The Issue The issues are (1) whether engaging in air conditioning contracting regulated by the Florida Electrical Contractors Licensing Board pursuant to Section 489.500 et seq. Part II, Florida Statutes, constitutes exceeding the scope of one's license as an electrical contractor, (2) whether performing air conditioning contracting in the name of "Dixon's Heating and Air Conditioning" constitutes operating in a name other than the name his electrical contracting license is issued in, contrary to Subsection 489.533(1)(l), and (3) whether Respondent willfully violated the building codes by venting the heater improperly, failing to get a permit and get work inspected.
Findings Of Fact Notice of hearing was given to Respondent at Route 2, Box 595, Yulee, Florida 32097. Arnold Dixon is and has been at all times material to this case a registered electrical contractor, license number ER0004417. (Pet. Ex. 1 & 2) He has maintained his address of record as Route 2, Box 595, Yulee, Florida 32097. (T-Pg. 6) He has held such license since 1976. (Pet. Ex. 1 & 2) Arnold Dixon does not hold a license, a state registration or certification to engage in contracting as a heating or air conditioning contractor. (Pet. Ex. 4 & 6) Arnold Dixon does hold a Nassau County Occupational License as an electrical contractor and as a heating and air conditioning contractor. No check of local records was conducted to see if he had a local license as an air conditioning contractor. (T-Pg. 22) On or about June 1985, the Respondent's company, Dixon's Heating and Air Conditioning, contracted to install an air conditioning and heating unit at the home of John Williams for a contract price of $1985. (Pet. Ex. 5 and T-Pgs. 10 & 11) The work on this contract was done by David Everett, who negotiated the contract. The Respondent's company, Dixon's Heating and Air Conditioning, did not obtain a permit to perform the work at the Williams' residence. Inspections on the Williams' job were not called for by Dixon's Heating and Air Conditioning. Permits and inspections were required by the applicable building code. (T-Pgs. 25 & 26) Entering into a contract to perform air conditioning and heating work and performing such work is air conditioning contracting, which is regulated under Part I, Chapter 489, Florida Statutes. After installation by Dixon's Hearing and Air Conditioning, the Williams' heating system generated carbon monoxide when operating because there was insufficient fresh air being provided to the unit. Because the air intake was in a closet which restricted the air supply to the hot air handling system, the air handling unit sucked fumes from the exhaust side of the unit back through the unit's combustion chamber and circulated it through the house. The longer the unit ran, the more debris was trapped in the louvered door of the closet and the more combustion gases were pulled through the combustion chamber and distributed through the house by the air handling unit. (T-Pg. 34) According to the manufacturer's representative, the hot air return is required to be ducted into the unit. In this case, the return air was pulled from inside a closet which had louvered doors. No duct was used and this installation was not in accordance with the manufacturer's instructions. Although the unit as installed was unsafe and had the potential to kill, no evidence was received that failure to install the unit in accordance with the manufacturer's instructions was a violation of local building code. (T-Pgs. 34- 38) Dixon's Heating and Air Conditioning did not hold itself out to be and was not engaged in electrical contracting in fulfilling the Williams' contract. Dixon's Heating and Air Conditioning did hold itself out to be an air conditioning contractor and the work performed in fulfilling the Williams' contract was air conditioning contracting.
Findings Of Fact The petitioner is a non-profit corporation consisting of individual members who are residents of Tallahassee and Leon County and organizational members who have chapters in Tallahassee and Leon County. The primary purpose of petitioner is to bring about a balanced transportation system in Tallahassee and Leon County taking into consideration certain criteria which include the following: the prevention of neighborhood disruption and deterioration; the prevention of environmental degradation; and the prevention of harm to historical sites. In conjunction with this purpose and these criteria, one of petitioner's primary concerns is the prevention of degradation of air quality in the Tallahassee, Leon County area. Some members of the petitioner use that part of Thomasville Road to be affected by the subject application. The project for which the Department of Transportation seeks a Complex Source Permit is the four-laning of Thomasville Road from Eighth Avenue to Interstate 10 in Tallahassee, Florida. The Complex Source Permit was originally submitted to the Department of Environmental Regulation on March 22, 1976. The Department of Environmental Regulation did not accept that application, however, due to unacceptable modeling and monitoring. Thereafter, two supplements to the application were submitted to the Department of Environmental Regulation. The first, dated September 21, 1976, and the second, dated November 16, 1976, contained additional monitoring and a repeat of the modeling effort. Because of allegedly incorrect counts and speeds, the Department of Transportation submitted yet another application with revised monitoring and modeling data on January 4, 1978. This latest revised application is the subject of this hearing. The Department of Transportation did not monitor for or project the concentrations of any pollutant listed in Section 17-2.05, F.A.C., except carbon monoxide. The Department of Environmental Regulation did not require the monitoring for or projection of concentrations of any pollutant listed in Section 17-2.05, F.A.C., except carbon monoxide. The evidence presented in this proceeding does not establish that construction of the project for which a Complex Source Permit is sought herein would result in or cause an increase in ambient pollutant concentrations of any pollutant listed in Section 17-2.05, F.A.C., with the exception of carbon monoxide. The evidence presented indicates that remaining pollutants listed in the foregoing section would be emitted in insignificant quantities having no effect on the ambient air quality standard for that pollutant. The Department of Environmental Regulation has not independently monitored for any of the pollutants considered by Section 17-2.04(8), F.A.C., but has relied entirely on data submitted by the Department of Transportation. The Department of Transportation has based its carbon monoxide projections upon the use of the California Line Source Model, also known as Calair I, which is a mathematical computer model. It appears from the evidence presented that the Calair I computer model was used in a reasonable and proper manner and produced data which could be relied upon by the Department of Environmental Regulation. The Complex Source Permit application as finally submitted on January 4, 1978, projects the following concentrations for carbon monoxide: one-hour concentration for 1979, 6.7 ppm and for 1939, 4.8 ppm; for eight-hour concentrations in 1969, 2.8 ppm and for 1989, 2.0 ppm. The ambient air quality standard for carbon monoxide set forth in Section 17-2.05(1)(c), F.A.C., is 9 ppm maximum eight-hour concentration and 35 ppm maximum one-hour concentration, both not to be exceeded more than once per year. The testimony indicates that even if the calibration factor with the Calair I model were doubled, the projected carbon monoxide concentrations would not exceed the foregoing standard. No evidence was presented on the issues initially raised in this proceeding involving the Major Thoroughfare Plan, the Transportation Improvement Plan, and the Urban Area Transportation Plan. The testimony and evidence presented in this proceeding establishes reasonable assurance that the subject project will not cause a violation of the ambient air quality standards for the major pollutants to be emitted.
