Findings Of Fact In December, 1993, Suwannee Farms, through one of its partners, Robert Wight, applied to the Department of Environmental Protection for a wastewater treatment facility permit to be constructed on part of its property in Suwannee County, Florida. The Department of Environmental Protection requested clarification or amendment of the initial application. Suwannee Farms amended its initial application and the Department determined that the applicant had provided reasonable assurances of compliance with Florida Statutes and the Department's rules and regulations. The permittee listed on the initial application is Robert Wight. Suwannee Farms is a partnership consisting of Robert Wight and Joseph Hall. The permit is to be issued in the name of Suwannee Farms. Issuance in the name of the partnership is within the scope of the Department of Environmental Protection's authority. On January 25, 1994, the Department issued its Intent to Issue the permit. The intent to issue provided in part: Pursuant to Section 403.815, F.S. and DER Rule 17-103-150, Florida Administrative Code, you (the applicant) are required to publish at your own expense the enclosed Notice of Intent to Issue Permit. The Notice shall be published one time only within 30 days, in the legal ad section of a newspaper of general circulation in the area affected. For the purpose of this rule, "publication in a news- paper of general circulation in the area affected" means publication in a newspaper meeting the requirements of Sections 50.011 and 50.031, F.S., in the county where the activity is to take place. Where there is more than one newspaper of general circulation in the county, the newspaper used must be one with significant circulation in the area that may be affected by the permit. If you are uncertain that a newspaper meets these require- ments, please contact the Department at the address or telephone number listed below. The applicant shall provide proof of publication to the Department, at Northeast District Office, 7825 Baymeadows Way, Suite B-200, Jacksonville, Florida 32256-7577, within seven (7) days of the publication. Failure to publish the notice and provide proof of publication within the allotted time may result in the denial of the permit. The Notice Of Intent to Issue was published in the Gainesville Sun on February 5, 1994. Proof of publication was timely filed with the Department. The Gainesville Sun is a daily newspaper printed in Alachua County, Florida. The paper is available for purchase by the general public in Suwannee County, Florida and is sold to the general public at newspaper racks. Additionally, the Sun is available to residents of Suwannee County, including the area of the proposed project, through subscription and delivery via newspaper carrier "tubes." The Gainesville Sun is the only newspaper of general circulation delivered on a daily basis to homes in the area affected by the proposed permit. The Gainesville Sun contains national, state and local news stories, including local events in Suwannee County. Additionally, the Sun contains a legal ad section. The information in the Sun is of a public character and of interest and value to the residents of Suwannee County.dd The Sun has been published for more than a year in both Alachua and Suwannee Counties. At least twenty-five percent of the words in the Sun are in the English language and is entered as second class mail at the post office. There is no question that the Gainesville Sun meets the legal requirements of the Department for publication of Notices of Intent to Issue Permits in Suwannee County. Therefore, publication of the Intent to Issue Permit for the proposed wastewater facility involved in this case was appropriate. Through discovery and after an order compelling such answers, the Petitioner listed her objections to the issuance of the permit generally as noncompliance with nitrate level regulations, noncompliance with fencing regulations, noncompliance with set-back regulations and noncompliance with excessive noise and odor regulations. The evidence at the hearing demonstrated that the proposed wastewater treatment facility and land application meet the requirements of Florida Statutes and the Department's rules in the areas specified by the Petitioner as well as other areas of the statutes and rules. Suffice it to say that Petitioner offered no evidence which even remotely demonstrated that the Suwannee Farms permit did not meet these requirements or in some way failed to reasonably assure the Department that the requirements for a wastewater treatment permit with rapid rate land application would be met. Indeed, the only evidence in this case demonstrated that the technology proposed for the wastewater plant and rapid rate land application has been in use for a long time and has historically either met or exceeded the Department's requirements for nitrates (not to exceed 12 milligrams per liter), noise, odor and fecal coliform. There was no evidence submitted that would cause one to conclude that the technology for this facility would not perform as it has in the past at other locations. The plans of the facility clearly show adequate fencing and that the percolation ponds will be set-back at least 500 feet from any wells and at least 100 feet from any property line. Both fencing and pond location meet the requirements of Florida Statutes and Departmental rule. Given these facts, Petitioner has shown its entitlement to a construction permit for its proposed project.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Protection issue a Final Order granting the application of Suwannee Farms for a wastewater treatment facility and rapid land application permit. DONE and ENTERED this 4th day of May, 1995, in Tallahassee, Florida. DIANE CLEAVINGER 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 4th day of May, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-2800 1. The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, and 10 of Respondent's Proposed Findings of Fact are adopted in substance, insofar as material. COPIES FURNISHED: Stephen C. Bullock P. O. Box 447 Jacksonville, FL 32201 Thomas I. Mayton, Jr. Assistant General Counsel D E P 2600 Blair Stone Rd. Tallahassee, FL 32399-2400 Frederick L. Koberlein P. O. Drawer 2349 Lake City, FL 32056-2349 Virginia B. Wetherell, Secretary D E P 2600 Blair Stone Rd. Tallahassee, FL 32399-2400 Kenneth Plante General Counsel D E P 2600 Blair Stone Rd. Tallahassee, FL 32399-2400
The Issue The issue in this case is whether the application of Respondents Falkner to transfer and modify a Water Use Permit should be approved.
