The Issue The issue is whether a Consent Order executed by Respondents on March 25, 2010, and by the Department of Environmental Protection (Department) and the Board of Trustees of the Internal Improvement Trust Fund (Board) on April 1, 2010, is a reasonable exercise of the Department's enforcement authority.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: History of the Proceeding A lengthy history precedes the execution of the Consent Order and can be summarized as follows. Shannon Sue, LLC (Shannon Sue) is a Florida limited liability company and the current owner of property located at 18261 Southeast Federal Highway, Tequesta, Florida, just north of the Martin County-Palm Beach County line. The property consists of 0.482 acres, is on the western bank of the Indian River Lagoon, and is adjacent to the Jensen Beach - Jupiter Inlet Aquatic Preserve, an Outstanding Florida Water. A commercial marina has been located on the upland property since at least the mid or late-1980s. The Department has the power and duty to administer and enforce Chapters 373, 376, and 403, Florida Statutes (2009),2 and the rules promulgated thereunder, including Chapter 62-780. The marina lies within the District Office's regulatory jurisdiction. MABE is a Florida limited liability corporation with its principal place of business in Martin County. It owns a small parcel of property located at 18245 Southeast Federal Highway, Tequesta, which is adjacent to, and immediately north of, the marina. Edmund Brennen is an officer and director of MABE and has resided at that site for twenty years. Besides his residence, Mr. Brennan has two boat slips for rent and two floors of commercial office space on the property, which is zoned commercial/residential. Over the last twenty years, MABE has had tenants who have historically used the dock and the aquatic preserve for fishing, boating, and other recreational activities. Although currently vacant, MABE plans to continue to lease its property to residential or commercial tenants. Shannon Sue currently leases the marina property to Jupiter Hills Lighthouse Marina, Inc. (JHLM), a Florida corporation with its principal place of business in Martin County. JHLM has operated the marina since at least the 1990s. The property was owned by John and Barbara Canonico (husband and wife), as Trustees of the Barbara Canonico Revocable Trust, from 1988 until November 21, 2002, when title was transferred to Shannon Sue. John Canonico is an officer, director, and registered agent of JHLM and Barbara Canonico is a manager and registered agent of Shannon Sue. The record reflects that a dock and slips were located on the property for a number of years. On July 29, 1992, JHLM applied for a wetland resource permit to expand the existing dock to provide for additional mooring and to substantially reconfigure the existing dock. On December 13, 1994, the Department issued an Intent to Issue Permit No. 432170499 (Permit) to JHLM allowing the expansion of the existing dock from 6 to 18 slips. See Petitioner's Exhibit 1.3 The Permit was eventually issued on July 1, 1996. See Petitioner's Exhibit 2. The Permit included a number of general and specific conditions, including Specific Conditions 8 and 12, which required the installation of a stormwater exfiltration system to provide treatment for the first inch of runoff, and prohibited any boat maintenance or repair activities except those that were "minor" or necessitated by "emergency conditions." There is no record of any objection to the issuance of the permit being filed by any person. Although authorized to do so, for unknown reasons, JHLM did not make the changes authorized by the Permit. In March 1998, it submitted a new application for a Standard General Environmental Resource Permit (ERP) seeking to expand the number of wet slips from six to twelve and to reconfigure the existing dock. See Petitioner's Exhibit 3. One-half of the slips would be used by powerboats while the other six would be for sailboat mooring only. Under the new permit, the applicant would be allowed to remove the existing docks and construct a new access dock and terminal platform and add six new finger piers. On August 16, 1999, the Department approved the application and issued Standard General ERP No. 43-0114838-001. See Petitioner's Exhibit 4. Like Specific Condition 8 in the 1996 permit, Specific Condition 14 was included in the new permit for the purpose of improving water quality and required the applicant to "install a stormwater exfiltration system" to "provide treatment for [the first inch of runoff from] all paved surfaces on the property." The system was to be constructed and certified as complete by a registered professional engineer before the permit became effective; it was to be cleaned monthly or after major rainfall events and inspected annually by a professional engineer; and annual reports were to be filed each year by that engineer. Also, Specific Condition 24 prohibited any boat repair work other than minor or emergency repairs. Acting on behalf of the Board, which has the responsibility for overseeing state owned lands, the Department also entered into a five-year lease with the Canonico Trustees (Trustees) to use sovereign submerged lands. See Petitioner's Exhibit 5. Among others, Condition 1 of the lease specifically prohibited the mooring of commercial vessels at the facility. Id. Again, the Permit was not opposed by any third party. In 2001, Chris Baker, identified as a "purchaser of the site" but more than likely a prospective purchaser, authorized a firm known as Environmental Matters to conduct a "Phase I and Limited Phase II Environmental Site Assessment" of the property. The consultant's Environmental Assessment Report (Report), dated June 2001, indicated, among other things, that there were concentrations of metals and petroleum hydrocarbons on the site; that some of the concentrations exceeded Department standards; that the soils were "contaminated throughout the Site"; an abandoned water well and septic tank system were on the site; and that a 1,000-gallon aboveground unleaded gasoline storage tank had been installed in 2001 without the required secondary containment, but no leaks were observed. See Petitioner's Exhibit 38. The report noted that during the assessment, Mr. Canonico acknowledged that all types of boat maintenance took place on the site, including scraping boat hulls, and that the waste was discharged (or allowed to run off) into the basin. On March 14, 2003, former counsel for MABE sent a three-page letter to the District Office advising that since JHLM received a permit in 1994, the marina had been operated in a manner that constituted violations of the permit conditions and lease. The letter described in detail what the author perceived to be violations of the law. In addition, a copy of the 2001 Report was enclosed with the letter. The letter asked that the Department initiate an enforcement action against the marina and that the unlawful practices be halted. A Department memorandum dated March 28, 2003, indicates that the letter and Report were reviewed by a District employee, who considered the Report to be incomplete in certain respects, and that "without appropriate measurement tools and additional information, it is not possible to state that the site is contaminated based upon the sludge analysis." See Petitioner's Exhibit 37. The memorandum conceded, however, that further investigation was needed and that the report "provides an indication of a petroleum related discharge." Id. The memorandum recommended that JHLM be given a copy of the Report and the District Office memorandum, that JHLM submit a Discharge Reporting Form pursuant to Rule 62-761.900(1), that the marina's stormwater drain be cleaned, and that JHLM contact the District Office to discuss the voluntary implementation of Best Management Practices for on-site operations. Id. Because the Report "[had] no laboratory reports and no method detection limits," the District Office decided not to conduct any follow- up inspections of the marina property at that time. In response to the Department's memorandum and Report, on June 3, 2003, Mr. Canonico filed a Discharge Report Form indicating that there was "no known discharge" on the property. He also enclosed a copy of a letter he signed on December 7, 1994, presumably in conjunction with his application for Permit No. 432170499, in which he described the maintenance schedule for the facility's stormwater exfiltration system and agreed to conform to that schedule, as generally required by Specific Condition 7 of the original permit. Also, on August 5, 2003, the facility's contractor advised the District Office by letter that "[t]he work authorized in Permit #43-0114834-001 has [been] commenced and completed in full, with the exception of the demolition of the finger pier, which we seek to remain." See Petitioner's Exhibit 6. This was probably in reference to the facility's intent to file an application to modify its 1999 ERP. There is no indication that any further action was taken by the Department in response to the MABE complaint. In November 2003, JHLM filed an application with the District Office seeking to modify its 1999 ERP by allowing an existing 4-foot by 24-foot finger pier to remain in place (the 1999 ERP required that it be removed), and to install a retractable wheelchair ramp to allow vessel access for wheel- chair bound individuals. The application was unopposed. On January 22, 2004, the Department approved the application. See Petitioner's Exhibit 7. Except for the addition of three specific conditions (32, 33, and 34), all other terms and conditions remained the same. Id. The finger pier was intended to be used for passenger loading of rental vessels stored on the uplands. Even though ownership of the property had been transferred to Shannon Sue in 2002, on August 26, 2004, the Department, on behalf of the Board, renewed submerged land lease 43003006 with the Trustees for another ten years, or until August 16, 2014. See Petitioner's Exhibit 8. The renewed lease contains the same terms and conditions as the 1999 lease, including the condition that the facility be restricted to mooring recreational vessels. On July 3, 2008, MABE, through its former counsel, sent the Department a verified complaint against the marina under Section 403.412, Florida Statutes (2008). See Petitioner's Exhibit 25. The complaint sought to compel the Department to take action to address alleged violations of the ERP conditions and the submerged land lease. Under the statute, an agency has 30 days after receipt of a complaint in which "to take appropriate action" against the alleged violator, or the complaining party may then institute judicial proceedings. Following receipt of the complaint, on July 10, 2008, representatives of the District Office conducted an inspection of the marina property. The case manager was Donald H. Keirn, Jr., an Environmental Specialist III, who is responsible for, among other things, compliance enforcement in a large, heavily- populated multi-county area. Another inspection was conducted on July 22, 2008. During those visits, Mr. Keirn noted significant evidence of major boat repairs on the premises, freshly spilled oil, and hull scraping. In fact, Mr. Canonico admitted to Mr. Keirn that the facility had been performing major