The Issue Whether petitioner should recover $735 allegedly disbursed by respondent under Contract 3-14.073-051 to one Kenneth L. Jenks?
Findings Of Fact Kenneth L. Jenks of Franklin County was enrolled in a CETA program administered by the Bay County School Board at some point during 1983.
Recommendation It is, accordingly RECOMMENDED: That petitioner abandon its efforts to recover from respondent any monies claimed under Contract No. 3-14.073-051. DONE and ENTERED this 7th day of June, 1984, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of June, 1984. COPIES FURNISHED: Lizanne Batey, Chief Bureau of Job Training Department of Labor & Employment Security Division of Labor, Employment & Training Tallahassee, Florida 32301 Hiram J. Spurling, Director Job Training Partnership Act Program Department of Education Division of Vocational Education Knott Building Tallahassee, Florida 32301 =================================================================
Findings Of Fact Peace River Center for Personal Development (herein Petitioner) is a community service center that offer services to clients who are victims of crimes. Petitioner has been awarded VOCA funds in the past by Respondent. Pursuant to the contract with Respondent, Petitioner was advised that VOCA funds were awarded specifically and that renewal was not automatic but would be considered each funding year. The contract and the VOCA guidelines grant Respondent the discretion to renew or not renew funding requests By letter dated March 23, 1994, Respondent advised Petitioner that its VOCA contract was expiring on June 30, 1994. Petitioner was also advised that its contract may or may not be renewed for an additional year depending on the outcome of a program evaluation and the availability of VOCA funds. In the March 23, 1994 letter to Petitioner, Respondent advised Petitioner that federal VOCA funding to Florida for the 1994/95 fiscal year had been reduced and the reduction would be passed on to applicants. The issuance of renewal funds for the 1994/95 VOCA contracts were based on three criteria, (1) the grant renewal requests, goals and objectives, and budget; (2) an evaluation of the VOCA program's effectiveness in serving victims of crime; and (3) the availability of funds. For fiscal year 1993/94, Petitioner received $55,000 in VOCA funds. Those funds were to assist with the provision of services to adult sexual abuse and domestic violence victims. Petitioner submitted documentation in support of its initial VOCA funding request and indicated that part of its funding would be used to hire a coordinator therapist and a child care advocate. However, during the course of the 1993/94 fiscal year, Petitioner did not fill those positions until the second half of the year based on delays that it experienced in building a new facility. As a result, a portion of the VOCA funds lapsed. Because of those delays, a contract amendment was executed by the parties allowing the lapsed money, which would have been spent for those professional positions, to be used for furniture and supplies. Based on the modification, revised goals were established. Thus, Petitioner set out to serve only 20 children in the child care unit instead of the 60 as noted in the funding request and to provide only 300 hours of child care to children of domestic violence victims instead of the 1000 hours as requested. The modification was an effort to maximize funding in the interest of the community for the 1993/94 fiscal year. Respondent established a procedure for evaluating all applicants for VOCA funding grants in 1994/95. This procedure included forwarding a packet of information which was sent to all applicants. The packet included a cover letter, instructions, a check list and various forms to be completed. As noted, the federal VOCA grant to Respondent was reduced by 5 percent for fiscal year 1994/95. Although Respondent's staff initially recommended to the Attorney General that all VOCA grants be reduced by 5 percent, Respondent reconsidered and decided that it would be more appropriate to evaluate each program to determine which programs were more efficient and were providing the most needed services to the communities. Respondent also reviewed those programs which provided services that were offered by VOCA monies and were achieving the goals and objectives that were originally stated in the funding request. The Respondent implemented this procedure and in doing so, set up a competitive process to rate each of the 48 existing VOCA grantees. To be awarded VOCA funds, the applicants were initially requested to submit renewal applications. Secondly, Respondent solicited comments from community representatives concerning the performance of the grantee over the preceding fiscal year and evaluated those comments. Next, Respondent reviewed and analyzed the funding by the internal monitoring system that was in place at the time. Utilizing this procedure, the grant managers within Respondent's office reviewed their internal reviews, evaluated the monitoring report of the agency that they had prepared including monthly reimbursement requests and any communication or correspondence that had been entered into between the agencies. Respondent's input from the community centered around the performance of the grantees. In measuring their performance, Respondent attempted to get at least three certifiers from persons in the community who worked with, or were familiar with, the grantees. Respondent selected three of the certifiers that had originally certified the grantee program prior to the award of the first VOCA grant and sent forms to those entities. In addition, Respondent attempted to get two additional certifiers, the state attorney's office or local law enforcement, to participate in the certification process. This second group of certifiers was contacted by telephone. In Petitioner's case, only three certifications were submitted. Respondent reviewed those written certifications and rated Petitioner. One certifier observed that Petitioner had insufficient staffing, that waiting periods were too long for victims to get in and that rape crisis volunteers needed to be matched in age with rape victims. That certifier did not intend for her review to impact adversely upon Petitioner's VOCA grant request although she stood by the representations made in the certification. The next certifier related that Petitioner displayed a program weakness in that victims of domestic violence were required to attend the same domestic violence treatment program class as the abuser or pay an additional $200 to attend a different treatment program. She also noted that certain child care victims were not assisted during court appearances, which was an area that Petitioner specifically noted that it would provide services under the VOCA grant. The next certifier related that Petitioner had a number of weaknesses in its program, albeit unspecific, and that she was familiar with the quality of services that Petitioner rendered with VOCA funds since February of 1994. Upon receiving all of the certification information, Respondent compiled a report and ranked each applicant by assigning a numerical value to each applicant. The ranking was based on the totality of the responses received by Respondent. All of the applicants were rated and based on those ratings, their VOCA grant applications were either renewed or not renewed. Of the 48 applicants evaluated, 45 were funded in whole or in part based on their numerical ranking and 3 requests were not funded, including Petitioner's request. Of all the applicants, Petitioner was ranked 48th or last. Specifically, Petitioner was advised of the non-renewal by Respondent in a June 10, 1994 letter that: This decision was based on an internal performance evaluation and upon performance evaluations of your program by agencies and organizations within your community. A major factor in the non-renewal determination was the administration of the VOCA funds, resul- ting in hiring delays, causing a de-obligation of funds and unnecessary waiting lists for crime victims. The effectiveness of services to your community was also a major factor in not offering your agency a renewal contract. Finally, Respondent's chief of advocacy and grants management of the Attorney General's office, Marcie Davis, was formerly employed in a position where she answered a toll-free information line to assist victims of crimes. Ms. Davis recalled an attempt, by her, to get counselling for a child who was a victim of domestic violence in Petitioner's service area (his mother was murdered by her boyfriend) during the 1993/94 fiscal year. Ms. Davis was unable to get services from Petitioner for that child due to its waiting list - a period of eight to thirteen weeks. Respondent's denial of Petitioner's application for VOCA funds was a non-renewal and was not a termination for cause. Respondent utilized sound discretion in awarding the VOCA funding to the various grantees. There was no evidence that the ranking of any grantee, including Petitioner, was either arbitrary or capricious.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Respondent enter a final order denying Petitioner's request to reverse the discretionary decision made to deny Petitioner's request for VOCA funding for the 1994/95 fiscal year. DONE AND ENTERED this 26th day of January, 1995, in Tallahassee, Florida. JAMES E. BRADWELL 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 26th day of January, 1995. APPENDIX TO RECOMMENDED ORDER Rulings on Petitioner's proposed findings of fact: Paragraph 4, rejected, not probative, paragraph 5 rejected, contrary to the greater weight of evidence, paragraphs 11-13, Recommended Order. Paragraph 7, rejected, speculative and not probative. Paragraph 9, rejected, contrary to the greater weight of evidence, Paragraphs 9 and 10, rejected contrary to the greater weight of evidence, paragraphs 12 and 17, Recommended Order. Rulings on Respondent's proposed findings of fact Paragraph 11, rejected, irrelevant and not probative. COPIES FURNISHED: Dennis Eshman, Esquire 1745 Highway 17 South Bartow, Florida 33830 M. Catherine Lannon, Esquire Gregory A. Chaires, Esquire Office of the Attorney General PL-01, The Capitol Tallahassee, Florida 32399-1050 Honorable Robert Butterworth Attorney General Department of Legal Affairs The Capitol Tallahassee, Florida 32399-1050
The Issue The threshold issue in this case is whether the decisions giving rise to the dispute, which concern the allocation and disbursement of funds appropriated to Respondent by the legislature and thus involve the preparation or modification of the agency's budget, are subject to quasi-judicial adjudication under the Administrative Procedure Act. If the Division of Administrative Hearings were possessed of subject matter jurisdiction, then the issues would be whether Respondent is estopped from implementing its intended decisions to "de- obligate" itself from preliminary commitments to provide low- interest loans to several projects approved for funding under the Community Workforce Housing Innovation Pilot Program; and whether such intended decisions would constitute breaches of contract or otherwise be erroneous, arbitrary, capricious, or abuses of the agency's discretion.
