Findings Of Fact Application No. 76-00493 is for an existing consumptive use permit for five wells located in the Peace River Basin, Polk County on 608.6 acres. The permit seeks a total average annual withdrawal of 7.2 million gallons per day and a maximum daily withdrawal of 14.97 million gallons per day. Ninety-five percent of the water withdrawal will be used for industrial purposes and five percent will be used for irrigation. The Southwest Florida Water Management District's staff recommends issuance of the permit with the following conditions: That the applicant shall install totalizing flow meters of the propeller-driven type on all withdrawal points covered by the application except that well located at Latitude 28 degrees 03' 13", Longitude 81 degrees 47' 54". That the applicant shall record the pumpage from the above meters on a weekly basis and submit a record of that pumpage quarterly to the district beginning January 15, 1977. That the permit shall expire on December 31, 1980
Recommendation It is hereby RECOMMENDED that a consumptive use permit be granted in the amounts applied for in Application No. 76-00493 subject to the conditions set forth in paragraph 2 above. ENTERED this 13th day of October, 1976, in Tallahassee, Florida. CHRIS H. BENTLEY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 COPIES FURNISHED: Jay T. Ahern, Esquire Southwest Florida Water Management District Post Office Box 457 Brooksville, Florida 33512 Coca Cola Company Post Office Box 247 Auburndale, Florida 33823
Conclusions UPON CONSIDERATION of the Administrative Complaint attached hereto as Exhibit “A”, the transcript of the corresponding Division of Administrative Hearings (DOAH) case, the exhibits received into evidence, ‘the Proposed Recommended Order filed by the Administrative Law Judge in this matter and attached hereto as Exhibit “B’, any exceptions to the Recommended Order filed by either party, and being otherwise fully advised of the premises, it is hereby, ORDERED AND ADJUDGED: 1. The Findings of Fact, Conclusions of Law, and recommended penalty as _ detailed in the Recommended Order are hereby adopted. 2. Respondent is not guilty of engaging in the unlicensed practice of landscape architecture and electrical contracting. . 3. This Final Order shall become effective on the date of filing with the Agency Clerk of the Department of Business and Professional Regulation. DONE AND ORDERED this ogee, of (Octien. 2008. W. Drago, Secretary Department of Business and Professional Regulation Northwood Center 1940 North Monroe Street Tallahassee, FL 32399-0750
Appeal For This Case Unless expressly waived, any party adversely affected by this Final Order may seek judicial review by filing an original Notice of Appeal with the Clerk of the Department of Business and Professional Regulation, and a copy of the notice, accompanied by the filing fees prescribed by law, with the clerk of the appropriate District Court of Appeal within 30 days of the effective date of this order, in accordance with Rule 9.110, Florida Rules of Appellate Procedure, and Section 120.68, Florida Statutes. CERTIFICATE OF SERVICE | hereby certify that a true and correct copy of the foregoing Final Order has been provided via U.S. Mail to Respondent, Todd Boetzel and Boetzel Landscaping, Inc., c/o Gregory T. Elliott, Esquire, Elliott-Berger, P.A., 7310 Gulf Boulevard, St. Petersburg, Florida 33706, wie ny of CC 2008. SARAH WACHMAN, AGENCY CLERK By: Mush Ah Min Brandy Nichols, Deputy Clerk Copies furnished to: Reginald D. Dixon, Informal Hearing Officer Sorin Ardelean, Assistant General Counsel Division of Regulation, Bureau of Unlicensed Activity Daniel Manry, Administrative Law Judge, Division of Administrative Hearings, 1230 Apalachee Parkway, Tallahassee, FL 32399-3060 Steven Petrozak, d/b/a Southern Cross Construction, 6435 92" Place #901, Pinellas Park, Florida 33782
The Issue The issue is whether to approve an Environmental Resource Permit (ERP) modification for the construction of a surface water management system, to be issued to Respondent, Miromar Lakes, LLC (Miromar), which will serve a 29.08-acre single- family residential development known as The Peninsula Phase IV (Phase IV) located in Lee County, Florida.
Findings Of Fact The Parties Miromar is a Florida limited liability corporation that owns property in the Miromar Lakes community in Lee County on which a development known as Phase IV will be constructed. Miromar is the applicant for the Phase IV permit. The District is a government entity with the power and duty to exercise regulatory jurisdiction over the proposed project pursuant to part IV, chapter 373, Florida Statutes, and title 40E, Florida Administrative Code. In implementing this power and duty, the District has adopted the Applicant's Handbook (AH) to provide standards and guidance to applicants. Alico is a Florida limited liability corporation with its principal place of business in Fort Myers, Florida. It is the owner of property immediately adjacent to and north of Miromar's property. Respondents have stipulated to the facts necessary to establish Alico's standing. The Conceptual Permit This case concerns Miromar's application to modify a conceptual permit issued by the District more than 15 years ago. On June 10, 1999, the District issued ERP Permit No. 36-03568-P, a conceptual approval permit for the development of a large, mixed-use residential development with a golf course, known as Miromar Lakes, that lies east of Interstate 75 (I-75), south of Alico Road, and north of Florida Gulf Coast University. The permit also approved a surface water management system designed to serve a 1481.1-acre mixed-use development within Miromar Lakes. Alico asserts that the permit is so vague in future development details that it is impossible to determine whether Phase IV is consistent with its terms and conditions. However, the 1999 permit was not contested, and any attempt in this proceeding to challenge that permit, or subsequent modifications to the permit that are now final, is untimely. A conceptual permit is available to applicants who wish to have their design concept approved for a master plan or future plan. So long as the future phases are consistent with the conceptual permit and there are no changes to applicable state water quality standards or special basin criteria, the applicant does not need to reapply under the current rules for subsequent phases. Instead, it allows an applicant to take advantage of the rules in effect at the time of the original permit issuance. A conceptual permit typically leaves construction details to future development decisions. As District witness Waterhouse explained, this is "the nature of a conceptual permit." Because the landowner does not know the precise manner in which the property will be developed years down the road, "it doesn't make sense to force the landowner to pretend that they do because it's a pretty good bet that those things are going to change to some extent in the future." By way of example, Waterhouse