The Issue Whether respondent committed the violations alleged in the Notice to Show Cause, and if so, whether its license should be revoked or suspended, or whether a civil penalty should be imposed.
Findings Of Fact At all times relevant- to this cause, Real Estate Rentals, Inc. held license number 39-926-H issued by the Department of Business Regulation, Division of Hotels and Restaurants (Division) for the premises known as Ippolito Apartments located at 112 South Brevard Avenue, Tampa, Hillsborough County, Florida. The president of Real Estate Rentals, Inc. is E. L. Ippolito. On February 27, March 14, and March 25, 1986, Pablo Mercado inspected the Ippolito Apartments. Mr. Mercado is employed by the Division as an Environmental Health Specialist and his duties include the inspection of hotels, apartments, and other buildings. Mr. Mercado inspects between 40 and 50 buildings a week. Each building is routinely inspected four times a year. When Mr. Mercado inspected the Ippolito Apartments on February 27, 1986, he found several conditions which he considered to be statutory or rule violations. Mr. Mercado noted these violations on a standard form of the Division. The Division's form lists various items numbered 1-36. Items 1 (Fire Extinguishers), 5 (Fire Hazards), 11 (Building Repair/Painting), and 19 (Screening) were checked on the form as minor violations, and comments were made concerning each item. As to Item 1, Mr. Mercado noted that no fire extinguishers were in the building and that a fire extinguisher was needed on each floor or one in each apartment. As to item 5, Mr. Mercado noted that furniture needed to be removed from the hall. As to item 11, Mr. Mercado made the following comments: Need window facing st. apt. #1. You need a window in bathroom apt. #1. Paint inside bldg. Stairs need repair. Hole in bathroom floor apt. #3. Water leaking in the bathroom from the upstairs apt. into apt. #1. As to Item 19, Mr. Mercado noted that all the screens missing on the windows had to be replaced. The form was sent to Real Estate Rentals, Inc., with the indication that the document was a warning and that all violations had to be corrected by March 14, 1986. When Mr. Mercado made his inspection on February 27, 1986, he did not observe a hole in the bathroom floor in apartment #3 or observe any water leaking into the bathroom in apartment #1, and there was no competent evidence presented at the hearing to establish that either of these conditions existed. Mr. Mercado did observe that there were no fire extinguishers in the hall, and he did go into one apartment and observed that there was not a fire extinguisher in that apartment. Two other tenants informed him that they did not have a fire extinguisher in their apartments. Mr. Mercado observed that one of the windows facing the street contained no window pane but simply had a plastic bag taped over the window frame on the outside of the building to cover the empty space. On other windows jalousie slats were missing, and the window on the bathroom of apartment #1 was covered with a piece of plywood. Some screens were missing and some screens were torn up. One of the steps on the stairs was missing part of the two-inch lip, which created a hazard to individuals using the stairs. On March 14, 1986, Mr. Mercado made a return inspection. He noted that the furniture had been removed from the hall. However, he did not feel that any of the other violations listed had been corrected. Therefore, Mr. Mercado filled out a Call Back/Re-Inspection Report", which referred to the warning issued on February 27, 1986, and made the following comments: Violations: #1--#5--#11--#19 (See DBR-226) Only violation #5 is complied. The rest of the violations #1,#)1,#19 are not complied. The report indicated that the time to correct the violations had been extended to March 24, 1986. This report was sent to the respondent by certified mail. On March 25, 1986, Mr. Mercado again inspected the Ippolito Apartments. The conditions had not changed from the time of his previous inspection on March 14, 1986. Mr. Mercado visited the Ippolito Apartments again on April 7, 1986, and also on June 10, 1986. The pictures admitted into evidence as petitioner's exhibits No. 6 were taken on June 10, 1986. On June 10, 1986, the building was in the same condition as it had been on February 27, March 14, and March 25, 1986, except that several of the windows on the front of the building had been replaced with plywood boards. Mr. Mercado did not believe that the replacement of the windows with the boards corrected the violation as to the windows, but he could not remember whether the windows had been replaced with the plywood as of March 14th or the March 25th inspection, or whether they were replaced at a later time. Since slats were still missing from other windows on all of his inspections, he did not feel