The Issue Whether the Respondent, Benita A. Roberts (Respondent), committed the violations alleged in the Notice of Specific Charges and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the entity charged with the responsibility under Florida law to operate, control, and supervise the administration of all public schools within the Miami-Dade County school district. As such, disciplinary actions against its employees fall within its authority. At all times material to the allegations of this case, the Respondent was employed by the Petitioner and served as the school cafeteria manager at Natural Bridge. The Respondent has been continuously employed within the school district since 1979. She began employment at the age of 20 and was assigned duties as a pot washer. Later the Respondent rose through the ranks to the position of baker. Eventually, after completing training, the Respondent became a food service manager. Throughout her career she served in various capacities without prior disciplinary action being taken against her. In fact, the Respondent received commendations for her hard work, and her kitchen served as a training place for others. Prior to the incidents complained of herein, the Respondent had served the school district with distinction. The Respondent was assigned to Natural Bridge in September of 1992. For many months prior to December 1999, Adrian Ebanks was employed at Natural Bridge as a part-time cafeteria worker. Mr. Ebanks was limited to 30 hours per week or 60 hours per pay period for compensatory purposes. That is, as his manager, the Respondent was supposed to pay Mr. Ebanks for no more than 60 hours per pay period. To arrive at the 60 hours, Mr. Ebanks was scheduled to work no more than 6 hours per day for the 10 days constituting the pay period. According to the Respondent, Mr. Ebanks exceeded the 60 hours numerous weeks but could only be paid for the 60 hours he was approved to work. According to the Respondent, Mr. Ebanks was a dedicated and hard-working cafeteria helper. Between December 23, 1999 and June 16, 2000, Mr. Ebanks was incarcerated and did not report to Natural Bridge to perform his duties. Nevertheless, because the Respondent believed he was owed time for work performed prior to that time, the Respondent continued to complete the payroll record for Mr. Ebanks as if he had worked on the dates indicated. It is undisputed he did not work during the period December 23 through June 16, 2000. The Respondent was not authorized to complete the payroll record for Mr. Ebanks as she did. If, in fact, Mr. Ebanks was owed for additional time worked but not compensated, she should have contacted a supervisor to approve either additional pay for the hours as they accrued or overtime. In truth, Mr. Ebanks was not eligible for overtime pay. The Respondent sought to reward dedicated cafeteria workers who were, in her judgment, underpaid and hardworking. The system did not allow her to give additional pay beyond the time allocated to part-time workers. Regardless, the Respondent attempted to compensate such employees but did not keep a formal log that would demonstrate the actual hours worked that exceeded the 60 hours that could be compensated. In fact, despite her assessment that Mr. Ebanks was owed for the hours he was paid for while incarcerated, there is no documentation to establish that such hours fairly related to unpaid overtime logged prior to his incarceration. Additionally, no cafeteria worker who might have corroborated the Respondent's conclusions testified with regard to the matter. Moreover, the Respondent did not bring the problem of how to fairly compensate her employees to the attention of anyone until after the allegations of the instant case came to light. And, unfortunately, that was not until a year after the incidents complained of in this case. Not until June of 2001 did the principal become aware of the payroll issues. At that time an individual complained to the principal that the Respondent had paid Mr. Ebanks while he was incarcerated. The investigation of that complaint led to the instant action, a criminal investigation of the matter, an audit, and disciplinary action against Mr. Ebanks and the Respondent. As a result of the payroll records submitted by the Respondent, the Petitioner improperly paid Mr. Ebanks $3,255.48. A conference for the record was conducted with the Respondent on November 7, 2001. At that time, the Respondent admitted she had submitted the payroll records for Mr. Ebanks while he was incarcerated. On February 13, 2002, the Petitioner took action to suspend the Respondent and to initiate dismissal proceedings against her for just cause. The "just cause" was alleged to be deficient and/or non-performance of job responsibilities, misconduct in office, lack of good moral character, and violation of School Board rules dealing with employee conduct. On March 5, 2002, the Respondent pled guilty to official misconduct, petit theft, and grand theft. All of the charges arose from the findings set forth above regarding the completion of the payroll records for Mr. Ebanks. As a result of the plea entered by the Respondent, the court imposed 18 months of probation and required the Respondent to remit fees and costs associated with the prosecution of the case. It is unknown as to whether either Mr. Ebanks or the Respondent made restitution for the $3,255.48 paid to Mr. Ebanks during his incarceration. It is certain the Respondent did not acknowledge that her completion of the time records was contrary to school board guidelines.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Miami-Dade County, Florida, enter a final order affirming the decision to suspend and dismiss the Respondent from her position as a cafeteria manager with the school district. DONE AND ENTERED this 31st day of October, 2003, in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 2003. COPIES FURNISHED: Merrett R. Stierheim Interim Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, No. 912 Miami, Florida 32312-1394 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street 1244 Turlington Building Tallahassee, Florida 32399-0400 Evan Jay Byer, Esquire Evan Jay Byer, P.A. 1999 Northeast 150th Street Suite 102 North Miami, Florida 33181 Luis M. Garcia, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132
Findings Of Fact Ed Smith is the President of Riverside Village Mobile Home Park, Inc., which in turn is the owner of the mobile home park in question in this case. The mobile home park is located in Ruskin, Hillsborough County, Florida. Petitioner was served with an Administrative Complaint alleging that the chlorine residual in the park water supply distribution system was inadequate and that this constituted a violation of Chapter 513 and Section 386.041(1)(f), Florida Statutes, as well as Rule 10D-26.67(1), Florida Administrative Code. Specifically, the Administrative Complaint alleges violations occurring between July 16, 1986 and July 29, 1986, and seeks the imposition of a civil penalty in the amount of $500 per day which "shall be calculated when this complaint is received by the (Petitioner), and will run until the violation has been corrected." Petitioner requested a hearing to contest these allegations, and his request was filed with Respondent's Clerk on October 8, 1986. It was not established by competent substantial evidence when Petitioner "received" the Administrative Complaint which is the subject of this action. The only evidence of any violation occurring between July 16 and July 29, 1986 was the testimony of Harry Messick who signed an Official Notice and Notice of Intended Action which were both dated July 16, 1986, and which alleged that "chlorine reading found at time of inspection (was) between 0.1 ppm and (a) trace." However, Messick did not perform any test to either produce or confirm this result. He testified that someone else performed the field test, but there was no testimony from anyone else who may have actually conducted a test on Petitioner's water supply system on July 16, 1986. Therefore, it has not been established by competent substantial evidence that Petitioner's water supply system on July 16, 1986, was in violation of the requirement that .2 mg/1 of free chlorine residual be maintained. Testimony from Respondent's other witnesses, Norman Vik and Neil R. Schobert, indicates Vik was not even at Petitioner's mobile home park between July 16 and 29, 1986, and the only test conducted by Schobert found that Petitioner's water supply system was in compliance on July 24, 1986. Design modifications in Petitioner's water supply distribution system were approved by the Hillsborough County Health Department on July 9, 1986.
