The Issue Whether the use of explosives at Respondent's quarry has caused damage to the shore of Petitioner's lake; and, if so, whether (and what amount of) compensatory damages should be paid by Respondent to Petitioner.
Findings Of Fact Petitioner Gateway Estates Park Condominium Association (the "Association") is a condominium association organized under chapter 718, Florida Statutes. The Association oversees the Gateway Estates Park mobile home community ("Gateway Estates"), a condominium, which consists of 220 mobile homes and two vacant lots. Although the lots and mobile homes are owned by the individual owners, the Association holds title to a number of common elements, including two lakes——the South Lake (which is the subject of these proceedings) and the North Lake. Respondent SDI Quarry, a/k/a Atlantic Civil, Inc. ("SDI Quarry"), a mining company, uses explosives to extract construction materials such as limestone from quarries that are located in southwest Miami-Dade County. SDI Quarry has three mines that are near the South Lake; the closest of these is located approximately 7,000 feet from Gateway Estates. In 2005, SDI Quarry began blasting in the vicinity of Gateway Estates, and such activity has continued from that time until the present (i.e., as of the final hearing in this case). SDI Quarry operates the only mines at which blasting is conducted within close proximity to the subject community. The evidence does not establish the number of blasts conducted near Gateway Estates during the roughly dozen years leading up to this litigation. Between July 1, 2015, and October 17, 2016, however, SDI Quarry performed 25 blasts, and neither party suggested that this frequency of activity was unusually high or low relative to SDI Quarry's past performance. The undersigned draws the reasonable inference that the number of historical blasts affecting Gateway Estates is in the range of 200 to 250. The state regulates the use of explosives in conjunction with the extraction of materials such as sand and limestone. A mine operator must obtain a permit before commencing blasting activities. Among other things, a permit holder must comply with the statewide ground vibration limits established by the State Fire Marshal. These limits are set forth in Florida Administrative Code Rule 69A-2.024(4), which states that "[g]round vibration shall not exceed the limits of particle velocity and frequencies established by the U.S. Bureau of Mines Report of Investigations, No. 8507 Ground Vibration, Frequency Limits." The pertinent U.S. Bureau of Mines Report is incorporated by reference in the rule. SDI Quarry has complied with its obligations under rule 69A-2.024 to engage the services of an independent seismologist to measure and record, for every blast, the peak particle velocity ("PPV")——a value that reflects the maximum speed at which a particle vibrates due to a passing wave of seismic energy——at the location of the building nearest to the blast site that is not owned by the permit holder, and to report this information in writing to the State Fire Marshal. The PPV limit in the state of Florida is 0.5 inches per second. This particular standard derives from research conducted by the U.S. Bureau of Mines to determine the ground vibration threshold for damage to structures such as buildings and homes. The state has not adopted a PPV limit dedicated to the protection of shorelines around lakes and ponds. Neither party identified any such standard having the force of law in any jurisdiction in the United States. There is no evidence that any of SDI Quarry's blasts reached or exceeded the 0.5 inch-per-second PPV limit. Moreover, at the location of Gateway Estates, most blasts caused a PPV of approximately 0.1 inches per second or less, and none led to a PPV in excess of 0.2 inches per second. In short, based on the current record, the undersigned determines that SDI Quarry was, at all relevant times, operating in compliance with the state laws regulating mining operations involving explosives. Because, however, as will be discussed below, blasting is an ultrahazardous activity, SDI Quarry is absolutely liable, as a matter of law, for damages caused by its use of explosives, regardless of fault. Therefore, SDI Quarry's regulatory compliance, per se, is irrelevant; that said, the PPV measurements obtained in the course of such compliance have probative value to the extent they bear on the issue of causation. The South Lake is a man-made body. It was excavated sometime before 1975, which was the year the Association was organized. From the waterline, the lake's shore slopes upward and levels off to a flat bank circling the water; beyond the bank are the backyards of the homes on the lake. Until 2011, when the slope began to lose stability and fail, the horizontal area of the South Lake's bank was approximately four to five feet wide, making it possible for residents to walk around the entire perimeter of the lake and engage in activities such as fishing. In 2011, about five or six years after SDI Quarry began blasting near Gateway Estates, the shore of the South Lake began to destabilize, and the saturated soil at the edges of the lake, consisting of silt or marl, began to slough and slump into the water. This opened up fissures in the slope, which undermined the upward bank. In time, holes appeared in the bank, and pieces of the once level surface fell off, resulting in the narrowing of the horizontal area, from roughly five feet or so, to about a foot and a half. Residents have observed the ground falling into the water in close temporal proximity to the blasting. One testified credibly that "after the blasting on January 20th, [2016,] the ground [in one section of the lake] actually separated and dropped into the water." Tr. 32. Because of the deterioration of the lakeshore, residents can no longer walk around the bank, or stand upon it and fish as in the past; the shore is too steep, and there are holes in the ground that render such activities unsafe. The stability of the slope has continued to worsen, and, as of the final hearing, the deterioration of the lakeshore, like the blasting, was ongoing. The Association has suffered property damage in the form of the deterioration of the shore and bank around the South Lake. There is, further, no dispute that from 2005 through the time of the final hearing, SDI Quarry has used explosives in connection with mining activities in the vicinity of Gateway Estates. The only genuine dispute of material fact relating to SDI Quarry's liability to the Association is whether the use of explosives caused the Association's loss——whether, in other words, the existing property damage at the South Lake would not have occurred but for SDI Quarry's blasting. The issue of causation in this case is a close one, and there is competent, substantial evidence on both sides. The Association offered the opinion testimony of James R. McNew, who is a construction consultant. Although Mr. McNew is not licensed as a professional engineer, he holds a bachelor's degree in mechanical engineering, awarded in 1972, and during the course of a 50-plus-year career has been involved as a consultant or project manager on a number of marine projects, including the construction of 27 bridges in South Florida, all of which had earthwork abutments and adjoining bodies of water. Some of the projects Mr. McNew supervised involved drilling and blasting operations. As a result, Mr. McNew has acquired specialized knowledge relating to the use of explosives in or around saturated and submerged soils from long practical experience, which in addition to his formal education and training qualified him to testify as an expert on causation in this case.2/ Mr. McNew's opinion is that vibrations from SDI Quarry's blasting acted upon the soft layer of silt atop the shore and bank of the South Lake, causing the liquefaction of this saturated soil, which extends down from the surface, to distances of up to eight feet. This led, in Mr. McNew's opinion, to the compaction of the loose, wet soil around the edges of the lake, opening up cracks and holes and weakening the slope, which began to erode and fail. Mr. McNew stated that there are no specific legal standards in Florida or elsewhere serving to establish PPV thresholds above which lakeshore slope instability would be expected under the stress of blast-related vibrations.3/ He opined that existing limits based on structure responses to ground vibrations are inapplicable, because buildings are designed and constructed to resist the stresses of seismic energy, in contrast to saturated silt on the shore of a lake. He explained that, consequently, lower levels of energy would suffice to cause damage to the bank of the South Lake, than would be expected to damage, e.g., a house at the same location. SDI Quarry's principal expert witness on causation was Steven E. Black, a Florida-licensed professional engineer who specializes in geotechnical engineering and has been practicing in the field since 1970.4/ In addition to these credentials, Mr. Black holds a bachelor's degree in civil engineering. At hearing, Mr. Black explained that there is a layer of calcareous silt that underlies the mobile home park and is exposed at the lakeshore. Mr. Black testified that this silt layer has been eroded over time by the action of wind, waves, and rainwater percolating down and through the ground, pulling the silt from the bank and resulting in the deterioration of the property. According to Mr. Black, the blasting carried out by SDI Quarry is not close enough to Gateway Estates to impart sufficient energy to affect the soil around the South Lake.5/ In his opinion, SDI Quarry's blasting activities did not cause, as he described it, "the sloughing of the edges of the lake." Yet, interestingly, Mr. Black agreed with Mr. McNew that heavy truck traffic could definitely affect the silt layer of the lakeshore over a continuous period of time. Tr. 145. (Mr. McNew expressed the opinion that ground vibrations from heavy equipment could cause damage to a lakeshore "if you [had] a haul road going around the lake." Tr. 77. He offered this comment while making the point that other sources of seismic energy besides blasting, e.g., heavy construction traffic, could be ruled out as causes of the damage to the South Lake because none have been known to occur.) The undersigned finds this concession of Mr. Black's to be significant because, while there is no evidence in the record establishing the typical levels of ground-borne vibration from heavy trucks or construction equipment traveling over a roadway, common knowledge and ordinary experience are sufficient to permit the fact-finder to infer that such levels would be lower by orders of magnitude, at the source, than those caused by the use of explosives to mine limestone. We know this because in ordinary experience, while we might feel some vibrations under foot when a large truck drives by, especially if the road surface is uneven, we can easily see——because the road remains intact—— that the truck has not suddenly released tremendous gas pressure inside the ground, producing enough energy to break rock, as occurs when explosives are placed in holes