the violations as to the windows had been corrected. By June 10, 1986, the windows in front of the apartment had been replaced with plywood backed by 2 x 4 studs. According to Mr. Howell, who performed the work, the replacement of the windows with the plywood structure occurred approximately 2 1/2 months prior to the hearing, which would have been early or mid-April, 1986. In that the only competent evidence as to the date of the replacement of the front windows was Mr. Howell's testimony, it is found that the windows in the front of the building had not been replaced with plywood at the time of Mr. Mercado's inspections on March 14 and March 25, 1986. There was no competent evidence presented as to the condition of the windows in the front of the building on March 14 or March 25, 1986.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that petitioner enter a final order finding respondent guilty of three violations of Rule 7C-1.03(1) and one violation of Rule 7C-1.04(1) on February 27, March 14 and March 25, 1986, as set forth in charges 1 through 4 of the Notice to Show Cause, finding respondent not guilty of the violations set forth in charges 5 and 6 of the Notice to Show Cause, and imposing a total civil penalty of $975 assessed as follows: (1) failure to provide adequate fire extinguishers, $100 for each offense for a total of $300, (2) failure to maintain windows in good repair, $100 for each offense for a total of $300, (3) failure to maintain stairs in good repair, $50 for each offense for a total of $150, (4) failure to maintain screens in good repair, $75 for each offense for a total of $225. DONE and ENTERED this 9th day of October, 1986, in Tallahassee, Florida. DIANE A. GRUBBS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of October, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1800 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings On Proposed Findings of Fact Submitted by the Petitioner 1. Accepted in paragraph 1. 2.-3. Accepted generally in paragraph 2. Accepted in paragraph 3. Accepted in paragraph 4, except that competent evidence showed only that at least one apartment did not have fire extinguisher. The only evidence as to other apartments was hearsay. Rejected as immaterial. Rejected as immaterial in that evidence showed there was not a fire extinguisher in each apartment. 8.-9. Accepted in paragraph 4. 10. Rejected as irrelevant in that respondent was never notified or charged with a violation based on that condition. 11.-12. Accepted generally in paragraph 4. 13. Accepted in paragraph 3. 14.-15. Accepted in paragraph 5. Accepted in paragraph 6. Accepted in background, not finding of fact. Accepted in part in paragraph 7, however, whether violations were corrected was irrelevant because respondent was not charged with violations on April 17, 1986. Rejected as not a finding of fact in that it is a recitation of testimony. Rejected, date of repair set forth in paragraph 8. 22.-23. Rejected as immaterial and as recitation of testimony. 24. Rejected to the degree it is a finding of fact in that replacement of windows occurred after relevant time period. 25.-31. Rejected, not finding of fact. Rulings On Proposed Findings of Fact Submitted by the Respondents Accepted in paragraph 1. Rejected as irrelevant and also not supported by the evidence in that a violation was noted for correction. Accepted in paragraph 3. Accepted in part and rejected in part as set forth in paragraph 4. Accepted in paragraph 5. Accepted in part in paragraph 8, however, repair work irrelevant since it occurred after date of inspections. Rejected as irrelevant. Accepted in part in paragraph 4. Whether bathroom had exhaust fan is irrelevant since the issue was whether the window was in good repair. Reject that Mr. Mercado was not a credible witness. COPIES FURNISHED: James Kearney, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32301 R. Hugh Snow, Director Department of Business Regulation Division of Hotels and Restaurants The Johns Building 725 South Bronough Street Tallahassee, Florida 32301 Lynne A. Quimby, Esquire Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32301 Mr. Emilio L. Ippolito 901 South Rome Avenue Tampa, Florida 33606
