The Issue Whether Respondent, Westwood Country Estates, Inc.'s, application to modify surface water management Permit 43-00155-S should be granted.
Findings Of Fact All lands pertinent to this proceeding are located in northwestern Martin County, Florida, within the jurisdiction of the South Florida Water Management District (SFWMD). Respondent, Westwood Country Estates, Inc. (Applicant), is the owner of 82.1 acres of land that it proposes to develop into a residential subdivision known as Westwood Country Estates (Westwood). Westwood is adjacent to and west of Canoe Creek subdivision, an existing residential single family subdivision consisting of 85.6 acres. The lands constituting Westwood and Canoe Creek subdivision historically drain in an easterly to southeasterly direction into Bessey Creek and from Bessey Creek into a major drainage canal maintained by SFWMD referred to as C-23. The primary drainage for Westwood has historically been across the lands constituting the Canoe Creek subdivision. Petitioners are the Canoe Creek Property Owners Association, Inc., and individual property owners in the Canoe Creek subdivision. The primary grounds for their objections to the modifications are their contentions that the Westwood modifications would overload the Canoe Creek surface water management system, thereby flooding streets and homes, damaging septic tanks, and polluting the wells that serve Canoe Creek subdivision. Petitioners also object to the repairs and improvements to the Canoe Creek surface water, management system that are recommended by Applicant and are incorporated as special conditions to the application. Permit No. 43-00135-S, issued by SFWMD in 1979, as modified by SFWMD in 1981, is the surface water management permit for Canoe Creek subdivision. The surface water management system for Canoe Creek subdivision consists of drainage swales, a detention pond, culverts, and weirs. From the detention pond, surface water drains via grassy swales easterly to a roadside ditch at Murphy Road, then southerly parallel to Murphy Road into Bessey Creek, which drains into the C-23 canal. Outfall for the Canoe Creek system is authorized at the rate of 21 cubic feet per second during the applicable 10-year, 3-day design storm. A perpetual easement for utility and drainage purposes was granted on December 17, 1979, by the owner of the real property that was developed as the Canoe Creek subdivision, for itself and for its successors and assigns, to the then owners of the Westwood property, its successors and assigns. This easement, which is 20 feet in width and 485 feet in length, authorizes the drainage of water from Westwood into the Canoe Creek surface water management system. On the common boundary between Canoe Creek subdivision and Westwood there is a v-notch weir structure which is designed to regulate the outfall from Westwood to the Canoe Creek system. From that weir structure, the drainage easement runs easterly to what was in 1979 the Canoe Cheek subdivision area perimeter ditch and to what is now the Canoe Creek subdivision retention lake. This grant of easement was recorded in the public records of Martin County, Florida, on December 17, 1979, in Official Records Book 485, pages 2163-2165. On February 14, 1980, Permit 43-00155-S, a construction and operation surface water management permit was issued by SFWMD to the owners of Westwood. The permitted surface water management system for Westwood consists of wetlands areas, detention areas, drainage swales, culverts, and weirs. Outfall from the Westwood system is authorized at the rate of 21 cubic feet per second during the applicable 10-year, 3-day, design storm event. The outfall flows through the weir structure on the boundary between Westwood and Canoe Creek subdivision, through the drainage easement, into the Canoe Creek detention pond, and through the Canoe Creek surface water management system. Ultimate outfall for both the Westwood system and the Canoe Creek system is through Bessey Creek and the C-23 canal. Modifications to Permit 43-00155-S in 1982 and in 1983 did not alter Westwood's basic surface water management system. Since 1980, the surface water management system permitted for Westwood has contemplated that the surface water outflow would be discharged through the Canoe Creek subdivision surface water management system and that these surface water management systems be an integrated system consisting of detention ponds, drainage swales, culverts, and weirs, with outfall into Bessey Creek and then into the C-23 Canal. In August 1988, an unauthorized water discharge occurred from the Westwood properties during a heavy storm before the completion of the Westwood surface water management system. This unauthorized discharge of water occurred through a breach in the partially completed dike located at the southern perimeter of Westwood. The breach in the dike on the southern perimeter was caused, in part, because Westwood was receiving an unauthorized discharge of water from a 56 acre parcel which adjoins Westwood on its western boundary. This unauthorized discharge onto Westwood was through a separate breach in the western perimeter dike. The Notice of Violation, which was issued by SFWMD to Applicant following this unauthorized discharge, precipitated the application which is the subject of this proceeding. Since the unauthorized discharge, the construction of Westwood's surface water management system has been completed. The perimeter of Westwood has been bermed to prevent unauthorized discharges from the off-site area. On October 14, 1988, Applicant, pursuant to Chapter 373, Part IV, Florida Statutes, and the applicable rules found in Chapter 40E-4, Florida Administrative Code, applied for the modification to Permit 43-00155-S that is the subject of this proceeding. Howard Searcy, Westwood's consulting engineer, determined that approximately 56 acres of off-site property to the west of Westwood was draining onto Westwood and that provision should be made for this off-site area in Westwood's surface water management system. The modification process was necessary because the existing permit authorized drainage onto Westwood from only four of the 56 acres. As permitted by the rules and practice of SFWMD, the application for modification was submitted in the form of a letter. The application requested the following modifications to Permit 43- 00155-S: That the tributary off-site area be increased from 4 acres to 56 acres; That catch basin 23, which receives the off-site flow from the adjoining off-site 56 acres, be raised from elevation 12.0 feet NGVD to elevation 12.5 feet NGVD at the grate; That the elevation of the crest of the outfall structure between Westwood and Canoe Creek subdivision be lowered from 12.1 feet NGVD to elevation 11.8 feet NGVD and that the bleeder of the structure be lowered from 11.5 feet NGVD to 11.3 feet NGVD. The request to raise by six inches the catch basin which receives the flow from the off-site property was made so that more water would be detained on the off-site property during design storms. The request that the outfall structure between Westwood and Canoe Creek be lowered was made to authorize an increase in the peak discharge in a design storm event from the permitted 21 cubic feet per second to the proposed 21.3 cubic feet per second. The data submitted by Westwood in support of its application included a backwater analysis prepared by Mr. Searcy and his staff. The backwater analysis is a detailed computer analysis of the Westwood surface water management system and the effects of the proposed modifications designed by Mr. Searcy and his engineering staff. The data also contained an analysis of the Canoe Creek subdivision surface water management system and the effects of the modifications on that system. The backwater analysis determined that the Canoe Creek subdivision surface water management system was not operating as designed and that the system should be improved by regrading existing swales, adding additional culverts, and modifying existing weirs. Mr. Searcy made the following specific recommendations for improvements to the Canoe Creek subdivision surface water management system. Station 0+00 (southern entrance road): Replace the existing 24" CMP culvert with 2 - 30" CMP culverts. Station 7+69 (main entrance road): Replace the existing 24" 34" CMP Arch culvert with 2 - 24" x 35" CMP Arch culverts. Note: if existing 24" x 34" CMP Arch culvert is in good condition, just add 1 - 24" x 35" CMP Arch culvert at this location. Station 13+00 (outfall structure): Verify that the existing structure was built as designed and then increase the weir length to 6.1' at crest elevation 10.25'. The top of this weir structure should also be increased to elevation 20.0'. [The recommendation that the top of the weir structure be increased to elevation 20' was a typographical error. The correct elevation should be 12'.] Station 13+00 to 14+78 (east-west swale): Regrade the swale bottom to remove all high point greater than elevation 8.25'. Station 14+78 (internal road) Replace existing 24" x 34" CMP Arch culvert with 2 - 24" 35" CMP Arch culverts and lower the invert elevation to 8.25'. Note: If the existing 24" x 34" CAP Arch culvert is in good condition, then just add 1 - 24" x 35" CMP Arch culvert at this location. Station 13+23 to 19+29 (east-west