Findings Of Fact Based upon the testimony and evidence received at the hearing, the following facts are found: The Largo Fire Department is comprised of approximately 70 employees and maintain three stations, with a fourth station apparently in the planning stage. The chief administrative officer in full command of the entire Department is the fire chief, who is directly responsible to the City Manager. In descending order of command are two assistant chiefs, three fire captains and twelve fire lieutenants. There are also two fire inspectors, forty-six fire fighters, three or four dispatchers and one secretary. (Exhibit No. 6). Assistant Fire Chiefs - Second in the line of command are the two assistant fire chiefs. They work a standard forty-hour week, 8:00 a.m. to 5:00 p.m., five days a week. Their office is one half block away from the main fire station. If the chief is out of town or unavailable, one of the assistant chiefs assumes command. When the chief and both assistant chiefs are unavailable, either a captain or a lieutenant is designated to be in command. With regard to the personnel evaluations made by either captains or lieutenants, assistant chiefs normally accept the recommendations made by them. On occasion an assistant chief will attach an additional memo to a recommendation submitted by an inferior officer. Assistant chiefs have no authority to fire Department personnel or to prevent merit pay increases. Only the chief has these powers, subject to review by the City Manager. There was testimony that after an applicant goes through certain testing procedures with the City's personnel department, the chief and assistant chiefs make the ultimate decision as to who is hired. Assistant chiefs receive input from captains and lieutenants with regard to purchasing new equipment and personnel transfers. With regard to the budget, assistant chiefs may purchase items within the guidelines of the budget. They make recommendations respecting the formulation of the budget, but the chief makes the ultimate decision as to what will be submitted to the City for the budget. If everything is going well at a fire scene, assistant chiefs stand back and observe rather than assume control. Equipment placements and transfers are made by the assistant chiefs. With regard to collective bargaining, assistant chiefs would directly assisting administering the outcome of the negotiations. Fire Captains - Like fire fighters, captains work a 24-hour shift and then are off 48 hours. They wear the same work uniform as fire fighters, but their dress uniform includes a white, rather than a blue, shirt. The captains eat their meals with and sleep in the same quarters as fire fighters. Each captain is responsible for a third of the combat portion of the Fire and directs the operations of the officers and men on their particular shift. On the fire scene, captains are the working supervisor and perform the normal functions of search and rescue. Around the station, captains participate in the minimal domestic and maintenance duties and tasks as part of a team effort. In the event that both the chief and assistant chief are absent, a captain designated by the chief assumed the duties and responsibilities of an assistant chief. With regard to authority to transfer men, discipline men and make policy, there was testimony that such authority is solely in the form of making recommendations in those areas. A lower grade officer or fire fighter can also submit written reports or charges concerning disciplinary action. While the job description for captain's requires them to make thorough weekly inspections of each station, apparatus and personnel the chief has been personally making such inspections for the past several months. While captains are required to keep records of sick leave, the the administrative secretary actually handles all leave records. Captains do have the authority to visit persons on sick leave if there is reason to believe a sick leave is not legitimate. The job description requires captains to forward to headquarters every six months a written personnel evaluation report on all personnel under their command. This is done by a standardized form sent to the captains by City's personnel department. Captains also have the authority to give mutual aid assistance when requested by a neighboring unit by sending men and equipment. While captains have the authority to make changes within their subordinates' command, in emergency situations, most changes in command come out in the form of memos from the administrative chief. In the captain's absence, his duties are assumed by a lieutenant. If a lieutenant is not present the lieutenant's duties are assumed by what is known as a lead fire fighter - a senior fire fighter by virtue of tenure and training. Captains do not formulate policies applicable to the Fire Department nor do they prepare of administer the budget. They can make recommendations with regard to the budget, as can lieutenants and other officers. They cannot buy equipment, nor can they move equipment between stations without written permission. Changes in the organizational structure are not discussed with captains. Any type of procedural recommendation which is made is discussed among the three captains and is then presented to the assistant chiefs and chief for final action. It was opined by Captain Lambert that captains would have no duties or responsibilities to management with respect to collective bargaining and that, as a member of a union, there would be no conflict of interest between the performance of their duties and the possibility of grievances filed within the union. It was Captain Lambert's opinion that policy' decisions were implemented, rather than formulated, by him. Fire Lieutenants - There is one lieutenant assigned to work each of three shifts at each of the stations. Lieutenants report to and perform under the general direction of the captain, also known as the shift commander, who reviews the decisions of the lieutenants. In addition to the job description contained in Exhibit No. 6, there was testimony that lieutenants and fire fighters work on the same time schedule, sleep in the same quarters, eat at the same table, prepare meals jointly and perform fire fighting duties jointly. Lieutenants are in charge at the