Recommendation Based on the foregoing, it is recommended that Respondent enter a Final Order DISMISSING the Administrative Complaint filed against Petitioner. DONE AND ENTERED this 19th day of February 1987 in Tallahassee, Florida. DONALD D. CONN 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 19th day of February 1987. APPENDIX (DOAH Case No. 86-4094) Rulings on Respondent's Proposed Findings of Fact: 1. Adopted in Finding of Fact 1. 2-3. Rejected in Findings of Fact 4, 5. COPIES FURNISHED: James A. Sheehan, Esquire Florida Federal Building One Fourth Street North Suite 800 St. Petersburg, Florida 33701 Carol M. Dittmar, Esquire 4000 West Buffalo Avenue Suite 520 Tampa, Florida 33614 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32301 John Miller, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32301 =================================================================
Findings Of Fact Petitioner is a special taxing district providing fire protection and rescue services to the residents of the Estero area of Lee County. The fire station is located at 20241 Tamiami Trail, Estero, Florida. Petitioner employs 14 employees, including administrative staff and firefighters. The firefighters work 24 hours straight and then are off-duty for 48 hours. Two to four employees work each shift. Firefighting requires a fast response. Thus, Petitioner requires that on-duty firefighters remain at the station for their entire 24-hour shift, unless they are out fighting fires or performing rescue duties. The fire station contains an 8' x 13' bedroom with six mattresses located on three bunk beds. On-duty firefighters are allowed to bring pillows and sheets so they can sleep at the station while on duty. There are no dressers in the room, which contains small lockers that the firefighters may use to store a change of clothes. Petitioner provides kitchen facilities at the fire station and well water. The well water is used for washing equipment, taking showers, and flushing the toilet. The well water is not used for any other purposes, nor is it used by any other persons. Petitioner provides bottled water for drinking and cooking. All of the firefighters have residences apart from the fire station and within a reasonable commuting distance from the fire station. No firefighter has ever lived at the station. Petitioner does not charge, or reduce the pay of, the firefighters for their use of the limited sleeping facilities. Petitioner lawfully does not treat the use of the limited sleeping facilities by firefighters as gross income for the purposes of withholding federal income tax or making social security contributions. By letter dated July 18, 1995, Respondent informed Petitioner that the fire station's water system is a limited use community water system because the sleeping facilities constituted rental residences, as defined by Rule 10D- 4.024(21), Florida Administrative Code. Respondent advised Petitioner that it was therefore required to obtain a permit. As noted in the following section, the statute authorizes Respondent to regulate as limited use community public water systems those systems serving a certain number of "rental residences." The statute does not define "rental residence." In Rule 10D-4.024(21), Respondent defines a "rental residence" as follows: a dwelling unit, a structure or part of a structure that is rented for use, or furnished with or without rent as an incident of employ- ment, for use as a home, residence, sleeping place by one or more persons, a mobile home rented by a tenant. This term does not apply to facilities offering transient residency such as public lodging establishments. This term includes other facilities where residency or detention is incidental to the provision of medical, geriatric, educational, counseling, religious, or similar services. Respondent equated a "rental residence" with a "dwelling unit" when it based its definition of "rental residence" on the statutory definition of "dwelling unit" in Chapter 83, Part II, Florida Statutes, which is the Florida Residential Landlord and Tenant Act. A "dwelling unit" is a "residence." The American Heritage dictionary defines a "dwelling" as "a place to live in; residence; abode." Similarly, the same dictionary's first definition of "residence" is "the place in which one lives; a dwelling; an abode." But the statutory definition qualifies "residential" with "rental." The word "rental" requires consideration of the nature of the relationship of the occupant to the dwelling and its owner. Obviously, the Florida Residential Landlord and Tenant Act addresses rental transactions, but it does not do so in the definition of "dwelling unit." Other provisions of the Act describe the kind of activity that must take place for a person to be considered a tenant renting a dwelling unit. Most importantly, Section 83.43(6) defines "rent" as "periodic payments due the landlord from the tenant for occupancy under a rental agreement " The facts of this case present a revealing illustration of the distinction between a "residence" or "dwelling unit," on the one hand, and a "rental residence," on the other hand. There is no rental relationship between the occupants of the sleeping quarters at the fire station and the residence or dwelling itself. The firefighters do not pay, directly or indirectly, for these beds or the rooms in which the beds are located. Their employer legitimately does not include the value of the use of these sleeping quarters in the compensation paid to the firefighters. The firefighters have residences within commuting distance of the fire station and use the meager sleeping quarters and kitchen facilities only because they are required to spend long hours continuously at the fire station.
Findings Of Fact At all times pertinent to the issues involved herein, Petitioner, Henry I. Whatley, owner of Hank's Septic Tank Service, was the holder of a permit to operate a septic tank cleaning service issued by the Polk County Health Unit of DHRS. DHRS was the agency charged with regulating operation by the Petitioner. In early June, 1987, Richard Lee Coleman, a Commissioner with the Winter Haven Lake Region Boat Course District, along with members of the press, was involved in a boat-borne examination of several of the northern lakes in the lake chain which made up a part of the District's jurisdiction. As the party was leaving Lake May, going south on the canal joining Lake May with Lake Shipp, Mr. Coleman noticed a white liquid storage truck parked on property abutting the canal, property identified as owned by Petitioner. At the back of the truck, a young man, later identified as Petitioner's son, had opened a valve allowing a 4 to 6 inch stream of grey-brown material pour out from the truck to the ground. When the young man saw the boat coming, he immediately stopped the dumping and started to drive off. Another Commissioner in the group yelled at him to stop, which he did. The Coleman party pulled its boat over to the bulkhead and received permission from Petitioner's son to come on the property. While the group was talking with the young man, Mr. Coleman walked over to the dump site, a filled area which sloped off toward a swampy wetland to the east which constitutes an extension of the lake system. He observed the effluent which had come from the truck draining across the area into the swamp. Mixed in with the effluent were such solid materials as tampon containers and lumps of waste material which, from the smell, was from septic tanks. Mr. Coleman took a sample of the effluent materiel in a sample bottle which had been provided to him by the health department. Just as Mr. Coleman finished taking the sample, Mr. Whatley came up to the group and in the course of the ensuing conversation, indicated he had been dumping effluent there for 10 years without problem and felt there was no harm in it. Mr. Coleman did not want to discuss the matter with Petitioner and left the area. In the company of a reporter who was on the trip with him, Mr. Coleman took the sample to the health department where he left part for analysis, and took the remainder to the Winter Haven water department where the chemist, Ms. Dennis, agreed to analyze it for systems the health department analyst could not look for. A week later, on June 13, 1988, Officer Quarles was operating the police patrol boat in the area when he received a call that a truck was dumping sewage into the canal. When he got to the purported site, he did not see a truck at or near the canal, but saw one about 100 feet east of the canal, parked on an incline with the rear hatch open. On top of the truck, up near the front, he saw Mr. Whatley with a hose, running water into the top hatch. A powerful smelling pile of sand was on the ground outside the back hatch where the water was coming out. This was the same odor of sewage he detected from the water when he entered the canal from Lake May. Officer Quarles called for someone to bring him a sample container into which he placed a sample of the sludge from the center of the pile. Quarles asked Petitioner to stop washing out the truck and Petitioner complied. The sludge at the back of the truck was up to twelve inches deep in parts but the water it contained did not seem to be running off the site. Instead, it was going into the ground. The sludge sample gathered by Mr. Quarles was taken to the Winter Haven health department where it was analyzed for fecal coliform bacteria and fecal streptococci. In October, 1987, Petitioner pleaded no contest in Polk County Court to a charge of depositing a deleterious substance in a lake and was fined $106.00. After the entry of the Court's order, the Department revoked Petitioner's permit to operate a septic tank cleaning service and in place thereof, issued him an interim permit under which he could operate until the expiration of his period of probation. When he submitted his application for a new permit, on December 23, 1987, it was denied because his activities were considered to constitute a pollution hazard. Petitioner does not deny either he or his son was washing out the truck on the dates and at the sites in question. He had been having difficulty stopping the truck because of the heavy buildup of sand in the tank which had to be removed so the truck could pass inspection. As a result, he was cleaning out the truck on his own property, a four acre piece of land which contains its own small lake and which is bordered on one side by 900 feet of the canal between Lake May and Lake Shipp. He was not arrested on either occasion, but several months after the last incident, he was notified to appear in County Court. He was advised by his attorney that he would be fined $106.00 and would be required to do some community service and, thereafter, upon the advice of counsel, pleaded no contest to a charge of illegal dumping of septic tank seepage into the lake chain in the county. He contends that he was told by both the judge and his lawyer that his license to operate his business would not be affected by his plea. As a result of the refusal to renew his permit, he has been relegated to doing repair work in his own name and has been able to continue to service his accounts with a truck borrowed from a competitor. He contends that if he does not get his own permit, he will be put out of business and will have to dispose of his land, the end sought by his wife who is in the process of divorcing him and who wants the land. Both Lake May and Lake Shipp consistently have the highest bacteria count in the chain. Both are used for fishing, water skiing, and other recreational purposes and the bacteria count, checked periodically, usually twice a year, is "alarmingly" high. Admittedly, there are sources other than Petitioner's property which cause bacterial pollution to the lakes, such as storm water drains and industry. Based on tests run in the area, however, it does not appear the industrial waste contains human waste bacteria. Though Petitioner was not dumping directly into the canal, the effluent from his dump was observed to run into the swamp which carries into the lake system. The water samples taken to the health department in this case were initially reviewed by Mr. Tucker, a biological scientist, who routinely chemically tests water from the lakes using the Environmental Protection Agency approved "most probable number" test. He checks for total coliform bacteria, (either animal or vegetable), fecal coliform bacteria, (animal), and fecal streptococci which can determine