swale) : Regrade swale bottom starting at elevation 8.25' at station 15+23 and ending with elevation 8.5' at station 19+29. Station 19+29 (weir structure): Increase weir length to the permitted weir length of 5.0' at the existing weir crest elevation 10.14'. Without the improvements to the Canoe Creek system recommended by Mr. Searcy, the Canoe Creek subdivision system will not function as designed and as permitted. After the initial review of the application the SFWMD requested that Applicant submit additional information and that it clarify certain items. The Applicant provided all data and clarifications requested by the SFWMD. The SFWMD staff thereafter deemed the application complete. The Staff Report prepared by the SFWMD review team on March 24, 1989, recommended that the modification to the permit be granted with certain conditions. The conditions were of two types, limiting conditions, which are standard conditions attached to most permits, and special conditions, which are conditions unique to this permit. The special conditions, pertinent to this proceeding, are as follows: Prior to the commencement of construction of the proposed surface water management system improvements within Canoe Creek (Permit No. 43-00135- S), a permit modification to permit No. 43-00135-S shall be required. This modification is conditioned on the downstream improvements to the Canoe Creek outfall system (Table I) being completed. If the Canoe Creek system is not improved, Westwood Country Estates, Inc. shall be required to submit revised plans and calculations demonstrating an alternate outfall route. * * * 16. Any development of the 56-acre off- site area will require compliance with an allowable discharge not exceeding 3.4 CFS during the 10-year 3-day design event. The improvements to the Canoe Creek system required by condition 12 are those conditions recommended by Mr. Searcy and set forth in paragraph 13 of this Recommended Order. Applicant has accepted the conditions that were attached by SFWMD to the granting of the proposed modification. As presented at the formal hearing, the application for modification incorporates the conditions imposed by SFWMD. The backwater analysis that was prepared by Mr. Searcy assumed that the improvements he recommended to the Canoe Creek surface water management system would be made. Westwood has complied, in all material respects, with the SFWMD permitting rules and regulations and has supplied all information requested of it by SFWMD. The appropriate employees of SFWMD processed the modification application in accordance with SFWMD rules. All information deemed pertinent to the application was assembled, the data was reviewed, and the applicable permitting files were researched. Applicant has provided reasonable assurances that all permitting criteria adopted by SFWMD will be met if the conditions attached to the application are implemented. SFWMD's flooding protection and drainage criteria, which was of particular concern at the hearing, will be met. There should be no impact on the level, flow, or quality of groundwater. Water quality standards adopted by the State of Florida as set out in Chapter 17-3, Florida Administrative Code, will have been met or exceeded, and there should be no adverse environmental impacts. The wetlands on the 56 acres of off-site area will benefit by the additional retention caused by the raising of the level of Catch Basin #23. The surface water management system, with the modifications proposed by Applicant, can be effectively operated and maintained. A condition of the permit is that Applicant form a homeowner's association to take over the operation and maintenance of the system after development is completed. The approval and implementation of the proposed modifications and conditions thereto will not adversely affect the public health and safety, adversely affect the legal rights of others, be harmful to the water resources of the State, or be contrary to public policy. Petitioners have failed to factually refute Applicant's showing that it has provided reasonable assurances that all pertinent permitting criteria adopted by SFWMD will be met if the permit modification, as conditioned, is approved and implemented.
Recommendation Based on the foregoing findings of facts and conclusions of law, it is RECOMMENDED that South Florida Water Management enter a final order which approves application for the modification of Permit No. 43-00155-S filed by Westwood Country Estates, Inc., subject to the terms and conditions recommended by the South Florida Water Management District staff report. DONE AND ENTERED this 5th day of December, 1989, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of December, 1989. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-2197 The following rulings are made on the findings of fact submitted on behalf of Westwood Country Estates, Inc. The proposed findings of fact in Section I are adopted in material part by paragraphs 4, 5, 7-11 and 15 of the Recommended Order. The proposed findings of fact in Section 11 are adopted in material part by paragraph 3 of the Recommended Order. The proposed findings of fact in Section III are adopted in material part by paragraph 7 of the Recommended Order. The proposed findings of fact in Section IV are adopted in material part by paragraphs 6 and 7 of the Recommended Order. The proposed findings of fact in Section V are adopted in material part by paragraph 6 of the Recommended Order. The proposed findings of fact in Section VI are adopted in material part by paragraph 7 of the Recommended Order. The proposed findings of fact in Section VII are adopted in material part by paragraph 8 of the Recommended Order. The proposed findings of fact in Section VIII are adopted in material part by paragraphs 12-20 of the Recommended Order. The proposed findings of fact in Section IX are rejected as being unsubstantiated by the record and as being a conclusion of law. The following rulings are made on the findings of fact submitted on behalf of South Florida Water Management District. 1. The proposed findings of fact in paragraph 1 are adopted in material part by paragraph 2 of the Recommended Order. 2. The proposed findings of fact in paragraph 2 are adopted in material part by paragraphs 8 and 9 of the Recommended Order. 3. The proposed findings of fact in paragraph 3 are adopted in material part by paragraph 9 of the Recommended Order. 4. The proposed findings of fact in paragraph 4 are adopted in material part by paragraphs 9-11 of the Recommended Order. 5. The proposed findings of fact in paragraph 5 are adopted in material part by paragraphs 5 and 7 of the Recommended Order. The proposed findings of fact in paragraph 6 are adopted in material part by paragraphs 15 and 18 of the Recommended Order. The proposed findings of fact in paragraph 7 are rejected as being subordinate to the findings made in paragraph 3 of the Recommended Order. The proposed findings of fact in paragraph 8 are adopted in material part by paragraphs 6 and 7 of the Recommended Order. The proposed findings of fact in paragraph 9 are adopted in material part by paragraphs 6 and 7 of the Recommended Order and are rejected to the extent that they are subordinate to the findings of paragraph 7 of the Recommended Order. The proposed findings of fact in paragraph 10 are rejected as being subordinate to the findings made in paragraphs 3 and 7 of the Recommended Order. The proposed findings of fact in paragraph 11 are rejected as being subordinate to the findings made in paragraph 18 of the Recommended Order. The proposed findings of fact in paragraph 12 are adopted in material part by paragraph 18 of the Recommended Order. The proposed findings of fact in paragraph 12 are adopted in material part by paragraph 18 of the Recommended Order. COPIES FURNISHED: Don Mooers, Esquire Qualified Representative Post Office Box 1147 Palm City, Florida 34990 David J. Chestnut, Esquire 215 South Federal Highway Stuart, Florida 34994 Terry E. Lewis, Esquire Steve Lewis, Esquire Messer, Vickers, Caparello, French & Madsden, P.A. 2000 Palm Beach Lakes Blvd. Suite 301 West Palm Beach, Florida 33409 John J. Fumero, Esquire South Florida Water Management District Post Office Box 24680 West Palm Beach, Florida 33416-4680
Conclusions This cause is before the Department of Community Affairs on an Order Closing File, a copy of which is appended hereto. as Exhibit A. , On December 23, 2008, Respondent Highlands County adopted an amendment to its comprehensive plan by Ordinance No. 08-08-62 (Amendment). The Department reviewed the Amendment, determined that it did not meet the criteria for compliance set forth in Section 163.3184 (1) (b), Florida Statutes, and caused to be published a Notice of Intent to find the Amendment not “in compliance.” The Department then instituted this administrative proceeding against the County pursuant to Section 163.3184(10), Florida Statutes. FINAL ORDER No. DCA09-GM-406 On December 15, 2009, the County repealed the Amendment by Ordinance No. 09-10-04. By virtue of this rescission, the instant controversy has been rendered moot and this proceeding must be dismissed. See Department of Highway Safety & Motor Vehicles v. Heredia, 520 So. 2d 61 (Fla. 3d DCA 1988) (dismissing case on appeal as moot where suspension of driver’s license was rescinded by the Department) .