Findings Of Fact The Southwest Florida Water Management District (District) is responsible for regulation and protection of water resources in the geographic area involved in this proceeding. Since 1994, John Falkner has owned the property in Hillsborough County which is the subject of this proceeding. The Falkner property is farmed by Christopher Falkner, the owner's brother. Prior to purchasing the land, the Falkners farmed the property, also known as the Rogers farm, through a lease arrangement with the previous owner. Rose Ann DeVito owns property to the south of the Falkner property. In the time since Ms. DeVito purchased the property, the elevation of Sumner Road has been raised and culverts were replaced. A fish farm was constructed in close proximity to her property. The result of this and other development has been to direct all the water flow from the surrounding area into the stream adjacent to the DeVito property. Drainage patterns in the area of Ms. DeVito's property have been altered since she first occupied the property. A ditch along Sumner Road which used to handle runoff from her property has been blocked by a neighbor's driveway. Maintenance on the ditch, allegedly a county responsibility, is described as poor. The ditch at the rear of Ms. DeVito's property handled water flow to Bullfrog Creek until the water flow became blocked, and the water diverted onto her property. The effect is that Ms. DeVito's property often contains a large amount of water. A substantial amount of sand is visible on her property, allegedly deposited by water flow. According to Ms. DeVito, both the county and the District have blamed the Falkner farm for the water-deposited sand. Charles and Diana Booth own property adjacent and to the south of the Falkner property. From 1992 to 1994, the Booths suffered from water running off the Falkner/Rogers farm and flooding the Booth property. A flood of the Booth property in the Fall of 1994 was not caused by irrigation but was related to a ten inch rainfall event at the Falkner farm. A ten inch rainfall exceeds a 25 year storm event and would likely result in widespread flooding. The Booths' pasture, top soil and driveway were eroded by the flooding. During the two years of flooding, Mr. Booth complained on several occasions about the flooding to the Falkners' foreman, "Cleo." The complaints were not relayed to Mr. Falkner. In October 1994, Mr. Booth reported the problem to the Southwest Florida Water Management District. Soon after the complaint was made, a representative of the District inspected the property and determined that a ditch needed maintenance. Shortly thereafter, the ditch was cleaned and a berm was installed to redirect runoff away from the Booth property. There has been no further flooding of the Booth property. In October 1995, Mr. Booth became concerned that a ditch was filling with sand and would not continue to handle the runoff. After voicing his concern, a water diverter was installed in the ditch and appears to have remedied the situation. At the time the Falkners began to lease the Rogers property, an existing water use permit, numbered 206938.01, had been issued and was valid for the farm. The Falkners have applied to transfer the existing water use permit from the previous property owner. The Falkners also seek to modify the permit, increasing the total quantities which can be pumped by transferring previously approved quantities from another permit the Falkners currently hold. All of the relevant wells are within the District's Most Impacted Area (MIA) of the Tampa Bay Water Use Caution Area. The District allows a permit holder within the MIA to increase withdrawals from a well by transferring the quantities from another permitted well within the MIA. The other Falkner farm (the "301 farm") from which the quantities would be transferred is located approximately one-half mile to the south of the Rogers farm and is within the MIA. The District reviewed the application and, on September 29, 1995, issued its Proposed Agency Action to Issue Water Use Permit No. 206938.03. The proposed permit includes special conditions requiring monthly pumping reports, water quality reports, adherence to District irrigation allotments (irrigation levels established by the AGMOD computer model) and crop reporting. In reviewing the application the District utilized the criteria set forth in Florida Administrative Code, and the Basis of Review, incorporated into the code by reference. In order to obtain a Water Use Permit, an applicant must demonstrate that the water use is reasonable and beneficial, is in the public interest, and will not interfere with any existing legal use of water. Additionally, the applicant must provide reasonable assurances that the water use: will not cause quantity or quality changes which adversely impact the water resources, including both surface and ground waters; will not adversely impact offsite land uses existing at the time of the application; will not cause water to go to waste; and will not otherwise be harmful to the water resources within the District. The uncontroverted evidence establishes that the water use is reasonable, beneficial and is in the public interest. The Falkners irrigate farmland to produce agricultural products. The production of food is in the public interest. The proposed use is reasonable and beneficial. Further, uncontradicted evidence and opinions of expert witnesses establish that the proposed use will not interfere with any existing legal use of water. The applicant must provide reasonable assurances that the water use will not cause quantity or quality changes which adversely impact the water resources, including both surface and ground waters. The evidence establishes that pumping from the Falkner wells will not adversely affect the quality of water within the aquifers from which the water is drawn. Mr. Booth asserted that he is having water quality problems, specifically with rust in his well. The Booth well is approximately 25 years old. There is no evidence that the rust is related to the Falkner pumping. The DeVito and Booth wells draw from the Intermediate aquifer. Review of the potentiometric surface map of the intermediate aquifer indicates that there is a water level variation of 17 feet between the rainy and dry seasons. The result of the variance can be "dry" wells. There are two wells on the Falkner/Rogers property relevant to this proceeding. The first (District ID number 1) is 770 feet deep, is cased to a depth of 160 feet, and opens to the Floridan aquifer. The second (District ID number 2) is 1100 feet deep, is cased to a depth of 140 feet, and opens to the Intermediate and the Floridan aquifers. A cased well does not withdraw water from the formations through which the casing is placed. For example, a well cased to a depth of 160 feet draws no water from the top of the casing (at approximately ground level) to the bottom of the casing at 160 feet. The Intermediate aquifer releases water at a much slower rate than the Floridan aquifer. Based on the type and location of the Falkner wells, the vast majority of the water pumped by the Falkners comes from the Floridan aquifer. Impacts on existing wells are calculated through computer modeling. The "MOD" flow model demonstrates impacts that will occur after 90 days of pumping at peak month levels with no recharge to the aquifer. The MOD flow model results in a conservative "worst case" projection. The MOD flow model calculation projects the drawdown at Falkner well number 1 to be approximately .9 feet. The MOD flow