The Issue Whether Respondent committed the violations in the Administrative Complaints and, if so, what penalty should be imposed.
Findings Of Fact AHCA is the agency responsible for the licensing and regulation of assisted living facilities in Florida pursuant to Chapter 400, Florida Statutes. Pecan Grove is an assisted living facility which is owned by North Florida Living Facilities. Pecan Grove has a licensed capacity of eight beds and is located in a home in Pensacola, Florida. Case No. 01-1209 Robert DuBose is the Director of Environmental Health for the Escambia County Health Department. His office is responsible for inspection of facilities, including assisted living facilities, regarding environmental health matters. His agency works in cooperation with AHCA in that AHCA handles licensure and related inspections and his agency handles the environmental health portion of the inspections. His agency is primarily interested in facility sanitation and issues that would be related to the health of the residents. In September of 2000, Mr. DuBose received a call from an AHCA nurse informing him of certain environmental health conditions at Pecan Grove. Also in September of 2000, AHCA responded by letter to a resident of Pecan Grove regarding a complaint made by the resident regarding the facility. The letter to the resident stated that an unannounced visit to the facility would take place. Mr. DuBose, the Deputy Director of Environmental Health, and a facility inspector from his agency went to Pecan Grove and conducted an inspection of the facility. During the inspection, Mr. DuBose and his colleagues found numerous environmental health problems: I was appalled at the condition of this facility. And as I indicated in my written statement, I couldn't believe that something like this had a license in the State of Florida. I just -- I have never seen anything like this that had any type of license from the State in all the years of being a health inspector. I've seen things like this in private residences where we had dilapidated homes, indigent folks living there, people that were mentally ill, living conditions like this, but I just can't -- I still don't understand how or why this place was licensed. And I'm sure, you know, AHCA may have some feelings in the same -- it's not that someone -- I'm not sure what happened but it's not any facility we want to have licensed, I guess is what I was trying to say. It was just -- there was roaches in the refrigerator. There was roaches in the building. There were no linens on the beds. People were sleeping on mattresses without covers, pillows without covers. There were evidence of rats in the heater closet. There was no hot water in one of the bathrooms. There was some improper storage of garbage. When we were outside, the mosquitos [sic] were just eating us up. I mean, we had bites all over us just waking [sic] around outside. And we found the storage containers with stagnant water in them sitting around in the yard. Thee [there] was sewage overflowing and they had a septic tank that a laundry or the laundry wastewater was overflowing, some type of sewage was overflowing in the middle of the back of the yard. There were rat burrows up under the house. It was -- it was just the carpets were filthy. You couldn't even tell what color they were. It's just housing that you would -- that I've -- I haven't seen anything like that since, I suppose, the times that we did the I-110 road control project when we put I-110 through Pensacola and the people -- there was some low income people in that area and the people moved out of the houses and we had to go in there or our inspectors had to go in to kill the rats and fleas before we tore the houses down and it was similar to that type of condition. And like I say, I've seen some elderly people that were mentally ill living in that type of condition, but never, never seen any kind of a facility like that. No question that this was a health hazard. The people needed to be moved. These environmental health problems described by Mr. DuBose constitute gross environmental health hazards. Rats carry fleas that can cause disease when they bite people. Additionally, rats urinate as they travel and carry a disease called leptospirosis in their urine and other diseases. Upon inspection, Mr. DuBose found mosquito larvae in several containers in all different stages of development indicating the containers had been standing for some time. Mosquitoes carry several diseases including dengue fever and West Nile virus. The sewage overflow in the backyard also constituted a health hazard even though it was from wash water, as that is still highly contaminated wastewater. The inside of the facility also contained many health hazards including inadequate air conditioning and a leak in the sink so severe that the bottom of the cabinet under the sink was saturated from water before a bucket had been placed there to catch the dripping water. The inside of the refrigerator was 70 degrees which was significantly above the temperature adequate to safely store food. Roaches were found inside the refrigerator. Roaches are a health hazard because they track contaminants onto food. A burner on the stove was not working causing concern that an electrical fire could result. The carpets and floors were filthy. There were no sheets on the beds and the mattresses and pillows were filthy. There were rat droppings and pecan shells in the water heater closet which was adjacent to the bedrooms and hallway. The bathrooms were in poor condition in that there was no hot water in the hand sink in one of the bathrooms and no faucet on another. Mr. DuBose and his colleagues called Adult Protective Services requesting they send an inspector there as the inspection team felt the residents needed to be removed immediately. The owner agreed to move the residents immediately and the residents were moved to another facility owned by Respondent, Willow Grove. Margot Robinson, administrator of Pecan Grove and wife of the owner of Pecan Grove, attempted to explain some of the health hazards found by Mr. DuBose. She and her husband had started to remodel the facility. They had removed some carpet and started painting one of the bedrooms. She also explained that on the day of Mr. DuBose's inspection, she had ordered a staff person to remove the bed linens for washing and to bleach the mattresses. Further, she explained that a house across the street from Pecan Grove had burned down several months prior to the inspection and that rats were coming to Pecan Grove from a pile of wood left from the burned house. She also accused a former resident of causing damage to the facility. AHCA placed a moratorium on admissions to Pecan Grove on September 26, 2000. By letter dated October 24, 2000, AHCA lifted the moratorium on admissions indicating that Tag A1006, which with Respondent had been cited in the Administrative Complaint, had been corrected. Case No. 01-2107 As the result of a complaint received by AHCA, Sandra Corcoran and Norma Endress, registered nurse specialists employed by AHCA, conducted a survey inspection of Pecan Grove in April 2001. The complaint was in regard to two issues: threat of harm to a resident and that a resident was not getting the type of food he could eat. During the survey inspection, Resident #1 informed the surveyors that he had been threatened by Resident #3 that if Resident #1 changed the thermostat, that Resident #3 would hit him. Resident #3 was present at the beginning of the survey inspection. He was a tall man whose demeanor was threatening to a point that even the AHCA nurses were intimidated by him. Resident #3 first lived at Willow Grove, but was moved to Pecan Grove. He had a history of psychological problems and would at times check himself into a local psychiatric care facility. At the time of the survey visit, Resident #3 had been given his discharge notice from Pecan Grove. The AHCA surveyors instructed the staff person to call the police if Resident #3 made threats to the other residents. Resident #1 was thin and pale and complained to the surveyors that he was not given appropriate food to eat. That is, Resident #1's teeth were in very poor condition and he requested soft foods such as Vienna sausage, potted meat and oatmeal. During the survey inspection, Ms. Corcoran did not observe these types of food to be available for Resident #1. However, Mrs. Robinson explained that Resident #1 had been given Promote, a nutritional drink, to supplement his diet. Ms. Corcoran asked a staff person to look at Resident #1's "1823" which is the document that contains any medical orders for the resident as well as diet requirements. However, none of the records for the resident were at the facility. All of the residents' records had been taken to Willow Grove by David Davis, area manager for Pecan Grove and Willow Grove. Mr. Davis' office was at Willow Grove and he had taken the records to his office to update them. Pecan Grove failed to have available the residents' medical records at the facility. AHCA placed a moratorium on admissions to Pecan Grove which was lifted on May 11, 2001, as the result of corrected deficiencies including the three deficiencies with which Respondent was charged in the Administrative Complaint, i.e., Tag A718, Tag A802, and Tag A300.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Agency for Health Care Administration enter a final order revoking Respondent's license for Pecan Grove Living Facility. DONE AND ENTERED this 15th day of November, 2001, in Tallahassee, Leon County, Florida. BARBARA J. STAROS 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 15th day of November, 2001. COPIES FURNISHED: Christine T. Messana, Esquire Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403 Richard P. Warfield, Esquire 201 East Government Street Pensacola, Florida 32501 Diane Grubbs, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403 William Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403
The Issue The issue is whether Plan Amendment 07-08 adopted by the City of Tampa (City) by Ordinance No. 2008-145 on August 21, 2008, is in compliance.