The Issue The issue in this case is whether Petitioner should be issued an air construction permit authorizing its Crystal River steam generating plant Units 1 and 2 to co-fire a five to seven percent blend of petroleum coke with coal.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background Petitioner, Florida Power Corporation (FPC), is an investor-owned public utility engaged in the sale of electricity to approximately 1.2 million customers. Among others, it operates the Crystal River Power Plant consisting of five electric-generating units in Citrus County, Florida. Units 1, 2, 4, and 5 are coal-fired, while Unit 3 is a nuclear unit. Respondent, Department of Environmental Regulation (DEP), is a state agency charged with the statutory responsibility of regulating the construction and operation of business enterprises in a manner to prevent air pollution in excess of specified limits. Among other things, DEP issues air construction permits for a limited period of time to undertake and evaluate initial operations of a business enterprise; long- term approval subsequently is available under an air operation permit. As a part of this process, and pursuant to federal law, DEP engages in a Prevention of Significant Deterioration (PSD) review to determine if non-exempt alterations to major facilities result in net emission increases greater than specified amounts. Under certain conditions, however, the use of alternative fuels or raw materials are exempted from PSD review. Intervenor, Legal Environmental Assistance Foundation, Inc. (LEAF), is a non-profit Alabama corporation licensed to do business in the State of Florida. It is a public interest advocacy organization whose corporate purposes include securing environmental and health benefits from clean air and water. Intervenor, Sierra Club, Inc. (Sierra Club), is a public interest advocacy organization incorporated in California and doing business in Florida. Its corporate purposes include securing the environmental and health benefits of clean air and water. On December 26, 1995, FPC filed an application with DEP for an air construction permit authorizing it to burn a blend of petroleum coke and coal in its existing coal-fired Units 1 and 2 at the Crystal River Power Plant in Citrus County, Florida. In the application, FPC did not address PSD review since it believed it qualified for an exemption from PSD permitting under Rule 62- 212.400(2)(c)4., Florida Administrative Code. That rule exempts from PSD review the [u]se of an alternative fuel or raw material which the facility was capable of accommodating before January 6, 1975, unless such change would be prohibited under any federally enforceable permit condition which was established after January 6, 1975. After reviewing the application, DEP issued an Intent to Deny on June 25, 1996. In that document, DEP stated that [a]ccording to information in Department files, both Units 1 and 2 operated on liquid fuel prior to January 6, 1975. Very substantial modifications of the boilers and pollution control equipment were implemented thereafter by [FPC] to convert the units to coal-firing mode. Therefore the project does not qualify for the exemption from PSD review claimed by the company. Contending that it was entitled to an exemption from PSD review and therefore a permit, FPC filed a Petition for Administrative Hearing on October 4, 1996. In its Petition, FPC generally alleged that petroleum coke is a product with characteristics very similar to coal; Units 1 and 2 were capable of accommodating coal and petroleum coke as of January 6, 1975; and contrary to the statements in the Intent to Deny, any boiler modifications and pollution control improvements to those units were minor and not substantial. The Permitting Program The PSD program is based on similar PSD requirements found in the federal Clean Air Act of 1970, as amended (the Act). The permitting program is a federally required element of DEP's State Implementation Plan (SIP) under Section 110 of the Act. DEP has fulfilled the requirement of administering the federal PSD program by obtaining approval from the Environmental Protection Agency (EPA) of state PSD regulations that meet the requirements of federal law. The requirements of the SIP are found in Chapters 62-204, 62-210, 62-212, 62-296, and 62-297, Florida Administrative Code. Chapter 62-212 contains the preconstruction review requirements for proposed new facilities and modifications to existing facilities. Rule 62-212.400, Florida Administrative Code, establishes the general preconstruction review requirements and specific requirements for emission units subject to PSD review. The provisions of the rule generally apply to the construction or modification of a major stationary source located in an area in which the state ambient air quality standards are being met. Paragraph (2)(c) of the rule identifies certain exemptions from those requirements. More specifically, subparagraph (2)(c)4. provides that a modification that occurs for the following reason shall not be subject to the requirements of the rule: 4. Use of an alternative fuel or raw material which the facility was capable of accommodating before January 6, 1975, unless such change would be prohibited under any federally enforceable permit condition which was established after January 6, 1975. The rule essentially tracks verbatim the EPA regulation found at 40 CFR 52.21(b)(2)(iii)(e)1. Therefore, in order to qualify for an exemption from PSD review, FPC must use "an alternative fuel . . . which [Units and 2 were] capable of accommodating before January 6, 1975." In addition, FPC must show that "such change would [not] be prohibited under any federally enforceable permit condition which was established after January 6, 1975." Contrary to assertions by Respondent and Intervenors, in making this showing, there is no implied or explicit requirement in the rule that FPC demonstrate that it had a subjective intent to utilize petroleum coke prior to January 6, 1975. The Application and DEP's Response In its application, FPC proposes to co-fire a five percent (plus or minus two percent) blend of petroleum coke with coal, by weight. It does not propose to make any physical changes to Units 1 and 2 to utilize petroleum coke. Also, it does not request an increase in any permitted air emission rates for the units because it can meet its current limits while burning the proposed blend rate of petroleum coke with coal. The application included extensive fuel analysis and air emissions data obtained from a DEP-authorized petroleum coke trial burn conducted from March 8 until April 4, 1995. Although it is not proposing to make physical changes to the plant, FPC applied for the air construction permit in deference to DEP's interpretation that such a permit is required when a permittee utilizes an alternative fuel. After completing his initial review, the DEP supervisor of the New Source Review program acknowledged in a memorandum to his supervisor that FPC was "entitled to a permit" but suggested that FPC be asked to "change their minds." Before the permit was issued, however, DEP changed its mind and issued an Intent to Deny on the ground that prior to January 6, 1975, Units 1 and 2 were not capable of accommodating coal or a blend of petroleum coke with coal. The Units Unit 1 has a generating capacity of 400 MW and commenced operation as a coal-fired plant in October 1966. It fired coal until March 1970, fuel oil until October 1978, and then again fired coal from June 1979 to the present. Unit 2 has a generating capacity of 500 MW and commenced operations as a coal-fired plant in November 1969. It fired coal until September 1971, fired fuel oil from December 1971 until October 1976, and then again fired coal from December 1976 to the present. Original equipment installed during the initial construction of Units 1 and 2 included the following: the barge unloader, which removes coal from barges that deliver coal from New Orleans; the stacker/reclaimer, which stacks the coal into piles and then reclaims the coal by directing it from the coal piles to conveyors that deliver it to the units; the crusher house, which has two crushers that crush the coal on the way to units down to nuggets no larger than