model calculation projects the drawdown at Falkner well number 2 to be approximately 1.4 feet. The MOD flow model calculation projects the drawdown at the Booth well to be approximately one-half foot. The impact on the DeVito well will not exceed that projected at the Booth well. District permitting criteria allow for projected MOD flow model drawdown impacts of less than five feet at existing wells. The impact possible after approval of this application falls well within the District's guidelines. The impact of pumping if the application at issue in this proceeding is approved will result in a maximum variation of one-half foot at the Booth well. The evidence fails to establish that any problems related to water quantity encountered by the Booths are related to agricultural pumping at the Falkner farms. The evidence also establishes that, based on the existing retention and drainage system, the proposed use will not adversely impact surrounding surface water bodies. A system of swales and ditches is utilized to retain the water on the farm property. The evidence fails to establish that runoff from the Falkner/Rogers farm will adversely impact surrounding surface waters if this application is approved. The applicant has provided reasonable assurances that the water use will not adversely impact offsite land uses existing at the time of the application. The evidence establishes that the runoff from the Falkner farm does not discharge directly to the stream at the rear of the DeVito property. Other agricultural property discharges into the stream adjacent to the DeVito property. There is a steady waterflow through the stream at all times, whether or not the Falkner pumps are operating. Ms. DeVito's property consists of Myakka soil, which has little capacity to absorb rainfall and generates large amounts of runoff. The altered drainage patterns in the area have resulted in substantial water on her property. The evidence in insufficient to establish that the Falkner farm pumping has resulted in flooding on Ms. DeVito's property. The evidence fails to establish that approval of the application at issue in this proceeding will cause adverse impact to the DeVito property or will result in water quality or quantity problems. The Booths are concerned that the existing drainage system will not be maintained and that increased pumping will result in their land being flooded again. The evidence fails to establish a substantial likelihood that the Falkner farm drainage system will not be maintained. The applicant has provided reasonable assurances that the water use will not cause water to go to waste. The Falkners use a semi-enclosed seep irrigation system at the Rogers farm. Irrigation is only used when necessary. Mushroom compost, humates, and plastic mulch retain moisture in the soil. A special condition of the permit requires the Falkners investigate the feasibility of tail water recovery and reuse. The applicant has provided reasonable assurances that the use will not otherwise be harmful to the water resources within the District. The permit application results in no increased withdrawal of water than is allowed under the existing permits for the Rogers and the "301" farms.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Southwest Florida Water Management District enter a Final Order granting the Falkner application and issuing permit number 206938.03. DONE and ENTERED this 26th day of April, 1996 in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM, 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 26th day of April, 1996. APPENDIX TO RECOMMENDED ORDER, CASES NO. 95-5763 and 95-5764 To comply with the requirements of Section 120.59(2), Florida Statutes, the following constitute rulings on proposed findings of facts submitted by the parties. Petitioners Booth The Petitioners Booth proposed findings of fact fail to comply with the requirements of Rule 60Q-2.031(3), Florida Administrative Code, which requires citations to the record of hearing. The proposed findings are rejected as irrelevant or not supported by the greater weight of the evidence except where they are consistent with the Findings of Fact set forth herein. Respondents The Respondents' joint proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 15. Rejected, cumulative. 28-29. Rejected, subordinate. 33. Rejected, subordinate. COPIES FURNISHED: Rose Ann DeVito, pro se 11001 Sumner Road Wimauma, Florida 33598 Diana P. and Charles B. Booth, pro se 10812 Sumner Road Wimauma, Florida 33598 Patricia Petruff, Esquire Dye and Scott, P.A. 1111 Third Avenue West Bradenton, Florida 34206 Martin Hernandez, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Peter G. Hubbell, Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899
The Issue The issue in the case is whether the Petitioner's employment position was properly reclassified from Career Service to Selected Exempt Service pursuant to Section 110.205(2)(x), Florida Statutes (2001).
Findings Of Fact Beginning on April 23, 2001, and at all times material to this case, the Petitioner was employed by the Hillsborough County Health Department as a Professional Engineer III, a position requiring state registration in accordance with Chapter 471, Florida Statutes (2001). The job announcement related to the Petitioner's employment states that the position "oversees" the drinking water program and engineering-related activities. The position was responsible for management of "Safe Drinking Water" permitting and compliance enforcement program entailing a variety of duties, including planning, organizing, and coordinating work assignments. According to organizational charts before and after the date of the reclassification of the position, the Professional Engineer III position had direct supervision of four employment positions, and indirect supervision of eight additional positions that reported to one of the Petitioner's direct employees. The position of Professional Engineer III includes a substantial amount of engineering review responsibilities, and is charged with direct supervision of the Safe Drinking Water Act program staff and Limited Use Drinking Water program staff. The position description categorized the job responsibilities as "regulatory," "supervising/training," "enforcement," "policies and procedures," "record keeping," "education," and "committees/other duties." Review of the specific duties indicates that the Petitioner's supervisory responsibilities were included within several of the categories. Included within the "regulatory" category was "[e]nsures staff conduct field inspections of public water systems. . . . Supervisor is responsible and accountable for field staff." Included within the "supervising/training" category were the following duties: Supervises Engineers to ensure all programs in the Safe Drinking Water Program are completed according to the agreement with DEP and the policies and procedures of the Department of Health. Supervises an Environmental Supervisor II to ensure that all programs in the Limited Use Drinking Water Program and Private Drinking Water Program are completed according to the F.S., F.A.C. and county regulations. Supervises staff review of engineer's plans. Supervises and reviews the preparation of non-compliance letters written by staff regarding enforcement actions. Provide training to new Health Department staff in all aspects of EHS at least once a year (standardized presentation). Perform field inspections (documented) with personnel on a quarterly basis to evaluate staff performance and for Quality Improvement (QI) in accordance with office policy. Telephone regulated facilities each quarter to determine customer satisfaction . . . in accordance with office policy. Develop training modules for specific program areas (public drinking water systems) and maintain them accurate and current. Provide those training modules to new EH staff and twice a year to existing EH staff. Assign staff to special work areas as necessary and perform field inspections (staff shortages, vacation/leave time, and natural disaster). Evaluate personnel's work, plan work load, special tasks to include efficiency. Included within the "enforcement" category were the following duties: Reviews appropriate enforcement activities generated by staff and assure timely progress of formal enforcement from compliance to enforcement. Ensures the time progress of enforcement cases by working closely with the compliance section of the Public Drinking Water Program in bringing non-compliant clients into enforcement. Follow up on violations of FAC and/or FS and ensure compliance is achieved or enforcement action is taken. Included within the "policies and procedures" category was the responsibility to "[r]eview daily activity reports and corresponding paperwork each day." The Petitioner was responsible for managing the daily workflow of the office. He planned, directed, and reviewed the work performed by his employees. The Petitioner was responsible for the evaluation of all employees under his direct supervision, including newly hired probationary employees. The Petitioner was responsible for review of the evaluations for employees for whom he had indirect supervisory duties, and he also provided his own independent evaluation of their performance. The Petitioner was responsible for the discipline of employees. At one point he had to counsel an employee who was consistently late to arrive for work. The Petitioner was also responsible for seeking qualified applicants for position openings. He was responsible for initiating the employment process. He chose the panel that interviewed applicants, designed the interview questions, participated in interviews, and made the final recommendation as to the person hired. He had the authority to decline to fill an open position if he deemed that the applicants lacked sufficient qualification. The Petitioner claims that the majority of his time was spent in review of permit applications and related engineering tasks. The evidence fails to support the assertion. The Petitioner's claim appears to essentially relate to a period of time subsequent to the July 1, 2001, reclassification of the position. During the time between his initial employment and the date of the position reclassification, the Petitioner was primarily a supervisory employee and had little, if any, permit review responsibilities. The office was fully staffed with other employees who were directly responsible for review of permit applications and related field reviews. In autumn of 2001, after the position was reclassified, the office began to lose employees, resulting in an increased workload for the remaining workers. At this point, the Petitioner began to undertake a substantial role in the actual review of permit applications in addition to his supervisory duties. Nonetheless, the Petitioner remained responsible for supervision of remaining employees. The Petitioner was also responsible for filling the vacant positions.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Education enter a Final Order finding that the "Professional Engineer III" position held by Raymond Van Loon on July 1, 2001, was properly classified into the Selected Exempt Service. DONE AND ENTERED this 21st day of April, 2004, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of April, 2004. COPIES FURNISHED: Stephen W. Foxwell, Esquire Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703 Aaron J. Hilligas, Esquire AFSCME Council 79 3064 Highland Oaks Terrace Tallahassee, Florida 32301 Maria N. Sorolis, Esquire Allen, Norton & Blue, P.A. 324 South Hyde Park Boulevard Hyde Park Plaza, Suite 350 Tampa, Florida 33606 Jerry G. Traynham, Esquire Patterson & Traynham Post Office Box 4289 315 Beard Street Tallahassee, Florida 32315 William E. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
Findings Of Fact Respondent, Lois Green, is a resident of Florida and owns the property known as the Nichols Post Office located on Highway 676 in Nichols, Polk County, Florida. There is one employee stationed at the post office and members of the public use the post office for U.S. mail purposes. On October 11, 1990, Petitioner advised Respondent that the source of water that she used to supply the post office building did not comply with the requirements of the Florida Administrative Code. Thereafter, on September 23, 1991, Petitioner issued an Administrative Complaint to Respondent, advising of Petitioner's notice of intent to assess a fine of $100.00 per day until the corrections were made or for 30 days, whichever occurred first. At the hearing, Petitioner orally amended paragraph 4 of the Administrative Complaint to change the reference "December 22, 1989" to "October 4, 1990." Following service of the Administrative Complaint on Respondent and for 30 days thereafter, the water source for the post office building was a well located behind the post office on Respondent's property. In approximately December of 1991, Respondent disconnected the well which was presently serving the post office and connected to another well located adjacent to the property which supplied a residential home. The well which provided water to the post office was originally drilled as an irrigation well. The well head was located approximately 50 ft. to the closest septic tank and restroom pipe outlets. That well had no raw sample taps or a pressure tank with an inlet or outlet. Additionally, there was no surface protection pad nor were quarterly bacteriological samples taken to measure the water quality samples. Finally, the well was not approved by Petitioner prior to placing it into use by Respondent. Sometime subsequent to 30 days after Petitioner issued the Administrative Complaint to Respondent, Respondent abandoned the well without notifying the Petitioner and connected to a residential well which also contravenes the setback requirements contained in Chapter 17, Florida Administrative Code. Specifically, that well is approximately 30 ft. from the on-site sewage disposal system (septic tank) and is in violation of Rule 17- 555.302, Florida Administrative Code, formerly Rule 17-22.615(2), Florida Administrative Code. Petitioner's agent, Mark Fallah, during times material, was employed in Petitioner's Code Enforcement Section and was charged with investigating the problems surrounding Respondent's supply of water to the Nichols Post Office. Throughout the course of employee Fallah's involvement with the investigation of this matter, there have been several proposals and counter-proposals which have been exchanged by and between Petitioner and Respondent. Petitioner's agent Fallah attempted to see if a variance could be obtained whereby Respondent could continue to use the then existing well despite the fact, however, that it was in violation of the setback requirements. Additionally, Fallah attempted to get Respondent to make certain minor changes and modifications to the existing well which were not successful. Throughout the course of the parties negotiations in an effort to resolve this matter, there has been certain concessions made by both sides; however, the well which supplies the post office is a water system which is noncompliant with applicable statutory and rule requirements. Petitioner, through its employee Fallah, checked with a local well drilling company, Dunham Well Drilling Company, to obtain an estimate for a well. That company gave an estimate of approximately $2,000.00 to $3,500.00 to install a water supply system to the post office which would comply with Petitioner's requirements.