Findings Of Fact Based upon the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Respondent William C. Widner has been with the City of Clearwater Fire Department for 21 years. For the past ten years, he has been assigned to Engine 48 as a fire lieutenant. His record is free from any type of disciplinary action. When a call is received concerning a medical emergency, it is proper to dispatch both a rescue unit and a fire engine to the scene. The standard operating procedure for emergency calls for fire vehicles is that the time to clear the station should not exceed 45 seconds. If there are questions concerning the dispatch, the officer in charge is to contact the dispatcher while in route to the scene of the emergency and make inquiry at that time. Also, a lieutenant, by himself, cannot change, modify or refuse to respond to a dispatch. Only a captain or the dispatcher can change the required response, or, another unit can announce that they are closer to the scene and will respond. The average response time between dispatch and arrival at the scene is four minutes. When a dispatch is given, a grid number for the destination is announced. All fire engines are equipped with map books demonstrating the location of the scene in relationship to the grid number given. On August 5, 1985, at approximately 2050 hours, the Clearwater Police Department Communications Center received an emergency call reporting a subject having a heart attack at 2720 Morningside Drive. Safety Harbor Rescue 52 and an ambulance were dispatched by telephone. At approximately 2055 hours, Engine 48 was radio dispatched to 2720 Morningside Drive. Respondent advised by radio that Engine 48 was responding to the call. Approximately 22 seconds after receiving the dispatch and 14 seconds after initially responding to the dispatch, respondent Widner telephoned the dispatcher and advised him that 2720 Morningside Drive was Engine 49's territory. Respondent did offer to go, however. The dispatcher stated that "this was a screwed up mess," but advised respondent that the computer recommended Engine 48. Respondent replied that he should go if Engine 49 was out. After further conversation, the dispatcher stated, "it made sense to me that 49 would go but it said 48." When respondent inquired as to who was to go, the dispatcher said "Oh hell, I might as well page somebody else." This conversation between the respondent and the dispatcher lasted 43 seconds and concluded 1 minute, 9 seconds from the end of the original dispatch. The dispatcher then radio-dispatched Engine 49 to 2720 Morningside Drive. Engine 49 advised that it was responding at approximately 2057 hours, 38 seconds, or two minutes, 22 seconds after the original dispatch was given to Engine 48. After speaking with the dispatcher, respondent and his superior officer, Captain Evans, checked the map for the 2720 Morningside Drive address. Upon learning that that address was, indeed, within Engine 48's territory, respondent and his crew immediately got in the truck and left the station. Captain Evans notified the dispatcher at 2059 hours that Engine 48 was responding to the call. When respondent arrived at the scene, Engine 49 and the rescue unit were already there. He attempted to radio in his arrival as soon as he got there, but the air waves were busy. He announced his arrival on his portable unit as he was walking up to the house. The evidence does not conclusively establish the exact time that respondent's arrival on the scene was reported to the dispatcher. Engine 49 did report its arrival before Engine 48's arrival was reported. Based upon the totality of the evidence, it is found that between 7 1/2 and 8 1/4 minutes elapsed between the time of the original dispatch to Engine 48 and the time of Engine 48's arrival at the scene. There are two Morningside Drives in the City of Clearwater. The residence located at 2720 Morningside Drive is within Engine 48's response zone, and is located 2.1 miles from Engine 48 and 3.0 miles from Engine 49. The other Morningside Drive is located in Morningside Estates and is within the response zone of Engine 49. When respondent first received the dispatch, he thought the address was located within the Morningside Estates subdivision. Upon leaving the station, an immediate right or left turn is required, dependent upon which Morningside Drive is being sought. Respondent's Captain Evans immediately conducted a fact finding session upon respondent's return to the station, and determined that respondent had failed to follow a direct order. A follow-up interview was conducted. It was determined that, upon receiving the initial dispatch, respondent should have proceeded directly to the engine and looked at the grid map, should have cleared the station within 45 seconds in accordance with standard operating procedures, should have reached the scene within 4 to 4.5 minutes and that, due to respondent's phone conversation with the dispatcher, two fire engines were sent on a call that required only one engine. Based upon those findings, the Fire Department concluded that respondent's productivity, workmanship, and efficiency with regard to the emergency response were not up to required standards for performance, and a two-day suspension was requested. The request for a two-day suspension was referred to the Affirmative Action Office, which conducts a fairness review of proposed disciplinary action and makes a recommendation to the City Manager, who takes final disciplinary action. After interviewing respondent concerning