Findings Of Fact Petitioners Pasco CWHIP Partners, LLC ("Pasco Partners"); Legacy Pointe, Inc. ("Legacy"); Villa Capri, Inc. ("Villa Capri"); Prime Homebuilders ("Prime"); and MDG Capital Corporation ("MDG") (collectively, "Petitioners"), are Florida corporations authorized to do business in Florida. Each is a developer whose business activities include building affordable housing. The Florida Housing Finance Corporation ("FHFC") is a public corporation organized under Chapter 420, Florida Statutes, to implement and administer various affordable housing programs, including the Community Workforce Housing Innovation Pilot Program ("CWHIP"). The Florida Legislature created CWHIP in 2006 to subsidize the cost of housing for lower income workers performing "essential services." Under CWHIP, FHFC is authorized to lend up to $5 million to a developer for the construction or rehabilitation of housing in an eligible area for essential services personnel. Because construction costs for workforce housing developments typically exceed $5 million, developers usually must obtain additional funding from sources other than CWHIP to cover their remaining development costs. In 2007, the legislature appropriated $62.4 million for CWHIP and authorized FHFC to allocate these funds on a competitive basis to "public-private" partnerships seeking to build affordable housing for essential services personnel.1 On December 31, 2007, FHFC began soliciting applications for participation in CWHIP. Petitioners submitted their respective applications to FHFC on or around January 29, 2008. FHFC reviewed the applications and graded each of them on a point scale under which a maximum of 200 points per application were available; preliminary scores and comments were released on March 4, 2008. FHFC thereafter provided applicants the opportunity to cure any deficiencies in their applications and thereby improve their scores. Petitioners submitted revised applications on or around April 18, 2008. FHFC evaluated the revised applications and determined each applicant's final score. The applications were then ranked, from highest to lowest score. The top-ranked applicant was first in line to be offered the chance to take out a CWHIP loan, followed by the others in descending order to the extent of available funds. Applicants who ranked below the cut-off for potential funding were placed on a wait list. If, as sometimes happens, an applicant in line for funding were to withdraw from CWHIP or fail for some other reason to complete the process leading to the disbursement of loan proceeds, the highest-ranked applicant on the wait list would "move up" to the "funded list." FHFC issued the final scores and ranking of applicants in early May 2006. Petitioners each had a project that made the cut for potential CWHIP funding.2 Some developers challenged the scoring of applications, and the ensuing administrative proceedings slowed the award process. This administrative litigation ended on or around November 6, 2008, after the parties agreed upon a settlement of the dispute. On or about November 12, 2008, FHFC issued preliminary commitment letters offering low-interest CWHIP loans to Pasco Partners, Legacy, Villa Capri, Prime (for its Village at Portofino Meadows project), and MDG. Each preliminary commitment was contingent upon: Borrower and Development meeting all requirements of Rule Chapter 67-58, FAC, and all other applicable state and FHFC requirements; and A positive credit underwriting recommendation; and Final approval of the credit underwriting report by the Florida Housing Board of Directors. These commitment letters constituted the necessary approval for each of the Petitioners to move forward in credit underwriting, which is the process whereby underwriters whom FHFC retains under contract verify the accuracy of the information contained in an applicant's application and examine such materials as market studies, engineering reports, business records, and pro forma financial statements to determine the project's likelihood of success. Once a credit underwriter completes his analysis of an applicant's project, the underwriter submits a draft report and recommendation to FHFC, which, in turn, forwards a copy of the draft report and recommendation to the applicant. Both the applicant and FHFC then have an opportunity to submit comments regarding the draft report and recommendation to the credit underwriter. After that, the credit underwriter revises the draft if he is so inclined and issues a final report and recommendation to FHFC. Upon receipt of the credit underwriter's final report and recommendation, FHFC forwards the document to its Board of Directors for approval. Of the approximately 1,200 projects that have undergone credit underwriting for the purpose of receiving funding through FHFC, all but a few have received a favorable recommendation from the underwriter and ultimately been approved for funding. Occasionally a developer will withdraw its application if problems arise during underwriting, but even this is, historically speaking, a relatively uncommon outcome. Thus, upon receiving their respective preliminary commitment letters, Petitioners could reasonably anticipate, based on FHFC's past performance, that their projects, in the end, would receive CWHIP financing, notwithstanding the contingencies that remained to be satisfied. There is no persuasive evidence, however, that FHFC promised Petitioners, as they allege, either that the credit underwriting process would never be interrupted, or that CWHIP financing would necessarily be available for those developers whose projects successfully completed underwriting. While Petitioners, respectively, expended money and time as credit underwriting proceeded, the reasonable inference, which the undersigned draws, is that they incurred such costs, not in reliance upon any false promises or material misrepresentations allegedly made by FHFC, but rather because a favorable credit underwriting recommendation was a necessary (though not sufficient) condition of being awarded a firm loan commitment. On January 15, 2009, the Florida Legislature, meeting in Special Session, enacted legislation designed to close a revenue shortfall in the budget for the 2008-2009 fiscal year. Among the cuts that the legislature made to balance the budget was the following: The unexpended balance of funds appropriated by the Legislature to the Florida Housing Finance Corporation in the amount of $190,000,000 shall be returned to the State treasury for deposit into the General Revenue Fund before June 1, 2009. In order to implement this section, and to the maximum extent feasible, the Florida Housing Finance Corporation shall first reduce unexpended funds allocated by the corporation that increase new housing construction. 2009 Fla. Laws ch. 2009-1 § 47. Because the legislature chose not to make targeted cuts affecting specific programs, it fell to FHFC would to decide which individual projects would lose funding, and which would not. The legislative mandate created a constant-sum situation concerning FHFC's budget, meaning that, regardless of how FHFC decided to reallocate the funds which remained at its disposal, all of the cuts to individual programs needed to total $190 million in the aggregate. Thus, deeper cuts to Program A would leave more money for other programs, while sparing Program B would require greater losses for other programs. In light of this situation, FHFC could not make a decision regarding one program, such as CWHIP, without considering the effect of that decision on all the other programs in FHFC's portfolio: a cut (or not) here affected what could be done there. The legislative de-appropriation of funds then in FHFC's hands required, in short, that FHFC modify its entire budget to account for the loss. To enable FHFC to return $190 million to the state treasury, the legislature directed that FHFC adopt emergency rules pursuant to the following grant of authority: In order to ensure that the funds transferred by [special appropriations legislation] are available, the Florida Housing Finance Corporation shall adopt emergency rules pursuant to s. 120.54, Florida Statutes. The Legislature finds that emergency rules adopted pursuant to this section meet the health, safety, and welfare requirements of s. 120.54(4), Florida Statutes. The Legislature finds that such emergency rulemaking power is necessitated by the immediate danger to the preservation of the rights and welfare of the people and is immediately necessary in order to implement the action of the Legislature to address the revenue shortfall of the 2008-2009 fiscal year. Therefore, in adopting such emergency rules, the corporation need not publish the facts, reasons, and findings required by s. 120.54(4)(a)3., Florida Statutes. Emergency rules adopted under this section are exempt from s. 120.54(4)(c), Florida Statutes, and shall remain in effect for 180 days. 2009 Fla. Laws ch. 2009-2 § 12. The governor signed the special appropriations bills into law on January 27, 2009. At that time, FHFC began the process of promulgating emergency rules. FHFC also informed its underwriters that FHFC's board would not consider any credit underwriting reports at its March 2009 board meeting. Although FHFC did not instruct the underwriters to stop evaluating Petitioners' projects, the looming reductions in allocations, coupled with the board's decision to suspend the review of credit reports, effectively (and not surprisingly) brought credit underwriting to a standstill. Petitioners contend that FHFC deliberately intervened in the credit underwriting process for the purpose of preventing Petitioners from satisfying the conditions of their preliminary commitment letters, so that their projects, lacking firm loan commitments, would be low-hanging fruit when the time came for picking the deals that would not receive funding due to FHFC's obligation to return $190 million to the state treasury. The evidence, however, does not support a finding to this effect. The decision of FHFC's board to postpone the review of new credit underwriting reports while emergency rules for drastically reducing allocations were being drafted was not intended, the undersigned infers, to prejudice Petitioners, but to preserve the status quo ante pending the modification of FHFC's budget in accordance with the legislative mandate. Indeed, given that FHFC faced the imminent prospect of involuntarily relinquishing approximately 40 percent of the funds then available for allocation to the various programs under FHFC's jurisdiction, it would have been imprudent to proceed at full speed with credit underwriting for projects in the pipeline, as if nothing had changed. At its March 13, 2009, meeting, FHFC's board adopted Emergency Rules 67ER09-1 through 67ER09-5, Florida Administrative Code (the "Emergency Rules"), whose stated purpose was "to establish procedures by which [FHFC would] de- obligate the unexpended balance of funds [previously] appropriated by the Legislature " As used in the Emergency Rules, the term "unexpended" referred, among other things, to funds previously awarded that, "as of January 27, 2009, [had] not been previously withdrawn or de-obligated . . . and [for which] the Applicant [did] not have a Valid Firm Commitment and loan closing [had] not yet occurred." See Fla. Admin. Code R. 67ER09-2(29). The term "Valid Firm Commitment" was defined in the Emergency Rules to mean: a commitment issued by the [FHFC] to an Applicant following the Board's approval of the credit underwriting report for the Applicant's proposed Development which has been accepted by the Applicant and subsequent to such acceptance there have been no material, adverse changes in the financing, condition, structure or ownership of the Applicant or the proposed Development, or in any information provided to the [FHFC] or its Credit Underwriter with respect to the Applicant or the proposed Development. See Fla. Admin. Code R. 67ER09-2(33). There is no dispute concerning that fact that, as of January 27, 2009, none of the Petitioners had received a valid firm commitment or closed a loan transaction. There is, accordingly, no dispute regarding the fact that the funds which FHFC had committed preliminarily to lend Petitioners in connection with their respective developments constituted "unexpended" funds under the pertinent (and undisputed) provisions of the Emergency Rules, which were quoted above. In the Emergency Rules, FHFC set forth its decisions regarding the reallocation of funds at its disposal. Pertinent to this case are the following provisions: To facilitate the transfer and return of the appropriated funding, as required by [the special appropriations bills], the [FHFC] shall: * * * Return $190,000,000 to the Treasury of the State of Florida, as required by [law]. . . . The [FHFC] shall de-obligate Unexpended Funding from the following Corporation programs, in the following order, until such dollar amount is reached: All Developments awarded CWHIP Program funding, except for [a few projects not at issue here.] * * * See Fla. Admin. Code R. 67ER09-3. On April 24, 2009, FHFC gave written notice to each of the Petitioners that FHFC was "de-obligating" itself from the preliminary commitments that had been made concerning their respective CWHIP developments. On or about June 1, 2009, FHFC returned the de- appropriated funds, a sum of $190 million, to the state treasury. As a result of the required modification of FHFC's budget, 47 deals lost funding, including 16 CWHIP developments to which $83.6 million had been preliminarily committed for new housing construction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that FHFC enter a Final Order dismissing these consolidated cases for lack of jurisdiction. DONE AND ENTERED this 18th day of February, 2010, in Tallahassee, Leon County, Florida. 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 18th day of February, 2010.
The Issue Whether Respondents (private schools participating in certain scholarship programs) engaged in fraud and/or failed to comply with provisions required of private schools participating in such scholarship programs and, if so, whether Petitioner (Commissioner) should suspend or revoke Respondents’ rights to participate in the scholarship programs.
Findings Of Fact Barrington and Barrington II are private schools located in Florida City. They are located in the same facility under the same administration. Both have been eligible to receive McKay and FTC Scholarships for qualified students. Gwendolyn Thomas is the long time administrator of Barrington, which has been in existence for approximately 25 years. Ms. Thomas is also the administrator of Barrington II, which has been in existence for approximately two years. For medical reasons, Ms. Thomas did not participate in the day-to-day operation of either school between October 2010 and November 2013. During her absence, Mack Brown, the assistant principal, was in charge of both schools until he left in June 2013 to start a competing school. Ms. Thomas has been in charge of the day-to-day operation of Barrington and Barrington II since November 2013. McKay Scholarship payments are disbursed on a quarterly basis.2/ Pursuant to sections 1002.39(8)(b) and 1002.421(2)(d), any private school participating in the McKay Scholarship Program is required to affirmatively verify to the Department of Education that each scholarship student is regularly enrolled in the school at least 30 days prior to the issuance of any quarterly scholarship payment. Pursuant to section 1002.39(9)(f), McKay Scholarship checks are made payable to the parent of a scholarship student, which only the parent can sign. Private school personnel cannot sign such a check on behalf of the parent, even with the parent’s permission. Prior to June 9, 2011, Student A was enrolled in Barrington and received a McKay Scholarship. On June 9, 2011, Student A left Barrington and has not been a student at Barrington since June 9, 2011. Between August 26, 2011, and August 23, 2013, nine checks, totaling $12,230.25, were issued to the mother of Student A pursuant to the McKay Scholarship Program. Those checks were issued on the following dates in the following amounts: August 26, 2011 $1,336.75 October 27, 2011 $1,336.75 January 24, 2012 $1,336.75 March 21, 2012 $1,336.75 August 21, 2012 $1,382.50 October 22, 2012 $1,382.50 January 23, 2013 $1,382.50 March 20, 2013 $1,382.50 August 23, 2013 $1,353.25 9. The back of each check contains an endorsement that appears to be the name of Student A’s mother. Student A’s mother did not sign any of these checks. Each check was signed by an employee of Barrington or Barrington II. Each check was deposited into an account owned by Barrington. For each of these payments, Barrington submitted documentation to the Department of Education that Student A was attending Barrington prior to the issuance of the payment, without verifying that Student A was in attendance. As noted above, Student A was not in attendance. On October 4, 2013, the Commissioner filed her Administrative Complaint against Barrington and suspended Barrington’s participation in the McKay and FTC Scholarship Programs. The Commissioner had information that Student A was not enrolled in Barrington and had probable cause to believe that Barrington Academy had engaged in fraudulent conduct.3/ Afterwards, many of the Barrington students were administratively transferred to Barrington II, and continued to receive scholarship payments. Prior to June 7, 2013, Student B was enrolled in Barrington II and received a McKay Scholarship. On June 7, 2013, Student B was taken into the custody of the DJJ and enrolled in a residential facility in Greenville, Florida. Student B was in the custody of DJJ until March 7, 2014.4/ Between September 25, 2013, and January 23, 2014, three checks, totaling $8,316.75, were issued to the mother of Student B pursuant to the McKay Scholarship Program. Those checks were issued on the following dates in the following amounts: September 25, 2013 $2,772.25 October 23, 2013 $2,772.25 January 23, 2014 $2,772.25 The back of each check contains an endorsement that appears to be the name of Student B’s mother. Student B’s mother did not sign any of these checks. Each check was signed by an employee of Barrington or Barrington II. Each check was deposited into an account owned by Barrington. For each of these payments, Barrington II submitted documentation to the Department of Education that Student B was attending Barrington II prior to the issuance of the payment, without verifying that Student B was in attendance. As noted above, Student B was not in attendance. On February 19, 2014, the Commissioner filed her Amended Administrative Complaint against Barrington and Barrington II and suspended their participation in the McKay and FTC Scholarship Programs. The Commissioner had information that Student B was not enrolled in Barrington II and had probable cause to believe that Barrington II had engaged in fraudulent conduct. Barrington has reimbursed the Department of Education for the McKay Scholarship payments made on behalf of Student A. Barrington II has deposited with its attorney sufficient funds to reimburse the Department of Education for the McKay Scholarship payments made on behalf of Student B. Although Ms. Thomas had returned as administrator when at least two of the McKay Scholarship payments at issue were processed by a school employee, she testified, credibly, that she had not authorized that action and was unaware of the misconduct before the Administrative Complaint and the Amended Administrative Complaint were filed. The persons responsible for the deficiencies discussed above have either voluntarily left their employment or have been fired. Barrington and Barrington II have hired a person to ensure compliance with McKay and FTC Scholarship Programs.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Education revoke the participation of Barrington Academy and Barrington Academy II in the McKay Scholarship Program and the FTC Scholarship Program. It is further RECOMMENDED that both schools be permitted to re- apply to participate in these programs after the Department of Education has been reimbursed for the scholarship payments made on behalf of Student B and after both schools demonstrate that they have personnel and written procedures that will ensure compliance with all applicable rules and statutory provisions. DONE AND ENTERED this 19th day of May, 2014, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 19th day of May, 2014.