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner enter a Final Order imposing an administrative fine against Respondent in the total amount of $3,000.00 of which amount $2,500.00 shall be suspended pending Respondent's initiation of a plan to construct and install a water well system to provide the Nichols Post Office which complies with Petitioner's requirements enunciated in Chapters 403 and 381, Florida Statutes and Rule Chapter 17, Florida Administrative Code. In the event that Respondent fails to initiate a plan of correction and complete the installation of the well within sixty (60) days of the date of Petitioner's entry of its Final Order, then Petitioner shall be authorized to impose the full administrative penalty of $3,000.00 without further administrative proceedings. Respondent shall submit to Petitioner the five hundred dollar ($500.00) administrative fine within thirty (30) days from the entry of Petitioner's Final Order. DONE and ENTERED this 22 day of April, 1992, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 day of April, 1992. COPIES FURNISHED: Raymond R. Deckert, Esquire Asst District Legal Counsel HRS District VI Legal Office 4000 W Dr Martin Luther King Jr Blvd Tampa, Fl 33614 Mygnon Evans, Esquire 5600 US Highway 98 N Lakeland, Fl 33809 Richard S. Power Agency Clerk Dept of Health and Rehabilitative Services 1323 Winewood Blvd Tallahassee, Fl 32399 0700 John Slye, Esquire General Counsel Dept of Health and Rehabilitative Services 1323 Winewood Blvd Tallahassee, Fl 32399 0700
Findings Of Fact This application is to provide irrigation necessary to develop 11,520 acres zoned agricultural into improved grazing land. The land to be so developed is Sections 1, 2, 3, 10, 11, 12, 13, 14, 15, 23, 24, & 25, Township 47 South, Range 34 East, a portion of Sections 4, 9, 16, 21, 22, 26, 27, 35 & 36, Township 47 South, Range 34 East, a portion of Section 1, Township 48 South, Range 34 East, and a portion of Section 6, Township 48 South, Range 35, East. It is bounded on the west and southwest by the L-3 canal, and on the east by the Rotenberger tract which has been purchased by the State of Florida as a Wildlife Management Area. Details of the proposed water management system are contained in Exhibit 4, C&SFCD Staff Report. The tract here involved is basically flat with the elevation going from +14 feet in the northwest portion to +13 feet in the southeast portion. Although the Addendum to the Staff Report (Exhibit 5) states that the application calls for the conversion of several thousand acres of original sawgrass Everglades into improved pasture, expert witnesses testified without contradiction that the tract involved is more on the edge of the Everglades and only a small portion in the southeastern part thereof is truly swamp and marsh land typical of the Everglades. The western portion of the area is comprised of sandy soil rather than the muck characteristic of Everglades land. Although the Intervenors contended that the development of the tract would be environmentally counterproductive, no evidence was submitted to support this position. Conversion of the land to pasture may prove more useful to wildlife than leaving it in its present state which primarily supports deer. As improved pasture the land would still support a substantial deer population. Wading birds in particular will benefit if the wild land is converted to pasture. The annual water allocation recommended by the C&SFCD staff and concurred in by applicant, should be 15,360 acre-feet (16.0 inches/acre/year) which is the basin yield for the area. Therefore the irrigation use should have no adverse impact on the water resource or affect other users.
Findings Of Fact The City has brought this action pursuant to Section 120.56, Florida Statutes, challenging Rules 17-50.015(2)(f) and 17-50.016(2)(f), Florida Administrative Code. Section 120.56(1), Florida Statutes, authorizes any person substantially affected by a rule to seek an administrative determination of the invalidity of the rule on the ground that the rule is an invalid exercise of delegated legislative authority. The Department has stipulated to the City's standing to maintain this action. 4. Rules 17-50.015(2)(f) and 17-50.016(2)(f) were adopted by the Department pursuant to Sections 403.061, 403.101, 403.1823, 403.1832, 403.1838 and 403.804, Florida Statutes. No disputed issues of material fact exist between the parties.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as facts stipulated to by the parties, the following relevant facts are found: Central Corporation, formerly known as TFC Teleservices Corporation, is a provider of alternative operator services (AOS). An AOS provider provides operator assisted long distance telecommunications services to various entities including hotels, motels, universities, hospitals and private pay telephone providers. This new AOS telecommunication industry emerged after 1984 when AT&T ceased paying commissions to hotels for toll-traffic from guests and when the Federal Communications Commission authorized privately-owned pay phones. There are currently nine AOS providers in Florida. Central is authorized by Certificate Number 1528, issued by the PSC on November 21, 1986, to operate as an interexchange carrier within the State of Florida. Central currently operates in Florida under an approved tariff on file with the PSC, which tariff became effective on September 15, 1987, and authorizes Central to charge certain amounts for its services. Prior to the challenged action, the PSC never placed any conditions upon Central's approved tariffed rates. Interexchange companies (IXCs) are companies which provide long distance telephone services. They are certificated by the PSC on a statewide basis and engage in competition with each other. Such competition, along with the PSC's fitness screening and approval of tariffed rates, is considered adequate to protect the public. Consequently, the PSC does not regulate the rates of IXCs, at least minor IXCs including AOS providers. The PSC does not set rate levels for minor IXCs and does not set an authorized rate of return on equity for minor IXCs. Indeed, in accordance with Section 364.337, Florida Statutes, which authorizes the PSC to exempt from the requirements of Chapter 364 a telephone company which is in competition with or duplicates the services of another telephone company, the PSC has placed AOS providers under the separate rules and regulations pertaining to IXCs, which are not rate base regulated. The PSC has never established for any minor IXC a rate base or an authorized or required rate of return. Local exchange telephone companies (LECs) serve a franchised monopoly area. The LEC agrees to provide service indiscriminately to the public without competition, and, in return, the PSC guarantees the LEC the opportunity to earn a fair rate of return designed to emulate what might be achieved in a competitive market. The PSC sets rate bases and rate levels for LECs, and authorizes the rate of return on equity. In other words, unlike IXCs, LECs are rate base regulated utilities. LECs and/or the PSC may initiate rate relief