boat repairs since the original permit had been issued. Based on these inspections, on July 29, 2008, the District Office initiated an enforcement action by sending a Warning Letter to the Canonicos advising them that Specific Conditions 11, 14, 15, and 24 of the ERP had been violated, and that the lease of submerged lands must be transferred to the current owner. See Petitioner's Exhibit 9. Condition 11 required the placement of channel markers; Conditions 14 and 15 required an exfiltration system to be constructed, certified by a professional engineer as complete as indicated on the permit drawings, maintained for the life of the system, cleaned monthly, and inspected by a professional engineer annually with follow-up annual reports; and Condition 24 prohibited repairs to vessels other than minor or emergency repairs, so as to prevent the discharge of hazardous materials into the aquatic preserve. The record does not show what action, if any, Respondents took after receiving the Warning Letter. Frustrated by Respondents' inaction, and their repeated disregard of Permit and Lease conditions over the years, in the fall of 2008 MABE hired an outside consulting firm (E Sciences, Inc.) to collect and analyze samples of soil and water from both the MABE property as well as Shannon Sue's property. (Authorization to enter Shannon Sue's property was pursuant to a court order.) The report was completed on October 16, 2008, and concluded that since the 2001 assessment was performed, the concentrations of petroleum and metals had increased. It further concluded that the marina activities during those years had adversely impacted the soil and sediment at both the marina and MABE's adjacent property. See Petitioner's Exhibit 37. A copy of the report was provided to both the District Office and Shannon Sue. After receiving the report, on November 14, 2008, the District Office staff conducted another inspection to "identify any potential hazardous waste material discharge(s) or source(s) of contamination at the property." The staff found evidence of leaking containers, an engine "bone yard" along the fence line with the MABE property, unlabeled containers, and stains under the fuel tank. The inspection essentially confirmed the findings of E Science, Inc.; accordingly, the District Office concluded that a Site Assessment Report (SAR) under Chapter 62- 780 was necessary in order to determine the extent of contaminants on the property. A SAR assesses and describes the extent of contamination and makes recommendations as to how to address it. On February 24, 2009, the District Office sent a letter to the Canonicos, as registered agents for Shannon Sue and JHLM, advising them that "contaminants may have been released or discharged into the environment." The letter required Shannon Sue and JHLM to initiate a site assessment within 60 days, and to file a SAR that complied with the requirements of Chapter 62-780 no later than July 13, 2009. See Petitioner's Exhibit 26. The District Office subsequently extended the due date for the SAR to October 1, 2009. By letter dated April 24, 2009, the Department also advised the Canonicos that an "ongoing investigation," preliminary to agency action, revealed the possible mooring of commercial vessels at the dock on two occasions, which was prohibited under the submerged land lease. (Based upon visual sightings confirmed by photographs, MABE had earlier advised the District Office that this occurred on a frequent basis, but subsequent inspections by the District Office resulted in only two observations of commercial vessels at the dock.) The letter further reminded the Canonicos that, pursuant to Specific Condition 24, boat repairs with the potential to discharge pollutants or hazardous substances into the adjacent waters were prohibited under the ERP. See Petitioner's Exhibit 21. As noted above, during the July 2008 inspections, Mr. Canonico admitted to Mr. Keirn that there were "multiple violations" of that condition, including multiple discharges of oil and grease associated with engine repairs. Assuming that the matter could be resolved by consent order, on November 18, 2009, Mr. Keirn submitted for review by his supervisor a "Civil Penalty Authorization Southeast Florida District," which outlined the nature of the violations observed and proposed penalties for those violations. See Petitioner's Exhibit 12. By now, additional violations had been observed through more inspections, including, as noted above, the mooring of commercial vessels at the marina; a failure by JHLM to construct an "exfiltration trench" as required by the original 1996 permit, file annual reports for that system, and regularly maintain the system; a failure to notify staff of the commencement of construction; and a failure to maintain used oil storage containers within secondary containment structures and to legibly label them. The Department has issued an Administrative Directive entitled Settlement Guidelines for Civil and Administrative Penalties (Settlement Guidelines), effective July 17, 2007, which contains guidelines that "are intended to provide a rational, fair and consistent method for determining the appropriate amount of civil and administrative penalties the Department should seek from responsible parties in settling enforcement actions." See Department Exhibit 3. They are intended only "for internal staff guidance," and the District Office is authorized "to deviate from these guidelines . . . when doing so will result in better compliance and better capability for carrying out the mission of the agency." Id. at Relying in part upon that document, Mr. Keirn recommended a $27,500.00 civil penalty for violations of permit conditions, $2,500.00 for the lease violation, and $500.00 for investigative costs, or a total civil penalty of $30,500.00. The Penalty Rationale is found on page 3 of that exhibit. This recommendation was approved by the District Office Director on December 11, 2009, and was incorporated into a proposed consent order. As pointed out by Mr. Keirn, the purpose of the proposed settlement was not to collect fines, but to restore and protect the environment. By email dated January 11, 2010, Mr. Keirn provided the Canonicos with a copy of the draft consent order. See Petitioner's Exhibit 13. He asked that they review it and be prepared to discuss the violations and penalties the following week. A series of emails between the parties ensued over the next month or so for the purpose of discussing the cited violations and related penalties. Mr. Keirn's email also advised them to "get [the SAR] in ASAP" by mail, hand-delivery, or email. The next day, January 12, 2010, the Canonicos submitted a SAR to the Department. On January 26 and February 1, 2010, the Canonicos sent emails to Mr. Keirn providing their explanation for each violation "in the hope of reducing the penalties outlined in the Consent Order." See Petitioner's Exhibits 14 and 15. One explanation for violating the prohibition against major repairs (Specific Condition 24) was a statement that the Canonicos believed that engine repairs, scraping of boat hulls, and the like were "minor" repair work. Mr. Keirn noted in an email to his supervisor that the Canonicos' proposed "amounts are seriously too low[,]" that "the statements are skewed to their position," and that "[the explanations] are not a logical reason for reduction." See Petitioner's Exhibit 15. By letter dated March 29, 2010, the Department advised the Canonicos that the SAR submitted on January 12, 2009, contained a number of deficiencies, that additional work must be undertaken, and that an Addendum to the SAR must be submitted within sixty days, or by the end of May 2010. See Petitioner's Exhibit 28. Around the same time that the Department requested an Addendum to the SAR, on March 25 and April 1, 2010, Respondents executed a Consent Order to resolve all outstanding violations. John and Barbara Canonico signed the Consent Order on behalf of the non-agency Respondents. In general terms, the Consent Order noted that Respondents collectively had failed to comply with the ERP conditions in the following respects: they failed to construct the stormwater system in accordance with the permit; they failed to maintain the stormwater system, have it inspected by an engineer on an annual basis, or have an engineer file annual reports; they repeatedly conducted non-minor repairs, maintenance, and painting of vessels resulting in unauthorized discharges of contaminants; they failed to install channel markers; they failed to notify the Department of the ownership transfer to Shannon Sue; they failed to submit written notice to the Department at least 48 hours prior to the commencement of construction of the project; they failed to limit the use of the marina to the mooring of recreational vessels; and they failed to properly contain or maintain the used oil disposal storage containers within a secondary storage structure. See Department Exhibit 2 at 3. In addition, the Consent Order noted that based upon the E Science, Inc. report, there were concentrations of total recoverable hydrocarbons in soils that would reasonably leach into groundwater; that a polluting condition had occurred; and that Respondents had failed to submit a SAR by the October 1, 2009 deadline. Id. at 4. Finally, the Consent Order noted that Shannon Sue had failed to obtain the required lease since acquiring ownership of the property in 2002. Id. Rather than imposing the $30,500.00 penalty originally recommended by Mr. Keirn, as a result of negotiations between the parties, the Department agreed to reduce the penalties in the Consent Order to $17,750.00 as settlement of the matter, including $500.00 in costs and expenses for investigating the matter. The penalties were to be paid in installments, with the first installment of $5,000.00 due immediately. This installment has been paid. The Consent Order required additional corrective action, the filing of a SAR, and the obtaining of a lease by Shannon Sue within certain timeframes. Because the Department's primary goals when resolving enforcement actions are remediation and avoiding protracted litigation rather than collecting fines, it is not unusual for a final consent order to have a lower civil penalty than that originally proposed. As explained by a Department witness, in this case its goals were (a) to avoid protracted litigation that would delay the implementation of corrective actions; (b) to require Respondents to quickly assess and begin the cleanup of contamination; (c) to restore and protect the environment as quickly as possible; and (d) to require Respondents to remove and contain all activities on the property that are prohibited by the Permit and Lease. All of these considerations were taken into account in arriving at the terms and conditions of the final Consent Order. Immediately after the Consent Order was executed, MABE timely filed its Petition challenging it on numerous grounds including a failure by the Department to address all violations in the Consent Order; a failure to recognize continuing violations; a failure to impose an adequate penalty; a failure to incorporate language into the Consent Order to ensure that all conditions will be met; and a failure to consider all relevant information at the time the Consent Order was executed. By letter dated June 29, 2010, the