Other Judicial Opinions REVIEW OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030 (b) (1)®) AND 9.110. : TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. FINAL ORDER No. DCA09-GM-406 CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and correct copies have been furnished by U.S. Mail to each of the persons listed below on this At day of DIE , 2009. aula Ford Agency Clerk By U.S. Mail The Honorable J. Lawrence Johnston Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 J. Ross Macbeth, Esquire Highlands County Attorney 2543 U.S. 27 South Sebring, Florida 33871-1926 Bert J. Harris, III, Esquire Swaine, Harris & Sheehan, P.A. 401 Dal Hall Boulevard Lake Placid, Florida 33852 By Hand Delivery Lynette Norr Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, FL 32399-2100
The Issue The issue is whether Respondent engaged in an unlawful employment practice with regard to Petitioner.
Findings Of Fact Mr. Bennett was employed as a forester by the Department from May 30, 2003, until his termination on December 10, 2004. During times pertinent he was 30 years of age. The Department is headed by the Commissioner of Agriculture. The Division of Forestry (Division) is an organic element of the Department. Among the duties of the Division are the protection of state forest lands and the provision of forest environmental education and forest recreation. Mr. Bennett had eight to ten years of experience as a forester when he was hired by the Division. His initial assignment was as a forester stationed in the Bear Creek Educational Forest (Bear Creek). Mr. Bennett was diagnosed as having bipolar disorder when he was 19 years of age. He has been medicated since that time with Lithium and Zyprexa. Lithium must be taken on a regular basis. Zyprexa is taken only when the lithium fails to accomplish the desired result. Zyprexa was needed when Mr. Bennett became stressed. Zyprexa taken in a very small dose would not affect Mr. Bennett's ability to work. Larger doses of five or ten milligrams resulted in Mr. Bennett having to be absent from work. Mr. Bennett refrained from revealing his bipolar disorder to his employer. If the effect of the Zyprexa was such that he could not work, he would ask for leave and it would be given to him with no question, at least until August 9, 2004. In performance evaluation periods ending May 2003 and May 2004, Mr. Bennett received acceptable evaluations. These evaluations were mid-range and not remarkable. They did indicate that he consistently achieved Division expectations. At work, Mr. Bennett was teased by co-workers about his excessive weight from time to time and remarks were made to him by fire fighters which indicated that being a forester was not as important as being a fire fighter. This bothered Mr. Bennett. August 9, 2004, was not a good day for Mr. Bennett. His mother was ill and he was feeling stress because of this. He completed a physical examination as a precursor to becoming qualified as a forest fire fighter and then went to Bear Creek despite feeling unwell. When he arrived at Bear Creek he was greeted by Shawn Duggar. Mr. Duggar laughed at him and this upset Mr. Bennett. Mr. Bennett became irate and cursed. It is clear that Mr. Bennett did not physically harm Mr. Duggar, but Mr. Bennett's display of emotion unnerved Mr. Duggar. Mr. Bennett's manner was sufficiently menacing that the physically smaller Mr. Duggar believed that he had reason to fear for his personal safety. As a result of this encounter Mr. Duggar departed the area and drove to the district office. Mr. Bennett felt too upset to work on August 10, 2004. He called in early that day and left a message on Mr. Oswalt's answering machine informing him that he would be unable to come in to work that day. Mr. Oswalt was Mr. Bennett's supervisor at the time. Both Mr. Oswalt and Mr. Weber, the supervisor next up the line, called Mr. Bennett and wanted to have a meeting with him. Later the district manager, Charlie Marcus, called. Lastly, he got a call from John Webster, a bureau chief. Mr. Bennett felt that because he was on sick leave, he did not have to meet with these supervisory personnel. Also to the best of his recollection, Mr. Bennett had taken Zyprexa that morning and as a result, he felt it would be inappropriate to meet with his supervisors while under the influence of that drug. John Webster was sufficiently concerned about Mr. Bennett's behavior that he asked him if he was, "going postal." The phrase "going postal" means engaging in violent acts in the workplace. Subsequently, at Mr. Webster's instigation, Gadsden County Sheriff's Deputy Jenkins came to his residence, which was located within the curtilege of the Bear Creek facility. Deputy Jenkins told Mr. Bennett that he wanted Mr. Bennett to enroll in the Employee Assistance Program (EAP). About one hour later, Deputy Jenkins came back to Mr. Bennett's residence accompanied by Sergeant Wilder from the Gadsden County Sheriff's Office. Mr. Bennett was questioned with regard to his stability and medications, the EAP program was discussed yet again, and Sergeant Wilder observed that Mr. Bennett was "a bit shaky." The officers also talked to Mr. Bennett's girlfriend when she called Mr. Bennett. Thereafter, the officers departed. After several days of suffering from the effects of his bipolar disorder, Mr. Bennett returned to work on August 19, 2005. On August 23, 2004, Mr. Bennett met with his supervisors. As a result of that meeting he was transferred from Bear Creek to Wakulla County, and Ken Weber, the Forestry Operations Administrator for that district, referred him to EAP. He was also required to get a note from his doctor indicating the cause of his absence. The physician's note that he brought the first time failed to specify the type of illness resulting in his absence. He was required to get a second note and he did. This second note also was nonspecific with regard to his illness. The doctors were of the opinion that it would violate Mr. Bennett's privacy if they revealed the nature of his illness. Subsequently, on September 8, 2004, he received a memorandum of counseling. This was not punitive. It merely told him to avoid instances of behavior such as that demonstrated on August 9, 2004. It is important to note at this point, that although Mr. Bennett, immediately after the incident of August 9, 2005, and at the hearing, attempted to minimize the incident with Shawn Duggar, it is found as a fact that Mr. Bennett's actions at that time were irrational and demonstrated a lack of emotional control. This was recognized by the Chief of Human Resources who said he was sent to EAP for "anger management problems." Mr. Bennett successfully completed the requirements of EAP and evidence of this was provided in a letter from Jerry A. Smith of the Allen Group, a provider of employee assistance, which stated, "Mr. Bennett has been compliant with, and has now successfully completed, all recommended treatment." His supervisor at the Wakulla County job was Ken Weber. His work at that job for a few weeks was unremarkable. On October 14, 2004, there was a Wakulla State Forest status meeting which Mr. Bennett attended. Mr. Weber, William Taylor, and others attended. Mr. Bennett suggested that they buy a digital camera for official use. He was informed that he should meet with Allen Griffith, who also used a camera in his work, fill out a necessary form, and then purchase the camera. Mr. Bennett discussed the matter with Allen Griffith briefly, and purchased the camera with his state purchasing card. Mr. Bennett did not fill out the necessary forms due to his lack of understanding of the complexity of state purchasing rules. His purchase of the camera was somewhat precipitous, but there was no malicious intent on his part nor did he personally benefit from the purchase of the camera. He was eventually asked to return the camera to the seller, and he did as asked. Subsequent to Hurricane Ivan, Mr. Bennett was ordered on temporary duty in the Blackwater River State Forest (Blackwater) which had been damaged by hurricane winds. Blackwater is located two to three hours from Crawfordville. He began this duty sometime after the October 14, 2004, meeting. Accommodations for the foresters were provided in a hotel in Crestview. Mr. Bennett was required to share a room with another forester. The roommate to whom he was assigned snored loudly and Mr. Bennett could not obtain the amount or quality of sleep that he needed. This resulted in aggravating his bipolar disorder. The lack of regular sleep, along with the side effects of the lithium he was taking, caused Mr. Bennett's eyes to burn. He had headaches and felt the onset of a manic episode. By the third night his respiration rate increased and he was feeling very stressed. He called his girlfriend and she suggested that she should come get him. He agreed and she drove from the Tallahassee area to Crestview and, beginning after midnight, followed him as he drove his state-assigned vehicle back to Crawfordville, where he ingested some Zyprexa and went to sleep. Mr. Bennett had access to a telephone in Crestview and two-way radio equipment in his truck, but he made no effort to contact his superiors to inform them that he had decamped. Two or three days later he talked to Mr. Weber and explained to him the reason he abandoned his position. Mr. Weber told him