three-quarters of an inch in diameter; the silos, which store the crushed coal; the feeders, located below the silos, which regulate the flow of coal from the silos to the pulverizers; the pulverizers, which grind the coal in preparation for combustion and then direct the pulverized coal to the burners, which are located on the corners of each unit's boiler; and the boilers, where the fuel is combusted, imparting heat to water contained in the waterwalls and thereby producing steam for electrical generation. The foregoing equipment was reflected in the plant's construction specifications and remains in operation, on site, at the plant. Components and parts of this equipment have been maintained, replaced, and repaired periodically. The original operations manual for the barge unloader, stacker/reclaimer, crushers, and conveyor systems are still kept and utilized on site. The primary fuel utilized in Units 1 and 2 is coal, although these units also co-fire from one to five percent number fuel oil and used oil. The combustion of fuel in Units 1 and 2 results in air emissions. As a result of changing regulatory requirements, there have been substantial improvements to the units' air pollution control capabilities since original construction. Existing Air Permits Unit 1 currently operates under Air Operation Permit Number A009-169341. Unit 2 operates under Air Operation Permit Number A-009-191820. Both permits were amended by DEP on October 8, 1996. Although each air operation permit contains an expiration date that has been surpassed, the permits remain in effect under DEP's regulations during the pendency of the agency's review of FPC's applications for air operation permits under the new Title V program found in Chapter 62-213, Florida Administrative Code. The air operation permits governing Units 1 and 2 contain mass emission rate limitations of 0.1 pounds/million (mm) British thermal units (Btu) or particulate matter (PM), and 2.1 pounds/mmBtu for sulfur dioxide. These mass emission rate limitations restrict the amount of each pollutant (measured in pounds) that is to be released into the atmosphere per million Btu of heat energy by burning fuel. The PM limitation is applicable to Units 1 and 2 under state regulations originally promulgated in 1972. The sulfur dioxide limitation was established in 1978 as a result of a PSD air quality analysis performed in conjunction with the permitting of Units 4 and 5. Prior to 1978, sulfur dioxide limits promulgated early in 1975 imposed a limit of 6.17 pounds/mmBtu on coal-fired operations at Units 1 and 2. Because Units 1 and 2 were subjected to a PSD air quality impact analysis along with Units 4 and 5, the units' sulfur dioxide emission limits were reduced from 6.17 to 2.1 pounds/mmBtu. The 2.1 pounds/mmBtu sulfur dioxide emission limitation applicable to Units 1 and 2 was set with the intention of assuring no adverse air quality impacts. The sulfur dioxide impacts associated with Units 1, 2, 4, and 5, after collectively being subjected to PSD air quality review, were much lower than the sulfur dioxide impacts previously associated with only Units 1 and 2. Is Petroleum Coke an Alternative Fuel? Petroleum coke is a by-product of the oil refining process and is produced by many major oil companies. The oil refineries refine the light ends and liquid products of oil to produce gasoline and kerosene, resulting in a solid material that resembles and has the fuel characteristics of coal. Both historically and presently, it has been common- place for electric utilities to rely on petroleum coke as fuel. For example, during the period 1969 through 1974, regular shipments of petroleum coke were sent to various electric utility companies throughout the United States to be co-fired with coal. In addition, DEP has issued permits for Tampa Electric Company to co-fire petroleum coke with coal. In 1987 and again in 1990, the EPA promulgated air- emission regulations which specifically define "coal" as including "petroleum coke." DEP has incorporated these regulations by reference at Rule 62-204.800(7)(b) 3. and 4., Florida Administrative Code. Given these considerations, it is found that petroleum coke constitutes an alternative fuel within the meaning of Rule 62-212.400(4)(c)4., Florida Administrative Code. Were the Units Capable of Accommodating the Fuel? Petroleum coke and coal are operationally equivalent. Petroleum coke can be handled, stored, and burned with the existing coal handling equipment at Units 1 and 2. The barge unloader, stacker/reclaimer, storage areas, conveyors, silos, crusher house, pulverizers, and burners, all installed prior to 1975, can handle petroleum coke. The equipment comprising Units 1 and 2 does not require any modification in order to burn a blend of petroleum coke with coal. Also, there will be no net impact on steam generator design or operation, and there will be no decline in performance or adverse impacts to the boilers. FPC could have co-fired petroleum coke with coal historically without making physical alterations or derating the units. Similarly, petroleum coke can be fired in Units 1 and 2 now without alterations or derating. These findings are further supported by Petitioner's Exhibits 35 and 36, which are reference books published in 1948 and 1967 by the manufacturer of the equipment installed at Units 1 and 2. They confirm that prior to 1975, petroleum coke was suitable for the manufacturer's boilers and pulverizers. Unrebutted testimony demonstrated that Units 1 and 2 could have co-fired petroleum coke with oil during the oil-firing period. Even when Units 1 and 2 fired oil instead of coal for a period of time in the 1970s, the coal-handling equipment remained in existence on-site and available for use, and both units remained readily convertible to their original, coal-firing modes. Because the plant remained capable of accommodating coal, it also remained capable of accommodating petroleum coke. In light of the foregoing, it is found that co-firing petroleum coke with coal at Units 1 and 2 could have been accomplished prior to January 6, 1975. Are there Post-January 6, 1975, Prohibitions? There is no evidence to support a finding that a federally enforceable permit condition was establshed after January 6, 1975, that prohibits co-firing petroleum coke with coal. I. Miscellaneous By letters dated February 14 and June 2, 1997, the EPA Region IV office replied to inquiries from DEP regarding the instant application. The conclusions reached in those letters, however, were based on a misapprehension of the facts in this case. Therefore, the undersigned has not credited these letters. To prove up its standing, LEAF introduced into evidence a copy of its articles of incorporation and a brochure describing the organization. In addition, it asserted that the air quality for its members would be "at risk" if Units 1 and 2 did not meet PSD standards and air emissions were "increased." Intervenor Sierra Club proffered that a substantial number of members "live, work, or recreate in the vicinity of the Crystal River Units 1 and 2, and in the area subject to the air emissions by those units," and that those members "would be substantially affected by the proposed exemption."
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Environmental Protection enter a final order granting the application of Florida Power Corporation and issuing the requested air construction permit. DONE AND ORDERED this 23rd day of September, 1997, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1560 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of September, 1997. COPIES FURNISHED: Kathy Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 James S. Alves, Esquire Post Office Box 6526 Tallahassee, Florida 32314-6526 W. Douglas Beason, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Gail Kamaras, Esquire 1115 North Gadsden Street Tallahassee, Florida 32303-6327 Jaime Austrich, Esquire Post Office Box 1029 Lake City, Florida 32056-1029 F. Perry Odom, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue The issue to be resolved is whether Petitioners were the victims of a discriminatory housing practice, by allegedly being denied the opportunity to renew the lease of an apartment from Respondents, based upon their race.