and detonated in a limestone quarry. As it happens, there are homes and other structures standing between the South Lake and the nearest streets, so any ground-borne seismic energy from passing trucks necessarily would be attenuated before reaching the lakeshore, just as the seismic energy from SDI Quarry's blasting is attenuated as it travels the one and one-third miles from the mine to the lake. As found above, by the time the energy wave from a blast reaches the South Lake, the PPV is typically 0.1 inches per second or less (although occasionally the level is higher), but obviously the PPV at the source of any given blast is far greater than that. Energy from a passing truck would not need to travel as far, to be sure, but it would be much weaker at the source than a construction mining blast. The undersigned does not have enough evidence before him to make a finding as to what levels of PPV would be expected at the South Lake as heavy trucks drove past the property, but he can reasonably infer that the seismic energy from nearby vehicular traffic would not likely exceed that of SDI Quarry's blasting, and indeed would likely be much lower. It is true, to be fair, that Mr. Black's opinion——that transportation sources of ground-borne vibration, if present, could affect the lakeshore——was qualified by conditions of frequency ("a lot of heavy truck traffic") and duration ("over a continuous period of time"). His opinion about the blasting, however, was that the energy imparted therefrom was insufficient to damage the lake, period———not that the blasting was too infrequent to cause the property damage, or that it had not been conducted for a sufficient period of continuous years to cause such damage. By conceding that the energy imparted from heavy trucks "could definitely affect" the stability of the silt layer, Mr. Black undercut the strongest part of his opinion on causation, namely its certainty that an absolute level of seismic energy, greater than that seen at the lake, is necessary to cause saturated silt to move. On balance, the undersigned finds Mr. McNew's opinion on causation to be more persuasive than the competing view. In addition, the undersigned finds that the circumstantial evidence is consistent with, and supports, Mr. McNew's opinion; indeed, such evidence might have been sufficient, without more, to establish a causal connection between the blasting and the property damage. Consider that the South Lake had existed for at least 35 years without experiencing the deterioration of the shore and bank that became noticeable within just five or six years after the start of the blasting, and which has worsened over time as the blasting has continued. Add to that the persuasive evidence that visible damage occurs in the wake of individual blasts. Taken together, these facts on the ground have probative value independent of expert opinion. That said, the undersigned credits Mr. Black's testimony to the extent it supports a finding that erosion from wind, wave, and rainwater is a natural cause of some deterioration at the shore of the South Lake. It is further found, however, that this natural erosion is not the sole and independent cause of the Association's property damage. Rather, it is determined that the seismic energy from SDI Quarry's blasting is acting in combination with this natural erosion, and that the blasting, as a concurring cause, is contributing substantially to producing the sloughing of the lakeshore, fissures and holes in the slope, and consequent loss of level area from the bank that have occurred, and continue to occur, at the South Lake. In sum, the Association has proved by a preponderance of the evidence that SDI Quarry's blasting is a legal cause of the property damage for which compensation is being sought. As for the measure of damages, the Association presented evidence of a proposal from Upper Keys Consulting LLC ("Upper Keys"), which is dated July 18, 2015, for restoring the shore of the South Lake and installing preventative devices to protect the shoreline against erosion from future blasting. This proposal included several options, ranging in price from $840,000.00 to $1.45 million. The Association seeks to recover $840,000.00 from SDI Quarry to cover the cost of repairing and protecting its property. SDI Quarry did not present persuasive evidence either challenging the efficacy, or questioning the expense, of the Upper Keys proposal. The undersigned finds, therefore, that an amount of $840,000.00 is supported by the preponderance of the evidence presented. SDI Quarry contends, as an affirmative defense, that the Association failed to file its petition for relief within 180 days after the occurrence of the alleged damage, as required by section 552.40(1). The petition was filed on February 22, 2016, and SDI Quarry maintains that the damage to the South Lake had already occurred more than 200 days earlier, by July 18, 2015——i.e., the date of the Upper Keys proposal. SDI argues that, as a result, the Association's claim is time barred. The undersigned rejects this argument because, as a matter of fact, the property damage at issue is present and continuing; the harm to the lakeshore is cumulative, indivisible, and inseparable. The deterioration of the South Lake worsens with each blast, and the blasting was still going on during the 180 days preceding the initiation of this action. The damage, consequently, did not simply occur once in the past. This action is not time barred. Despite finding that SDI Quarry is liable to the Association for the property damage caused by its blasting, the undersigned determines that SDI Quarry's defenses were supported by evidence of material facts; were grounded in existing law; and were not advanced primarily to harass or cause unnecessary delay, for frivolous purposes, or to needlessly increase the cost incurred by the Association. As stated above, the question of causation is close in this case, and there is conflicting evidence on this crucial issue. That the undersigned resolved the evidential conflicts in the Association's favor neither means, nor is meant to imply, that SDI Quarry's position lacked substantial merit.
The Issue Whether Respondent’s use of explosives in connection with construction materials mining activities caused damages to Petitioners’ home, and, if so, the amount of damages to which Petitioners are entitled.
Findings Of Fact The Parties Petitioners reside in a single-family, one-story home located at 14699 Southwest 47th Street, Miramar, Broward County, Florida 33027. Petitioners are the third owners of the home, which was built in 1981. Petitioners have resided in the home since 1998. The home is approximately 3,000 square feet “under air,” and is composed of concrete block with stucco finishes, a shallow slab-on-grade foundation system, wood-framed interior walls, and ceramic tile flooring. Respondent engages in construction materials mining activities in Miami-Dade County, Florida. Specifically, Respondent utilizes explosives to procure construction materials (i.e., limestone) from quarries that are located in northwest Miami-Dade County, Florida. Respondent’s Blasting Activities The subject quarries are located within various geographic areas identified by different sections. Of particular relevance to the instant matter are sections 7, 6, and 4/5. Section 7 is approximately 2.6 or 2.7 miles from Petitioners’ home. Section 6 is approximately 2.3 or 2.4 miles from Petitioners’ home. Section 4/5 is approximately 1.6 miles from Petitioners’ home. Each of the sections have been utilized as a discrete location where blasting activities occur in order for Respondent to obtain construction materials. Section 7 was in operation from the mid-1990s through the end of 2015. Currently, no blasting activities occur in section 7. Section 6 was in operation from 2000 through 2015. Currently, no blasting activities occur in section 6. Section 4/5 began blasting operations in the first quarter of 2015 and halted in the fourth quarter while excavation was done. Blasting in section 4/5 resumed in January 2016. To monitor the impact of its blasting activities, Respondent utilizes the firm GeoSonics, Inc. (“GeoSonics”). GeoSonics has performed vibration measurement, evaluation, and reporting to Respondent since 1986. Jeffrey A. Straw is a seismologist with 39 years of experience and is employed by GeoSonics. As a seismologist, Mr. Straw is responsible for monitoring the impacts of vibration from Respondent’s blasting activities and analyzing their effects on structures. GeoSonics placed seismographs to monitor the impact of Respondent’s blasting activities. Peak particle velocity (“PPV”) is the speed at which a particle of ground oscillates as the vibration wave moves through the ground. The seismographs are used to determine if Respondent’s blasting activities are within the PPV limit of 0.5 inch per second established by the state of Florida. The seismographs must be located within one mile of each blast location to record the PPV resulting from the blasting activities. The seismographs are monitored and evaluated to ensure that their readings are accurate. The seismograph readings are evaluated by GeoSonics, which provides reports on the readings to Respondent and to the state fire marshall. Each seismograph undergoes testing to ensure that the instrument is working properly and providing effective and accurate readings. Every time a seismograph provides a reading concerning a blast, it sends a calibration pulse, which indicates whether the seismograph is working properly. Each seismograph instrument has an accompanying certification demonstrating that the instrument has successfully undergone testing and is working in accordance with the industry standards and specifications. There are six seismographs located within the vicinity of Petitioners’ home. The further the distance from the blasting location, the lower the blasting intensity. Each seismograph is located closer to the blasting location than Petitioners’ home. Thus, the PPV measured by the seismographs are greater than what the blasting intensity would be at Petitioners’ home. At no time have any of Respondent’s blasting activities reached or exceeded the 0.5 PPV limit. Petitioners Failed to Prove that Respondent’s Blasting Activities Caused Damages to Their Home In the instant case, Petitioners assert that Respondent’s quarrying activities caused damages to their home. Petitioners’ alleged damages center on “cracks” that exist throughout the home--specifically, cracks throughout the tile flooring inside the home; cracks on the cement flooring of the garage; cracks in the interior and exterior walls and ceilings; cracks in the semi-circular, stamp-concrete driveway and patio; and cracks around the surface of the windows. It is clear that cracks exist in Petitioners’ home. However, the issue to be determined in this case is whether the cracks were caused by Respondent’s blasting activities. They were not. In support of Petitioners’ position, Mrs. Alfaro presented at hearing a home inspection report. The inspection was conducted on April 18, 2016, and was not performed by a general contractor or structural engineer. Although the inspector identified various