Findings Of Fact Based upon all of the evidence, the following facts are determined: The Parties The City is a municipality in Hillsborough County and has adopted a Plan that it amends from time to time. Its current Plan, as amended, was adopted in 1998 and has been determined to be in compliance. Since 2007, the City has participated in the Pilot Program for adoption of plan amendments, a process described in Section 163.32465, Florida Statutes. Under the Pilot Program, municipalities have "reduced state oversight of local comprehensive planning," and plan amendments may be enacted in "an alternative, expedited plan amendment adoption and review process." Id. The amendment being challenged here was adopted under the Pilot Program. The Department is the state land planning agency and is statutorily charged with the duty of reviewing plan amendments. Pursuant to the Pilot Program, the City must send a plan amendment transmittal package to the Department (and other designated agencies and entities) for its preliminary review. However, the Department does not issue an Objections, Recommendations, and Comments Report or a notice of intent. Instead, it "may provide comments regarding the amendment or amendments to the local government." § 163.32465(4)(b), Fla. Stat. The Department may also initiate an administrative proceeding for the purpose of determining whether an amendment is in compliance. See § 163.32465(6)(b), Fla. Stat. Florida Rock owns property and operates a business within the City and submitted oral and written comments in support of the proposed amendment. The facts establish that it is an affected person and has standing to participate in this proceeding. The Air Force owns property abutting Florida Rock's property and on which MacDill is located. The Air Force submitted written and oral comments to the City in opposition to the plan amendment. As such, it is an affected person and has standing to participate in this proceeding. Background A part of the City extends down a peninsula known as Interbay Peninsula with Hillsborough Bay to the east, Tampa Bay to the south, and Old Tampa Bay to the west. MacDill is located at the southern tip of the peninsula and consists of 5,767 acres. The facility was established in 1941. Its primary runway (Runway 4/22) is 11,421 feet long, exclusive of the 995- foot overrun, and runs in a southwest-northeast direction. Because of prevailing winds and its proximity to other airports in the St. Petersburg area to the west, the majority of the takeoffs are to the northeast. Around ninety percent of the landings are from the southwest (over Tampa Bay on the approach) to the northeast. Florida Rock owns two adjoining parcels of land on Interbay Peninsula, totaling 25.51 acres, located at 6604 South Dale Mabry Highway, which is a commercial corridor. The property lies just south of InterBay Boulevard, a few hundred feet west of Himes Avenue, and directly north of MacDill. At its closest, the site is less than three thousand feet from the edge of the overrun portion of the active runway. To the north and east of the property are residential properties, many of which were developed between 1940 and 1959. Another surge of development occurred in the 1980s. The properties to the north have residential land use designations. Future residential development of parcels to the north and east are capped at ten units per acre because of their location near MacDill. Directly to the south of the property is a vacant parcel with a Light Industrial land use. To the east of that property is land used as a park and includes baseball and soccer fields. MacDill lies south of the vacant parcel. The existing uses west of the property (and to the west of Dale Mabry Highway) are commercial, industrial, apartment, and office. The subject property has been classified as Light Industrial under the City's Plan. As the name implies, that land use category allows for light industrial uses that have only minimal offsite impacts such as noise and odor, along with offices, manufacturing, warehousing, and other general commercial uses. Residential uses are prohibited under this category. Development is subject to a maximum floor area ratio of 1.5. (Floor area ratio measures the intensity of non- residential land uses.) Currently, a warehouse distribution facility (truck terminal) owned by Florida Rock is located on the northern end of the property. Approximately one-half of the parcel is vacant. A small part of the property (between eight and nine acres) on the southern end is wetlands and has been designated as an environmentally sensitive area by the Planning Commission. On March 8, 2007, Florida Rock filed an application with the Planning Commission to change the land use on the property from Light Industrial to Community Mixed Use-35 (CMU- 5). See Joint Exhibit 2. The proposed use of the property was described in the application as a "Mixed Use Development." Id. The new land use designates "areas suitable for general commercial, professional office, and multi-family development" and, absent any other limiting conditions, would permit a development potential of eight hundred ninety-two residential units or a maximum commercial buildout of almost 1.7 million square feet. No text amendments were proposed. On March 31, 2008, the Planning Commission recommended approval of the application and forwarded that recommendation to the City. On April 10, 2008, the City held its first public hearing on the amendment and voted to transmit the plan amendment to the Department and other entities that are required by law to receive copies of the amendment and supporting data and analyses. See § 163.32456(4)(a), Fla. Stat. The proposed amendment and supporting data and analyses were submitted to the Department and other entities on April 11, 2008. See Florida Rock Exhibit 2. Comments regarding the amendment were submitted by the Department to the City on May 14, 2008. See Department Exhibit Comments were also filed by the Air Force, the Florida Department of Transportation, and the Tampa Bay Regional Planning Council, all voicing concerns.4 The Department concluded its comments by stating that it "strongly urges the City not to adopt the amendment." Id. Notwithstanding the adverse comments, on August 21, 2008, the City adopted Ordinance No. 2008-145, which approved the application and changed the land use on Florida Rock's property to CMU-35. To counter at least in part the objections lodged by the Department and Air Force, the Ordinance contained a condition that "[r]esidential density shall not exceed ten (10) units per gross residential acre of land and/or a floor area ratio of 1.5." See Florida Rock Exhibit 3. This limitation on residential development is consistent with Future Land Use Element (FLUE) Policy A-3.1, adopted in 1989, which limits new residential development within the MacDill and Tampa International Airport flight paths, also known as Accident Potential Zones, to ten dwelling units per acre. Under either category, Florida Rock can build more than 1.5 million square feet of commercial uses. More than likely, the potential residential (and/or commercial) development on the property will be something less than ten dwelling units per acre because of setback, parking, mitigation, and other miscellaneous requirements. Also, density bonuses do not apply. One City witness estimated that the maximum development potential will be around 8.6 units per acre. The Department timely filed its Petition with DOAH on September 26, 2008. See § 163.32465(6)(b), Fla. Stat. ("[t]he state land planning agency may file a petition with the Division of Administrative Hearings pursuant to ss. 120.569 and 120.57, with a copy served on the affected local government, . . . within 30 days after the state land planning agency notifies the local government that the plan amendment package is complete"). Although the Petition and parties' Joint Prehearing Stipulation identify a number of issues to be resolved, the Department and Air Force's Proposed Recommended Orders address only two broad grounds for finding the amendment not in compliance: that the proposed land use is not compatible with the adjacent military installation, which the Department describes as being the "principal dispute in this proceeding"; and that the proposed plan amendment is not based on relevant and appropriate data and analyses, as required by Section 163.3177(6)(a), Florida Statutes, and Florida Administrative Code Rule 9J-5.005(2)(a). All other allegations are assumed to no longer be in issue, voluntarily withdrawn, or not supported by the preponderance of the evidence.5 Operations at MacDill The host wing at MacDill is the Sixth Air Mobility Wing (Wing). Serving under that Wing is the 91st Air Refueling Squadron (Squadron), which owns sixteen KC-135R aircraft that are permanently based at MacDill. The Squadron's primary mission is refueling other military aircraft, a mission that requires the KC-135R to travel around the globe. The KC-135R can carry up to 200,000 pounds of Jet Propellant 8 (JP-8) aviation fuel, a kerosene-based jet fuel, depending on the nature and duration of its mission. Besides the KC-135R, other aircraft permanently based at MacDill include three C-37s (smaller jet aircraft) assigned to the 300LS Squadron, the 310th Airlift Squadron, and five or six aircraft associated with the National Oceanic and Atmospheric Administration. MacDill also hosts approximately six-to-eight joint exercises per year (lasting between one and three weeks) involving numerous fighter and bomber aircraft that use the Avon Park bombing range for training, as well as C-17s and C-130s (transport aircraft) that use the facility for special training. In addition, Air Force and National Guard reserve units train at MacDill. Therefore, on any given day, multiple fighters and aircraft from other military branches, and occasionally even a commercial aircraft, may use the runways at MacDill. On an average day at MacDill, there are sixty takeoffs and landings and up to five sorties. This does not include touch and go takeoffs and landings, which involve pattern or transition work. Mainly residential uses are located in the flight path of Runway 4 as far south as, and to the east of, the Florida Rock property. That type of development continues in the flight path until the aircraft exit the Interbay Peninsula and pass over Hillsborough Bay. Due to this encroachment, when departing on Runway 4, the aircraft maintain a runway heading until reaching an altitude of four hundred feet; they then turn right on a heading of 080 and climb to, and maintain, one thousand, six hundred feet until air space is de-conflicted to ensure that all aircraft in the area are separated. Air traffic control requires that all flights are instrument departures using radar vectors. Also, because of existing residential encroachment and concerns about noise, MacDill has compromised some of its mission flexibility by limiting its hours of operation to 6:00 a.m. to 11:00 p.m. and limiting engine use on some fighter aircraft by reducing after-burning usage. When departing on Runway 4 and passing just to the east of Florida Rock's property (and over the closest existing residential development), the KC-135R is at an elevation of approximately three hundred feet and sometimes as low as one hundred forty feet, depending on its fuel load and wind conditions. Air Installation Compatible Installation Zone (AICUZ) The AICUZ program is a program developed by the United States Department of Defense for military airfields to promote land use compatibility in areas subject to aircraft noise and accident potential. There have been four AICUZ studies prepared for MacDill, which were published in 1976, 1978, 1998, and 2008. The latter study was not yet finalized and available to the public when Plan Amendment PA-07-08 was adopted. The 1998 study was prepared to present and document flying conditions at MacDill following the reassignment of KC-135R aircraft to the base in 1996. The AICUZ delineates a Clear Zone, Accident Potential Zone I (APZ I), and Accident Potential Zone II (APZ II) for each runway and makes land use recommendations for each of those areas. These areas are based on standardized data compiled from military airfields around the globe to determine areas of increased accident potential. However, the studies do not assess risk nor consider the safety record of each individual airfield. Based on the standardized data, the Clear Zone is the area with the highest potential for accidents, then the APZ I, and finally the APZ II. Accident potential increases toward the centerline of the runway, and away from the ends of those zones. The southwest corner of Florida Rock's property abuts the Clear Zone for Runway 4, while the remainder of the site lies within the APZ I north-northeast of the runway. Two aerial photographs submitted into evidence provide an excellent view of the zones, the flight path of Runway 4, the existing development north of the airfield, and the location of Florida Rock's property. See Air Force Exhibits g and g1. The AICUZ land use compatibility chart recommends no residential uses in a Clear Zone or in an APZ I. (The chart identifies a number of examples of uses that are compatible with APZ I and flight operations at MacDill, such as miscellaneous manufacturing and low intensity office use. See Department Exhibit 3, pages 46 through 50.) In an APZ II, the AICUZ only recommends approval of single-family detached units for residential uses. These recommendations apply to all military installations with airfields and do not take into consideration unique local situations. However, the AICUZ recommendations are not binding on local governments and are to be balanced by the local government along with other planning considerations. The active runway at MacDill is three thousand feet wide. At the end of the overrun for Runway 4 (and Runway 22 to the southwest) is the Clear Zone, which is normally three thousand feet wide and three thousand feet long. At the end of the Clear Zone is the APZ I, which ordinarily is three thousand feet wide and five thousand feet long. At the end of the APZ I is the APZ II, which ordinarily is three thousand feet wide. By using standardized APZs, the Air Force can alter the mission of a base (e.g., change from fighters to bombers) without having to alter the APZs. The southeastern end of Runway 22 is surrounded by Tampa Bay. Therefore, the Clear Zone, APZ I, and APZ II for Runway 22 are located over the water and conform to the standard dimensions described above. Because aircraft departing on Runway 4 are required to make a right turn to a heading of 080 shortly after departure, the flight track for Runway 4 has an atypical split to the right. This deviation from a straight extension from the