Findings Of Fact Petitioners Vernon and Glenda Shaw are husband and wife. They and their children are African-Americans. Respondent EPI Townsend, LLC owns an apartment community located in Gainesville, Florida, known as Uptown Village. Respondent Epoch Management, Inc. (Epoch) manages Uptown Village on behalf of EPI Townsend, LLC. On June 25, 2010, Ms. Shaw submitted an application to lease an apartment at Uptown Village. She listed herself, her husband, and her two children as the proposed occupants. Ms. Shaw noted the family had a dog. She provided her email address on the application, as requested. At the time of application, prospective tenants of Uptown Village are given a document entitled ?Epoch Management, Inc. Rental Application Approval Criteria.? It contains an ?Equal Housing Opportunity? statement and displays the ?Equal Housing? logo approved by the U.S. Department of Housing and Urban Development (?HUD?). When she submitted her application, Ms. Shaw acknowledged receipt of the Rental Application Approval Criteria form. The Shaws’ application was approved, and Ms. Shaw subsequently signed a one-year lease (?the Lease?) agreement on June 26, 2010. Soon thereafter Ms. Shaw moved into Apartment 2- 201 of Uptown Village with her children and their dog. Mr. Shaw was living in Alabama at the time and planned on moving to Gainesville at a later date to join his family.1/ At the time the Shaws began their tenancy at Uptown Village, Rhonda Hayden served as the property manager and Stacy Brown as the assistant property manager for Epoch. Both were experienced property managers and both had received Fair Housing training. Ms. Hayden and Ms. Brown testified that Epoch tries to create a sense of community among its tenants. Its efforts include hosting monthly breakfasts and other events for tenants. Information about upcoming community events is sent to all tenants with email addresses on file via Constant Contact, an on-line social and business networking platform. The email address provided on Ms. Shaw's rental application was entered into Epoch’s Constant Contact list. The Uptown Village Lease The Lease contained several provisions intended to ensure a safe and peaceful living environment for tenants. For example, paragraph 4 of the Lease provided that a resident shall ?. . . not permit any disturbance, noises or annoyance whatsoever detrimental to the comfort and peace of any of the inhabitants of the community or its Landlord.? Similarly, paragraph 30(G) provided that the ?Resident shall ensure that the pet(s) does not, at any time, disturb any other Resident of the apartment community.? The Lease reserved to Epoch the right to determine, in its sole discretion, whether a pet was disturbing residents. The Lease also incorporated a code of community rules (?the Rules?) for Uptown Village, which provided in pertinent part, ?all garbage, refuse and other types of waste shall be placed in garbage receptacles? and that ?loud and boisterous noise or any other objectionable behavior by any Resident or guests is not permitted.? The Rules also noted that the "quiet time" hours of the complex were from 10:00 p.m. to 8:00 a.m. Paragraph 12 of the Lease provided that a tenant must give 60 days’ advance notice of his or her intent not to renew the Lease. If notice was not given, then the Lease would renew on a month-to-month basis at the then current market rate, plus $50.00. The Shaws' Neighbors The Alcubilla family, who are Hispanic, lived across from Petitioners’ apartment, in Apartment 2-202. The Alcubilla family included a husband and wife, as well as the wife’s mother (Mrs. Alcubilla), who spoke little English. A Caucasian graduate student, Amanda Watson, lived on the third floor of the building directly above the Shaws in Apartment 3-201. A Hispanic tenant, Angelo Caruso, lived with his girlfriend on the same floor as Ms. Watson. In October 2010, four months after the Shaws became residents, the Kohl family moved into Apartment 2-101, the first floor apartment directly beneath the Shaws’ apartment. Trouble in Paradise The Shaws' first rent check, dated July 9, 2010, was returned for insufficient funds. This was a Lease violation. On July 14, 2010, Epoch issued a reminder to Ms. Shaw advising her that a neighbor had complained about her dog barking all hours of the day. This was a violation of the Lease and the Community Rules. Mr. Shaw joined his family at Uptown Village on or about August 8, 2010. On the day he moved in, Epoch leasing agent Breanne Parks was conducting a survey of the community grounds and noticed empty boxes outside the Shaws’ apartment on the walkway, as well as trash outside another tenant’s apartment. She issued a warning notice to the Shaws and the other tenant in the building. Leaving trash outside of an apartment is a violation of the Lease and Community Rules. On August 20, 2010, the Shaws’ rent check was returned for insufficient funds. This was a Lease Violation. On October 8, 2010, the Shaws were notified by Epoch that they were being assessed a late fee for failure to pay their rent on time. One week later, on October 15, 2010, Epoch sent the Shaws notification about an outstanding balance on their account. The notices concerned Lease violations. On October 21, 2010, Ms. Watson complained to the office about loud arguments and sounds emanating from the Shaws’ apartment the night before. One of the noises sounded like someone or something had been thrown against a wall. Though she feared that someone was being physically abused due to the intensity of the impact, she decided not call the police. In response to Ms. Watson's complaint, Epoch posted a notice on the Shaws’ door for a second time warning them about noise and asking them to be considerate of their neighbors. The noise violation was considered a violation of the Lease and Community Rules. The same day Epoch posted the noise violation notice on the Shaws' door, Ms. Shaw called the management office and lodged a retaliatory noise complaint against Ms. Watson. As a consequence of this complaint, a warning notice was sent by Epoch to Ms. Watson. The noise violation was considered a violation of the Lease and Community Rules. On November 4, 2010, the Shaws’ rent check was returned for insufficient funds. This was a Lease violation. Epoch allows sworn officers from the Gainesville Police Department to reside on the premises in exchange for services to the community as a Courtesy Officer. At some point during the Shaws' tenancy, Courtesy Officer Farah Lormil, an African-American female police detective, noticed a car belonging to the Shaws parked in an area that was not a designated parking space. This was a violation of Community Rules. Detective Lormil testified that she left a note on the car asking the owner to move the vehicle because "your car doesn't belong here." Detective Lormil also included her name and badge number on the note. At hearing, Ms. Shaw testified that the note read "you don't belong here." Inasmuch as Petitioners did not offer the note in evidence, and given the context in which the note was written (a parking violation), the testimony of Detective Lormil as to the actual wording of the note is the more credible. On December 27, 2010, leasing agent Erin Napolitano wrote a memo to Ms. Parks reporting that Mrs. Alcubilla’s daughter, Mater Alcubilla, had come to the management office the prior weekend to complain about an incident involving Ms. Shaw. Consistent with her memo, Ms. Napolitano testified that Mater Alcubilla had told her that Ms. Shaw had screamed at her family, followed them up and down the stairs to their apartment, and loudly knocked on their door. Mater Alcubilla also accused Ms. Shaw of stating that she knew what type of vehicles the Alcubillas drove and dared them to call the police. The memo recorded Ms. Alcubilla’s daughter as stating the police were called but when they arrived at Building 2, Ms. Shaw already was gone and therefore, no enforcement action was taken. Ms. Napolitano ended her memo to Ms. Parks with a personal observation: ?I just don’t know what to do about all of this but it certainly seems to be escalating.? Whatever the source