what animal provided the contamination. The lakes involved here are usually very low in fecal coliform bacteria, showing an average of less than 16 - 200 colonies per ml of water. Fecal streptococci count is usually in the low teens. With these levels, the water in the chain is usually pretty good except for the few trouble spots such as the storm drains and industrial inflows described above. The tests he ran on the water sample submitted by Mr. Coleman showed extremely high bacteria count. The concentration was so high he was unable to distinguish individual colonies even at a dilution rate of 1 to 10,000. The ample, which at this level was off the scale, showed a solid mass of bacteria. The streptococcus count was also well above what normal lake water would show. The sample obtained by Mr. Quarles running water through the sand was also so high as to be off the scale. Ordinarily an incubation period of 48 hours is required to get a reading on tests such as these. In this case, Mr. Tucker got a reading after only 8 hours even using a different method for analysis than that used on the Coleman sample. The sample's bacteria count was so concentrated, a comparison with normal lake water was impossible. Ordinarily, introduction of bacteria like this in the concentrations shown here, could destroy the lake and produce in humans anything from scarlet fever to simple diarrhea. Ms. Dennis, the water plant chemist who conducted the additional tests on the water sample brought in by Mr. Coleman, evaluated chemical oxygen demand, (COD), biological oxygen demand, (BOD), and the PH factor which, in this case, was neutral. The COD test, which shows how much oxygen is used by chemical activity caused by the presence of chemicals or organics, normally averages 430 in raw sewage. Here, the sample showed 11,552. The BOD test, which shows how much oxygen is being used by organisms in the water averages 150 - 250. Here, the sample showed 1400. The higher the number on these two tests, the greater the degree of contamination. Ms. Dennis also ran other tests. Ammonia in the water shows what the microorganisms use for food. Whereas the average is usually 10 - 40 ppm in raw sewage, the sample in question showed 41. Organic nitrogen is usually 1 - 10 ppm in raw sewage. Here it was 200 ppm. Nitrate levels were not significantly above average. Taken together, the tests run by Ms. Dennis on the Coleman samples showed counts much higher than the counts for raw sewage generally in Winter Haven. Mr. Whatley claims he has been in business for 19 years without having any difficulty with the health department. He denies any health hazard, claiming that any harmful bacteria in the waste are killed by the many household chemicals which end up in the septic tank with the waste. He holds himself out as an example, claiming he has worked with this substance for years and has never been made sick by it. Chemical analysis, however, is far more significant and convincing evidence of danger than Mr. Whatley's health and clearly indicates that bacteria in the waste were alive and active.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is therefore: RECOMMENDED that Petitioner's application for a permit to operate a septic tank cleaning service be denied. RECOMMENDED this 29th day of July, 1988, at Tallahassee, Florida. ARNOLD H. POLLOCK, 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 29th day of July, 1988. COPIES FURNISHED: Henry I. Whatley 127 Strain Blvd. Lakeland, Florida 33801 Edward Haman, Esquire HRS District VI Legal Counsel W. T. Edwards Facility 4000 E. Buffalo Avenue Tampa, Florida 33614 Gregory L. Coler, Secretary Department of HRS 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 R. S. Power, Agency Clerk Department of HRS 1323 Winewood Blvd. Tallahassee, Florida 32399-0700
The Issue Whether the amendment to the Future Land Use Map of the City of Hialeah Comprehensive Plan, adopted by Ordinance 2015-34 on June 9, 2015, is “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes (2014).1/
Findings Of Fact The Parties Respondent, City of Hialeah (the City), is a municipal corporation in the State of Florida with the duty and responsibility to adopt and maintain a comprehensive growth management plan pursuant to section 163.3167, Florida Statutes. Petitioners, Tania Garcia, Pedro Romero, and Miguel Gonzalez, reside in and own property within the city of Hialeah. Petitioners submitted oral or written comments concerning the FLUM Amendment to the City, either in person or through their attorney, during the period of time beginning with the transmittal hearing for the FLUM Amendment and ending with the adoption of the FLUM Amendment. Intervenors, Hialeah 10.1 Acres, LLC and Les Chalet, LLC, own the property which is the subject of the challenged FLUM Amendment. The Subject Property The property subject to the FLUM Amendment (the Property) is located in the northwest quadrant of the City in an established residential area. The 9.9-acre parcel is bounded on the east and west by West 9th and 10th Avenues, respectively; and on the north and south by West 36th Street and West 33rd Place, respectively. None of the boundary roads is an arterial road. The City characterized the Property as an entire city block. Assuming that description is accurate, the city blocks surrounding the subject Property are roughly half the size of the subject Property. The existing land use designation of the Property is Low-Density Residential, but the Property is not developed for residential use. Since 1928, the Property has been used by DuPont Weathering Systems as the Florida Weathering and Testing Lab for performing outdoor weathering tests on a variety of finished products (e.g., garden products, automotive coatings). The prominent structures on the Property include a laboratory facility and multiple parallel rows of aluminum racks. The FLUM Amendment The FLUM Amendment changes the FLUM designation of the Property from Low-Density Residential (LDR), which allows construction of up to 120 single-family dwelling units, to Medium-Density Residential (MDR), allowing up to 240 multi-family dwelling units. The FLUM Amendment authorizes a two-fold increase in density, as well as a change in the type of structures which may be developed on the Property. While both the LDR and MDR categories allow development of single-family detached houses, townhouses, duplexes, and mobile homes, MDR additionally allows condominiums, garden apartments, and apartments. Intervenors originally applied to change the FLUM designation on the Property from LDR to HDR, or High-Density Residential. The application was altered to an amendment from LDR to HDR prior to the City Council’s second public hearing on the application on June 9, 2015. Thus, the application considered by the City’s Growth Management Advisory Committee on April 10, 2015; by the City’s Planning and Zoning Board on April 22, 2015; and by the City Council on May 12, 2015, would have allowed development of roughly 400 units on the Property. In this case, the FLUM Amendment has been adopted with a binding Declaration of Restrictions (Declaration). Through the Declaration, Intervenors have agreed to restrict development to 240 garden apartments, provide sidewalks six and one-half feet in width around the perimeter of the Property, establish and maintain perimeter landscaping, develop any on-street parking abutting the Property required by the City during site plan review, and provide “improvements to the water and sewer facility located at the southwest corner of West 10th Avenue and West 35th Street as the City determines is necessary for the proposed project.” Pump Station 106 The City operates a sewer collection and transmission system only. The City’s system connects to the Miami-Dade County sewer system which provides sewer treatment and disposal. The City system collects effluent from residential and non-residential uses within 83 distinct service areas, or basins. The effluent is collected into gravity sewer lines which transport the effluent through a series of small pump stations into a master pump station for each basin. The master pump station transports the collected effluent into the County sewer system at a number of connections with the County force main. The master pump stations operate on a system of high pressure. The City of Hialeah is subject to a Consent Decree among Miami-Dade County, the Florida Department of Environmental Protection, and the United States Environmental Protection Agency, requiring repair of a number of sewer pump stations by November 2017. The Property and the surrounding neighborhood are within the basin served by pump station 106. The station is located directly across West 10th Avenue from the Property and across West 35th Street from Petitioner Garcia’s residence. The station has a history of system failures, which have caused sewage overflows in the surrounding residential area. Poor- performing pumps at the station have also leaked effluent on- site, releasing offensive odors. To put it mildly, the station has been a bone of contention between the City and some area residents. The station was last improved in 2007 by the addition of two booster pumps designed to work during periods of high flow in conjunction with the four pumps located “in the ground” at the station. At the time of hearing, pump station 106 was under conditional moratorium, meaning no new development can connect to the station until it is repaired or released from moratorium status. Plans to improve the station are incorporated in the Inventory of Needs and Funding Sources section of the City’s Comprehensive Plan, Capital Improvements Element (CIE), as follows: c. Sanitary Sewer * * * (3) Upgrades and Maintenance of the Sanitary Sewer System: Planned projects include a new regional sanitary sewer pump station to serve the northwest area of the City, and an environmental project. Planned upgrades include the reconstruction and rehabilitation of two regional sewer pump stations (Pump Station 106 and Pump Station 6), and the design and implementation of two rehabilitation programs including the reduction of infiltration and inflow by relining sewer mains and the upgrade and rehabilitation of all 84 sanitary sewer pump stations. The City has contracted with the environmental engineering firm of Hazen and Sawyer to redesign the station and oversee reconstruction and rehabilitation. The station will be redesigned to a “fully submersible” station, eliminating the exterior booster pumps. In the 2009 Annual Update to its Capital Improvement Plan, the City budgeted a total of $18,171,000 for pump station projects through 2015. For fiscal year 2015-2016, the City’s Public Works Department Budget includes $3,900,000 for construction and upgrades to City pump stations subject to the consent decree. The City anticipates resolving all issues related to pump station 106 by January 2016. Petitioners’ Challenge Petitioners allege three bases on which the FLUM Amendment should be found not “in compliance.” First, Petitioners allege broadly that the FLUM Amendment is not supported by data and analysis regarding the area “including the character of the community and consistency of adjacent future land uses and the availability of public infrastructure capacity,” citing sections 163.3177(6)(a)2. and 8. as grounds therefore. Petitioners break this allegation down further into two subsets: (1) the FLUM Amendment is not supported by data and analysis concerning the suitability of the Property “for the proposed residential development density and intensity,” and (2) the FLUM Amendment is not based on data and analysis demonstrating availability of sewer facilities.4/ Additionally, Petitioners allege the FLUM Amendment is internally inconsistent with the following policies of the Comprehensive Plan: Policies 1.1.3 and 1.6.5 of the Future Land Use Element (FLUE) and Policy 1.2.2 of the CIE. Availability of Sewer Service Section 163.3177(6)(a)2. requires plan amendments to be based upon “surveys, studies, and data regarding the area, as applicable, including . . . the availability of water supplies, public facilities, and services.” Petitioners stipulated that the City has adequate sewer capacity to serve the density of development allowed under the FLUM Amendment, except with regard to pump station 106. The most significant data on this issue is the fact that the station is under a conditional moratorium, meaning no new development can be connected to the station until it is released from moratorium. The