runway is permitted only when a majority of the aircraft fly predominately in the alternate direction. This split causes the APZ I for Runway 4 to deviate from the ordinary rectangular shape and to have two distinct APZ IIs, one directly northeast of, and aligned with, Runway 4, and the other to the east-northeast tracking the alternate direction of the aircraft after takeoff. The City's Plan depicts the Clear Zone, APZ I, and APZ II on Figure 11 of the Transportation Element and shows the outline of those areas on the FLUM. See Fla. Admin. Code R. 9J-5.019(2)(a)5. and (5)(a)7., which requires that both the Transportation Element and FLUM depict "clear zones and obstructions." Besides the delineation of a Clear Zone, APZ I, and APZ II, the AICUZ also includes noise contours and land use recommendations based on these noise contours. Noise contours are specific to each airfield based on one year of flight data applying noise variables, such as aircraft type, altitude, and engine power. An additional ten decibel (dB) noise penalty is added for flights after ten o'clock in the evening. Noise contours are mapped in five dB increments between sixty-five and seventy dB. A noise of sixty-five dB is equivalent to the sound of normal conversations. A noise of seventy-five dB is perceived by most persons to be twice as loud as a sixty-five dB noise. The AICUZ land use guidelines include a determination that residential uses in the Day Noise Level (DNL) sixty-five to sixty-nine contour and seventy to seventy-four contour are generally compatible with noise attenuation of twenty-five dB and thirty dB, respectively. The guidelines further note that residential use is discouraged in DNL sixty-five to sixty-nine and strongly discouraged in DNL seventy to seventy-four, but if residential uses must be allowed, measures to achieve outdoor to indoor Noise Level Reduction (NLR) for DNL sixty-five to sixty- nine dB and DNL seventy to seventy-four dB should be incorporated into building codes. The subject property is located mostly in the DNL sixty-five to sixty-nine dB contour, while less than nine acres in the southern portion are located within the DNL seventy to seventy-four dB contour. The FAA compatibility guidelines codified in 14 CFR Part 150, Appendix A, which apply to civilian airports, include a determination that residential uses are compatible with the DNL sixty-five to sixty-nine contour. Nothing in Chapter 163, Florida Statutes, or Florida Administrative Code Rule Chapter 9J-5 requires noise contours to be mapped or for comprehensive plans to include noise standards. The Joint Land Use Study (JLUS) The JLUS is a Department of Defense program administered through its Office of Economic Adjustment and funded by the Federal Government. It provides funds and resources for local governments located adjacent to military installations, such as the City, to evaluate a study area of properties affected by the military installation. The City and MacDill conducted a JLUS, which was finalized in June 2006, or before Amendment PA07-08 was adopted. The study was initiated at the request of MacDill because of its concern that urban encroachment might affect its operations and future viability. Two of the stated goals of the JLUS were to promote "comprehensive planning for long term land use compatibility between MacDill and the surrounding community" and to restrict "land uses that are deemed to be incompatible with MacDill operations by the AICUZ study." See Department Exhibit 4. The JLUS relied heavily upon information regarding flight operations, accident potential, and noise impacts in the 1998 AICUZ. It analyzed each zone in the AICUZ to identify existing development encroachment densities and ultimately made recommendations regarding development issues adjacent to MacDill. According to the 2006 study, residential uses constitute ninety-one percent of the three hundred twenty-seven acres of property that lie within the APZ I and most are single- family detached homes. As of 2003, the AICUZ was almost fully developed and only 72.2 acres were held in private ownership. Most of this development has existed for years. The study further indicated that almost eight thousand people lived in APZ-1, and that the average net density in the APZ I is 5.78 units per acre, although higher densities exist in some areas. The JLUS included four sets of land use options for the Clear Zones and APZs, which vary in intensity from three to ten units per acre, none of which followed the AICUZ recommendation of no new residential uses in APZ I. One recommended option was that within APZ I, densities for residentially-designated parcels be limited to zero to six dwelling units per acre and a 0.5 floor area ratio. Another recommended option was to maintain the status quo within the APZ I, as expressed in FLUE Policy A-3.1, of ten dwelling units per acre. Ultimately, the committee preparing the report adopted the zero to six dwelling units per acre option. The JLUS further recommended that the City amend FLUE Policy A-3.1 by establishing a new land use category entitled "Military Installation Airport Compatibility Plan Category" with a density/intensity range of zero to six dwelling units per acre and a 0.5 floor acre ratio within APZ I. See Department Exhibit 4, page 5-5. Although the Planning Commission recommended to the City that these changes be approved, to date the City has not formally adopted either recommendation in its Plan. See Department Exhibit 19. The Objections Compatibility The Department and Air Force contend that the proposed future land use on the Florida Rock property (CMU-35) is not compatible with MacDill. Although the Department has not adopted any rule specific to military installation compatibility or to airport APZs, the word "compatibility" is defined in Florida Administrative Code Rule 9J-5.003(23) as follows: A condition in which land uses or conditions can coexist in relative proximity to each other in a stable fashion over time such that no use or condition is unduly negatively impacted directly or indirectly by another use or condition. Whether or not adjacent property is "unduly negatively impacted" and therefore compatible or not is a fact-specific determination made by the Department on a case-by-case basis. Section 163.3177(6)(a), Florida Statutes, was amended in 2004 to require that the FLUE of each local government "include criteria to be used to achieve the compatibility of adjacent or closely proximate lands with military installations." To assist local governments with all types of land use compatibility issues, including those involving military installations, in May 2004 the Department prepared a PowerPoint presentation, presumably for the benefit of various local government planning officials. See Florida Rock Exhibit 34. Among other things, the document includes a list of twelve "Suggested Best Practices" in addressing military installation compatibility. One suggested practice is for the local government to adopt noise attenuation standards in either the plan itself or land development regulations. To ensure compliance with the 2004 statutory amendment, as well as requirements of Florida Administrative Code Rule Chapter 9J-5, the City's Plan includes a number of provisions to achieve compatibility with MacDill operations. Most, if not all, of these provisions were actually in effect before the change in the law, having been adopted in response to the 1998 AICUZ. Specifically, Transportation Element Objective 9.6, and underlying Policies 9.6.1 through 9.6.5, generally require that the City ensure that new development will not obstruct military aircraft operations; that MacDill representatives be included in the review of all proposed plan amendments within the APZs and Approach Zones; that the City consult the AICUZ recommendations when proposing land use changes within APZ I and II; that the City promote compatibility within the APZs and Approach Zones through reduced densities; that the City and Planning Commission continue to review the impacts of development within the Approach Zones; and that communication towers and antennas be prohibited in APZ I and II. See Fla. Admin. Code R. 9J-5.019(4)(c)21., which requires that the Transportation Element include policies to "[protect] airports from the encroachment of incompatible land uses." In addition, FLUE Objective A-3, and underlying Policies A-3.1, A-3.3, A-3.4, A-3.6, and A-3.7, some of which apply only to MacDill, and others to both MacDill and Tampa International Airport, generally require that "adjacent development be compatible with airport related activities"; that future residential development be restricted to ten dwelling units per acre; that new construction and redevelopment which inhibits the safe and efficient operation of airport facilities with the APZs be prohibited; that "noise sensitive" development be prohibited unless noise attenuation features are included; that new development not obstruct aircraft operations; and that floor area ratios be promoted to guarantee the efficient operation of the airports. See Fla. Admin. Code R. 9J- 5.006(3)(c)2., which requires policies in the FLUE that "[p]rovi[de] for compatibility with adjacent uses." As noted earlier, all of these provisions have been found to be in compliance. The compatibility argument by the Department and Air Force centers around two concerns: accident potential and noise impacts of aircraft departing from and/or landing at MacDill. In response to the accident potential concern, Florida Rock and the City point out that no witness could recall a Class I accident (one resulting in a property loss of over $1 million, a loss of life, or a permanent injury) ever occurring at a MacDill Clear Zone or APZ. They also point out that aircraft safety is continually improving, and that the Air Force itself concedes that the number of accidents has decreased "tremendously" over the last forty years. Finally, they point out that ninety percent of the landings at MacDill are from the southwest over Tampa Bay and thus pose no threat to Florida Rock's property. The two stages of a flight with the greatest potential for accident are on takeoff and landing. Based on historical locations of accidents, the APZ has the greatest potential for accidents when aircraft are in distress. The Florida Rock parcel is located within APZ I. Although no Class I accidents have occurred at MacDill for at least the last forty years, and aircraft safety has dramatically improved over the years, there is no guarantee that an accident will not happen in the future. If an accident occurred, the results could be highly destructive. This is particularly true since the KC-135R routinely departs over or close to the southeastern corner of the Florida Rock parcel, sometimes at altitudes as low as one hundred forty feet, carrying up to 200,000 pounds of JP-8 aviation fuel. Debris scatter from a larger, heavier aircraft such as the KC-135R typically covers around eight acres. The debris scatter from a smaller aircraft, such as a fighter jet, is around three acres. Therefore, an aircraft accident would obviously be catastrophic for residents living around the site of the accident. Depending on its location, residential encroachment in the APZ can erode operational flexibility. As noted earlier, due to long-existing residential housing north and northeast of the airfield, the hours of operation at MacDill have been curtailed by eliminating flights between 11:00 p.m. and 6:00 a.m., more than likely due to noise concerns rather than safety issues. The KC-135R must make a right turn towards Hillsborough Bay when it reaches an elevation of only four hundred feet. Pilots must use instruments (rather than visual flight rules) and vectors when departing the airfield, but the evidence suggests this limitation is due to congested traffic in the area and the fact that MacDill air traffic control only "owns" the airspace below one thousand, six hundred feet, and not because of residential encroachment. According to an Air Force witness, depending on the type of development in the APZ and the height of the structures, it might cause the KC-135R to maintain a higher altitude on takeoff (with a corresponding lower fuel load) and/or to make a slight change in direction. However, FLUE Policy A-3.3 prohibits new construction "which inhibits the safe and efficient operations of airport facilities within the [APZ]"; FLUE Policy A-3.6 provides that "[n]ew development shall not obstruct aircraft operations"; and FLUE Policy A-3.7 provides that "[a]ll building regulations (floor area ratios (FAR) and height) shall be promoted to guarantee the continued efficient operation of the airport and ensure public safety." Also, Transportation Element Policy 9.6.5 prohibits the construction of communication towers and antenna in the APZ I and II zones. Presumably, these restrictions are enforced during the site approval process. MacDill has always been located in an urban area and residential development has existed for decades directly in the flight path of Runway 4. In fact, the AICUZ was nearly fully developed in 2003. Therefore, it is fair to characterize the area in and around the flight path as already developed and built out with a residential character. While the potential for an accident is always present, the evidence does not show that this consideration has unduly negatively interfered with the missions or operational flexibility of the base. Even the 1998 AICUZ describes the risk to people on the ground of being killed or injured by aircraft accidents as "minute." See Department Exhibit 3, page 42. Even though the proposed change in land use will result in more residential development to the west of the flight path for aircraft using Runway 4, it should not unduly negatively impact, directly or indirectly, the use or condition of MacDill. (Under the Light Industrial land use, Florida Rock can now construct a building that employs hundreds of people.) The more persuasive evidence shows that the plan amendment is not incompatible in this respect. Most of the Florida Rock property lies entirely within the DNL sixty-five dB noise contour zone. This means that the average noise exposure is sixty-five dB, but the actual noise of all aircraft in the fleet is much louder than that on takeoff. For example, fighter aircraft are around one hundred ten dB at one thousand feet and would be much louder at lower altitudes. Some types of bombers, which occasionally use the base for training operations, were described as being so loud that you have "to hold the table down or things will fall over." Even so, CMU-35 residential development within this category of noise exposure is consistent with the FAA land use compatibility table and is generally compatible with AICUZ land use guidelines. The southern