that he needed to get some help. The events surrounding the Blackwater forest episode occurred during the work week October 25-29, 2004. Mr. Bennett returned to work Monday, November 1, 2004, after he was able to take his medicine, rest, and achieve stability. Ultimately his superiors sent him back to Blackwater where he stayed in a private room and performed in accordance with expectations. Before Mr. Bennett's planned stay was completed, he was pulled from the Blackwater operation and told he was to be terminated. Although a written reprimand was drafted addressing the camera incident, and another was drafted with regard to the unauthorized departure from the Blackwater operation in October, the letters were never dated, signed, or presented to him. Rather, these matters were addressed in a letter dated November 12, 2004, announcing that he was being recommended for termination. This was signed by Elaine Cooper, Chief of Personnel Management. The letter of November 12, 2004, addressed his failure to follow procedures when purchasing the camera and his unauthorized departure from the Blackwater operation in October. He was notified that his actions constituted a violation of "AP&P No. 5-3, Section V, Insubordination, (Page 3), and Poor Performance, (Page 20), respectively." The letter set a meeting for November 30, 2004, and informed him that he could attend and answer the charges against him. Mr. Bennett responded with a short letter dated November 28, 2004, addressed to Elaine Cooper, Chief of Personnel Management, which informed her that he had a disability which he could manage. He further noted that his disability could cause him to become irritable or angry. He did not reveal his bipolar disorder in this letter. This letter was delivered to Ms. Cooper at the predetermination conference. In a letter dated November 29, 2004, a longer letter was prepared for Ms. Cooper. This letter provided his version of his employment experience as a forester and included a public records request. It did not assert that he was disabled. This letter was delivered to Ms. Cooper at the predetermination conference. At no time prior to November 30, 2004, did Mr. Bennett claim to have a disability or ask for an accommodation as a result of a claimed disability. At no time prior to November 28, 2004, was Mr. Bennett perceived to be disabled by his employer or any of its representatives. When he did inform Ms. Cooper that he believed he had a disability, he did not reveal the nature of his disability. In a letter dated December 6, 2004, addressed to Mr. Bennett, Ms. Cooper noted that at the predetermination conference on November 30, 2004, he informed her for the first time that he believed he had a disability. The letter stated that his doctor should be provided with Mr. Bennett's position description and should comment on his ability to perform in accordance with the position description, with or without an accommodation. No deadline was provided as to when a response was due. In an e-mail dated December 9, 2004, Mr. Bennett asked Ken Weber for one-half day of leave so that he could have his doctor address the matters contained in Ms. Cooper's letter of December 6, 2004. On December 13, 2004, Mr. Weber presented Mr. Bennett with a letter dated December 10, 2004, signed by Ms. Cooper, which informed him that he was terminated effective December 16, 2004. A Special Accommodation for Disability was prepared by Dianna Byrd, a medical doctor, on December 28, 2004, stating that Mr. Bennett should be allowed regular and appropriate lunch breaks and should be allowed to take a five minute break during stressful situations. It further stated that the Department should allow his fiancé to call-in sick for him and that he should be allowed to visit the doctor when he had an appointment. At the time Dr. Byrd described these accommodations, Mr. Bennett's employment relationship with the Department had been severed. It must be noted that even at this late date, no diagnosis was provided. Even when he filed his Charge of Discrimination with FCHR December 21, 2004, he failed to reveal the nature of his asserted disability.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission dismiss Mr. Bennett’s petition. DONE AND ENTERED this 19th day of December, 2005, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Marie Mattox, Esquire Law Office of Marie A. Mattox, P.A. 310 East Bradford Road Tallahassee, Florida 32303 Stephen M. Donelan, Esquire Department of Agriculture and Consumer Services 509 Mayo Building 407 South Calhoun Street Tallahassee, Florida 32399-0800 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact General. The Westwood permit modification contemplated a series of improvements, not only in its own system, but also to Canoe Creek's surface water management system. These improvements were designed to take into account the previously unknown surface water flows from the 56 acres to the west of Westwood. A special condition of the Westwood permit modification was that Canoe Creek's permit and surface water management system be modified to incorporate changes to accept these additional water flows. The District issued its Administrative Complaint and Order/Notice Of Intended Modification of the Canoe Creek permit, which initiated this case, on February 2, 1990, in an effort to force the incorporation of specific improvements of Canoe Creek's surface water management system to fully integrate it into the area-wide system. Although the procedural contexts of the two cases are different, from an engineering point of view, the same issues are raised in this proceeding by the District to require Canoe Creek to modify its surface water management system as were raised in the earlier proceeding in which Westwood sought, and Canoe Creek opposed, modification of the Westwood surface water management permit so that Westwood's system would accommodate off-site flows. The seven specific modifications proposed for Canoe Creek are: Station 0+00 (southern entrance road): Replace the existing 24 inch diameter CMP culvert with two 30 inch diameter CMP culverts. Station 7+69 (main entrance road): Replace the existing 24 inch X 34 inch CMP Arch culvert with two 24 inch X 35 inch CMP Arch culverts. If the existing 24 inch X 34 inch Arch culvert is in good condition, only one 24 inch X 35 inch CMP Arch culvert will be added at this location. Station 13+00 (outfall structure): Verify that the existing structure was built as designed and then increase the weir length to 6.1 feet at crest elevation 10.25 feet NGVD. The top of this weir structure should also be increased to elevation 20.0 feet NGVD. Station 13+00 to 14+78 (east-west swale): Regrade the swale bottom to remove all high point greater than elevation 8.25 feet NGVD. Station 14+78 (internal road): Replace existing 24 inch X 34 inch CMP Arch culvert with two 24 inch X 35 inch CMP Arch culverts and lower the invert elevation to 8.25 feet NGVD. If the existing 24 inch X 34 inch CMP Arch culvert is in good condition, only one 24 inch X 35 inch CMP Arch culvert will be added at this location. Station 15+23 to 19+29 (east-west swale): Regrade swale bottom starting at elevation 8.25 feet NGVD at station 15+23 and ending with elevation 8.5 feet NGVD at station 19+29. Station 19+29 (weir structure): Increase the existing weir length to the permitted weir length of 5.0 feet at the existing weir crest elevation 10.14 feet NGVD. The Westwood Permit. Historical Background. As noted above, Westwood is an 82.1 acre residential development. It is located in northern Martin County, west of Stuart, Florida, and east of the Florida Turnpike. It is immediately west of Canoe Creek, an older 86.5 acre subdivision of single family homes. Both projects share a common property boundary, and both historically drain into Bessey Creek. Bessey Creek in turn drains into Canal 23 (C-23) which is a work of the District. Canal C-23 is the dominant drainage feature in the area. Development throughout the Bessey Creek watershed has altered historic sheet flow, and directed that flow to point discharges in the various developments. The District issued its Construction and Operation Permit 43-00155-S to Mr. Gordon Nelson on February 14, 1980, for the construction of the residential development which became Westwood. Westwood's surface water management system used grassed swales, catch basins, storm sewers, and natural wetland areas to contain surface waters, which were then directed through one 4-foot weir at elevation 10.75 feet NGVD with a V-notch bleeder set at 9.75 feet NGVD, draining into a 25-foot wide drainage easement and ditch which was part of the Canoe Creek surface water management system. The original permit was reissued to Tall Pines Finance Corporation on July 8, 1982, and included a system of catch basins, one 24 inch by 440 lineal foot CMP equalizing culvert, one 5.33 foot wide weir at elevation 12.2 feet NGVD, one 25 foot wide drainage ditch, and one 42 inch by 40 lineal foot CMP culvert and one 29 inch by 40 lineal foot CMP culvert. The permit was modified on April 14, 1983, to permit Westwood to discharge through a narrower 4-foot wide weir with a crest elevation of 12.1 feet NGVD and two 6-inch diameter circular PVC bleeders, with inverts at elevation 11.5 feet NGVD. Final discharge remained into Canal C-23 via Bessey Creek and the Canoe Creek surface