City was well aware of that fact when it considered the FLUM Amendment. The City has accepted the applicant’s contribution of $250,000 toward needed repairs at the station to bring it out of moratorium status. Petitioners introduced evidence supporting a finding that, at various times in the weeks and months prior to the final hearing, the station was not functioning at full capacity. For example, both of the booster pumps had recently been sent out for repair and only one booster pump was in place and functioning on the date of hearing. Petitioners introduced the testimony of David Alonso, a temporarily-appointed City sewer and water foreman, who has had substantial experience with maintenance of the station. Mr. Alonso testified that the station has been functioning for some time with “minimal maintenance,” and described effluent leaks and other malfunctions at the station. Petitioners also introduced evidence that the capacity of the station to collect and transport effluent is reduced by infiltration and inflow (I/I) of ground and surface waters. Infiltration occurs when ground water seeps into gravity sewer pipes through cracks during seasons when the water table is high. Inflow refers to the introduction of large volumes of surface water into the system during rainstorm events. The City did not deny the impact of I/I on sewer capacity. In fact, Armondo Vidal, Director of Sewer and Water, testified that he always takes I/I into account in calculating the amount of capacity needed to service a development by adding “cushion” to the numbers. Mr. Alonso further testified that a manhole within the basin had been intentionally plugged by an employee some six or seven months prior to the final hearing. Mr. Alonso speculated that the plug would have artificially increased capacity at the station. Mr. Vidal acknowledged the plugging of the sewer manhole and confirmed that it had been remedied shortly after it was brought to his attention. Mr. Vidal explained that plugging the manhole would have temporarily minimized inflow to the system. The City must meet the Miami-Dade County standard limiting I/I to 5,000 gallons per day per inch per mile (gpdim). The City has undertaken a relining project to reduce ground water infiltration into the system. Mr. Vidal testified that lining is complete on 37 to 39 percent of the sewer pipes in the basin served by pump station 106. According to the City’s 2014 Sewer Rehabilitation Annual Report (January 2015), the City’s lining project has been “highly successful” in reducing I/I. The report documents a system-wide level of 3,655 gpdim, well below the 5,000 limit.5/ Petitioners proved, at most, that the station is not operating at its design capacity and requires significant repairs in order to do so. Petitioners proved that, until recently, the station has not been maintained well. Pursuant to the City’s Comprehensive Plan and concurrency management system, development proposed under the FLUM Amendment will be evaluated during site plan review in relation to existing and projected sewer system needs. The basis for sanitary sewer concurrency analysis will be the available capacity at the master pump station. Whether the station will have the capacity to serve development under the FLUM Amendment at the time the development takes place is a subject of fair debate, given the pump station repairs underway, the relining project to reduce infiltration, and other planned improvements for completion in January 2016. Land Use Suitability Section 163.3177(6)(a)8.b. requires future land use map amendments to be based on an analysis of “the suitability of the plan amendment for its proposed use considering the character of the undeveloped land, soils, topography, natural resources, and historic resources on site.” Section 163.3177(6)(a)2.c. requires plan amendments to be based upon data regarding the character of the undeveloped land.6/ In processing the FLUM application, Ms. Storch consulted the Comprehensive Plan data regarding topography and soils of the area and determined that neither presented any limitation on development of the Property. Ms. Storch further consulted the Comprehensive Plan list of historic archaeological and architectural sites and confirmed that none were located on the Property. Finally, Ms. Storch visited the Property and observed no wetlands or other natural resources which would limit development of the Property. Petitioners introduced no evidence to contradict Ms. Storch’s findings as to the suitability of the Property for the proposed use. Internal Consistency Policy 1.6.5 Petitioners next argue that the FLUM Amendment creates an internal inconsistency with FLUE Policy 1.6.5., which states, “[l]and uses that generate high traffic counts shall be encouraged to locate adjacent to arterial roads and mass transit systems.” Ms. Storch testified that the proposed use of the Property (MDR) is not a use that generates high traffic counts. She testified that commercial uses, such as grocery stores and movie theaters, are much higher trip generators than multi-family development. Further, she testified that single-family development is sometimes a higher trip generator than multi- family. Ms. Storch’s opinion was based in part upon her review of a State Department of Transportation (DOT) publication which assigns trip generation rates to various land uses. The DOT data is the type of data upon which a planning expert would reasonably rely in formulating such an opinion.7/ Petitioners’ expert, C. Wesley Blackman, offered the opposite opinion--the proposed use constitutes a high traffic generator. Mr. Blackman’s opinion was based on a comparison between the traffic associated with LDR, for which the Property is already approved, and MDR, the category being sought by the applicant. In Mr. Blackman’s opinion, the term “high traffic generator” is a relative term. He concluded the proposed use is a high traffic generator because it will allow development at twice the density of the existing category. Under Mr. Blackman’s theory, it appears that any use that is more dense or intense than LDR would be considered a high traffic generator. Ms. Storch’s testimony is accepted as more credible and more persuasive on the issue. Petitioners did not prove that the FLUM Amendment is inconsistent with FLUE Policy 1.6.5. Whether the proposed use of the Property MDR is a “high traffic generator” is at least subject to fair debate. FLUE Policy 1.1.3 Petitioners further urge that the FLUM Amendment is inconsistent with FLUE Policy 1.1.3, which provides that “[w]here excess public infrastructure exists, densities and land use intensities may be increased, consistent with the future land use plan.” Essentially, Petitioners’ argument is that because pump station 106 is under a conditional moratorium, there is no excess sewer capacity to serve increased development density on the Property. The station has a maximum design capacity of between 6.5 and 8.2 million gallons per day (mgpd). That capacity is contingent upon proper functioning of all six pumps--the four in- ground pumps and the two booster pumps. Mr. Vidal testified that the station is currently meeting a demand of 2.7 mgpd generated by the existing basin population. Mr. Vidal calculated the sewer demand which would be generated by 240 units as 0.14 mgpd. Thus, the total demand on the station, even with the anticipated development, is 2.84 mgpd, well below the station’s capacity of 6.5 to 8.2 mgpd. Mr. Vidal conceded that I/I diminishes capacity by inflating the flow through the station. Mr. Vidal testified that the station has an average flow of 4.5 mgpd taking into account I/I. Thus, the station has excess capacity to collect and transmit an additional 0.14 mgpd, even accounting for I/I, when operating at design capacity. Petitioners introduced no evidence to refute the numbers and calculations presented by Mr. Vidal. Instead, Petitioners presented the testimony of Mr. Alonso regarding ongoing maintenance issues at the station. Mr. Alonso admitted that he could not provide calculations regarding capacity of the station. Mr. Vidal conceded the maintenance issues raised by Mr. Alonso and gave a detailed account of the repairs that are outstanding and estimates for completion. Mr. Vidal testified that three of the pumps were being repaired in Jupiter, Florida, on the date of the hearing and should be repaired and reinstalled within four to six weeks. Further, another pump was in the yard awaiting a part for replacement. When that pump is repaired, it will be installed “in the ground” as a standby pump. Pursuant to Mr. Vidal’s testimony, the station will be operating at design capacity within four to six weeks of the hearing date. Petitioners did not prove beyond fair debate that the City does not have excess sewer capacity to serve the increased residential density allowed under the FLUM Amendment. CIE Policy 1.2.2 Finally, Petitioners assert the FLUM Amendment conflicts with CIE Policy 1.2.2, which reads, as follows: In coordination with other City departments, the Planning and Development Department shall evaluate land use amendments to determine the compatibility of those amendments with the adopted level of service standards and to ensure adequate funding is available when improvements are necessary pursuant to such land use amendments. Petitioners’ argument seems to be that Ms. Storch did not either have or obtain information regarding the impact of the FLUM Amendment on sewer level of service and funding available to improve pump station 106 between the time she received the application and made her recommendation for approval to the City Council. The City has an established Growth Management Advisory Committee, or GMAC, consisting of representatives of the following departments: planning and development, water and sewer, police, fire, and streets. The GMAC convenes on a regular basis to consider proposed Comprehensive Plan amendments. One of the purposes of the GMAC is to provide recommendations to the local planning agency on applications for plan amendment. Ms. Storch provides GMAC members copies of the proposed amendments in advance of the meetings and she leads the meetings. Department heads may discuss at GMAC meetings any issues of interest to their respective departments. The meetings are informal, although they are advertised and open to the public. The FLUM Amendment was considered by the GMAC at its meeting on April 10, 2015. Cesar Castillo represented the Public Works Department at the meeting. During the meeting, Mr. Castillo stated for the record that pump station 106 was under a conditional moratorium and that the applicant had been informed of that fact. Mr. Castillo further stated that the applicant was negotiating with the Department and the Mayor for an agreement to contribute to needed repairs to the station. He emphasized that the station would have to be released from conditional moratorium before the development could be permitted. Ms. Storch was also present, briefly, at a meeting prior to the GMAC meeting between the applicant, the Mayor, and Mr. Vidal, at which she was informed that the application was forthcoming and that Mr. Vidal was meeting with the applicant to resolve issues with regard to pump station 106. Ms. Storch is the City’s Planning and Zoning official and the only planner on the City staff. She is responsible for implementing the Comprehensive Plan, preparing and coordinating amendments thereto, and preparing evaluations of and updates to the plan. Ms. Storch is well aware of the contents of the CIE and the five-year schedule of capital improvements for each Department, which are incorporated into the plan and updated on an annual basis. As such, Ms. Storch had knowledge of the Needs and Inventory Analysis regarding pump station 106 in the CIE and the schedule of capital improvements adopted therein for sewer system repairs. Petitioners did not prove beyond fair debate that the Planning Department did not coordinate review of the FLUM Amendment with other departments regarding whether public facility improvements were needed and whether funding was available for those improvements.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a final order determining that the City of Hialeah Comprehensive Plan Amendment adopted by Ordinance No. 2015-34 on June 9, 2015, is “in compliance,” as that term is defined in section 163.3184(1)(b). DONE AND ENTERED this 18th day of November, 2015, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 18th day of November, 2015.