Findings Of Fact On December 30, 1993, the Florida Commission on Human Relations (FCHR) transmitted to the Division of Administrative Hearings (DOAH) a Petition for Relief from an Unlawful Employment Practice, together with all other "pleadings and jurisdictional papers heretofore filed in this proceeding." The pleadings and papers transmitted by FCHR show that Petitioner filed a complaint with FCHR on March 10, 1993, charging an unlawful employment practice by Respondent in connection with a denial of a raise in salary. On August 24, 1993, the FCHR concluded its investigation into the matter and issued its determination of No Cause to believe that an unlawful employment practice has occurred. Notice of that determination was served on Petitioner and Respondent on August 24, 1993 by regular mail. The Notice of Determination of No Cause served on Petitioner included the following statement: The parties are advised that the Complainant may request that a formal, post-investigative proceeding be conducted. The Request for Hearing/Petition for Relief must be filed within 30 days of the date of mailing of this Notice and should be in compliance with the provisions of Rule 60Y-5.008 and Chapter 60Y-4, Florida Administrative Code. A Petition for Relief form is enclosed. If you elect to file a Petition for Relief, it may be beneficial to seek legal counsel prior to filing the petition. Petitioner received the Notice of Determination. Petitioner understood that, under the FCHR rules cited in the Notice, the requirement for the petition to be "filed" meant that the petition had to actually be received by the FCHR. On September 30, 1993, 37 days after the Notice was served, the FCHR Executive Director issued a Notice of Dismissal, for the reason that no Petition for Relief had been filed. On October 13, 1993, Petitioner transmitted to the FCHR her Petition for Relief, requesting an administrative hearing. The petition was submitted on the form provided by the FCHR, and was accompanied by a transmittal letter from the Petitioner on her letterhead stationery that identified the enclosures. It was filed with the FCHR on October 18, 1993. After receiving the October transmittal, on November 18, 1993, the FCHR issued an Order to Show Cause, directing the Petitioner to provide reasons why the late-filed petition should not be dismissed. Petitioner responded to the show cause order by transmitting a package to the FCHR on November 30, 1993. It contained her response to the show cause order, a copy of the petition transmitted in October, and another original petition on a second form that Petitioner said was provided to her by the FCHR. This transmittal was also accompanied by a transmittal letter on Petitioner's letterhead stationery, describing the contents. The FCHR did not rule on the sufficiency of Petitioner's response, but rather transmitted the pleadings (including the show cause order and response) to DOAH for further proceedings. At the same time of the transmittal to DOAH, FCHR also issued a notice of the petition to Respondent advising it of the requirement to file an answer to the Petition for Relief. CFRH timely filed its answer with affirmative defenses, including the first affirmative defense that "the Petition for Relief is untimely." The Petitioner made two mailings of petitions: one mailing was made to transmit one form petition that she had completed in October, 1993, and a second mailing was made in November with a copy of the first form plus another original form filled out by Petitioner. Petitioner also testified that she mailed another petition, without a transmittal letter, on September 20, 1993. There was no evidence presented that a Petition was received by FCHR in September 1993 or that the document was returned to Petitioner as undelivered mail.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered dismissing with prejudice the Petition for Relief in DOAH Case No. 94-0070 and FCHR Case No. 93-3143, for failure to timely file the Petition. DONE AND ENTERED this 27th day of July, 1994, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 27th day of July, 1994.
The Issue The issue in this case is whether Leon County's Comprehensive Plan Amendments 2007-1-T-015 ("the Plan Amendments"), which exempt "closed basins" from Lake Jackson Special Development Zone (SDZ) development restrictions, are in compliance as defined by Section 163.3184(1)(b), Florida Statutes.1
Findings Of Fact Background The County and City have a joint comprehensive plan in that most provisions are adopted by both local governments, but some provisions are only adopted by one or the other local government. The Plan Amendments at issue in this case were adopted by the County but not the City; they relate to Lake Jackson. Lake Jackson is a 4,000-plus acre water body in the northern portion of the County, north of Interstate 10. When U.S. Highway 27 was built, it crossed the western edge of Lake Jackson, dividing the main body of the lake from the part that became known as Little Lake Jackson. However, Little Lake Jackson remains connected to the main body of Lake Jackson through culverts under Highway 27. Lake Jackson is located within the larger Lake Jackson Drainage Basin, which includes all land from which water drains to Lake Jackson. The boundary of the City intersects the southern and eastern reaches of the Lake Jackson Drainage Basin. Lake Jackson is an important state resource. It has been designated as a Florida Aquatic Preserve, an Outstanding Florida Water, is on the Northwest Florida Water Management District’s Surface Water Improvement and Management Program priority list, and is listed as resource of regional significance under the Northwest Florida Strategic Regional Policy Plan. Significant resources, including roughly 9 million dollars since 1999, have been spent by state, regional, and local entities to manage and restore the lake. Repeatedly throughout and before its recorded history, Lake Jackson has flooded or almost entirely disappeared. The water level of Lake Jackson is mainly controlled by rainfall conditions. The most extreme flood event recorded occurred on June 18, 1966, when the water level of Lake Jackson reached 96.16 NAVD.4 Rainfall conditions are cyclical, and the lake’s disappearance is due to sinkholes on the lake bottom that periodically “unplug” and allow the lake water to drain to the Floridan Aquifer, especially during dry cycles. The local area is now experiencing an extended generally dry cycle. In 1999 Porter Sink unplugged and much of the lake drained. Porter Sink and some of the lake filled somewhat during times of more normal rainfall since 1999, but the lake again drained during the prevailing drier times and was still low at the time of the final hearing. Plan Provisions Relating to Lake Jackson In 1990 the County and the City adopted their joint comprehensive plan. Among other things, it included a future land use element and a conservation element. Goal 2 [C] (designating the Conservation Element) of the Plan was to: "Protect and enhance natural surface water bodies to provide for fishable and swimmable uses." Objective 2.1 [C] addressed Stormwater Management. Objective 2.2 [C] addressed Water Bodies Protection and required the County to "have in place programs and procedures to improve water quality in degraded water bodies" and, "[i]n other natural water bodies, . . . to maintain water quality in order to meet local standards or state standards if no local standards are designated." The comprehensive plan adopted in 1990 also included a separate Objective 2.3 [C] on Lake Jackson, which was to "adopt policies and ordinances [by 1991] that will prevent any further degradation of Lake Jackson and by the year 2000, return water quality in the lake to its condition at the time of Outstanding Florida Waters (OFW) designation." Policy 2.3.1 [C], also adopted in 1990, was to "designate special development zones for Lake Jackson that restrict activities that impact the quality of stormwater.” The comprehensive plan adopted in 1990 also included Policy 2.2.18 [L] (designating the Land Use Element) of the Plan, which created "a protection category that is specific to the well documented scientific concerns regarding the degradation and continuing pollution of Lake Jackson." It limited density and intensity of development in the Lake Protection future land use category. As part of the Lake Protection development limitations, this policy also prohibited clustered residential development in the Lake Jackson SDZs. However, it also included a Mixed Use Lake Protection category for "closed basins." "Closed basin" was defined in the Glossary of the Plan as "[a] naturally depressed portion of the earth's surface for which there is no natural outlet for runoff other than percolation, evaporation, or transpiration." The Department found the comprehensive plan adopted by the City and County in 1990 not to be "in compliance" and recommended remedial action, including elimination of the Lake Protection Mixed Use category and action to protect Lake Jackson, to “include buffer zones, restrictions on development activity, reduced densities and intensities, and environmental design criteria.” [DCA Exhibit 25] During the course of the resulting administrative proceeding, a Stipulated Settlement Agreement was reached in 1991 that required the City and County to adopt remedial action. The remedial action adopted by the City and County included elimination of the Lake Protection Mixed Use category, and the following language was added to Policy 2.2.18 [L]: "Future development will not be subject to the limitations of the Lake Protection land use category if [it] can be demonstrated by competent scientific evidence that the development is located in a closed basin that does not naturally or artificially discharge to the larger Lake Jackson Basin. Closed basins must be certified by a registered engineer to the effect that there are no artificial or natural discharges from it." (Emphasis added.) The policy also provided that future development in the Lake Jackson SDZs had to be Planned Unit Developments (PUDs). In addition, Policy 2.2.12 [C] was adopted in accordance with the 1991 Stipulated Settlement Agreement and established SDZs that limit the amount of disturbance that can occur on properties under certain elevations for several lakes in Leon County, including Bradford Brook Chain of Lakes, Fred George Basin, Lake Iamonia, and Lake Jackson. Specific to Lake Jackson, the Plan established SDZs as follow: Policy 2.2.12: [C] Special development zones with accompanying criteria shall be established and implemented through the LDRs for the following lakes: Lake Jackson – Zone A = below elevation 100 feet NGVD (criteria) 5% or 4,000 sq. ft. may be disturbed Zone B = between 100 feet NGVD and 110 feet NGVD (criteria) 50% of the site must be left natural Preserve shoreline vegetation in its natural state for minimum of 50 linear feet landward of the ordinary high water line. Allow essential access. Government initiated stormwater facilities for retrofit purposes may utilize a greater portion of the SDZ if applicable criteria (Policy 2.1.9[C]) are met. [Joint Exhibit 3 at IV-20] As a result of the Stipulated Settlement Agreement and adopted remedial action, and DCA found the resulting comprehensive plan (the Plan) to be "in compliance." In 2005, the County eliminated the "closed basin" exception from Policy 2.2.18 [L]. However, the 2005 revision provided that PUDs approved prior to January 1, 2005, were vested for all approved uses, intensities, and densities. Arbor's Summerfield development, which is located just southwest of Lake Jackson across U.S. Highway 27, and just southeast of and contiguous to Little Lake Jackson, received a PUD approval under the "closed basin" exception from Policy 2.2.18 [L] prior to January 1, 2005. Arbor's PUD approval was challenged in circuit court by some of the Kowal Intervenors, and others, and in May 2006 it was held in that case that, while the Summerfield PUD was grandfathered under Policy 2.2.18 [L], the Lake Jackson SDZ criteria in Policy 2.2.12 [C] applied. The Plan Amendments at issue in this case ensued. Plan Amendments The Plan Amendments at issue moved the Lake Jackson part of Policy 2.2.12 [C] to Objective 2.3 [C], which addresses Lake Jackson Protection. The rest of Policy 2.2.12 [C] was left intact and now applies only to the Bradford Brook Chain of Lakes, the Fred George Basin, and Lake Iamonia. The Lake Jackson policy was renumbered 2.3.1 [C], replacing existing Policy 2.3.1 [C]. Besides the re-numbering and replacement of existing Policy 2.3.1 [C], the amendment added: "These SDZ criteria shall not apply within closed basins." This language also was added to Policy 2.1.10 [L], which had prohibited cluster residential development in the Lake Jackson SDZs.5 Challenge to the Plan Amendments The Department and the Kowal Intervenors have alleged numerous statutory and rule provisions to support their compliance challenge. Generally, they contend that the Plan, as amended, fails to adequately protect Lake Jackson and natural resources associated with the lake and is therefore inconsistent with Section 163.3177(6)(d), Florida Statutes, which sets forth the requirements of the conservation element.6 They also allege that the Plan Amendments are inconsistent with the following provisions of Florida Administrative Code Rule Chapter 9J-57: 9J-5.003(123) (defining "stormwater"); 9J-5.006(3)(b)4. (requiring protection of natural resources); 9J-5.013(2)(b)3. (requiring protection of minerals, soils and native vegetative communities, including forests); 9J- 5.013(2)(b)4. (requiring protection of fisheries, wildlife and wildlife habitat); 9J-5.013(2)(c)6. and 9J-5.013(3) (requiring protection of the natural functions of wetlands, floodplains, fisheries, wildlife habitats and lakes); and 9J-5.013(2)(c)9. (requiring protection of environmentally sensitive