the conservation easement. However, Yarborough is not permitted to increase the amount of improved pasture or further develop the parcel. On the contrary, the conservation easement requires Yarborough to decrease the number of cattle on the parcel over the next 20 years. Purchase of the conservation easement over the working ranch has positive environmental benefits. The conservation easement will protect the wildlife species that use the ranch. This environmental benefit can be used to offset adverse impacts on the Live Oak Reserve property. To participate in this type of mitigation, the acquisition must be imminent so that the SJRWMD is reasonably assured that the purchase will go forward. Participation is precluded for a parcel after its acquisition is concluded. Live Oak's mitigation plan, with its on-site and off- site components, offsets Live Oak Reserves adverse impacts. SJRWMD calculates the mitigation ratio and compares it to the guidelines in the Applicant's Handbook to determine if mitigation is adequate. SJRWMD however, is not required to adhere to any set ratio. The upland preservation ratio (area preserved to area impacted), excluding the 12 acres of uplands along the upland cut ditches and the Yarborough parcel uplands, is 6 to one. The rule guidelines for upland preservation is from 3 to one to 20 to one. The wetland preservation ratio is 15.5 to one. The rule guidelines for wetland preservation is from 10 to one to 60 to one. Public Interest Criteria Live Oak Reserve will not have any effect on the public health, safety or welfare or property of others. Because the mitigation plan adequately offsets all adverse impacts, Live Oak reserve will not adversely affect the conservation of fish and wildlife, including endangered or threatened species or their habitats. Because of the benefits of lowering the discharge rates in the post-development condition and reducing the velocity of stormwater in Brister Creek, Live Oak Reserve will reduce the potential for erosion. Live Oak Reserve will not have any affect on the fishing or recreational values or marine productivity in the vicinity of the site. Live Oak Reserve will be of permanent nature. However, its adverse impacts have been offset by mitigation. The permanence of the project is beneficial in that it provides treatment of untreated off-site runoff from county road 419 by the Live Oak surface water management system and it reduces the discharge rate of stormwater down Brister Creek. Therefore, the permanence of the project is not contrary to the public interest. In accordance with Section 373.414, Florida Statutes, the Florida Department of State Division of Historical Resources determined that the Live Oak Reserve project will have no possible impact to historic properties listed, or eligible for listing, in the National Register of Historical Places, or otherwise of historical or architectural value. Furthermore, the Division of Historical Resources determined that the project is consistent with Florida's Coastal Management Program and its historic preservation laws and concerns. The current condition and relative value of functions being performed by the various vegetative communities on the Live Oak Reserve property is good. However, there is no guarantee that the value and functions would remain good if the property is not managed for species like the sandhill crane or if agricultural and silvicultural practices continue to occur on the property. The mitigation plan, preserving regionally ecologically significant wetland and upland communities on both the Live Oak Reserve and Yarborough parcel by conservation easement, should provide a greater protection of those communities than what currently exists.
Recommendation Based on the forgoing, it is RECOMMENDED That a final order be entered granting Live Oak's application for a conceptual approval environmental resource permit with the conditions set forth in the SJRWMD technical staff report dated July 16, 1998, with the exception of condition 8, deleted by stipulation. DONE AND ENTERED this 2nd day of November, 1998, in Tallahassee, Leon County, Florida. MARY CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 1998 COPIES FURNISHED: Henry Dean, Executive Director St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 Scott M. Price, Esquire J.A. Jurgens, P.A. 505 Wekiva Springs Road Longwood, Florida 32779 Charles H. Griffin, pro se 250 West 7th Street Chuluota, Florida 32766 Michael L. Gore, Esquire Meredith A. Harper, Esquire Ken W. Wright, Esquire Shutts and Bowen, LLP 20 North Orange Avenue Suite 1000 Orlando, Florida 32801 Anthony J. Cotter, Esquire St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429
The Issue The issue is whether Respondent violated section 112.313(6), Florida Statutes (2013), by corruptly using his position as a member of the Live Oak City Council to direct the Live Oak Fire Chief to perform duties at his sister’s apartment, thereby securing a benefit for himself or others, and, if so, what is the appropriate penalty.1/
Findings Of Fact Background At all times material to this proceeding, Respondent served as a member of the Live Oak City Council. At the time of the events giving rise to this proceeding, Respondent had served as a councilman for two years, and had been employed full-time as a corrections officer for the Suwannee County Sheriff’s Office for five years. Respondent is subject to the requirements of Part III, chapter 112, Florida Statutes, the Code of Ethics for Public Officers and Employees, for his acts and omissions during his tenure as a member of the City Council. George “Chad” Croft is the Fire Chief for the City of Live Oak. At the time the relevant events took place, he had been the Fire Chief of the City of Live Oak for about 10 years. Prior to that, he served as the Assistant Fire Chief, as a Lieutenant with the fire department, and as a firefighter. He has worked for the Fire Department for over 25 years. Chief Croft injured his shoulder in July 2011. He had surgery on his shoulder on May 30 or 31, 2012. The injury was deemed work related and thus placed him under workers’ compensation. Chief Croft was on workers’ compensation leave during the relevant time period. However, he was coming in periodically as needed to take care of certain city business as instructed by then City Administrator Bob Farley. This included attending city council meetings, answering e-mails, working on the fire department budget, and working on time sheets. Chief Croft considered these assignments to be “light duty.” Tropical Storm Debby In late June of 2012, Live Oak was inundated with rain from Tropical Storm Debby. There was widespread flooding of businesses and homes. The flooding began the evening of June 25, 2012, but it had been raining for three or four days prior to that evening. While Live Oak is prone to flooding, multiple witnesses testified to the severity of the flood and the damage it caused. This was an unusually severe flood, even for Live Oak. The city fire station was the hub for the City’s initial response to the storm and resulting flooding, and operated as the Emergency Operations Center (EOC) until a formal EOC was opened. The fire station was noisy and bustling with activity the evening of June 25, as one would expect during such an emergency. Sand had been dumped in one of the fire