noted that "[a]s long as it's single family proposed then and it's proposed now, I would characterize that as sufficient detail." It is not surprising, then, that the 1999 permit contains very little detail regarding the existence, location, or development of roads, lots, a stormwater management system, or grading, and that the construction permit for Phase IV has far more detail than the conceptual permit. Even Alico's expert agreed that there is no requirement that a conceptual permit include the details of each subsequent construction phase. A fair inference to draw is that the District intended for the developer to have considerable latitude in developing the large tract of undeveloped land, phase by phase, over the life of the conceptual permit. The 1999 permit has been modified over 60 times since its issuance, and to date, significant portions of Miromar Lakes have been constructed. Except for the current, on-going feud between Miromar and Alico over several recent or pending applications (see Case Nos. 15-1050, 15-3937, and 15-5621), none of these modifications were contested. The Property at Issue Phase IV is a 29.08-acre subdivision within an area of the Miromar Lakes community known as the Peninsula. Located within Basin 6, Phase IV is the last phase of development approved by the conceptual permit for residential development in the Peninsula. All prior Peninsula phases have been permitted and developed, or are in the process of development. Prior phases were permitted based on their consistency with the conceptual permit, and none were challenged by third parties. The area under Miromar's requested permit in the instant case was conceptually authorized for single-family residential development. This is confirmed by language in the 1999 permit, which describes the conceptual proposal for Basin 6 as "includ[ing] 639.7 acres of residential, golf course, and mixed-used [sic] development." Jt. Ex. 3, p. 275. The permit also provides that each of the four sub-basins in Basin 6 should "have a water quality structure that provides treatment for the first one inch of stormwater runoff from the sub-basin . . . and that attenuation for Basin 6 is achieved onsite via the proposed sub-basin lakes and also by an existing 244.2-acre borrow lake." Id. While the 1999 permit establishes standards for flood control elevations, minimum lot elevations, and discharge rates, more specific development guidance is not provided. When the conceptual permit was issued, Basin 6 contained one former mining pit dredged from uplands to be used as a man-made lake for recreational purposes. A second mining pit, later converted to a lake, continued mining operations until 2006. The following year, the District authorized the two borrow lakes to be connected by a series of channels and canals, forming a privately-owned, 660-acre waterbody now known as Lake 5/6. Alico's property includes Lake 5, which makes up the northern portion of Lake 5/6, while Lake 6 to the south, owned by the Miromar Lakes Community Development District, is surrounded by Miromar's development. Alico has an easement over portions of Lake 6 for recreational uses under a Lake Use Agreement. Because the two connected lakes are to be used only for recreation and attenuation purposes, Lake 5/6 is designated as Class III waters and cannot be used for stormwater treatment. It is not classified as an Outstanding Florida Water (OFW) or an Impaired Florida Waterbody. Lake 5/6 discharges over a control weir into an un- channeled slough system known as the Stewart Cypress Slough. The water travels several miles through the slough system, passes several intervening properties that also discharge waters into the slough, and then runs underneath I-75. It eventually reaches the Estero River, an OFW and Impaired Florida Waterbody, which flows into the Estero Bay, an OFW. There is no direct discharge of waters from Lake 5/6 to the Estero River. The evidence shows that the project will not increase the overall discharge rate from the control weir for Lake 5/6. In February 2013, the District approved another Miromar application, known as Phase III, which authorized the third phase of development within the same peninsula where the Phase IV project will be located. That development contains two wet detention structures (Lakes 1 and 3) that will also service the Phase IV project. The Phase III permit was issued using the 1999 rules and regulations and was not contested. The Application The Original Application On November 25, 2014, the District issued its notice of intent to issue Miromar a permit authorizing the construction and operation of a stormwater system serving 29.08 acres of residential development that included multi-family residences, single-family residences, 49 boat slips, and road construction. Phase IV is a very small portion of the 1,481-acre development approved in the conceptual permit. The project is located on Via Salerno Way and Via Cassina Court within Basin 6. Construction was originally proposed in Sub-Basins 1 and 3. There is an approved Master Plan for stormwater management facilities within the project area. The site was previously cleared and filled and no wetlands are located on the site. The original construction in Sub-Basin 1 consisted of a roadway, 22 single-family residential lots, and stormwater conveyance facilities. Also included were shoreline contour shaping, placement of rip-rap on portions of the Lake 5/6 shoreline to enhance stability, enhanced littoral zones, and boat docks. Stormwater within that Sub-Basin flows via sheet flow and interconnected inlets to the existing wet detention area (Lake 1) located in Phase III north of the site. The wet detention area provides the required water quality treatment volume for the project prior to discharge to Lake 5/6. The original proposed construction in Sub-Basin 3 consisted of a roadway, 11 single-family residential lots, and 16 multi-family buildings with associated internal roadway, parking areas, and stormwater treatment, storage, and conveyance facilities. Also included within the original plans were shoreline contour shaping, placement of rip-rap on portions of Lake 5/6 shoreline to enhance stability, enhanced littoral zones, and boat docks. Stormwater runoff within Sub-Basin 3 flows via sheet flow and interconnected inlets to the existing wet detention area (Lake 3) located in Phase III north of the site. The original application included a request to increase the surface area of Lake 3 by approximately 0.1 acre and to construct three dry detention areas within the multi-family development area. The wet and dry detention areas provide the required water quality treatment for the project prior to discharge to Lake 5/6. The Revised Project After the case was referred to DOAH, by letter dated June 8, 2015, Miromar's project engineer provided the District with proposed changes to the site plan, to be used at the final hearing then scheduled to begin on June 24, 2015, which include the replacement of 16 multi-family buildings and