cracks based on his visual observations, the inspector specifically excluded any opinion regarding the cause of any need for repairs. Petitioners were specifically advised to obtain an opinion from a general contractor or structural engineer as to the cause of the damages. Mrs. Alfaro is an electrical contractor. She is not a licensed general contractor or structural engineer. At hearing, Mrs. Alfaro conceded that she does not have experience as a general contractor or seismologist. She has not had any training in seismology or blasting activities. Mrs. Alfaro’s testimony at hearing regarding the purported cause of the cracks is not credited and is unpersuasive. At hearing, Mrs. Alfaro presented the testimony of Barbara Hagan. Ms. Hagan resides in Country Club, Miami-Dade County, Florida, and is retired. She serves as the president of a civic association and secretary and treasurer of her homeowner’s association. She is not a general contractor, engineer, or seismologist. She has no experience in the use of explosives. She has never visited Petitioners’ home. At hearing, Ms. Hagan conceded that she has no opinion regarding the cause of any of the damages in Petitioners’ home. Mrs. Alfaro also presented the testimony of Paul Ingelmo. Mr. Ingelmo is a structural engineer who performed a visual inspection of Petitioners’ residence. Mr. Ingelmo did not review or analyze PPV data relevant to the blasts complained of by Petitioners. Mr. Ingelmo has no training or experience as to the appropriate threshold with respect to blasting activities and PPV. He is not familiar with how a wave behaves from a blast versus a seismic event. Mr. Ingelmo is not familiar with how PPV is measured or calculated. Importantly, Mr. Ingelmo could not give an opinion on whether the damages to Petitioners’ home were caused by Respondent’s blasting activities. In fact, Mr. Ingelmo conceded that the damages could have been caused by any number of unspecified factors. Finally, Mrs. Alfaro presented the testimony of Ismailia Rashid. Ms. Rashid is a general and roofing contractor. Ms. Rashid visited Petitioners’ home, conducted a visual inspection, and observed cracks on the patio, interior floors, and driveway. Ms. Rashid is not familiar with PPV or ground vibration. She has never been in a home where she was present and there was blasting. Importantly, Ms. Rashid did not offer an opinion on whether the damages to Petitioners’ home were caused by Respondent’s blasting activities. In sum, Petitioners failed to prove by a preponderance of the evidence that the damages to their home were caused by Respondent’s blasting activities. Rather, the preponderance of the evidence presented at hearing demonstrates that the damages to Petitioners’ home were not caused by Respondent’s blasting activities. In reaching this conclusion, the undersigned credits and finds persuasive the testimony of Respondent’s witnesses: Jeffrey A. Straw, David L. Teasdale, and Michael Schraeger. Mr. Straw visited Petitioners’ home twice: in April 2006 and January 2016. At those visits, Mr. Straw accompanied Michael Schraeger, a licensed general contractor with Diversified Services, Inc. On both occasions, Mr. Straw brought a camera and notepad with him to catalog the defects identified by Petitioners. Mr. Straw took extensive and comprehensive photographs detailing the cracks throughout Petitioners’ home and driveway. Mr. Straw testified that 90 percent of the alleged defects he observed in 2016 were items that he also observed in some format in 2006.1/ Mr. Teasdale is a civil structural engineer with Haag Engineering and serves as vice president of engineering and principal field engineer. Mr. Teasdale’s specialty focuses on the extent of damage to structures due to ground vibrations, explosions, and earthquakes. He is a licensed engineer in the state of Florida and 34 other states and has been a licensed engineer since 1988. He is extensively familiar with seismographs and has extensive experience installing and using them. Mr. Teasdale was accepted by the undersigned as an expert in structural behavior from ground motion and normal service loads, the influence of construction practices and environmental conditions on building features, soils and hardscape, the causes and conditions documented at the Petitioners’ residence, and lot features including the suitability of existing safe blasting standards in the state of Florida. Mr. Teasdale testified that there are substantial differences between an earthquake and quarry blasting. Mr. Teasdale explained that the fundamental difference between an earthquake and a quarry blasting is the amount of energy being released by the activity. Quarry blasting is a localized source event. An earthquake involves a fault line, which can extend for many miles and become mobilized. There is a direct correlation between the length of a fault line ripped versus the magnitude of an earthquake. Mr. Teasdale also explained that the measurement for quarry blasting, unlike the Richter Scale used for earthquakes, is a direct measurement; meaning that a PPV of 1.0 is twice the impact of a PPV of 0.5. Mr. Teasdale testified that for blasting to cause damage to a structure, distortion must occur. Distortion occurs where the foundation of a structure is accelerated laterally and causes the upper-part of the building to lag in response, which causes the building to shift back-and-forth and mimic a parallelogram shape. He explained that when distortion occurs, cracks will emanate from the corner of the walls and that those cracks will be mirrored on the opposite walls (inside and outside the structure). Mr. Teasdale explained that there was no damage to the foundation of Petitioners’ home, and the foundation and floor of a home would not experience distortion at 0.5 PPV or below because those limits are too low to produce the energy necessary to cause a structure to become mobilized. According to Mr. Teasdale, Petitioners’ home exhibited a variety of horizontal and vertical cracks and separations in the finishes, which are typical of environmental stresses in those materials. Mr. Teasdale also testified that distortion causes diagonal cracks, while thermal environmental stresses cause cracks vertically and horizontally. He explained that cracks caused by environmental conditions do not correlate on the inside and outside, while cracks caused by distortion do correlate on the inside and outside. He emphasized that the absence of corresponding cracks on the inside and outside of the structure generally precludes blasting as the cause of damages. Mr. Teasdale explained that from the moment the concrete is cast, it begins to shrink and develop cracks. Mr. Teasdale further explained that stucco, which is essentially the same material as concrete, is also prone to cracks due to normal environmental conditions. Mr. Teasdale testified that at the level in which Respondent has blasted below 0.5 PPV, it is impossible for Respondent’s blasting to have caused damages to Petitioners’ home. Based on his review and analysis of Petitioners’ home, Mr. Teasdale concluded that he would exclude blasting to a reasonable degree of scientific certainty as the cause of damages to Petitioners’ home. Mr. Schraeger is a general contractor and building inspector. He is self-employed through his company Diversified Services, Inc., and serves as the owner/operator. Mr. Schraeger has approximately 30 years of experience in commercial and residential construction. He has been licensed as a general contractor for 22 years and specializes in repairs, remodeling, and renovations of commercial and residential structures. He has 20 years of experience performing inspections of buildings relating to determination of material, construction failure, and defects. Mr. Schraeger was accepted by the undersigned as an expert in construction practices and environmental effects on materials and structures. Mr. Schraeger inspected Petitioners’ home in 2006 and 2016. He testified that 90 to 95 percent of the alleged defects he observed in Petitioners’ home in 2016 existed when he inspected the home in 2006. Mr. Schraeger testified that the cracks that he observed on the tile floor inside Petitioners’ home are very typical in a South Florida home because concrete typically cracks within all concrete structures. These types of cracks can be caused by poor installation of the tile or shrinkage of the monolithic slab over time. There was no evidence of foundation damage.2/ Mr. Schraeger further testified that in his professional opinion, some of the cracks in Petitioners’ home are the result of poor construction practices. For example, he explained that most of the cracks in the interior of Petitioners’ home are due to poor construction practices because of the use of an inappropriate method for finishing the joints in the drywall. During his 2016 inspection, Mr. Schraeger observed tape on some of the joints, which either had no joint compound under them, or the tape was applied after the compound started to dry, causing a bond failure. Some of the cracks generating from the corners of openings appeared to be from improperly secured corner bead. During his 2016 inspection, Mr. Schraeger also observed a crack in the master bedroom approximately eight feet in length, which appeared to be a joint in the drywall. This was apparent to Mr. Schraeger because the crack was visible on both sides of the joint tape, which had failed. According to Mr. Schraeger, the cause of this failure was moisture from a roof leak. Staining due to moisture on the ceiling in the area and a repair of the roof above this area indicated a previous leak. Notably, other areas of the home indicated roof leaks, including stains on the ceiling of the office area and staining around the skylight in the hallway. Mr. Schraeger further testified that the patio tile and driveway lack sufficient control joints, thereby making the stamped-concrete driveway and patio prone to crack. Mr. Schraeger also identified issues of poor maintenance by Petitioners. For example, he noted that the caulking around the windows was brittle and almost nonexistent. At hearing, Mrs. Alfaro acknowledged that in the 17 years she has owned the home, the windows have never been re-caulked. According to Mr. Schraeger, several cracks were observed on the stucco exterior walls of the home. With the exception of a severe crack on the wing wall on the rear of the patio, all of the cracks in the exterior walls of the home were attributed to common aesthetic cracks caused by the lack of control joints, dissimilar materials, bond failure, and improper maintenance. The crack on the wing wall of the patio, which ran along the bottom of a large tie beam, was attributable to poor construction methods.
The Issue Whether Petitioner, White Rock Quarries (“White Rock”), is entitled to an award of attorney’s fees to be paid by Respondents, Dorothy Brown-Alfaro and Amilcar Alfaro (“Respondents” or “Ms. Alfaro”), pursuant to section 57.105, Florida Statutes, and an award of attorney’s fees and taxable costs to be paid by Respondents pursuant to section 552.40(9), Florida Statutes; and, if so, the amount of attorney’s fees and taxable costs to which White Rock is entitled.