or rate decrease proceedings. Interim relief is often necessary and is authorized by statute and case law due to the regulatory lag time pending the conclusion of the proceedings. Such interim rate relief or interim rate decreases are done on an individual case-by-case basis and are based upon the financial condition of the particular LEC. The PSC has never provided interim rate relief or interim rate decreases on an industry-wide basis. It has set a "generic" rate cap, establishing a 25 cent local call rate for privately-owned pay phones, but that was done on a prospective basis. The PSC has never imposed an industry-wide rate cap, with a requirement to hold subject to refund monies in excess of that cap. At the request of PSC staff, the PSC opened, on December 18, 1987, Docket Number 871394-TP styled "In re: Review of Requirements Appropriate for Alternative Operator Services provided from Public Telephones." This was designated as a "generic" proceeding, and emanated from numerous complaints the PSC had received from end users (i.e., guests of hotels and motels, hospital patients and pay telephone users) who had been charged for alternative operator services. The nature of the complaints included end users being charged for AOS without being aware of using the service, lack of prior knowledge of the rates being charged, inability to use the services of their preferred IXC and inability to access the LEC operator. The most significant complaint, however, was the excessive rate being charged by some AOS providers. The evidence demonstrates that the intrastate long distance rates charged by Central are considerably higher than the rates charged by Southern Bell, an LEC. Central entered an appearance in Docket No. 871394-TP on December 30, 1987. At an Agenda Conference held on February 2, 1988, the PSC voted on various recommendations of its staff. As pertinent to this proceeding, the PSC voted to set an expedited hearing to be held as soon as practicable to determine whether AOS are in the public interest and various other issues concerning the provision of AOS. The PSC also voted to require all AOS providers to place all revenues subject to refund that are generated by charges in excess of the AT&T rate for a comparable call. This vote exceeded the staff's recommendation, which did not include a "hold subject to refund" requirement. At an Agenda Conference held on February 16, 1988, the PSC voted to reconsider the rate cap applicable to AOS providers and to hold the Order reflecting their February 2nd vote pending such reconsideration. At its Agenda Conference held on March 15, 1988, the PSC reconsidered and raised the rate cap amount from the AT&T rate for a comparable call to the LEC rate for a comparable call, thereby decreasing the amount of revenues that AOS providers must hold subject to refund. The action taken on March 15, 1988, was embodied in written Order No. 19095 issued on April 4, 1988. This Order is entitled "Order Setting for Hearing the Issue of Whether Alternative Operator Services are in the Public Interest and Placing Revenues Subject to Refund ..." The remainder of the title relates to "proposed agency action" concerning other requirements for AOS providers, which are not challenged in this proceeding. Order No. 19095 declares that paragraph 7, which requires AOS providers to hold subject to refund all charges collected in excess of the approved rate, is effective February 2, 1988. The Order further recites "We are cognizant of the serious impact this action may have on AOS providers and their customers. However, it is our view that we must take immediate and effective action to remedy the abusive situation we perceive exists at this time. It is in consideration of these conflicting concerns that we have chosen the least drastic action available. This action does not require AOS providers to immediately stop charging current rates. It does not suspend or revoke any certificates of public convenience and necessity. It does not levy any fines or penalties. It merely places revenues subject to refund to allow for the return of these monies if it is subsequently decided that they were generated from inappropriate charges." Although not embodied within the terms of Order No. 19095, the parties stipulated that the hearing to determine public interest is scheduled for August 9-12, 1988. Central requested the PSC to hold an evidentiary hearing prior to making the rate cap take effect, but this request was denied. The rate cap requirement and the disposition of the revenues held by AOS providers pursuant to Order No. 19095 are issues to be determined at the hearing to be held August 9- 12, 1988. The rate cap requirement set forth in Order No. 19095 applies to all AOS providers operating in Florida. Central's current tariff authorizes Central to charge more than the rate cap specified in Order No. 19095. Prior to Order No. 19095, there was no rate cap on AOS providers. Regardless of whether the PSC ultimately orders a refund, the "hold subject to refund" requirement which became effective on February 2, 1988, has immediate and significant adverse impacts upon Central. Central is a relatively new company and must use the revenue it generates on a daily basis. Prior to Order No. 19095, Central was able to rely on the unconditional use of revenues it receives under its approved Florida tariff. If Central continues to charge its current tariffed rates, it will have to set aside the difference between what it bills and the rate cap, place it in escrow and will not be able to utilize those funds. It is estimated that the revenues Central might have to refund if it continues to charge its current rates would between $1.2 and $1.7 million. Nonrecoverable commissions and the cost of a actually making the refund would increase the potential cost of the refund. If Central were to reduce its rates to the LEC rate, it would lose a substantial amount of revenue and does not know where it can make up that loss. Even if this option were chosen today, Central would still have to determine to whom it provided services since February 2, 1988, and what the potential refund would be. Additional staffing and/or computer equipment would be necessary to keep track of prior users and charges. A third option is for Central to withdraw from Florida intrastate operations pending the outcome and conclusions of the August PSC proceedings. Central operates in many states. While its Florida business makes up only 8 to 10 percent of its intrastate revenues, some 40 percent of Central's entire business originates at Florida properties. If Central were to cease paying commissions on intrastate revenues, its intrastate business originating from Florida would go to its competitors. While Central has made the decision not to do business in certain states due to those state's methods of rate regulation, such decisions were made on a prospective basis. Other immediate and adverse impacts upon Central include the administrative costs and burdens associated with separate bookkeeping for its Florida operations, as well as separate books within Florida to segregate the difference between the rate cap and its tariffed rates. Central has already experienced delays in loan financing. Lenders want to wait and see what the PSC does with AOS providers. The valuation of the company is affected due to money taken out of the revenue stream and placed in escrow. Central's financial statement must reflect the contingent liability of potential refunds and full disclosure must be made to the Federal Communication Commission.