Department advised the Canonicos that no response to its March 29, 2010, letter had been received, and that the SAR Addendum had not yet been filed. The letter noted that even though the Consent Order had been challenged, which "placed the timeframes contained therein in a 'proposed' status," the SAR Addendum was overdue and that it must be submitted "immediately." See Petitioner's Exhibit 29. The Canonicos did not respond to this letter. At hearing, a Department employee interpreted the language in the June 29 letter to mean that until this proceeding has been concluded, the fine and corrective action are temporarily stayed. Apparently, the Canonicos have assumed the same thing and have not performed any remedial action or paid any further penalties while this action is pending. Rationale for the Consent Order The Consent Order addressed the violations described in Finding of Fact 26, supra, and required Respondents to pay a civil penalty of $2,000.00 for their failure to construct the stormwater system in accordance with the Permit. There was no negotiated reduction or increase in the $2,000.00 amount. This amount was based on a provision in the Environmental Litigation Reform Act (ELRA) codified in Section 403.121, Florida Statutes. That statute prescribes the penalties that must be imposed when the Department pursues administrative remedies for violations of Chapter 403. A Notice of Violation (NOV) must be issued to trigger the ELRA process. In this case, the ELRA process was not required since a NOV was never issued, but the Department elected to impose that penalty. The Consent Order requires Respondents to repair the stormwater system and submit to the Department an as-built certification form signed and sealed by a professional engineer that the system meets or exceeds the requirements of the permitted activity. In essence, Respondents are required to re-build the system and certify that it is built consistent with the Permit. No water quality data was introduced indicating any degradation of water quality at the marina from the exfiltration system not being built according to the Permit. To address Respondents' failure to maintain the stormwater system, inspect it, and submit reports to the Department, enforceable conditions were added to the Consent Order, including the filing of reports that the Permit did not previously contain, and a stipulated penalty of $100.00 per day for each day they fail to submit the required reports. The Consent Order requires Respondents to pay a civil penalty of $3,500.00 for their failure to maintain the stormwater system, inspect it, and submit reports to the Department. This amount was reduced in negotiations from an initial amount of $7,000.00. Exercising its discretion, the Department did not consider economic gain by Respondents in assessing the penalty. As noted earlier, the Department's primary goal in negotiating the Consent Order was to avoid a long and uncertain litigation process that would delay an enforceable order requiring Respondents to immediately implement a Chapter 62-780 waste assessment and cleanup. In order to address the finding that Respondents were conducting repairs and maintenance of vessels at the upland portion of the marina in violation of the Permit, the Department included language in the Consent Order that specifically defined a "major repair," which was not included in the existing Permit. This will make enforcement easier by clarifying any ambiguity regarding what activities are prohibited. It also required that any such activity must be conducted off-site, an additional requirement that was not included in the existing Permit. The Consent Order assessed a penalty of $5,000.00 for the finding that Respondents were conducting repairs and maintenance of vessels at the upland portion of the marina. This amount was obtained using the Settlement Guidelines. Under the Penalty Matrix in that document, which classifies violations at three levels of potential for harm (major, moderate, and minor), the violation was identified as major, resulting in an amount of $10,000.00. This amount was later reduced to $5,000.00 during negotiations. However, the Department achieved its goal of binding Respondents to an enforceable agreement that would require them to immediately implement a Chapter 62-780 assessment and cleanup. In order to address the violation that Respondents failed to install channel markers, the Consent Order contained a provision that required them to apply for the required permits and install the markers within 30 days of receipt of the permits. The Consent Order also contained a stipulated penalty paragraph where Respondents would pay $100.00 per day for each day of failing to comply with the marker requirements. The Department is not precluded by the stipulated penalties from pursuing any statutory remedies or other penalty options available to it. The Consent Order assessed a $750.00 penalty for Respondents' failure to install the channel markers, which was less than the original proposed fine of $2,000.00 based on ELRA guidelines. To avoid uncertain and costly litigation, however, and to get Respondents under an enforceable agreement to implement a Chapter 62-780 assessment and cleanup, the Department reduced the penalty. In order to address the finding that Respondents failed to notify the Department of its ownership transfer to Shannon Sue, the Consent Order required payment of $250.00. Although ELRA guidelines specified a $1,000.00 penalty, this amount was lowered during negotiations to avoid protracted litigation and to get Respondents under an enforceable agreement to implement Chapter 62-780. The Consent Order also requires submission of a $555.00 processing fee along with supporting documents for assignment of the lease to the proper party. In addition, a penalty of $500.00 was assessed for failure to obtain the required lease after ownership transfer, along with stipulated penalties of $100.00 per day for failure to do so. For Respondents' failure to notify the Department within 48 hours prior to commencing construction at the marina, there is no corrective action required. However, the Department assessed a $250.00 penalty, which was lowered during negotiations from the ELRA penalty of $1,000.00 for the reasons expressed above. For Respondents' unauthorized mooring of commercial vessels, the Consent Order requires a penalty of $2,500.00, which was based on a second violation under Rule 18-14.002(4). Although MABE submitted an affidavit, dated photographs, and testimony to establish multiple violations of the rule, the Department opted to rely only upon the two violations that its inspector observed. For Respondents' used oil violation, the Consent Order requires removal of all containers, material, or equipment at the marina that handle or contain petroleum or hazardous substances greater than one quart in quantity, unless they are maintained in their original container or an independent and secondary containment system which is designed to contain discharges to the environment and is secure from the weather. The assessed penalty of $2,000.00 was lowered from the ELRA penalty of $4,000.00 during negotiations for the reasons expressed above. To address the finding that a polluting condition had occurred at the marina and a SAR was not timely submitted, the Department negotiated an enforceable agreement that requires Respondents to commence and complete all tasks required under Chapter 62-780 within certain timelines. A penalty was not assessed because the Department desired to get Respondents under an enforceable agreement to immediately implement the assessment and cleanup corrective actions. In addition, by not imposing a fine, the violator has more resources to assess and remediate any contamination, which is often a very expensive undertaking. Under Rule 18-14.002, a person is subject to a fine of up to $10,000.00 for each offense constituting a knowing refusal to comply or a willful violation of the provisions of Chapter 253, Florida Statutes. The Department may impose fines not to exceed $2,500.00 for the first offense; otherwise, approval of the Board is required. Subsequent offenses carry a fine of $1,000.00 to $10,000.00. In this case, the Consent Order imposed a $2,500.00 fine for violation of the Lease and a $500.00 fine for violating Section 253.77, Florida Statutes. Neither fine was shown to be unreasonable under the circumstances. The penalty amounts, plus $500.00 for Department costs, were mistakenly summed as $17,750.00 in paragraph 25 of the Consent Order. The correct amount is $17,250.00. In summary, the Consent Order was issued to settle existing outstanding violations of law and requires Respondents to pay penalties, reimburse Department costs, and take corrective measures. It also establishes a framework for compliance. Taking into consideration all of the circumstances, the terms are a reasonable exercise of the Department's enforcement discretion. Having incurred substantial expenditures in legal fees and site assessment costs in attempting to bring its neighbor into compliance (which probably total much more than the civil penalties assessed against Respondents), and waiting years for the Department to take action, MABE is understandably dissatisfied with many of the terms and conditions of the Consent Order. One of MABE's concerns is that given Respondents' history of failing to comply with ERP and lease conditions for more than a decade, they will not comply with the assessment and remediation requirements of Chapter 62-780. However, the Consent Order is an enforceable agreement that compels immediate compliance with those rules. The Consent Order spells out in clear terms the ability of the Department to seek the judicial imposition of damages or civil penalties, or other appropriate relief, for any violations of the Consent Order. Because of Respondents' prior conduct, which amounted to a clear disregard of permit terms and conditions, it is presumed that the Department will respond quickly to reported violations, if any occur, and take appropriate action. MABE also questions the adequacy (and accuracy) of the penalties. As explained in the Conclusions of Law, this issue is a matter solely within the discretion of the agency. In the same vein, MABE contends that the District Office did not take into account all of the violations that have occurred over the years, made mistakes in calculating the penalties, and failed to consider the fact that Respondents have continued to violate certain Permit and Lease conditions since the enforcement action began. Although some violations were not addressed, some errors in calculating penalties were made, and in some instances multiple violations were counted as a single violation for purposes of calculating a penalty, the Consent Order requires that the violator undertake corrective actions that are designed to remediate all prior violations, strictly comply with new terms and conditions, and subject it to stern penalties should future violations occur.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order ratifying and approving Consent Order OGC No. 08-1823 as final agency action of the Department. DONE AND ENTERED this 4th day of November, 2010, in Tallahassee, Leon County, Florida. S D. 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 4th day of November, 2010.