Findings Of Fact White Rock engages in construction materials mining activities in Miami-Dade County, Florida. Specifically, White Rock utilizes explosives to procure construction materials (i.e., limestone) from quarries that are located in northwest Miami-Dade County, Florida. Respondents reside in a single-family, one-story home located at 14699 Southwest 47th Street, Miramar, Broward County, Florida 33027. Respondents are the third owners of the home, which was built in 1981. Respondents have resided in the home since 1998. The home is approximately 3,000 square feet “under air,” and is composed of concrete block with stucco finishes, a shallow slab-on-grade foundation system, wood-framed interior walls, and ceramic tile flooring. The subject quarries are located within various geographic areas identified by different sections in close proximity to Respondents’ home. Of particular relevance to the instant matter are sections 7, 6, and 4/5. Section 7 is approximately 2.6 or 2.7 miles from Respondents’ home. Section 6 is approximately 2.3 or 2.4 miles from Respondents’ home. Section 4/5 is approximately 1.6 miles from Respondents’ home.1/ In the underlying case, Respondents asserted that White Rock’s quarrying activities caused damages to their home. Respondents alleged damages centered on “cracks” that exist throughout the home--specifically, cracks throughout the tile flooring inside the home; cracks on the cement flooring of the garage; cracks in the interior and exterior walls and ceilings; cracks in the semi-circular, stamp-concrete driveway and patio; and cracks around the surface of the windows. It is undisputed that cracks exist throughout Respondents’ home and that Respondents’ home is damaged because of the cracks. However, the issues to be determined in the underlying proceeding were whether the cracks were caused by White Rock’s blasting activities, and, if so, the amount Respondents should be compensated for the damages. Section 552.40(1) provides, in pertinent part, that: A person may initiate an administrative proceeding to recover damages resulting from the use of explosives in connection with construction mining materials mining activities by filing a petition with the Division of Administrative Hearings by electronic means through the division’s website on a form provided by it . . . . Pursuant to section 552.40(2)(c) and (d), the petition must include: The approximate time, date, and place of the use of explosives which is alleged to have resulted in damage to the petitioner; and A description of the damage caused and the amount sought for recovery. On December 14, 2015, Respondents’ former counsel filed an Amended Petition Under the Florida Construction Materials Mining Activities Administrative Recovery Act. In the amended petition prepared and filed by Respondents’ former counsel pursuant to sections 552.40(1) and (2), Respondents claimed they were entitled to the following items of damages caused by White Rock’s blasting activities: Floor ($24,000) Foundation ($100,000) Walls ($50,000) Ceiling ($20,000) Patio ($50,000) Driveway ($75,000) Windows ($45,000)2/ The final hearing in the underlying proceeding lasted two days. At that hearing, Respondent Dorothy Brown-Alfaro (who appeared pro se at the final hearing), presented photographs and a home inspection report showing cracks throughout the home. She described new, worsening, and expanding cracks throughout the home resulting from White Rock’s blasting activities. In addition, Ms. Alfaro submitted into evidence a blasting log, which documented the date, time, and intensity of White Rock’s ongoing blasting activities since 1999 Respondents claimed they felt at their home. The blasting log was also an exhibit to Respondents’ amended petition. At the hearing, Ms. Alfaro testified to White Rock’s frequent blasting and the effects on her home from the blasts. According to Ms. Alfaro, when White Rock’s blasting activities occur, the house “sways,” “everything shakes,” and “the entire structure of my house moves.” According to Ms. Alfaro, “when it shakes, my ceiling, my roof, my walls, my floor, everything shakes.” She testified that items fall off the shelves and she described the feeling from the blasts as a “vibration similar to an earthquake.” Ms. Alfaro presented the additional testimony of Barbara Hagan, Paul Ingelmo, and Ismailia Rashid. Mr. Ingelmo is a structural engineer who performed a visual inspection of Respondents’ residence. Ms. Rashid is a general and roofing contractor. Neither Mr. Ingelmo, Ms. Rashid, nor Ms. Hagan could opine that the damages to Respondents’ home were caused by White Rock’s blasting activities. Ms. Alfaro is an electrical contractor. She is not a licensed general contractor or structural engineer. At hearing, Ms. Alfaro conceded that she does not have experience as a general contractor or seismologist. She has not had any training in seismology or blasting activities. The undersigned found Ms. Alfaro’s testimony regarding the purported cause of the cracks not to be credited or persuasive. Ms. Alfaro regularly provides construction estimates in her business. Ms. Alfaro testified that the damages she requested in the amended petition were based upon her estimate of the repair costs she would incur to correct the damages caused by White Rock’s blasting activities. She testified, without objection, that she obtained material costs and calculated the amount of materials needed (i.e. per cubic yard of concrete and drywall) and labor to complete the repairs. In response to the evidence presented by Ms. Alfaro at the hearing, White Rock presented the testimony of Jeffrey A. Straw, a seismologist; David L. Teasdale, a civil structural engineer; and Michael Schraeger, a general contractor and building inspector. As a seismologist, Mr. Straw was responsible for monitoring the impacts and vibration from White Rock’s blasting activities and analyzing their effects on structures. At the hearing, he described the concept of peak particle velocity (“PPV”), the speed at which a particle of ground oscillates as the vibration wave moves through the ground following a blast. Mr. Straw testified that according to seismographs located within the vicinity of Respondents’ home, at no time have any of White Rock’s blasting activities reached or exceeded the PPV limit of 0.5 inch per second established by the state of Florida. Mr. Straw also visited Respondents’ home twice: in April 2006 and January 2016. On both occasions, Mr. Straw brought a camera and notepad with him to catalog the defects identified by Respondents. Mr. Straw took extensive and comprehensive photographs detailing the cracks throughout Respondents’ home and driveway. Mr. Straw also testified that 90 percent of the alleged defects he observed in 2016 were items that he also observed in some format in 2006.3/ While at Respondents’ home in January 2016, Mr. Straw experienced the effects of a blast. He described it as “[r]elatively minor based on blasts that I felt,” and indicated the blast lasted about three to five seconds at most. However, Mr. Straw further testified that he could feel the impact of the blast under his feet, and he could hear it, “there was some general vibration of the structure,” and some “dish rattling.” Mr. Teasdale is extensively familiar with seismographs and has extensive experience installing and using them. At the hearing, he was accepted by the undersigned as an expert in structural behavior from ground motion and normal service loads, the influence of construction practices and environmental conditions on building features, soils and hardscape, the causes and conditions documented at Respondents’ residence, and lot features including the suitability of existing safe blasting standards in the state of Florida. Mr. Teasdale explained the substantial differences between an earthquake and quarry blasting. Mr. Teasdale testified that for blasting to cause damage to a structure, distortion must occur. According to Mr. Teasdale, distortion occurs where the foundation of a structure is accelerated laterally and causes the under part of the building to lag in response, which causes the building to shift back and forth and mimic a parallelogram shape. He explained that when distortion occurs, cracks will emanate from the corner of the walls and that those cracks will be mirrored on the opposite walls (inside and outside the structure). Mr. Teasdale testified there was no damage to the foundation of Respondents’ home, and the foundation and floor of a home would not experience distortion at 0.5 PPV or below because those limits are too low to produce the energy necessary to cause a structure to become mobilized. According to Mr. Teasdale, Respondents’ home exhibited a variety of horizontal and vertical cracks and separations in the finishes, which are typical of environmental stresses in those materials. Mr. Teasdale also testified that distortion causes diagonal cracks, while thermal environmental stresses cause cracks vertically and horizontally. He explained that cracks caused by environmental conditions do not correlate on the inside and outside, while cracks caused by distortion do correlate on the inside and outside. He emphasized that the absence of corresponding cracks on the inside and outside of the structure generally precludes blasting as the cause of damages. Mr. Teasdale explained that from the moment the concrete is cast, it begins to shrink and develop cracks. Mr. Teasdale further explained that stucco, which is essentially the same material as concrete, is also prone to cracks due to normal environmental conditions. Based on his review and analysis of Respondents’ home, Mr. Teasdale concluded that he would exclude blasting to a reasonable degree of scientific certainty as the cause of damages to Respondents’ home. Mr. Schraeger has been licensed as a general contractor for 22 years and specializes in repairs, remodeling, and renovations of commercial and residential structures. He has 20 years of experience performing inspections of buildings relating to determination of material, construction failure, and defects. At the hearing, Mr. Schraeger was accepted by the undersigned as an expert in construction practices and environmental effects on materials and structures. Mr. Schraeger inspected Respondents’ home in 2006 and 2016. He testified that 90 to 95 percent of the alleged defects he observed in the home in 2016 existed when he inspected the home in 2006. Mr. Schraeger testified that the cracks that he observed on the tile floor inside Respondents’ home are very typical in a South Florida home because concrete typically cracks within all concrete structures. These types of cracks can be caused by poor installation of the tile or shrinkage of the monolithic slab over time. He opined there was no evidence of foundation damage. Mr. Schraeger further testified that in his professional opinion, some of the cracks in Respondents’ home are the result of poor construction practices. For example, he explained that most of the cracks in the interior of the home are due to poor construction practices because of the use of an inappropriate method for finishing the joints in the drywall. During his 2016 inspection, Mr. Schraeger observed tape on some of the joints, which either had no joint compound under them, or the tape was applied after the compound started to dry, causing a bond failure. Some of the cracks generating from the corners of openings appeared to be from improperly secured corner bead. During his 2016 inspection, Mr. Schraeger also observed a crack in the master bedroom approximately eight feet in length, which appeared to be a joint in the drywall. This was apparent to Mr. Schraeger because the crack was visible on both sides of the joint tape, which had failed. According to Mr. Schraeger, the cause of this failure was moisture from a roof leak. Staining due to moisture on the ceiling in the area and a repair of the roof above this area indicated a previous leak. Notably, other areas of the home indicated roof leaks, including stains on the ceiling of the office area and staining around the skylight in the hallway. Mr. Schraeger further testified that the patio tile and driveway lack sufficient control joints, thereby making the stamped-concrete driveway and patio prone to crack. Mr. Schraeger also identified issues of poor maintenance by Respondents. For example, he noted that the caulking around the windows was brittle and almost nonexistent. At the hearing, Mrs. Alfaro acknowledged that in the 17 years she has owned the home, the windows have never been re-caulked. According to Mr. Schraeger, several cracks were observed on the stucco exterior walls of the home. With the exception of a severe crack on the wing wall on the rear of the patio, he opined that all of the cracks in the exterior walls of the home were attributed to common aesthetic cracks caused by the lack of control joints, dissimilar materials, bond failure, and improper maintenance. According to Mr. Schraeger, the crack on the wing wall of the patio, which ran along the bottom of a large tie beam, was attributable to poor construction methods. At the hearing, Mr. Schraeger disputed Ms. Alfaro’s cost of repair testimony. However, Mr. Schraeger was not asked to give an expert opinion regarding the amount of damages, and he provided only “ballpark” or “rough” estimates of the cost of repair. For example, Mr. Schraeger testified that the cost to repair the flooring would be “approximately $11,000.”4/ As to the foundation, he estimated the cost to be $0.00 because he found no damage. As to the walls, Mr. Schraeger estimated a figure of $16,000. As to the ceiling, Mr. Schraeger estimated a figure of $5,000. As to the patio, Mr. Schraeger estimated a figure “well within the high end of six thousand.” As to the driveway, Mr. Schraeger estimated a range between “roughly” $17,000 and $20,000--the high end of the range resulting from “material fluctuation” construction costs. As to the windows, Mr. Schraeger estimated $12,000. Clearly, Mr. Schraeger acknowledged there are actual damages throughout much of the home, and there are actual costs associated with the repair of the damages. That the parties disagreed as to the amount of damages as to each item of alleged damages does not mean that the amount of damages claimed was unsupported by the material facts necessary to establish the claim. In sum, based on the evidence adduced at the hearing, the undersigned found that Respondents failed to prove by a preponderance of the evidence that the damages to their home were caused by White Rock’s blasting activities. Rather, the preponderance of the evidence presented at hearing established that the damages to Respondents’ home were not caused by White Rock’s blasting activities. In reaching this conclusion, the undersigned credited and found persuasive the testimony of Mr. Straw, Mr. Teasdale, and Mr. Schraeger. Although the undersigned was not persuaded in the underlying case by the evidence presented by Respondents, this does not mean that Respondents’ claims were not supported by the material facts necessary to establish the claims. There was competent, substantial evidence introduced by Respondents at hearing showing that: (1) Respondents’ home was in close proximity to White Rock’s frequent blasting activities; (2) when the blasting occurs, the house “sways,” “everything shakes,” “the entire structure of [the] house moves,” items fall off the shelf, and Ms. Alfaro feels a vibration similar to an earthquake; and (3) there are cracks throughout the home--some of the cracks are new, worsening, and have expanded as a result of White Rock’s frequent blasting activities. White Rock is the prevailing party in Dorothy Brown- Alfaro and Amilcar Alfaro v. White Rock Quarries, DOAH Case No. 15-6014CM. However, White Rock has failed to establish it is entitled to an award of attorneys’ fees pursuant to sections 57.105 and 552.40(9). On page 16 of its proposed final order, White Rock also claims it is entitled to recover taxable costs under section 552.40(9), totaling $9,287, as the prevailing party in the underlying case. The amount of taxable costs claimed is based on Exhibits 12A through 12G. In Respondents’ Proposed Final Order, Respondents do not dispute that White Rock is entitled to “recover costs totaling $9,287.15 (all the costs claimed except for the cost of lunches totaling $62.65) as costs reasonably necessary to defend the claims asserted in the underlying case.” The undersigned has examined White Rock’s Exhibits 12A through 12G, which constitute the universe of taxable costs sought, and the total of the costs is $9,287. There is no cost of lunches included within Exhibits 12A through 12G. All of the costs identified in Exhibits 12A through 12G are taxable costs or incidental administrative costs directly associated with the case, and therefore, are recoverable under section 552.40.