end of the site, which is a wetland area, is within the DNL seventy to seventy-four dB noise contour, but it is highly unlikely that development could ever occur in that area, given its designation as an environmentally sensitive area by the Planning Commission. The City has adopted a land development regulation, codified as Section 27-137.5, which requires that all residential development within the APZ-I be "designed and constructed to reduce noise levels by twenty-five (25) decibels." Another land development regulation, Section 5-301.1 requires noise level reduction, or abatement, of twenty-five dB for construction in the APZ-I. Both provisions were enacted in order to ensure compatibility with MacDill's operations. While the Department points out that there are no specific provisions such as these in the Plan to reduce noise impacts, FLUE Policy A-3.4 "[p]rohibit[s] future 'noise sensitive' development such as residences . . . which do not provide the required noise attenuation features within those noise contour areas adjacent to MacDill AFB which may pose health hazards." The Air Force acknowledged that curtailment of flight operations for the KC-135R has not occurred due to noise complaints from residents or users of property around the base. In making this admission, it may have overlooked the fact that late-night operations (between 11:00 p.m. and 6:00 a.m.) have been curtailed for an unknown period of time, presumably because of concerns that operations during these hours would disturb the nearby residential areas. But this is due to existing development, and not future development, and there is no evidence that development by Florida Rock would likely cause a further reduction in MacDill's hours of operation. Although the Department argues that residents in the neighborhood adjacent to MacDill constantly complain to the base and City officials, recorded noise complaints numbered only seventeen in 2007, twenty-five in 2008, and sixteen through the date of the hearing in 2009. One person living in APZ II was the source of eleven of the twenty-five recorded complaints in 2008 and four of the sixteen in 2009, while many of the other complaints came from persons who live in other counties or cities in the area. It is fair to say that all of the noise complaints are associated with fighter and bomber aircraft, which occasionally use the base for training missions, and not the KC-135R, which is permanently stationed at the base. Even though the Florida Rock property may be subjected to potentially more than a hundred takeoffs and landings per day, with aircraft operating at altitudes as low as one hundred forty feet, there is insufficient evidence to support a finding that military operations will be affected by noise concerns. This is evidenced by the fact that literally hundreds of existing residences in the APZ are now subjected to the same conditions, yet they have coexisted with MacDill operations for many years. Further support for this finding is based on the fact that very few complaints have been filed by persons living in the immediate area. Even though a City witness conceded that the noise from aircraft may be a "nuisance" to some area residents, the greater weight of evidence supports a finding that from a noise perspective, the proposed change in land use would not be incompatible with MacDill operations or use.6 The evidence supports a finding that a change in the land use for the Florida Rock property will be compatible with adjacent uses, including MacDill, as that word is defined in Florida Administrative Code Rule 9J-5.003(23). Data and Analysis The map change on the FLUM must be based on surveys, studies, and data regarding the area, including the compatibility of uses on lands adjacent to or closely proximate to military installations. See § 163.3177(6)(a), Fla. Stat. Florida Administrative Code Rule 9J-5.005(2) implements that provision and spells out the requirements for satisfying the statute. These include requirements that the data must be "relevant and appropriate," "taken from professionally accepted existing sources, such as . . . existing technical studies," and "collected and applied in a professionally acceptable manner." See Fla. Admin. Code R. 9J-5.005(2)(a). The City must also "react to it in an appropriate way" at the time the amendment is adopted. Id. Finally, a local government may rely on data and analysis used to support the original plan or a previous plan amendment unless "the previously submitted data and analysis no longer include and rely on the best available existing data. See Fla. Admin. Code R. 9J-11.007(1). The Department and Air Force argue that the 1998 AICUZ and the June 2006 JLUS are the best available, relevant, and appropriate data regarding land uses around MacDill, and that the City failed to appropriately react to that data when it adopted the amendment. They further argue that the City relied on data and analyses supporting the 1998 Plan, which is no longer the best available existing data. On the other hand, Florida Rock and the City assert that there is adequate data and analysis that support the adopted map change, including the Transportation Element and FLUE policies listed above (Joint Exhibit 1), the JLUS data and recommendations (Department Exhibit 4), the Planning Commission report (Florida Rock Exhibit 3), the City Community Planning Division staff report (City Exhibit 28), the portion of the Department's PowerPoint relating to Military Installation Compatibility (Florida Rock Exhibit 34), and 14 CFR Part 150, Appendix A, which was officially recognized. The 2006 JLUS includes as one option a recommendation that the status quo for density in FLUE Policy A-3.1 be maintained for development around MacDill. The Planning Commission staff report noted that both land use categories have the same maximum commercial buildout potential; that the site will never be developed to its maximum potential; that the change is consistent with recent trends away from light industrial in that area; that the new designation is consistent with the surrounding area; that the amendment is consistent with all other provisions in the Plan; and that the City must ensure that any development will not obstruct operations at MacDill. Similarly, the City Community Planning Division staff report noted that MacDill and the South Tampa community have coexisted for sixty-five years; that the predominant land use in the area is residential; that the change is consistent with FLUE Policy A-3.1; that noise attenuation measures will be employed; that the CMU-35 designation continues the land use trend away from light industrial; that the site will not be able to develop to its full potential; and that the change would be consistent with the future development pattern of the area. The map change is also supported by the land use compatibility policies in the AICUZ study for noise contours, as well the FAA noise compatibility guidelines. Finally, the change is consistent with existing policies in the FLUE and Transportation Element. They provide further support for the requested change and the City's determination that the map change is compatible with surrounding uses, including MacDill flight operations. The City reacted appropriately to these data and analyses when it enacted the amendment. The AICUZ is based on standardized data complied from airbases around the world to determine areas of increased accident potential. It did not assess the individual risk nor consider the safety record of MacDill; it did not give consideration to any unique local situations, including the fact that MacDill is located in a fully developed urban area and has coexisted with residential development in the Runway 4 flight path for decades; and it characterized the risk of an aircraft accident as "minute." Because residential development under the map change will be subject to noise attenuation requirements, the new use will be consistent with the AICUZ and FAA guidelines. The JLUS presented four options for residential use within the APZ I, one of which continues the existing policy of allowing ten dwelling units per acre in APA I. Although the committee ultimately recommended that more restrictive measures be implemented, this recommendation was not adopted by the City. Standing alone, the JLUS contains competing data that support a less intense residential classification on the Florida Rock property. But the City has no land use category that allows the site a mixed use with a maximum of six residential units per acre. When taken as a whole, the data and analyses relied upon by the City constitute adequate support for the plan amendment. Accordingly, the Department and Air Force have failed to show by a preponderance of evidence that the plan amendment contravenes Section 163.3177(6)(a), Florida Statutes, or Florida Administrative Code Rules 9J-5.005(2)(a) and 9J- 11.007(1). See, e.g., Geraci, et al. v. Hillsborough County, et al., DOAH Case No. 95-0259GM, 1999 Fla. ENV Lexis 11 at *114-15 (DOAH Oct. 16, 1998, DCA Jan. 12, 1999)(even though the data and analysis may support another classification, a local government is not required to demonstrate that its land use classification choice is perfect, or that the data and analysis support that use to the exclusion of any other classification). The more persuasive evidence supports a finding that the challenged plan amendment is in compliance.
Recommendation RECOMMENDED that the Department of Community Affairs enter a final order determining that the plan amendment adopted by Ordinance No. 2008-145 is in compliance. DONE AND ENTERED this 26th day of August, 2009, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of August, 2009.
Findings Of Fact The Application for power plant site certification was filed by Pinellas County on October 25, 1978. The Applicant proposes to construct a resource recovery facility at which municipal solid wastes will be burned to produce steam-generated electrical energy. The residue from the burning of these wastes will be processed for recovery of metals and other valuable materials. The proposed facility includes a large landfill which will be used for disposal of those portions of the residue not amenable to recovery. In addition, the application includes a directly associated transmission line connecting the proposed facility to Florida Power Corporation's Gandy Substation. The resource recovery plant buildings will be located on approximately 20 acres within Pinellas County's existing Bridgeway Acres Phase I landfill tract. The Phase I landfill site is situated in Northernmost 80 acres of a total of approximately 225 acres just South of 114th Avenue North and West of 28th Street North. Areas of the plant site not previously disturbed by landfilling activities are occupied largely either by pine flatwoods or wet weather ponds. The proposed resource recovery facility will consist of a 50 megawatt steam-electric generating turbine, two 1050 tons-per-day solid waste fired boilers; truck weighing scales; a refuse collection and sewage pit, refuse stoking equipment; magnetic and serrofluid separators; conveyors; a four cell mechanical draft cooling tower utilizing treated sewage effluent; effluent intake and outfall piping and connections; a 161 foot flue gas stack; electro- static precipitators; stormwater retention and treatment ponds; stormwater spray irrigation fields; and sanitary landfill and controlled ditching. A 230 kilovolt transmission line and associated structures will run East, South, and then East of the site for approximately 1 and 1/4 miles. The primary purpose for the proposed facility is to dispose of the county's refuse and trash. There is a clear need for recovery facilities such as that proposed by the Applicant. Moreover, electric system reliability will be increased by the addition of a small generating facility and the cost to the consumer per unit of electricity may be less than that for a similarly sized fossil fuel unit. The Tampa Bay Regional Planning Council stated that the proposed Pinellas County Power Plant and recovery facility was an innovative solution to the complex problem of solid waste management and resource recovery. The Florida Public Service Commission has found that this facility will enhance the electrical reliability of the peninsular grid system and that some savings would be recognized through the use of wastes as fuel rather than coal or oil. The Department of Environmental Regulation has found that construction of the resource recovery facility will permit the closing of current landfills and will reduce the need for future landfill and will in fact serve a recognized need. Primary impacts from site modification will include removal of vegetation and certain animal habitat, replacement of existing surface soils, and additional noise and dust levels. The areas affected, however, have largely been disturbed by human activities previously. It is anticipated that the elimination of putresible waste landfills will reduce the local seagull population. No rare or endangered species have been observed on the site. The reduction of landfill areas is environmentally desirable and area residents, concerned about the presence of landfills near their home, should find the proposed site modification and visual barriers more attractive than the existing landfills. Extensive measures have been incorporated into the proposal and the conditions of certification so as to minimize the environmental impacts from construction and operation. Due to the isolated nature of the proposed site there is very little opportunity for public access during construction and operation. In addition, traffic into the site will be limited and controlled by fencing. The applicant has proposed adequate measures to comply with both State and Federal health and safety requirements. The resource recovery facility is expected to produce the following volumes of water during normal daily operations: Cooling tower blowdown 316 gpm. Boiler blowdown 23 gpm. Cooling tower evaporation and drift 744 gpm. Boiler demineralization background blackflush water 6 gpm. The plant effluents will be discharged to Pinellas Park's South Cross Bayou Sewage Treatment Plant. Any surface water impacts would largely arise from stormwater runoff. Perimeter ditches, a central holding pond, and associated treatment facilities will be used to collect, contain, and treat runoff originating on the site. This collection and treatment system has been planned to be of sufficient size to prevent any stormwater discharge from the site except during periods of extremely heavy rainfall. Groundwater in the vicinity is Class I-B as defined by Section 17- 3.101, Florida Administrative Code. Movement of the shallow aquifer groundwater in the area is generally Northeasterly at a rate