The Issue The issue for consideration herein is whether the withdrawal by Amerifirst of its application for a permit from the Department to build a recreation area and boat ramp on the Braden River precludes a hearing to determine whether the project can be constructed under a general permit held by Amerifirst.
Findings Of Fact On July 13, 1989, the Department received an application from the Respondent, Amerifirst, for a permit to construct a recreational area and boat ramp for its 465 acre, 966 unit Mote Ranch development in Manatee County. Thereafter the Department published an Intent to Issue the permit in question in which it advised persons whose substantial interests were affected thereby of their right to protest and request a formal hearing. By Petition filed June 1, 1990, the City filed a timely Petition For Formal Hearing protesting the Intent to Issue, claiming that the project would degrade the quality of the City's only public drinking water supply. The matter was forwarded to the Division of Administrative Hearings for appointment of a Hearing Officer, and on June 22, 1990, the undersigned set the matter for hearing in Bradenton on August 28, 1990. However, in July, 1990, Amerifirst communicated to the Department its intention to use the general permit under Section 17-312.803, F.A.C., for the installation of the boat ramp, and by letter of August 13, 1990, the Department indicated that proposed action appeared to be authorized. Thereafter, on August 14, 1990, Amerifirst requested withdrawal of the previously filed special permit which had been protested by Petitioner herein. The parties agree that Amerifirst's withdrawal of its application for special permit renders moot the issue of that permit's propriety.
Recommendation It is, therefore: RECOMMENDED that the Department's Notion To Dismiss be granted and that an Order be issued dismissing the City of Bradenton's Petition For Formal Proceeding in this case. RECOMMENDED in Tallahassee, Florida this 19th day of October, 1990. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of October, 1990. COPIES FURNISHED: Mark A. Nelson, Esquire Harllee, Porges, Hamblin & Hamrick, P.A. P.O. Box 9320 Bradenton, Florida 34206 Steven J. Chase, Esquire Abel, Band, Brown, Russell & Collier, Chartered P.O. Box 49948 Sarasota, Florida 34230-6948 Richard Donelan, Esquire Department of Environmental Regulation 2600 Blair Stone Rd. Tallahassee, Florida 32399-2400 Dale H. Twachtmann, Secretary Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue Whether Respondent is unfit or incompetent to practice pharmacy for the misuse or abuse of any medicinal drug appearing in any Schedule set forth in Chapter 893, Florida Statutes, in violation of Section 465.016(1)(d)(2), Florida Statutes. Whether Respondent failed to maintain on a current basis a complete and accurate record of each controlled substance manufactured, received, sold, delivered or otherwise disposed of, in violation of Section 893.07 and therefore, Section 465.016(1)(e), Florida Statutes.
Findings Of Fact The Respondent, Rocky F. Schierhoff, was licensed by the Board of Pharmacy as a pharmacist on January 17, 1979, and was issued license number PS 0017217, and at all times relevant hereto was a licensed pharmacist. The Respondent was employed as a pharmacist by Walker Memorial Hospital, Avon Park, Florida and was assigned as the staff pharmacist at the Lake Placid Medical Center Pharmacy in Lake Placid, Florida for approximately one and one-half years until April 18, 1990. The Lake Placid pharmacy is an institutional as well as a community type pharmacy. The Respondent was the sole pharmacist in charge the Lake Placid pharmacy including all medications, inventories, day-to-day ordering and receiving of drugs for the Lake Placid pharmacy. It was the responsibility of either the Respondent or Mr. Donald Boger, Director of Pharmacy, Walker Memorial Hospital, to fill out all DEA order forms. The Respondent was placed on suspension from Lake Placid pharmacy on April 16, 1990. On April 18, 1990, a shortage of Meperidine 100 from the Lake Placid pharmacy was discovered. The Meperidine shortage was discussed with the Respondent on April 19th at which time the Respondent admitted he was aware of the shortage but did not know the proper procedure for recording it and did not record the shortage. April 20, 1990, an audit of the Lake Placid pharmacy was conducted by the Director of the pharmacy which revealed shortages of Hydrocodone, generic Fiorinal and Fioricet. At the Lake Placid pharmacy, during the time of his employment there, it was the Respondent's responsibility to record, or at least report shortages or theft at the pharmacy. On July 10, 1990, an audit was conducted of the Lake Placid pharmacy by Investigator James Potter of the Department of Professional Regulation. The results of the audit conducted by Mr. Potter, of the Lake Placid pharmacy, on July 10, 1990, revealed the following shortages for the period ending June 1, 1990. Fastin short 270 Fiorinal short 159 Fioricent short 300 Tylenol short 73 Hydrocodone liquid short 1,547 oz. Meperidine 300 mg short 56 syringes Meperidine 50 mg short 360 milliliters Meperidine 75mg short 141 milliliters Meperidine 100mg short 540 milliliters Morphine 8mg short 60 milliliters Morphine 10mg short 9 milliliters From the time of the Respondent's suspension until the DPR audit, Donald Boger was in charge of dispensing medications at the Lake Placid pharmacy, who recorded all transactions that took place in the pharmacy for the period April through June, 1992. Fastin is a Schedule III prescription drug, and is a medicinal drug as defined in Section 465.003(7), Florida Statutes. Fiorinal is a medicinal drug as defined under Section 465.003(7), Florida Statutes, and falls within Schedule III prescription drugs. Fioricent is also a medicinal drug as defined by Section 465.003(7), Florida Statutes, and falls within Schedule III prescription drugs. Tylenol Number 3 is also a medicinal drug as defined by Section 465.003(7), Florida Statutes, and falls within Schedule III prescription drugs. Hydrocodone is also a medicinal drug as defined by Section 465.003(7), Florida Statutes, and falls within Schedule III prescription drugs. The Respondent was incapable of determining how many drugs were in the pharmacy, but relied on the computer records as his system for keeping track of the drug inventory. Responsibility for operation of the pharmacy lies not only with the consultant pharmacist, but also with the Respondent. No evidence was presented which demonstrated that Respondent was unfit or incompetent to practice pharmacy.