The Issue Whether Respondent's explosives license should be revoked, or the licensee otherwise disciplined, for alleged violations of Chapter 4A, Florida Administrative Code, as set forth in Administrative Complaint, dated June 9.1981, as amended. This proceeding arises under an Administrative Complaint filed by the State Fire Marshal, Department of Insurance, against Respondent, F. R. Jahna Industries, Inc., alleging that on or about February 26, 1981, Respondent violated Rules 4A-2.19(6) and (8), Florida Administrative Code, by detonating explosives in such a manner that rocks, dust and blast debris encroached on Highway 491 and residences in Beverly Hills, Florida. Violation of the aforesaid rules is predicated upon the allegation that the blast was done in a congested area, in close proximity to structures and highways, without using a mat to prevent fragments from being thrown, and by failing to block off adjacent roads. The State Fire Marshal seeks to revoke Respondent's explosives license issued under Chapter 552, Florida Statutes, or to impose any appropriate lesser penalties. Respondent filed a petition requesting a Section 120.57 (1), F.S., hearing and the petition was referred to this Division for the appointment of a Hearing Officer. At the hearing, Petitioner presented the testimony of seventeen witnesses, including deposition testimony of two witnesses. Respondent called seven witnesses and submitted ten exhibits in evidence. Proposed recommended orders filed by the parties have been fully considered, and those portions thereof which have not been adopted herein are considered either to be unnecessary, irrelevant or unsupported in fact or law.
Findings Of Fact Respondent E.R. Jahna Industries, Inc. is licensed by Petitioner Department of Insurance under Explosives License No. 0463570178-00, for the operations of its limerock mine located on Highway 491 four miles north of Lecanto, Florida. Respondent was so licensed at all times relevant to this proceeding. (Petitioner's Exhibit 1, Pleadings) Respondent's Lecanto mine or quarry is comprised of approximately 100 acres where blasting operations are conducted for the purpose of producing limestone aggregate in various sizes for use in asphalt, concrete block, and ready-mix concrete. Blasting takes place along the "face" of the quarry and each "shot" is designed to dislodge and move a predictable amount of limestone. The Respondent routinely follows standard industry "state of the art" procedures in conducting its blasting operations under the supervision of state licensed "blasters" employed by the firm. The customary procedure employed is to decide on the desired location of a blast, strip the soil from the top of the rock deposit, and lay out the shot pattern on the ground with red marking paint to designate the holes into which the explosives will be placed. A. specified number of holes are drilled to a predetermined depth, after which the explosive material and detonating devices are inserted into the holes, leaving enough room at the top for "stemming" material which consists of the drill cuttings which are tamped by a wooden rod. Stemming is designed to hold pressure in the hole for a long enough period to achieve maximum blasting force for movement of rock. Too little stemming can cause "fly-rock," which are uncontrolled pieces, to fly out of the top of the hole in a ballistic trajectory at great speed. Such an occurrence would almost always be due to the negligence of blasting personnel in failing to insert sufficient stemming material for the particular blast. In quarry blast operations, it is customary to use a plastic "sleeve" in the drilled hole into which the explosive material is poured. A sleeve is used in order that the powder will not concentrate in a fissure or other void and thus cause a "blowout" of the explosion through the face of the quarry. (Testimony of Day, Froedge, Respondent's Exhibit 10, supplemented by Respondent's Exhibit 8-9) Respondent's rock mine is directly across Highway 491 from the Beverly Hills residential development. A forested buffer area lies between the housing development and Highway 491. (Testimony of Hubbard, Connor, Respondent's Exhibits 1-4 a-c) On February 26, 1981, at 4:50 P.M., Respondent's personnel conducted a blasting operation at the mine. The location of the blast was 1065.32 feet in a straight line direction west of Highway 491, and 1660.21 feet from Washington Street in Beverly Hills. The shot pattern consisted of 22 holes 30 feet deep placed 14 feet apart in three rows. There was a 12 foot separation between each row. Two hundred and fifty pounds of explosive material consisting of nitrocarbonitrate was poured into a plastic sleeve inserted into each hole. Nitrocarbonitrate is ammonium nitrate fertilizer with 6 percent diesel fuel. Total explosive material for the shot was 250 pounds per hole for a total of 5500 pounds. Two primers per hole were used for a total of 44 pounds. The holes were tamped with eight feet of stemming material each. Preparation for the shot and the loading of the explosive materials was supervised by Respondent's general manager, Aggregates Division, who is a licensed blaster, and by the mine superintendent, Willard Thompson. The head foreman was Billy McCranie, a licensed blaster who supervised the drilling and loading of the holes, and personally wired and stemmed the shot. A tape measure with a weight was used to insure that each hole contained eight feet of stemming. The manner in which the shot was prepared and detonated followed customary practice and was appropriate under the prevailing conditions for the amount of rock intended to be moved from the face of the mine. Although in prior mining operations, blasts had been conducted some 750 feet closer to Highway 941 than the shot on February 26th, there had never been an incident where fly-rock or other material had reached the highway. At the time the February 26th shot was laid out, there was a prevailing northwest wind of approximately 15 to 20 miles per hour which was gusty, but would not normally have impacted significantly on the blast. The wind did increase considerably at the time of the blast, but the superintendent did not consider it sufficient to warrant postponing the shot with the requisite notification to the State Fire Marshal. It is hazardous to leave explosives in the ground overnight unless it cannot be avoided. However, wind does not blow rock particles larger than a "BB" in size for any distance. Larger particles or rocks would simply be blown up and come down in the same locale, regardless of the strength of the wind, unless on a ballistic trajectory due to negligence in stemming of the shot. In such cases, rocks would travel at great speed and ultimately be imbedded in the earth. (Testimony of Day, McCranie, Thompson, Froedge, Respondent's Exhibits 5-6) At the time of the blast, general manager Day was located approximately 800 feet away from the site of the shot, foreman McCranie was approximately 400 feet away underneath a loader, and Thompson was at the front entrance of the mine. All three individuals observed that the rock was displaced in a normal manner as a result of the explosion and that no rocks reached their positions. They saw a large dust cloud drift across the area toward Highway 491 which was somewhat farther than normal due to the prevailing wind. At no time, did any of them believe that unusual precautions were necessary such as blocking off the highway. They did not consider the use of a blasting mat to cover the explosion. Such a mat, which is usually constructed of steel cable or chain, is not feasible for use in industrial mining operations due to the great size and weight required, and because an explosion would simply disintegrate the steel material and create a hazardous condition. Blasting mats are primarily used for small shots in heavily congested urban areas. Experts in the field of blasting are of the opinion that blasting mats are totally inappropriate for use in mine blasting operations. They further are of the opinion that the conditions of the shot on February 26th did not warrant any unusual precautions such as road closing, due to the location and type of blast, plus the fact that it could not be reasonably anticipated that any material would be thrown by the explosion more than three to four hundred feet from the blast site location. (Testimony of Day, McCranie, Muldrow, Thompson, Younginer, Froedge) The impact of the blast on various residents of Beverly Hills was varied, but there was general agreement among those who testified at the hearing that they heard a loud blast which shook the ground and was followed by a large grey or black cloud which drifted across Highway 491 into the Beverly Hills development at a height of several hundred feet. The cloud contained dust particles of salt size which peppered a number of the residents who were standing in their yards. One individual, Sidney Holt, who lives on the second street of the housing area from Highway 491, observed several pebbles fall in his yard which looked like sandstones, including one as big as a "pullet egg" which imbedded itself about a half inch in the sandy soil. Another resident, H. R. Hubbard, who lives on Washington Street, which is the first street of the development, was in his yard at the time and heard stones falling close by. Although he did not personally see any rocks fall, he later found three large stones bearing greyish marks lying on the surface of an open ground area behind his house toward Highway 491. The largest of these stones was approximately the size of a grapefruit and the other two were somewhat smaller. Although Hubbard testified that he had raked that area the day before and the rocks had not then been present, expert opinion testimony of blasting experts rules out the probability that the rocks were thrown or otherwise resulted from the February 26th blast, due to the distance involved and the fact that ammonium nitrate would leave a white rather than gray powder burn. Insufficient evidence was presented to warrant a finding that the rocks found on ground as described by Hubbard resulted from the explosion. (Testimony of Froedge, Connor, Hubbard, J. Baffuto, Holt, Rospierski, Neison, Muldrow, Pease, Petitioner's Exhibits 4-5) Other manifestations of the explosion experienced by Beverly Hills residents included chandeliers shaking and one falling from its mounting in a home three-quarters of a mile east of Highway 491. Another home owner approximately one-half mile east of the highway observed his awning windows open and close slightly from the blast. An individual who resides some one and three-quarter