lands). DCA and the Kowal Intervenors also challenge the Plan Amendments as not supported by adequate data and analysis and therefore inconsistent with Sections 163.3177(8) and (10), Florida Statutes. See also Rule 9J-5.005(2) (data and analysis requirements) and Rule 9J-5.006(2) (land use analysis requirements). DCA and the Kowal Intervenors also contend that the Plan Amendments render the Plan internally inconsistent and therefore violate Section 163.3177(2), Florida Statutes, (requiring that "the several elements of the comprehensive plan shall be consistent . . . ."). See also Rule 9J-5.005(5) (requiring internal consistency). DCA and the Kowal Intervenors have identified numerous plan provisions to support this claim, most of which deal with protection of area lakes and natural resources. Numerous provisions of the state comprehensive plan have been raised in opposition to the Plan Amendments, as follows: Section 187.201(7)(b)8. (preservation of hydrologically significant wetlands and other natural floodplain features); Section 187.201(7)(b)10. (protection of surface and groundwater quality and quantity); Section 187.201(7)(b)12. (elimination of inadequately treated wastewater and stormwater discharge into the waters of the State); Section 187.201(9)(a) (protection of unique natural habitats and ecological systems); Section 187.201(9)(b)1. (conservation of forests, wetlands, fish, marine life, and wildlife); Section 187.201(9)(b)7. (protection of wetlands systems); Section 187.201(9)(b)10. (acquisition and maintenance of ecologically intact systems) Section 187.201(15)(a) (requiring development to be directed to areas with resources to accommodate growth in an environmentally acceptable manner; Section 187.201(15)(b)6. (requiring consideration in land use planning of the impact on water quality and quantity, natural resources, and the potential for flooding). The Plan Amendments also are alleged to be inconsistent with the Strategic Regional Policy Plan, and specifically Policy NR 1.2.10, which provides for restoration of water quality in Lake Jackson to standards established by Florida Department of Environmental Protection (DEP) and Rule Chapter 62-302. More Than Mere Clarification In response to the challenge, the County and Arbor first take the position that the Plan Amendments merely clarify that the Lake Jackson SDZs never applied to closed basins. However, the County and Arbor are estopped from taking that position in this case because of the circuit court ruling against the County and Arbor on that precise point. As a matter of law, that the County may not have applied the Lake Jackson SDZ criteria in certain "closed basins" means only that the County did not follow its Plan on those occasions. As a matter of law, the Plan Amendments actually do have the effect of exempting closed basins from the Lake Jackson SDZ criteria. Glossary Definition At one point in their PRO, the County and Arbor argue that the Plan Glossary's definition of "closed basin" ensures that the Plan Amendments will not affect Lake Jackson because it does not allow any surface water discharge from a "closed basin." (A similar argument was made to the circuit court, that "common sense and logic support the conclusion that these [SDZ] restrictions do not apply to a development within a closed basin because stormwater from a closed basin by definition never reaches the lake." [DCA Exhibit 13, p.4]) But the Glossary definition allows percolation into the groundwater, which could subsequently enter the lake or emerge from the ground and become surface flow outside the closed basin. In addition, as indicated, supra, the Glossary definition does not mention artificial outlets for runoff from a "closed basin." Policy 2.2.18 [L], as it existed prior to 2005, included that concept in its definition for purposes of the Lake Protection future land use category exception, but that language has been eliminated from the Plan. Even setting aside the possibility for groundwater to reach the lake, and assuming that the Glossary definition included, or should be interpreted to include, the concept of no artificial outlet for runoff, the County and Arbor also argue, inconsistently, that surface water in "closed basins" can overtop and flow into the Lake Jackson Drainage Basin in certain rainfall conditions. Indeed, the County found the Summerfield development to include all or part of two exempt closed basins for purposes of both Policy 2.1.18 [L] and Policy 2.2.12 [C] because the basins would not discharge surface water in a 100- year, 24-hour storm, not because it would never discharge surface water to the Lake Jackson Drainage Basin. Other Proposed Closed Basin Definitions As indicated, one possible definition of closed basin refers to the capacity to retain surface water resulting from a 100-year, 24-hour storm, which was the definition used for the Summerfield site. For Lake Jackson, 10.9 inches of rain in 24 hours amounts to a 100-year, 24-hour storm event. However, in evaluating the Summerfield site, the County followed the Department of Transportation's conservative practice of assuming 12 inches of rain in a 100-year, 24-hour storm event. However, it was not clear from the evidence whether the Summerfield evaluation assumed build-out of the PUD. This is significant because development reduces the capacity of a basin to retain stormwater runoff. This is because impervious surface would be increased, and cleared lands would be subject to soil compaction which prevents rainfall from soaking into the ground, resulting in increased stormwater volume. Regardless of how it evaluated the Summerfield site, the County has not consistently used any one, standard “normal” rainfall event for determining closed basins. In addition to a 100-year, 24-hour storm event, the County also has used a 50- year, 24-hour storm, and a three-year, 24-hour storm.8 The evidence suggests that the storm event chosen to be used may have depended on the County's purpose in determining the existence of a closed basin--e.g., if the County was determining, on the one hand, whether a Lake Protection future land use category (or SDZ) exemption applied or, on the other hand, whether flooding was a concern under Policies 1.3.2.d [C] and 2.2.5 [C]. When the County deleted the closed basin exception from the Lake Protection land use category in 2005, County staff recommended approval of the amendment at least in part because of the burden placed on developers and County staff to determine whether a development included a closed basin, and the confusion that existed as to how to make that determination. (Another reason given by County staff was that elimination of the exception would promote land use densities and intensities more consistent with the protection of Lake Jackson.) When the County transmitted proposed plan amendments before adopting the Plan Amendments at issue, it proposed to define closed basins for purposes of the Lake Jackson SDZ exemption by reference to a 100-year, 24-hour storm. But when DCA in its ORC report cited the inconsistency with the definition in the Plan's Glossary, the County deleted the definition from the adopted Plan Amendments. It would seem that, without a clear definition of closed basin, the Plan Amendments would result in the same kind of burdens and confusion the County sought to eliminate by removing the Lake Protection land use category exception in 2005. The County now says that it anticipates adopting the 100-year, 24-hour storm definition through its LDRs. But any such definition, if actually adopted in the LDRs, would be subject to change outside the statutory plan amendment process. While adoption of a Plan amendment to define closed basins for purposes of a Lake Jackson SDZ exception by reference to a 100-year, 24-hour storm event would be a clearer and more conservative definition, it would not necessarily be the most appropriate definition because it would not take into account antecedent and subsequent rainfall conditions, or the cumulative effect of smaller events. The evidence was clear that areas meeting a 100-year, 24-hour storm definition of "closed basin" would discharge to the Lake Jackson Drainage Basin and ultimately to Lake Jackson due to the cumulative effect of various combinations of lesser rainfall events. Arbor's own expert witness, Dr. Seereeram, described the importance of determining the antecedent conditions on the ground, as well as antecedent rainfall conditions, and explained that the highest recorded level for Lake Jackson in 1966 was attributable to a 100-year, three-year rainfall event. For this reason, Dr. Seereeram has been preaching to regulators not to use the 100-year, 24-hour storm event for modeling big land-locked lakes like Lake Jackson, but rather what they "need to do is run continuous simulation models." Due to the concerns expressed by Dr. Seereeram and the other experts, if closed basins for purposes of the Lake Jackson SDZ exemption are defined by reference to a 100-year, 24-hour storm event, instead of a continuous simulation model, the definition also should include an appropriate recovery time requirement. For example, there was evidence that the County's LDRs have included a requirement that stormwater retention facilities must be designed so as to recover their volume capacity within 14 days. This would help to account better for antecedent and subsequent rainfall conditions, and the cumulative effect of smaller events. Insufficient Analysis The County and Arbor take the position that the Plan Amendments are supported by data and analysis indicating that only a relatively small area with the Lake Jackson Drainage Basin that would be affected by a closed basin exception. However, the County's analysis was based on a 100-year, 24-hour storm definition. As indicated, the Plan as amended does not include this definition. Also, as indicated, it is not clear whether the analysis assumed build-out of the PUD. Without a clear and appropriate definition of closed basins for purposes of the Lake Jackson SDZ exception, the County's analysis fails to support the Plan Amendments at issue. Even assuming a clear and appropriate closed basin definition in the Plan, the County's analysis would not be complete for two reasons. First, it failed to identify some basins that should have been analyzed. Second, it assumed that groundwater and other data and analysis pertaining to the Summerfield site was a valid proxy for all identified (and unidentified) closed basins in the Lake Jackson SDZs. Closed Basins in Lake Jackson SDZs Ultimately, through the evidence presented at the final hearing, the County attempted to demonstrate the limited number of closed basins in the Lake Jackson SDZs through analysis of Light Detection and Ranging (LIDAR) data, which was used to produce a Digital Elevation Model (DEM). The model results were further analyzed by identifying resulting basins at least two feet deep. The County took the position that, using this analysis, there were 16 "closed basins" within the Lake Jackson Drainage Basin, of which seven were within the Lake Jackson SDZs. Of those seven, the County determined that only three--named Kane, Old Bainbridge Road, and Perkins Road--retain development potential and would not discharge in a 100-year, 24- hour storm. Kane lies entirely within the Summerfield site, while roughly the southwestern half of the Old Bainbridge Road basin (the half southwest of Old Bainbridge Road) is within the Summerfield site. Using this analysis, the County further determined that those three "closed basins" comprised 40.7 of the 2,221 acres of land in the Lake Jackson Zone A SDZ (1.8 percent) and 37.2 of the 1,204 acres of land in the Lake Jackson Zone B SDZ (3.1 percent). Since the Lake Jackson Zone B SDZ allows up to 50 percent disturbance, the County's analysis was that only 18.6 acres of the 1,204 acres of land in Lake Jackson Zone B (1.5 percent) would be affected by the Plan Amendments. Mr. Endries, an expert witness for the Kowal Intervenors, was able to further analyze the LIDAR data using an ArcView program also available to the County and identify numerous closed depressions two or more feet deep not identified or analyzed by the County. One was approximately 272 feet across. Mr. Macmillan, another expert witness for the Kowal Intervenors, identified more closed depressions not analyzed by the County using the U.S. Geological Survey document titled, “Hydrologic Significance of 1966 Flood Levels at Lake Jackson Near Tallahassee, Florida.” At least two of those closed depressions identified by Mr. Macmillan are located within the Lake Jackson SDZs and outside of the floodplain. Mr. Macmillan also testified that existing development is minimal-to-none in most of the closed depressions identified by Mr. Endries north of the lake, which means that development possibly could occur in such areas in the future. For these reasons, to the extent that the closed basin definition used in the County's analysis is not appropriate, more surface water discharges to Lake Jackson than assumed in the County's analysis. In addition, the County's analysis of possible harm to the water quality of Lake Jackson by groundwater flow to Lake Jackson was deficient. Lake Jackson SDZs Not Just For Stormwater The County and Arbor also take the position that, because Policy 2.3.1 [C] designates Lake Jackson SDZs "that restrict activities that impact the quality of stormwater," the Lake Jackson SDZs do not address groundwater or any other comprehensive plan concerns. For several reasons, this position is rejected. First, the location of the Lake Jackson SDZs in Policy 2.2.12 [C] of the 1991 Plan requires that they be read in context with the goal and the objective of the companion policies, which are not limited to stormwater. Second, Rule 9J-5.003(123) defines "stormwater" as "the flow of water which results from a rainfall event." It is clear that some of the runoff from a rainfall