The Issue The issues are (1) whether the St. Johns River Water Management District (District) should approve the application of Indian River County (County) for an environmental resource permit (ERP) authorizing the construction and operation of a surface water management system with stormwater treatment for the Oslo Road Boat Ramp Parking Lot; and (2) whether the District should approve the County's request for a variance from Florida Administrative Code Rule 40C-4.302(1)(c) and sections 10.1.1(c), 12.1.1(d), and 12.2.5(c) of the Applicant's Handbook: Management and Storage of Surface Waters (AH) in order to perform other related work.
Findings Of Fact The Parties The Pelican Island Audubon Society is a Florida non- profit corporation whose mission is to preserve and protect the animals, plants, and natural communities in the County through advocacy, education, and public awareness. It has more than 25 members that live in the County and has been a chapter of the Audubon Society of Florida since 1964. Dr. Richard Baker resides in the County and engages in water-based recreational activities such as canoeing, bird watching, nature photography, and fishing in the Lagoon near the boat ramp. Dr. David Cox resides in the County and engages in water-based activities such as kayaking and nature observation in the vicinity of the boat ramp. The County is the applicant for an ERP and variance for a project known as the Oslo Road Boat Ramp project. The District is the agency charged with the responsibility of regulating water resources within its geographic boundaries and to administer and enforce chapter 373, Florida Statutes, and the rules promulgated under title 40C. The Existing Oslo Road, Boat Ramp, and Lagoon Oslo Road is a County-owned road that runs in an east- west direction and intersects with U.S. Highway 1 just south of State Road 60. To the east of U.S. Highway 1, the road is paved for a short distance; the remaining portion of the road (2,460 feet) is a narrow, two-lane dirt road that dead-ends at the boat ramp. Most of the dirt road is bordered to the north and south by a mangrove swamp that extends to the edges of the road. All wetlands have been previously disturbed. The surrounding and abutting jurisdictional wetlands consist primarily of both tidal (north side) and impounded/partially tidal mangrove swamp (south side), which was created years ago by a mosquito control district in order to reduce the salt marsh mosquito population. The boat ramp is bordered to the north by a clump of red mangroves and a sparsely vegetated sandy shoreline and to the south by a dense mangrove fringe. During rain events, the dirt and sediment can wash off the road as erosion. This requires the County to continually maintain the dirt road by grading and adding marl material to bring it back up to grade. The boat ramp has been in existence for more than 50 years and is the nearest public access to the popular South County fishing areas in the Lagoon. Although there are 17 other boat ramps in the County, the closest one is six miles to the north in the City of Vero Beach. The typical users of the boat ramp are fishermen with shallow-draft boats, while the open shoreline to the north is normally used to launch canoes and kayaks and to access the river by wading fishermen. There are a number of water-based communities in the area, including one directly to the east of the boat ramp. Many boats that do not launch at the boat ramp use the nearby seagrass beds as a fishing destination. The boat ramp has a dirt cul-de-sac, a concrete boat ramp with finger piers, and is surrounded by the Lagoon, the receiving water body for the project and classified as Class III waters. In December 2007, the Department of Environmental Protection (DEP) verified that the Lagoon is an Impaired Water Body of the State, with the impairment being for nutrients in the vicinity of the project. Currently, there are no designated parking areas associated with the boat ramp. Vehicles both with and without trailers park in the cul-de-sac and along the roadside. The only limit to the extent of parking along Oslo Road is the distance somebody is willing to walk. During peak times, the dirt road and cul-de-sac become congested and blocked with cars, trucks, and boat trailers. In 1977, the County obtained a permit from the United States Army Corps of Engineers (USACE) to construct the boat ramp with two appurtenant piers and a riprap groin. During the subsequent years, there was substantial deterioration to the ramp, bulkhead, and docks. Accordingly, in 2009, using an exemption under rule 40C-4.051(12)(i), the County replaced the concrete portion of the boat ramp within the same footprint and constructed two accessory docks that now define the width of the one-lane boat ramp. During this process, the County removed around 25 cubic yards of muck from the base of the boat ramp. The boat ramp is only 16 feet wide and 40 feet in length and is located in water less than three feet below Mean Low Water (MLW). In contrast, a typical boat ramp in the County is around 76 feet, or twice as long as the Oslo Road boat ramp. The existing boat ramp was designed to be used by motorized vessels. There is a separate launch area for kayak and canoes next to the concrete ramp. The motorized vessels that currently use the boat ramp are small with a draft less than 18 inches. This is partly due to the presence of cap rock beyond the proposed dredging area, which limits the draft size of the boats, and the small size of the single-lane ramp. The only signage at the ramp advises the public that this is a shallow draft vessel launch and that the limits of the draft are 18 inches. The channel leading out of the boat ramp was previously dredged around 1950. During that era, only shallow draft boats would launch at Oslo Road. In February 1977, the United States Fish and Wildlife Service confirmed that an old channel about 75 feet long and 15 feet wide existed at the boat ramp location. In May 1977, additional maintenance dredging of the old silted channel to a depth of -3.00 Mean Sea Level (MSL) was authorized by the USACE. Although the parties disagree over whether any dredging was ever performed, surveys, aerial photographs, and research suggest that more than likely the project site was dredged in the late 1970s or early 1980s. A portion of the area that the County proposes to dredge falls within the area that was previously permitted by the USACE in 1977. The distance from the boat ramp to the Intracoastal Waterway (ICW) is approximately one-half mile. The channel is delineated by a number of poly vinyl chloride pipes and six sets of permitted navigational channel markers leading to the ICW. The water depths in the area surrounding the boat ramp, including the channel to the ICW, are very shallow. Drainage from the road currently runs down the ramp causing sand and other material to build up in the ramp area. Due primarily to this drainage, at low tide the water at the boat ramp area has been so shallow that boaters have experienced great difficulty when loading; in some cases, launching or retrieving a vessel is almost impossible. After a rain event, turbidity plumes in the Lagoon have been observed extending 100 feet to the north of Oslo Road, 150 feet to the south, and approximately 30 feet to the east. The seagrass beds adjacent to the boat ramp were described as lush, healthy, and productive. The proposed dredging area contains less than 1.5 percent of seagrass coverage. There is no evidence that the current use of the boat ramp causes prop scarring to the surrounding seagrass. The Lagoon in the vicinity of the boat ramp has been determined to be a high manatee use area, as defined by the County Manatee Protection Plan (MPP). However, this area is not a high watercraft-related manatee mortality area. Since 2002, the waterway in the vicinity of the project site has been regulated by seasonal manatee protection speed zones. Signs have been posted since 2003. The shoreline to the ICW is currently regulated at slow speed between November 1 and April 30 and is unregulated the remainder of the year. The County intends, however, to adopt a new ordinance that makes the slow speed zone effective the entire year, rather than just during the winter months. The Project and Variance In late 2009, the County submitted to the District its ERP application. Since that time, the County has modified its plans seven times and amended the application twice. Notably, the modifications reduce the direct impacts to wetlands from 2.98 acres to 1.41 acres for the improvement of the dirt road and parking lot; they also reduce impacts to ditches that support fisheries habitat and submerged lands. They will result in 0.113 acres of combined direct impacts to seagrass and Lagoon substrate from the proposed dredging. The project will not change the hydroperiod of the surrounding wetlands. The number of trailer parking spaces was reduced from 32 to 12 and the parking space angle changed. A dry retention area on the west side of the project will be installed; a wet detention pond was eliminated; the dock extension reduced; and at Petitioners' request, the project was shifted north to avoid impacting a ditch to the south. The County eliminated and reduced impacts to surface waters by reducing the width of the proposed dredge area so as to not impact seagrass beds to the north and south of the channel. Dredging is limited to a depth of -2.5 feet MLW and will be within the same area that was dredged in the 1950s. It is not expected to contribute to larger vessels launching at the boat ramp. The latest iteration of the project consists of paving the 2,460 feet of dirt road to a width of 26 feet, constructing a surface water management system, and constructing a parking area to accommodate 12 vehicles with boat trailers and 11 vehicles without a trailer. No changes to the size or configuration of the concrete boat ramp will be made. The project will extend the northern accessory dock of the existing one-lane boat ramp by approximately 32 feet to allow more boats to tie off; dredge 4,943 square feet (0.113 acres) of the ingress/egress access way within the Lagoon to a depth of -2.5 MLW; install an additional three sets of channel markers (six in total); install "No Parking" signs to limit vehicle parking to the designated parking area; and install additional signage to warn boaters of the shallow depths in the area and to notify boaters that to launch at this boat ramp, vessel drafts must not exceed 18 inches. The proposed surface water management system consists of roadside conveyance swales, pipes, weirs, and two dry retention areas which will provide water quality treatment for stormwater runoff from basins upstream of the project area and the existing paved portion of Oslo Road. The two proposed dry retention areas will provide water quality treatment in accordance with the design and performance criteria in the District's rules. Currently, these areas drain into existing swales and then east into the Lagoon with no water quality treatment. The system will result in a net improvement to water quality based on a nutrient loading analysis review by the District. The County is proposing off-site mitigation to offset the direct and secondary impacts. It consists of 18 acres of enhancement at Earman Island within the Lost Tree Islands Conservation Area, including 14 acres of wetland enhancement. Earman Island is part of the chain of islands in the Lagoon just north of State Road 60 known as Lost Tree Islands purchased by the County for conservation purposes. The