scene of a fire until a senior officer arrives. There was testimony that although lieutenants participate in the normal evaluation procedure which is used as a basis for merit pay increases and they supervise the duties of the men in the station to which they are assigned, their basic duties are fighting fires. Lieutenants do not have anything to do with preparing or administering the budget nor would they work in the City's behalf with regard to collective bargaining negotiations. They have no authority in actually formulating the policy of the Largo Fire Department. If a fire fighter wants to change his schedule or get time off, he would submit a request to a lieutenant or a captain, depending on who was on duty that day. If both were on duty, he would go to a lieutenant. Fire Inspectors - With respect to inspectors, the petitioner simply submitted the job classification contained in Exhibit No. 6 and suggested that none of the tasks enumerated therein meet the statutory criteria of management employees of F.S. Ch. 447. As noted above, it was the City's position that inspectors do not share a community of interest with line personnel that are responsible for fire suppression in that they do not work the same shift and their duties are primarily fire code enforcement rather than fire combat. Dispatchers - The primary duties of dispatchers are to receive and dispatch fire and emergency calls. They dispatch calls solely for the fire department and do not dispatch for the police department or any other city agency. Another of their duties is to maintain files on equipment usage. Dispatchers work eight-hour shifts and eat with the fire fighters when a meal is served during their eight-hour shift. Their uniform is the same as the fire fighters. When a dispatcher is absent from work, a fire fighter fills in for him; although a dispatcher would never fill in for a fire fighter. Dispatchers have nothing to do with formulating policies of the department nor with preparing or administering the budget. They would not assist management in collective bargaining negotiations. Dispatchers are immediately responsible to the lieutenant, then the captain and on up the line of command. One of the four dispatchers of the Largo Fire Department is presently a member of and is represented by the Largo Employees Association, which presently has a collective bargaining agreement with the City. (Exhibit No. 5) This agreement includes public safety dispatchers in the unit. At the time of the hearing the LEA had not yet been certified by PERC. The one dispatcher who testified would prefer to be represented by petitioner, rather than the LEA. Fire Fighters and Chief - As noted above in the introduction, the parties stipulated that fire fighters were properly included in the proposed unit and that the chief is properly excluded from the unit. Recognition history - In the first letter from petitioner's president to the City Manager, recognition was requested for a unit consisting of captains, lieutenants and fire fighters. After the petitioner first spoke to representatives of the City regarding the bargaining unit, the staff assistant to the City Manager first recommended to the Manager that a unit consisting of fire fighters and lieutenants be approved. The City Commission questioned the inclusion of lieutenants. At that point, communications apparently broke down and unfair labor practice charges were filed by both the petitioner and the City. Their charges were subsequently dismissed. After that the petitioner filed its petition for Certification of Representation requesting inclusion of assistant chiefs, captains, inspectors and dispatchers, in addition to lieutenants and fire fighters, since the issue would then be before PERC and PERC could then rule on everybody once and for all. Although petitioner's constitution and by-laws speaks of a unit consisting of the ranks of captain, lieutenant and fire fighter, the same is in the process of being amended. In accordance with F.S. Section 447.307(3)(a) and F.A.C. Rule 8H-3.23, no recommendations are submitted. DONE and ENTERED this 18th day of November, 1975, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: G.R. McClelland, Esquire City Attorney City Hall Largo, Florida 33540 Mr. Robert Jewell City Hall Largo, Florida 33540 Terry A. Furnell 501 South Fort Harrison Clearwater, Florida 33516 Mr. Barry Burkhart 2320 East Bay Drive, No. 135 Clearwater, Florida 33516 Mrs. Lawrence C. Black 152 8th Avenue Southwest Largo, Florida 33540
Findings Of Fact During October, 1976, and up until the present date, Texgas Corporation has operated a service station in Palatka, Florida, at which motor fuels are offered for sale to the public at large. On October 7, 1976, Paul Rheaume, a petroleum inspector, took a sample of gasoline from one of the pumps at the station in accordance with the Department's regular inspection procedures. The sample was delivered to the Department's mobile chemical laboratory. The sample was found to have a fifty percent evaporated temperature of 246 degrees. A second sample was taken from the tank at the service station. Tests conducted at the mobile laboratory determined that the fifty percent evaporated temperature of that sample was 245 degrees. The sample taken from the tank at the service station was forwarded to the Department's main laboratory in Tallahassee. Tests conducted at that laboratory found the fifty percent evaporated temperature to be 247 degrees. There was no evidence offered at the hearing from which it could be determined that Texgas Corporation knew that the fifty percent evaporated temperature of motor fuel that it was offering for sale to the public was not within the standards set out in the Department's rules and regulations. Texgas Corporation has purchased its fuel for resale from Charter Oil International in Jacksonville, Florida. Texgas Corporation did no intentionally adulterate fuel which it received from Charter Oil. Texgas Corporation offered the fuel for resale in good faith, believing that the fuel was within the Department's standards.
The Issue The issue in this case is whether Petitioner's Class "D" Watchman, Guard or Patrolman's License and Class "G" statewide gun permit should be revoked based upon the allegations contained in the Administrative Complaint.