the August 5th incident, the Affirmative Action Office initially concluded that a two-day suspension was very harsh under the circumstances and recommended a letter of reprimand instead. Thereafter, Assistant Fire Chief Meyer contacted the Affirmative Action Office and provided the investigator with further information. The investigator was informed by Assistant Chief Meyer that respondent had been at that station for 10 years and should have been familiar with the addresses within his territory. He further advised her that the computer system utilized to determine which station should receive a particular call had been in effect for two years and discrepancies had been corrected. Meyer informed the investigator that lieutenants had been instructed not to argue with the dispatcher, to immediately respond to a call and that the proper response time in this instance should have been 4 minutes. This information from Meyer caused the Affirmative Action Office to amend its recommendation for disciplinary action to a suspension for 11.2 hours. The City Manager followed that recommendation and gave Notice of Suspension in accordance therewith. The Notice listed the three charges referenced in the Introduction as grounds for the disciplinary action taken, and established the date and time for the suspension to occur. In a separately related incident occurring in 1983, Lieutenant Handura with the City of Clearwater Fire Department received a letter of reprimand for not responding to a dispatch. In that incident, Handura was dispatched but, because he had a tour group of school children at his station and knew that a rescue unit had also been dispatched, he called the rescue unit and determined that he was not needed. He thereupon called the dispatcher and advised him that the rescue unit was responding to the call and that he would not respond.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that respondent's appeal be dismissed and that a Final Order be entered confirming the disciplinary action of an 11.2 hour suspension, without pay. Respectfully submitted and entered this 30th of July 1986, in Tallahassee, Florida. DIANE D. TREMOR 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 30th day of July 1986. APPENDIX (CASE NO. 86-0236) The proposed findings of fact submitted by the parties have been carefully considered and are accepted and/or incorporated in this Recommended Order, except as noted below: Petitioner 11. Partially rejected as being argumentative as opposed to a factual finding. Respondent 3-5. While these findings are partially correct, they are an incomplete recitation of the events which transpired. 6. Rejected; See Paragraph 5 in Findings of Fact. 7 and 8. Rejected as a legal conclusion as opposed to a factual finding. COPIES FURNISHED: Miles A. Lance Assistant City Attorney City of Clearwater Post Office Box 4748 Clearwater, Florida 33518-4748 Stuart M. Rosenblum, P.A. 220 South Garden Avenue Clearwater, Florida 33516 City Manager City of Clearwater Post Office Box 4748 Clearwater, Florida 33518-4748 Civil Service Board City of Clearwater Post Office Box 4748 Clearwater, Florida 33518-4748
The Issue Whether Respondents' apartments are subject to regulation by the State of Florida, Division of Hotels and Restaurants? If so, did the Respondents violate the rules and regulations?
Findings Of Fact Between 1983 and January 3, 1999, Respondents jointly owned five apartment buildings of four units each on 29th Street, Niceville, Florida. The buildings were situated on one parcel of land, on the same side of the street, with common areas which are separated by a paved driveway. Each building was assigned a separate street address by the City of Niceville postal service. On January 4, 1999, by quit claim deed the Respondents transferred ownership interest in the buildings and property. By building address, the ownership of the four units is as follows: 1417 Charles Reid 1409 Robert Dukes 1415 Jane Reid 1411 James K. Dukes The fifth building was not transferred and remained the property of Respondents, along with the common areas and driveways separating the buildings. (See Petitioner's Exhibit 7.) The apartments are regularly managed by Mrs. Jackie Jones. The leases for the apartments are for a period in excess of six months. Respondents have never licensed the apartments with the Division of Hotels and Restaurants as a public lodging establishment. Following a complaint by the Department of Health on July 13, 1998, the Division directed that an inspection of the property be conducted by Filip Perez, a Sanitation and Safety Specialist employed by the Division of Hotels and Restaurants. Mr. Perez has been employed by the Division for 18 months, and has 20 years experience in the regulation of food service and lodging with the U.S. Army, and one year of experience with the Walton County Health