station bays, and state prisoners and volunteers were filling sandbags. Residents were coming in to pick up the sandbags. Calls were coming in for rescue and assistance. On June 25, 2012, Respondent had worked the 6:00 a.m. to 6:00 p.m. shift at the Suwannee County jail, and then went home. Shortly after 8:00 p.m., Respondent received a call from Keith Mixon, a newly elected councilman, who advised Respondent that Helvenston Street, a main street in Live Oak, was flooding. Respondent went to Helvenston Street to meet Mr. Mixon and saw the flooding. Respondent called the police chief, Buddy Williams, and told him that barricades were needed to keep passing cars out of the water on Helvenston Street. Respondent and Mr. Mixon stayed in that area for a while to assist in traffic control until help arrived. Respondent then went to the fire station. While at the fire station, Respondent inquired as to the whereabouts of the city administrator, Bob Farley. Alan Bedenbaugh is the training safety officer for the Live Oak Fire Department, and the safety officer for the City of Live Oak. At the time of the storm, Chief Croft was his supervisor, and continues to serve in that capacity. Mr. Bedenbaugh was at the fire station on the evening of June 25, as he was working a 24-hour shift. Mr. Bedenbaugh called Chief Croft, who was at home, to update him on how the city was being impacted by the storm. He informed Chief Croft that Respondent was at the fire station asking the whereabouts of department heads who were not at the fire station. During emergencies such as tropical storms, the Fire Chief is responsible for directing the necessary assistance to various entities to minimize the overall impact of the storm to the city. Examples of his responsibilities would be rescuing citizens and assisting with road closures. Chief Croft had information regarding the whereabouts of the department heads, and drove to the fire station in his city-owned vehicle to give Respondent this information. When Chief Croft arrived at the fire station, it was dark. Chief Croft informed Respondent that the city administrator, Bob Farley, and the public works director had gone to an out-of-town conference. This news upset Respondent. Respondent then called Mr. Farley at 10:35 p.m. and asked Mr. Farley where he was and why was he not at the fire station. Mr. Farley recalls Respondent saying, “Where the hell are you” and telling him to “get your ass down here,” and informed Mr. Farley that people were being rescued from their homes. Mr. Farley responded that he did not know the flooding was that bad, informed Respondent that he had not yet left town for the conference, and drove into town. At that time, Mr. Farley lived about nine miles outside of the City. When Mr. Farley got there, he met with Respondent. Chief Croft and Police Chief Williams were there as well. Four witnesses, including Respondent, testified as to what Respondent said to Mr. Farley during this telephone call. Chief Croft and Mr. Bedenbaugh, who were at the fire station and overheard Respondent talking on the phone, testified that Respondent told Mr. Farley that he needed to come down to the fire station or he could be dismissed. However, Respondent and Mr. Farley insist that Mr. Farley was not threatened about his job or about anything else. While Respondent’s tone was harsh, Mr. Farley was not offended by Respondent’s tone of voice or choice of words in light of all the circumstances surrounding the phone call. Respondent and Mr. Farley were the participants of the phone call and, therefore, heard both sides of the conversation and its context. Therefore, more weight is given to their description of the phone call between Respondent and Mr. Farley that night than to those witnesses who overheard only one side of the phone call in a noisy environment. In any event, Mr. Farley drove to the fire station, saw the extent of the flooding, and agreed that he needed to be there. After arriving at the fire station, Mr. Farley authorized Respondent to use a city truck to deliver sandbags. Mr. Farley met Mayor Garth Nobles at City Hall where Mr. Nobles signed a formal Declaration of Emergency. The Declaration is dated June 26, 2012 at 12:01 a.m. At some point during the evening, Respondent assisted with removing several Hispanic residents from a flooded mobile home in the area. Respondent speaks Spanish, and translated for these residents during this process. Respondent also filled sandbags and, at some point during the storm, delivered the filled sandbags to residents’ homes. At 1:08 a.m. on June 26, Marilyn Prins, Respondent’s mother, called Respondent and informed him that there was flooding in an area of town called Tara Trace where his sister, Debby Prins, lived. Mrs. Prins asked her son to check on his sister who lived alone. Respondent and Chief Croft got into Croft’s assigned city vehicle and drove to Tara Trace. There is conflicting testimony as to exactly what was said prior to their leaving. Chief Croft did not recall Respondent’s exact words, but testified that Respondent essentially told him to get in the car, and that they were going for a ride. Respondent testified that Croft offered to go with him. Mr. Bedenbaugh testified that he overheard Respondent say “Let’s get in the car and go for a ride.” Mr. Croft, while acknowledging that Respondent was not verbally abusive to him and made no actual threats against him, insists he felt compelled to accompany Respondent because of what he overheard in the fire station during the phone conversation between Respondent and Mr. Farley. Regardless of whether Respondent asked Chief Croft to accompany him or whether Chief Croft volunteered, there is no dispute that Respondent did not threaten him. Chief Croft drove to Tara Trace with Respondent in the vehicle. He was familiar with Tara Trace but did not know Debby Prins or where she lived. Respondent pointed out her apartment. When they arrived at Debby Prins’ apartment, there was already flood water in the home. Debby Prins was inside and asked if Respondent and Chief Croft would help move seven boxes of food out of a bedroom closet and onto the kitchen counter to keep the boxes out of the flood water. Again, there is conflicting testimony about exactly what was and was not said, but all three persons moved the boxes as Ms. Prins had requested. Respondent and his sister saw Chief Croft wince in pain while moving the boxes. When Respondent asked him what was wrong, Chief Croft responded that he recently had shoulder surgery. Chief Croft did not assist in moving any boxes after that. There is again conflicting testimony about what happened after Respondent and Chief Croft exited Debby Prins’ apartment. The totality of the evidence establishes that Respondent and Chief Croft then left to go knock on doors of several neighbors in the Tara Trace subdivision to warn them about the impending flood. Flooding was severe in the Tara Trace neighborhood, and some of Ms. Prins’ neighbors were elderly. This was done in the very early hours of the morning of June 26, at a time when, but for Respondent and Chief Croft going door to door to awake and alert them, most residents would have been asleep and otherwise unaware of the severity of the flood. After leaving Tara Trace, Respondent returned to the fire station and continued volunteering his time to assist