Findings Of Fact At all times material hereto, Respondent has been the holder of license numbers Dal-06l98 and GOO-25l67 issued by the Division of Licensing, Department of State. During the summer of 1988, Respondent was employed by Wells Fargo as a security guard. He had been working for Wells Fargo for approximately four years. Part of his duties included serving as a "messenger guard" on armored trucks. On June 10, 1988, Respondent was serving as a "messenger guard" on a Wells Fargo armored truck in Dade County, Florida. In that role, he was required to deliver and pick up money from various customers. Carlos Diaz was the driver of the truck that day. Respondent had been assigned to this route for approximately one year and he was more familiar with the route than Carlos Diaz was. During a stop at a Western Union Check Cashing Service, Respondent was robbed of approximately two hundred thousand dollars. The robbery took place as Respondent exited the - truck. A car approached him and the occupant pulled a gun on Respondent and forced him to turn over the money. There are indications that there was some internal complicity at Wells Fargo with the robbery. On the day of the incident, the keys to the armored truck typically used for this route were not in the truck where they were usually kept. In addition, the spare key that was supposed to be kept in the office could not be located. As a result, Respondent and his driver, Diaz, were required to take an older truck which did not have a radio. Therefore, they were not in contact with the police or the Wells Fargo office at the time the robbery took place. While Wells Fargo has a fleet of approximately thirty trucks, all but two of them have radios. The truck used on the day of the robbery was one of the two without a radio and was the only truck available for use as a substitute. Several of the usual procedures required by Wells Fargo for deliveries were not followed at the stop where the robbery occurred. Wells Fargo procedures require the trucks to be parked so that the door to the cargo area opens towards the building to which deliveries are made and away from the street and traffic. This procedure was not followed and Respondent, as the messenger guard, was required to exit the truck into the parking lot on the side of the truck oppositite the delivery point entrance. In addition, Wells Fargo policies require a guard to pull his gun from the holster when exiting the truck with money. In this case, the evidence established that the Respondent's gun was either in his holster or in his waistband when the robbery took place. Subsequent to the robbery, the driver of the armored truck, Carlos Diaz, confessed to being a conspirator in the robbery. He also implicated Respondent. Diaz had initially denied any involvement in the robbery. However, he subsequently signed a statement confessing his role and accusing Respondent of coordinating the crime. Diaz was apparently never arrested for his role in the robbery. However, as noted below, no evidence was presented to explain why Diaz was not charged. Carlos Diaz did not testify at the hearing. Several sworn statements given by Diaz and a deposition of him were introduced into evidence. As noted above, Diaz originally denied any involvement with the robbery. However, he subsequently claimed that Respondent approached him about participating in the crime. Diaz said that he was instructed by Respondent to provide a misleading description of the getaway car and otherwise deny any knowledge of the event. In return, he was to receive a portion of the proceeds of the robbery. Diaz originally informed investigators that the robbers were driving a dark, late- model sedan with dark, tinted windows. Later, after he admitted his involvement, he told investigators that the robbers were driving a light colored, older car. This later description is consistent with the description of the getaway car provided by at least one other eyewitness. Respondent advised the investigators that the robbers were driving a relatively new, dark colored car. This description was consistent with the initial description provided by Diaz, but inconsistent with Diaz' later description provided after he confessed and the descsription provided by another eyewitness to the incident. One uninvolved eyewitness who observed the robbery from a distance of approximately 200 feet confirmed that the getaway vehicle was a lighter colored vehicle that was several years old. The witness is director of security at a local community college who is trained to be observant. His testimony is credited. The witness also commented on the rather casual nature in which the money was transferred to the getaway vehicle. At the time, he did not realize that a robbery had taken place. The F.B.I. agent who interviewed Respondent and attempted to obtain a description of the suspect noted that the Respondent provided only a general description of the alleged perpetrator. This F.B.I. agent did not feel comfortable with the composite that was produced as a result of his discussions with Respondent. Respondent was arrested on charges of conspiracy and grand theft. On January 22, 1990, Respondent entered into a plea agreement whereby he entered a plea of nolo contendere to the charges, adjudication was withheld and he was placed on probation for a period of eighteen months. While Respondent suggests that Diaz implicated him in the crime in order to obtain favorable treatment, no competent evidence was presented to establish that Diaz had an agreement with the police or state attorney. The evidence did not present sufficient explanation as to why Diaz would unjustifiably implicate Respondent.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner enter a Final Order revoking Respondent's Class "D" Security Guard license and Class "G" gun permit. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 1st day of October, 1990. J. STEPHEN MENTON 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 1st day of October, 1990. APPENDIX TO RECOMMENDED ORDER CASE NO. 90-1862 The Respondent has submitted a Proposed Recommended Order. The following constitutes my rulings on the proposed findings of fact submitted by the Respondent. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. Adopted in substance in Findings of Fact 3 and 15. Adopted in relevant part in Findings of Fact 12. Rejected as irrelevant. A related subject is addressed in Finding of Fact 9. The first two sentences are adopted in substance in Findings of Fact 9. The third sentence is rejected as constituting argument rather than a finding of fact. Adopted in relevant part in Findings of Fact 15. Adopted in substance in Findings of Fact Adopted in substance in Findings of Fact 6 and 7. Adopted in substance in Findings of Fact Adopted in relevant part in Findings of Fact 3. Rejected as hearsay that was not corroborated by competent substantial evidence. The only testimony on this issue was the deposition testimony of Carlos Diaz. Rejected as not established by competent substantial evidence. See ruling on proposed Finding of Fact 10 above. Rejected as not established by competent substantial evidence. The only specific evidence of conversations between Respondent and Carlos Diaz is the uncorroborated deposition testimony of Carlos Diaz. Rejected as irrelevant. 14.-17. Rejected as not established by competent substantial evidence. See ruling on proposed Finding of Fact 10 above. Adopted in relevant part in Findings of Fact 13. The first sentence is adopted in relevant part in Findings of Fact 10. The remainder is rejected as hearsay that it was not corroborated by competent substantial evidence. Adopted in substance in Findings of Fact 12. Rejected as irrelevant. Rejected as not established by competent substantial evidence. The only evidence of conversations between Respondent and Carlos Diaz is the uncorroborated deposition testimony of Carlos Diaz. Rejected as not established by competent substantial evidence. COPIES FURNISHED: Anthony J. Scremin, Esquire 37 N.E. 26th Street Miami, Florida 33137 Ann Cowles-Fewox, Esquire Henry Cawthon, Esquire Department of State, Division of Licensing The Capitol, MS #4 Tallahassee, Florida Honorable Jim Smith Secretary of State The Capitol 32399-0250 Tallahassee, Florida 32399-0250 Ken Rouse General Counsel Department of State The Capitol, LL-10 Tallahassee, Florida 32399-0250
The Issue The issue to be determined in this case is whether Sabal Trail is entitled to the proposed Environmental Resource Permit and Easement to Use Sovereign Submerged Lands to construct a natural gas pipeline.