driveways on Via Cassina Court with 23 single-family residential lots; removal of the 16 multi-family boat docks located at the southern end of Via Cassina Court; reducing the number of boat docks to 45 single-family docks; relocation of the three dry detention areas shown on the proposed site plan; and clarification of the lot grading cross-section to ensure that stormwater runoff from the development will be directed to the stormwater management system and not Lake 5/6. Updated plans, drawings, and specifications, and new water quality calculations accompanied the letter and were intended to replace original Exhibits 2.0 and 2.3 of the permit. See Jt. Ex. JA-1, pp. 244- 257. The changes resulted in a continuance of the final hearing and Alico's filing of an Amended Petition. By amendment at final hearing, Miromar removed the 45 single-family docks. The June 8 letter states that the changes will not increase pollution or reduce the efficiency of the stormwater management system. Miromar acknowledges that some of these changes were to resolve concerns raised by Alico. Miromar now seeks approval of the Phase IV permit, incorporating the changes proposed by the June 8 letter and those agreed to at the final hearing. Because there was no requirement to provide a site- specific nutrient loading analysis when the 1999 permit was issued -- this analysis was not yet formally developed -- the District did not require, and Miromar did not submit, such an analysis with its application. Under the conceptual permit, Miromar was required to provide treatment for one inch of stormwater runoff in Basin 6. Relying on this condition, Miromar applied that treatment to the Phase IV permit. This results in the treatment of 7.09 acre- feet of stormwater for the basin. After the construction shown in the permit, the stormwater management system will treat 9.21 acre-feet, or more than is required under the 1999 permit. The District established that new flood routing calculations for the project were not necessary because Miromar has set elevations for the water control structures in Lakes 1 and 3 at the same level as the road elevations, and the project connects to an existing surface water treatment system. This provides reasonable assurance that the project will not cause flooding despite having no calculations from the applicant. Alico's Objections Although couched in different terms, Alico's concerns can be generally summarized as follows. First, it contends the application should be treated as a major modification of the conceptual permit and that Miromar must satisfy current rules and regulations, and not those in effect in 1999. Second, it contends both the original and revised applications are inconsistent with the conceptual permit and must be treated as a new design, subject to all current rules and regulations. Third, even though Miromar agreed at hearing to revise its permit to address certain errors/deficiencies identified by Alico's experts, Alico contends no revisions can be made at this stage of the proceeding, and that a new application must be filed with the District and the review process started anew. Is the Application a Major or Minor Modification? If the modification is minor, Miromar is required only to satisfy applicable rules for issuance of a permit when the conceptual permit was issued. Rule 62-330.315 and AH section 6.2.1 provide guidance in resolving this issue. Rule 62-330.315(2)(g) defines a minor modification as one "that do[es] not substantially alter the permit authorization, increase permitted off-site discharge, increase the environmental impact of the project, decrease required retention, decrease required detention, decrease required flood control elevations, or decrease pollution removal efficiency." The rule also provides that the "factors that will be considered in determining whether a change is minor are described in section 6.2.1 of Volume I [of the Applicant's Handbook]." Section 6.2.1(d) lists a series of 14 factors to be considered in determining whether a modification will cause more than minor changes under rule 62-330.315(2). None of the factors is dispositive alone, and the presence of any single one of the factors does not necessarily mean that a modification is major. All 14 factors are considered together in determining whether a modification is major. Using the factors set forth in rule 62-330.315(2), in conjunction with section 6.2.1, the District reviewed the application to determine whether it was a minor modification. Based on these criteria, the District determined that the application qualified as a minor modification of a conceptual permit and that it satisfied applicable rules for issuance of a permit for this subsequent phase of the project. Alico contends that the initial review by a District staffer was only cursory and was in no way a meaningful assessment. Even if this is true, subsequent reviews by District staff, including witness Waterhouse, who supervises the ERP Bureau, was a signatory on the 1999 permit, and has reviewed thousands of ERP applications, confirmed that the application, as revised on June 8 and at final hearing, meets the criteria for a minor modification. The testimony of District witnesses Waterhouse and Waters has been accepted as being the most credible on this issue. In its review of the original application, the District considered the inclusion of boat docks as the only aspect of the application that made the project a major modification. In all other respects, the District determined that the modification would not cause more than minor changes. With the removal of the boat docks, the District concluded that the application did not substantially alter the design of the activities or the conditions of the conceptual approval permit. Alico's expert, who has never performed a similar consistency analysis on any project, testified that several of the 14 factors in section 6.2.1(d) might be affected. But he opined with certitude that factor 2 is implicated by the Phase IV permit. Factor 2 comes into play when there is an "[i]ncrease in proposed impervious and semi-impervious surfaces more than 10 percent or 0.5 acres, whichever is less, unless the activities were permitted with stormwater treatment and flood attenuation capability sufficient to meet the permitting requirements for the proposed modification." By citing only one factor, the expert implicitly conceded that the other 13 factors are not present, thus weighing towards a finding of consistency. Alico's expert focused only on the first part of factor 2 by calculating the impervious area of the project, as he did not believe the conceptual permit approved a master stormwater management system capable of sufficiently meeting the treatment and attenuation requirements for the Phase IV project. However, the more persuasive evidence is that the Master Plan in the 1999 permit is capable of meeting the treatment and attenuation requirements for the project. Therefore, factor 2 is not implicated by the Phase IV permit. Even if the