of 1 to 10 feet per year. The area of the site is underlain by a clay/marl zone which would tend to slow the vertical migration of leachates. There has previously been an impact on the shallow aquifer groundwater quality in the vicinity of the site due to adjacent landfilling operations and saltwater intrusions. Leaching of the decomposition materials from putrescible wastes has already altered the natural state and quality of the shallow aquifer. Since landfill materials from the resource recovery facility should primarily be boiler residue and non-putrescible wastes it is likely that any groundwater impacts from these new landfill materials will be much less than from previously landfilled putrescible materials. Leachates and drainage will be minimized by allowing water to run off the fill rather than being allowed to percolate through the filled material. Leachate which does form by percolation through an active fill will be accumulated at the low point of the active cell. This accumulation will be pumped directly to the aeration pond and will be contained on site. At no time will raw refuse be deposited in standing water. Wastewater will leave the aeration lagoon and enter two water hyacinth treatment ponds which have been designed to remove nutrients and heavy metals from the runoff waters. Upon leaving the hyacinth ponds, wastewater would be chlorinated for bacteria and virus control and pumped to the land on the Southern portion of the site. Construction activities are expected to produce air pollutants and particulate matter in levels which approximate those generated by the current landfilling activities. During operation, expected stack emissions will include particulate, sulfur dioxide, chlorides, carbon monoxide, and oxides of nitrogen. Odor is not expected to be a problem and control measures have been included in the proposal. An electro-static precipitator has been included for the control of particulate matter. Hydrocarbon emission from the plant will constitute approximately .2 percent of the county's total hydrocarbon emission levels. Due to low temperatures, insignificant quantities of oxides of nitrogen will be emitted. There are no sulfur dioxide emission limitations for incinerators; however, if a sufficient volume of refuse is incinerated, prevention of significant deterioration criteria may be applicable. The Department has conducted a Best Available Control Technology analysis for the resource recovery facility and has proposed a sulfur dioxide emission rate for the facility. During operation, refuse will be sorted for large items or non- combustibles, the remaining refuse will be incinerated. Following combustion, the residue will pass through a resource recovery system designed to extract ferrous and non-ferrous metals. The residue, approximately 2.1 percent by weight of the original raw waste, will be landfilled on site. It is estimated that approximately 1 acre per year will be required for this residue disposal. In the event of a facility shutdown, storage facilities at the processing plant will be sufficient for storage of three to four days of incoming waste. If the plant should remain out of operation beyond three to four days, incoming raw wastes would be landfilled at the site. The facility does not intend to accept hazardous wastes. During and at the conclusion of the site certification hearing, the public was given the opportunity to comment upon the application for site certification. One individual, Arnold Kindt, spoke on behalf on Mainlands Unit #4, a community of homes in the area just Southwest of the proposed facility. Mr. Kindt did not object to construction of the plant, but suggested a committee to anticipate and resolve environmental problems which might arise. The Florida Department of Environmental Regulation, the Public Service Commission, the Division of State Planning and Southwest Florida Water Management District, have all recommended certification of the proposed resource recovery facility subject to conditions. The stipulated conditions are attached hereto as Exhibit 1.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is hereto RECOMMENDED: That a Final order be entered by the Board determining that the proposed site now conforms with existing land use plans and zoning ordinances, and directing the responsible zoning or planning authority to refrain from hereafter changing such land use plans or zoning ordinances so as to affect the proposed site. RECOMMENDED this 12th day of June, 1979, at Tallahassee, Florida. WILLIAM E. WILLIAMS Hearing Officer Division of Administrative Hearings Room 101, Collins Building Gaines and South Adams Street Tallahassee, Florida 32301 COPIES FURNISHED: Robert G. Varner, Jr., Esquire Assistant Pinellas County Attorney 315 Haven Street Clearwater, Florida 33516 Sheri W. Smallwood, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Twin Towers Office Building Tallahassee, Florida 32301 C. Laurence Keesey, Esquire Division of State Planning 530 Carlton Building, Room 335 Tallahassee, Florida 32301 Tom Cone, Esquire and L. M. Blain, Esquire 202 Madison Post Office Box 399 Tampa, Florida 33601 Mr. George Wallace 2165 Country Club Ct. N. St. Petersburg, Florida 33710 Mr. Fred Stiles 4020 80th Avenue N. Pinellas Park, Florida 33565 Hamilton S. Oven, Jr., P.E. Administrator Power Plant Siting, DER 2600 Blair Stone Road Tallahassee, Florida 32301 Mr. D. F. Acenbrack, Director Solid Waster Management Board of Pinellas County Commissioners 315 Haven Street Clearwater, Florida 33516 Barrett G. Johnson, Esquire Public Service Commission 101 E. Gaines Street Tallahassee, Florida 32301
The Issue The issue is whether Respondent has engaged in an unlawful housing practice in violation of the Fair Housing Act (Act), Sections 760.20-760.37, Florida Statutes, through discrimination against a former tenant, Petitioner, on the basis of Petitioner’s handicap.
Findings Of Fact Petitioner moved to Respondent’s rental house trailer on August 27, 2004, where he and his wife resided until September 1, 2005. The house trailer was located in Respondent’s trailer park in Istachatta, Florida. Petitioner has suffered bouts of mental illness since his youth. He was hospitalized in the 1980’s for depression. Additionally, Petitioner entered into a rehabilitation program for alcohol and drug addiction during the period of 1989 to 1990. Petitioner served in the United States Naval forces during “Desert Storm” when military action was initiated against Iraq in the 1991. Upon his return, Petitioner was incarcerated and evaluated in 1992 for depression in Norfolk, Virginia, as a result of his striking a superior officer without reason. Petitioner was subsequently discharged from the United States military forces with an “OTH” (other than honorable) discharge. Petitioner is considered 100 percent disabled by the Social Security Administration and (as of January 26, 2004) receives approximately $897 per month from that agency. Additionally, all of his medications for seizures, depression and a back ailment are provided to him free in the form of Medicaid benefits. Respondent was informed by Petitioner of Petitioner’s health status and income at the time of Petitioner’s entry into Respondent’s trailer park in 2004. As a result of his special needs, Petitioner keeps and feeds five cats. Three of the cats are “outside cats” and basically come up to be fed. When Petitioner tried to cage the three cats, they dug their way out of the pen in which he placed them. Two of the cats are permitted into Petitioner’s living quarters; a solid black cat and a Siamese cat. The cats help sooth Petitioner’s “nerves.” Respondent refused to provide adequate maintenance of the trailer rented to Petitioner, although Petitioner requested such maintenance. Floors rotted to the point that Petitioner’s wife fell through the bathroom floor at one point, requiring that paramedics be summoned to rescue her. Photographs submitted into evidence at the final hearing also corroborate Petitioner’s testimony with regard to the sad state of the disrepair of the dwelling rented to Petitioner. It is Respondent’s practice to repair trailers only when they are vacant. Petitioner requested that Respondent provide him with information regarding Respondent’s insurer after Petitioner’s wife fell through the bathroom floor. Respondent refused to provide the requested information. Contrary to allegations of Petitioner’s Petition for Relief, dated February 22, 2006, in which Petitioner alleged he was forced to move out as a result of Respondent’s failure to make accommodations for Petitioner’s handicap, Petitioner failed to pay required rent on the premises and Respondent proceeded to file for eviction of Petitioner from the premises promptly after Petitioner’s inquiry seeking information regarding Respondent’s insurer. By Petitioner’s own admission, Respondent’s request for eviction of Petitioner was granted by the local courts. Petitioner and his wife vacated the premises on September 1, 2005.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 16th day of June, 2006, in Tallahassee, Leon County, Florida. S DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 2006. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 George P. Rance Post Office Box 11 Istachatta, Florida 34636 James W. Travis Post Office Box 95 Istachatta, Florida 34636-0095
The Issue Whether the decision to reject all bids for Lease No. 800:0187 is illegal, arbitrary, dishonest, or fraudulent under the provisions of Section 120.57(3), Florida Statutes, or violates the terms of the Request for Proposal.
Findings Of Fact Prior to May 17, 1999, the Department issued a RFP for office space seeking to lease approximately 14,420 contiguous square feet of space located in Broward County, Florida. This lease, designated 800:0187 in this record, was to run for a basic term of seven years with three two-year renewal options. The RFP specified the lessor was to provide full services and 60 parking spaces. In response to the RFP, the Petitioner, Sunrise, and Intervenor timely submitted proposals. The space proposed by Petitioner complied with the requirements of the RFP. Additionally, the Petitioner's submittal was well within the Department's acceptable rate range. On May 17, 1999, the Department issued an intended award to Sunrise for lease 800:0187. Sunrise was deemed the lowest responsive bidder. All objections to the award to Sunrise were resolved or withdrawn. For reasons not clearly documented in this record, the Department withdrew its decision to award the lease to Sunrise. The agency action, posted on June 12, 2000, some 13 months after the initial posting, stated Sunrise had not performed and recommended Lauderdale as the second-ranked entity that had responded to the RFP. Both Sunrise and the Intervenor timely filed protests to the proposed award to Lauderdale. The Petitioner filed motions with the Department to dismiss and intervene in those protests. As of the date of the final hearing in the instant case, the Department had not resolved or referred those protests to the Division of Administrative Hearings. Instead, on July 24, 2000, the Department issued a notice stating it would reject all bids for lease 800:0187 and rescind the award to Lauderdale. In reaching this decision, the Department stated it "cannot determine its space needs until after the pending Department reorganization is complete." If the Department was being "reorganized" such reorganization would have been known to the Department on June 12, 2000. No legislative or administrative action was taken to require reorganization between June 12, 2000 and July 24, 2000. The Department determined that its decision of July 24, 2000, rendered the June 12 award to Lauderdale moot. The Petitioner, Sunrise, and Intervenor challenged the agency's decision to reject all bids. Section M of the RFP provides, in pertinent part: The Department reserves the right to reject any and all proposals when such rejection is in the best interest of the State of Florida. Such rejection shall not be arbitrary, but be based on strong justification. (Emphasis in original omitted.) Subsequent to the protests of the rejection of all proposals, Perry Anderson, a regional administrator for the Department whose region encompasses Broward County, drafted a memorandum dated September 22, 2000, to address the number of leases and unit requirements for service areas of Broward County. The proposals set forth in the memorandum have not been resolved. As of the date of the hearing, the Department did not present any definitive statement as to its leasing needs for Broward County or how and why the submittals for lease 800:0187 could not address the agency's need. The Department has not presented documentation for any agency plan or statutory mandate to reorganize or decentralize the office space encompassed by lease 800:0187. If decentralization is required, the Department has presented no studies to determine the location, service areas, or numbers of clients for such offices. Studies for demographics, travel times, accessibility to public transportation, client case loads, or how reorganization would better address such issues have not been presented. Moreover, the Department has not demonstrated how decentralization would be inconsistent with the award of lease space as designated by lease 800:0187. The only justification for the rejection of all proposals for lease 800:0187 was the alleged reorganization of the Department. The Department presented no factual information as to how the "reorganization" related to an emerging philosophy supporting decentralization or improved services to the client population.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Juvenile Justice enter a final order rescinding its decision to reject all proposals for lease 800:0187. DONE AND ENTERED this 27th day of July, 2001, in Tallahassee, Leon County, Florida. ___________________________________ J. D. Parrish 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 27th day of July, 2001. COPIES FURNISHED: Brian D. Berkowitz, Esquire Scott Wright, Esquire Office of General Counsel Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Robert A. Sweetapple, Esquire Sweetapple, Broeker & Varkas 165 East Boca Raton Road Boca Raton, Florida 33432 Daniel H. Thompson, Esquire Berger, Davis & Singerman 215 South Monroe Street Suite 705 Tallahassee, Florida 32301 A. Margaret Hesford, Esquire 5648 West Atlantic Boulevard Margate, Florida 33063 William G. Bankhead, Secretary Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100 Robert N. Sechen, General Counsel Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100
The Issue Whether Respondent committed an act of discrimination against Petitioner due to her child’s disability in violation of the Florida Fair Housing Act.