event leaves a natural closed basin via percolation into the ground. For this reason, the flow of groundwater beneath a closed basin can be considered part of "the flow of water which results from a rainfall event." Third, contrary to the arguments of Arbor and the County that the sole purpose of the Lake Jackson SDZs is to establish "filter strips" of vegetation around the edges of the lake, restricting development and impervious surface in other parts of the Lake Jackson SDZs not only preserves more of the capacity of the SDZs to hold surface water runoff from rainfall events but also preserves vegetation that helps remove nutrients such as nitrogen and phosphorus--contaminants particularly detrimental to water bodies like Lake Jackson--before they reach the groundwater. The County and Arbor base their argument on Policy 2.3.4 [C], which provides for a vegetated buffer zone around the lake edge. But that policy does not reference either closed basins or SDZs, is not under the same objective as Policy 2.2.12 [C] on SDZs, and does not mean that the SDZs only apply to those areas that are contiguous to Lake Jackson. Finally, there are other ancillary benefits beyond stormwater quality derived from the Lake Jackson SDZs, including the furtherance of policies in the Plan protecting wildlife and groundwater. Summerfield Groundwater Analysis Besides the possibility of a surface water connection during certain rainfall conditions (depending on the closed basin definition used), groundwater also can flow to Lake Jackson from closed basins. As indicated, this could occur either from a direct groundwater discharge to the lake, or when groundwater from a closed basin surfaces outside the closed basin and becomes surface water that can flow to the lake. Under any definition of closed basin, water retained in a closed basin can percolate into the soil and become groundwater. In the vicinity of Lake Jackson, groundwater typically would percolate into the Miccosukee formation, a layer of silty sands and clayey sands overlying the Torreya formation. The Torreya formation consists of very dense clay that acts like a sheet of plastic. It is nearly impermeable when it is intact. Due to the clays in the Miccosukee formation and especially the Torreya formation, horizontal flow of groundwater in the surficial aquifer is faster than vertical flow by approximately an order of magnitude (approximately ten feet per day versus one foot per day). Hydraulic head is an important consideration in determining the direction and rate of groundwater flow. Generally, groundwater flows from higher to lower water levels and moves faster the greater the difference in water levels. Groundwater can flow laterally under a road such as U.S. Highway 27. For these reasons, although a closed basin may not "pop-off," it can be connected via the sand layer to Lake Jackson, either directly or indirectly. Arbor's analysis of groundwater flow to Lake Jackson focused on the Summerfield site. There was some evidence suggesting that groundwater levels in the surficial aquifer on the Summerfield site are lower than the water level of Lake Jackson, which would indicate groundwater flow from Summerfield away from the lake. However, the data available for making such a determination was limited and less-than-ideal--seven core borings on the Summerfield site that were not well-correlated to the water level of Lake Jackson at the time, and a LIDAR map of data from a single day in 2003 or 2004 when the level of the surficial aquifer at the site was below the bottoms of the closed depressions on the site and undetectable. In any event, Arbor's analysis then assumed groundwater flow from the Summerfield site towards Lake Jackson at the conservative rate of 10-12 feet per day. At that rate, groundwater from the two closed depressions on the site, which are approximately 180 feet and 600 feet from the lake, would reach the lake in approximately 18 and 60 days, respectively. The analysis then demonstrated the unlikelihood of contamination of Lake Jackson from any of the likely pollutants from a residential development at Summerfield (mainly hydrocarbon in oil and grease from automobiles, nutrients from fertilizer, pesticides, and some heavy metals) due to the attenuation of the contaminants, which would travel more slowly through the soils than groundwater, before reaching the lake. Arbor's analysis was that it was even less likely that contaminants from the other closed basins identified by the County in its analysis as being in the Lake Jackson SDZs and still potentially developable would reach the lake via direct groundwater flow, since they were farther from the lake. However, this analysis did not expressly address the possibility of groundwater flow from those closed basins emerging from the ground and mingling with surface water. As indicated, the evidence presented by the County and Arbor did not analyze land already developed within the Lake Jackson SDZs. However, since the Lake Jackson SDZ restrictions apply to redevelopment, eliminating them for closed basins would allow redevelopment in closed basins in the Lake Jackson SDZs without regard to the SDZ restrictions. In addition, Arbor's analysis did not address any other potential closed basins around Lake Jackson. The evidence indicated that some ponds around Lake Jackson are higher in elevation than the lake, and groundwater from those closed depressions normally would drain towards the lake. As indicated, the rate of groundwater flow would depend on the hydraulic gradient. During times of increased rainfall, the water level in the ponds surrounding Lake Jackson will be even higher, and the Miccosukee formation will become saturated, leading to a greater hydraulic head and faster migration of groundwater to the lake. The possibility of contamination from groundwater from these other potential closed basins was not analyzed. These questions only can be answered through a complete and thorough analysis of all closed basins and potential closed basins--similar to the way the County analyzed all parcels to be affected by the establishment of SDZs in the Lake Lafayette watershed in 2002. Habitat for Flora and Fauna Other policies under Objective 2.2 [C] cover floodplains, inter-basin transfer of water, wetland and lake function, and other conservation issues. Some of these issues are broad enough to include habitat for flora and fauna--e.g., in connection with protection and conservation of wetland and lake function. The Plan Amendments are to provisions that do not specifically address wildlife and fish and their habitat. However, the Plan Amendments nonetheless could have an impact on fish and wildlife, which in turn can impact water quality in the lake. This was not raised as an issue by DCA, but was addressed in the evidence presented by the Kowal Intervenors, who did raise the issue. Reptiles, amphibians, birds, and mammals, including some listed and endangered species, use Lake Jackson and the wetlands and uplands surrounding it. These include seven species of freshwater turtles, four species of snakes, alligators, and amphibians, including multiple species of frogs. There is much movement of these wildlife species back and forth between and among Lake Jackson and the wetlands and uplands surrounding the lake for a distance of up to two kilometers from the lake. Many of the wetlands and uplands used by Lake Jackson's wildlife species, and the connections between them, are located within the SDZs. The SDZs also include some "fishless" areas where amphibians can breed. For example, turtles are semi-aquatic and leave the water to lay their eggs in the uplands around the lake. Frogs also migrate between these uplands and wetlands and the lake. Leopard frogs, for example, forage in the uplands around the lake and then return to the lake. Parts of the Summerfield site are used for breeding by the barking tree frog and the spadefoot toad. Thousands of tree frogs have migrated off the Summerfield site toward the Lake in a single documented event. The terrestrial connections between the areas used by some of these animals are critical to them because they must use these different habitats either seasonally or at other times for their life-cycle requirements and have to move over land in order to utilize them and for dispersal. If the terrestrial connections are eliminated, and these animals are restricted to just one area of their life-cycle, they cannot survive. All of these animals are important to the function of the Lake Jackson ecosystem because they are part of the overall food web of the lake. A food web is all of the connections between species that feed on each other. All of these animals moving back and forth among the uplands and wetlands around the lake contribute to the biomass of the lake, which is a measure of the food web and productivity of the lake. For example, turtles in the U.S. Highway 27 area of Lake Jackson alone accounted for approximately 12 tons of biomass over a time period of six years. This is an indication that Lake Jackson is a very productive system. If the SDZ disturbance criteria are removed, it could impact the forage, reproduction, and survival of some of the wildlife of Lake Jackson. The loss of wildlife can affect the functioning of the Lake Jackson ecosystem. For example, one species of turtle, the Florida cooter, eats filamentous algae and as a group eat tons of algae, which is a benefit to the Lake. These turtles need the connection between the lake and the uplands to survive, including areas that are SDZs subject to the Plan Amendments. A loss of species diversity would simplify the complex food web of the lake, which could adversely affect the function of wetlands and the Lake. Arbor presented evidence that Summerfield's wildlife habitat is relatively degraded and unimportant due to its history of being used for cattle grazing. However, as indicated, it still is used by Lake Jackson's wildlife. Since the evidence presented by Arbor and the County focused on Summerfield, there was no analysis of other potential closed basins. Plan's Other Lake Jackson Protections And Internal Consistency The County and Arbor take the position that other provisions of the Plan adequately protect Lake Jackson even if the SDZ criteria are not applied in closed basins in the Lake Jackson SDZs. DCA and the Kowal Intervenors take the position that, to the contrary, the Plan Amendments are inconsistent with many of the same Plan provisions. The Plan contains a number of goals, objectives, and policies that function in conjunction with the Lake Jackson SDZs to protect and restore Lake Jackson, in accordance with statutory and rule requirements. The goal of the Conservation Element is to "[p]reserve, protect and conserve the ecological value and diversity of natural resources in Tallahassee and Leon County." Policy 1.1.1 [C] requires that a natural resources inventory be conducted on a site before any development or rezoning occurs. Policy 1.3.2 [C] protects conservation areas such as floodplains, closed basins, significant grades, and active karst features. Policy 1.3.2.d [C] (County Only) allows development in closed basins to the extent that there is sufficient stormwater capacity within the basin. It also states that "[d]evelopment will be permitted reflective of the density allowed by the existing land use category." Policy 1.3.6 [C] protects preservation areas such as wetlands, water bodies, severe grades, and native forests. Wetlands, floodways, and flood plains are also protected by Policy 1.1.1 [SM] (designating the Stormwater Sub-element of the Utilities Element of the Plan), which requires that those features be maintained in their natural state. Objective 2.1 [C] requires the County and City to "coordinate the various elements of their overall stormwater program through a unified plan to ensure the efficient and effective provisions of stormwater regulations, enforcement, planning, maintenance, operations, and capital improvements." Policy 2.2.1 [C] is to: "Protect and conserve the natural function of wetlands by limiting wetland destruction and adverse impacts." Policy 2.2.4 [C] is to: "Require additional restrictions in drainage basins that have been identified through scientific studies as having significant surface water degradation as defined by declining surface water systems, loss of aquatic plant and animal species, and an increase in the level of the parameters that define polluted water." Policy 2.2.5 [C] provides that "development in closed basins will be permitted only to the extent there is sufficient stormwater capacity within the basin." It also addresses the conditions under which inter-basin transfer of water will be permitted. Policy 2.3.4 [C] requires "a natural vegetation zone around the lake edge that severely limits clearing and is sufficient in size to help buffer the lake against runoff and provide aquatic vegetation for habitat." Objective 3.1 [C] is to "[p]rotect and enhance populations of endangered, threatened and species of special concern listed by Leon County and the Florida Game and Fresh Water Fish Commission, and their habitat so there is no loss of wildlife species " Policy 4.2.3 [C] restricts incompatible land uses near active karst features, which not defined in the Plan, and prohibits untreated stormwater from entering those features. It states: "Incompatible land uses are uses that use, produce, or generate as a waste any listed Resource Conservation and Recovery Act material or Environmental Protection Agency priority pollutant." It is found that the foregoing Plan provisions, taken together, do not make the Lake Jackson SDZ criteria redundant or superfluous in closed basins. To the contrary, the Plan provided more protection for Lake Jackson before the Plan Amendments. At the same time, DCA and the Kowal Intervenors did not prove beyond fair debate that the Plan Amendments are inconsistent with any of the foregoing