Findings Of Fact Floralino Properties, Inc. is a small utility providing water and sewer service in Pasco County. During the period May 30, 1978 until March 12, 1979, it purchased a substantial portion of its water from the Pasco Water Authority, Inc. (PWA) for resale to its customers. In order to recoup the costs of those purchases, the Public Service Commission authorized the utility to assess a surcharge upon each customer's bill. (See Order No. 7494). However, because the surcharge exceeded the actual charges for water purchased, the utility was required to escrow all excess revenues. Respondent failed to do so thereby precipitating the issuance of Order No. 9320. A subsequent Commission audit reflected the excess revenues to be $2,228.05. Prior to the hearing, but after the issuance of Order No. 9320, the respondent escrowed the funds in a Pinellas County bank. The utility now agrees to make an appropriate refund with interest within 30 days to all customers who received service during the period in question.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that respondent be found guilty of violating Order No. 7494, dated November 2, 1976; that a fine of $250 be imposed upon respondent; that respondent make an appropriate refund of $2,228.05 with 6 percent interest to those customers entitled to such refund within 30 days; and that a final report setting forth the disposition of such monies be submitted to the Public Service Commission within 90 days. DONE AND ENTERED this 22nd day of August, 1980, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: M. Robert Christ, Esquire 101 East Gaines Street Tallahassee, Florida 33542 Floralino Properties, Inc. 2320 East Bay Drive Clearwater, Florida 33516 Steve Tribble Commission Clerk 101 East Gaines Street Tallahassee, Florida 32301 Herman B. Blumenthal, III, Esquire 10401 Seminole Boulevard (Alt. 19) Seminole, Florida 33542
Findings Of Fact The Petitioner is a wholly owned subsidiary of Queens Cove Properties, Inc. Mr. Alex B. Cardenas is president of the parent development company as well as the utility. The water system was constructed for the sole purpose of providing water to purchasers of lots in the Queens Cove subdivision. However, the Petitioner obtained certification as a public utility to serve the general area in the belief that it was required to do so. See Section 367.031, Florida Statutes. Lots in this subdivision have sold for $15,000 to $24,000, which includes undifferentiated amounts for availability of water service. The water service is part of a "bundle of rights" which the purchaser obtains with his lot. (e.g. bridge, roads, underground utilities). In addition, existing lot owners have purchased the "bundle of rights" separately from their land (where Queens Cove was not the original property seller) at prices ranging from $4,000 to $8,000. Again, the charge for water service availability was not differentiated from other rights. At the time of the second hearing, the utility had 45 connections--42 single family residences, one developer's office, one model home, and an irrigation outlet. Ten customers testified (five by adoption) at these hearings as to service problems. The water treatment plant is of the reverse osmosis type. This system is complex and costly to maintain, but is useful where as here the raw water contains a high level of natural impurities. The utility has not properly maintained this system and water taste, smell and clarity are generally poor. The customers also experience frequent periods of very low water pressure. Furthermore, they are unable to contact the utility when outages occur after business hours since there is no emergency phone number provided. The testimony of a Department of Environmental Regulation (DER) representative also established that chlorine residuals are not properly maintained and a high coliform reading in June, 1980, will require monitoring by DER. Thus, overall service is unsatisfactory and must be improved before the Petitioner is allowed to receive a return on its investment. See Section 367.081(2), Florida Statutes, which requires the Commission to consider service in setting rates. Profits earned by a utility with service deficiencies such as these would normally be placed in escrow until the problems were corrected. Here, however, the utility does not seek to earn a return on its investment, but only to break even. In addition, there was no competent, substantial evidence adduced by either Petitioner or Respondent to demonstrate what the utility's investment is. Therefore, rate base cannot be determined in this proceeding, and consequently no return can be established. Appendix one hereto details Petitioner's test year expenses as set out in its rate application, with adjustments to correct erroneous entries and to delete or reduce expenses which were not shown to be reasonable and prudent. No controversy exists with the exception of allowances for plant manager compensation, office rent and rate case expense. The Petitioner's request for an annual manager's salary of $20,000 was not supported by the evidence. No salary is currently paid for this function, nor is a plant manager as such required or utilized. Rather, the limited functions of a plant manager can be handled by one of the full time maintenance or administrative employees. This procedure is consistent with management practices in other small, developer-owned water utilities. Such delegation does not, however, relieve the owner from his duty to hire qualified personnel and provide adequate resources. A separate allowance for office rent is not justified. The Petitioner has no office in the immediate area but uses the owner-developer's office in Stuart. There is no need for a separate office under the present organizational structure, and therefore no expense for this item should be authorized. Evidence on rate case expense (attorney and accountant fees) was submitted by post-hearing pleadings pursuant to agreement of the parties. The Petitioner seeks $9,702 rate case expense, amortized over three years, or $3,234 annually. The Respondent proposes to allow $6,000 amortized over five years, or $1,200 annually. As with other expenses, the amount authorized will be paid by customers and any portion disallowed will be borne by the owner of the utility. The rate case expense sought here is $215 per customer, which far exceeds the average water/sewer utility rate case