Findings Of Fact The Parties Petitioner, WWALS, is a Georgia not-for-profit corporation registered with the Florida Department of State as a Foreign Not For Profit Corporation. Its mailing address is in Hahira, Georgia. WWALS’ mission is to advocate for conservation and stewardship of the Withlacoochee, Willacoochee, Alapaha, Little, and Upper Suwannee River watersheds in South Georgia and North Florida. WWALS stated in its petition that it has a total of 85 members, 36 of whom reside in Florida. The total number of WWALS members was not established at the final hearing. If members that joined WWALS after it filed its petition for hearing are included, WWALS has about 40 members living in Hamilton County and Suwannee County. Sabal Trail is a Delaware limited liability company that is registered to do business in the State of Florida. It is the applicant for the authorizations that are challenged by Petitioner. The Department is the state agency charged with administering the Environmental Resource Permitting program under chapter 373, Florida Statutes, and Florida Administrative Code Chapters 62-4 and 62-330. The Department is also the state agency authorized by chapter 253, Florida Statutes, and Florida Administrative Code Chapter 18-21, to review and authorize certain uses of state- owned submerged lands. General Project Description Sabal Trail proposes to construct an interstate natural gas pipeline. The primary purpose of the pipeline is to support electric power generation in Florida. The pipeline would start in the vicinity of a Transcontinental Gas Pipeline Company station in Tallapoosa County in Alabama. The portion of the pipeline in Florida would cross twelve Florida counties, entering the state in Hamilton County and terminating in Osceola County. The pipeline would include 232.75 miles of 36-inch diameter pipe for the Mainline Route, 13.1 miles of 36–inch diameter pipe for the Hunter’s Creek Line, and 21.5 miles of 24- inch pipe for the Citrus County Line. The pipe used would be made of high-strength ductile carbon steel. The project would include construction and operation of three compressor stations and three meter and regulation stations in Florida. There would also be access roads, pig launcher and receiver stations, mainline valves, and pipe storage/work areas. Most of the pipeline would be installed using a conventional “cut and cover” technique, which means a trench is excavated, sections of pipe are placed in the trench and connected, and the trench is backfilled with soil excavated from the trench. However, waterbodies along the route, including the Suwannee River and Santa Fe River, would be crossed using Horizontal Directional Drilling (“HDD”). The HDD method involves boring a pilot hole beneath the waterbody and then enlarging the hole with one or more passes of a reamer until the hole is large enough to pull a prefabricated pipe segment through the hole. The pipeline would be installed more than 40 feet beneath the Suwannee River and Santa Fe River. During HDD operations, drilling fluid or “mud” is used to lubricate the drill head, and remove cuttings from the hole. Drilling mud is a non-toxic, naturally occurring, bentonite clay, which is commonly used for drilling water wells. The pipeline will require a permanent 50-foot right-of- way. Because the construction would require digging trenches through wetlands, drilling under riverbeds, and construction of stormwater management systems for the various stations, an environmental resource permit from the Department must be obtained for the work. Because some construction is over state- owned submerged lands, authorization from the Trustees of the Internal Improvement Trust Fund is also required. Route Selection The pipeline route was selected based on environmental and cultural resource factors and co-location opportunities with existing utility rights-of-way. The proposed route was modified many times to reduce environmental impacts and respond to landowner requests. The pipeline runs parallel to two existing natural gas pipelines that cross the Santa Fe River. The closest major spring to the pipeline route would be Madison Blue Spring, 1.7 miles away. The route is closer to some smaller springs, but it would not cross near spring vents or areas of concentrated spring flow. The pipeline would cross above the Falmouth Cave system. However, the pipeline would be only four-to-six feet beneath the land surface. The cave system is more than 100 feet below ground. Sabal Trail reduced or eliminated impacts to wetlands and waterbodies along the pipeline route, but the project would result in unavoidable temporary and permanent losses of portions of wetlands along the route. The functional loss of wetland functions, as calculated under the Uniform Mitigation Assessment Method (“UMAM”), would be offset by Sabal Trail’s purchase of credits from approved wetland mitigation banks. Petitioner’s Objections The primary concern of WWALS and its members is the possibility of environmental impacts arising from the construction of the pipeline in karst terrain. Karst terrain, which is limestone undergoing dissolution and characterized by the formation in the limestone of holes, cracks, fissures, conduits, and sinkholes, is common in North Florida and throughout the State. Although fragile in particular locations, karst terrain is able to support large linear facilities in North Florida such as Interstate 10, Interstate 75, and railroads, which bear loads of many tons without collapses occurring in the underlying limestone. Sabal Trail conducted geophysical tests, evaluated the potential for sinkhole formation, developed drilling best management practices, and prepared a karst mitigation plan to address potential adverse circumstances that might arise during construction of the pipeline. The pipeline design specifications provide reasonable assurance that the formation of a sinkhole