Recommendation Based on the foregoing, it is RECOMMENDED that the Board of Pharmacy enter a Final Order finding that Respondent Rocky Schierhoff, has violated Section 465.016(1)(e), Florida Statutes (1991). It is further RECOMMENDED that the Respondent should be reprimanded by the Board for failure to maintain proper records, and the Respondent should be assessed an administrative fine of $1000.00 dollars and placed on probation for a period of two years with such reasonable terms and conditions as the Board may prescribe. DONE AND ENTERED this 31st day of March, 1992, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 1992. COPIES FURNISHED: Tracey S. Hartman, Esquire Dept. of Professional Regulation 1940 N. Monroe Street, Suite. 60 Tallahassee, Florida 32399-0792 Rocky R. Schierhoff 407 S. Egret Street Sebring, Florida 33872 Jack McRay, General Counsel Dept. of Professional Regulation 1940 N. Monroe Street, Ste. 60 Tallahassee, Florida 32399-0792 John Taylor Executive Director Dept. of Professional Regulation 1940 N. Monroe Street, Ste. 60 Tallahassee, Florida 32399-0792
The Issue Whether the rules promulgated by the Department of Environmental Regulation require the Respondent to employ the services of a state certified water system operator to operate the water systems at the two business locations involved in these proceedings.
Findings Of Fact At all times material to these proceedings, the Respondent was responsible for the operation of two water systems. One water system is located on Highway 92 West, Winter Haven, Polk County. The other water system is located on State Road 37 South, Mulberry, Polk County. The restaurant and bar business operated at the Winter Haven location is known as the Rainbow Club. Customers eat food and drink beverages prepared with water from the on site water system. The system serves at least twenty- five individuals daily, at least sixty days out of the year. The convenience store business operated in Mulberry serves ice tea, juices, and coffee to customers which is prepared with water from the on site water system. The system serves at least twenty-five individuals daily, at least sixty days out of the year. During the recent past, the Respondent retained a certified operator to meet the state requirements. He was not satisfied with the operator for the following reasons: (1) He had to show the man how to chlorinate the water. (2) The operator took the required chlorine samples from water that had not been chlorinated. (3) Visits were not made to the site as scheduled. (4) The pump at one of the establishments was harmed by the certified operator. (5) The expense of four hundred dollars a month for the testing of three sites operated by the Respondent was too much money. The Respondent wants to be able to chlorinate the water and maintain the systems himself. He has professional experience regulating the chemical balance of water in swimming pools. The samples he turned into the lab himself were good. The Respondent also wants to keep the old well next to the convenience store in Mulberry. He disagrees with the Department's request that he abandon the well because he needs it for an adjoining piece of property. This well is used for lawns, not for the convenience store business. The Department is amenable to the Respondent maintaining his own systems if he is certified to do so. The next examination is scheduled for November 1990.
The Issue The issues in this case are: 1) whether the Petitioner, Southport Ranch, LLC (Petitioner), is a substantially affected person with standing to challenge the Respondent, South Florida Water Management District’s (District) intent to issue Environmental Resource Permit (Mitigation Banking) Number 49-00007-M to the Respondents, D.R. Horton, Inc., and Osceola County (Applicants); and 2) the number of potential mitigation bank credits that the District should award to the Applicants.
Findings Of Fact The Parties The District is a government entity created pursuant to chapter 25270 of the 1949 Laws of Florida, and operates as a multi-purpose water management district. The District has the authority and duty to exercise regulatory jurisdiction over the Twin Oaks Mitigation Bank (the Project) under the provisions of part IV, chapter 373, Florida Statutes, and Titles 40E and 62 of the Florida Administrative Code. The Respondent, D.R. Horton, Inc. (D.R. Horton), is a Florida corporation and the owner of two of three parcels that comprise the Project. D.R. Horton is the largest homebuilder in the Unites States with a large full-time staff in Florida and around the country. The Respondent, Osceola County, is a political subdivision of the State of Florida and the owner of one of three parcels that comprise the Project. The Petitioner, Southport Ranch, LLC, is a Florida limited liability corporation that owns 7,000 acres of real property located within the Lake Tohopekaliga (Lake Toho), Lake Gentry, and Reedy Creek drainage basins in Osceola County. Petitioner’s Substantial Interests The real property owned and managed by the Petitioner is called Southport Ranch (Ranch). The Ranch straddles three drainage basins, which are sub-basins within the Kissimmee River Basin. A small portion of the Ranch touches Lake Toho and the eastern boundary of the Ranch extends to the centerline of the C-35 Canal. Water flows south from Lake Toho through the C-35 Canal and into Ranch property through culverts. Extensive wetland resources are located throughout the Ranch, including forested, freshwater, and herbaceous wetlands. The Ranch is populated by a wide array of aquatic and wetland dependent animal species, including several species that are listed as threatened or endangered by the state or federal government. The Petitioner is owned by a series of trusts established by George Andrew Kelley (Kelley) who passed away in 2014. Kelley was a fourth-generation cattle rancher. Gary Lee manages the Ranch operations and is also the trustee of the George Andrew Kelley Family Trust. Mr. Lee testified that the Petitioner’s primary management objective, consistent with the direction of Kelley prior to his death, is preservation and conservation. This includes preserving and protecting existing wetland habitat on the Ranch. Historically, the primary land use on the Ranch was cattle ranching and that activity continues on a portion of the Ranch property. The other land use is the Southport Ranch Mitigation Bank (SRMB), a wetland mitigation bank permitted by the District in 2010. The SRMB is operated by a separate company in partnership with the Petitioner, and they are co- permittees on the mitigation bank permit. Mr. Lee testified to certain concerns with the Project and the number of proposed mitigation credits. Mainly that, if the Project does not achieve success as a mitigation bank, it could be detrimental to existing wetlands, such as those on the Ranch, which support aquatic and avian species. In addition, there could be adverse regional impact in the form of a net loss of wetlands. Mr. Lee considers the Ranch to be a “very[,] very[,] very unique piece of property” and “we’re trying to save it.” The Petitioner’s expert, Carl Salafrio, testified that utilization of a mitigation credit or credits that do not completely offset the loss of wetland function caused by a permitted wetland impact within the Kissimmee River watershed or the three sub-basins in which the Ranch property is located, would adversely impact aquatic and wetland species present on the Ranch. The Project and Vicinity The Applicants propose to construct and operate the Project along the northeast side of Lake Toho in Osceola County. The Project consists of three mitigation areas (MA) with a total of 747.91 acres. MA1 is the northern parcel and comprises 202.94 acres that are currently drained by an off-site pump that pushes water to the west into Lake Toho. MA1 is bounded on the north by the Partin Canal, to the west by Kings Highway, and to the east by Neptune Road. D.R. Horton owns MA1. An existing conservation easement (CE) encompasses 45.26 acres of MA1. The CE is associated with the prior issuance of an Environmental Resource Permit (ERP) for Phase 1A of a residential development known as the Toho Preserve (now known as Kindred). MA2 is south of MA1 and the southwestern region of MA2 abuts the northeastern shore of Lake Toho. MA2 is bounded to the east by Macy Island Road. MA2 comprises 283.82 acres that are currently drained to the south by a pump into Lake Toho. MA2 is owned by D.R. Horton. MA3 is east of MA2 and comprises 261.15 acres that drain through a culvert under Macy Island Road into MA2 and south into Lake Toho. MA3 is owned by Osceola County and the County will be the sole user of the mitigation credits generated by MA3. MA3 is bounded on the east by the C-31 canal and to the south by a park owned by Osceola County. The service area for the mitigation bank consists of the Lake Toho, Reedy Creek, Lake Gentry, Lake Hart, Shingle Creek, Boggy Creek, Lake Hatchineha, and Lake Kissimmee drainage basins within the jurisdiction of the District. The service area also includes portions of the Southern St. Johns River basin, which is within the jurisdictional boundary of the Southwest Florida Water Management District, and additional areas within the boundaries of the St. Johns River Water Management District. The Project site was historically littoral areas of Lake Toho that were separated from the Lake by drainage modifications, such as those made in the 1950s by the Central and South Florida Flood Control Project. The drainage modifications included features, such as the C-31 Canal, the Partin Canal, dikes, ditches, pumps, culverts and roads. In particular, the large agricultural pumps at MA1 and MA2 drain the mitigation areas and pushes water into Lake Toho to maintain the acreages as pasture for cattle grazing. The Applicants propose to construct the Project through a combination of wetland restoration, wetland and upland enhancement, conservation easements, and implementation of hydrologic improvements. The Project will increase hydroperiods in targeted wetlands to mimic the historic hydrologic regime and restore natural sheet flow patterns that existed prior to the drainage modifications. Rainfall and runoff from adjacent developments will serve to hydrate the three mitigation areas. Successful restoration of the natural hydroperiods will promote the growth and maintenance of desired wetland vegetation communities in the mitigation bank. D.R. Horton will manage and operate the Project until it meets the success criteria documented in the permit. Once the Project achieves success, Osceola County will operate and maintain the Project