the residents of Live Oak. After having worked a 12-hour shift at the county jail, Respondent worked as a volunteer from 8:00 p.m. Monday, June 25, until about 10:00 a.m. on Thursday, June 28. Respondent and other city councilmen volunteered their services and assisted residents by delivering sandbags to residents in their districts. At some point after the events of June 25, Chief Croft told the Mayor, Sonny Garth Nobles, about going to Tara Trace and moving boxes in Ms. Prins’ apartment. Approximately one year after Tropical Storm Debby, Chief Croft prepared a written statement in which he addressed the above described events of June 25, 2012, at Mayor Nobles’ request. In this statement, Chief Croft stated that he was directed by Respondent to go to Tara Trace and to move and relocate boxes in Ms. Prins’ apartment, and that he felt that Respondent misused his powers as a Councilman in doing so. Chief Croft did not inform Mr. Farley of the events regarding moving boxes at Debby Prins’ home, or of any problem Chief Croft may have had with Respondent’s actions the night of June 25 and early morning of June 26. Mr. Farley was Chief Croft’s immediate supervisor. Mr. Farley learned about these allegations upon reading a newspaper article about the ethics complaint investigation. The investigation did not commence until more than one year after the events of June 25 and 26, 2012. In June 2012, while Mr. Farley as City Administrator supervised at-will employees, such as the Fire Chief, a majority vote of the City Council had the power to terminate such employees. Now retired, Bob Farley was terminated from his position as City Administrator by the City Council in October 2012. The Fire Department has no written or unwritten policy regarding the removal or relocation of personal private property during an emergency. Based on the totality of the evidence, there is not clear and convincing evidence that Respondent corruptly directed Chief Croft to perform duties at his sister’s apartment in an attempt to secure a benefit for himself or others.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order finding that Respondent, Adam Prins, did not violate section 112.313(6), Florida Statutes. DONE AND ENTERED this 20th day of August, 2014, in Tallahassee, Leon County, Florida. S Barbara J. Staros Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of August, 2014.
The Issue The issues in this case are: whether the Petitioner, Lake Region Audubon Society (LRAS), a not-for-profit corporation, has filed a petition challenging the issuance of Environmental Resource Permit (ERP) No. 44025789.001 to Spanish Oaks of Central Florida, L.C.C. (Spanish Oaks); whether LRAS has standing to challenge the ERP; whether the Southwest Florida Water Management District (District, or SWFWMD) should issue the ERP to Spanish Oaks; and whether Spanish Oaks should be awarded attorney's fees and costs.
Findings Of Fact Application and ERP On or about January 23, 2004, Spanish Oaks submitted to SWFWMD an application for an ERP to construct a surface water management system (the System) to serve a 30.878-acre, 47-lot single-family residential development in the vicinity of Lakeland, Polk County, Florida. SWFWMD requested additional information on February 20, 2004, to which Spanish Oaks responded on or about February 27, 2004. The application was deemed complete on March 26, 2004. On April 27, 2004, SWFWMD issued the Spanish Oaks ERP. The Spanish Oaks ERP describes the System as follows: The proposed surface water management system includes storm drains with associated piping and three interconnected retention ponds (Pond A, Pond B, and Pond C). The system is designed to accommodate the runoff from the activities associated with the construction of the 47-lot subdivision with paved roads. The project site is located on the south side of State Road 33, just east of Lake Luther Road in Polk County. The project is located within a hydrologically closed drainage basin. The consultant utilized a design storm based on a 100-year, 24-hour rainfall event of 10.0 inches. The ponds are designed to retain the post-development runoff volume for the 100-year, 24-hour rainfall event without surface discharge. Project runoff will be conveyed to the proposed retention ponds. . . . No adverse off-site/on-site water quantity impacts are expected. Compliance with Chapter 40D-4, F.A.C., water quality requirements is assured; the retention ponds will treat the first one- half inch of runoff from the contributing drainage area and recover this volume through natural infiltration within 72 hours. This is consistent with Part B, Environmental Resource Permitting Information Manual Section 5.2(c). No adverse on-site/off-site water quality impacts are expected. There is 0.11 acre of herbaceous wetlands within the project area. Permanent wetland impacts are proposed to the 0.11 acre herbaceous wetland. No mitigation is required for this impact. LRAS' Amended Petition On June 6, 2005, LRAS filed a Petition signed by Paul Anderson, Mae Hartsaw, Carrie Plair, and Chuck Geanangel. SWFWD dismissed the Petition without prejudice. On July 11, 2005, an Amended Petition was filed, clarifying that LRAS was orally informed about the Spanish Oaks ERP by one of its members, since identified as Donna Stark, on May 10, 2005. The Amended Petition was signed by LRAS Steering Committee/Acting President Carrie Plair. The District determined that the Amended Petition was timely filed and substantially complied with the requirements for a petition. The Amended Petition alleged the following as disputed issues of material fact: the Permit allows construction of a retention pond in a sinkhole in the southeast portion of the site; construction of a retention pond in a sinkhole creates a danger to public health and safety; and Spanish Oaks failed to notify SWFWMD that it was beginning construction of the clay cores of certain berms surrounding the retention ponds, as required by a permit condition so that SWFWMD could inspect during the construction.3 The Amended Petition asserted that LRAS member Donna Stark observed firsthand a sinkhole collapse that allegedly occurred in the southeast portion of Spanish Oaks site during construction of Retention Pond A. The Amended Petition alleged that on January 25, 2005, Donna Stark, along with a state employee (since identified as Timothy King), observed a "very large cone-shaped depression with smooth steeply-sloping sides – so steep that Donna Stark was nervous that the front-end loader driving up and down the slopes could end up in the aquifer if he lost traction in the loose unconsolidated sands. In the center of the depression was a lake perhaps 50 feet in diameter." The Amended Petition further alleged that “Donna Stark judged the distance from the top of the ground surface to the water surface to be about 15 feet.” The Amended Petition also asserted that “[o]n November 13, 2004, LRAS member Donna Stark was informed by a man who had worked on the Spanish Oaks site that the retention ponds were 30 feet deep.” As to any specific rules or statutes requiring reversal or modification of the proposed agency action, LRAS’ Amended Petition asserted that the Spanish Oaks development violates Chapter 62, Florida Administrative Code,4 which, LRAS contends, disallows the use of a sinkhole to discharge contaminated