along the path of the pipeline would not cause it to break. It is in the interests of Sabal Trail to build and operate the pipeline so that breaks or disruptions of service do not occur. There are existing natural gas pipelines that were constructed under the Suwannee River and Santa Fe River. A geologist with the Florida Geological Survey testified that he was unaware of any adverse impacts that have been associated with these other pipelines. WWALS presented no evidence of adverse impacts that have been caused by similar pipelines in similar areas. Petitioner’s members are afraid the pipeline will cause adverse impacts because of its construction in karst terrain, but with the exception of four WWALS members whose properties would be crossed by the pipeline, the concerns expressed by members about how they would be affected were vague and speculative. Not all of the potential pipeline impacts described by WWALS members were vague or speculative, but the members’ injuries were vague and speculative. For example, it was not adequately explained how a sinkhole, if one were to occur along the route of the pipeline, would affect them. WWALS expressed concerns about water quality, but the use of drilling mud and grout for the HDD operations is unlikely to affect the residential water wells of any member or non- member. Nor would it affect the water quality of the rivers under which the pipeline is installed, because the amount of drilling mud and grout is so small in relation to groundwater volumes. WWALS expressed general concerns about fish and wildlife impacts, but no member identified any particular wetland impact caused by construction of the pipeline that would directly affect him or her and Petitioner presented no competent evidence to refute the UMAM assessment or the reasonableness of the proposed mitigation. No competent evidence was presented about the possibility that HDD drilling under the rivers could result in adverse impacts to fish and wildlife. Some WWALS members testified they use and enjoy the rivers and surrounding area, but the concerns about adverse impacts to their use and enjoyment were speculative, being based on the proposition that a sinkhole or other disruption of the limestone will be caused by the construction of the pipeline and it will cause a change in the rivers or land to a degree that their use and enjoyment of the rivers or land will be materially diminished. Petitioner did not establish the connection between pipeline impacts and interference with members’ use of area waters. One member testified he has an organic farm and believes it would be adversely affected by air pollution from a proposed compressor station for the pipeline, but there is a separate permit associated with the air quality impacts of the pipeline. Air quality is not a cognizable issue in this proceeding. A few members believe there could be impacts that would adversely affect their business interests, which are not interests that this proceeding was designed to protect. Although a substantial number of WWALS members have substantial interests in the use and enjoyment of the waters and environment of Hamilton County and Suwannee County, a showing of potential injury to those interests was only established in the record for four WWALS members--the four who own land that the pipeline will cross. Four members is not a substantial number when compared to the total number of WWALS members living in Hamilton County and Suwannee County, which is about forty. Public Interest For projects located in, on, or over wetlands or other surface waters, an applicant must provide reasonable assurance that the project will not be contrary to the public interest, or if such activities significantly degrade or are within an Outstanding Florida Water, are clearly in the public interest, as determined by balancing the criteria set forth in rule 62-330.302. Rule 62-330.302(1)(a) lists seven public interest factors to be considered and balanced: 1 Whether the activity will adversely affect the public health, safety, or welfare or the property of others; Whether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats; Whether the activity will adversely affect navigation or the flow of water or cause harmful erosion or shoaling; Whether the activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity; Whether the activity will be of a temporary or permanent nature; Whether the activity will adversely affect or will enhance significant historical and archaeological resources under the provisions of s. 267.061; and The current condition and relative value of functions being performed by areas affected by the proposed activity. Petitioner presented no competent evidence to refute the evidence presented by Sabal Trail and the Department that the pipeline project would not result in adverse impacts on public health, safety, or welfare. Beyond general, undisputed evidence about the characteristics of karst geology, no competent evidence was presented by Petitioner to show that a karst-related impact could occur that would affect its members. Petitioner presented no competent evidence to refute the evidence presented by Sabal Trail and the Department that the pipeline would not cause adverse impacts to fish and wildlife. Petitioner presented no competent evidence to refute the evidence presented by Sabal Trail and the Department that the project would not cause adverse impacts to navigation or the flow of water or cause harmful erosion or shoaling. Petitioner presented no competent evidence to refute the evidence presented by Sabal Trail and the Department that the project would not cause adverse impacts to fishing or recreational values or marine productivity. It is undisputed that some of the pipeline impacts and the pipeline, itself, will be of a permanent nature. Petitioner presented no competent evidence to refute the evidence presented by Sabal Trail and