in perpetuity. Osceola County has implemented an Environmental Land Conservation program (SAVE Ordinance) designed to acquire and manage, in perpetuity, conservation lands. Proposed Enhancement and Restoration The Project would restore the upland and wetland habitats historically a part of, and hydrologically connected to, Lake Toho. The mitigation activities will consist of various methods for the targeted community types. These include hydrologic enhancement and restoration, regrading wetland areas and ditches to match natural grades, prescriptive burning, elimination of nuisance and exotic plant species, and vegetation enhancement and restoration. The Project would eliminate incompatible land uses within the mitigation areas, such as cattle grazing, hay production, and sod farming. The Project would reestablish wetland community structures and functions similar to the natural, historic wetland communities within the mitigation service area. The target community types and required hydrologic enhancement were also identified by the Applicants’ expert, John Lesman. Mr. Lesman testified that he consulted resources, such as Ecosystems of Florida and the Florida Natural Areas Inventory. For example, portions of the upland pasture areas would be restored to slough marsh and wet prairie communities by increasing the elevation and duration of seasonal high water levels. Planting is proposed in upland enhancement areas because of a lack of viable seed source for natural recruitment of native upland species. For the wetland enhancement and restoration areas, existing wetland vegetation is a viable seed source to facilitate natural recruitment. Mr. Lesman testified that natural recruitment is a generally-accepted means to establish wetland plant species. The Petitioner’s expert, Beverly Birkitt, questioned whether more plantings should be required. However, if natural recruitment is not successful, the Applicants would conduct supplemental plantings in order to meet vegetation success criteria. The Project would utilize herbicidal and mechanical control of nuisance and exotic vegetation consistent with the Nuisance and Exotic Vegetation Control Plan. Prescribed burns are also used to control exotic and nuisance species in pyrogenic communities within mitigation banks. Ms. Birkitt opined that prescribed burns should not occur adjacent to existing and proposed residential development. However, prescribed burns are a common activity carried out by licensed professionals using methods established and approved by the Florida Forest Service. The Prescribed Burning Management Plan requires safeguards when there is a wildland-urban interface. Safeguards include permanent fire lines, educational outreach to adjacent residential communities, and local partnerships with local fire rescue agencies, the Florida Forest Service, and Osceola County staff. The Project’s mitigation activities would restore habitats for listed species, aquatic-dependent and wetland- dependent species, and a variety of other wildlife. Lake Toho and surrounding areas serve as a primary foraging and nesting refuge for the everglades snail kite. It is also habitat for various endangered and threatened species, such as the whooping crane, limpkin, snowy egret, white ibis, little blue heron, tricolored heron, and bald eagle. The Applicants modified the application to include a 25-foot buffer along specified portions of the perimeter areas of MA1, MA2 and MA3. Those specified portions have adjacent development or the potential for adjacent development, which is a risk for all mitigation banks. The Applicants also removed the acreage within the 25-foot buffer areas from consideration to generate mitigation credits. However, that acreage would still be enhanced or restored as part of the Project’s mitigation activities. A 25-foot buffer is not proposed for those areas that have existing physical buffers or legal restrictions that preclude future development. Proposed Hydrologic Improvements The Project encompasses numerous activities designed to restore hydrologic conditions at the mitigation areas including removal of certain drainage features and structures. Surface water from MA1 will flow through a broad crested weir, a series of pipes and a drop inlet with operable boards to the Partin Canal, which is directly connected to Lake Toho. The existing culvert under Kings Highway that currently allows MA1 to drain to the off-site pump would be plugged with concrete to allow hydroperiod restoration. The pump at the south end of MA2 that currently drains MA2 and MA3 would be removed and replaced with a broad crested weir, a series of pipes and a drop inlet with operable boards that will outfall to Lake Toho. The boards are light-weight aluminum and are easily installed or removed by a single individual. The weir structure would detain water in MA2 and MA3 causing re-hydration of these historic wetland systems. The installations of the control structures within MA1 and MA2 would reestablish the hydrologic connections between Lake Toho and MA1, MA2 and MA3. To properly assess and implement the hydrologic improvements, the Applicants developed a hydrologic model. The primary factors considered in order to model the proposed condition annual hydrograph were annual rainfall and evaporation from the water body areas. Sixteen years of average annual data for both rainfall and evaporation were obtained from the University of Florida – Institute of Food and Animal Sciences Department, Lake Alfred Experiment Station. The rainfall data was averaged to develop average daily rainfall totals for a hypothetical year. This rainfall data was entered into the Advanced ICPR model for generation of annual runoff hydrographs entering each of the on-site wetlands. Advanced ICPR is an industry standard model for stormwater management systems in large basins, routinely accepted by the District for permit applications. The water levels of Lake Toho are managed on a lake regulation schedule operated by the District. Lake Toho water levels influence hydrology in and around the Project site. The water levels of Lake Toho were factored into the Applicants’ hydrologic model. The Applicants used a 10-year average of water levels within Lake Toho. Surface water elevation data for Lake Toho was obtained from data provided by the District for the years 2001 through 2011. For the purpose of modeling the average annual conditions, the annual data was averaged with the 2004 data being excluded. The Petitioner’s expert engineer, Stuart Cullen, opined that the Lake Toho regulation schedule should have been considered instead of actual water levels. However, the evidence showed that the water levels frequently varied from the regulation schedule. Thus, the use of actual water levels within Lake Toho for modeling purposes yielded more accurate results. The Applicants’ model demonstrated post-development results using data for the existing conditions of the Project site. Mr. Cullen opined that the existing conditions used for this permit application should have been the “pumps off” scenario provided in the Conceptual ERP for the Kindred project because the District referenced the Kindred Conceptual ERP in the permit documents for this Project. However, Mr. Boyd, who was the engineer for the Kindred Conceptual ERP, testified that it included a pumps-off scenario only to show that even if the pumps failed, the Kindred development would not flood. This is a “worst case scenario” demonstration and is different than existing conditions, which are the conditions as they exist on the site today, not how they are permitted to exist in the future. Mr. Boyd explained that he listed the “pumps on” scenario as the existing condition because the off-site pump, which is not controlled by the Applicants, currently runs as needed to keep the property drained and completely dry. When the Applicants block the culvert connected to the off-site pump as part of the Project’s proposed activities, the pump will no longer affect the property. This is the “pumps off” scenario, which in this instance, only occurs post-development. Hydrologic modeling data and results demonstrated that water levels within the Project would mimic a traditional wet season/dry season fluctuation as opposed to the inverse hydroperiod of Lake Toho. The operable water control structures would be modified on a seasonal basis. In the dry season, the boards would be removed to lower the water levels, mimicking natural dry season water levels. Conversely, the boards would be in place during the wet season to raise the water levels in the wetlands, thereby creating natural wet season water levels. The model demonstrates that the system design would immediately provide the hydrologic enhancement necessary to meet the Applicants’ ecological goals. Uniform Mitigation Assessment Method The Uniform Mitigation Assessment Method (UMAM) provides a standardized wetland assessment methodology that may be applied across community types. UMAM is used to calculate the credits that may be awarded to a mitigation bank. UMAM involves a two-part analysis. Part I is a qualitative characterization of the property by assessment areas. An assessment area is all or part of a mitigation site that is sufficiently homogeneous in character or mitigation benefits to be assessed as a single unit. See Fla. Admin. Code R. 62-345.200(1). Part II utilizes the scoring criteria established under the rules to evaluate each assessment area’s “current” condition (prior to the mitigation) to its “with mitigation” condition. The resulting difference represents the improvement of ecological value or the ecological lift, referred to in the rule as the “delta.” See Fla. Admin. Code R. 62- 345.500. Ms. Birkitt agreed with almost all the Applicants’ “current” condition scores and also with all of the Applicants’ “with mitigation” condition scores related to upland enhancement. Ms. Birkitt focused on the “with mitigation” scores for wetland enhancement and wetland restoration. Ms. Birkitt testified that the ecological lift reflected by the UMAM numbers for the three wetland function indicators could not be achieved. The major reason given by Ms. Birkitt was the Applicants’ inability to achieve the necessary wet season water levels in the mitigation areas. Other reasons included the potential for development adjacent to the mitigation areas, the limited benefit attributed to prescribed burns, and the lack of planting in certain assessment areas. Part II scoring under the UMAM rule has three categories of indicators of wetland function: location and landscape support, water environment, and community structure. For location and landscape support, the