miles west of Respondent's mine saw his sliding glass patio doors "whip" or vibrate against the door frame several times. One Beverly Hills resident who lived two blocks east of the highway noticed that a pot on her stove vibrated onto the adjacent kitchen counter. Occupants of two motor vehicles traveling near the mine entrance at the time of the blast felt a strong concussion and observed the large dust cloud cross the highway into Beverly Hills. They also saw rocks the size of a fist and as large as a grapefruit in the air. One individual, Robert H. Martin, heard a rock hit his car and he also observed rocks falling on the highway. He slowed down and stopped at the time due to poor visibility caused by the dust cloud. He later found that there was a dent in his right front fender. The other automobile driven by Andrew Pustay was near the entrance of the mine at the time of the explosion. He continued driving although the blast caused him almost to lose control of his car and the dust obscured his visibility to approximately twenty or twenty five feet. He later observed a number of marks or dents on the hood, fenders and doors of his car -- several about the size of a dime --- where the paint had been removed and which had not been present prior to the explosion. The blast effect on residents would have been similar to lightning striking the ground. (Testimony of Jay Baffuto, DeMarta, Tripp, C. Baffuto, Martin, Schuster, A. Pustay (Deposition, Petitioner's Exhibit 3), M. Pustay Petitioner's Exhibit 2)), Froedge) Respondent has maintained a seismograph near the mine site for the past several years to measure ground vibrations and over-pressure from blasting operations. The seismograph was operating on February 26, 1981 at the time of Respondent's blast and failed to register any vibration. Such a failure is indicative of the fact that vibration as a result of the blast was minimal and not sufficient to cause damage in the surrounding area of Beverly Hills. (Testimony of Straw, Respondent's Exhibit 7) James R. Vereen, Petitioner's Chief, Bureau of Explosives, expressed the agency policy as to the use of blasting mats to be that the use of mats should be considered by the explosives user any time there is a possibility of fly-rock and consequent property damage or personal injury. However, he has never seen a blasting mat used in a quarry operation. (Testimony of Vereen)
Recommendation That Petitioner impose an administrative fine of $500 against Respondent, E. R. Jahna, Inc., pursuant to Section 552.161(1), Florida Statutes, for violation of Rule 4A-2.19 (8), Florida Administrative Code. DONE and ENTERED this 9th day of November, 1981, in Tallahassee, Florida. THOMAS C. OLDHAM 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 9th day of November, 1981. COPIES FURNISHED: Daniel Y. Sumner, Esquire Department of Insurance 428-A Larson Building Tallahassee, Florida 32201 Jack P. Brandon, Esquire Post Office Box 1079 Lake Wales, Florida 33853 Don Bradshaw, Esquire 204 West Main Street Inverness, Florida 32650 Honorable Bill Gunter Treasurer and Insurance Commission and State Fire Marshal State of Florida The Capitol Tallahassee, Florida 32301
The Issue The issues presented are whether damages resulted to Petitioner's home as a result of Respondent's use of explosives in connection with construction materials mining activities, and, if so, what is the appropriate remedy.
Findings Of Fact By Notice of Hearing entered March 10, 2016, this cause was scheduled for final hearing on May 18, 2016. An Amended Notice of Hearing dated April 20, 2016, re- noticed the hearing for May 18, 2016, changing the location to Lauderdale Lakes, Florida. On May 12, 2016, a second Amended Notice of Hearing also scheduled the hearing to start on May 18, 2016. On May 17, 2016, Petitioner filed a Notice of Filing Her Power of Attorney. At 9:30 a.m., on May 18, 2016, the date and time scheduled for the final hearing in this cause, Respondent's attorney and its witnesses, the court reporter and the undersigned were present. Petitioner did not appear. Petitioner's husband appeared at hearing indicating that he was there to represent Petitioner by Power of Attorney. In administrative proceedings, pro se parties may either be represented by an attorney or a qualified representative. On May 2, 2016, Petitioner's request that her husband represent her as a qualified representative was denied by Order Denying Motion/Request for Leave to be Represented by a Qualified Representative in this Case ("Order"). The Order held Petitioner's husband does not have the "knowledge and experience identified in Florida Administrative Code Rule 28-106.106 to serve as a qualified representative." Petitioner's Renewed Motion/Request for Leave to be Represented by Qualified Representative in this Case was also denied by Order on Petitioner's Renewed Motion, dated May 16, 2016. While addressing preliminary matters prior to starting the hearing, the undersigned held that the Power of Attorney could not substitute for rule 28-106.106. Therefore, Petitioner's husband was prohibited from representing Petitioner at the hearing due to Petitioner's husband not meeting the qualified representative standards. After waiting for Petitioner to appear, the undersigned convened the hearing. At 10:13 a.m., Petitioner still had not appeared. The final hearing was adjourned.
The Issue At issue in this proceeding is whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, Department of Business and Professional Regulation, Construction Industry Licensing Board (Department), is a state government licensing and regulatory agency charged with the duty and responsibility to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular Section 20.165, Florida Statutes, and Chapters 120, 455, and 489, Florida Statutes, and the rules promulgated pursuant thereto. At all times material hereto, Respondent, Lawrence C. Bright, was licensed by the Department as a certified general contractor, having been issued license number CG C032808, and was the qualifying agency for Briden Enterprises, Inc. (Briden).2 In May 1995, Raul Hernandez, Sr., suffered storm damage to his residence at 341 Northwest 63rd Court, Miami, Florida. Consequently, Mr. Hernandez filed a claim with his insurance carrier, Bankers Insurance (Bankers). Briden, on behalf of Bankers, inspected the property and by letter of June 13, 1995, provided Bankers with a written estimate to repair the damage. The scope of the work included the replacement of two roofs, a solar-panel, and awnings, together with other miscellaneous work. The cost was stated to be $13,264.20. Following the inspection, Mr. Hernandez employed Briden to undertake the needed repairs, as detailed in the written estimate. The insurance carrier was notified of its employment, and Bankers forwarded to Briden a check in the sum of $18,988, which named Briden and Mr. Hernandez as joint payees.3 On or about June 20, 1995, Briden's representative brought the check to Mr. Hernandez's residence. Mr. Hernandez endorsed the check and delivered it to the representative. In exchange, Mr. Hernandez received a check drawn on a Briden account for $9,494, and payable to "Raul Hernandez and Briden Enterprises, Inc."4 The stated purpose of this check, as noted on its face, was "For 50% Retainer"; however, no further explanation appears of record. Briden employed Roberts Roofing, Inc. (Roberts Roofing), to do the roof repair work. That work was satisfactorily completed in or about October 1995. As for the other repairs, Briden did not undertake them, nor did it return any of the money it had received from Mr. Hernandez. On or about November 28, 1995, Roberts Roofing filed a claim of lien in the public records of Dade County, Florida. The claim of lien charged that, pursuant to an agreement with Briden, Roberts Roofing had installed a new roof on Mr. Hernandez's residence for $7,200, and that $2,523.50 remained unpaid. Following unsuccessful demands on Briden to make the agreed repairs and pay Roberts Roofing, and later demands to return the money owing to him, Mr. Hernandez filed a complaint in February 1996 against Briden in the Circuit Court, Dade County, Florida. That complaint sought judgment based on the following allegations: On or about June 20, 1995, Defendant represented to Plaintiff that Defendant could provide construction services to repair Plaintiff's residence. Defendant fraudulently represented to Plaintiff the amounts and type of work which would be performed on the project, the costs associated therewith and requested payment pursuant to said misrepresentations. * * * Plaintiff relied on Defendant's misrepresentations by making payment to Defendant for the construction services in the amount of $18,988.00. From the payment received by Defendant, Plaintiff acknowledges that Defendant paid $4,678.00 to a third party to accomplish the repair of the roof at Plaintiff's residence. The full cost for the roofing services was $7,200.00. As a result of Defendant's failure to pay the full amount, the third party has filed a lien against Plaintiff's property for $2,522.00. Defendant has failed to provide the represented construction services, and, as a result, Plaintiff has sustained damages in an amount of $14,310.00 and has had title to his residence liened. On May 16, 1996, a final default judgment was entered for Mr. Hernandez and against Briden. That judgment provided that Mr. Hernandez recover from Briden damages of $14,311.50 and costs of $189.00. Neither Briden nor Respondent paid the judgment, and it remains unsatisfied to date. Having failed to receive payment, Roberts Roofing filed a complaint on July 11, 1996, against Mr. Hernandez to foreclose its lien. While that suit was pending, Mr. Hernandez filed a claim under the Construction Industries Recovery Fund. Sections 489.140, et seq., Florida Statutes. That claim was approved in February 1997, and Mr. Hernandez was paid $14,311.50.5 Following recovery from the fund, Mr. Hernandez paid Roberts Roofing the unpaid balance it claimed, and Roberts Roofing released its lien.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of the violations alleged in Counts I, II, III, and IV of the Administrative Complaint, and imposing as a penalty for such violations a $3,500 administrative fine; a two year term of probation, subject to the conditions of Rule 61G4-12.008(5), Florida Administrative Code; and the payment of the reasonable costs of investigation and prosecution.8 DONE AND ENTERED this 3rd day of February, 1998, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 Filed with the Clerk of the Division of Administrative Hearings this erd day of February, 1998.