water management system. The Westwood permit was modified for a third time on June 9, 1983, to include about 4.15 acres of off-site flows coming into the Westwood surface water management system. Westwood's fourth application to modify its surface water management permit was filed on October 14, 1988, in response to a Notice of Violation which the District had served on it on August 26, 1988. The unauthorized discharge of stormwater from the southern boundary of Westwood occurred after a heavy storm and resulted in adverse impacts, i.e., shoaling in Bessey Creek. This unauthorized discharge occurred when the surface water management improvements on the Westwood site were only partially complete. The berm around the property perimeter then was about five feet high, was unsodded and unstable. Operation. The breach in the berm on Westwood's southern perimeter was partially caused because Westwood was receiving surface waters from a 56 acre parcel which adjoins Westwood on its western boundary, and that sheet flow had not been included in the original calculations for Westwood's own surface water management system or that of Canoe Creek. The other cause was the incorrect elevation of the control structure on the Westwood/Canoe Creek boundary described in the next finding. Water built up on that 56 acre parcel. It first caused a separate breach in the western perimeter berm of Westwood, and the additional volume of water entering Westwood overloaded Westwood's system, and in turn caused the breach on the south of Westwood's property, resulting in the unauthorized discharge into Bessey Creek. After investigation, Westwood's consulting engineer also found that the outfall structure for the Westwood system had been installed too high, and therefore was not operating correctly. One of the internal pipes had been constructed three tenths of one foot too low, which permitted water to flow in the opposite direction than it had been designed for, which impeded the operation of the system and caused water to back up on the Westwood property. That construction deficiency in the Westwood system has been corrected. Relation with Canoe Creek Subdivision. The available topographic information shows that, in general, the historic natural flow of water over the entire area in issue moves in an easterly and southeasterly direction. This has been recognized to some extent in the surface water management permits issued to both the Canoe Creek and Westwood projects, for their surface water management systems were permitted as integrated systems. The Westwood permit in effect since 1980 authorizes a peak discharge of 21 cubic feet of water per second (CFS) through the weir structure at the subdivisions' common boundary, which is consistent with criteria applicable to the entire C-23 basin. The system is a cascading one, from the 56 acre parcel, through Westwood to Canoe Creek. Water ultimately flows through the Canoe Creek surface water management system down a swale into the Canoe Creek Lake, and from there easterly to a ditch along side West Murphy Road, and then flows south into Bessey Creek. A perpetual easement for drainage and utility purposes had been granted by the developer of Canoe Creek Subdivision, Dean Development, to Westwood's predecessor-in-title on December 17, 1979. The easement covers the 20-foot by a 485-foot swale from the Westwood discharge structure at Canoe Creek's western boundary extending easterly into the Canoe Creek Lake. Relationship with Crane Creek and Bessey Creek. There are other streams in the area which also drain into Canal C-23, such as Crane Creek which is to the south of Westwood. The District has never authorized discharges of water from the Westwood or Canoe Creek areas south into Crane Creek. Proposed modification. Westwood's application to modify its own permit was largely based on the backwater analysis of Westwood's consulting engineer, which calculates the effect of maximum design loadings or flows on the system. That analysis showed that improvements were required both to the Westwood and Canoe Creek surface water management systems to take into account the increased volume of water which was flowing into the Westwood system from the 56 acres beyond the Westwood property. His suggested modifications include raising by six inches the catch basin at the western boundary of Westwood, which intercepts the flow from the tributary 56 acres, in order to impound more water off-site. The second modification was that the crest of the outfall structure from the Westwood subdivision into Canoe Creek be lowered from 12.1 feet NGVD to 11.8 feet NGVD, that the bleeders be lowered from 11.5 feet NGVD to 11.3 feet NGVD and that four (4) bleeders be used. This would alleviate one of the problems that contributed to the breach in the south perimeter berm. The peak discharge from the 56 acres to Westwood during a design storm event would be 3.4 cubic feet per second. The Canoe Creek system also requires modifications. These include the installation of additional culverts under the subdivision's entrance road and West Murphy road, regrading the swales running from the Canoe Creek Lake to lower their cross-section and improve their water carrying capacity, and widening of the weir to 6.1 feet. This would allow the integrated Westwood and Canoe Creek systems a peak discharge rate of 21.3 CFS each during a 10-year/72- hour design storm event. The peak discharge from the entire drainage area of 223.7 acres is about 34 CFS, not the combined peak dicharges from both systems of 42.6 CFS. (See, T. 680). This occurs because the Canoe Creek system will not reach its peak discharge at the same time the Westwood system reaches its own peak. The Canoe Creek system reaches its peak well before the 21 CFS peak flow from the Westwood system arrives. The entire system will retain a portion of the design storm rainfall and runoff. This is due to predischarge detention on each site, and the design of the swales and lakes on both properties. Canoe Creek Permit. History of the Permit. The District construction and operation permit for the Canoe Creek Subdivision, 43-00135-S was issued for phase 1 (48.3 acres) on June 7, 1979. Its discharge was to occur through two 3.5-foot wide weirs with crest elevations of 10.15 feet NGVD, and V-notches with invert elevations at 9.0 feet NGVD. The ultimate discharge was to be into Canal 23, via Bessey Creek and a drainage ditch. Special Condition 4 of the permit is that operation of the Canoe Creek surface water management system "will be the responsibility of Canoe Creek Homeowner's Association." The Canoe Creek permit was modified on August 6, 1981, to include another 37.3 acres, which was phase 2 of the Canoe Creek Subdivision. The control structure was modified to be one 5-foot wide weir with a crest elevation of 10.25 feet NGVD and one 40 degree V-notch with an invert elevation at 9.0 feet NGVD. The discharge route remained the same. The District issued a Notice of Deficiency to Canoe Creek on March 3, 1989, because the District's field staff had found that the control structures, as well as the conveyance system, were not constructed in accordance with the surface water management permit specifications. The swales had been allowed to deteriorate and become obstructed. The weirs were only 3.8 feet wide and had 52-degree V-notches. They had been permitted as a 5.0 feet wide weir with a 40- degree V-notch. The problem with the width of the control structures was easily corrected, however. Hydrological relationship with Westwood subdivision. The Canoe Creek developer, Dean Development Company/Arthur Quinn, granted an easement to Westwood to drain its surface water into Canoe Creek. See, Finding 11, above. Canoe Creek argues that the parties intended to limit the easement for drainage from Westwood into Canoe Creek for a nine acre wetland on the western boundary of Canoe Creek. The more reasonable interpretation of the easement is that the parties meant to recognize and allow for the historic water flow in the area. The historic sheetwater flow runs from the 56 acres to the west of Westwood, across Westwood, and finally across the land which is now the Canoe Creek subdivision before it flows into Bessey Creek. The original surface water management permit issued by the District for the Westwood property on February 14, 1980, and all subsequent amendments to it, have authorized Westwood to discharge up to 21 CFS of water into Canoe Creek through a control structure located on Westwood's eastern boundary. The most recent amendment to the Westwood permit has the same peak discharge into the Canoe Creek system of 21 CFS during a 10-year/72 hour design storm event. Historic Basin Flows. Boundary and Direction of Historic Surface Flows in the Canoe Creek/Westwood Basin. A determination of the historic surface water flows in the basin is important under the District's criteria for granting or modifying surface water permits, which is known as the District's "Basis of Review." That document is part of Vol. IV, the District's Permit Information Manual and is incorporated by reference in District rules. The District generally intends to permit surface water flows which approximate the runoff from a parcel in its undisturbed or natural state. It is not necessary for an applicant to attempt to determine historic water flows where an allowable discharge