the Department that the proposed pipeline would not adversely affect significant historical and archaeological resources. Petitioner presented no competent evidence to refute the evidence presented by Sabal Trail and the Department that the proposed pipeline would not adversely affect the current condition and relative value of environmental functions being performed in the area that would not be fully mitigated. Considering the seven public interest factors listed above, the proposed pipeline is not contrary to the public interest. The Suwannee River and Santa Fe River have been designated as Outstanding Florida Waters. Any activities that would affect them must be shown to be clearly in the public interest. As discussed in the Conclusions of Law, demonstrating that a project is clearly in the public interest requires greater assurance that all permitting requirements will be complied with. Sabal Trail showed clearly that it will comply with all permitting criteria. Rule 62-4.242 prohibits the degradation of water quality in an Outstanding Florida Water. Sabal Trail and the Department showed the construction and operation of the pipeline would not degrade the water quality of the Suwannee River or Santa Fe River. Rule 18-21.004(1)(a) requires that activities on sovereignty submerged lands not be contrary to the public interest. Rule 18-21.003(51) defines public interest in this context as: Demonstrable environmental, social, and economic benefits which would accrue to the public at large as a result of a proposed action, and which would clearly exceed all demonstrable environmental, social, and economic cost of the proposed action. Therefore, to obtain authorization to use sovereignty submerged lands easement, an applicant must create a net public benefit. Sabal Trail and the Department demonstrated the project creates a net public benefit because it would not have adverse environmental impacts that would not be fully mitigated and the project addresses a need determined by the Public Service Commission for additional natural gas transportation capacity into Florida, enhancement of natural gas supply diversity and reliability, and increased competition for natural gas transportation services. WWALS contends the proposed project would conflict with rule 18-21.004(2)(a), which requires that all sovereignty submerged lands be primarily managed to maintain “essentially natural conditions, propagation of fish and wildlife, and traditional recreational uses such as fishing, boating, and swimming.” However, WWALS presented no competent evidence to show that any sovereignty submerged lands would lose their essential natural conditions, that fish and wildlife propagation would be diminished, or that traditional recreational uses would be interfered with. The proposed project complies with the requirement of rule 18-21.004(2).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection issue a final order that approves issuance of Environmental Resource Permit No. 0328333-001 and grants an easement to use sovereign submerged lands to Sabal Trail Transmission, LLC, for the Sabal Trail Natural Gas Pipeline. DONE AND ENTERED this 11th day of December, 2015, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER 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 11th day of December, 2015. COPIES FURNISHED: Richard S. Brightman, Esquire Timothy M. Riley, Esquire H. French Brown, IV, Esquire Hopping, Green and Sams Post Office Box 6526 Tallahassee, Florida 32314 (eServed) Gus McLachlan Sabal Trail Transmission, LLC Suite 300 400 Colonial Center Parkway Lake Mary, Florida 32746 John S. Quarterman, President WWALS Watershed Coalition, Inc. Post Office Box 88 Hahira, Georgia 31632 (eServed) Jack Chisolm, Esquire Sidney C. Bigham, III, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399 (eServed) William R. Wohlsifer, Esquire Leighanne C. Boone, Esquire William R. Wohlsifer, P.A. 1100 East Park Avenue, Suite B Tallahassee, Florida 32301 (eServed) Jonathan P. Steverson, Secretary Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399 (eServed) Craig Varn, General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399 (eServed) Lea Crandall, Agency Clerk Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399 (eServed)
Findings Of Fact On July 14, 1982, Jimmy Haywood Nixon, an employee of petitioner, took samples of gasoline offered for sale at respondent's Beacon Store No. 7 in Milton, Florida, including a sample of regular gasoline mixed with alcohol, known as "regularhol." Pat Flanagan, a chemist employed by petitioner, performed various tests on the sample of regularhol, including ASTM method 86, and determined that the 50 percent evaporated distillation temperature of the mix as a whole was 150 F. His testimony to this effect was uncontroverted. When he learned the test results, Mr. Nixon locked the regularhol pump at respondent's store in Milton, only unlocking the pump to release the mixture when a thousand dollar bond was posted on July 16, 1982. Respondent began mixing regular gasoline with ethanol and selling it as regularhol in 1978 at the same price as regular gasoline. Until recently, Mocar made less on regularhol sales than on sales of regular gasoline. It originally offered regularhol as its way of helping to reduce the national consumption of petroleum. The Phillips' terminal in Pensacola was respondent's source of the regular gasoline it mixed to make regularhol. This gasoline reached Pensacola by barge, and petitioner's employees sampled and tested each barge's cargo. The 50 percent evaporated distillation temperature of the regular gas Mocar bought from Phillips varied over a range of more than 30 degrees Fahrenheit upwards from 180 F. Mixing ethanol with the gasoline lowered its distillation temperature, but until the batch sampled on July 14, 1982, Mocar's regularhol had passed the testing petitioner has regularly conducted.