Findings Of Fact At all times pertinent to the charges, respondents have been licensed real estate salesmen and brokers. Respondent Ed Wasdin holds real estate salesman's license number 0341534. Respondent Betty L. Green 2/ held real estate salesman's license number 0341467 at the time of the alleged misconduct. She now is a licensed broker. Respondent Ester L. Turner holds broker's license number 0090375. At the time of the alleged misconduct, she was the qualifying broker for Ed Wasdin Realty, Inc., a registered corporate real estate broker. (Pretrial Stipulation; Testimony of Vann.) During the time in question, Mr. Wasdin also owned and operated Ed Wasdin and Son, Inc., a licensed construction company, where Ms. Green served as his full-time secretary and office manager. She worked as a real estate salesman for Ed Wasdin Realty, Inc., on a part-time basis. (Testimony of Vann; Pretrial Stipulation.) II. On November 11, 1980, Hank V. Mannheimer and his wife, Barbara, saw an Ed Wasdin Realty, Inc., "For Sale" sign in front of a house located at 721 West Crossway Road, Tallahassee, Florida. They called the telephone number listed on the "For Sale" sign and made an appointment for respondent Wasdin to show them the house. (Testimony of H. Mannheimer, B. Mannheimer.) Later that day, Mr. Wasdin took the Mannheimers on a tour of the house. They then returned to Mr. Wasdin's office where respondent Green, as his secretary, prepared a standard real estate contract on a form published by the Florida Association of Realtors. The Mannheimers signed the contract as purchasers, and Ed Wasdin signed on behalf of Ed Wasdin and Son, Inc., the seller. The Mannheimers also delivered a $1,000 earnest money deposit check made payable to the seller, Ed Wasdin and Son, Inc. (Testimony of H. Mannheimer, B. Mannheimer; P-10, R-5.) III. The real estate sales contract contained a "Termite Clause" granting the buyers the right to have the property inspected "to determine whether there is any active termite or wood destroying organisms in any improvement on said property, or any damage from prior termite or wood destroying organism to said improvements". (P-10.) During the morning of January 15, 1981, respondent Green, on behalf of the seller, Ed Wasdin and Son, Inc., telephoned Helms Exterminating, Inc., and ordered a termite inspection of the house. David Baker, a termite inspection, was sent to the house to conduct the inspection that same morning. (Testimony of Vann, Baker.) On inspecting the house, Mr. Baker found termite infestation and termite damage to the left front corner of the house. He then telephoned Ms. Green and told her that he had seen evidence of termites. He did not, however, tell her of any termite damage. She told him that she needed a "clear" termite report by that afternoon (since closing was scheduled for that afternoon or the next day) and authorized him to treat the house for termites. She did not speak to respondent Wasdin before authorizing the treatment. (Testimony of Vann.) Mr. Baker testified that he told Ms. Green of termite damage to the house and that she promised to repair the damage in order to get him to issue a "clear" termite report that day. Ms. Green denied that Mr. Baker told of the damage and denied that she promised to make repairs. The testimony of Ms. Green is more credible and worthy of belief than that of Mr. Baker, whose previous statements about this incident have been incomplete, 3/ untrue or contradictory. In his termite inspection report of January 15, 1981, Mr. Baker indicated that no active termite infestation or visible termite damage was observed--the first statement was, at best, incomplete, the second was false. After discovering the termite damage, Mrs. Mannheimer questioned him twice. The first time, he told her that he had only found ter-mites on January 15, 1981, and mentioned nothing of termite damage. Later, when questioned again, he stated that he had also found termite damage. Further, Ms. Green was not authorized to promise structural repairs to a residence, and it is unlikely that she would have made such a promise when she did not know the extent of the damage and had no way of knowing the cost of repair. The conflict in testimony is therefore resolved in Ms. Green's favor. (Testimony of Vann, Baker.) On January 15, 1981 after treating the residence for termites, Mr. Baker issued a termite inspection report indicating that he had observed no active termite infestation or visible damage. The report, on its face, indicated that it was to be mailed to Ed Wasdin Realty at 4432 Kensington Road, Tallahassee, Florida. The Mannheimers did not see the report until after the closing. (Testimony of Baker, Green; P-7.) IV. In negotiating for and purchasing the house from Ed Wasdin and Son, Inc., the Mannheimers believed, and had reasonable grounds to believe, that they were dealing with realtors associated with Ed Wasdin Realty, Inc. The house was advertised by an Ed Wasdin Realty, Inc., "For Sale" sign; they called the number listed on the sign, and Mr. Wasdin showed them the property; a contract identified with the Florida Association of Realtors was executed which contained an Employment of [Real Estate] Agent clause; 4/ both Ms. Green and Mr. Wasdin worked for both companies; and the offices of the Wasdin realty and construction companies were located in the same model home. Although the offices in the model home were separately marked as construction or realty company offices, the conference room (where the closing took place) was not marked as belonging to either. In actuality, the sale of the residence was not a transaction on the account of Ed Wasdin Realty, Inc. The house was not listed with the realty company; a commission was not promised or paid to the realty company; and the deposit was not placed in the realty company escrow account. (Testimony of Vann, H. Mannheimer, B. Mannheimer.) No evidence was presented to show that respondent Wasdin knew, or should have known, that the house in question had a termite infestation or termite damage. There is not a sufficient factual basis to impute such knowledge to him. Neither was any evidence presented to show that respondent Turner, qualifying broker for Ed Wasdin Realty, Inc., knew, or should have known, about the real estate transaction in question, including the termite infestation and damage. The evidence is insufficient to support a factual inference that Ms. Turner was negligent or derelict in her duty to supervise the realty company's operations. Although, in this case, a realty company's sign was used to advertise a property which was not listed with the company, the evidence does not show that this had ever happened before, that this was anything but an isolated mistake. The evidence is insufficient to support a finding that either Mr. Wasdin or Ms. Green saw the termite inspection report prior to closing, or affirmatively represented to the Mannheimers that no termites had been discovered during the January 15, 1981, termite inspection. 5/
Recommendation Based on the foregoing, it is RECOMMENDED: That the administrative complaint against the respondents be dismissed. DONE and RECOMMENDED this 15th day of October, 1982, in Tallahassee, Leon County, Florida. R. L. CALEEN, JR. 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 15th day of October, 1982.