Findings Of Fact Based on the exhibits and testimony offered at the final hearing, the following Findings of Fact are made: This matter involves a Complaint of housing discrimination Petitioner filed against Respondent. Petitioner was a resident at the Beach House from November 2017 until April 2020. The incidents at issue here occurred relating to Petitioner’s tenancy at Beach House, an apartment complex located in Yulee, Florida. The Beach House is owned by BW Amelia, LLC, and managed by South Oxford Management. Petitioner moved into the property with her two minor children and her mother, Sonia Bernard, in November 2017. The lease was renewed at least two times with the most recent being for the lease period of April 30, 2019, through April 29, 2020. At all times that Petitioner lived at the Beach House she lived in apartment No. 521, a second-floor apartment. Petitioner alleges that Respondent engaged in discriminatory housing practices due to her minor child, T.B.’s, disability. More specifically, Petitioner alleges that Respondent: issued a notice of non-renewal of her lease after becoming aware of T.B.’s disability; and prevented her from paying her rent in January 2020. Complaint History Each resident of Beach House is required to sign a lease agreement which provides the terms that the resident and the owner must follow. Paragraph 20, the provision most relevant to this matter, provides as follows: You, your occupants, or guests, or the guests of any occupants, may not engage in the following activities: behaving in a loud or obnoxious manner; disturbing or threatening the rights, comfort, health, safety, or convenience of others (including our agents and employees) in or near the apartment community; disrupting our business operations … engaging in or threatening violence … . You agree to communicate and conduct yourself at all times in a lawful, courteous, and reasonable manner when interacting with our employees, agents, independent contractors, and vendors; other residents, occupants, guests or invitees; or any other person on the premises. You agree not to engage in any abusive behavior, either verbal or physical, or any form of intimidation or aggression directed at our employees, agents, independent contractors, and vendors; other residents, occupants, guests or invitees; or any other person on the premises. … Any violation of this paragraph shall be a material breach of this Lease and will entitle us to exercise all rights and remedies under the lease and law. From November 12, 2019, through November 25, 2019, Petitioner received three notices of non-compliance with the lease agreement. Respondent contends the notices were issued due to multiple complaints of noise disturbances and one incident involving an unauthorized occupant. The noise complaints at issue were raised by the residents in apartment No. 511, which was located beneath Ms. Bernard on the first floor. Paul Weston and Sydney Wulfeck moved into apartment No. 511 with their young daughter in October 2019. On November 12, 2019, Mr. Weston submitted a complaint by email to Respondent as follows: My name is Paul Weston, I live in Apartment 511. I’m not sure who to contact but I’m at my wits end. Our upstairs is super loud, I hear her at all hours of the night and day. She is always screaming at someone or something, there are loud bangs on the floor at all hours of the night and day, it seems like there is a domestic issue ongoing inside the residence. I understand kids make noise but when they are clearly not there and she is screaming about everything it makes it impossible to go about the day. Crashes have been so loud that it has shook our doors, light fixtures, TV, fans and these noises have been keeping my daughter up when she should be sleeping for school. … That same day, Respondent issued a Seven Day Notice of Non- Compliance (With Opportunity to Cure) (“Seven-Day Notice”) to Petitioner, which noted the following: “We have had many complaints on the slamming doors and level of noise coming from your apartment. It is disturbing your neighbors.” The Notice also referenced paragraph 20 of the lease agreement as support for the violation. At the hearing, Mr. Weston testified that the day before he emailed Respondent the noise was loud and sounded similar to a marching band or a jack hammer. While there were periods when the noise stopped, it seemed as if the noise was in different areas of the apartment and would continue until midnight. Petitioner responded to the Seven-Day Notice disputing the complaint. The next day, November 13, 2019, Mr. Weston submitted a second complaint. He indicated that “the noise last night was the worst it has ever been.” He noted in the complaint that the noise continued until “around midnight.” Mr. Weston testified that he believed the noise was purposeful. However, there was no evidence of record to support his belief. On November 18, 2019, Mr. Weston made a third complaint as follows: As noted from prior emails of the noise in the apartment above me, and also how it was addressed with the resident. The time is now 10 P.M. and since you had a talk with the resident we have been subjected to unrelenting loud banging on the floor, noises throughout the night and the resident and her occupants yelling excessively. I feel as though it is retaliatory due to the talk, its focused banging on the floor directly above us and non-stop. This needs to be taken care of as soon as possible. I am trying to be as civil as I can be, but I am at the end of my rope. I work a very stressful job at UF Downtown and I am unable to sleep for my job in which I help people because of this noise. Something needs to be done immediately. I can be reached by phone or email anytime. While Mr. Weston continued to believe the noise was intentional, other than his belief, there was no evidence to support his beliefs. On November 25, 2019, Respondent issued Petitioner another Seven-Day Notice as follows: “You and/or your guests and/or occupants … causing a continued unreasonable disturbance on the premises including but not limited to loud voices, arguing, disturbing the peaceful quiet enjoyment of the premises for other residents.” This was the second Seven-Day Notice related to noise disturbance. The next day, on November 26, 2019, Petitioner sent an email disputing the noise complaints and made her own noise complaint against the residents in the apartment above her (apartment No. 531). She complained of stomping, loud noises, moving furniture, and loud sounds of dropped items. As a result of Petitioner’s complaint, Respondent issued the resident in apartment No. 531 a Seven-Day Notice for: “You and/or your guests and/or occupants … causing a continued unreasonable disturbance on the premises including but not limited to loud stomping and disturbing the peaceful quiet enjoyment of the premises for other residents.” In addition to Mr. Weston’s written complaints, Ms. Wulfeck testified regarding the noise disturbances. She described the noise from Petitioner’s apartment as sounding like “tumble dryers” as well as yelling, screaming, and crying. She did acknowledge, however, that it was difficult to determine whether the sounds were simply loud walking or purposeful. Ms. Wulfeck also testified that Petitioner confronted her on one occasion after complaints had been made against Petitioner. Ms. Wulfeck and Petitioner were leaving at the same time. Petitioner, who was in her truck, stopped her truck and began to yell at Ms. Wulfeck about her son’s disability. Ms. Wulfeck testified that when she attempted to walk behind Petitioner’s truck to leave, Petitioner’s reverse lights illuminated so she stepped back from behind the truck. Ms. Wulfeck testified that “shortly thereafter, she just sped off.” While Ms. Wulfeck testified that the truck began to go in reverse, it did not strike her. Ms. Wulfeck did, however, report the incident to the assistant property manager. On December 31, 2019, Ms. Wulfeck sent an email complaint to Beach House and complained as follows: Good evening, we live in apt# 511, we’ve been to the office many times about the above neighbor; Tiffani Bernard …anytime of day she’s banging around, it is sop [sic] much sores [sic] than before, our freaking lights are swaying!! Talking to her just made her angry with us and she now yell things at us in passing. The noise is insane, that’s all I can say, it’s never ending and we feel it’s purposeful because she’s angry we complained. She doesn’t care, is so rude, she’s also using her mom’s handicap sign to park in front up close, when we have people in our building that are actually handicapped and could use this spot it’s wrong. … . At no point did Mr. Weston or Ms. Wulfeck contact the courtesy officer when they experienced noise disturbances to document and assist with verifying their complaints. A courtesy officer serves as the first point of contact for residents and responds to resident noise complaints and complaints of unlawful activity. However, a resident is not required to complain to a courtesy officer. There was also no video or audio recording of the noise disturbances. At no point did Respondent investigate the complaints. However, Mr. Weston and Ms. Wulfeck credibly testified about their experience with the noise disturbances, which was also supported by their written complaint and decision to move due to the noise. The undersigned finds that any comments or testimony regarding the purposeful nature of the noise were speculative, and are, thus, not credited. Incident Involving Mr. Nugent A few days later, on November 25, 2019, Petitioner’s son’s father Mr. Nugent experienced a mental health episode in which he contacted the police. The police arrived and engaged Mr. Nugent to calm him down. Ms. Householder was on the property at the time and responded to the area of the incident to determine why the police were called. She only observed Mr. Nugent screaming on the balcony as she was asked to return to the leasing office. One of the responding officers, Officer Galloway, later reported to Ms. Householder what happened. Officer Galloway told Ms. Householder that the officers were able to calm down Mr. Nugent. The officer noted that Mr. Nugent identified himself as a resident of Petitioner’s apartment, which was also documented on the police report. Finally, Officer Galloway told Ms. Householder that Mr. Nugent would not pass a criminal background check to permit him to be a resident at the apartment complex.1 At the final hearing, Mr. Nugent, on the other hand, testified that he was reading a bible and concerned about his well-being which led him to call the police. Since Mr. Nugent was not listed on Petitioner’s lease as a resident and based upon the seriousness of the incident, Ms. Householder contacted Petitioner to discuss the incident. Petitioner denied that Mr. Nugent lived at her address, but rather that he would help her with the children. After the discussion, Ms. Householder issued Respondent a Seven-Day Notice for: “hav[ing] an unauthorized occupant residing on the premises in violation of [the] lease,” issued on December 19, 2019. T.B.’s Disability Petitioner alleges Respondent did not renew her lease due to her child, T.B.’s, disability. T.B.’s assessment confirms that he has been evaluated and diagnosed as having delayed development with communication and motor skills. Ms. Bernard’s son would often stomp his feet on the floor while doing what she referred to as the “hot dog dance.” Petitioner denied being excessively loud. Petitioner, however, acknowledged that her voice carries when she’s speaking to her mother and children, and stated she would attempt to resolve the issue. Petitioner testified that the noise was not late at night as she works nights or was not at home during times the alleged noise disturbances occurred. 1 Ms. Bernard offered evidence at hearing of a complaint she filed against the officer who reported the information about Mr. Nugent’s criminal history. She also offered evidence of the officer’s involvement in an unrelated matter which resulted in him being removed from his position. While it may have been inappropriate for the officer to report this information, Mr. Nugent was not a resident of the Beach House. Thus, based on the information provided to Ms. Householder about his assertion of residing at Beach House, it was reasonable for her to issue the Seven Day Notice for an unauthorized occupant. Petitioner testified that she notified the property manager, Shannon, that her son had autism and communicates using his feet to stomp on the floor. Shannon did not testify at the hearing. Ms. Nix testified that she was not told about T.B.’s disability. On December 9, 2019, after receiving multiple complaints, Petitioner emailed Ms. Norve disputing the complaints and advised her that “2 1/2 year old has level 1 autism and communicates through motor not speech.” On December 18, 2019, Petitioner also notified her neighbors in apartment No. 511 of her child’s disability. Nonrenewal of Lease The current assistant property manager, Ms. Jo Anne Nix, explained the process when a resident receives a complaint. After a resident is issued a Seven-Day Notice, they have seven days to resolve the issue. If the issue is not resolved, then the resident may be subject to eviction or nonrenewal of the lease agreement. Petitioner was issued two notices for noise complaints within 12 days. However, the complaints continued. On January 8, 2020, Respondent issued Petitioner a Notice of Lease Termination at the End of the Lease which notified Petitioner that her lease would not be renewed. On February 20, 2020, and March 9, 2020, Respondent followed up on the notice of nonrenewal with a request for confirmation of Petitioner’s move out date. The lease was not renewed due to violations of the lease agreement, namely, noise complaints and the incident involving Mr. Nugent. Other than the complaints from the residents in apartment No. 511, Petitioner had not received any written notices of violations of the lease agreement. However, when Ms. Householder started working as the property manager, she learned there had been previous verbal warnings regarding noise complaints. In addition, the degree of the noise complaints resulted in Mr. Weston and Ms. Wulfeck terminating their lease early. At the final hearing, Petitioner testified that the noise would not have been an issue if she had been placed in a bottom floor apartment. However, she did not request a first (or ground) floor apartment as a reasonable accommodation. Ms. Norve acknowledged that she would have offered a lower level apartment as a resolution. However, the noise complaints and incidents with visitors were the basis for nonrenewal of the lease, and thus, a first-floor apartment would not have resolved the issues. In support of her complaint, she testified that Beach House refused to permit her to use PayLease to pay her rent. PayLease is a third-party system that is used to pay rent payments. However, there was no additional evidence offered to demonstrate that Respondent barred Petitioner from using PayLease.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing Petitioner’s Complaint of discrimination. DONE AND ENTERED this 4th day of January, 2021, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN 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 January, 2021. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed) Arianne B. Suarez, Esquire McGinness & Cicero Suite 590 1000 Sawgrass Corporate Parkway Sunrise, Florida 33323 (eServed) Tiffani Crystal rea Bernard Apartment 501 123 Hirth Road Fernandina Beach, Florida 32034 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
The Issue The issues to be resolved in this proceeding concern whether the Respondent should have a monetary administrative penalty imposed for violations of the statutes and rules cited herein, and whether the Respondent should be required to take corrective actions concerning those alleged violations and pay related investigative costs.