Department. His duties with the Division include inspection of public lodging establishments and public food service establishments. He conducts between 100 to 150 inspections per month; of those, about 25 are of public lodging establishments. Mr. Perez investigated the complaint on July 21, 1998. The occupant of the apartment who initiated the complaint with the Department of Health was not available to allow inspection of her unit. Mr. Perez, pursuant to Division policy, conducted a routine inspection of the property. A routine inspection of a public lodging facility involves checking approximately 44 categories, including safety and licensure status. Critical violations are noted in red on the form and marked with an asterisk. As part of his inspection, Mr. Perez observed that there were several apartment buildings with approximately 20 total units on one lot, and classified the property on his inspection form as "nontransient apartment." Before he visited the property, Mr. Perez conducted a record check and determined that the property was not licensed because it did not appear in the Division's licensure data base. In the course of his inspection, Mr. Perez interviewed a tenant of Apartment C, Building 1409, who permitted Mr. Perez to test the tenant's smoke detector, which Mr. Perez determined was inoperative. He also determined that there were not fire extinguishers installed on the outside of the buildings. Respondents admitted that fire extinguishers are not furnished to the tenants. Public lodging establishments are required to be protected by smoke detectors, through NFPA 101, 19-3.4.4.1 and Section 509.211. Fire extinguishers with approved service tags are required by NFPA and Rule 61C-1.004(9)(a), Florida Administrative Code, in public lodging establishments. Mr. Perez also found a broken stair step at Building 1411 and discovered that there were not vacuum breakers (back- flow preventors) installed at the outside spigots to prevent back flow into the plumbing system. Mr. Perez filled out a lodging inspection report listing five violations, including the lack of licensure. The lack of fire extinguisher, inoperative smoke detector, broken step, and lack of licensure were noted as critical violations. The lack of vacuum breakers was not noted as a critical violation. A copy of the report was sent to Respondents by certified mail. On September 11, 1998, Chuck Franzalia, a Sanitation and Safety Specialist with the Division of Hotels and Restaurants, conducted a re-inspection of the property at the direction of the Division. Mr. Franzalia has been employed in that capacity with the Division for six years; before that, he was employed for 18 months in a transitional office for food inspection and for 15 years with the Okaloosa County Health Department as an environmental health specialist. Mr. Franzalia could not affirm or deny the NFPA violations, but observed that there were no vacuum breakers on the spigots, and the broken step had not been repaired at Building 1411. He conducted a pre-hearing inspection on May 4, 1999, and observed that the vacuum breakers had been installed; however, he observed no exterior fire extinguishers, and the broken step at Building 1411 was completely missing.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the case be dismissed. DONE AND ENTERED this 31st day of August, 1999, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 31st day of August, 1999. COPIES FURNISHED: Gail Hoge, Esquire Gabrielle D'Alemberte, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Charles W. Reid, Esquire Post Office Box 151 Valparaiso, Florida 32580 Dorothy W. Joyce, Director Division of Hotels and Restaurants Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 William Woodyard, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact On June 28, 1978, the respondent Department of Environmental Regulation gave notice that the Environmental Regulation Commission would consider the adoption of an emergency rule at their regularly scheduled meeting on July 12, 1978. The impetus for such an emergency rule was apparently the results of the Florida Sulfur Oxides Study which were orally presented to the Commission at a meeting held on June 20-22, 1978. The study is an eleven volume text, parts of which were separately submitted to the Commission in January, February, and April of 1978, involving the environmental effects of sulfur dioxide and related matters. The written final report was submitted in May of 1978. Pursuant to the provisions of Florida Statutes, Section 120.54(4), petitioner Florida Lung Association filed with the Division of Administrative Hearings its "petition for determining the validity of a proposed emergency rule" on July 7, 1978. The emergency rule was approved by the Environmental Regulation Commission at its meeting on July 12, 1978, and said rule was filed with the