Recommendation Respondent has not been shown to be more blameworthy than any of the fuel owners involved in the cases cited above, each of whom regained part of the bond that had been posted. It is, accordingly, RECOMMENDED: That petitioner retain four hundred dollars ($400.00) and return six hundred dollars ($600.00) to the respondent. DONE and ENTERED this 19th day of December, 1982, in Tallahassee, Florida. ROBERT T. BENTON Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 1982. COPIES FURNISHED: Robert A. Chastain, Esquire Department of Agriculture and Consumer Services Room 513 Mayo Building Tallahassee, Florida 32301 James Milton Wilson, Esquire 201 East Government Street Pensacola, Florida 32598 The Honorable Doyle Conner Commissioner of Agriculture The Capitol, Plaza Level Tallahassee, Florida 32301
The Issue The issue in this case is whether, in connection with Respondent’s employment of Petitioner, Respondent unlawfully discriminated against Petitioner on the basis of his race or national origin.
Findings Of Fact Introductory Facts Petitioner Lincoln Nicholson (“Nicholson”) is a black man who was born in Jamaica. Respondent City of Sunrise, Florida (the “City”), is a municipality located in Broward County. The City operates its own natural gas utility. Nicholson began working for the City in its Gas Department as a Gas Service Person I (“GSP-I”) on August 7, 2000. As of the date of the final hearing, Nicholson was still employed by the City in that capacity. Nicholson contends that not only is he qualified for employment as a Gas Service Person III (“GSP-III”), which is a more senior, higher-paid position in the City’s Gas Department than the one he presently holds, but also that he actually has been performing the functions of a GSP-III. Nicholson claims that but for his race or national origin, the City would have either hired him as a GSP-III or promoted him to that position. He charges that the City has committed acts of intentional employment discrimination by refusing to offer him the higher- ranking position. The City admits that Nicholson meets the minimum qualifications for hire as a GSP-III but denies the allegations of intentional discrimination; it maintains that it filled the position for which Nicholson applied with a better (or at least equally) qualified candidate, namely, the City employee who had previously held the position. The Material Historical Facts On September 13, 1999, the City posted a notice advertising its intention to hire a qualified person to work as a GSP-III in the City’s Gas Department. According to the notice, the job would entail “supervisory and technical work” in the areas of “cathodic protection, corrosion and leak control on a natural gas distribution system.” The notice identified the minimum qualifications for the position, the relevant one, for present purposes, being this: --Must possess a Cert[ificate] of Competency as a Master or Journeyman Gas Fitter from the Central Examining Board of Plumbers of Broward County or equivalent. The position in question had opened up a few weeks earlier, when the incumbent, a longtime employee of the City named Roger Black, took a job as a Utility Operator Trainee in the City’s Utilities Department. Although this move resulted in a reduction in salary for Mr. Black and hence was technically a “demotion,” the evidence shows (and it is found) that Mr. Black transferred voluntarily and that his performance as a GSP-III had always been rated at least satisfactory. On or about October 11, 1999, an individual named Douglas Blau applied for the GSP-III position. Mr. Blau was well qualified for the position——indeed, he was arguably over- qualified1——and via memorandum dated April 14, 2000, Gas Department Director Harry Zehender recommended to Personnel Director James Harris that Mr. Blau be hired. The City then began “processing” Mr. Blau’s application. Meanwhile, on April 17, 2000, Nicholson applied for the job. Nicholson had approximately 25 years’ experience working in the field of natural gas distribution, although, at the time of applying for the GSP-III position, he had been working outside that field for about a year and a half. The evidence leaves no doubt, however——and the City stipulated——that Nicholson met all the minimum qualifications for employment as a GSP-III. Nicholson interviewed for the position with Alistair MacLeod, the Gas Department’s Supervisor. At some point, either during the interview or later, Mr. MacLeod told Nicholson that the GSP-III position had been filled by another applicant, meaning Mr. Blau, who had been recommended for employment but not yet offered the job.2 Because Mr. Blau was the putative successful applicant for the GSP-III post, Nicholson was asked if he were interested in taking a more junior position as a GSP-I. Nicholson responded affirmatively; was offered the job on July 11, 2000; accepted the City’s offer; and, as mentioned, began working for the City as a GSP-I on August 7, 2000. Around the time Nicholson came to work for the City, Mr. Black applied for his old job back.3 The City did not interview Mr. Black because he was known to the personnel responsible for making the decision to hire. He was not offered the position because Mr. Blau was still in line to receive it. On or about September 14, 2000, Mr. Blau informed the City that he was no longer interested in the GSP-III position. The next week, on September 22, 2000, Nicholson submitted a supplement to his application for the GSP-III position.4 The City did not interview Nicholson because he was known to the personnel responsible for making the decision to hire. About ten months later, the City chose Mr. Black, who is white, to fill the vacant GSP-III position——the very position that Mr. Black had vacated nearly two years earlier, in August 1999. He returned to his former position on July 21, 2001.5 Mr. Black’s Qualifications Nicholson argues that Mr. Black should have been disqualified