rate has been developed by the U.S. Army Corps of Engineers for a basin. The rate determined for the C-23 basin is 31.5 cubic feet of water per second per square mile. This maximum allowable discharge rate applies to all projects in the C-23 basin. Basis of Review, Appendix 2, page B-30. This approximates the historic rate of surface water flow over the lands which comprise the C-23 basin during design storm conditions. In an effort to determine what caused the unauthorized discharge from Westwood's southern boundary into Bessey Creek in August 1988, the consulting engineer retained by Westwood, Mr. Searcy, walked the site. Based on his actual inspection, he found that a tributary area of 56 acres immediately west of Westwood contribute sheet flows to the Westwood subdivision. In general, the land west of Westwood has an elevation of about 13 feet. Elevation declines across Westwood and Canoe Creek, where at the eastern boundard of Canoe Ceek the elevation is about 7 feet. Essentially the elevation tilts from west to east. Mr. Searcy actually prepared a topographical map from survey data as an aid to analysis of the site surface water characteristics. This site specific data is persuasive. It supports Mr. Searcy's determination that sheet flow from the 56 acres to the west of Westwood did not flow south into Crane Creek or into some other tributary of Bessey Creek. Topographical data shows a relatively high area at the south end of the Westwood property which would prohibit flows to the south except for a very small area. The 56 acre parcel to the west is essentially a wetland, and when it overflows the discharge would go through the southern half of what now is the Westwood subdivision, flow through a series of wetlands within Westwood and ultimately to the east into the Canoe Creek subdivision. Review of aerial photography and USGS Quad sheets are consistent with Mr. Searcy's analysis. The mere existence of the easement across Canoe Creek's land is not a highly persuasive indicator of historic waterflows, because developers generally tend to force sheet water from the center of developments to their perimeters and discharge the flow from point sources. Mr. Mathers' testimony for Canoe Creek was less persuasive than that of Mr. Searcy because Mr. Searcy's testimony was, to a large extent, based on the topographic map of the area which he had prepared. In contrast, Mr. Mathers' testimony was based on his interpretation of aerial photographs. Inferences from those photos are necessarily more general and less reliable then information developed from on-site measurement. Mr. Mathers relied, to some extent, on older topographic or coastal geodetic maps, which are not always accurate when they are used to make determinations about small acreages in large map areas. Mr. Mathers also had not been on the site during flood conditions. As noted in Finding of Fact 18, above, The U.S. Army Corps of Engineers has computed the historic flow volume of water flowing across land in the Canal 23 basin. According to District rules, when evaluating whether a system is capable of handling a volume of run-off, these Corps of Engineers' calculations must be used, rather than attempting to assess and compare predevelopment versus postdevelopment run-off. Permit Information Manual, Vol. IV, Part B, Appendix 2, at page B-30 and Part C (IX) Design Drainage Basins, at page C-IX-1. The modifications in the surface water management systems proposed for Westwood and Canoe Creek would satisfy the C-23 basin criteria. V. Whether modification should be required. This question has two aspects: what are the deficiencies of the current situation, and what are the benefits of the changes proposed for the current system. These are discussed in subheadings A and B below. Current system's inconsistency with objectives of the District. Without surface water management system modifications, the Canoe Creek system does not provide the required level of flood protection for the area, and therefore can be characterized as constituting a danger to the public health or safety. The objectives of the District are found in Chapter 373, Florida Statutes, and Chapter 40E-4, Florida Administrative Code. The major objective of the District is to prevent damage from flooding. If a project meets the District's permitting criteria it is consistent with the objectives of the District. If a project does not comply with the permitting criteria, it is presumed to be inconsistent with the objectives of the District. Lack of flood protection and drainage, Rule 40E- 4.301(1)(a). 24. The backwater analysis of the Canoe Creek surface water system shows that it has insufficient capacity to convey surface water out of the system during design storm conditions. This creates a likehood that surface waters originating in Westwood and the 56 tributary acres to the west will cause flooding during heavy rains, such as rains which approximate the 10-year/72-hour design storm events. Inadequate flooding protection of the system is a potential nuisance. Ineffective operation and maintenance, Rule 40E- 4.301(1)(f). 25. The Canoe Creek surface water management system has not been maintained as it was originally permitted. It is not uncommon in residential subdivisions for roadside swales to become filled in or obstructed by a driveway construction. The conveyance swales downstream of the Canoe Creek lake's control structure have become filled with a height of material so that the swale is now higher than the control structural itself, which prevents the structure from functioning properly. Though a homeowner did testify the subdivision had recently caused the excavation of some of the material in the swale so that the control structure would be able to function, there is insufficient evidence that the work done restored the swale to its original permit conditions. Properly graded swales are necessary for the system to function as designed. Adverse effects on public health and safety, Rule 40E- 4.301(1)(g). 26. The current Canoe Creek surface water management system does not meet applicable District criteria for design storm events, which means it constitutes a flood hazard, and therefore a threat to public health and safety. Inconsistency with state water policy, Rule 40E- 4.301(1)(h). 27. The failure to meet District design criteria for flood control and drainage also means that the current Canoe Creek system is not consistent with state water policy or applicable basin criteria. Inconsistency with applicable basin criteria, Rule 40E- 4.301(1)(j). The current Canoe Creek system does not meet applicable basin criteria as shown by the Searcy backwater analysis, but if it is modified as proposed, the system will meet those criteria. Facts which show that the modifications proposed will be consistent with District objectives. If modified as proposed, the backwater analysis performed by Mr. Searcy on the modified system, flood routings, hydrographs, and other evidence provide reasonable assurances that the modified Canoe Creek system will meet the criteria found in the District's Basis of Review for Surface Water Management Permit Applications. Flood protection and drainage, Rule 40E-4.301(1)(a). 30. If modified as proposed, the combined Westwood/Canoe Creek surface water management system will provide adequate flood protection and drainage, as shown by the backwater analysis. Absence of adverse water quality and quantity impacts on receiving waters and adjacent lands, Rule 40E-4.301(1)(b). 31. If modified, the Westwood surface water management system and Canoe Creek system will be able to handle their own waters and those from the 56 acre tributary area. Postdevelopment discharge will not exceed predevelopment discharges when measured by applicable C-23 basin criteria of 31.5 CFS per square mile. Water quality treatment is provided by the volume of water detained in the lakes and swales over time and by the incorporation of "best management practices" in the system, including the use of swales and wetlands as part of the treatment system. The increased volumes of water the system will handle, and the marginally increased velocity which comes with the increased water flowing through the system, will not affect water quality. Water quality is assured through the system's detention and storage requirements. Elevations of the control structure are unaltered, so there should be little, if any, increases in water velocity. Detention and storage also is accomplished through the control elevations of the structures in the system, which are not being changed in Canoe Creek. Absence of adverse impacts on surface and ground water levels and flows, Rule 40E-4.301(1)(d). 32. No control elevations within the Canoe Creek surface water management system will be changed, although the weir will be widened. There will be no impact on groundwater levels and flows. Even when regraded, Canoe Creek's existing swales will still be above the seasonal high ground water table. There would be no interchange of ground water with water detained in the swales above ground. Absence adverse environmental impacts, Rule 40E- 4.301(1)(e). 33. No modifications are proposed in the wetlands (lakes) on Canoe Creek's property, and no control elevations are being changed. There should be no adverse environmental impacts as measured by District criteria. Effective operation and maintenance, Rule 40E- 4.301(1)(f). 