Secretary of State on July 14, 1978. On the same date, July 14th, Florida Power and Light Company and Jacksonville Electric Authority filed their motion to intervene in the rule challenge proceeding. On July 16, 1978, Jacksonville Electric Authority filed its motion to dismiss the petition. The cause was noticed for hearing on July 19, 1978. On July 20th, Florida Power and Light filed its motion to dismiss. On July 26, 1978, the Division of Administrative Hearings received petitioner's amendment to the petition seeking relief pursuant to the provisions of Florida Statutes, Section 120.56, should relief under Florida Statutes, Section 120.54 be deemed improper. The petitioner and the Department of Environmental Regulation entered into a Stipulation prior to the hearing agreeing as to certain factual matters and stipulating that the Florida Lung Association is a substantially interested party in the proceeding and had standing to bring this action. The undersigned was duly designated by the Director of the Division of Administrative Hearings as the Hearing Officer in this proceeding. It was determined by her that all pending motions would be heard and ruled upon at the time of the scheduled hearing inasmuch. as the time constraints imposed upon rule challenge proceedings did not allow for all parties to respond in writing to all motions within the seven day period specified by Rule 28-5.25(3), F.A.C., and inasmuch as the Hearing Officer was to be out of town on the three days prior to the hearing. At the beginning of the hearing on July 28, 1978, the undersigned granted the motions to intervene. The motions to dismiss were based upon the allegations that petitioner lacked standing to challenge the emergency rule in question; that the Environmental Regulation Commission, rather than the Department of Environmental Regulation, was the agency whose rule was being challenged and that an emergency rule cannot be contested under Florida Statutes, Section 120.54(4) The undersigned denied both motions to dismiss. It was and is concluded from the pleadings, the evidence adduced at the hearing and the stipulation between petitioner and respondent that the petitioner herein does have standing to challenge the emergency rule in question. Respondent the proper agency to be named in this proceeding, inasmuch as the Environmental Regulation Commission (ERC) is simply a part of that agency and sits as the agency head on certain specified matters. While Chapter 120 does not appear to make adequate provision for a challenge to a proposed emergency rule, that issue is now moot in light of the presently existing status off the challenged rule and the amendment to the petition alleging a cause of action under Florida Statutes, Section 120.56. As amended by Chapter 78-425, Laws of Florida (SB 860) Section 120.56 now provides explicitly for challengers to the validity of emergency rules before the Division of Administrative Hearings. Turning now to the merits of the petition, as amended, it is contended that the rule in question is an invalid exercise of legislative authority because no immediate danger to the public health, safety or welfare existed which would justify the enactment of an emergency rule pursuant to Florida Statutes, Section 120.54(9). The factual background of the emergency rule is not in dispute. On April 7, 1977, respondent adopted a rule which permitted Florida Power and Light and Jacksonville Electric, the intervenors herein, to burn a higher sulfur content fuel at their respective plants in Manatee and Duval Counties until August 1, 1978. On that date, those plants would be required to burn fuel with a lower sulfur content. On June 15, 1977, the ERC considered a proposed rule which would extend the time within which the intervenors herein could burn the higher sulfur content fuel from August 1, 1978, to February 1, 1979. The Commission refused to approve this proposed rule and it was not enacted. On June 20-22, 1978, the Commission was given an oral presentation of the results of the Florida Sulfur Oxides Study. As a result of this meeting, the Commission gave notice on June 28, 1978, of its intent to consider an emergency rule allowing the intervenors to extend the date for burning higher content fuel from August 1, 1978, until October 1, 1978. The Commission considered the emergency rule at its meeting held on July 12, 1978, approved it and filed it with the Secretary of State on July 14, 1978. The ERC gave the following "specific reasons for finding an immediate danger to public health, safety and welfare": If the emergency rule is not immediately adopted and Section 17-2.05(6), Table II, Item E(1)(c), F.A.C., amended, the cost to Florida Power & Light Company and Jacksonville Electric Authority to use lower sulfur fuel between August 1, 1978 and October 1, 1978 will be $1,373,000.00. This cost will be directly