water, citing Rule 62-522.300(1) and (3). See Conclusion 90, infra. Standing LRAS did not allege or present any evidence to prove that the substantial interests of a substantial number of its members would be affected by issuance of the ERP to Spanish Oaks. The Amended Petition alleged that, if LRAS failed to oppose the ERP, it would not "fulfill it's [sic] objectives and hence adversely affect the corporation and disappoint it's [sic] membership." But LRAS did not present any evidence at the final hearing to prove that its own substantial interests would be affected by the ERP. LRAS alleged that it has standing under Section 403.412(6), Florida Statutes. See Conclusions 74, infra. LRAS was formed as a Florida not-for-profit corporation in 1962. The evidence was sufficient to prove that LRAS has at least 25 current members residing in Polk County, where Spanish Oaks' ERP is proposed. Not only was there testimony in the depositions introduced into evidence as Spanish Oaks Exhibits 1, 2 and 3 that there were over 500 members of LRAS, most of whom would reside in Polk County, exhibits attached to those depositions included a partial membership list with at least 25 current members residing in Polk County,5 in addition to other members residing in Polk County who testified during the final hearing. Article II of LRAS' Articles of Incorporation states that LRAS was formed "to promote an understanding and interest in wildlife and the environment that supports it and to further the cause of conservation." It also includes language generally empowering the corporation to "have and exercise all of the powers of like corporations not for profit and to do all and everything necessary, suitable or proper for the accomplishment of any of the purposes, the attainment of any of the objects or the furtherance of any of the powers herein set forth, . . . and to do every other act or acts, thing or things incident or pertinent to or growing out of or connected with the aforesaid objects, purposes or powers or any of them." Finally, it includes the admonition that enumeration of specific "powers and objects . . . shall not in anyway be construed as any limitation or derogation of any power or object herein specifically named or any general power which this corporation might otherwise have." Spanish Oaks6 contends that LRAS has no standing in part because the Petition and Amended Petition was "ultra vires"-i.e., that, although there was no evidence that LRAS was dissolved or otherwise not in good standing as a duly- organized not-for-profit corporation, the signers did not have the legal authority to sign or file either the Petition or the Amended Petition on behalf of LRAS under its articles of incorporation and by-laws. At the time of its formation in 1962, LRAS had eleven charter members, six officers, and ten directors. Article VI of the Articles of Incorporation provided, in pertinent part: The affairs of the corporation shall be managed by a board of directors of "not less than five members of the officers provided for in this charter and the Board of Directors shall elect a president, a first vice president, a second vice president, a secretary and a treasurer. The number of directors shall be fixed by the by-laws of the corporation, but in no instance shall the number of directors be less than five. The Board of Directors may establish an Executive Committee from the members of the Board of Directors by resolution and may provide for the setting up of advisory boards or councils. The Board of Directors shall be elected from the voting members of the corporation at an annual meeting to be held in June of each year at a date to be determined by the Board of Directors at least fifteen days prior to such meeting. A quorum for the purpose of transacting business shall consist of those present. The officers and directors herein provided for shall serve until the next general election of the corporation, provided, however, that in the event of any vacancies prior to that time the Board of Directors may fill such vacancies by majority vote. There was no evidence of any amendment to those provisions in the articles of incorporation. Article I of LRAS' By-Laws, as last revised on April 7, 2002, provided for a president to: "(a) preside at meetings of the Society and of the Board of Directors; . . . ; (c) decide all questions of order, and act as judge in elections and declare the results; (d) appoint, subject to the Executive Committee's approval, the chairmen of the Standing Committee, and the chairmen of such special committees as may be authorized by the Board; (e) perform such other duties as the Board or the By-Laws may from time to time assign." It also provided for: a first vice-president, who was to preside and perform the duties of the president in the absence or inability of the president; a second vice-president, who was to preside and perform the duties of the president in the absence or inability of the president and first vice- president; a third vice-president to coordinate all field activities; a fourth vice-president to coordinate all membership activities; a fifth vice-president to be the newsletter editor; a recording secretary to keep an accurate record of all meetings, act as secretary of the board of directors, keep a record of attendance at meetings of the board of directors, and act as custodian of all records and papers; a corresponding secretary, who was to perform the duties of the recording secretary in the absence or inability of the recording secretary; and a treasurer. Article II of the By-Laws provided for the board of directors to "be composed of all officers and committee chairmen, and other members who may be appointed by the President." It also provided that the board of directors had the "power to fill vacancies in the list of officers." It also provided: "A majority of officers shall have the power to carry on the affairs of the Society in the event of emergency, between Board Meetings." Article III of the By-Laws provided for committees to be established by the president as deemed necessary as well as apparently for appointment of individuals with special responsibilities. Article IV provided for elections, including: "A Nominating Committee, consisting of a Chairman and two other members appointed by the President and announced at the January Board Meeting, shall submit a slate of officers at the March meeting for approval by the Board, to be voted on at the Annual Meeting of the Society in April. . . . A majority of the votes cast shall constitute an election. If there are no nominations from the floor, the slate of officers shall stand as presented." It also provided: "Elected officers shall be elected for a term of one year, and shall hold office until their successors have been elected." The president was limited to two consecutive terms, or a third consecutive term upon majority vote of the board of directors. Article V of the By-Laws provided for: open meetings of the board of directors to be held on the second Wednesday of each month September through May, unless changed on ten days notice to each board member; special meetings at the call of the president or written request of five members, with "due notice"; and one annual meeting to be held in April, unless changed by direction of the board. Article VI provided that a majority of the