Plan provisions, either individually or taken together. See § 163.3177(2), Fla. Stat.; Fla. Admin. Code R. 9J-5.005(5). Other Statutory and Rule Compliance Criteria Section 163.3177(8), Florida Statutes, states: "All elements of the comprehensive plan . . . shall be based upon data appropriate to the element." The implementing rule states: All goals, objectives, policies, standards, findings and conclusions within the comprehensive plan and its support documents, and within plan amendments and their support documents, shall be based upon relevant and appropriate data and the analysis applicable to each element. To be based on data means to react to it in an appropriate way and to the extent necessary indicated by the data available on that particular subject at the time of adoption of the plan or plan amendment at issue. Fla. Admin. Code R. 9J-5.005(2)(a). It is found that, due to the great importance of Lake Jackson as a natural resource, the data and analysis were insufficient to support the Plan Amendments, which do not react appropriately to the data and analysis. More analysis is required before it is can be determined that the benefits of the Lake Jackson SDZs should be eliminated in closed basins. First, as indicated, the definition of closed basin in the Plan's Glossary would include basins with an artificial outlet for runoff into the greater Lake Jackson Drainage Basin. Any other definition of closed basin not in the Plan, including the 100- year, 24-hour storm event definition the County indicates it intends to adopt through its LDRs, would be subject to change outside the statutory plan amendment process. Even assuming that such a definition were in the Plan, the data and analysis suggest that such a definition would not be the most appropriate definition to use in the interest of Lake Jackson's water quality. Rather, the definition should specify that it would be applied post-development and that it should be based on a continuous simulation model, or at least include an appropriate recovery time requirement, to account for antecedent and subsequent rainfall and the cumulative effect of smaller rain events. Until such an appropriate definition is adopted as part of the Plan, and the closed basins identified and evaluated, it cannot be determined that eliminating the SDZs in closed basins will not harm Lake Jackson, including possible harm from effects on groundwater beneath the closed basins and from effects on wildlife using the closed basins. For these reasons, the Plan Amendments do not react appropriately to the data and analysis. State law requires local governments to include a conservation element in their comprehensive plans "for conservation, use, and protection of natural resources in the area, including air, water, water recharge areas, wetlands, waterwells, estuarine marshes, soils, beaches, shores, flood plains, rivers, bays, lakes, harbors, forests, fisheries and wildlife, marine habitat, minerals, and other natural and environmental resources." § 163.3177(6)(d), Fla. Stat. The conservation element must have policies for: "Protection and conservation of the natural functions of existing soils, fisheries, wildlife habitats, rivers, bays, lakes, floodplains, harbors, wetlands including estuarine marshes, freshwater beaches and shores, and marine habitats" Fla. Admin. Code R. 9J-5.013(2)(c)6. Rule Chapter 9J-5 reinforces this requirement by requiring: future land use objectives to "[e]nsure the protection of natural resources” (Fla. Admin. Code R. 9J- 5.006(3)(b)4.); future land use policies for "[p]rotection . . . of environmentally sensitive lands" (Fla. Admin. Code R. 9J- 5.006(3)(b)6.; and conservation element objectives to conserve native vegetative communities, fisheries, and wildlife habitat (Fla. Admin. Code R. 9J-5.013(2)(b)3.- 4.). By a preponderance of the evidence, it is found that the Plan, as amended, would be inconsistent with the foregoing statutes and rules in that the data and analysis were insufficient to determine that the Plan, as amended, would adequately protect Lake Jackson. Given the data and analysis, the Plan Amendments do not react appropriately. Local governments are also required to include in their comprehensive plans a "general sanitary sewer, solid waste, drainage, potable water, and natural groundwater aquifer recharge element correlated to principles and guidelines for future land use, indicating ways to provide for future potable water, drainage, sanitary sewer, solid waste, and aquifer recharge protection requirements for the area." § 163.3177(6)(c), Fla. Stat. The future land use element must have policies for: "Provision for drainage and stormwater management . . . ." Fla. Admin. Code R. 9J-5.006(3)(c)4. Furthermore, comprehensive plans must have an element for sanitary sewer, solid waste, stormwater management, potable water and natural groundwater aquifer recharge with objectives that "address protecting the functions of natural groundwater recharge areas and natural drainage features" and policies "[r]egulating land use and development to protect the functions of natural drainage features . . . ." Fla. Admin. Code R. 9J- 5.011(2)(b)5 & (2)(c)4. It was not proven by a preponderance of the evidence that the Plan Amendments would be inconsistent with any of those provisions. The evidence was that the Plan Amendments were inconsistent with the State Comprehensive Plan to the extent that it was inconsistent with other statutory and rule compliance criteria. No evidence was presented to prove inconsistency with the Strategic Regional Policy Plan.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission find the Plan Amendments to be not "in compliance." DONE AND RECOMMENDED this 13th day of March, 2008, 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 13th day of March, 2008.
The Issue Whether the Second Amended Notice of Driveway Modification, in which Respondent, Florida Department of Transportation (“FDOT”), seeks to modify the driveway used by Petitioners, John Majka, individually and on behalf of Harry E. Miller, and Intervenor, JPM Ventures, Inc. (“JPM”), is consistent with sections 335.181, 335.182, and 335.1825, Florida Statutes, and Florida Administrative Code Rules 14-96.011 and 14-96.015; and whether FDOT engaged in conduct in violation of section 120.569(2)(e).
Findings Of Fact Background and Existing Driveway FDOT is the state agency responsible for regulating access to the state highway system, which includes SR 80. § 335.182, Fla. Stat. Based on a request by Lee County’s Metropolitan Planning Organization (“MPO”), FDOT began designing plans to build a four to five mile shared use path for pedestrians and bicyclists along SR 80 (“Project”). In that area, SR 80 is a class three road with a 45 mph speed limit. Petitioners’ property is within the Project and uses a 98-foot wide, unpermitted driveway to access SR 80. The Estate of Harry Miller owns the easternmost parcel on which the entire driveway and an office building are located. Mr. Majka’s business, JPM Ventures, is a licensed motor vehicle dealer and uses the Miller parcel as both an office (the right half of the building) and to store recreational vehicles, such as motor homes, campers, and trailers. Mr. Majka owns the three adjacent parcels to the west and leases those parcels to Superior Sheds, which sells sheds that are delivered to and picked up from the property on large trucks. Superior Sheds uses the 3 As detailed in Orders dated October 21, 2020, and November 10 and 30, 2020, the undersigned made extraordinary efforts to accommodate Petitioners throughout this case, including granting several extensions to file their PRO. But, instead of doing so, Petitioners’ representative spent that time filing numerous motions raising untimely and already- rejected issues while arguing that he was too sick to file the PRO. The Orders denied Petitioners’ motions and explained that the undersigned could no longer acquiesce to these improper efforts to delay the resolution of this case. Miller parcel as an office (the left half of the building) and to access SR 80 via the driveway, and uses the Majka parcels to store its sheds. The following photo taken in January 2018 depicts the driveway and the two business’s operations, which are delineated by the two dotted-lined boxes: Petitioners’ driveway has been in existence since at least the 1960s and remains unchanged today. Aerial photographs from 1986 and 1990 confirm the presence of a building on the Miller parcel, the driveway in its current form, and the Majka parcels being used for what appears to be parking or storage. Mr. Majka purchased his parcels in 1998 and has been using the driveway continuously since. JPM Ventures has operated on the Miller parcel and Superior Sheds has operated on the Miller and Majka parcels since as early as 2015. Superior Sheds uses a paved pathway so its trucks can travel between the Majka parcels, where the sheds are stored, and the driveway. Based on the weight of the credible evidence, Petitioners’ driveway has existed and been continuously used since 1988. Though the vehicles and/or storage containers located on the Majka parcels may vary and a pathway was paved on the Majka parcels to allow for easier access to the driveway, the evidence did not establish significant changes to the buildings, facilities, or overall use of the property that “caus[ed] an increase in the trip generation of the property exceeding 25 percent more trip generation (either peak hour or daily) and exceeding 100 vehicles per day more than the existing use,” as required by section 335.182(3)(b). The Project and Proposed Modifications to Petitioners’ Driveway Based on the MPO’s request, FDOT began planning for the Project in 2014. FDOT retained AIM Engineering to design the Project. Ms. Ratican, an AIM employee, is one of the engineers of record on the Project. FDOT identified 24 driveways along the Project that required modification. In late 2017, FDOT’s project manager, Mr. Weeks, went door-to-door along SR 80 to try to meet with as many property owners as possible and discuss the Project. FDOT thereafter sent certified letters to all property owners to notify them about any proposed modifications to their driveway. On December 7, 2017, FDOT issued its Notice advising Petitioners of its plans to modify the driveway to improve safety and operations along SR 80. FDOT sought to reduce the driveway width from 98 feet to a design standard of 24 feet. Upon receipt, Mr. Weeks met on site with Mr. Majka. At the time of the 2017 meeting and as depicted in the following photograph, there was a covered parking spot in front of the left half of the building (Superior Sheds’ office), but there were neither defined parking spots with painted lines along the front of the right half of the building (JPM Ventures’ office) nor a fence next to the covered parking spot that separated the two business operations: Mr. Majka objected to the smaller driveway and requested a hearing. FDOT transmitted the Notice to DOAH and it was assigned Case No. 18-4433. While that case was pending at DOAH, the parties engaged in numerous discussions to try to reach an amicable resolution. In July 2018, Mr. Weeks, several FDOT employees, and a state Senator’s aides met Mr. Majka on site to discuss the proposed modifications. Mr. Majka presented a PowerPoint and argued that the driveway could not be modified because it was grandfathered. At that time, there were no parking spots with painted lines or a fence perpendicular to the front of the building; vehicles simply parked diagonally or parallel to SR 80 in that area. Over the next few months, FDOT proposed several options for driveway widths between 30 and 53 feet, relocating the driveway to the east side of the Miller parcel, creating a second driveway on the Majka parcels, and others. Petitioners rejected each of them. In January 2019, after jurisdiction in the prior case was relinquished for failing to properly serve the Miller Estate, FDOT served its Amended Notice. FDOT now sought to modify the driveway to improve safety and operations on SR 80 as part of a sidewalk project. FDOT proposed a non- standard driveway width of 53 feet. Petitioners objected and requested a hearing, which began the instant case. At some point between July 2018 and April 2019, and while on notice of FDOT’s intent to modify the driveway, Petitioners made changes to the paved lot in front of the building. They added lined parking spaces perpendicular to the front of the building and a fence extending beyond the new parking spots that divided the two business operations. The following photograph taken in April 2019 depicts these changes: Petitioners apparently had not obtained a permit to add the parking spaces, which may not have even been possible because the spaces are so close to the property line that vehicles would have to use FDOT’s right-of-way—i.e., a large portion of the paved lot between the bottom of the parking spaces and the top of the shared use path, as shown in the diagram in paragraph 17 below—in order to back out of the parking spaces and exit the property. Notwithstanding, FDOT attempted to design subsequent proposals with minimal impacts to those parking spaces to appease Petitioners and their existing business operations. In May 2019, FDOT Southwest District Secretary L.K. Nandam met with Mr. Majka and his professional engineer, Mr. Trebilcock, to discuss Petitioners’ concerns with the Amended Notice, which were outlined in an Access Connection Report (“ACR”) prepared by Mr. Trebilcock in April 2019. The ACR focused on the two business operations and on site circulation problems that allegedly would exist due to the size of the trucks using the driveway. To alleviate those problems, the ACR proposed retaining the existing 98 feet of pavement, but utilizing a 45-foot-wide, double-yellow-lined area to limit the operational width of the driveway to 53 feet. The meeting resulted in