passed on to the customers of these utilities through fuel adjustment provisions. The additional cost would be paid to foreign countries for the purchase of oil. These passed on costs are not warranted in light of the fact that the Environmental Regulation Commission is presently considering to permanently amend by October 1, 1978 Section 17-2.p.5(6), Table II, Item E(1)(c), F.A.C., so that both of these power plants may use at least the higher sulfur fuel allowed by the emergency rule. As a result of the Florida Sulfur Oxides Study, the presentations made pursuant thereto at the June 20, 21 and 22, 1978 Environmental Regulation Commission Hearing, and the bearing held on this emergency rule on July 12, 1978, the Commission finds no significant environmental benefits to be gained by using the lower sulfur fuel during the two months period. (Copies of the monitoring data for these two power plants modeling data for the Manatee power plant and the Florida Sulfur Oxides Study may be inspected at the address below.) Both of these power plants have been using the sulfur content fuel proposed in the emergency rule since June of 1977 without violating any of the applicable ambient air quality standards. Also because of the large amounts of oil purchased at one time by the utilities and the lead time required for such purchases, it would not be economical for the utilities involved to order a different sulfur content fuel for only a two month period. Accordingly, unless the emergency rule is enacted the customers of these utilities will be charged $1,373,000.00 without obtain- ing any significant environmental benefits and the utilities will be unable to economically purchase fuel. These facts present an immediate danger to the public health, safety and welfare which can only be remedied by the enactment of the emergency rule and by making this emergency rule effective as of the date of filling (sic) or July 13, 1978 whichever is earliest. It was further stated, as "reasons for concluding that procedure used is fair under the circumstances" that the emergency rule procedure was the only procedure available to grant the relief required in that a permanent rule could not be promulgated in time. The Commission noted that the emergency rule was only effective for a two-month period "at which time the Commission will decide on a permanent rule pursuant to Chapter 120 Florida Statutes, for these two power plants." The transcript of the hearing held by the ERC on July 12, 1978, makes it abundantly clear that the Commission did not consider the adoption of the emergency rule to be a commitment to adopt a similar permanent rule which would be effective subsequent to October 1, 1978. Indeed, it was stated by several Commissioners that the entire matter would be dealt with anew and on its merits in September. Were there no emergency rule in effect permitting the intervenors to burn the higher sulfur content fuel, it would cost Florida Power and light $680,000.00 to purchase the lower content fuel for the two month period of August, and September. This cost would be passed on the the consumer. The cost to the average residential customer using one thousand kilowatt hours of electricity would be thirteen cents ($.13) per month. For the average utility bill, this would result in an increase of .03 percent. For Jacksonville Electric, the same costs are $693,000.00 or approximately $1.65 per month per average residential consumer, or a 3.5 percent increase in the average utility bill. The higher sulfur content fuel results in an additional discharge of from 2.4 to 2.6 tons of sulfur dioxide per hour into the air. Neither the Jacksonville nor the Manatee County plants have violated the State's ambient air quality standard during the one and a half years they have been permitted by rule to burn the higher content fuel. Section 120.54(9), Florida Statutes, permits agencies to avoid the formalities of proper rulemaking procedures only when there is a bona fide finding that "an immediate danger to the public health safety, or welfare requires emergency action." Thus, in order to sustain the exercise of emergency action, there must be a clear showing of danger to the public health, safety or welfare and that danger must be shown to be an immediate danger. As recognized in Fuller v. Gardner, 190 So. 442 (Fla. 1939), an agency's assumption of emergency powers in the absence of a bona fide emergency violates basic rights of due process, and constitutes a usurpation of power. A review of the testimony and the record of this proceeding does not support respondent's finding of either a danger to the public health, safety or welfare or an immediacy necessitating emergency action. The substance of the emergency rule -- permission to burn a higher sulfur content fuel than would otherwise be permitted -- certainly does not alleviate or obviate some