of the friction between the two families, Ms. Napolitano testified that she had no reason to believe there was any racial animus on the part of the Alcubillas. On December 30, 2010, Ms. Hayden invited Mater Alcubilla to the office to discuss the incident with Ms. Shaw. Following their meeting, Ms. Hayden notated the date of the meeting and substance of their discussion in the Alcubilla’s resident conversation log. Ms. Hayden recorded in her own handwriting: ?Resident very frightened, Resident plans on moving at the end of her lease-Resident claimed Ms. Shaw yelled at her and threatened her and told her she needed to return to her country.? Ms. Hayden considered this to be an interpersonal dispute between the Alcubillas and Ms. Shaw. Also on December 30, 2010, Ms. Hayden and Ms. Parks invited Ms. Shaw to the management office to discuss the Alcubillas’ complaints. Ms. Hayden recorded in the Alcubilla’s resident log that Ms. Shaw denied the Alcubillas’ accusations, became upset and told Ms. Hayden and Ms. Parks that her neighbors needed to mind their own business. Ms. Hayden also noted that the meeting ended when Ms. Shaw got up, stated, ?you wait? and left the office. Based on what she perceived as a threat by Ms. Shaw of continuing trouble with the Alcubillas, Ms. Hayden recorded her intent to notify a Courtesy Officer of the situation. On February 15, 2011, the Shaws received a three-day notice from Epoch for failure to pay rent, and a notice of an outstanding balance due. This was a Lease violation. Three weeks later, on March 4, 2011, the Shaws were issued another three-day notice for failure to pay rent. This concerned a Lease violation. Ms. Watson continued to hear the Shaws' dog barking and loud voices and other noises, included stomping and footsteps, emanating from the Shaws' apartment. On one occasion, the Shaws left Gainesville for the weekend and placed their dog out on the balcony because it barked continuously. The noise and barking interfered with Ms. Watson’s ability to study and to enjoy her residence. On March 5, 2011, Epoch posted a letter on the Shaws' door regarding complaints received from the Shaws' neighbors about the dog barking for hours at a time, often late at night and in particular on March 3, 2011. This concerned a Lease violation. The loud barking, stomping, and talking within the Shaws' apartment did not abate, and on March 9, 2011, Epoch sent the Shaws a "Seven Day Notice to Cure Lease Violation" which cited their violation of Lease Provision 30 and Community Rule Y. On March 17, 2011, Epoch send the Shaws an ?Urgent Outstanding Balance Due? notice regarding their outstanding unpaid utility bill. This concerned a Lease violation. Also on March 17, 2011, an email was generated by Epoch’s answering service which reported that Tara Kohl of Apt. 2-101 had called. The generated message stated Ms. Kohl’s complaint as, ?Apt. Above Very Noisy/Heavy Walking Again.? On March 19, 2011, Ms. Napolitano printed off the email note and called Ms. Kohl to get more information about the complaint. Ms. Napolitano recorded hand-written notes about the conversation on a printed copy of the email which read: ?Last couple nights—beating down on floor–jumping/walking. 3-4 am can hear them all the time.? The email with Ms. Napitano’s hand- written notes was placed in the Kohl’s tenant file. Immediately following Ms. Kohl’s complaint, Ms. Shaw wrote the following note and faxed it to the management office: To Uptown Village On Saturday night, March 19, 2011, I noted a very loud bumping noise coming from my floor. I was home alone and very afraid. I even feared calling the office or security in fear of retaliation. From past experiences when I have voiced a complaint, I receive notes on my door alleging that my dog was barking, that I had trash beside my door, we were stomping, we were too loud and have even found handwritten notes on my car. My family and I can no longer live in such turmoil. Please accept this letter as a formal complaint regarding harassment. If these occurrences continue, I will have no other choice than to contact HUD. Thank you in advance for your help. Glenda Shaw Prior to the date of the faxed letter neither Petitioner had ever complained about discrimination of any kind to anyone at Epoch. Ms. Hayden and Ms. Brown discussed the content of Ms. Shaw's fax and how to handle its allegations. They viewed Ms. Shaw’s complaint against the Kohls as retaliation against the Kohls for making a complaint about noise from the Shaws’ apartment the day before, and therefore a personal dispute. They also considered whether to respond to Ms. Shaw’s allegation of harassment by Epoch, and decided that any response would just be viewed by Ms. Shaw as evidence of further harassment. They decided to place the faxed letter in the Shaw’s tenant file and take no other action. It was a normal business practice of Epoch to generate a list of tenants whose leases were due to expire within the following 90 days. The list was used to create flyers reminding those tenants to contact the management office regarding renewal. Flyers were sent to each tenant on the list regardless of whether the tenant was in default of the lease or potentially a candidate for non-renewal. A renewal flyer was placed on the Shaws’ door in late March and a second renewal flyer was posted on the Shaws' door the following month. Neither renewal notice elicited a response from the Shaws. On March 25, 2011, Epoch sent the Shaws an ?Urgent Outstanding Balance Due Notice? regarding their overdue utility bill. This concerned a Lease violation. Just prior to Easter, 2011, an Uptown Village tenant asked the management office for permission to hold a private Easter egg hunt for their friends on the community’s volleyball court. Epoch approved the request. Uptown Village residents were not notified of the event through Constant Contact because the Easter egg hunt was not an Epoch-sponsored event. The individual who organized the event made the decision whom to invite. On May 10, 2011, Ms. Shaw came to the management office and was assisted by Ms. Brown. Ms. Shaw accused Brian Kohl of confronting her daughter and calling her ?two-faced.? Ms. Shaw demanded that Epoch take action against Mr. Kohl and stated that if Epoch would not do anything about the situation, she was going to call the police or the Florida Department of Children and Families. Before Ms. Shaw left, Ms. Brown asked about the Shaws' intentions to remain residents upon the expiration of their Lease. Ms. Shaw did not give a definitive answer. Ms. Brown then told Ms. Shaw that if the Shaws decided not to renew, Epoch would not hold them to the 60-day advance notice required by the Lease. Three days after this meeting, Ms. Brown notified Ms. Shaw that Epoch could not send a notice of violation to Mr. Kohl because the accusations against him were not Lease violations. However, Ms. Brown offered to discuss the allegations with Mr. Kohl, a truck-driver who was often on the road. On May 18, 2011, Ms. Brown met with Brian Kohl to discuss Ms. Shaw’s complaint. Mr. Kohl gave his side of the story. After he left, Ms. Brown entered the following note in the Kohl’s resident conversation log: Brian came in wanting to break lease b/c [because] daughter is being harassed by girls in 2-111 and 2-1012/ so badly that she won’t go outside. Told him that one 2-111 should be finish soon (they are on NTV [Notice to Vacate] and the other may too, (2-101) lease expires 6/25. Otherwise would do what I can and to give us the opportunity to help before he moves. Ms. Brown also made an entry in the Shaws' resident conversation log regarding Mr. Kohl’s allegation that the Shaws' daughter was bullying the Kohl’s daughter. The following day, May 19, 2011, Ms. Watson came to the management office and gave notice that she was moving out of Uptown Village when her lease expired in August 2011. She was asked to complete a form entitled ?Notice to Vacate from Resident.? In her own handwriting, she wrote the reason for vacating as ?loud tenants.? The Notice to Vacate from Resident was placed in Ms. Watson’s tenant file as part of Epoch’s regular business practices. At