expense of $6.92 per customer. A substantial portion of these expenses were incurred as a result of Petitioner's failure to keep adequate records and its initial decision to proceed without counsel. Therefore, the reduction of authorized expenses to $6,000 proposed by Respondent is appropriate. However, Petitioner's proposed three-year amortization period better represents industry experience and is consistent with current Commission policy. Therefore, the rate case expense authorized is $6,000 amortized over three years, or $2,000 annually. The Petitioner currently bills its customers on a monthly basis using a minimum gallonage charge. This rate design neither encourages conservation of water nor accurately reflects the cost of providing service. Therefore, the utility should be required to adopt the base facility charge rate structure. This charge includes a fixed amount for the customer's share of the utility's fixed costs, as well as a gallonage charge to represent the variable expenses associated with water consumption. Petitioner requested authority to increase its tap-in or meter installation fee from $100 to $200. This increase was authorized on an interim (escrow) basis by Order 9140. The utility has now withdrawn its request for the increase and should return the escrowed amounts to all customers who have paid the $200. In addition, Petitioner should be required to pay interest on customer deposits at the rate of 6 percent prior to July 1, 1980, and 8 percent after that date. See Section 25-10.72, Florida Administrative Code. Since no interest on deposits has ever been paid, the credit must be retroactive to the date of each customer's deposit. Proposed findings of fact were submitted by the Petitioner and the Public Service Commission. To the extent these proposed findings have not been adopted herein or are inconsistent with the above findings, they have been specifically rejected as irrelevant or not supported by the evidence.
Recommendation Based on tide foregoing findings of fact and conclusions of law, it is RECOMMENDED that the petition of Island Services, Inc. be granted in part, and that Petitioner be authorized to file new rates structured on the base facility charge concept, designed to generate gross water revenue of $12,823 annually, based on the average number of customers served during the test year. It is further RECOMMENDED that Petitioner be required to refund $100 to all customers who have paid the interim $200 water connection charge and that its tariff be amended to show that $100 is the authorized charge for this service. It is further RECOMMENDED that Petitioner pay interest on deposits at the annual rate of 6 percent through June 30, 1980, and at 8 percent thereafter, with such payments retroactive to the dates of deposit. DONE and ORDERED this 6th day of August, 1980, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: R. M. C. Rose, Esquire 1020 East Lafayette Street Tallahassee, Florida 32301 Marta M. Crowley, Esquire Florida Public Service Commission Fletcher Building, 101 E. Gaines St. Tallahassee, Florida 32301 Douglas E. Gonano, Esquire Citizens Federal Building Suite 200 1600 South Federal Highway Fort Pierce, Florida 33450
Findings Of Fact Ed Smith is the President of Riverside Village Mobile Home Park, Inc., which in turn is the owner of the mobile home park in question in this case. The mobile home park is located in Ruskin, Hillsborough County, Florida. Petitioner was served with an Administrative Complaint alleging that the chlorine residual in the park water supply distribution system was inadequate and that this constituted a violation of Chapter 513 and Section 386.041(1)(f), Florida Statutes, as well as Rule 10D-26.67(1), Florida Administrative Code. Specifically, the Administrative Complaint alleges violations occurring between July 16, 1986 and July 29, 1986, and seeks the imposition of a civil penalty in the amount of $500 per day which "shall be calculated when this complaint is received by the (Petitioner), and will run until the violation has been corrected." Petitioner requested a hearing to contest these allegations, and his request was filed with Respondent's Clerk on October 8, 1986. It was not established by competent substantial evidence when Petitioner "received" the Administrative Complaint which is the subject of this action. The only evidence of any violation occurring between July 16 and July 29, 1986 was the testimony of Harry Messick who signed an Official Notice and Notice of Intended Action which were both dated July 16, 1986, and which alleged that "chlorine reading found at time of inspection (was) between 0.1 ppm and (a) trace." However, Messick did not perform any test to either produce or confirm this result. He testified that someone else performed the field test, but there was no testimony from anyone else who may have actually conducted a test on Petitioner's water supply system on July 16, 1986. Therefore, it has not been established by competent substantial evidence that Petitioner's water supply system on July 16, 1986, was in violation of the requirement that .2 mg/1 of free chlorine residual be maintained. Testimony from Respondent's other witnesses, Norman Vik and Neil R. Schobert, indicates Vik was not even at Petitioner's mobile home park between July 16 and 29, 1986, and the only test conducted by Schobert found that Petitioner's water supply system was in compliance on July 24, 1986. Design modifications in Petitioner's water supply distribution system were approved by the Hillsborough County Health Department on July 9, 1986.
Recommendation Based on the foregoing, it is recommended that Respondent enter a Final Order DISMISSING the Administrative Complaint filed against Petitioner. DONE AND ENTERED this 19th day of February 1987 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of February 1987. APPENDIX (DOAH Case No. 86-4094) Rulings on Respondent's Proposed Findings of Fact: 1. Adopted in Finding of Fact 1. 2-3. Rejected in Findings of Fact 4, 5. COPIES FURNISHED: James A. Sheehan, Esquire Florida Federal Building One Fourth Street North Suite 800 St. Petersburg, Florida 33701 Carol M. Dittmar, Esquire 4000 West Buffalo Avenue Suite 520 Tampa, Florida 33614 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32301 John Miller, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32301 =================================================================