Findings Of Fact The Department is an agency of the State of Florida charged with the duty of protecting Florida's air and resources and administering and enforcing Chapters 373 and 403, Florida Statutes, and the rules promulgated thereunder appearing in Florida Administrative Code, Title 62. The Respondent owned and operated a permitted land clearing debris disposal Facility known as the Ambush Land Clearing Debris Disposal Facility (Facility) located in Escambia County, south of Bankhead Road and approximately one-quarter mile west of the intersection of Bankhead Road and Blue Angel Parkway. The Respondent operates this Facility under Permit No. 0193476-001-SO. The permit is a general permit issued by the Department subject to the requirements of Florida Administrative Code Rule 62-701.803. The Respondent filed his Notification 0f Intent to use a general permit for a land clearing debris Facility with the Department on January 8, 2002. That general permit notification included a design for a stormwater management system. The Respondent operated the Facility under that general permit until its expiration on February 6, 2007. Stormwater is required to be controlled in accordance with part four of Chapter 373, Florida Statutes, and Florida Administrative Code Chapter 62-25. See Fla. Admin. Code R. 62- 701.803(4). The stormwater management system described in the General Permit Notification included the use of a retention pond on adjacent property. The Facility is a three-acre Facility begun as a borrow pit approximately 50 feet deep. Upon issuance of the General Permit, land clearing debris was brought to the pit for disposal. The Department inspected the Facility on 22 occasions, between August 23, 2005 and January 4, 2006. Thereafter on June 15, 2006, the Department issued its NOV alleging that the Respondent had violated the permit and Department rules. It was specifically alleged that the Respondent failed to construct the stormwater management system as required by Florida Administrative Code Rule 62-701.803(4); that he allowed open burning of solid waste in violation of Florida Administrative Code Rule 62-701.300(3); and that he operated the Facility without a trained spotter on duty at the working face, while waste was being disposed of, in violation of Florida Administrative Code Rule 62-701.803(8). On August 7, 2006, the Respondent filed a Petition challenging the NOV. The Respondent denied that the stormwater management system at the Facility was not constructed in accordance with the stormwater management plans submitted with the General Permit Notification. The Petitioner also denied the occurrence of open burning at the Facility and that the Department had incurred expenses of at least $1,000.00. Page 4 of the Engineers report attached to the General Permit Notification states: Stormwater will be controlled via a retention swale and retention pond surrounding the site. The swales and retention pond are sized to accommodate one- half inch volume across the site. A shallow swale on the West boundary will be constructed to allow conveyance of stormwater to a retention pond an the South end of the property. The detail of the retention pond and conveyance swale is shown on Figure 4. Figure 4, attached to the General Permit Notification, includes design drawings for a retention pond measuring 25 feet wide by 500 feet long, designed to hold three feet of water. Figure 4 also includes design drawings for swales measuring five feet wide at the bottom and 17 feet wide at the top, with a three-to- one ratio slope. The Respondent planned to use his neighbor's property for construction of the retention pond. The retention pond was a part of the design submitted with the General Permit notification, depicted in Figure Four, but was never constructed, and the General Permit Notification with attachments does not clearly indicate that the retention pond would be on adjoining property. Mike Stephen is an employee of the Department and has been for 13 years. He is an inspector of solid waste facilities. He inspected the site eight times over a one year period. He established that the site was an initially a borrow pit and over time was filled with land clearing debris and chipped hurricane debris from Hurricane Ivan. As a result the facility, instead of remaining a pit, evolved into a raised grade of about 25 feet above the natural land surface. Thus, the pit has become a knoll. The placement of dirt on the facility, in response to firefighting needs, resulted in the elevation of the facility above the surrounding land surface. This caused stormwater to leave the property rather than to run or peculate through the waste deposited in the original pit. Mr. Stephen reviewed the General Permit Notification submitted by the Respondent to the Department. It describes a stormwater system design consisting of a swale around the northeast and west sides of the property. The swale was designed to be 17 feet wide and 3 feet deep, and to bring the stormwater around the perimeter of the facility to the south end of the property. The conditions of the General Permit Notification, provided for in Florida Administrative Code Rule 62-701.803, require that the stormwater be controlled during the entire life of the facility. The Respondent was present during some of Mr. Stephen's inspections. When the Respondent was present he was told by Mr. Stephen about the violations noted. Some of the inspection reports were given to the Respondent, but most of their communication was verbal. On the dates alleged in Count I, no stormwater management system had been constructed at the facility. At one time the Respondent began constructing a stormwater ditch along the western side of the property, but never finished it. As of September 29, 2005, upon inspection in response to a neighbor's complaint, it was revealed that sediment and stormwater had run off the facility onto a government easement directly west of the facility, as shown by photographs in evidence as Petitioner's Exhibits 9 through 10. The neighbor had complained that stormwater was running onto her property from the facility. Marshall Seymore, has been an employee for the Department for four years, and is the supervisor of the solid waste program for the Department's northwest district. He established that Florida Administrative Code Rule 62-701.804(3) requires a copy of a stormwater permit, or documentation that none is required, to be submitted to the Department before waste can be accepted at such a facility. Cliff Street, is a 17-year employee of the Department. He is the Engineering Supervisor for the Submerged Lands and Environmental Resources Program. He testified as an expert witness on the stormwater violation issued at the Facility. He established that any modification occurring in a Facility after February 1, 1982, requires stormwater treatment. A modification could be an increase in stormwater discharge, an increase in pollutant loading, or changes in points of discharge on a particular site. A landfill would be a modification, if it increases the run-off or increases the pollution from the site. A hole in the ground, or pit, that is created for deposition of demolition or land clearing debris, requires treatment when the landfill debris accumulates and exceeds the natural grade surrounding the facility, resulting in more run-off. The inspection reports and photographs of the site, establish, according to Mr. Street's testimony, that in his professional opinion the sediment that traveled across the government property adjacent to the site resulted from water that traveled across the site. It was thus established, along with the photographs in evidence, taken on September 29, 2005 (Petitioner's Exhibits 9 and 10) that the run-off is occurring from the western slope or southwestern corner of the site. On September 29, 2005, as established by Mr. Street, the site was well above natural grade and run-off was coming from the site. Under those conditions, treatment of the run-off would be required in accordance with Florida Administrative Code Rule Chapter 62-25. Therefore the stormwater management system described in the General Permit Notification documents should have been constructed before September 29, 2005, the point where the debris and associated dirt cover exceeded natural grade. Mr. Street also established that no stormwater management system existed on the site on October 16, 2005, based upon his review of a boundary and topographic survey bearing that date. Stormwater cannot be retained on the site in its current condition and the contours on the survey show that stormwater is able to run off from the entire southwestern quadrant of the property. Open Burning Mike Stephen inspected the Respondent's facility on the dates alleged in Count II in the Notice. He observed flames or smoke at those various times, commencing on August 23, 2005, through January 4, 2006. A photograph from September 6, 2005, and that inspection, shows smoke arising from the site, but also shows that dirt had been placed in an effort to extinguish the fire. Later photographs in evidence for the Petitioner in September through December 2005, show smoke coming from the area of the south slope of the facility. Mr. Stephen acknowledged that the Respondent, at Mr. Stephen's behest, would occasionally put dirt over areas in an effort to extinguish the fire, but usually had to be prompted to do so by Mr. Stephen. Mr. Seymour of the Department also conducted six of the inspections referenced in the Notice. He observed smoke from the northwest corner of the facility upon his November 2, 2005, inspection. He established that those photographs and his observances show that open burning was occurring on that occasion. He testified that either visual flames or smoke is used as a direct indicator of a fire, but that it is common for vapors to emit from these types of facilities and that it could be difficult to establish, just from observed vapor, if there actually is a fire. One means of determining whether waste is burning is to measure the internal temperature. Mr. Seymour stated that studies show that when internal temperatures in a waste facility rise above 160 degrees Fahrenheit, that a chemical reaction or burning is likely taking place, although that is not a certainty. The Department has a policy or guideline, with regard to the corrective action proposed in this case, to the effect that the fire is deemed extinguished when all sub-surface temperatures are below 160 degrees Fahrenheit. This avoids the necessity of digging up the waste to determine, visually, if a fire is occurring. Inserting a probe into the ground to measure temperature is the most economical, simplest way to determine sub-surface temperatures. Mr. Seymour established that the Department, by policy and by rule, has a position that a fire should be extinguished as quickly as possible to lessen the public health risk and the risk that a fire can enlarge as to become dangerous in landfills and other waste disposal facilities. Based upon Mr. Seymour's experience with enforcement of the rules, nothing in rule Florida Administrative Code Rule 62-256.700 allows land clearing debris to be burned at a facility such as the Respondent's. The Respondent testified that Escambia County shut down his site because of the occurrence of a fire. He maintains that he did not ignite the fire and was not aware that anyone had set a fire. He believes that spontaneous combustion could have caused the fire. When he became aware of the fire, he brought equipment to the site and covered the fire with dirt. During the time the pit was on fire the Respondent took between two and three hundred loads of dirt to the site to cover the fire to make efforts to extinguish it. In fact, the dirt cover placed on the site resulted in the elevation of the site being raised to such an extent as to require an operable stormwater management system. Count III The Department alleges in Count III that on December 19, 2005, no trained spotter was on duty on the working face of the