hearing, Ms. Watson testified that she and her fiancé had considered living in her apartment after they married and decided they could not live there due to the continued noise and disturbances emanating from the apartment below. With Ms. Watson’s notice to vacate, Ms. Hayden and Ms. Brown came to the realization that three tenants in Building 2 had levied complaints against the Shaws and two had made decisions to move out in whole or in part due to the Shaws’ conduct. Ms. Hayden and Ms. Brown then conducted a more thorough review of the Shaws’ tenant history, and discussed whether the Shaws should continue to reside at Uptown Village. They called Epoch’s attorneys to get legal advice and left a message. On May 29, 2011, Epoch received a handwritten letter from Tara Kohl making numerous complaints against the Shaws, including loud noises late at night, and the Shaws parking one of their cars in a handicapped parking space. On June 8, 2011, the management office received a hand-written letter from Brian Kohl giving notice of his family’s intent to break their lease and move out. The reasons given all centered on the noise being generated in the Shaws' apartment, and alleged threats that had been made by Ms. Shaw against Ms. Kohl. On June 17, 2011, Ms. Shaw called the management office and spoke with Ms. Brown. Ms. Shaw asked for a copy of her lease, inquired about the shortest lease term possible, and the amount of any rent increase. Ms. Brown did not commit that the Shaws' lease would be renewed nor did she quote a renewal rate. Ms. Shaw continued to press the issue and Ms. Brown finally stated that a normal rent increase on renewal was $100 a month. On June 20, 2011, Ms. Hayden and Ms. Brown spoke to Epoch’s attorneys regarding options for ending the Shaws' tenancy. A decision was made to non-renew their lease as that would cause the least disruption to the Shaws. Ms. Hayden prepared a non-renewal letter, and it was posted on the Shaws' door the same day. Later that afternoon, Mr. and Ms. Shaw came to the management office, met with Ms. Brown, and demanded to know the reason why their Lease would not be renewed. Ms. Shaw insisted that Ms. Brown had told her their Lease would be renewed at a rate of $937.00. Ms. Brown denied she made this statement. Ms. Brown asked Ms. Hayden to intervene in the dispute. Ms. Hayden explained that Epoch had a right to issue a non-renewal notice and that the decision was based on the numerous complaints received about the Shaws. Ms. Shaw insisted that if there were grounds to terminate the Lease for cause, Epoch should issue them a seven-day notice to vacate. Ms. Hayden explained that they had decided to issue a non- renewal notice rather than a notice to vacate to allow the Shaws more time to make arrangements and to foster an amicable parting. Epoch has sent non-African-American, White and Hispanic tenants notices of violation regarding excessive noise and non-payment of rent and fees, and also has terminated leases (through eviction) on these bases. There is no competent substantial evidence in this record to even suggest that the decision to non-renew the Shaws' lease was in any way related to their status as African-Americans. On June 23, 2011, Mr. Caruso’s girlfriend was walking their dog outside Building 2 off leash (in violation of the Rules) when it began to chase the Shaws' son. The dog nipped at their son’s leg but did not draw blood or break his skin. When Mr. Caruso learned of the incident, he came to the Shaws' apartment to apologize. He later returned and asked to take a photo of their son’s leg because he feared Ms. Shaw might bring legal action against him, given her hostility after he had offered her a bag to clean up her dog’s waste on a previous occasion. Ms. Shaw refused to allow Mr. Caruso to photograph her son’s leg. Instead, she told him if he did not leave she would call the police, and if his dog ever attacked again she would report him and have the dog put to sleep. On June 27, 2011, a second non-renewal letter was posted on the Shaws' door to ensure that Petitioner’s understood their lease would not be renewed. The following day the Shaws returned to the management office and insisted that at the end of the June 20th meeting, they had been told their lease would be renewed. Ms. Hayden denied this and reiterated that their lease was being non-renewed based on complaints from neighbors. As the meeting continued, Ms. Shaw became increasingly agitated; she turned to Ms. Brown and asked if Ms. Brown found her to be confrontational. Ms. Brown responded that she thought Ms. Shaw had a ?strong personality.? To that, Ms. Shaw replied, ?It’s my culture.? As the meeting continued, Ms. Shaw began to inject the issue of race into the conversation. For example, in response to Ms. Hayden’s remark that the decision to non-renew was not personal, since she would not even recognize Ms. Shaw if she saw her at a mall, Ms. Shaw stated that ?white people think we all look alike.? As the conversation was taking an uncomfortable turn, Ms. Hayden ended the meeting and referred the Shaws to Epoch’s attorneys if they had any further questions or concerns. In early July 2011, Mr. Caruso was returning to Building 2 after walking his dog on leash and encountered Mr. Shaw. Mr. Shaw told Mr. Caruso to keep his dog away or he would kick it. On July 11, 2011, Ms. Shaw complained to the management office about Mr. Caruso’s dog charging at her while it was on a leash. She noted this was the second incident involving the dog. Ms. Brown told Ms. Shaw she would look into the matter, since this would be considered a violation of the Lease and Community Rules. On July 12, 2011, Ms. Brown spoke with Mr. Caruso’s girlfriend and cautioned her to keep the dog under control. Ms. Brown noted their conversation in both the Shaws’ and Mr. Caruso's resident conversation log. On August 4, 2011, Ms. Watson completed a "Move Out Survey" and in response to a question about what could have been done by management to encourage her to stay, wrote in her own hand-writing: ?Dealt with loud neighbors more consistently and effectively . . .? She added that her reason for leaving was ?loud, inconsiderate tenants.? The Shaws refused to move out by the date given in their non-renewal notice and stopped paying rent. On August 3, 2011, the Shaws dual-filed a charge of housing discrimination (race and color) with the Commission and the Federal Department of Housing and Urban Development. The charge alleged that Epoch had refused to rent to them, made discriminatory statements, and had offered them less favorable terms, conditions, privileges, services or facilities than other non-African-American tenants. The facts supporting their charge were that they were not invited to the Easter egg hunt; that they had been told their lease would be renewed yet it was not; and that Ms. Hayden had made racist statements. The Shaws did not pay rent for July 2011,3/ and on August 4, 2011, were sent a "Notice to Pay Rent" by Epoch. The Commission investigated the Shaws' charge of housing discrimination and issued a determination on August 31, 2011, finding there was no probable cause to support the claims. On September 29, 2011, the Shaws filed a Petition for Relief from an alleged discriminatory housing practice, giving rise to the instant proceeding. During the pendency of this matter, the Shaws were evicted from Uptown Village for non- payment of rent.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Florida Commission on Human Relations, determining that Respondents did not commit a discriminatory housing practice based upon Petitioners’ race and that the Petition be dismissed in its entirety. DONE AND ENTERED this 3rd day of October, 2012, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of October, 2012.
The Issue The issue in this case is whether the State of Florida Department of Environmental Regulation (DER, or the Department) should grant the request of Medico Environmental Services, Inc. (Medico) for a one-year extension of the expiration date for air construction permit AC52-184546 for a biological waste incinerator located at 13200-58th Street North, Clearwater, Florida.