proposed enhancement area is building upon an existing mitigation area on the north end of the island. The proposed mitigation is within the same drainage basin as the area of wetlands and other surface waters to be adversely affected. There are no cumulative impacts associated with the project. The County owns all of the property that will be dredged, filled, or paved, including the submerged lands waterward of the Mean High Water (MHW) line at the boat ramp out approximately 215 feet. This area is not within an Aquatic Preserve or Outstanding Florida Waters, and none of the dredging will occur on sovereign submerged lands. See Jt. Pre-hearing Stip., p. 13, ¶¶ 18-20. In summary, the purpose of the project is seven-fold: provide water quality treatment for the runoff water; limit the number of parking spaces available for users of the boat ramp; decrease the need for the County to maintain the 2,460 feet of dirt road; create a safe place for boaters to moor while waiting to retrieve their boats from the Lagoon; allow boaters to safely launch and retrieve their boats from the Lagoon at low tide; create a clear channel for boaters to get from the base of the boat ramp to the ICW; and decrease turbidity in and around the mouth of the boat ramp. The portion of the project that expands the accessory dock and dredges the channel will be located in Class III waters classified by DEP as restricted for shellfish harvesting. Rule 40C-4.302(1)(c) places additional requirements on regulated activities that are proposed in Class III waters restricted for shellfish harvesting. These requirements are set forth in the AH. Without a variance from the rule and AH, the District would be required to deny the ERP. Therefore, the County must qualify for and obtain a variance from rule 40C- 4.302(1)(c) and AH sections 10.1.1(c), 12.1.1(d), and 12.2.5(c). Petitioners' Concerns The essence of Petitioners' objections is that once Oslo Road and the parking lot are paved, and the channel dredged, the boat ramp will attract a tremendous number of fishermen from throughout the area who will use larger and deeper draft boats to access the Lagoon. Petitioners contend that more and larger boats, along with the proposed activities, will result in the environmental impacts described in their Amended Petition. The conditions for issuance of an ERP are set forth in rules 40C-4.301 and 40C-4.302. The standards and criteria in the AH are used to determine whether an applicant has met the conditions for issuance in the two rules. Rule 40C-1.1002 establishes the requirements for obtaining a variance. The parties have stipulated that the project either complies with the following conditions for issuance of a permit or that they are not applicable: rules 40C-4.301(1)(a), (b), (c), (e), (g), (h), (i), (j), and (k); and 40C-4.302(1)(a)3., 5., and 6. Remaining at issue is whether reasonable assurance has been provided to demonstrate that the proposed activities will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters (40C-4.301(1)(d)); that the proposed activities will not cause adverse secondary impacts (40C-4.301(1)(f)); and that the portion of the project located in wetlands or the Lagoon is not contrary to the public interest (rules 40C-4.302(1)(a)1., 2., 4., and 7. and 40C-4.302(1)(b)). As a part of these claims, Petitioners also contend that the County failed to implement all practicable design modifications to reduce or eliminate the adverse impacts to wetland and surface water functions; the proposed mitigation fails to offset the adverse effects of the project; and the District did not consider the impacts of increased boat usage when reviewing secondary impacts generated by the project. Finally, Petitioners contend that the County has not shown that it meets the conditions in rule 40C-1.1002 for a variance. These contentions are addressed separately below. a. Rule 40C-4.301(1)(d) Pursuant to this rule, and related AH provisions, the County must give reasonable assurance that the proposed activity will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters. To meet this requirement, the County has implemented, to the extent practicable, design modifications to reduce or eliminate adverse impacts to wetlands and other surface waters. The original application submitted in 2009 proposed impacts to 2.98 acres of wetlands and surface waters. Since that time, the County has reduced or eliminated its proposed wetland impacts by more than 50 percent. This was done by incorporating design modifications that eliminated the construction of a stormwater pond in wetlands and adding compensating stormwater treatment; shifting impacts out of critical fisheries and open water habitat within the southern impoundment to upland areas; installing a retaining wall along the trailer parking area to limit the fill slope impacts; and making minor modifications to reduce the project footprint in several locations. The County also eliminated and reduced adverse impacts to surface waters by reducing the width of the proposed dredge area so as to not impact the seagrass beds to the north and south of the channel and limiting the dredging to -2.5 MLW. That depth is consistent with the existing limitations adjacent to the dredge area and will not allow deeper draft vessels to use the boat ramp. The addition of a permit condition that requires the placement of "No Parking" signs along Oslo Road and limiting the parking of boat trailers to the 12 designated parking spaces will prevent an increase in boat traffic from the existing boat ramp. The installation of signage at the boat ramp advising boaters of the boat motor draft restriction and the year-round manatee slow speed zone will also reduce impacts. Finally, three sets of channel markers will also be installed to keep boaters within the designated channel. As discussed below, after these design modifications are implemented, the remaining impacts are sufficiently offset by mitigation proposed by the County. The District also considered the condition of the wetlands and surface waters to be impacted; their hydrologic connection; their uniqueness; location; and fish and wildlife utilization, and then evaluated the proposed mitigation. The more persuasive evidence supports a finding that the mitigation is sufficient to offset the proposed impacts. As required by the AH, the District provided a copy of the County's application to the Florida Fish and Wildlife Conservation Commission (FFWCC). Among other things, the FFWCC is the agency responsible for reviewing the County's MPP. The FFWCC indicated that the project is consistent with the County's MPP. It also recommended certain measures to be taken by the County, which are now included as conditions in the proposed permit. Petitioners assert that the National Marine Fisheries Service, a federal agency, considers the entire Lagoon, and the ditches extending into it, to be an essential fish habitat (EFH) that provides habitat required for the various life cycles of many types of fish. Petitioners contend that the project will result in impacts to the EFH adjacent to the proposed dredging areas, and that this type of impact cannot be mitigated. For the following reasons, this contention is rejected. First, the more persuasive evidence is that the area to be dredged contains less than 1.5 percent seagrass coverage, and channel markers will be used to keep boaters within the designated channels. Only around 200 square feet (0.005 acres) of seagrass will be affected, and not the much larger area that Petitioners assert will be impacted. No other impacts to seagrass are expected to result from the project, other than those identified and mitigated for during the application review. Second, the District considered the actual Lagoon impact area and determined that the same functions now being provided in that area will be provided by the proposed mitigation. Third, if one accepts Petitioners' assertion that EFH can never be mitigated, no permit could ever be issued for any project that would impact the Lagoon or any ditches connecting to it. Finally, based on the District's Uniform Mitigation Assessment Method (UMAM) evaluation, the functional loss, including direct and secondary impacts, was scored at 1.212 while the functional gain was 1.281. See Fla. Admin. Code Ch. 62-345. With 1.5 acres of direct impacts, one acre of secondary impacts, and 18 acres of mitigation, there are approximately 0.07 excess units of functional mitigation. The UMAM review was not credibly refuted. Petitioners failed to prove that the requirements of rule 40C-4.301(1)(d) have not been met. b. Rule 40C-4.301(1)(f) Rule 40C-4.301(1)(f) requires an applicant to provide reasonable assurance that a regulated activity will not cause adverse secondary impacts to the water resources. Petitioners contend that the project will increase the number and size of boats that use the boat ramp and therefore cause secondary impacts to seagrasses, manatees, and water quality. Secondary impacts occur outside the direct footprint of the project but are very closely linked and causally related to the activity to be permitted. De minimis or remotely related secondary impacts are not considered. To assess secondary impacts, the District evaluates the impacts to wetlands and surface water functions; upland habitat for aquatic or wetland dependent species; and historical and archaeological resources. The project will result in 0.86 acres of secondary impacts to the remaining wetlands adjacent to the road paving and parking area and 0.14 acres of secondary impacts associated with sloughing and boat wake-related impacts. The County has proposed mitigation that will adequately offset the expected secondary impacts. In combination with dredging to only -2.5 MLW and reducing parking space for boat trailers, the mitigation will prevent additional secondary impacts. Also, the boat ramp is significantly smaller than the average boat ramp in the County and is designed specifically for small vessels. Thus, the ramp itself limits the size of the vessel that can launch at the site. Through the use of additional channel markers, signage, and a year-round slow speed zone, there should not be an increased threat of boat collisions with manatees, prop scarring of seagrass beds, or turbidity. Also, the removal of the muck from the channel will be beneficial and reduce turbidity in the nearby waters. Petitioners have stipulated that no wetland dependent listed species on site that use uplands for nesting or denning are at issue. There are no additional phases for this project. Speculation of a future interchange at Interstate 95 and Oslo Road, located many miles to the west of the boat ramp, and any impacts that might occur if one was ever built, was not considered under the District's secondary impact rule. Petitioners failed to prove that the requirements of the rule have not been met. c. Rule 40C-4.302 – Public Interest Test The public interest test for this type of project requires that the County provide reasonable assurance that activities to be located in, on, or over wetlands and other surface waters will not be contrary to the public interest, as determined by balancing seven criteria in subparagraphs 1.