factor were present, it would be insufficient to outweigh the other 13 factors and render the project a major modification of the 1999 permit. The preponderance of the evidence supports a finding that the District may consider as minor the revised application. Consistency with the Conceptual Permit A consistency analysis is conducted under two related rules. First, rule 62-330.315 identifies when a subsequent permit is either a major or minor modification of a prior conceptual permit. As found in the previous section of this Recommended Order, the modification is minor. Second, rule 62- 330.056 provides a rebuttable presumption that subsequent consistent development phases are likely to meet the applicable rules and regulations if the factors listed in subsections (7)(a) through (7)(d) are met. The primary factors for consistency comparison are identified in subsection (7)(a) as "the size, location and extent of the activities proposed, the type and nature of the activities, percent imperviousness, allowable discharge and points of discharge, location and extent of wetland and other surface water impacts, mitigation plans implemented or proposed, control elevations, extent of stormwater reuse, detention and retention volumes, and the extent of flood elevations." Subsections (7)(b) and (c) provide that in order to have consistency, there can be no changes to state water quality standards, in this case the standards for Lake 5/6, or special basin criteria. There is no evidence that applicable state water quality standards or special basin criteria have changed. Finally, subsection (7)(d) requires that there can be no substantive changes to the site characteristics. Except for the conceptual permit, there is no requirement that the District compare the Phase IV permit with any other permit. The District views the location and the land use type of the project as the two most important criteria for determining consistency. As required by the rule, the District also compares the environmental impacts of the modification to the conceptual permit, control elevations, and discharge rates. The District credibly determined there is no inconsistency. While some site characteristics in Basin 6 have obviously changed over the last 16 years, the District's review found no substantive changes that would affect whether the design concepts approved in the conceptual approval permit can continue to be reasonably expected to meet the conditions for authorizing construction of future phases. The District credibly determined that the activities in Phase IV, as revised, were similar to or less intensive than those authorized in the conceptual approval permit and may actually provide a net benefit to Lake 5/6. Alico contends that a meaningful consistency analysis was not conducted by the District staffer who reviewed the original application. But subsequent reviews by witnesses Waterhouse and Waters confirmed that Phase IV, as revised, is consistent with the conceptual permit based upon the rule and AH criteria. Besides the District's review, Miromar's expert testified that Phase IV is consistent in land use as a single- family residential development. He also testified that the Phase IV permit was consistent with the 1999 permit in size and location; it maintained the same allowable rate of stormwater discharge; and it maintained required flood control elevations. He further testified that the Phase IV permit did not change the mitigation plans, permitted stormwater reuse, flood routings, or storm stages provided by the 1999 permit. This testimony has been credited in resolving the issue. The preponderance of the evidence supports a finding that the Phase IV land uses are the same as contemplated in the conceptual permit and the already-approved prior phases of Miromar Lakes, and the new permit is consistent with the conceptual permit. Therefore, Miromar is entitled to a rebuttable presumption that it meets the applicable rules and standards in place when the 1999 permit was issued. Alico failed to rebut this presumption. Revisions and Amendments at the Final Hearing During the final hearing, Alico's experts identified several errors and/or deficiencies in the design of Miromar's project, described below, that should be addressed before a permit can be issued. Miromar agrees with some of these concerns and asks that they be addressed through revisions incorporated into its permit. The District also concurs with these changes. The record shows that they are appropriate, minor in nature, and do not change the character of the permit. There is no evidence that Alico is prejudiced by allowing these revisions. Alico's expert testified that the Phase IV permit does not provide sufficient information regarding the soils on the Phase IV site. At hearing, Miromar agreed that any unsuitable soils discovered during construction would be excavated and removed and correctly disposed of in a landfill or other uplands. This is the common method of dealing with soils in Lee County, where it is not unusual to find unsuitable soils during construction. A special condition to this effect should be included in the final permit to ensure clarity. Through a series of treatment ponds, Miromar proposes to treat nearly all stormwater that falls on-site prior to its discharge to off-site properties. Alico's expert testified that the lot grading detail drawings inaccurately reflect the elevations of certain portions of the lots and can result in runoff from some lots being routed to Lake 5/6, instead of Lakes 1 and 3. Miromar agrees with this concern and represented that the intent of the June 8 letter is that drainage for all lots, except for the portion of lots within the 20-foot Lake Maintenance Easement (LME), which surrounds the project on three sides, be directed to the front of the lots toward the street, and then to the treatment ponds. Water that falls naturally within the LME will be treated by attenuation in Lake 5/6 prior to off-site discharge. Miromar also agrees to submit new Tabular Lot Grading Revisions and a new Typical Lot Grading Detail and to update its June 8 plans to reflect proposed lot grading elevations consistent with the lot detail. Alico's expert acknowledged that roof gutters are an additional solution, and they should be installed on all roofs in order to direct runoff to the front yards and then to the stormwater system. Finally, to ensure proper lot drainage, Miromar agrees that the secondary drainage pipes to convey runoff from roofs, gutters, and grassed areas will have a minimum size of six inches. The District agrees that these changes will improve water quality and ensure that all stormwater is properly captured and directed into the stormwater system. A special condition requiring these revisions should be included in the final permit to ensure clarity. Alico's expert also testified that the plans should include a requirement that Miromar follow best management practices (BMPs) for the replacement of a control structure in Lake 3, which serves as a stormwater