Findings Of Fact The Prior and Related Proceedings.-- Medico holds an air construction permit issued by the DER on March 8, 1991, for the construction of a biological waste incinerator in Pinellas County, Florida. The permit contains general and special conditions, including prohibitions against the incineration of non-exempt amounts of radioactive and hazardous wastes, a requirement that all operators be trained in a DER-approved training program, and a requirement that the facility undergo compliance testing after it is constructed to assure that its operation complies with emission standards established by DER rule. Several weeks after the grant of the air construction permit, on March 29, 1991, the DER changed the equipment model number on the permit, but the change in model number represented no change in the actual equipment described in the application. Local government building and construction permit procedures, and negotiations with potential investors, delayed construction of the facility. By letter dated November 14, 1991, Medico requested an extension of the expiration date of the permit from January 7, 1992, to January 7, 1993. No other change in the permit was sought. On or about December 6, 1991, the Department issued a second air construction permit for a biological waste incinerator in Pinellas County to Bayfront Medical Center (Bayfront). Bayfront has since requested two extensionns on the expiration date of its permit. The second request is currently pending challenge in Division of Administrative Hearings Case Nos. 92- 6879 and 92-6880. The Applicant and Principals.-- Medico is a corporation consisting of two fifty percent shareholders: Gerald Hubbell; and Robert Sheehan. Hubbel operates a funeral home and Bay Area Crematory, Inc., in Pinellas County; he has less than 50 percent ownership of those businesses. Previously, Sheehan co-founded a medical waste incineration facility in New York known as Medi-Waste, Limited, of which he was one-third owner. In 1986, he sold the company, and it merged with Medi-Gen, Medical Generation Associates, a wholly owned subsidiary of a company known as Legeis Resources (Legeis). Sheehan held two percent of the shares of Legeis and served as an officer of Medi-Gen until he resigned in 1989. Sheehan does not own more than 50 percent of Medico, and he has not had any interest in any other air construction or air operation permit in the State of Florida. Since March, 1991, he has not held an interest in any other entity involved in medical waste incineration. Air Quality. Medico will be capable of incinerating 2,350 pounds of medical waste per hour, which is about ten percent of Flrodia's medical waste. Pinellas County generates about 75,000 pounds of such waste per day but currently has the capacity to burn only 480 pounds per hour. A computer-generated air dispersion model was run on the theoretical maximum impact of Medico, of Bayfront, and of both facilities, on the ambient air in the affected parts of Pinellas County. The model used was the EPA's Industrial Source Complex, Short Term, Version 2, March, 1992. This model is recommended by the DER and preferred by the EPA. It follows the DER's Guideline on Air Quality Models. Average background ambient air was calculated using monitoring data collected by Pinellas County for the EPA criteria pollutants (sulfur dioxide, nitrogen dioxide, carbon monoxide, ozone, lead, and particulate matter) and for hydrochloric acid in accordance with the requirements of title 40, part 58, of the Code of Federal Regulations, as reported in the DER's 1991 ALLSUM. (According to EPA publications, hydrochloric acid is the only toxic pollutant on the DER's air toxics list for which medical waste incinerators like Medico's are considered to be a source.) The theoretical maximum impacts of Medico and Bayfront were based on the AP42 emission standards for those kinds of facilities. Meteorological data was taken from the nearest national weather service station (at the Tampa International Airport). The air model shows that none of the National Ambient Air Quality Standards for any of the criteria pollutants would be exceeded by adding either the impact of the Medico facility, or the impact of the Bayfront facility, or both combined, to the average ambient air in the affected parts of Pinellas County. (Both Total Suspended Particulate (TSP) and the newer PM10 category of particulates less than ten microns in size cases, which is more relevant to public health concerns, were considered for particulate matter levels.) Testimony indicates that the National Ambient Air Quality Standards would not be exceeded for any of the criteria pollutants by adding either the impact of the Medico facility, or the impact of the Bayfront facility, or both combined, to the maximum ambient air in the affected parts of Pinellas County. Also, even assuming a "worst case" weather scenario, no problematic toxic pollutants are expected, based on a Pinellas County Department of Environmental Management, Air Quality Division, screening computer model. Lead and hydrochloric acid would be under the EPA's "no threat level" (NTL). (As for the original application, these determinations are based on the scrubber manufacturer's hydrochloric acid efficiency claim of 99.9% and, in the case of lead, on its particulate efficiency claim.) As previously stated, according to EPA publications, there are no other toxic pollutants on the DER's air toxics list for which medical waste incinerators like Medico's are considered to be a source. The theoretical emissions for the Medico facility are below 100 tons per year, and the facility does not have the potential to emit more than ten tons per year of any hazardous air pollutant, as defined by the EPA. Past Conduct and Reliablily of the Principals.-- On or about March 5, 1991, the temperature in the secondary chamber of the biohazardous waste incinerator then operated by Hubbell dropped below 1800o at the end of a burn, and there was still a small amount of waste in the primary chamber and some small amount of flame still visible in the primary chamber. This violation, however, did not result in visible emissions, which would be an indication that there was a combustion or related problem in the incinerator. On or about March 4, 1991, one of the crematory units operated by Hubbell had visible emissions of 44% opacity. Identical warning letters regarding the March 4 and March 5 violations were sent on March 20 and March 27, 1991. Hubbell respondent by telephone on April 1, and in writing on April 5, 1991. There have been no other violation of Florida Statutes or DER rules since the original construction permit issued. Taking these violations into consideration, the compliance history of Hubbell's facilities does not undermine Medico's ability to give the necessary reasonable assurances. Between October, 1981, and October, 1991, Hubbell's facilities have been guilty of only the following violations: On or about March 25, 1987, Hubbell began to incinerate biohazardous medical waste before he was aware that a special permit for incinerating medical waste, in addition to his permit to operate the crematory, was required by law. On or about August 19, 1988, Hubbell's facility was notified that the Pinellas County Division of Air Quality had received a written complaint about smoke, and that a county permit would be required for the infectious waste incinerator along with retrofitting some controls. On or about October 4, 1989, Hubbell's facility apparently had a visible emissions violation. Three annual operating reports for Hubbell's facilities--for 1981, 1985, and 1989--would be considered late under current policy. There was no evidence whether they were late under the policy in effect at the time the reports were filed. Over the course of those ten years, there is no suggestion in the evidence that any of the other annual operating reports may have been late, and there are no other violations recorded in the Pinellas County compliance contact logs. To the contrary, the records indicate that no violations were found on 15 inspections. Hubbell voluntarily has shut down the old, smaller and less sophisticated medical waste incinerator where some of the recorded violations occurred, pending the construction of the Medico facility. Sheehan has not had an interest in any biohazardous waste incinerators in the State of Florida, other than the Medico application, and has not had a controlling interest in, or operational role in, any entity operating a medical or biohazardous waste facility in any state since June, 1989. Although, under the prehearing rulings, it would not even be relevant to this proceeding, the only evidence of any violations by any entity in which Sheehan had a controlling interest in, or operational role in, that operated a medical or biohazardous waste facility in any state, at any time, was evidence of two New York State Department of Environmental Conservation ash container violations and one failure to close up the back of the building housing an incinerator in October, 1988.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Regulation enter a final order extending the expiration date for air construction permit AC52-184546 for one year from the entry of the final order, subject to a DER determination that construction did not begin by March 20, 1992, and that the Chapter 92-31 moratorium applies. RECOMMENDED this 6th day of January, 1993, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 6th day of January, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-0851 To comply with the requirements of Section 120.59(2), Fla. Stat. (1991), the following rulings are made on the parties' proposed findings of fact: Petitioners' Proposed Findings of Fact. I.1.