waste disposal facility, while trees, tree trunks, and tree limbs were disposed of. The Respondent concedes this and admits to this allegation. Investigative Costs The Department has contended that it has incurred costs of not less than $1,000.00 while investigating this matter. In this regard it adduced evidence that the cost of Mr. Stephen's work is $21.50 per hour and he spent approximately 55 hours making inspections. Mr. Seymore's salary is $26.60 per hour. He spent approximately 30 hours inspecting the facility. This results in a total apparent cost of $1,182.50 for Mr. Stephen's work and $798.00 for Mr. Seymour's work. Although the undersigned has ruled that the Respondent's financial condition is irrelevant to the legal issues presented by the statutes and rules governing this case, some testimony regarding the Respondent's financial condition was allowed on a possibility that it might have relevance on the question of any mitigation of penalties. The Respondent began carrying debris to the site shortly after he received the permit, operating the site in conjunction with his land clearing business. It accepted waste until the middle of 2005. He did not charge a fee for the disposal because he was taking the waste from his own Ambush Land Clearing and Hauling Corporation without charging it any fees. He also accepted between 250,000 and 280,000 cubic yards of debris from FEMA following the destruction cased by Hurricane Ivan. He charged that federal agency $1.00 per cubic yard for disposal of that waste. The Respondent dissolved Ambush Land Clearing and Hauling, Incorporated at the end of 2005, retaining none of that company's assets. He now works for an employer and earns approximately $800.00 gross per week, before taxes, and also owns a Harley Davidson motorcycle. Escambia County Closure Permit The Respondent has applied for a closure permit to Escambia County. He offered evidence apparently in an effort to show that it would be impossible to comply with the Department's NOV as well as the Escambia County ordinance. Mr. Peter Aluotto, is the Director of Planning and Zoning for Escambia County. He testified regarding the County Development Review Committee (DRC) and Escambia County Ordinance 2006-24. Section 82-227(5) of the Escambia County Ordinance prohibits volume reduction at land clearing debris facilities. "Volume Reduction" includes chipping, shredding, or burning of debris. Section 82.236 of the Escambia County Ordinance determines that variances may be granted if the board of adjustment determines that granting such variances will not result in the maintenance or creation of a nuisance. Although he has applied for a closure permit, there is no evidence presented that the Respondent applied for a variance from this ordinance, as for instance to place himself in a position where he could perform grinding of debris material in order to generate revenue. Both the DRC and the Escambia County Waste Department have to collaborate on issuance of a closure permit. Mr. Alleuto does not know what action might be taken on the closure permit application. In any event, his testimony is irrelevant to the corrective action sought by the Department because the Department is not requiring any grinding, or otherwise reduction in volume of debris material. The fact that the Respondent would like to grind debris material in order to generate revenue is irrelevant to actions sought by the NOV and the Department's position in this case. In summary it has been established that open burning occurred at the site and that the Respondent "allowed" it to occur. It has not been established by preponderant evidence that the Respondent actually ignited the materials in question. Moreover, it has been established by preponderant evidence that the Respondent made extensive efforts to extinguish the fire. It is also true that he was somewhat slow to do so, and did so only upon prompting by the Department's personnel. In any event, however slowly he complied, he did cooperate with the Department in making an effort in extinguishing the fire. There is no preponderant evidence to show that the fire is still burning and that it was not extinguished. Additionally, it has been established that the stormwater management system has not been, constructed as represented to the Department in the Notice regarding the General Permit. In fairness to the Respondent, however, the Stormwater Management System was not required to be in place under the rules until the site generated stormwater migrating off the site. That did not occur until the elevation was raised above the surrounding land surface elevation. That in turn, occurred because of the Respondent's efforts to extinguish the fire by hauling numerous truck loads of dirt and placing them on the site, such that it ultimately attained a raised elevation.
The Issue The issue in this case is whether Respondent discriminated against Petitioner in refusing to hire him.
Findings Of Fact On July 24, 1991, Respondent posted a Job Posting for the job of Fire Coordinator at an annual salary of $24,566 to $34,619. The County advertised the job in general runs of the Orlando Sentinel and Tampa Tribune, as well as local newspapers. The application deadline was August 14, 1991. Learning of the job opening, Petitioner submitted an application. Based on background and experience, Petitioner was well qualified for the job. Consistent with County practice, either the County Commission or the County Administrator had appointed a Selection Committee. The purpose of the Selection Committee was to interview qualified applicants, rate the applicants, and forward their scores to the County Commission. Because the Fire Coordinator is a department head, only the County Commission had the authority to hire the person for the job. The Selection Committee included the chief of the Avon Park Fire Department, the chiefs of either a volunteer or another municipal fire department within the County, the County Administrator, the County Personnel Director, and the Director of the County Office of Management and Budget. The Selection Committee chose five persons to interview, including Petitioner. During the interviews, the Personnel Director asked Petitioner about his relationship with the City of Avon Park. Petitioner admitted that he was preparing to file a job discrimination complaint against the City because he believed that he had been unfairly terminated due to some legal problems that his wife had had. The Selection Committee rated the applicants after the interviews. Petitioner rated the highest. He was tied for the highest on the Personnel Director's tally sheet. The Selection Committee then forwarded the three top applicants to the County Commission for further action. These were Petitioner, Mr. Larry Butler, and Mr. Paul Goddard. The County Commission is free to disregard the recommendations and recommence advertising for the position. Expressing some discontent with the selections, the County Commission unanimously voted to do just that when it considered the recommendations on September 3, 1991. The Commission directed that advertisements should be placed locally and in a regional edition of the Tampa Tribune, following which the applicants should be reduced to five and brought to the County Commission for interviews. There is little evidence of the reasoning for the County's action. One Commissioner is a former Mayor of the City of Avon Park, and she may have expressed some reservations about Petitioner and another former employee of the City. In any event, the County, on September 4, 1991, again posted the Job Posting for the Fire Coordinator's job. The ads were run as directed by the County Commission. The application deadline was September 20, 1991, which was a Friday. On this round, the job of determining what applicants were sufficiently qualified to be granted interviews was borne by the County Administrator and the County Personnel Director. Receiving 14 applications, they determined that two of the new applicants were qualified to be interviewed. These persons were Mr. Mike McCann and Mr. Tim Eures, who was the son of an applicant from the prior round. However, others were entitled to interviews due to County custom. One custom was that whenever the County Commission rejects the recommendations of a Selection Committee and readvertises the position, the persons earlier recommended are entitled to be interviewed during the second round. This meant that Petitioner was entitled to an interview, as were the two other persons recommended by the Selection Committee during the first round. In this case, Mr. Goddard affirmatively indicated that he did not want to submit to an interview with the County Commission, and Mr. Butler presumably showed no interest in the interview. The other relevant custom in the County required that current County employees be allowed a full interview when they applied for a job. Mr. McCann was in this category, although he also was sufficiently qualified to earn an interview without regard to his current employment by the County. Also, Mr. Hank Eures, the father of Tim Eures and an unsuccessful candidate the first time, was extended an offer to interview with the County Commission because he was a current County employee. The County Administrator and County Personnel Director decided on Monday, September 23, 1991, that Mr. McCann, Mr. Tim Eures, Petitioner, and Mr. Hank Eures were entitled to interviews with the Board of County Commissioners. Following the custom of setting the interview schedule at its next regularly scheduled Commissioners meeting, the Board, on September 24, chose the date and set aside time for the interviews to take place. It chose Tuesday, October 1, 1991. On September 26, 1991, (September 27 for Mr. Hank Eures), the County mailed letters to each of the persons to be interviewed informing them of the date, time, and location of the interviews. The County Personnel Director normally telephones the candidates and gives them the same information, but it is unclear if he did so, or was able to do so, with respect to Petitioner. Petitioner received the September 26 letter on Saturday, September 28. He had since become employed as a long- distance tractor-trailer operator and was booked for a long haul on October 1. He was unable to find a substitute for this job. On Monday, September 30, Petitioner's wife called a County employee and informed her of Petitioner's scheduling problem. She explained that Petitioner could not attend the interviews and asked that his interview be rescheduled for another date. As is customary with interviews, the County Commission refused to accommodate Petitioner, so the interviews proceeded without him as scheduled. Following the interviews, the Commissioners selected Mr. Tim Eures as the new Fire Coordinator. The record does not permit a determination as to Mr. Tim Eures' relative qualifications as compared to those of Petitioner. There is no evidence that Petitioner failed to be hired for the Fire Coordinator position due either to legal problems that his wife was having at the time or due to the filing of a charge of discrimination against Petitioner's prior employer, the City of Avon Park.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. ENTERED on April 20, 1993, in Tallahassee, Florida. ROBERT E. MEALE 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 on April 20, 1993. APPENDIX Treatment Accorded Proposed Findings of Respondent 1-2: rejected as not findings of fact. 3-5: adopted or adopted in substance. 6: rejected as subordinate. 7: adopted or adopted in substance. 8: rejected as subordinate and recitation of evidence. 9-15 (second sentence): adopted or adopted in substance. 15 (third and fourth sentences)-17: rejected as irrelevant. COPIES FURNISHED: Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149 Margaret Jones, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149 Robert H. Grizzard, II P.O. Box 992 Lakeland, FL 33802-0992 J. Ross Macbeth County Attorney Highlands County P.O. Box 1926 Sebring, FL 33871-1926