treatment pond. General Condition 3 already addresses this issue by requiring Miromar to use BMPs that prevent adverse impacts to the water resources and adjacent lands. In addition, the June 8 letter provides plans for BMPs for work at the site, including Lake 3. Although the District found that reasonable assurances were provided by General Condition 3 and the June 8 letter, to ensure clarity, a special condition should be included in the final permit that requires the use of BMPs for all construction, including the replacement of an old boat ramp and the control structure in Lake 3. Miromar and the District agree that this revision is appropriate. Alico's expert opined that control structures CS-1 (Lake 1) and WQS-1.3 (Lake 3), which have a circular bleeder orifice with a four-inch diameter, should be limited to a bleeder orifice of 3.7 inches in diameter. Although the District found reasonable assurances existed with four-inch bleeder orifices, Special Condition 3 should be modified to reflect a 3.7-inch bleeder for these control structures. This will ensure that before being discharged, the water leaving the two control structures receives the appropriate amount of water quality treatment. Both Miromar and the District agree that this revision is appropriate. With the removal of all docks and an old boat ramp, Special Conditions 2, 10, 11, and 13 through 17 require modification, or deletion if necessary, to eliminate obsolete language relating to the docks and ramp and to add language to provide that construction and operation of the docks shown on the plans, specifications, and drawings are not authorized. Miromar and the District agree to these revisions. Other Concerns Alico's expert contended that under current District rules, Miromar is required to provide stormwater treatment equal to the greater of (a) one inch multiplied by the total project acreage, and (b) 2.5 inches multiplied by the project's impervious area. However, Alico did not pursue this issue in its PRO, probably because its expert agrees that the current design of the project meets District rule criteria for one inch of water quality treatment. Alico's expert also contends that Miromar is required to provide an additional 50 percent of stormwater treatment above the one-inch requirement. This is contrary to the conceptual permit, which does not require additional stormwater treatment. Also, the requirement does not apply when there is no direct discharge of stormwater into an OFW. Even so, Miromar voluntarily agreed to increase the stormwater treatment capacity for Phase IV, which results in excess treatment in Basin 6 greater than 50 percent above the treatment required for the Phase IV area. Alico argues that the additional treatment is illusory, as it relies on additional treatment from an adjoining phase, and not Phase IV. Even if this is true, Alico's expert admits that the current one inch treatment meets the requirements of the rule for issuance of a permit. Alico's expert contended that the Phase IV permit allows the bulkhead to be developed on more than 40 percent of total shorelines, in contravention of AH section 5.4.2, Volume II, which restricts a bulkhead to no more than 40 percent of the lake perimeter. However, Miromar's expert established that the Phase IV hardened shorelines would comprise less than 40 percent of the total shoreline in the Phase IV area and therefore comply with this requirement. His testimony was not credibly refuted. Even though there is no direct discharge from the project into the Estero River or Estero Bay, and the project will not result in higher discharge rates from the overall system outfall from Lake 5/6, based on water samples taken in August 2015, Alico's expert opined that the project will cause a discharge of excess nutrients into an OFW. The evidence shows, however, that these water samples were taken after heavy rains when the expert observed water flowing upstream from the slough into Lake 5/6, rather than downstream. The expert also admitted he had done no testing, analysis, or modeling demonstrating that any pollutant would even reach the Estero River. He failed to take a baseline sample of water quality for any nutrients for which the slough, Estero River, or Estero Bay may be impaired, and he conceded that it was possible that there was no net discharge from Lake 5/6 into the slough during the time of his testing. There is insufficient evidence to sustain this allegation. Other alleged deficiencies or errors in the application, as revised, that are not addressed in this Recommended Order have been considered and found to be without merit. ERP and Public Interest Criteria The criteria the District uses when reviewing an ERP application are contained in the AH and rules 62-330.301 and 62-330.302. In addition, an applicant must provide reasonable assurance that a proposed project is not contrary to the public interest. § 373.414, Fla. Stat.; AH § 10.2.3. Alico failed to prove by a preponderance of the evidence that Miromar has not provided reasonable assurance that the activities authorized by the ERP comply with all applicable ERP permitting criteria. Alico failed to prove by a preponderance of the evidence that Miromar has not provided reasonable assurance that the proposed project is not contrary to the public interest.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District enter a final order approving Miromar's application, as revised, for a permit modification, subject to the following additional conditions: That the plans, drawings, and specifications submitted with the June 8 letter that appear in Joint Exhibit JA-1, pages 244-53, be used as Exhibit 2.0 of the permit. That the water quality calculations submitted with the June 8 letter that appear in Joint Exhibit JA-1, pages 254-57, be used as Exhibit 2.3 of the permit. That Special Conditions 2, 10, 11, and 13 through 17 be revised or eliminated to remove obsolete language relating to the removal of the boat docks and boat ramp. That Special Condition 10 be revised to require that all construction, including the removal of the boat ramp and replacement of Control Structure No. 3, be conducted using BMPs. That a new special condition be added to reflect that the construction and operation of docks will not be authorized by the permit. That a new special condition be added with new Tabular Lot Grading Revisions and a revised Typical Lot Grading Detail and address the following: the project shall be constructed to ensure that stormwater from the project, except stormwater from within the LME, is routed to the stormwater treatment system prior to discharge to Lake 5/6; the lot grading on all lots shall be in accordance with the revised lot grading to reflect the high point of the lots located adjacent to the LME to ensure that runoff from the lots is directed to Lakes 1 and 3; that the revised lot grading require the installation of six-inch secondary drainage pipes; and that roof gutters be installed on all roofs to ensure that runoff from the residential