from consideration for the GSP-III position because he did not, Nicholson alleges, possess a valid Certificate of Competency as a Master Gas Fitter. In support of this contention, Nicholson proffered a copy Mr. Black’s certificate numbered 91-CMGF-562-X, which specifies an expiration date of August 31, 1992, together with a letter from the Broward County Records Custodian dated July 14, 2003, which attests that Mr. Black’s Certificate of Competency No. 91-CMGF-562-X is active for the period from August 2, 2002 through August 31, 2004. From these papers Nicholson infers that Mr. Black’s Certificate of Competency as a Master Gas Fitter must have been inactive between August 31, 1992 and August 2, 2002——and hence “invalid” when he returned to his old job as GSP-III in July 2001. The City, however, as part of its Composite Exhibit 1, put into evidence a copy of Mr. Black’s Certificate of Competency No. 91-CMGF-562-X from the mid-1990s, showing an expiration date of August 31, 1996. This, of course, does not prove that Mr. Black’s certificate was active in July 2001, but it does falsify Nicholson’s inference that Mr. Black failed to renew his certificate for ten straight years. As a result, the undersigned declines to infer that Mr. Black’s certificate was, more likely than not, inactive as of July 21, 2001. Further, the notice that the City posted regarding the available GSP-III position stated that a Certificate of Competency as a Master Gas Fitter “or [its] equivalent” was required. The undersigned agrees with the City that an inactive certificate reasonably can be deemed the equivalent of an active certificate for the purpose of meeting this qualification, since, as the City proved, a GSP-III does not need to possess the authority conferred by the Broward County certificate in order to perform the job; rather, the City is interested in employing persons who have the underlying knowledge and experience necessary to obtain such a certificate.6 Thus, the undersigned finds alternatively that the City, as it suggests, reasonably could have determined, without intending to discriminate unlawfully, that Mr. Black at least possessed the equivalent of a Broward County Certificate of Competency as a Master Gas Fitter. In sum, Mr. Black was, in fact, a qualified applicant for the GSP-III position. Is Nicholson Better Qualified Than Mr. Black? Nicholson contends that he was the superior applicant vis-à-vis Mr. Black, for two reasons that the undersigned considers worthy of note. The first is Nicholson’s claim that he is (and at all times material has been) responsible for “cathodic protection,” which is a method of corrosion control, while Mr. Black has been assigned to other duties. Describing cathodic protection as the major function of a GSP-III, Nicholson contends that he is de facto doing the job without the benefits of the title, whereas Mr. Black, who has the title and attendant benefits, is not doing the job. It is found that Nicholson is, in fact, responsible for cathodic protection and that this function historically has been undertaken primarily by a GSP-III rather than a GSP-I such as Nicholson. However, the evidence also persuasively establishes that all Gas Department service personnel are expected to perform a variety of tasks, including cathodic protection. Presently, the fact that Nicholson is qualified and able to perform cathodic protection frees Mr. Black to handle other functions. On this record, the undersigned is not persuaded that Nicholson necessarily does a better job of cathodic protection than Mr. Black would do or that Mr. Black is incapable of doing the work. Instead, the evidence shows that the City is attempting to make the highest and best use of its employees. The second plausible basis for Nicholson’s contention that he is better qualified than Mr. Black is that Nicholson has more years of experience in the field of natural gas distribution——some 25 years versus about 12 for Mr. Black as of the time the decision to hire was made. If all experience-years were necessarily equal, then Nicholson would have a point. But, obviously, all experience-years are not necessarily equal. In this instance, the undersigned finds that the City reasonably viewed Mr. Black’s 12 years’ service in the City’s Gas Department, which included a number of years working as a GSP- III, as more relevant experience than Nicholson’s. The undersigned is ultimately not persuaded that Nicholson was necessarily the better qualified candidate, as compared to Mr. Black, but instead finds that the City, as it suggests, reasonably could have decided, without intending to discriminate, that Mr. Black was at least equally qualified, if not more so. Ultimate Factual Determinations The City’s proffered reasons for hiring Nicholson as a GSP-I rather than a GSP-III, and for later selecting Mr. Black to fill the vacant GSP-III position after Mr. Blau, the putative successful applicant, removed himself from consideration, are legitimate, nondiscriminatory reasons for the decisions in question. By putting forward these legitimate, nondiscriminatory reasons, the City obviated the need to determine whether Nicholson presented a prima facie case of discrimination in connection with either of these decisions. The undersigned is not persuaded, and therefore does not find, that the grounds asserted by the City for its employment decisions are actually a pretext for unlawful discrimination. In sum, Nicholson has not established by the greater weight of the evidence that the City discriminated unlawfully against him when it hired Nicholson as a GSP-I or when it later chose Mr. Black, instead of Nicholson, to fill the GSP-III position for which Nicholson had also applied.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR enter a final order dismissing Nicholson’s Petition for Relief. DONE AND ENTERED this 19th day of September, 2003, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of September, 2003.