value of functions provided by mitigation assessment areas are influenced by the landscape position of the assessment area, its relationship with adjacent and regional surrounding areas, including interconnectivity that benefits wildlife. For water environment, the quantity of water in an assessment area, including the timing, frequency, depth and duration of the inundation or saturation, and flow characteristics are considered. Hydrologic requirements and hydrologic alterations are evaluated to determine the effect of these conditions on the functions performed by the assessment area. For community structure, each mitigation assessment area is evaluated with regard to its characteristic community structure, including vegetation and habitat. By way of example, a score of 10 means the mitigation assessment area, based on reasonable scientific judgment, is capable of reaching 100 percent of beneficial ecological functions. A score of 5 means, that the assessment area is limited in its ability to perform beneficial ecological functions to 50 percent of the optimal value. See Fla. Admin. Code R. 62-345.500. The Petitioner’s experts identified the main hydrologic issue as the Applicants’ inability to achieve the necessary wet season water levels in the mitigation areas. As discussed above, the Applicants demonstrated that the system design supports the hydrologic environment necessary to provide functional gains consistent with the UMAM scoring. The potential for development would not decrease the value of functions gained by the enhancement and restoration activities. The 25-foot buffer around the mitigation areas adds an additional layer of protection and any future developments must address potential impacts to the Project before obtaining a construction permit. The important role of prescribed burns in mitigation banks is addressed above. Any necessary supplemental plantings would be carried out by the Applicants in accordance with the vegetation success criteria. Ms. Birkitt also testified that the Applicants’ “with mitigation” condition score for approximately 45 acres in MA1 is not appropriate due to the existing conservation easement and its requirements. As explained below, the Applicants took this into account in the “current” condition score (i.e. “without mitigation). In addition, the Project will provide hydrologic enhancement that is not currently provided through the conservation easement. The Project’s success criteria require a lower percentage of nuisance and exotic vegetation, which increases plant cover of appropriate and desirable species. Also, the Applicants will provide prescribed fire and wildlife management for all communities. Time Lag and Risk The time lag associated with mitigation is the period of time between when the functions are lost at an impact site and when the site has achieved the outcome scored in Part II of UMAM. See Fla. Admin. Code R. 62-345.600. There is no time lag if the mitigation fully offsets the anticipated impacts prior to or at the time of the impacts. A score of one is appropriate for activity-based releases that will occur in less than one year. Ms. Birkitt testified that the Applicants should have applied a time lag score greater than one to the initial and activity-based releases because these activities do not provide a functional gain and, therefore, the credits released will not actually offset any impacts. However, the applicable rule applies a time lag score of one (T-factor of 1) to activities that reach success within one year. The evidence shows that the initial and activity-based releases will occur in less than one year. Any amount of risk above de minimus reduces the ecological value of the mitigation assessment area. A score of one would most often be applied to mitigation conducted in an ecologically viable landscape and deemed successful or clearly trending towards success prior to impacts. Ms. Birkitt admitted that placing the Project site under a conservation easement and installing the hydrologic improvements should benefit the Project’s hydrology, but opined that no benefit would actually occur. As discussed above, the hydrologic improvements are designed to provide an instantaneous and clear trend towards success. Mitigation Credits The Mitigation Bank Permit proposes to authorize 388.13 wetland mitigation credits. D.R. Horton would receive 99.56 credits for MA1 and 150.92 credits for MA2. Osceola County would receive 137.65 credits for MA3. The Applicants evaluated the quality of the wetlands by performing the functional assessment of the Project site in the “current” condition and then the functional assessment of the Project site in the “with mitigation” condition. This evaluation method yielded the quality of the restoration and enhancement. The Applicants further evaluated the resulting quality against the total acreage for the Project. In total, the Applicants propose restoring 183.18 acres of wetlands and enhancing 542.52 acres of wetlands and associated uplands. It is “exceptional” and “unique” to have so much wetland restoration in a mitigation bank project. The Applicants recognized that the District previously issued a permit requiring a conservation easement on approximately 45 acres in MA1. The proposed success criteria from that preservation were taken into account in the “current” condition score for that assessment area. Osceola County acquired MA3 with funds through the land conservation program established by its SAVE Ordinance. The SAVE Ordinance places minor limits on the area. According to Osceola County’s Parks and Public Lands Director, Robert Mindick, the County’s management plans and the County’s SAVE Ordinance do not create the same land restrictions as a conversation easement. Nonetheless, the Applicants effectively treated the SAVE Ordinance as a conservation easement when assessing the UMAM scores for MA3. This was a more conservative approach. Credit Releases The Project would receive a 20 percent credit release upon recordation of conservation easements and providing the financial assurances required by the Permit. This initial release is a generally accepted practice, is considered a reasonable approach and would occur in less than one year. The Project would receive a 15 percent credit release based on successful construction and implementation of the hydrologic improvements. This activity-based release is generally accepted, is considered a reasonable approach, and would occur in less than one year. The remainder of the mitigation credits would only be released upon the Project attaining full success. The Project is structured so that 65 percent of its credits cannot be released until attaining full success. This structure is atypical, but puts the burden on the Applicants to perform in order to realize 65 percent of its credits. The Credit Release Schedule is reasonable and consistent with applicable rule criteria. Mitigation credits generated by MA3 may only be used by Osceola County in conformance with the limitations imposed by section 373.414, Florida Statutes. The ledger for mitigation credits will differentiate between MA1 and MA2 and MA3. Attorney’s Fees The Petitioner did not participate in this proceeding for an improper purpose as defined in section 120.595(1), Florida Statutes. As found in paragraphs 6 and 8 above, the Petitioner’s concerns were not purely economic as alleged by D.R. Horton. The Petitioner’s pleadings, starting with its Petition and Amended Petition, were not interposed for an improper purpose as defined in section 120.569(2)(e). Mere co-ownership of SRMB by the Petitioner does not overcome the findings in paragraphs 6, 8 and 9 above, and does not prove an improper or frivolous purpose. The preponderance of the evidence showed that the Petition and Amended Petition were filed to advance legitimate environmental concerns. The Petitioner’s Amended Petition was not interposed for a frivolous purpose as defined in section 57.105, Florida Statutes. Mere co-ownership of SRMB by the Petitioner does not overcome the findings in paragraphs 4 through 9 above and does not prove that the pleading was frivolous. The preponderance of the evidence showed that the Petition and Amended Petition were filed to advance legitimate environmental concerns. Ultimate Findings The Applicants presented a prima facie case demonstrating compliance with all applicable permitting criteria for the Mitigation Banking Permit. The Petitioner did not prove its case in opposition by a preponderance of the competent substantial evidence. However, the Petitioner did not participate in this proceeding for an improper or frivolous purpose.
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 the issuance of Mitigation Bank Permit Number 49-00007-M, as modified, subject to the conditions set forth in the Staff Report; and ORDERED that D.R. Horton’s request for reasonable attorney’s fees and costs under sections 57.105, 120.595, and 120.569, Florida Statutes, is denied. DONE AND ENTERED this 10th day of May, 2018, in Tallahassee, Leon County, Florida. S FRANCINE M. FFOLKES 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 10th day of May, 2018. COPIES FURNISHED: Susan Roeder Martin, Esquire South Florida Water Management District Mail Stop Code 1410 3301 Gun Club Road West Palm Beach, Florida 33406 (eServed) Wayne E. Flowers, Esquire Lewis, Longman & Walker, P.A. Suite 150 245 Riverside Avenue Jacksonville, Florida 32256 (eServed) Frank M. Townsend, Esquire Osceola County Attorney's Office Suite 4700 1 Courthouse Square Kissimmee, Florida 34741 (eServed) Shannon Marie Charles, Esquire Osceola County Attorney's Office 1 Courthouse Square Kissimmee, Florida 34741 (eServed) Julia G. Lomonico, Esquire South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406 (eServed) Maricruz R. Fincher, Esquire South Florida Water Management District Mail Stop Code 1410 3301 Gun Club Road West Palm Beach, Florida 33406 (eServed) Bridgette Nicole Thornton, Esquire South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406 (eServed) John W. Bizanes, Esquire Nason, Yeager, Gerson, White & Lioce, P.A. Suite 210 750 Park of Commerce Boulevard Boca Raton, Florida 33487 (eServed) John J. Fumero, Esquire Nason Yeager Gerson White & Lioce, P.A. 750 Park of Commerce Boulevard, Suite 210 Boca Raton, Florida 33487 (eServed) Thomas F. Mullin, Esquire Nason Yeager Gerson White & Lioce, P.A. Suite 210 750 Park of Commerce Boulevard Boca Raton, Florida 33487 (eServed) Ernest Marks, Executive Director South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406-3007 (eServed) Brian Accardo, General Counsel South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406-3007 (eServed)