-7. of the rule. The test takes into account the positive, negative, and neutral effects of the activity. The parties have stipulated that subparagraphs 3. and 6. are not at issue. They govern navigation, shoaling, and erosion, and historical and archaeological resources. The navigation factor is positive and the archaeological resource factor is neutral. Subparagraph 1. requires the District to determine whether the activity will adversely affect the public health, safety, or welfare or the property of others. The more persuasive evidence supports a finding that the activities will not adversely affect the public health, safety, or welfare of the property of others. Presently, it is difficult to launch and load boats at the ramp due to the area being silted down. This can result in serious safety issues. By dredging this area, public safety will be enhanced. The installation of navigational channel markers and signage will also be beneficial to the public health, welfare, and safety, as will the year- round slow speed zone. This factor is positive. Subparagraph 2. requires the District to determine whether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. The evidence supports a finding that the proposed mitigation is appropriate and more than offsets the proposed impacts. The County eliminated and reduced impacts by more than one-half. The proposed dredging area contains less than 1.5 percent seagrass coverage. The project will not result in adverse impacts to manatee. Finally, the County is proposing 18 acres of mitigation, including the creation of an open water/tidal creek feature which will provide the same functions as the areas being impacted. This factor is positive. Subparagraph 4. requires the District to determine whether the activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the project. The evidence supports a finding that the 18 acres of mitigation will improve marine productivity by providing a substantial amount of both mangrove and salt marsh vegetation along the sides of the tidal creek and open water component of fisheries. Also, the County has eliminated and reduced impacts to seagrasses by limiting the dredging area to an area with less than 1.5 percent seagrass coverage. Finally, it has removed the stormwater system from the southern impoundment to avoid a critical fisheries open water habitat. This factor is positive. Subparagraph 5. requires the District to determine whether the activity will be of a temporary or permanent nature. Because the mitigation offsets the adverse impacts, and the mitigation and dredging areas are both permanent in nature, the temporary or permanent factor is neutral. Subparagraph 7. requires an evaluation of the current condition and relative value of the functions being performed by areas affected by the proposed activity. The current condition and relative functions being performed by the areas affected by the project are high functioning. The evidence shows that the project will not change this high functioning aspect of the area. The District also conducted a UMAM review, which considered the relative value of plant communities, hydrology, and other factors, and demonstrated that the mitigation more than offsets the impacts. Finally, the County established that the mitigation area provides the same functions as the impact areas. Therefore, this factor is positive. The District's determination that the project will not be contrary to the public interest is supported by a preponderance of the evidence. Variance Because a portion of the project will be within Class III waters classified by DEP as restricted for shellfish harvesting, the County must qualify for and obtain a variance. A variance may be granted when an applicant demonstrates that it would suffer a hardship, not self-imposed, if the variance is denied. See Fla. Admin. Code R. 40C-1.1002. In determining whether a variance should be approved, the District balances the social, economic, and environmental impacts on the applicant, the residents of the area, and on the State with those same impacts if the variance is denied. The County has demonstrated that the application of rule 40C-4.302(1)(c) and AH sections 10.1.1(c), 12.1.1(d), and 12.2.5(c) would create a hardship in this case by precluding the construction of the proposed accessory dock extension and the dredging of an existing ingress/egress way within the Lagoon that will improve public safety and enhance recreational opportunities for the citizens of the area. There are no viable alternatives that would address the functionality and safety of the existing boat ramp. The hardship is not self-imposed in that the normal processes of erosion, wind, and tides contribute to the accumulation of sand and muck within the ingress/egress access way, which over time has impeded the process of launching and loading vessels at the boat ramp. The narrow channel is bordered on the north and south by productive seagrass beds. The extension of the accessory dock and dredging of the access channel will expedite the loading process and reduce the need for boat operators to circle in the shallow waters waiting their turn to access the ramp. The environmental impact of the project is positive. There will be no harm to the water quality of Class III waters and the shellfish beds. The Department of Agriculture and Consumer Affairs reviewed the project and concluded that it would not result in a reclassification of shellfish harvesting waters. The stormwater treatment on the uplands will result in a reduction of nutrient loading to the Lagoon, which is now designated by DEP as impaired by nutrients. The extension of the accessory dock, along with making the area a year-round slow speed zone, will reduce potential impacts to manatees. The dredging and extension of the dock will be a convenience to the boating public and may enhance public safety during periods of inclement weather or other exigent circumstances. Petitioners failed to prove that all requirements for a variance have not been met.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the St. Johns River Water Management District enter a final order granting the County's applications for an ERP and a variance. DONE AND ENTERED this 5th day of August, 2014, in Tallahassee, Leon County, Florida. S D. 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 5th day of August, 2014. COPIES FURNISHED: Hans Tanzler, III, Executive Director St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 Marcy I. LaHart, Esquire Marcy I. LaHart, P.A. 4804 Southwest 45th Street Gainesville, Florida 32608-4922 Karen C. Ferguson, Esquire St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 William K. DeBraal, Esquire Indian River County Attorney's Office 1801 27th Street Vero Beach, Florida 32960-3388
The Issue The issues are as follow: (a) whether Respondent violated Sections 112.313(7) and/or 112.3143, Florida Statutes; (b) whether there was a waiver pursuant to Section 112.313(12); and (c) what, if any, penalties should be imposed.
Findings Of Fact The Board of County Commissioners of Hamilton County (Board) appoints the voluntary members of the Council for the purpose of promoting tourism. The Council is funded by a three percent tourist development (bed) tax on overnight lodging. At all times relevant here, Respondent served as a member of the Council. Respondent has served in that capacity as a volunteer for twelve years. As a Council member, Respondent is subject to the requirements of Part III, Chapter 112, Florida Statutes, Florida's Code of Ethics for public officers and employees. Respondent is also the principal owner and operator of American Canoe Adventures, Inc. Respondent's business sponsors an annual canoe race, known as the Annual Suwannee River Challenge, in conjunction with the Stephen Foster Memorial State Park. The race is a one-day event in held in October each year. It begins in Fargo, Georgia, and finishes in White Springs, Florida, at the Stephen Foster Folk Culture Center. In 2005, Respondent, on behalf of his business, applied for a $1,500 grant from the Council. The funds were to advertise the canoe race. At a meeting on April 13, 2005, all Council members were aware that Respondent intended to advertise the canoe race with the proceeds of the grant. The Council members knew Respondent had special knowledge and experience as to where to place the ads for the best effect. With Respondent abstaining from the vote, the Council voted to recommend to the Board that Respondent's business receive a $1,200 grant. The Council's attorney was present at the meeting and remembers preparing a CE Form 8B, Memorandum of Voting Conflict for County, Municipal, and Other Local Public Officers regarding the Council's vote. However, Petitioner does not remember whether he signed the memorandum and filed it with the Board. No such document was found in the Board's records after an extensive search. On or about May 3, 2005, the Board discussed the existence of a potential conflict of interest on the grant to Respondent's business as part of the Consent Agenda, which stated as follows in relevant part: 7) APPROVE REQUEST FROM TOURIST DEVELOPMENT COUNCIL TO PAY $1,200.00 FROM TDC FUNDS FOR ADVERTISING AND PROMOTION REGARDING THE AMERICAN CANOE ADVENTURES. Before taking a vote, the Board changed the language of item seven on the Consent Agenda to "state that the grant for American Canoe Adventures is a specific event in conjunction with the Stephen Foster Memorial." The Board then voted to approve the Consent Agenda unanimously. The Board did not take a special vote on whether to waive the conflict of interest for Respondent. The Board believed Respondent did not have a conflict because the grant was to Respondent's business and not directly to Respondent. In 2005, Respondent used the funds as intended, to promote tourism by advertising the canoe race. Respondent did not make a profit by sponsoring the event. He returned any funds not spent on advertising to the Council. On or about April 12, 2006, Respondent applied for a $4000 grant from the Council to advertise the canoe race. The other members of the Council were aware of Respondent's interest in American Canoe Adventures, Inc. With Respondent abstaining from the vote, the Council voted to recommend to the Board that Respondent's business receive a $2,000 grant. Petitioner subsequently completed and filed a CE Form 8B Memorandum of Voting Conflict for County, Municipal, and Other Local Public Officials regarding the vote on April 12, 2006. At the next Board meeting in 2006, the Board unanimously approved the Council's recommendation to award the $2,000 grant to Respondent's business. The Board was aware of Respondent's interest in American Canoe Adventures, Inc., but did not take a special vote to waive any conflict of interest. In 2006, Respondent used the funds as intended, to promote tourism by advertising the canoe race. Respondent did not make a profit by sponsoring the event. He returned any funds not spent on advertising to the Council.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Ethics enter a final order finding Respondent guilty of violating Sections 112.313(7) and 112.3143, Florida Statutes, and imposing a civil penalty in the total amount of $750. DONE AND ENTERED this 17th day of June, 2010, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 17th of June, 2010. COPIES FURNISHED: Clifford L. Adams, Esquire 6188 Southwest 79th Drive Jasper, Florida 32052 Melody A. Hadley, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399 Kay Starling, Agency Clerk Florida Commission on Ethics 3600 Maclay Boulevard, South Suite 201 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Philip C. Claypool, Executive Director Florida Commission on Ethics 3600 Maclay Boulevard, South Suite 201 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Linzie Bogan, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050