34. While the existing system has not been effectively maintained, nothing about the proposed modifications will impose any additional burden on Canoe Creek in creating and carrying out an effective maintenance program once the required changes are made. Absence of adverse effects on public health and safety, Rule 40E-4.301(1)(g). 35. Better flood protection and drainage will enhance public health and safety. There will be no impact on potable water supplies as there is no persuasive evidence that water tables in a cone of depression are being affected or altered. District criteria for separation will not be violated, for there is no wet detention system currently permitted in the Canoe Creek system, and none would be created. The testimony of Mr. Unsell in this regard was persuasive (Tr. 232, 305-06, 328). None of the excavation from the regrading of the swales on Canoe Creek's property would intrude into a seasonal high water table of groundwater, or cause a mixing of ground water with surface waters being retained or directed in the system. Since there is no wet detention, the requirement of Section 3.2.2.4 of the Basis of Review, that wet detention areas be separated from public water supply wells by 300 feet, will not be violated. Consistency with state water policy, Rule 40E- 4.301(1)(h). 36. This factor is not implicated in the proposed modifications, for nothing about the proposed modifications of the Canoe Creek surface water management permit would be inconsistent with state water policy. Meets applicable basin criteria, Rule 40E-4.301(1)(j). 37. The testimony of District staff, and of the expert for Westwood are persuasive that the drainage criteria for the Canal 23 basin are satisfied by the proposed modifications. Will not harm district water resources or interfere with the legal rights of others as defined in Rule 17-40.07, Rule 40E-4.301(1)(k). 38. The modifications will result in no harm to water resources of the District. There will be no interference with legal rights of others as defined in Rule 17-40.07, Florida Administrative Code, because that rule of the Department of Environmental Regulation has been repealed. See, Rule 17-40.404, Florida Administrative Code. In addition, the issue of the effect of the modification on Canoe Creek residents has essentially been raised and decided adversely to Canoe Creek in the Westwood permit application litigation, which was recently affirmed by the Fourth District Court of Appeal. The modification is not against public policy, Rule 40E- 4.301(1)(l). 39. The foregoing findings show that the proposed modifications meet the standards found in the District Basis Of Review and Rule 40E-4, Florida Administrative Code. They are therefore consistent with public policy. Will meet the general and specific criteria in the Basis Of Review, Rule 40E-4.301(1)(m). 40. The engineering data and analysis of Mr. Searcy and the testimony the District reviewers are persuasive that the proposed modifications provide reasonable assurances that the general and specific criteria found in the District's Basis Of Review will be satisfied. The modifications are consistent with applicable flood protection, drainage, and water quality criteria. Isolated wetlands, Rule 40E-40.301(1)(n). 41. The hydrologic function of existing wetlands on both the Canoe Creek and Westwood property will be preserved if the proposed modifications are made. They will have no impact on other wetlands. Criteria for above ground impoundments, Rule 40E- 4.301(1)(o). The proposed modifications will meet all design criteria found in the District's Basis Of Review. This is shown by the flood routings and backwater analysis of the existing and proposed systems. This issue also has already been litigated by Canoe Creek in the Westwood permit application case, which was decided adversely to its position there, and the final order in that case was affirmed by the Fourth District Court Appeal.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the modifications to the Canoe Creek Surface Water Management permit number 43-00135-S made in the District's administrative complaint and order/notice of intended modification be granted. DONE and ENTERED this 31st day of July, 1991, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 1991. APPENDIX TO RECOMMENDED ORDER Rulings on the findings proposed by South Florida Water Management District: 1. - 4. Discussed in the Preliminary Statement. Adopted in Finding 3. Adopted in Finding 4. Adopted in Finding 5. Adopted in Finding 6. Adopted in Finding 7. Adopted in Findings 7 and 8. Adopted in Finding 10. and 13. Adopted in Finding 10. Adopted in Finding 12. Adopted in Finding 13. Adopted in Finding 14. and 18. Adopted in Finding 15. 19. and 20. Adopted in Finding 16. Adopted in Finding 17. Adopted in Finding 11. Adopted in Finding 15. Rejected as argument. Adopted in Finding 19. Adopted in Finding 21. The remaining paragraphs are treated as if they had been numbered. Adopted in Finding 24. Adopted in Finding 23. Adopted in Finding 24. Adopted in Finding 26. Adopted in Finding 27. and 33. Adopted in Finding 28. Adopted in Finding 29. Adopted in Finding 30. - 38. Adopted in Finding 31. 39. Adopted in Finding 32. 40. Adopted in Finding 33. 41. Adopted in Finding 34. 42. Adopted in Finding 35. 43. Adopted in Finding 36. 44. Adopted in Finding 37. 45. Adopted in Finding 38. 46. Adopted in Finding 39. 47. Adopted in Finding 40. 48. Adopted in Finding 41. 49. Adopted in Finding 40. Rulings on the findings proposed by Westwood: 1. - 7. Discussed in Preliminary Statement. Adopted in Findings 3 and 4. Adopted in Findings 10 and 17. Adopted in Findings 7 and 8. Adopted in Finding 9. Adopted in Findings 4 and 9. Adopted in Findings 10 and 11. Adopted in Findings 3 and 4. Adopted in Findings 8 and 10. Adopted in Finding 12. Adopted in Finding 13. Adopted in Finding 14. Adopted in Findings 10 and 15. Adopted in Finding 16. Adopted in Findings 10 and 17. Adopted in Findings 10, 17 and 19. Rejected as unnecessary. Adopted in Findings 10, 17 and 19. Adopted in Finding 15. Adopted in Finding 2, except for the final two sentences which are rejected as unnecessary. Adopted in Findings 12 and 19. Adopted in Findings 18 and 19. Adopted in Finding 20. Adopted in Findings 18 and 21. and 32. Adopted in Finding 23. Adopted in Finding 22. Rejected as unnecessary. Adopted in Finding 24. Adopted in Finding 25. Adopted in Finding 26. Adopted in Finding 27. Adopted in Finding 28. Adopted in Findings 27 and 28. Adopted in Finding 29. Adopted in Finding 30. - 45. Adopted in Finding 31. Adopted in Finding 32. Adopted in Finding 33. Adopted in Finding 34. Adopted in Finding 35. Adopted in Finding 36. Adopted in Finding 37. Discussed in Finding 38. Adopted in Finding 39. Adopted in Finding 40. Adopted in Finding 41. - 58. Rejected as redundant. Rulings on the findings proposed by Canoe Creek: Adopted in the Preliminary Statement. Adopted in Findings 3 through 7. Adopted in Finding 15. and 5. Rejected as irrelevant. The acreage drained according to the permit is consistent with the application made to the District, but not with the historic sheet flow. Rejected. The project was not constructed properly, see, Finding 25. Sentence one adopted in Finding 11. Sentence 2 and proposed finding 8 are rejected for the reasons stated in Finding 17. Adopted in Finding 14. Rejected as unnecessary and unpersuasive. Rejected as unnecessary. Rejected for the reasons found in Finding 18. Where there is a basin discharge rate, historic discharge is not determined for an individual parcel. Rejected. See, Findings 19 and 20. There is no Crane Creek permit in evidence, which Respondents refer to in their proposed findings as RX 181. Rejected. See, Findings 17 through 20. and 16. Rejected. See, Finding 20. Rejected as unnecessary. Generally accepted in Finding 21. Rejected because routings of the flow north or south would be inconsistent with the historic sheet water flow. and 21. Rejected. See, Findings 19 and 20. Rejected. See, Finding 17. Rejected. See, Findings 10, 17 and 19. Rejected; it is fortunate that there has not been flooding before this time. During the last heavy rain in August of 1988 there may have been no flooding because water from the western 56 acres and Westwood broke through the south of the Westwood berm and could flow south into Bessey Creek in an unauthorized manner. and 26. Adopted in Finding 23. 