additional proposals by FDOT and another phone call between Secretary Nandam, Mr. Majka, and Mr. Trebilcock. FDOT created another proposal that sought to address Petitioners’ concerns and use information they provided as to the size of the trucks. Based on Petitioners’ request for all of the engineers to meet, FDOT facilitated a meeting at its Southwest District office with Mr. Majka, Mr. Trebilcock, several FDOT employees, Ms. Ratican, and her supervisor. Because the latest proposal did not address all of their concerns, Petitioners rejected it. In August 2019, FDOT served a Second Amended Notice, on which the final hearing proceeded. As corrected, it proposes the following design: FDOT seeks to modify the driveway to improve safety and operations on SR 80 as part of a 10-foot-wide shared use path project. The decision to revert back to a shared use path was made by the MPO at a public meeting. FDOT proposes a non-standard driveway width of 53 feet, which is about 15 to 20 feet wider than a standard design for this portion of SR 80 and larger than any other modified driveway within the Project. A mountable, five-inch-tall type E curb outlines a triangular concrete island on the right side of the driveway, which larger trucks can slowly drive over to maneuver on site. A non-mountable, six-inch-tall type F curb extends from the concrete island to the property line, discouraging vehicles from driving over it and crossing the shared use path. FDOT also moved the shared use path closer to SR 80 in this proposal to accommodate the trucks that Petitioners claimed visited the property frequently and granted Petitioners an 11-foot area to circulate vehicles within FDOT’s right-of-way, which minimizes interference with Petitioners’ newly-created, lined parking spaces. Based on the weight of the credible evidence, FDOT’s proposed modifications are necessary to improve the safety and operational characteristics of SR 80. The existing driveway is hazardous to pedestrians and bicyclists using the shared use path. It is as wide as an eight-lane highway and contains no barrier to protect those crossing it. Vehicles can enter and exit the driveway at high speeds and at multiple angles, which creates numerous conflict points and confusion for pedestrians and bicyclists who have little time to react. By reducing the driveway width to 53 feet and utilizing mountable and non-mountable curbs, FDOT has reduced the speed with which vehicles can enter and exit the property, prevented vehicles from driving through the shared use path beyond the driveway, limited conflict points, and lessened the risk of confusion for pedestrians and bicyclists. A safety report prepared by AIM, which was signed and sealed by Ms. Ratican, conducted a crash assessment along the Project corridor for the prior five years. It revealed 750 crashes, seven of which involved pedestrians and bicyclists. Although no crashes occurred at this driveway, the report found FDOT’s design would reduce the risk of crashes by 70 percent, decrease the time it takes pedestrians and bicyclists to cross the driveway by 38 percent, and improve their awareness of vehicles using the driveway. And, though FDOT is allowing a driveway that is wider than standard, the design will reduce the risk associated therewith and enhance pedestrian safety through the use of curbs. Petitioners presented no credible evidence to suggest that FDOT’s proposed design would not improve safety or the operational characteristics of SR 80. Indeed, Mr. Trebilcock offered no specific testimony on this subject. Petitioners instead focused on how FDOT’s proposal purportedly failed to provide them with reasonable access. But, they conceded in pleadings that FDOT’s design arguably constituted reasonable access and they presented no credible evidence disputing the reasonableness of FDOT’s proposed reduction in the width of the driveway to 53 feet. Petitioners will maintain the same number of access connections and the evidence showed that the trucks that Petitioners claim frequent the site can safely enter and exit the property from either direction on SR 80. The modifications simply will neither impact the ability of vehicles to enter and exit the property safely nor affect roadway traffic patterns. Nevertheless, Mr. Trebilcock opined that reasonable access will be lacking because FDOT’s design will cause multiple problems on site. Specifically, trucks must drive over mountable curbs, through existing parking spaces and fences, and over pervious surfaces, which could create permitting issues. The weight of the evidence established otherwise. It is true that FDOT’s design may cause trucks to have to maneuver on site differently than before. But, that is expected given the reduction in the width of the driveway. The potential issues identified by Mr. Trebilcock do not prevent access, but rather create reasonable limitations that would only arise (if at all) once the vehicles are on site. FDOT also took into account information provided by Petitioners as to the types of trucks that regularly visit the property. FDOT used auto-turn software to demonstrate how the trucks could safely enter and exit the property and maneuver on site. FDOT’s witnesses explained that the auto- turn exhibits illustrate one way that the vehicles could maneuver on site and that additional maneuvering could be performed to avoid the parking spots, fences, and pervious surfaces. The weight of the credible evidence also undermined testimony as to the purported problems that FDOT’s design will cause on site. As to interference with the lined parking spaces, Petitioners created the very problems about which they are complaining because they installed them with knowledge of the Project, including FDOT’s intent to reduce the width of the driveway. Additionally, photographs introduced by Petitioners into evidence show that JPM Ventures already uses the pervious surface along the right side of the Miller parcel to park vehicles it has for sale—the same pervious surface that Mr. Trebilcock testified could create permitting issues if vehicles had to traverse over it to maneuver on site. Mr. Trebilcock also testified extensively as to two alternative designs that he believed were equally safe, but avoided any issues on site. First, he proposed the following design that retained the original 98 feet of pavement, but utilized a double-yellow-lined area to reduce the operational width of the driveway to 53 feet: Second, Mr. Trebilcock proposed the following design that essentially retained the original 98 feet of pavement, but used a truck apron with a three-inch tall, RA mountable curb to reduce the operational width of the driveway to 53 feet: Mr. Trebilcock testified that this design aligned with the recommendation in the AIM safety report to use a truck apron. Mr. Trebilcock acknowledged that vehicles could drive over either the double-yellow-lined paved area or the truck apron and RA curb. But, he opined that both were just as safe as FDOT’s design because they created separation between the driveway and the shared use path and forced vehicles to reduce their speed. Because the vehicles could make similar movements to enter and exit the property as they could with the existing driveway, the alleged on-site problems he identified would be avoided. However, Ms. Ratican credibly explained why these two designs were not as safe. She believed the first design provided less protection because there was no physical separation between the driveway and the shared use path except for the painted lines, which could be driven over without slowing down. She believed the second design was safer than the first, but still provided less protection because vehicles could drive over the three-inch RA curb more easily and at a faster speed than the five-inch type E curb in FDOT’s design. Further, despite the fact that the conclusion section of FDOT’s safety assessment report recommended a truck apron, she confirmed that the design exhibits included within the report and attached to the Second Amended Notice clearly use a type E curb. She confirmed that FDOT never proposed a truck apron for this driveway. In sum, the weight of the credible evidence showed that Petitioners’ existing driveway is unsafe and poses a safety risk for pedestrians and bicyclists using the shared use path. FDOT’s proposal is a safe design that substantially reduces that risk consistent with the operational characteristics of SR 80, and continues to provide Petitioners with reasonable access. Although Petitioners prefer their alternative designs, they pose a greater safety risk to users of the shared use path. Petitioners also challenge the proposed modifications based on alleged procedural failures.4 However, the evidence was to the contrary. 4 Petitioners also have repeatedly argued that the Project as a whole should not occur, that this case was prematurely brought because the Project lacks federal approval and/or funding, that FDOT failed to comply with the National Environmental Policy Act (“NEPA”), and that FDOT submitted a different driveway design to the SFWMD to obtain an environmental resource permit for the Project, among other arguments. Because jurisdiction in this case is limited to determining if FDOT’s proposed driveway modifications are consistent with the design and safety standards under Florida law and provide Petitioners with reasonable access, arguments as to why the Project is ill-advised and whether it will ever be funded or approved by federal or other governmental agencies are not addressed herein. Petitioners questioned the validity of the exhibits attached to the Second Amended Notice because they were not signed and sealed by a professional engineer. Ms. Ratican and her design team at AIM prepared the exhibits on FDOT’s behalf. Ms. Ratican acknowledged that they were not signed and sealed by her or another engineer of record, but that was because they were preliminary in nature. She confirmed that the final plans would be signed and sealed once this case was resolved. Petitioners also argued that FDOT failed to hold a public hearing in violation of section 335.199. Throughout the Project’s development, the MPO and FDOT worked together. The MPO and other local government entities have held numerous public meetings, at which FDOT employees attended. Mr. Majka has attended many of them, too. In fact, he has made over 30 presentations to the various entities about both the Project and the proposed modifications to Petitioners’ driveway. The MPO also received substantial public input and approved revisions to the Project based thereon. FDOT has conferred with Petitioners multiple times and adjusted its proposed modifications based on the input received. The weight of the credible evidence established that FDOT received substantial input about the Project generally from the public’s involvement at the MPO and about Petitioners’ driveway specifically from the multiple meetings with Mr. Majka and his engineer. Lastly, Petitioners have repeatedly argued that FDOT acted in bad faith in seeking to modify their driveway and, as such, should be sanctioned. Contrary to Petitioners’ argument, there is no credible evidence to find that FDOT’s pleadings, positions, or other actions in this case were made in bad faith or for an improper purpose, as required by section 120.569(2)(e). Mr. Trebilcock testified that he did not believe FDOT acted in bad faith or for an improper purpose with any of its proposals. Although he believed FDOT initially failed to understand the business operations on site and the process could have gone better, he testified that FDOT’s proposals improved after it received more information and further input from him and Mr. Majka. The weight of the credible evidence established that FDOT made extraordinary efforts to take Petitioners’ concerns into account and revised its proposed modifications numerous times in a good faith effort to accommodate their individual needs. FDOT employees met on site with Mr. Majka twice and at FDOT’s office once. FDOT employees engaged in multiple conversations with Mr. Majka by telephone and e-mail. The district secretary had two meetings with Mr. Majka and his engineer, in person and over the phone. FDOT’s proposed modifications provide for a driveway that is significantly wider than any other within the Project corridor and provides for an 11-foot area within FDOT’s right-of-way to assist Petitioners with circulation on their property—an accommodation only one other owner received because he agreed to two driveways on his property, which Petitioners rejected when offered. FDOT not only treated Petitioners fairly, but accommodated them more than the other property owners.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order approving the proposed modifications to Petitioners’ driveway connection as outlined in the Second Amended Notice. DONE AND ENTERED this 15th day of January, 2021, in Tallahassee, Leon County, Florida. S ANDREW D. MANKO 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 15th day of January, 2021. COPIES FURNISHED: John Majka 18700 Old Bayshore Road Fort Myers, Florida 33917 (eServed) David Tropin, Assistant General Counsel Florida Department of Transportation 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399 (eServed) Austin M. Hensel, Assistant General Counsel Florida Department of Transportation 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399 (eServed) Amber Greene, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 (eServed) Kevin J. Thibault, P.E., Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 57 Tallahassee, Florida 32399-0450 (eServed) Sean Gellis, General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 (eServed)
The Issue The issue is whether Respondent violated Subsection 760.10(1), Florida Statutes (2006), by discriminating against Petitioner on the basis of her age or disability when Respondent terminated Petitioner from her employment.