immediate danger to the public health or safety. Petitioner's only witness on this subject testified that any ingested particles of sulfur dioxide could cause damage to the human lung. However, there was no testimony as to whether the higher sulfur contents allowed by the rule, as opposed to the lower content which would be binding upon the intervenors in the absence of a rule, would present a definite health hazard to residents of Duval or Manatee Counties. Nevertheless, the respondent's own statement of specific findings and reason's of immediate danger do not illustrate an emergency situation with regard to public health or safety. These findings are that there are "no environmental benefits to be gained by using the lower sulfur fuel during the two months period." A mare showing of no harm is not sufficient to satisfy the statutory test for the adoption of emergency rules. The statute requires an immediate danger to the public health. The fact that there may be no significant environmental benefit if a rule is not enacted simply does not justify noncompliance with proper rulemaking procedures. This then leaves the issue of whether there is an immediate danger to the public welfare absent the enactment of the emergency rule. The concept of public welfare is broad and embraces a variety of interests, including monetary and economic interests. It was the testimony of petitioner's expert witness on this subject that the costs involved if the intervenors were required to burn the lower sulfur content fuel would be passed on to the average consumer at the rate of increases in their utility bills of .03 and 3.5 percent. This witness opined that such an increase would not be significant for a two-month period and that the impact on the Florida economy would be inconsequential. There simply is no evidence in the record herein to illustrate that the situation was of such a nature that normal rulemaking procedures were precluded. Even if it were conceded that the total expenditure of $1,373,000.00 could have an adverse impact upon the Florida economy, where is the urgency or immediacy which must exist prior to the exercise of emergency rulemaking procedures? The rule sought to be amended has been in effect since April of 1977. It was to self-destruct on August 1, 1978. The agency was aware of this, as were the intervenors. When confronted in June of 1977 with a request to extend the rule's operation to February 1, 1979, the Environmental Regulation Commission refused the request and failed to so amend the rule. The first three volumes of the Florida Sulfur Oxides Study came in to the Commission in January, 1978. Six volumes were received in February, and the remaining two volumes were received in April, 1978. In May, the ERC received the final written report. Apparently, the summarizing results were orally presented to the Commission at a meeting held on June 20, 21 and 22, 1978. The transcript of the Commission's - July 12, 1978, hearing on the emergency rule, as well as the findings and reasons attending the emergency rule, indicate that the Commission still has not reached a decision as to whether the rule's contents will be repromulgated to be effective after October 1, 1978. 1/ Thus, it appears that any immediate danger in July of 1978 was not created by newly acquired knowledge concerning the effect of the emission of certain levels of sulfur dioxide into the air or by some sudden change which would adversely affect Florida's economy. The emergency was therefore not created by considerations of the public health, safety or welfare. Rather, if there was an emergency at all, it was created by an avoidable administrative failure to properly amend the existing rule to provide an extension for the desired time period. As clearly held in Postal Colony Co., Inc. v. Askew, 348 So.2d 338 (Fla. App. 1st 1977), an emergency created wholly by an agency's failure to take timely action cannot justify extraordinary measures. The emergency rule provisions of Florida Statutes, Section 120.54(9) constitute an extraordinary means of adopting a rule when a true emergency exists which makes compliance with normal rulemaking procedures impossible. The record in this case is barren of evidence that, in mid-July of 1978, there was an immediate danger to the public health, safety or welfare requiring emergency action. IT IS THEREFORE ORDERED THAT the respondent's emergency rule 17ER78-1, which purports to amend Section 17-2.05(6), Table II, Item E(1)(c), F.A.C., by extending the date from August 1, 1978, to October 1, 1978, constitutes an invalid exercise of legislative authority. Done and entered this 7th day of August, 1978, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
The Issue Whether petitioners have standing to challenge the validity of respondent's proposed rules, 38F-5.30 through 38F-5.70, Florida Administrative Code I.