The Issue Whether Respondent violated Section 112.011(1)(a), Florida Statutes, by terminating Petitioner's employment?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Petitioner was employed by Respondent from March 15, 1989, to June 5, 1997, the effective date of his termination. 1/ At the time of his termination, Petitioner occupied the position of Combined Control Board Relief Operator-Power Resources. In this position, at least twice a week, Petitioner monitored and operated the control board in the City of Lake Worth Power Plant (which provides power to the City of Lake Worth through steam generators). As Petitioner acknowledged during his testimony at hearing, this was a "critical job," and it was "very important" that he "be totally sober" and mentally alert while performing his job duties. On or about September 26, 1996, while he was still employed by Respondent, Petitioner was arrested by a City of Lake Worth police officer for possession of cocaine. The cocaine the police officer found in Petitioner's possession was in Petitioner's boot. Petitioner was on his way to work at the time of his arrest. Law enforcement authorities asked Petitioner to disclose the names of those who had sold him the cocaine, but Petitioner refused to do so. Lloyd Gibbs, Respondent's Power Resources Superintendent and Petitioner's supervisor, was made aware of Petitioner's arrest. On October 3, 1996, Mr. Gibbs delivered to Petitioner the following "Notification of Random Testing [for] Alcohol and Controlled Substances": Due to the events, which include[] your arrest September 26, 1996 and your statements given to me and the Lake Worth Police Department, and in accordance with Resolution 28-91 (City of Lake Worth Personnel Policy) Section 18, Alcohol and Substance Abuse, C3, Cit[y's] right to test for alcohol and controlled substance, 2/ you are hereby notified you will submit to blood and/or urine analysis in accordance with this policy (on a random bas[i]s until further notice from this office). The City of Lake Worth is a drug free work place. We [e]xpect our employees to perform their duties free from the effects of alcohol and substance abuse. In or around December of 1996, Petitioner submitted to a random drug test. The test revealed the presence of cocaine in his system. On February 5, 1997, Petitioner received the following letter from Respondent's personnel and risk manager, David Murphy: As a result of your positive drug screen and your previous agreement . . . with the City of Lake Worth, dated October 3, 1996, regarding use of illegal drugs, you are to be referred to the city's EAP for evaluation and possible treatment protocol as prescribed by the City Policy. In order for your employment to remain intact, (Combined Control Board Relief Operator-Power Resources) you will adhere to the below conditions. If you deviate in any way or test positive again, you will be immediately terminated. MANAGEMENT/UNION REFERRAL TO EAP Immediate enrollment with the EAP. To be verified by CFS; Authorize Release of Information & treatment plan information to this office; Strict adherence to treatment plan in full; You['re] placed on leave; Since you have no available time on the books, you are placed on Administrative Leave Without Pay, until you are cleared by the EAP, to return to work; Failure to comply with the EAP treatment plan will result in dismissal as being AMA (against medical advice). I have reviewed the possibility of any additional information surfacing that may be pertinent to this issue. Your Union representatives are aware of the above findings as being representative of the facts that we have gathered to date, based upon first hand knowledge. Your signature below, is your acknowledgment of receipt of this letter and agreement with the City to comply with the above conditions. Please return it to me within 5 days of receipt. Thank you. We wish you the best in your prescribed plan. After receiving Mr. Murphy's February 5, 1997, letter, Petitioner enrolled in a non-residential drug rehabilitation program offered by the Center for Family Services of Palm Beach County, Inc. (CFS). (He continued to work during the period of his rehabilitation.) Section 18C of the City of Lake Worth's Personnel Policy, which is contained in Resolution No. 28-91, provides as follows regarding the subjects of "[r]ehabilitation" and "[d]iscipline [p]ending [r]ehabilitation": 6. Rehabilitation. In the event that the results of the blood/alcohol test or second urine verification test are positive, the employee will, within ten (10) days thereafter, enter and remain in an alcohol/substance abuse program approved by the City until the administrator is able to state that the employee has been successfully rehabilitated. While in the program the employee will be allowed to return to work if the program administrator approves; if not, the employee may be placed on leave until the program administrator approves return to work, not to exceed six (6) months. If the employee is not rehabilitated, he or she may be disciplined. If the employee is rehabilitated, as determined by the program administrator, the employee shall be allowed to return to work without being disciplined. The employee may use accrued leave while in the rehabilitation program, or take leave without pay. If the employee fails to enter or complete the program, or fails to or cannot be rehabilitated, the employee shall be subject to appropriate discipline. . . . 8. Discipline Pending Rehabilitation. No employee shall be disciplined for alcohol/substance abuse if the employee enrolls and completes a rehabilitation program. This Section does not prevent the City from disciplining the employee for the consequences of the employee's alcohol/substance abuse (e.g. absenteeism) but rehabilitation shall be a factor in determining the severity of the discipline. By letter dated April 8, 1997, CFS informed Mr. Murphy that Petitioner had "successfully completed 3/ his treatment" program (which entailed meeting with a counselor on six separate occasions over a two-month period). By letter dated May 29, 1997, from Respondent's Utilities Director, Harvey Wildschuetz, which reads as follows, Petitioner was notified of the termination of his employment, effective June 5, 1997: This letter is to officially inform you that effective June 5, 1997, your employment as a Combined Control Room [Relief] Operator is being terminated. As you are aware, the City sets high standards for conduct, and it is regrettable that we must take this action. This disciplinary action is based on your violation of Resolution 28-91, Section[] 24.B, Types of Offenses, Group III Offenses, paragraphs 9 and 16. Any questions you have in regard[] to your separation from employment will be discussed at a Pre-Termination conference to be held at the Utilities Department Administrative Conference Room located at 1900 2nd Avenue North on June 5, 1997, at 9:00 a.m. At all times material to the instant case, Section 24 of Resolution No. 28-91 has provided, in pertinent part, as follows: DISCIPLINARY ACTIONS GENERAL It is the intent of the City that effective supervision and employee relations will avoid most matters which necessitate disciplinary action for violation of the rules, and disciplinary action for violation of the rules is NOT intended to restrict the rights of anyone but to insure the rights of all and secure cooperation and orderliness throughout the personnel system. The City recognizes the fact that each instance differs in many respects from somewhat similar situations. The City retains the right to treat each occurrence on an individual basis and without creating a precedent for other cases which may arise in the future. The following rules and regulations are not to be construed as a limitation upon the retained rights of the City. The rules and regulations provide recommended standard penalties to apply for specific offenses. This means that a more severe penalty may be issued than that which appears in the standard procedure if it is felt necessary. Offenses requiring disciplinary action are divided into three types to reflect degrees of severity of offenses. In each group for each rule, consideration will be given to the severity of the offense, the cost involved, the time interval between violations, the length and quality of service records, and the ability of the employee concerned. In each case where the penalty is modified from the recommended standard penalties, the reasons for such modifications will be noted in writing. In addition to the general types of offenses listed below, infractions of written department rules and regulations will subject the employee to disciplinary action. In all cases, the department head shall notify the employee of the action taken and a copy of such notice will be sent to the Personnel Director or designee for placement in the employee's personnel folder. TYPES OF OFFENSES The three (3) groups of offenses and a guide for standard penalties recommended are as follows: . . . . GROUP III OFFENSE FIRST OFFENSE- Discharge . . . . 9. Immoral, unlawful or improper conduct or indecency, either on or off the job, which would tend to affect the employee's relationship to his/her job, fellow workers, reputation or goodwill in the community. . . . 16. Conviction or guilt of a felony, or a misdemeanor of the first degree which would tend to affect the employee's relationship to his/her job, either on or off job. . . . Pursuant to Section 26 of Resolution No. 28-91, which at all times material to the instant case has provided as follows, all permanent City of Lake Worth employees are entitled to a pre-termination hearing prior to the effective date of their termination: In accordance with law, all permanent employees must be given a pre-termination hearing. The hearing must be given prior to the effective termination date to provide the employee with an opportunity to discuss the specific allegations prom[p]ting the proposed termination with the department head involved. Upon full and fair consideration of all facts and information presented at the hearing, the City Manager or designee shall notify the employee in writing with respect to his or her decision regarding termination. Such a pre-termination hearing was held for Petitioner's benefit. Following this pre-termination hearing, Mr. Wildschuetz sent Petitioner the following letter, dated June 5, 1997: After consideration of all information presented at the Pre-Termination Hearing, your employment with the City of Lake Worth is hereby terminated effective June 5, 1997. You acknowledged that you were in possession of illegal drugs and have violated the City's personnel policies. Please return all materials, books, uniforms, operating keys and gate cards currently in your possession to the Assistant Power Resources Superintendent, Shannon Bates, by 5:00 p.m., Friday, June 6, 1997. Subsequent to the termination of his employment, Petitioner was formally charged by the State Attorney's Office with possession of cocaine. Pursuant to a plea agreement, Petitioner entered a pretrial diversion program (the Prosecutor's Alternative Drug Diversion program, or PADD), which he successfully completed. As a result, he was not adjudicated guilty of the crime with which he had been charged.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the "agency" in this case (the City of Lake Worth) dismissing Respondent's complaint that the termination of his employment by the City constituted a violation of Section 112.011(1)(a), Florida Statutes. DONE AND ENTERED this 8th day of October, 1999, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 8th day of October, 1999.