lots is directed to the stormwater treatment system. That a new special condition be added to address unsuitable soils encountered during construction and to ensure that they are removed and disposed of in an appropriate manner. That Special Condition 3, relating to discharge facilities, be revised to reflect that a 3.7-inch circular orifice will be installed in Sub-Basins 1 and 3, rather than a four-inch orifice shown in the existing plans. DONE AND ENTERED this 27th day of January, 2016, 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 27th day of January, 2016. COPIES FURNISHED: Peter Antonacci, Executive Director South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406-3007 (eServed) Kevin S. Hennessy, Esquire Lewis Longman & Walker, P.A. Suite 620 101 Riverfront Boulevard Bradenton, Florida 34205-8841 (eServed) Brian J. Accardo, General Counsel South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406-3007 (eServed) Keith L. Williams, Esquire South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406-3007 (eServed) Martin L. Steinberg, Esquire Hogan Lovells US, LLP Suite 2700 600 Brickell Avenue Miami, Florida 33131-3085 (eServed) Timothy J. Perry, Esquire Oertel, Fernandez, Bryant & Atkinson, P.A. Post Office Box 1110 Tallahassee, Florida 32302-1110 (eServed)
Findings Of Fact At all times material hereto, Petitioners were inmates incarcerated at Union Correctional Institution under the custody and control of the Department of Corrections. Respondent stipulated at final hearing that Petitioners have "standing" to maintain this rule challenge proceeding. During 1982 Respondent amended its Rule 33-3.045, Florida Administrative Code, entitled Package Permits. The final version of the amended rule was filed with the office of the Secretary of State on December 23, 1982, and became effective January 12, 1983. The text of the proposed rule was published in the October 22, 1982, issue of the Florida Administrative Weekly. Subsequent thereto, changes were made in the text of the proposed rule which had the effect of deleting from the list of items which inmates could receive in Christmas packages the following: apples, candies, chewing gum, cookies, and nuts. No person affected by the proposed rule requested a public hearing pursuant to Section 120.54(3) Florida Statutes. Respondent filed with the office of the Secretary of State a Statement of Changes and a Notice of Changes indicating the above-referenced deletions apparently at the time the rule was filed for adoption. In addition, Respondent filed with the proposed rule an economic impact statement which estimated that there would be no cost or economic benefit to persons affected by the rule as a result of the proposed amendments. Although the record in this cause establishes, and common sense confirms, that some cost saving might result to persons wishing to send the deleted items to inmates, there is no evidence of record in this cause to establish how Respondent's failure to take this factor into account affected the fairness of the rule adoption proceeding. At the time of final hearing in this cause there were approximately 2,500 inmates incarcerated at Union Correctional Institution. Each of these inmates is entitled to two Christmas package permits during the months of November and December. As a result as many as 5,000 Christmas packages could be received by the institution during that time period. Respondent's experience with Christmas packages has shown that apples, candies, chewing gum, cookies, fruit cakes, and nuts lend themselves to the introduction of contraband into correctional facilities. Because of the volume and character of Christmas packages, Respondent experienced both staffing and liability problems, particularly in the area of food stuffs. Respondent found that it was particularly difficult to examine food stuffs for contraband because it often would require chemical analysis to determine whether contraband items, such as drugs or alcohol, were baked or otherwise placed into the food stuff themselves. In addition, because of the volume of packages received Respondent often had to transfer employees from other areas of operation into the mailroom in order to process the packages, thus creating additional problems because employees had to be taken from their assigned tasks. Further, Respondent received notification from the Division of Risk Management indicating a precipitous rise in claims for damages from inmates whose food stuffs had been necessarily damaged in checking for contraband items. Finally, Respondent determined that most, if not all, of the items deleted from the Christmas package permit list were available to inmates through institution canteens.
The Issue Whether petitioners have timely availed themselves of a clear point of entry into administrative proceedings on Mr. and Mrs. Rankin's application for a permit to build a dock and, if so, whether the permit application should be granted?
Findings Of Fact On April 12, 1982, Frederick W. Rankin applied for a dredge and fill permit to construct a dock six feet wide and 300 feet long in the waters of Bayou Chico in Escambia County, Florida. Paralleling the dock on either side of the outboard end, two rows of mooring pilings 19.5 feet distance from the dock were proposed in the application. On April 20, 1983, Mark N. Snowdon, an employee of the Department of Environmental Regulation (DER) inspected the site, and, in an official DER permit application appraisal dated April 23, 1982, reported: Two large support vessels (crew boats) are moored at a small pier immediately east of the site. A commercial marina facility i[s] located directly across the bayou (north) from the project site. Bayou Chico is approximately 0.25 mile wide at this point. DER Exhibit No. 4. Between the crew boats' dock (Gulfwater Marine) and the site proposed for the Rankins' dock is the mouth of a small embayment (the bayouette). The Holzbauers own a house and lot, separated from the Rankins' lot by a parcel less than 75 feet wide, that fronts on the bayouette. PERMIT ISSUES DER issued a permit on June 9, 1982, and work began on the Rankins' dock on June 12, 1982. On the same day, Mr. Holzbauer inquired of the men putting in pilings whether DER had issued a permit for the work, then telephoned DER and asked DER's Mr. Fancher the same question. Mr. Fancher told Mr. Holzbauer that a permit had been issued, which was the first Mr. Holzbauer was told of issuance of the permit. As far as the evidence revealed, no notice of intent to issue preceded issuance of the permit. On June 26, 1982, the Holzbauers received a letter from W. Richard Fancher on behalf of DER, dated June 24, 1982, in which he stated: It is my understanding that, until recently, you had no knowledge of this private dock project. If this is correct, you may consider this formal notice of the activity. Should you object to this permit, including any and all of the conditions contained therein, you may file an appropriate petition for administrative hearing. This petition must be filed within 14 days of the receipt of this letter. Further, the petition must conform to the requirements of Part III, Chapter 17-1 and Section 28-5.201, Florida Administrative Code (copies enclosed). The petition must be filed with the Office of General Counsel, Department of Environmental Regulation, Twin Towers Office Building, 2600 Blair Stone Road, Tallahassee, Florida 32301. If no petition is filed within the prescribed time, you will be deemed to have waived your right to request an administrative hearing on this matter. DER Exhibit No. 1. A copy of Mr. Fancher's letter to the Holzbauers was also sent to Mr. Rankin. On July 8, 1982, a letter from the Holzbauers to Ms. Tschinkel reached DER's Office of the Secretary, protesting issuance of the permit and alleging that the dock did not conform to permit conditions. 