board would constitute a quorum, provided at least two officers were present, and that 15 members, including at least four Board members, would be a quorum for the annual meeting. Article VIII provided that membership in National Audubon, Florida Audubon or LRAS would constitute membership in all three levels for anyone living within the LRAS area. As indicated above, there are inconsistencies between the Articles of Incorporation and the By-Laws. For example, the Articles of Incorporation provide for an annual meeting in June, while the By-Laws provide for the annual meeting to take place in April, unless changed by the board of directors. In addition, the By-Laws provide for more officers than the Articles of Incorporation. Finally, the Articles of Incorporation provide that a quorum at the annual meeting shall consist of those present, while the By-Laws provide for a quorum of a majority of the board, provided at least two are officers, and that 15 members, including at least four board members, would be a quorum for the annual meeting. Under Section 617.0206, Florida Statutes, by-laws must be consistent with the articles of incorporation. Even allowing for the inconsistencies between the Articles of Incorporation and the By-Laws, the evidence suggested that, notwithstanding the formal and detailed (if somewhat inconsistent) provisions in the Articles of Incorporation and By-Laws, LRAS has operated less formally and with less attention to those details at least in recent years, in part because it is a totally-volunteer organization and seems always to be looking for members to share in the tasks of continued operation. Any member who expresses interest in the business of the organization is welcome to volunteer to be on the board of directors. Any volunteer is virtually assured of becoming a board member. There certainly are no contested elections. Spanish Oaks questions whether the process used results in the legitimate election of members of the board of directors and appointment of officers in accordance with the Articles of Incorporation and By-Laws. The evidence presented by Spanish Oaks as to status of LRAS' board of directors and officers was unclear. It consisted of the deposition testimony of Paul Anderson, Carrie Plair, and Chuck Geanangel, along with minutes attached as exhibits to the Anderson deposition. In addition, while not actually introduced in evidence at the final hearing, the minutes of the May 2005 meeting of the board of directors were attached to and formed part of the basis for the Motion for Summary Recommended Order which was filed by Spanish Oaks and joined by SWFWMD. In addition, the PRO filed by Spanish Oaks cited to these attachments to the Motion for Summary Recommended Order.7 The evidence indicates that, notwithstanding provisions in the Articles of Incorporation and By-Laws, for the last two years LRAS has operated using a five-member steering committee (also referred to as an executive board) instead of a president. Designed to relieve the burden on long-serving volunteer president, Pat Herbert, the idea was that the steering committee would rotate responsibility for conducting board meetings, so that each committee member would conduct two meetings a year. Anderson and Plair testified that they were on the LRAS Steering Committee, along with Geanangle, Bill Karnofsky and Mae Hartsaw. Plair testified that all members of the Steering Committee are members of the board of directors, along with all other officers. Anderson also named several other officers from memory--Liz Purnell, Paul Fellers (a vice- president), Gary McCoy (membership chair), and Herman Moulden (newsletter editor). He deferred to a list of board members, which he did not have with him and which was not placed in evidence. Plair named a few other board members--Bob Snow, Gina Lucas, Gil Lucas--along with Fellers. The minutes placed in evidence by Spanish Oaks all state that they are minutes of board of directors meetings and do not refer to an annual general membership meeting. However, Anderson testified that a board of directors meeting is combined with the annual general membership meeting. He believed it was in December but was not sure. Geanangel testified that the annual general membership meeting was in the spring, which was consistent with Plair's recollection, and was noticed as such. Plair testified that there generally were meeting agendas for all board of directors meetings (one of which, according to the testimony, would be the annual general membership meeting). No notices or agendas of meetings were placed in evidence. The minutes placed in evidence started with the September 2003 meeting of the board of directors. According to the minutes, Karnofsky conducted the meeting and also presented a treasurer's report, indicating that he also was the Treasurer at the time. Herbert, Louise Lang, Hartsaw, Plair, Paul and Janet Anderson, Ann Pinner, Gil and Gina Lucas, Paul Fellers, and Rae Bourqueim also attended. Bourquein announced a newsletter deadline. Pinner was looking for volunteers. Under old business, the rotation for conducting the next several meetings was announced: Karnofsky for October 2003, Plair for November and December 2003, Paul Anderson in January and February 2004, and Hartsaw in March and April 2004. Janet Anderson was congratulated on the job she was doing as "Publicity Chairperson." A December 2003 Christmas party was announced. Motions were made or seconded by Gil Lucas, Paul Anderson, Bourqueim, Fellers, and Hartsaw (suggesting that they were members of the board of directors). The minutes were recorded by Gina Lucas, as "Secretary Pro Tem." There was no other indication in those minutes as to who the officers and board members were. The minutes of the October 2003 meeting indicate that the meeting was conducted by Herbert, not Karnofsky, who was unable to attend due to illness. Nine others attended, including the Andersons, Plair, the Lucases, Fellers, Bourquein, Herbert, and Purnell, who was the Recording Secretary. The November 2003 minutes indicate that Plair conducted the board meeting. Hartsaw, Bourquein, Geanangel, Karnofsky, the Lucases, Fellers, Marvel Loftus, the Andersons, Ron Butts, Herbert, and three others also attended, along with Purnell, the Recording Secretary. Motions were made or seconded by Paul Anderson, Hartsaw, Fellers, Herbert, Geanangel, and Janet Anderson. The minutes of the January 2004 meeting of the board of directors indicate that Paul Anderson conducted the meeting, Karnofsky presented a treasurer's report, and Purnell was the Recording Secretary. Hartsaw and Geanangel attended the meeting, along with the Andersons, the Lucases, Herbert, Lang, Loftus, and two others. A motion was made by Herbert and seconded by Loftus. According to the minutes of the February 2004 meeting of the board of directors, it was conducted by Paul Anderson again, again included Karnofsky's treasurer's report, and again was recorded by Purnell. Janet Anderson, Lang, Plair, Hartsaw, the Lucases, Geanangel, and three others also attended. The minutes indicate that Chuck Geanangel would conduct the March 2004 meeting. They also included the reports of several others, including Plair and Hartsaw, without specifying whether they were officers. The minutes indicated that the slate of candidates would be the same as the current