Findings Of Fact Respondent is a rehabilitation and nursing center located in Port Richey, Florida. Petitioner began her employment with Petitioner on August 2, 2004, as a dietary aide and remained employed as a dietary aide until the date of termination from employment on June 26, 2007. As a dietary aide, Petitioner provided assistance in the kitchen area before, during, and after meals. Petitioner cleaned tables, assisted with food carts, removed garbage, and performed other physical duties to assist with the meal service. Petitioner sustained a fractured wrist in an accident at her home on March 27, 2007. Respondent provided unpaid leave for Petitioner, pursuant to Family and Medical Leave Policy (the FMLA Policy). The leave to which Petitioner was entitled as a job benefit began on March 27, 2007. Petitioner was eligible for up to 12 weeks of unpaid leave under the FMLA Policy. On April 20, 2007, the treating physician for Petitioner at the Center for Bone & Joint Disease provided a note to Respondent stating that Petitioner was unable to return to work for eight weeks. Respondent correctly excused Petitioner from work until June 15, 2007. On April 24, 2007, the treating physician for Petitioner completed a Certification for Health Care Provider Form and presented the form to Respondent. The form indicated that Petitioner’s leave would expire on June 15, 2007. Petitioner completed, signed, and provided to Respondent a Request for Leave of Absence Form, indicating her anticipated return date to be June 15, 2007. Respondent provided leave for Petitioner until June 19, 2007. It is undisputed that, seven days before returning to work, the FMLA Policy required Petitioner to provide a medical clearance or a doctor’s statement that she was physically able to resume the normal duties of her employment. Shortly after May 1, 2007, Petitioner received a memo from the administrator for Respondent reminding Petitioner that her “FMLA leave EXPIRES on: 6/19/2007.” In late May 2007, Ms. Joann Robinson, a co- worker and former cook for Respondent, spoke to Petitioner by telephone and requested that Petitioner contact the supervisor about Petitioner’s return to work. Petitioner acknowledged to Ms. Robinson that Petitioner would contact the supervisor. Ms. Robinson informed the supervisor that she spoke with Petitioner and that Petitioner stated she would contact the supervisor. When the supervisor did not hear from Petitioner, the supervisor and Ms. Laura Gilbreath, payroll administrator for Respondent, attempted to contact Petitioner by telephone approximately one week prior to the expiration of the FMLA leave. The purpose of the telephone call was to confirm that Petitioner was able to return to work upon expiration of her FMLA leave. The supervisor and Ms. Gilbreath were unable to reach Petitioner because her telephone service was disconnected. Petitioner never contacted Respondent prior to the expiration of the FMLA leave on June 19, 2007. Petitioner never contacted her supervisor about returning to work and never presented a medical clearance or doctor’s statement that she was physically able to resume her normal duties. Respondent terminated Petitioner from her employment on June 26, 2007, for exceeding the leave allocated under the FMLA Policy and failing to contact the facility or report back to work with proper documentation prior to the expiration of her FMLA leave. Respondent has terminated other employees who failed to contact the facility or return to work upon exhaustion of leave under the FMLA Policy, and there is no evidence to suggest Respondent treated Petitioner any differently.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order finding Respondent not guilty of the alleged discrimination and dismissing the Petition for Relief. DONE AND ENTERED this 4th day of March, 2009, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 2009. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Sherry Malter 9415 Palm Avenue Port Richey, Florida 34668 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Benjamin D. Sharkey, Esquire Jackson Lewis St. Joe Building 245 Riverside Avenue, Suite 450 Jacksonville, Florida 32202
The Issue The issue in this case is whether Petitioner, Conval-Care, Inc., is entitled to the payment of attorney fees and costs pursuant to Section 57.111, Florida Statutes, from the Agency for Health Care Administration, the successor in interest to the Respondent, the Department of Health and Rehabilitative Services.
Findings Of Fact By letter dated November 4, 1991, the Department of Health and Rehabilitative Services (hereinafter referred to as the "Department"), notified Conval-Care, Inc. (hereinafter referred to as "Conval-Care"), that it intended to impose an administrative fine on Conval-Care pursuant to Section 409.913(9)(c), Florida Statutes. Conval-Care contested the proposed fine and requested a formal administrative hearing, including a request that it be awarded attorney fees and costs pursuant to Section 57.111, Florida Statutes. The matter was designated case number 92-0126 and was assigned to the Honorable Judge Robert T. Benton, then Hearing Officer Benton. On June 30, 1993, following a formal hearing held on March 24, 1993, Hearing Officer Benton entered a Recommended Order recommending dismissal of the sanctions letter of November 4, 1991. The findings of fact made by Hearing Officer Benton, in Conval-Care, Inc. v. Department of Health and Rehabilitative Services, DOAH Case No. 92-0126, are hereby adopted to the extent relevant to this proceeding. On September 19, 1993, the Department entered a Final Order. The Department accepted and incorporated into its Final Order the findings of fact made by Hearing Officer Benton. The Department, however, rejected Hearing Officer Benton's conclusions of law to the extent that he not had concluded that Conval-Care lacked authority to reject the demand for its records which was the subject of the proceedings. The Department concluded that, in light of the fact that Conval-Care had acted on the advice of counsel, it would reduce the fine from $25,000.00 to $5,000.00. The Department's decision was appealed by Conval-Care. On December 16, 1994, the District Court of Appeal, First District, filed an opinion reversing the Department's Final Order. Mandate from the First District was entered January 3, 1995. On February 14, 1995, Conval-Care filed a Petition for Attorneys Fees and Costs in this case. Conval-Care requested an award of $15,000.00 as a small business party pursuant to the provisions of Section 57.111, Florida Statutes. Attached to the Petition were the Final Order entered by the Department, the Recommended Order, the First District's Opinion and Mandate, an Attorney's Affidavit stating the nature, extent and monetary value of the services rendered and costs incurred in the proceedings, the Petition for Formal Administrative Hearing filed by Conval-Care in 1991 and the Department's November 4, 1991 sanctions letter. On March 2, 1995, the Agency for Health Care Administration, the successor in interest of the Department (hereinafter referred to as "AHCA"), filed a Response in Opposition to Petition for Attorney's Fees and Costs. 10 In its Response, AHCA admitted all of the allegations contained in paragraphs 1 through 6 and 8 through 9 of the Petition. AHCA denied the allegations of paragraph 7 of the Petition. Paragraph 7 of the Petition alleged the following: 7. The action of DHRS, in filing the admini- strative complaint against CCI, was not sub- stantially justified because there was no reasonable basis in law or fact to support the issuance of its letter seeking to impose an administrative fine upon CCI. Attached to the Response was an Affidavit from John M. Whiddon in support of its position that its actions were substantially justified. The Affidavit does not add any alleged credible justification not presented to Hearing Officer Benton or the First District Court of Appeal. AHCA did not assert in it Response the following: that the costs and attorney's fees claimed in Conval-Care's affidavit were unreasonable; that Conval-Care is not a prevailing small business party; that circumstances exist that would make an award unjust; or that AHCA was a nominal party only. AHCA also did not "either admit to the reasonableness of the fees and costs claimed or file a counter affidavit [specifying each item of costs and fee in dispute] along with its response." Finally, AHCA did not request an evidentiary hearing in its Response. The only issue which AHCA asserted in its Response was at issue in this proceeding is whether AHCA's actions were substantially justified. On April 6, 1995, an Order to Provide Information was entered. Although the parties had not requested an evidentiary hearing, the undersigned entered the Order soliciting input from the parties before the undersigned decided whether a hearing was necessary on the one issue raised by the Department. In the Order, the parties were given an opportunity to provide input concerning the procedures they believed should be followed to resolve this matter. The parties were specifically requested to answer certain specified questions, including the following: 1. Do the parties believe that an [sic] hearing is necessary to resolve any factual disputes and/or for purposes of oral argument before a decision is rendered? * * * 5. Do the parties agree that the documents attached to the Petition and the Response should be considered in rendering a decision in this case? . . ." Conval-Care filed a response to the April 6, 1995 Order indicating that there was no need for a hearing. Conval-Care asserted that a hearing would be improper unless Conval-Care consents to one. Conval-Care also asserted that all of the documents attached to petition should be considered. AHCA filed a response to the April 6, 1995 Order indicating that "[t]he Respondent feels a hearing in this matter is essential." AHCA did not provide any explanation of why it believed a hearing was necessary or any discussion of whether a hearing was authorized under the applicable statutes and rules. AHCA also indicated in its response that it "agrees that the documents attached to the Petition and Response should be considered in this case " On May 19, 1995, an Order Concerning Final Order was entered. Based upon a review of the pleadings and the lack of explanation from either party to justify an evidentiary hearing, it was concluded that no evidentiary hearing was necessary. Therefore, the parties were informed in the May 19, 1995 Order that a hearing would not be held in this case. The parties were also informed that they could file proposed final orders on or before May 30, 1995. Conval-Care filed a proposed order. AHCA did not. Neither Conval-Care nor AHCA timely requested an evidentiary hearing in this case. Both parties agreed that the documentation filed with Conval- Care's Petition and AHCA's Response could be relied upon in reaching a decision in this case. Based upon AHCA's failure to contest most of the relevant issues in this proceeding, the only issue which requires a decision if whether the Department's actions against Conval-Care were substantially justified. The documents, including the Mr. Whiddon's Affidavit filed by AHCA with its Response, sufficiently explain why the Department took the actions it took against Conval-Care which led to this proceeding. No evidentiary hearing was, therefore, necessary. The weight of the evidence failed to prove that the Department's actions in this matter were substantially justified. The Department could have sought the information it wanted by pursuing available discovery. Counsel for Conval-Care even remained the Department of the availability of discovery. The Department, however, rather than pursuing the information which it indicated it needed, elected to pursue a punitive action against Conval-Care rather than obtaining the information through discovery. The Department's reason for pursuing punitive actions against Conval-Care was not convincing to Hearing Officer Benton. Despite this fact, the Department entered a Final Order upholding its actions and imposing a fine of $5,000.00 for refusing to provide it with information which it could have obtained through other means. The First District Court reversed the Department's Final Order opining that the Department "lacked a legitimate investigatory purpose for demanding the records" which gave rise to its action against Conval-Care. Finally, the entire record in this case failed to indicate that there was any basis in law or fact to substantially justify the actions of the Department.