1/ This letter was referred to the Division of Administrative Hearings, whose Director entered an order, sua sponte, on July 28, 1982, that "[t]his matter is dismissed without prejudice." No. 82-1947. An amended petition dated August 4, 1982, reached DER's Office of the Secretary on August 9, 1982, and the Division of Administrative Hearings on August 20, 1982. No. 82-2314. NO PERMIT RELIANCE The dock has been continued to completion, at a cost of $11,000.00. As built, the dock veers out from shore at a more easterly angle than the permit purported to allow. Whereas the permit contemplated construction at an angle several degrees west of north, the dock has in fact been built at an angle about 15 degrees east of north. One result is that the end is some 90 feet east of the point contemplated by the permit. Although a DER employee testified that this deviation was "within reason," it is clearly a significant departure from what the permit putatively allowed. The Rankins only own 86 feet of bayou frontage. The mouth of the bayouette is no more than 110 feet across. The mooring pilings, moreover, have been set in two rows parallel to the dock not 19.5 feet on either side, but 40 feet from the west side of the dock and 30 feet from the east side. If any of the landowners on the bayouette (with one exception) tried to build a pier perpendicular to their shore line extending even half the length of the Rankins' dock, it would intersect the Rankins' dock. NAVIGATION While the dock does not seal off the bayouette, it makes access considerably more difficult, especially for Mr. Holzbauer who sails in and out in his 14 foot boat. The dock juts out from the point at the western edge of the entrance into the bayouette at such an angle that it comes within 70 feet of the eastern edge of the entrance into the bayouette. Petitioner's Exhibit No. The crew boats moored to the east of the Rankins' dock have overall lengths ranging from 65 to 85 feet and there were three of them moored at Gulfwater Marine last summer. When the crew boats are docked, the distance between the westernmost one and the most inboard mooring piling next to the Rankins' dock is 81.5 to 103 feet. Where traffic from Bayou Chico to Pensacola Bay passes under a bridge, the channel is only 80 feet wide and the crew boats sometimes hit the bridge. The greatest problem the Rankins' dock has caused the crew boats is making docking more difficult. It is not always easy to turn an 85 foot boat around in the wind. The root of the problem, according to Mr. Kingry, who owns the crew boats, is that a patch of slightly deeper water in this generally shoaled area has been cut or blocked by the Rankins' dock. Sooner or later, Mr. Kingry predicted, a crew boat will "wipe out" the Rankins' mooring pilings.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the Department of Environmental Regulation deny the application for a dredge and fill permit for a dock located and aligned as this dock is. DONE and ENTERED this 27th day of April, 1983, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 1983.
The Issue The issues for determination are: (1) did the College of Central Florida (“CCF”) commit an unlawful employment practice by discriminating against Petitioner on the basis of age and/or sex; and (2) did CCF unlawfully retaliate against Petitioner by firing her.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following Findings of Fact are made: Ms. Howell began working in CCF’s lawn maintenance department on August 17, 2015. She worked 25 hours a week performing activities such as removing weeds, picking up debris, and maintaining the flower beds around CCF’s campus. CCF’s lawn maintenance department consisted of approximately 20 people, but Ms. Howell was the only female. At the time of the final hearing, Ms. Howell was 67 years old. Tommy Morelock, CCF’s director of facilities, made the decision to hire Ms. Howell. Ms. Howell claims that her co-workers mistreated her. For example, she asserts that there were at least three occasions when co-workers intentionally drove a four-wheel drive vehicle or a pickup truck into a golf cart driven by her. Another alleged incident involved a co-worker running a finger down her neck. In addition, Thomas Smith supposedly “flipped her off” on numerous occasions throughout her tenure at CCF and referred to her as a “f***ing c*nt.” In approximately August of 2016, after a co-worker allegedly used a vehicle to strike a golf cart driven by Ms. Howell, her fiancée, Newell Melton, called CCF in order to lodge a complaint with Mr. Morelock. Mr. Melton ultimately spoke with Katherine Hunt, one of Mr. Morelock’s subordinates and CCF’s manager of facility operations and construction projects. Ms. Hunt met with Ms. Howell soon afterward about these alleged incidents. Ms. Howell also described how her male co- workers would grab themselves between the legs. However, Ms. Howell did not indicate that those actions were directed toward her. Ms. Howell did not mention any improper conduct by Thomas Smith during her meeting with Ms. Hunt. In late 2016 or early 2017, Ms. Howell also met with Mark Sakowski, another of Mr. Morelock’s subordinates and CCF’s manager of plant safety and facility operations, about one of the vehicle incidents. Mr. Sakowski told Ms. Howell that he would talk to the co-worker in question and asked her to bring any future issues to his attention. Ms. Howell did not mention anything to Mr. Sakowski about Thomas Smith directing obscene gestures toward her. After the meeting, Mr. Sakowski spoke to employees within the lawn maintenance department about professionalism, safety, and having respect for others. Ms. Howell never filed a formal complaint with CCF about her co-workers’ alleged misconduct. At Mr. Morelock’s request, Ms. Howell met with him and Caroline Smith, CCF’s equity officer, on June 7, 2017, to discuss her complaints. During this meeting, Ms. Howell described: (a) how her co-workers would drive vehicles into golf carts she was occupying; (b) the incident in which a co-worker ran a finger down her neck; and (c) a rumor among her co-workers that she was planning to file a sexual harassment complaint. As CCF’s equity