officers, but they do not specify who the current officers were, or whether the reference to "officers" was meant to include board members. The minutes of the March and April 2004 meetings, which were conducted by Geanangel and also attended by Hartsaw, the Andersons, Bourquein, Karnofsky, Purnell, Loftus, Pinner, Plair, Fellers, and others. Motions were made or seconded by Herbert, Paul Anderson, Hartsaw, and Loftus. These minutes do not reveal any more information about who the officers were but do reflect that Ron Butts was willing to be on the board of directors and would be contacted about the position. The minutes indicate that a board of directors meeting was held on May 12, 2004, and that it was conducted by Anderson again and was attended by 13 people, including Plair, Hartsaw, Butts, and Geanangel. The minutes do not mention its being a general membership meeting, do not mention any voting, and do not mention any nominations from the floor for membership on the board of directors. They indicate that a new membership chair volunteer was called for and that Karnofsky would be asked to conduct the next meeting in September 2004. Motions were made or seconded by Hartsaw, Butts, Geanangel, and Loftus. The September 2004 minutes indicate that the board meeting was conducted by Geanangel, not Karnofsky, who was absent and did not present his treasurer's report. Plair, the Andersons, Butts, and Ann Pinner attended. Motions were made or seconded by Janet Anderson, Geanangel, Butts, Plair, Paul Anderson, and Pinner. A House Interior Committee was formed, with Plair, Susie Brantley, and Gina Lucas as members. Janet Anderson recorded the minutes in Purnell's absence. According to the minutes, Geanangel also conducted the October 2004 meeting of the board, which was also attended by Bourquein, Karnofsky (who gave the treasurer's report), Pinner, Plair, the Andersons, Paul and Donna Fellers, Butts, the Lucases, and Purnell, the Recording Secretary. Gina Lucas reported for the House Interior Committee. Motions were made or seconded by Butts, Loftus, and Paul Fellers. According to the minutes, Plair conducted the November 2004 meeting of the board, which was also attended by Karnofsky (who gave the treasurer's report), Pinner, the Andersons, Hartsaw, Butts, one other person, and Purnell, the Recording Secretary. It was announced that Bourquein was resigning from her position as Newsletter Editor. There was no replacement yet. The next minutes were for a board meeting in January 2005. Paul Anderson conducted the meeting, which also was attended by Geanangel, Plair, Karnofsky (who gave the treasurer's report), Hartsaw, Gary McCoy, Pinner, Paul Fellers, the Lucases, Butts, one other person, and Purnell, the Recording Secretary. McCoy was introduced as the new Membership Chairman, and it was announced that Herman Moulden had accepted responsibility for the newsletter and website. Geanangel reported on Polk County's desire to use the Saddle Creek property owned by Audubon of Florida for water storage, flow, and quality purposes. Leadership vacancies for Nature Faire and Corresponding Secretary were announced. A motion was made by Pinner and seconded by Hartsaw. According to the minutes, the February 2005 meeting was conducted by Paul Anderson. Plair, Karnofsky, Butts, McCoy, Hartsaw, the Andersons, Moulden, Geanangel, Pinner, Paul Fellers, and Purnell attended. Moulden solicited articles for the newsletter. It was suggested that an invitation to serve on the board be extended to Bob Snow. Motions were made or seconded by Butts, Janet Anderson, Plair, and Pinner. Purnell recorded the minutes. According to the minutes, the March 2005 meeting was conducted by Hartsaw. The Andersons, Paul Fellers, Moulden, McCoy, Butts, Karnofsky, Plair, Geanangel, and one other person also attended. McCoy presented a membership report, and Moulden reported on the newsletter. Geanangel reported on negotiations with Polk County on the Saddle Creek property. Motions were made or seconded by Paul Anderson, Fellers, and Karnofsky. Hartsaw would chair the April meeting. Paul Anderson recorded the minutes in Purnell's absence. According to the minutes, the April 2005 meeting was conducted by Hartsaw. Pinner, McCoy, Karnofsky, the Andersons, Moulden, the Lucases, Butts, Plair, Paul Fellers, Purnell (the Recording Secretary), and one other person also attended. Karnofsky gave his treasurer's report, Moulden asked for newsletter articles, and a nominating committee was appointed, consisting of Paul Anderson, Karnofsky, and Plair. A motion was made by Karnofsky and seconded by Loftus. The real need for a corresponding secretary was discussed. According to the minutes,8 the May 11, 2005 meeting was conducted by Karnofsky. Plair, Butts, the Andersons, Pinner, McCoy, Moulden, Geanangel, Purnell (the Recording Secretary), Donna Stark, and one other person also attended. Motions were made by Paul Anderson and seconded by Pinner. The minutes reflect a nominating committee report which included: a five-member Steering Committee of Karnofsky, Hartsaw, Geanangel, Plair, and Paul Anderson; Hartsaw as Vice- President for Programs; Geanangel as Vice-President for Conservation; Paul Fellers as Vice-President for Field Trips; McCoy as Vice-President for Membership; Moulden as Vice- President for News Letter; Karnofsky as Treasurer; and Purnell as Recording Secretary. Also nominated as members of the board of directors were: Janet Anderson, Louise Lang, Marvel Loftus, the Lucases, Butts, McCoy, Moulden, Snow, Pinner, and six others. No voting or nominations from the floor are reflected in the minutes. While the evidence was not clear, it appears from the testimony and minutes that all those attending the board of directors meeting on May 11, 2005, except for Donna Stark and one other person, were officers or otherwise members of the board of directors under the Articles of Incorporation and the By-Laws. The minutes of the February 2004 board meeting state that the "LRAS Candidate slate will be the same as the current officers." It appears that they included at least Karnofsky, Bourqueim, and Purnell and that Karnofsky, Plair, Paul Anderson, Hartsaw, and Geanangel were on the steering committee. Assuming the use of the word "officers" in the minutes meant to include the current board members who were not officers, it appears that they also would have included Herbert, Lang, Janet Anderson, Pinner, the Lucases, Fellers, Loftus, and Butts. There are no minutes mentioning a noticed general membership meeting or election of the board of directors in the spring of 2004. If there was one, the minutes do not indicate that there were nominations from the floor. If there was a noticed general membership meeting for purposes of electing the board of directors, with a quorum, and there were no nominations from the floor, either the slate of current officers (and, probably, directors) "stood," or the officers and board of directors would continue to serve until the next general election, under Article VI of the Articles of Incorporation. In either case, vacancies prior to that time could be filled by the board of directors by majority vote, and it would appear that, at the beginning of the board meeting on May 11, 2005: the officers included at least Karnofsky, Purnell, McCoy, and Moulden; the steering committee still consisted