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 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.
Findings Of Fact Triton is a Florida corporation located in Brooksville Florida, which performs land development and construction work for Gulf Coast Diversified Corporation, owned by the same people who own Triton. Triton owns an asphalt "hatching" plant which mixes sand and aggregate with liquid asphalt which is then used as paving material. All asphalt so mixed was used by Triton and no outside sales were made. Gulf Coast Diversified Corporation contracted with Triton for site development of certain realty. The contract included the construction of roads and parking lots. The contract price was computed on a lineal foot basis for the roads and on a square yard basis for parking lots. Triton, using the asphalt mixed in its batching plant, completed the work contracted for. In addition, Triton contracted with Gulf Coast Diversified Corporation for sewer construction which included the construction of manholes fabricated from concrete batched by Triton. No concrete was ever sold to any other outsiders. The cost of the concrete was included in the overall contract price and was not separately itemized. Triton's books of account show concrete sales in the amount of $168,569.36 during the audit period. This figure reflects a $20.00 per yard "market" value of concrete which Triton picked up in its books for its own internal accounting purposes. The figure represents some 8,428 yards of concrete actually sold. For sales tax purposes, Triton valued the concrete at about $13.74 per yard, a figure established by DOR in a previous audit, and remitted 4 percent of the total value of $115,835.25 of the State of Florida. During the audit, DOR noted that 4 percent of the bookkeeping entry for concrete sales was $6,742.77, while only $4,633.41 was received as sales tax. Consequently DOR assessed Triton an additional $2,109.36 plus penalties and interest. The difference, however, reflects only differential per yard valuation of the concrete and not additional concrete yardage.
The Issue The issue in this case is whether Petitioner is entitled to credit for answers to two questions on the geology examination Petitioner took in August 1996.
Findings Of Fact Petitioner took the geology examination given on August 16, 1996. Respondent administered the examination. Petitioner must pass both parts of the examination with a score of 70 to be licensed as a professional geologist. Petitioner earned a score of 85 on the portion of the examination pertaining to rules and regulations. However, Petitioner earned a score of 69.6 on that portion of the examination pertaining to geology. Credit for an answer to one additional question would result in a score of 70 on the geology portion of the examination. Alternatively, disqualification of two of the questions for which Petitioner did not receive credit would result in a passing score. Petitioner challenges questions 18 and 90 on the examination. He challenges the grade given to him for an incorrect answer as well as the grade given to other candidates for a correct answer. Question 18 asks the candidate to identify the best method for testing well-casing integrity. Well-casing integrity addresses breaks, ruptures, and holes in the well casing. Respondent determined the correct answer to Question 18 to be D. Answer D is a televiewer log. Petitioner answered B. Answer B is a caliper. The correct response is answer D. Answer D provides a more complete determination of the well casing integrity than does the answer chosen by Petitioner. Question 18 is a question that a candidate for licensure should be able to answer correctly. The challenged question is not beyond the scope of knowledge reasonably expected of a candidate for licensure. Question 90 asks the candidate for the best method of providing permeability for the largest volume. It does not specify the conditions for performing the test because the candidate does not need to know the conditions in order to answer the question. Respondent determined the correct response to be answer B. Petitioner selected answer D. The correct response is answer B. Answer B provides a more complete answer. Question 90 is a question that a candidate for licensure should be able to answer correctly. The challenged question is not beyond the scope of knowledge reasonably expected of a candidate for licensure.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order denying Petitioner's challenge to questions 18 and 90. DONE AND ENTERED this 21st day of August, 1997, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 21st day of August, 1997. COPIES FURNISHED: Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 James Rimes, Executive Director Board of Geologists Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 R. Beth Atchison, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Jeffrey James Tarr, pro se 3151 State Road 21 Middleburg, Florida 33068
Findings Of Fact On September 29, 1975 Respondent, R. J. Hunt Construction Company, through its President and qualifying general contractor, Richard J. Hunt, entered into a contract with Richard McCarty to construct two Second Story Additions to Palm Ocean Villas, Pompano Beach, Florida for a price of $53,700. The contract provided that the contractor would complete the building within 8 weeks of the issuance of a building permit and, if not completed, a 5 percent penalty would be deducted until December 10, 1975 and thereafter, if not complete, an additional 5 percent of the contract price would be deducted each week until complete. Building permits were issued on October 3 and 6, 1975 and work proceeded satisfactorily until the end of the 8 weeks contract period on December 1, 1975 when the project was 90 percent to 95 percent complete. At this time the contractor stopped work on the project and transferred his employees to another job. One of the contract provisions not completed was the application of waterproofing on a deck. Despite Hunt's assurances that he would get a subcontractor to complete this waterproofing, it still had not been completed by Christmas and McCarty employed a contractor to apply the waterproofing material in early January for which he paid $1,000 allowed by the contract. Subsequent thereto McCarty received notice of liens filed against his property from 4 subcontractors. These were American Metal Products Company, J. P. Electric Company, Ole Eds Construction, and Margate Plumbing. In order to get a certificate of occupancy it was necessary for McCarty to pay some of these subcontractors. American Metal Products installed an aluminum railing around the balcony for which they filed a notice of lien for $1,200 and subsequently filed a petition in bankruptcy. The present status of this lien was not ascertained. J. P. Electric Company had split their draw into three parts and they were paid by Hunt $700 for the initial work. When they refused to allow final inspection Hunt asked McCarty to pay them and take it off his last draw. McCarty paid $2,000 to J. P. Electric, leaving a balance owed of $781.92. Hunt also asked McCarty to pay Margate Plumbing and take this payment off the draw. Margate had been paid $1,000 upon completion of the rough work. In order to get occupancy McCarty paid Margate $1,800 which satisfied the lien of Margate. Ole Ed installed the septic tank and drain field for which they have filed a lien for $2,500 which is unpaid to date. Numerous miscellaneous items included in the contract for which McCarty advanced funds to keep work progressing amounted to $671.54. Hunt also requested McCarty to order the appliances which were included in the contract price since he (McCarty) could get them at contractor's price. For these appliances (stoves, air conditioners and refrigerators) McCarty expended $2,373.28. Total expenditures made by McCarty are as follows: McCarty paid to Hunt in draws $48,400.00 McCarty paid to J. P. Electric 2,000.00 McCarty paid to Margate Plumbing 1,800.00 McCarty paid for waterproofing deck 1,000.00 Misc. items paid for by McCarty 671.54 Appliances for which McCarty paid 2,373.28 Total paid by McCarty under contract $56,244.82 Balance owed to subcontractors. American Metals Corporation $ 1,200.00 J. P. Electric 781.92 Ole Ed's Construction 2,500.00 Total cost of project $61,736.74 At the time licensee stopped work on the project the railing around the balcony had not been installed, top decking had not been approved by building inspectors and waterproofing of deck had not been done. Extra costs not included in the contract price which were agreed to by McCarty included $300 to $500 extra for larger electric wire and $400 to $500 for larger septic tank than contract called for. These costs totaled approximately $800 which would bring the total contract price to $54,500. The working foreman on the job for the first three or four weeks of the contract, who testified on behalf of Respondent, was unfamiliar with all terms of the contract or with the finances of Hunt. When the existing roof was removed for the second floor addition to be added, conduits had to be replaced and some 2 x 12 joists had to be replaced. This work unexpectedly increased the cost of the contract to the contractor. The septic tank could not be placed where originally intended, and as a result, about 100 fee of sidewalk had to be torn up and replaced. Further, a larger septic tank than originally planned had to be installed. This latter increase was agreed to and paid for by McCarty. One character witness testified that Richard J. Hunt enjoys a good reputation in the construction industry.