officer, Ms. Smith is responsible for investigating student and employee claims of discrimination or harassment. After hearing Ms. Smith’s description of the alleged incidents, she concluded that the allegations involved inappropriate “horseplay” rather than age and/or gender-based discrimination. She then explained CCF’s employee complaint procedure to Ms. Howell, but Ms. Howell declined to initiate a formal complaint. Ms. Howell did not mention Mr. Smith’s alleged misconduct during her meeting with Mr. Morelock and Ms. Smith. In a memorandum dated June 7, 2017, and addressed to Ms. Howell, Mr. Morelock wrote the following: As discussed in our 11:00 AM meeting today with the College Equity Officer, Mrs. Smith, to address your complaints regarding horseplay in the workplace, rumors, and possible harassment, I have met with the 3 employees in your complaint and have addressed these issues. Please let me know immediately if there are any further incidents or if you have any additional concerns. Mr. Morelock noted in the memorandum that Ms. Hunt, Mr. Sakowski, and Ms. Smith received copies. Ms. Howell received a copy of Mr. Morelock’s memorandum shortly after their meeting. At approximately 12:30 p.m. on July 19, 2017, Ms. Howell was nearing the end of her workday and driving a golf cart. She crossed paths with a vehicle driven by Mr. Smith and noticed in her rearview mirror that Mr. Smith was directing an obscene gesture toward her.2/ Ms. Howell proceeded on her way to leaving the CCF campus. However, she reversed course and, with the assistance of another co-worker, spent approximately ten minutes driving around the CCF campus looking for Mr. Smith. Upon finding Mr. Smith at the back of the CCF campus planting junipers, Ms. Howell exited the golf cart and angrily told Mr. Smith to stop directing obscene gestures toward her. According to Mr. Smith, Ms. Howell went into a “tirade.” After confronting Mr. Smith, Ms. Howell left the campus without reporting this new incident to any supervisors. As far as she knew, none of the pertinent supervisors were available. Mr. Smith felt threatened and immediately sought out Mr. Sakowski. Mr. Smith reported that Ms. Howell demanded that he stop spreading rumors about her, and Ms. Howell supposedly stated that CCF, Mr. Smith, and Mr. Smith’s wife “would be sorry.”3/ Rather than obtaining Ms. Howell’s version of the confrontation, Mr. Sakowski and Ms. Hunt spoke to Mr. Morelock, who was on vacation at the time. Mr. Morelock recommended that they confer with CCF’s director of Human Resources and authorized them to resolve the matter as they saw fit. Mr. Sakowski and Ms. Smith called Ms. Howell on July 21, 2017, and notified her that she had been fired. The only explanation given to Ms. Howell was that she did not work well with supervisors and co-workers. Mr. Sakowski explained that he was concerned about his staff’s safety and that of CCF’s students: We take safety very seriously on the campus. And in this day and age with mass-casualty and active-shooter scenarios, we practice these drills on campus on an annual basis. And it did scare me that -- I did not want it [to] make national news. Mr. Sakowski was also concerned by the fact that Ms. Howell confronted Mr. Smith rather than reporting his obscene gesture to a supervisor: Instead of coming back onto campus after leaving her shift, she should have come into the building and either got myself or Ms. Hunt at that time and explained what had just happened instead of taking matters into her own hands. Because Mr. Morelock’s memorandum to Ms. Howell directed her to “[p]lease let me know immediately if there are any further incidents or if you have any additional concerns,” Ms. Hunt considered Ms. Howell to be insubordinate when she confronted Mr. Smith on July 19, 2017.4/ This was the first disciplinary action that CCF had taken against Ms. Howell. Since being fired by CCF, Ms. Howell has unsuccessfully applied for two positions, a greeter at a hospital and a landscaping technician at a local cemetery. While she considers herself to be retired, Ms. Howell is still looking for employment. Ultimate Findings Ms. Howell persuasively testified that Mr. Smith directed an obscene gesture toward her on July 19, 2017. However, the preponderance of the evidence demonstrates that CCF did not know nor should have known that Mr. Smith directed obscene gestures and/or language toward Ms. Howell. While Ms. Howell consistently testified that she did not discuss Mr. Smith’s conduct with Mr. Sakowski or Ms. Hunt, she gave conflicting testimony as to whether she reported Mr. Smith’s conduct to Mr. Morelock during their meeting on June 7, 2017. In contrast, Carol Smith, CCF’s equity officer, persuasively testified that Mr. Smith’s conduct was not discussed during that meeting.5/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing Petitioner’s Petition for Relief. DONE AND ENTERED this 17th day of June, 2019, in Tallahassee, Leon County, Florida. S W. CHISENHALL 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 day of June, 2019.
Findings Of Fact On or about March 13, 1986, Petitioner applied to Respondent for a conditional use permit to allow the package sale of alcoholic beverages in a convenience store at 410 through 422 North Belcher Road, Clearwater, Florida. The property is located in a general commercial district. On or about April 15, 1986, the Planning and Zoning Board of the City of Clearwater denied Petitioner's application and on April 28, 1986, Petitioner timely appealed that decision. Petitioner's property is immediately adjacent to Faith Bible Church which operates Suncoast Christian School with approximately 120 students through the sixth grade, and the property is across the street from Trinity Baptist Church which operates a school with approximately 200 preschool through first grade students. The subject property is within 500 feet of the property of both of these churches, and there are two additional churches in the neighborhood. Richard Tobias, property appraiser, testified that convenience stores such as the one Petitioner proposes do not enhance the properties in their immediate vicinity, although they are generally an asset to the neighborhood as a whole due to the convenience of local shopping. Public witnesses expressed concern about the proximity of the proposed convenience store to churches and schools because of litter problems which they feel could develops as well as public drinking in the store parking lot. The use and enjoyment of such church and school properties will be adversely affected if the conditional use is approved, accordingly to the testimony and evidence presented by public witnesses. Petitioner, as property owner, plans to lease the subject property to Carlos Yepes, President of Clay Oil Enterprises, for the operation of the convenience store. Yepes operates seven other stores which sell beer and wine, and according to Denise Williams, leasing agent, there have been no neighborhood or police complaints concerning Yepes' operations.