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
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 Upon consideration of the oral and documentary evidence received at the hearing, the following relevant facts are found: In February of 1980, the University of North Florida (UNF) sent to 26 potential bidders the contract documents and specifications for the enlargement of Canoe Lake on the UNF campus and the removal of materials and soil from the project. While six potential bidders attended the pre-bid conference, only the petitioner, G & T Trucking, Inc., submitted a bid for the project. After the bid opening, the UNF decided not to resolicit for bids and awarded the contract to the petitioner. Pursuant to the contract, the petitioner agreed to excavate and enlarge Canoe Lake on the UNF campus pursuant to the conditions, specifications and drawings set forth in the invitation to bid documents. (Joint Exhibit 1) The petitioner was to pay the UNF the lump sum of $10.00 and was to receive all fill removed from the site. The bid documents required the petitioner to commence work within ten calendar days after receipt of a Notice to Proceed and to complete the work within one year. Other pertinent requirements expressed in the bid documents were that "the bidder . . . be familiar with all Federal, State and local laws, ordinances, rules and regulations that in any manner affect the work," (Section II, paragraph 6) and that "The Contractor shall, without additional expense to the Owner, be responsible for obtaining any necessary licenses and permits, and for complying with any applicable Federal, State and municipal laws, codes and regulations in connection with the prosecution of the work . . . ." (Section II, paragraph 8) In the Purchase Order dated March 20, 1980, and in the Notice to Proceed issued by the UNF on March 21, 1980, petitioner was instructed that ". . . any changes in the scope of work set forth in the contract documents must be authorized by a written change order . . . Changes in the scope of the work without prior written authorization shall not be authorized and shall be subject to subsequent rejection and correction at no expense to the Owner." (Joint Exhibits 3 and 4) The petitioner did enter upon performance of the contract and did commence the excavation and enlargement of Canoe Lake in early April of 1980. At some point, the petitioner estimated that it would excavate approximately 300,000 cubic yards of fill material from the project as originally designed and would be able to sell that fill material for $663,000. After expenses, it was estimated that petitioner would realize a profit in the amount of $86,722.26. Original documentation to support either the estimated expenses or the revenue from the sale of fill material was not adduced at the hearing. Also, the petitioner's estimate of 300,000 cubic yards of saleable fill material was based upon prior experience in the business of land clearing and selling fill material, and not upon actual borings made at the site of the project. The time at which the petitioner's profit estimations were made was not sufficiently established, though it was suggested that it could have been as late as September of 1981. In June of 1980, the Department of Environmental Regulation (DER) became aware of the work being performed on Canoe Lake and visited the site. Prior to this time, neither the UNF nor the petitioner was aware that a permit from DER was required for this project. Officials from DER met with officials from the UNF with regard to the project in June of 1980, and in July of 1980, the UNF submitted an application to the DER for a dredge and fill permit for the Canoe Lake project as originally designed and set forth in the bid documents. DER would not approve the project as originally designed because of water quality concerns. Had work on the originally designed project continued, DER would have undertaken enforcement procedures in the form of a Notice of Violation, Notice for Corrective Action, or a Cease and Desist Order. A period of six months is the normal time taken by DER to process a standard dredge and fill permit application. The permit process is often a matter of negotiation and "give-and-take" between the applicant and officials from DER. Negotiations between DER and the UNF began in July of 1980 and continued through March of 1981. The original project called for a lake depth of at least 12 feet and one continuous body of water around two center islands. At first, DER officials indicated that they would only approve a depth of four feet. After negotiations between DER and the UNF, the project was redesigned to a depth of no more than eight feet. One reason for this compromise was the fact that petitioner had already excavated in some areas to a depth of eight feet. The project as redesigned and ultimately permitted reduced the cubic yardage to be excavated, changed the grade of the slopes and required that a dam or dike be constructed between two water bodies. The permit for the redesigned project was ultimately issued on March 10, 1981. During the nine-month long period of negotiations between the UNF and DER, petitioner was never asked for input into the redesign of the project. The UNF never requested petitioner to secure the DER permit, and all drawings submitted for approval by DER were prepared by UNF officials. In November of 1980, approximately seven months after the petitioner had commenced work on the project, the UNF notified petitioner that it was to immediately stop all work on the Canoe Lake project due to petitioner's failure to obtain the required DER permit. (Joint Exhibit 15) At this time, petitioner had completed approximately twenty-five to thirty-three percent of the work on the project, and most of that work was non-revenue producing work for the petitioner. After the permit from DER was secured in March of 1981, petitioner's attorney advised the UNF Purchasing Department Director that it was anticipated that the UNF would issue a Change Order incorporating the reduced scope of work permitted by DER and that petitioner expected to recommence work on the revised project. Petitioner's attorney further advised that, due to the reduced scope of work, petitioner would experience an actual loss when the permitted work was completed. In order to mitigate that loss, it was suggested that the UNF apply to the DER for a modification to the permit which would allow the increase of the depth of the lake to the original project depth of 12 feet. (Joint Exhibit 20) By letter to petitioner dated April 2, 1981, the UNF confirmed its prior verbal cancellation of the November, 1980, Stop Work Order and advised petitioner that all future work was to conform with the permit and drawings approved by DER. (Joint Exhibit 21) The UNF advised the petitioner by letter dated May 6, 1981, that it would accept the permit, as issued by the DER, and would discuss the revised scope of work at a later meeting. (Joint Exhibit 22) No evidence was adduced as to such a later meeting having been held. Petitioner's work on the revised project continued until early September, 1981, when petitioner was advised that the UNF considered the work performed by the petitioner to be complete. (Joint Exhibit 23) By letter dated September 22, 1981, the petitioner's attorney advised the UNF that he was submitting petitioner's claim for losses in the amount of $95,135.08, said amount representing an actual loss of approximately $8,500 plus lost profits anticipated from the original project in the amount of $86,722.26. The UNF was requested to acknowledge this claim for money damages and to inform petitioner of the procedure for processing the claim and appeal. (Joint Exhibit 25) The UNF never acknowledged the petitioner's claim or the petitioner's attorney's letter. Although no original documentation was produced by the petitioner at the hearing, it was the testimony of petitioner's witnesses that, as of the time of completion of the project, petitioner sold 155,541 cubic yards of fill material and received revenues of $351,514.95. Petitioner claims that its expenses in completing the project amounted to $359,927.77. This figure includes expenses for clearing and removal of overburden; excavating, loading and pumping; trucking costs; project supervision; grading banks and a ten percent administrative overhead. All these items were included in a greater amount in the petitioner's estimates of expenses for the originally designed project. The additional expenses claimed as a result of the redesigned project include $2,000 to build the newly required dikes, $2,200 for pumping during the stop-work period and $8,775 for increases in fuel costs due to the delay. Had the original bid documents included the design of Canoe Lake as ultimately permitted by the DER, the petitioner would have submitted a bid requiring the UNF to pay petitioner between $40,000 and $50,000, plus retainage of the fill for resale. The respondent UNF offered no evidence regarding the value of the project.
Recommendation Based upon the Findings of Fact and Conclusions of Law recited herein, it is RECOMMENDED that a Final Order be entered awarding petitioner $45,000 for its services in connection with the enlargement of Canoe Lake on the campus of the University of North Florida. Respectfully submitted and entered this 15th day of July, 1983, in Tallahassee, Florida. COPIES FURNISHED: Daniel D. Richardson, Esquire 1636 Atlantic Bank Building Jacksonville, Florida 32202 William L. Coalson, Esquire 2600 Gulf Life Tower Jacksonville, Florida 32207 Caesar Naples, Esquire Board of Regents 107 West Gaines Street Collins Building Tallahassee, Florida 32301 DIANE D. TREMOR Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of July, 1983. Dr. Barbara Newell Chancellor Board of Regents 107 West Gaines Street Tallahassee, Florida 32301 Dr. Curtis L. McCray President University of North Florida 4567 Saint Johns Bluff Road Jacksonville, Florida 32216