the same five; and other board members included at least Lang, Janet Anderson, Pinner, the Lucases, Fellers, Loftus, and Butts. Only 12 individuals appearing to be board members attended the meeting on May 11, 2005. While this would not be a quorum under the By-Laws, it would be a quorum under the Articles of Incorporation, which would control over inconsistent By-Laws.9 Assuming the May 2005 meeting was the noticed general membership meeting, since the minutes do not reflect any nominations from the floor, the slate stood as presented under Article IV of the By-Laws. If not, (or if the By-Laws established the necessary quorum), under Article VI of the Articles of Incorporation, the current officers and board of directors would serve until the next general election. In either case, it appears that authorized officers and directors were in place and in attendance at the board meeting on May 11, 2005, and that there was a quorum for transacting business under the Articles of Incorporation. In any event, Spanish Oaks did not prove the contrary. According to the May 2005 minutes, as well as the testimony at the final hearing, Donna Stark made a presentation asserting that Spanish Oaks was using at least three sinkholes to collect runoff water, instead of digging retention ponds, contrary to legal requirements and polluting the underlying aquifer. She asked LRAS to consider filing an administrative challenge to the ERP. After the presentation, the board decided that the Steering Committee would continue to investigate and make a decision as to what role LRAS should have in the future. Although the minutes do not reflect a vote on a resolution, the assigned task of the Steering Committee was like the role of the "Executive Committee" referred to in Article VI of the Articles of Incorporation. The Steering Committee reviewed the information presented by Starks, decided to file a challenge, and invited Starks to help draft the Petition, which was signed by four members of the Steering Committee between May 31 and June 2, 2005, as well as the Amended Petition signed by "LRAS Steering Committee/Acting President Carrie Plair" on July 6, 2005. Starks actually drafted almost all of the Petition and Amended Petition. The subject of the challenge in the Petition and Amended Petition is virtually identical to a challenge to Spanish Oaks' ERP that was filed by Starks on behalf of her not-for-profit corporation, Central Florida EcoTours, in early May 2005 but was time-barred and dismissed because Starks and Ecotours got mailed notice of the issuance of the ERP to Spanish Oaks. Spanish Oaks implied that Starks told LRAS about the fate of the EcoTours challenge and asked LRAS to file its Petition and Amended Petition at her behest to block the Spanish Oaks development for her ulterior motives. But those allegations were denied by LRAS and were not proven. Alleged Sinkholes The principal concern raised by LRAS, both in its Amended Petition and at hearing, is that one or more of the retention ponds constructed on Spanish Oaks is located over a sinkhole. LRAS is of the view that this alone should mandate that the ERP application be denied. Retention ponds are often located in depressional areas since these land features are generally the lowest spots on a property and allow the engineers designing a surface water management system to utilize the land’s natural drainage configuration. A relic sinkhole, as contrasted to an active sinkhole, has either been sealed or has self-sealed, so that there is no connection between the sinkhole and the underlying aquifer. An active sinkhole provides a direct connection-- referred to by both LRAS’ and Spanish Oaks' experts as a “good communication”--between the surface and the aquifer. Retention ponds are intended to allow infiltration of water through the soils underlying the pond bottom. This infiltration through soil layers provides water quality treatment, and it is necessary to ensure that the bottom surface of a retention pond is sufficiently separated by soils from the top of the aquifer. If an active sinkhole develops in a retention pond, SWFWMD requires that some corrective action be taken. Generally, this involves refilling the cavity formed by the sinkhole. However, because retention ponds are designed to allow infiltration through the pond bottoms, care must be taken to ensure that any fill does not impede this infiltration function. The bottoms of the retention ponds at Spanish Oaks are approximately seven feet below natural grade. The Floridan Aquifer in the Spanish Oaks vicinity is approximately 75 feet below grade. The separation between the pond bottoms and the limestone that is part of the aquifer is sufficient to provide adequate water quality treatment. Soil borings done around the perimeter of each of the ponds indicate the presence of clays and clayey sands between the pond bottoms and the aquifer. These soil layers act as an aquitard that impedes the migration of water into the bedrock (and upper soils into lower cavities, voids, or ravel zones, which are areas of loose, unconsolidated soils capable of further downward subsidence). In each instance, the depth at which the aquitard occurs is below the bottom depth of the retention ponds. There was no competent evidence admitted at hearing to suggest that there are active sinkholes in or under any of the three retention ponds on Spanish Oaks. To the contrary, the SWFWMD personnel who have been on the site testified that they saw nothing on the site that indicated the presence of an active sinkhole. Contractors and engineers who were on the site prior to and during construction of Spanish Oaks stated that they were not aware of any active sinkholes. Nonetheless, because LRAS made the allegation that there were sinkholes on the site, Spanish Oaks retained a geotechnical engineer with expertise in sinkholes, Sonny Gulati, to conduct a sinkhole investigation of the three retention ponds. Mr. Gulati used testing protocols that are generally utilized to determine whether sinkhole activity has caused damage to a building or other structure. Mr. Gulati observed no damage to the retention ponds and his investigation revealed no sinkhole activity onsite. (LRAS’ expert also was unaware of any damage to the retention ponds.) Mr. Gulati used both ground penetrating radar (GPR) and standard penetration testing (SPT) during his investigation. GPR makes use of repetitive, short-duration, electromagnetic waves, which are deflected back to a receiver by interfaces between materials. GPR detects subsurface features such as sinkholes and voids through the reflected radar signal. GPR must be conducted with the transmitter in contact with the ground surface. It cannot be used over a water surface. Mr. Gulati took GPR readings around each of the three retention ponds, in two circles, one contained within the other. GPR data collected on the Spanish Oaks site revealed no subsurface anomalies. SPT is described in Mr. Gulati’s report as: a widely accepted method of in-situ testing of foundation soils (ASTM D-1586). A two- foot long, two-inch outside diameter, split barrel (“spoon”) sampler, attached to the end of drilling rods, is driven 18.0 inches into the ground by successive blows of a 140-pound hammer freely dropping 30.0 inches. The number of blows needed for each six (6) inches of penetration is