Findings Of Fact At all times material hereto, Respondent has been a certified building contractor in the State of Florida, having been issued License No. CB CO24584. At all times material hereto, Respondent was the qualifying agent for Southern Construction Technologies, Inc. In March, 1988, Alfred and Martha Entrekin entered into a contract with Southern Construction Technologies, Inc., whereby they agreed to pay the sum of $178,000 for construction of a custom-built home. Since the Entrekins were unable to qualify for the financing needed for construction, Southern Construction obtained a construction loan on their behalf. Despite delays, construction commenced in May of 1988 and continued through October, when, the closing on the residence took place, subsequent to the issuance of a certificate of occupancy by the Town of Davie. Just prior to the closing, a "punchlist" was prepared by Respondent and the Entrekins. That punchlist, which became part of the closing, contains 24 numbered items. (Due to misnumbering, the punchlist says 25.) Thirteen 0of those items on the copy of the punchlist offered in evidence by the Petitioner have been crossed off that list. Of the remaining 11 items, the evidence at final hearing reveals that some were corrected and some items were not the subject of any evidence offered by either party at the final hearing. Although additional items appear to have been added to the punchlist by the Entrekins sometime after the closing, those items will not be considered in this cause since no evidence was offered to indicate that those items were agreed to by the Respondent at the time of closing and no evidence was presented as to when those items were added to the original punchlist by the Entrekins. At the time of closing, the sum of $1,500 was placed in escrow to ensure completion of the punchlist by Respondent. Respondent performed some of the punchlist work on the day of the closing and continued working on the punchlist items for the next three weeks. On January 11, 1989, the Entrekins' attorney sent a demand letter seeking the release of the funds placed in escrow at the closing. Attached to that demand letter was a list of 16 items allegedly remaining on the punchlist. Some of the items on the new "punchlist" submitted by the Entrekins did not appear on the punchlist agreed to by the parties at the closing. Others did appear on the closing punchlist but had been struck through and initialed by Mrs. Entrekin, assumedly as having been completed, on the copy of the closing punchlist offered by Petitioner as an exhibit in this cause. In response to the demand letter, Respondent authorized the release of the $1,500 in escrow to the Entrekins. Respondent admits that at the time that the money was released to the Entrekins, there were still some repairs needed to the rake tiles on the roof and he had not seeded the backyard. Respondent testified that four rake tiles on the eaves were missing, some were misaligned, and some had not been "mudded" in with mortar, but no broken tiles remained on the roof. He also testified that he had not seeded the backyard because the Entrekins had not yet placed fill in the backyard, an item which Mr. Entrekin admits was his responsibility as provided in the contract between the Entrekins and Southern Construction Technologies, Inc. The only evidence submitted in corroboration of the complaints of the Entrekins consists of several invoices. In March, 1989, the Entrekins obtained an estimate for roof repairs from Warren Roofing, Inc., in the amount of $1,200. That invoice indicates the need to replace 80 broken tiles on the roof, the need to remove and replace approximately 130 rake tiles to be secured with mortar tinted to match (although Donald Warren testified that the tile used is nail-on tile which does not require mortar), and the need to "repair defects" in two rear valley areas. Warren Roofing was never hired to effectuate the repairs for which it had submitted its $1,200 estimate. The extensive work set forth in the estimate in March of 1989 is inconsistent with the roofing inspection which would have taken place prior to the certificate of occupancy issued prior to the closing in October of 1988. The only roofing repair effectuated to the Entrekin house by anyone other than Respondent was work performed by Warren Roofing in July of 1989 repairing a leak around the skylight. Petitioner also offered in evidence two invoices from pool services dated March of 1989. One invoice in the amount of $275 represents the cost of acid washing the pool, and the other invoice is for $230 to "filter pool water." Due to electrical problems, the water in the pool was not filtered for two days during the period of construction of the Entrekin house. No evidence was offered to show that the absence of filtering a pool for two days would require it to be acid washed, and no evidence was offered in support of the services performed or the need for the services represented by the second invoice. Another invoice represents the cost of 20 loads of muck for the backyard at a cost of $600, and $150 to rent a bulldozer. Since the muck for the backyard was the responsibility of the Entrekins, the bulldozer charge accompanying the 20 loads of muck is, in all probability, also the responsibility of the Entrekins. The last invoice submitted in evidence also bears the date of March of 1989 and represents 50 pounds of grass seed, in the amount of $110.50, a cost item which Respondent admits was his responsibility at the time that the escrowed monies were released to the Entrekins.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent not guilty of the allegations contained in the Administrative Complaint filed against him and dismissing the Administrative Complaint. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 25th day of January, 1991. LINDA M. RIGOT 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 25th day of January, 1991. COPIES FURNISHED: Charles N. Tetunic, Esquire Becker, Poliakoff & Streitfeld, P.A. Post Office Box 9057 Fort Lauderdale, Florida 33310-9057 Joseph Stephen Sharrow, Esquire Post Office Box 8995 Fort Lauderdale, Florida 33310 Daniel O'Brien Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792
Findings Of Fact Petitioner was employed at Respondent as a bartender from May, 1987 until October 29, 1987, when she was terminated. On October 29, 1987, she was terminated by Scott McGregor, owner of Respondent, due solely to the fact that she was pregnant at the time. Petitioner was nine and one-half weeks pregnant when she was terminated. She had told her employer when she became pregnant, and he had told her she could keep her job as long as she wanted, and even into her ninth month of pregnancy. On the day Petitioner was fired, McGregor referred to her pregnancy and indicated her condition was not consistent with the name of his business, "Heavenly Bodies". Petitioner's gross hourly wage was $4.50, and she regularly worked six days a week, seven and one-half hours a day, for a total of 45 hours a week. She attempted to find other work as a bartender after she was terminated, but could not find employment because of her pregnancy. She remains unemployed to date. However, her current unemployed status appears to result from her decision to stay home with her baby. Due to her termination based solely on her pregnancy, Petitioner was discriminated against by Respondent based on sex. Respondent has suffered damages in the amount of $4,455.00 due to lost wages. This amount is computed from her hourly wage for a period of 22 weeks, which covers the period of time from her termination at nine and one-half weeks to the end of her eighth month of pregnancy. No award is made for the period after her baby was born since she has voluntarily remained home with her baby, and has not sought employment during this time.
Recommendation Based upon the foregoing, it is recommended that the City of Clearwater, Community Relations Board, enter a Final Order finding that Respondent has unlawfully discriminated against Petitioner based upon sex, and awarding Petitioner $4,455.00 in actual damages for back wages as a result of such discrimination. DONE AND ENTERED this 6th day of September, 1988 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 6th day of September, 1988. COPIES FURNISHED: Lori Baxter 3054-G Beecher Drive, East Palm Harbor, Florida 34683 Scott McGregor, Owner Heavenly Bodies II 3323 U.S. 19 North Clearwater, Florida 34619 Ronald M. McElrath Office of Community Relations Post Office Box 4748 Clearwater, Florida 34618 Miles Lance, Esquire Post Office Box 4748 Clearwater, Florida 34618
The Issue The issue in this case is whether Suncoast Concrete, Inc. (Suncoast), is entitled to Permit No. 194919-003-SO, to construct and operate a construction and demolition debris disposal facility (C & D facility) in Santa Rosa County, Florida.
Findings Of Fact Petitioners Lois and Wallis Mahute live within two miles of the proposed C & D facility. Petitioner Nathaniel Williams, Jr., resides less than one mile from the proposed facility. Suncoast is a Florida corporation and is the applicant for Permit No. 194919-003-SO. The site of the proposed C & D facility is already permitted by the Department as a disposal facility for land clearing debris. It is located on U. S. Highway 90, 1.9 miles east of State Road 87. The disposal area is 7.2 acres on a parcel of land that is 57.8 acres. Suncoast provided all of the information required by the Department for applications for C & D facilities, including geotechnical data, hydrologic data, and financial assurance for closure. The proposed permit includes numerous conditions, including the use of an impermeable liner, groundwater monitoring, stormwater controls, leachate collection and storage, and access control. The requirement for an impermeable liner is uncommon for C & D facilities and adds greater protection for groundwater. Issues Raised by Petitioners Petitioners expressed concern about groundwater contamination. The required liner is designed to prevent rainwater that might become contaminated after contact with the materials in the landfill from entering the groundwater. The proposed facility would be located over some existing land clearing debris. The existing debris is located on part of one side of the proposed landfill. Before the liner is installed, the base would be prepared by covering the area with six inches of compacted soil. After the liner is installed, two feet of clean soil is placed on top of the liner. The liner would be installed in a manner to prevent the liner from being punctured or torn. Groundwater monitoring is required so that any contamination that occurs will be detected and remediated. There are no potable water wells within 500 feet of the proposed facility. The nearest public water supply well is approximately 4,000 feet away. Petitioners presented the testimony of Kyle Holley, who expressed his views on hydrogeologic conditions in the area. Mr. Holley is not a geologist or hydrologist and was not competent to testify regarding the hydrogeologic conditions in the area. Petitioners expressed concern about odors, but presented no competent evidence that foul or unhealthy odors would be generated by the facility. The permit conditions that require a small working face and weekly cover with soil would minimize odors. Petitioners expressed concern about fires, partly because fires have occurred at other C & D facilities. The evidence shows that the requirements of the proposed permit, including the prohibition against burning and requirements to maintain a small working face and to cover with soil on a weekly basis, would minimize the possibility of fires at the facility. The facility must maintain access for fire trucks to the disposal area so that, if a fire occurs, it can be suppressed. Petitioners expressed concerns that the facility would not be safely closed in the event that Suncoast became bankrupt or otherwise ceased operations at the facility. The evidence shows that the financial assurance requirements of the proposed permit provide a means to close the facility in the event that Suncoast was unwilling or unable to close the facility. Petitioners expressed concerns about the “pattern of abuse” by landfill owners. However, Petitioners presented no evidence that Suncoast has shown a pattern of noncompliance, or that the landfills where these alleged abuses have occurred are similar to Suncoast’s proposed C & D landfill with respect to physical conditions and permit requirements. Suncoast provided reasonable assurance by a preponderance of the evidence that the facility, with the conditions in the permit, will comply with all applicable rule requirements regarding the protection of groundwater, odor and fire control, and proper closure of the facilities. In summary, Suncoast proved by a preponderance of the evidence that it has provided reasonable assurance that the proposed facility meets all regulatory criteria for entitlement to Permit No. 194919-003-SO.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order granting Permit No. 194919-003-SO, subject to all the conditions set forth in the Department’s Notice of Intent to Issue, for the construction and operation of a construction and demolition debris disposal facility in Santa Rosa County, Florida. DONE AND ENTERED this 20th day of May, 2009, in Tallahassee, Leon County, Florida. BRAM D. E. CANTER 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 20th day of May, 2009. COPIES FURNISHED: Michael W. Sole, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Tom Beason, General Counsel Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Lea Crandell, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 William J. Dunaway, Esquire Clark, Partington, Hart, Larry Bond & Stackhouse 125 West Romana, Suite 800 Pensacola, Florida 37502 Ronda L. Moore, Esquire Department of Environmental Protection Douglas Building, Mail Stop 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Nathaniel Williams, Jr. 8984 Tara Circle Milton, Florida Wallis Mahute 32583 5500 Cox Road Milton, Florida 32583 Lois Mahute 5504 Cox Road Milton, Florida 32583