27. and 28. Rejected because this is not an original permit application, but an action by the District to require modification of an existing permit. It is not necessary for the District to file a permit application with itself. This modification procedure is appropriate, and focuses narrowly on the problems with the current system. Rejected as unnecessary. Rejected for the reasons given for rejecting Findings 27 and 28. Rejected. The Searcy report was generally checked by the District staff, although they did not conduct an independent analysis of their own. and 33. Rejected. See, Finding 35. Rejected. See, Findings 18 and 21. Rejected, Searcy determined that the two systems would peak at different times. See, Finding 14. Rejected, there will be no turbidity problems because there is no increase in velocity of the water. See, Finding 31. Also, there is no additional peak flow of water, see, Finding 14. The peak flow from Westwood remains 21 CFS. Rejected. See, Finding 34. Rejected. See, Finding 35. Rejected. See, Finding 39. Rejected. See, Finding 35. Rejected. See, Finding 34. Rejected as a conclusion of law, but the standards found in Rule 40E- 4.301 are applicable. Rejected as unnecessary. and 45. Rejected as argument, not a finding of fact. Rejected because the developer of Canoe Creek, the developer of Westwood, and the District were mistaken in designing their surface water management systems by not including drainage from the 56 acres to the west of Westwood. The system is inconsistent with the District objectives. It is fortunate that the system has not flooded yet, but if not changed, it will. The discharge of water which took place in August of 1988 from the south perimeter of Westwood will no longer take place. Even if the August of 1988 storm was not the equivalent of a design storm, when a design storm occurs, the current system will be proven to be inadequate by sad experience. Rejected because the testimony of Mr. Searcy was more persuasive. Rejected because the testimony of Mr. Feinstein was unpersuasive. See also, Finding 14. Rejected. See, Finding 35. Rejected. See, Findings 31-33. Rejected as unnecessary, the knowledge of Mr. Unsell is not determinative. Rejected as redundant. Rejected. See, Findings 23 and 24. In a design storm, the proposed modifications will protect Canoe Creek from flooding. The current system will not accommodate historic water flows. Rejected because the routing in the modification reflects the historical water flow. Rejected. See, Finding 12. Rejected as unnecessary. Rejected because the historic water flow is not north to Mid-Rivers or south to Rustic Hills. Rejected as inconsistent with the historic flow. and 61. Rejected, the testimony of Mr. Searcy was more persuasive, See, e.g., Tr. at 661. Rejected. I am not persuaded that improvements to the northern route of Canoe Creek are needed. and 64. Rejected as redundant. Rejected as unnecessary. Rejected because Rule 40E-4.301(1)(k) does not apply, See, Finding 38. COPIES FURNISHED: John J. Fumero, Esquire 3301 Gun Club Road Post Office Box 24680 West Palm Beach, Florida 33416 Manuel Farach, Esquire Post Office Box 778 Stuart, Florida 3499-50778 Don Mooers Qualified Representative Post Office Box 1147 Palm City, Florida 34990 Terry E. Lewis, Esquire Robert P. Diffenderfer, Esquire Messer, Vickers, Caparello, French, Madsen & Lewis, P.A. 2000 Palm Beach Lakes Boulevard Suite 900 West Palm Beach, Florida 33409 John Wodraska, Executive Director South Florida Water Management District Post Office Box 24680 West Palm Beach, Florida 33416 Daniel H. Thompson, General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Findings Of Fact Respondent, Studebaker's Restaurant (Respondent), owns a 50's theme bar in Clearwater which offers entertainment and dancing and serves alcoholic beverages and food. Studebaker's has a nationwide policy, also followed at the Clearwater establishment, of restricting admittance to persons aged 23 and older. In the same building housing the Clearwater Studebaker's, Respondent also owns and operates a theme bar called the Palm Beach Club which is under common management and which is operated like Studebaker's except that the theme and music is contemporary and anyone who has attained the legal drinking age is allowed admittance. Petitioner, Ronald M. McElrath, is the coordinator for the Community Relations Board established under Chapter 99 of the City of Clearwater Code. He is approximately 38 years of age. In May or June 1985, McElrath witnessed an employee of the Clearwater Studebaker's refusing admission to a female on the basis that she was not at least 23 years of age. Investigating further, McElrath verified through the manager of the Clearwater Studebaker's that Respondent did have a policy restricting admission to the Clearwater Studebaker's to persons at least 23 years of age. Based on McElrath's knowledge and information, McElrath and the Community Relations Board attempted to conciliate with Respondent the alleged conflict between Respondent's age policy at the Clearwater Studebaker's and Chapter 99 of the City of Clearwater Code. By November 13, 1985, McElrath and the Community Relations Board concluded that their attempts at conciliation would not be successful, and the Community Relations Board filed a charge of discrimination against Respondent. That charge of discrimination was referred to the Division of Administrative Hearings and assigned Case No. 85-3513. On or about February 11, 1986, Case No. 85-3513 was dismissed and the file closed based upon the Community Relations Board's report that it was withdrawing its petition in the case and that an individual other than the Community Relations Board would file a separate petition as Charging Party. Actually, on or about January 9, 1986, McElrath, in his capacity as coordinator for the Community Relations Board, had filed a Supplemental Charge Of Discrimination against Respondent on the same alleged facts that formed the basis of Case No. 85-3513. McElrath's Supplemental Charge Of Discrimination was referred to the Division of Administrative Hearings on or about February 4, 1986, resulting in this case. McElrath has never attempted to file any other complaint under Chapter 99 of the City of Clearwater Code in his capacity as coordinator for the Community Relations Board. Because no further investigation was necessary and no further attempts to conciliate were reasonably likely to succeed, McElrath made no further investigation and made no further attempts to conciliate with Respondent after filing the Supplemental Charge Of Discrimination. Before filing of the Supplemental Charge Of Discrimination in this case, McElrath did not make a formal probable cause determination and did not serve notice of determination of probable cause on the Respondent. Respondent and its management has a commendable and appropriately implemented policy of being a responsible seller of alcoholic beverages for consumption on the premises. However, contrary to Respondent's assertions in this case, the policy of allowing only persons 23 years of age and older in the Clearwater Studebaker's is not significantly motivated by a desire to reduce alcohol-related traffic accidents. The primary motivation for the age limit is to establish and maintain an economically successful theme bar. Any contribution towards reducing alcohol related traffic accidents is an after thought rationalization. This was proven by Respondent's willingness to divert patrons younger than 23 next door to its Palm Beach Club where Respondent willingly serves them alcoholic beverages for consumption on the premises.
The Issue Is an Agency that settles a challenge to its denial of a license by agreeing to issue the license a "non-prevailing adverse party," as defined by section 120.595(1)(e)3., Florida Statutes (2019)? 1
Findings Of Fact The Commission denied an application by Mr. Lightsey for issuance of a Hunt Preserve License. A letter titled "Amended Notice of Denial" (Amended Notice), signed by Major Rob Beaton, Division of Law Enforcement, advised Mr. Lightsey that the Commission intended to deny his application. The Amended Notice included this dispositive paragraph: "Due to the facts stated above, pursuant to 68-1.010, F.A.C, your application for a HPL has been denied. We are processing your application fee for a refund, and you should receive it within 21 days." The Amended Notice also advised Mr. Lightsey of his right to request a hearing to challenge the intended decision. Mr. Lightsey challenged the proposed denial and requested a formal administrative hearing. Mr. Lightsey brought his challenge under section 120.57(1), which creates a right to a formal hearing to dispute a proposed agency action. The Commission referred the matter to the Division for assignment of an Administrative Law Judge and conduct of the hearing. The parties settled the licensing dispute before the hearing. Their settlement agreement provided for the Commission issuing each of the denied licenses. The parties' agreement also provided for severing the attorney's fees and costs claim, leaving it pending for the Division to resolve if the parties could not agree. The order closing the file in this case severed the fees and costs claim and reserved jurisdiction over it. The parties could not agree. The division re-opened the fees case as DOAH Case No. 19-5210F. This proceeding followed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned recommends that The Florida Fish and Wildlife Conservation Commission enter its Final Order denying Petitioner's Motion for Fees and Costs under section 120.595, Florida Statutes. DONE AND ENTERED this 31st day of March, 2020, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 31st day of March, 2020. COPIES FURNISHED: Bert J. Harris, Esquire Swaine, Harris & Wohl, P.A. 401 Dal Hall Boulevard Lake Placid, Florida 33852 (eServed) Bridget Kelly McDonnell, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Joseph Yauger Whealdon, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Sharmin Royette Hibbert, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399 (eServed) Eric Sutton, Executive Director Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Emily Norton, General Counsel Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed)