recorded. The sum of the blows required for penetration of the second and third six-inch increments of penetration constitutes the test result or N-value. LRAS Exhibit 5, p. 23. An N-value of less than 2 indicates the presence of a ravel zone, a subsurface area with voids or loose soils into which soils from upper strata can travel and which acts as a conduit between strata. An N-value of less than 4, in combination with a loss of drilling fluid,10 may also indicate a ravel zone. Solutioned calcareous ravel zones are those ravel zones that occur in the limestone that forms the top of the Floridan Aquifer. Based on his investigation, Mr. Gulati concluded as follows: Our investigation did not reveal the existence of specific conditions such as cavities or voids, solutioned calcareous ravel zones, or the presence corroded bedrock conditions located above the dense bedrock stratum indicative of sinkhole activity at the subject site. Based on the interpretations of our recent subsoil investigation, site reconnaissance, available background and geologic data, it is our opinion that the subject site has not been impacted by a sinkhole related activity. In our professional opinion, the scope of work included in this analysis is of sufficient scope to eliminate sinkhole activity at the subject site within a reasonable professional probability. LRAS-5 at 18 (emphasis in original). SWFWMD's expert agreed that there is no direct connection to the Floridan Aquifer. Marc Hurst, a geologist who testified for LRAS, opined that Mr. Gulati’s sinkhole investigation was insufficient to demonstrate whether or not the Spanish Oaks retention ponds were constructed over sinkholes.11 However, Mr. Hurst offered no opinion as to whether the retention ponds are located over active sinkholes. Nor did Mr. Hurst specifically disagree with Mr. Gulati’s conclusion that the Spanish Oaks retention ponds have not been impacted by active sinkholes.12 To the contrary, Mr. Hurst admitted that the retention ponds were holding water on the day that he observed them--indicating that to him that the ponds were not acting as a strong conduit to the aquifer. Mr. Gulati also noted the significance of the presence of water in the ponds, stating that, if there were active sinkholes in the ponds, they would not hold water.13 The only suggestion of any sinkhole-related damage to the retention ponds came from Donna Stark, who testified that George Wilt--a heavy equipment operator at the site incorrectly identified by Ms. Stark as “an employee of Spanish Oaks”--told her that there had been a sinkhole collapse during the excavation of Pond A. This hearsay testimony was directly contradicted by Mr. Wilt himself, who testified that he made no such statement. Despite the allegation in LRAS’ petition regarding observations of collapse of sinkhole by Donna Stark, Ms. Stark herself admitted at hearing that she did not witness any actual collapse. Rather, she testified that, on January 25, 2005, she saw what she believed to be the aftermath of a sinkhole collapse. Stark may have been confused by the amount of excavated material being stored on the ground surface around the pond. 43,906 cubic yards of dirt was excavated from Pond A alone and was stacked to a height of 8-10 feet higher than the natural ground elevation. Others who observed the site on January 25, 2005, saw no evidence of a sinkhole collapse. Tim King, a Florida Fish and Wildlife Conservation Commission employee who was with Ms. Stark on January 25, 2005, merely reported seeing pond excavation in process. Laura Howe, a SWFWMD employee who inspected the site on that date, observed that “[i]t appears depth of ponds are [p]robably close to permitted depth.” Moreover, Ms. Stark admits that, on February 10, 2005, she observed the ponds to be “[s]even and a half feet, or six and a half, whatever it should be.” Ms. Stark’s suggestion that the collapse was filled in between January 25 and February 10, 2005, is belied by testimony that repairing a sinkhole collapse of the size suggested by Ms. Stark would have required much more material than was available. (No dirt was imported onto the site.) The evidence admitted at hearing requires a finding that there was no sinkhole collapse onsite. Spanish Oaks provided reasonable assurance that the System was designed and constructed to include sufficient separation between the pond bottoms and the Floridan Aquifer to prevent groundwater contamination. Construction of Berms LRAS contended in its Amended Petition that Spanish Oaks failed to give notice prior to constructing clay cores in some of the berms onsite, as required as a condition of the ERP, and that this failure constituted failure to provide reasonable assurances.14 The interconnection of the three ponds that are part of the System will allow them to function as one pond, while a perimeter berm around the entire Spanish Oaks project will ensure that surface water runoff is retained onsite and directed toward the ponds. Ponds A and C are located, respectively, at the southeast and northeast corners of Spanish Oaks.15 The design plans submitted with the ERP application indicated that the berms alongside the eastern side of Ponds A and C are to include clay cores, a design feature that was included as a specific condition in the ERP. The purpose of the clay cores was to prevent offsite impacts caused by lateral movement of water. The specific conditions of the ERP also required that Spanish Oaks notify SWFWMD's "Surface Water Regulation Manager, Bartow Permitting Department [William Hartmann], at least 48 hours prior to commencement of construction of the clay core, so that District staff may observe this construction activity." LRAS proved that Mr. Hartmann did not personally receive a phone call prior to the construction of the clay cores, as required by the ERP, and that SWFWMD staff did not observe the construction. Mr. Hartmann explained that this constituted a permit condition compliance issue which would prevent the ERP from being transferred to the operation phase until SWFWMD was assured that the clay core was, in fact, constructed as required. To confirm proper construction of the clay core, Spanish Oaks undertook soil borings. SWFWMD staff engineer Sherry Windsor was onsite to observe the soil borings. Spanish Oaks also submitted a report from its engineering consultant certifying that the clay cores had been properly constructed in accordance with the ERP. SWFWMD typically relies on a project engineer’s signed and sealed certifications of compliance matters. SWFWMD staff observations and the certification provided by the Spanish Oaks engineer satisfactorily resolved the issue of proper clay core construction. Failure to notify Mr. Hartmann prior to construction, as required by the ERP, does not undermine Spanish Oaks' provision of the necessary reasonable assurance for issuance of the ERP.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that SWFWMD issue a final order approving the issuance of ERP 44025789.001 to Spanish Oaks. Jurisdiction is retained to consider Spanish Oaks’ Motion for Attorney's Fees under Sections 57.105, 120.569(2)(e), and 120.595(1)(a-e), if renewed within 30 days after issuance of the final order. DONE AND ENTERED this 10th day of November, 2005, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 10th day of November, 2005.