-3. Accepted and incorporated to the extent not subordinate or unnecessary. First sentence, accepted and incorporated. Second sentence, argument and subordinate. Accepted and incorporated. First four sentences, accepted and incorporated to the extent not subordinate or unnecessary. Fifth sentence, rejected as not supported by the evidence and as contrary to facts found. Fifth sentence, accepted but subordinate to facts contrary to those found. First four sentences, accepted and incorporated to the extent not subordinate or unnecessary. Fifth sentence, accepted but subordinate to facts contrary to those found. (He raised questions but had no answers; other witnesses satisfactorily answered the question.) Last sentence, rejected as contrary to the greater weight of the evidence and to the facts found. First sentence, accepted and incorporated to the extent not subordinate or unnecessary. Second sentence, irrelevant to the extension the expiration date of an air construction permit, and unnecessary. Also, state law and regulations govern some aspects of the handling of these wastes. First two sentences, accepted but subordinate and unnecessary. Third and fourth sentences, rejected as contrary to the greater weight of the evidence and to facts found. (Reasonable assumptions can be made, in accordance with EPA publications, based on the nature of the facility.) Also, irrelevant to the extension the expiration date of an air construction permit, and unnecessary. Finally, res judicata. Rejected as contrary to the greater weight of the evidence and to facts found. Also, irrelevant to the extension the expiration date of an air construction permit, and unnecessary. Finally, res judicata. First sentence, accepted but accepted but subordinate to facts contrary to those found, and unnecessary. Second sentence, rejected as contrary to the greater weight of the evidence and to facts found. Also, irrelevant to the extension the expiration date of an air construction permit, and unnecessary. Finally, res judicata. First two sentences, accepted and incorporated in part (another reason was that the application passed a screening model both initially and on the extension request and that most of the toxics would not be expected to be generated from this source), but res judicata, and unnecessary. Third sentence, accepted and incorporated. Fourth and fifth sentences, accepted but res judicata, subordinate to facts contrary to those found, and unnecessary. II.9.-10. Rejected as contrary to facts found and to the greater weight of the evidence. III.1.-2. Rejected as being conclusions of law. Medico's Proposed Findings of Fact. 1.-3. Accepted and incorporated. 4. Accepted but subordinate and unnecessary. 5.-7. Accepted and incorporated. Accepted but subordinate and unnecessary. Accepted and incorporated. Irrelevant and unnecessary. 11.-23. Generally accepted but largely subordinate. Incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary. Accepted but subordinate and unnecessary. Generally accepted, but largely res judicata, irrelevant, subordinate and unnecessary. Accepted and incorporated. 30.-31 Accepted but subordinate and unnecessary. Generally, accepted but subordinate and unnecessary. Last sentence, rejected as contrary to the greater weight of the evidence. Rest, accepted but subodinate and unnecessary. 34.-35. Generally, accepted but subordinate and unnecessary. Accepted and incorporated. Accepted but subordinate and unnecessary. 38.-43. Accepted and incorporated. 44.-45. Accepted but subordinate and unnecessary. Accepted and incorporated. Accepted but largely subordinate and unnecessary. Some, irrelevant. 48.-49. Accepted but subordinate and unnecessary. 50. Accepted but irrelevant, subordinate and unnecessary. DER's Proposed Findings of Fact. 1.-9. Accepted and incorporated to the extent not subordinate or unnecessary. 10. The law was signed on March 20, 1992. Otherwise, accepted and incorporated. 11.-15. Accepted but subordinate and unnecessary. COPIES FURNISHED: Adrien W. Helm, Esquire 925 Fourteenth Avenue North St. Petersburg, Florida 33705 Sandra P. Stockwell, Esquire Douglas L. Stowell, Esquire Post Office Box 11059 Tallahassee, Florida 32302 W. Douglas Beason, Esquire Assistant General Counsel Dept. of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32399-2400 Carol Browner, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, Esquire General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue The issue for determination is whether Arthur Signore committed the offenses set forth in the administrative complaints and, if so, what action should be taken.
Findings Of Fact At all times material hereto, Arthur Signore (Respondent) was licensed by the Department of Business and Professional Regulation, Construction Industry Licensing Board (Petitioner) as a certified general contractor. He received his license in 1969, qualifying Deluccia Construction. Respondent was issued license number CG CA01004. Subsequently, in 1976, Respondent qualified Construction By Scott (CBS). He was issued license number CG CB01004. At all times material hereto, Respondent has been the qualifier of CBS, and the sole owner and president of CBS. At all times material hereto, Respondent's belief was that Petitioner permitted a general contractor to use his/her license to obtain building permits for construction projects for which the general contractor had no contracts through the business that he/she qualified. Respondent practiced his belief frequently by applying for and obtaining building permits for construction projects for which companies or individuals other than CBS had contracts. Collins Job (Case No. 97-1436) Sometime after Hurricane Andrew in 1992, Respondent made an oral agreement with Harold Bader to go into partnership with Bader and form a construction company, with Respondent qualifying the company. Respondent provided his name, his company's name (CBS), and his license number to Bader in order for the qualifying documents to be completed and submitted to the Petitioner. However, the company was not formed and the qualifying documents were never submitted. At no time material hereto was Bader licensed by the Petitioner to engage in the practice of contracting. Respondent knew or should have known that Bader was not licensed by the Petitioner. In March 1994, Thomas Sherry of American Building Industries, Inc. (ABI), began negotiating with Maria and Wayne Collins, husband and wife, for the remodeling of their home, located at 7417 SW 140th Court, Miami, Florida. On March 24, 1994, the Collins entered into a contract with ABI for the remodeling of their home at a cost of $12,500. Bader was the owner of ABI. Sherry was a salesperson for Bader. Sherry provided the Collins with a business card which showed, among other things, ABI's name, address and telephone number, and license number. The license number on the business card was Respondent's license number. All business cards were provided to Sherry by Bader. At no time material hereto, did Sherry talk with or meet Respondent. The records of the Metropolitan Dade County, Building and Zoning Department reflect, among other things, Respondent's name, his company's name (CBS) and license number on the building permit application for the construction to the Collins' home. However, the address listed for Respondent and his company was the address for ABI. Further, the said records reflect, among other things, that aforementioned information provided, as to Respondent, was used to obtain the building permit. Respondent did not complete the permit application for the building permit to remodel the Collins' home. The Collins paid $6,875 to ABI. Any and all checks were made payable to ABI. No money for the construction on the Collins' home was paid to or received by Respondent. In May 1994, problems developed on the job site between the Collins and ABI. The work performed by ABI failed numerous inspections. Mr. Collins wanted to talk with Respondent who was listed as the contractor on the permit and requested Bader to contact Respondent. Bader refused, indicating to Mr. Collins that all communication should be with him (Bader). Finally, in August 1994 the Collins fired ABI after more problems had developed. At that time ABI had completed some of the work. On August 29, 1994, Mr. Collins met with Respondent at Respondent's place of business. Prior to the meeting, Mr. Collins had called Respondent numerous times regarding his problems with ABI and Bader and requesting assistance from Respondent. Each time Respondent denied having any knowledge of the work being performed. When Mr. Collins met with Respondent, Mr. Collins discussed the problems that he had experienced with ABI and Bader. Respondent continued to deny knowing anything about the construction project but agreed to send his employees to examine the job and determine what could be done, if anything. The following day two of Respondent's workers came to the Collins' home and examined the work completed and the work remaining. Subsequently, Respondent contacted Mr. Collins. Respondent indicated to Mr. Collins that he could complete the job for $5,000. Mr. Collins refused to pay the additional monies since it would extend the remodeling cost beyond the contracted cost and since he was now directly paying the subcontractors. At no time did Respondent or his business (CBS) have a contract with the Collins. Until being contacted by the Collins, Respondent had no knowledge that Bader used his name, business name and license number to contract with the Collins and to obtain the building permit for the remodeling of their home. However, prior to being contacted by the Collins, Respondent had been contacted by other persons who had contracts with ABI, who had been informed by Bader that Respondent was the contractor for their jobs, who had problems with ABI, and who wanted assistance from Respondent. Furthermore, the building permits for the construction jobs of those persons reflected Respondent and Respondent's company as the contractor. At no time material hereto was Bader or ABI licensed by the Petitioner to engage in the practice of contracting. Respondent knew or should have known that neither Bader nor ABI was licensed by the Petitioner to engage in the practice of contracting. Respondent was placed on notice of their unlicensed activity after the contacts by the homeowners prior to the contact by the Collins. Even with the knowledge of the homeowners' complaints prior to the Collins' complaints, at no time did Respondent notify Bader to stop using his (Respondent's) name, company's name and license number. Further, at no time did Respondent notify the Metropolitan Dade County, Building and Zoning Department of Bader's misuse of his (Respondent's) name, company's name, and license number or to no longer issue permits to ABI under his (Respondent's) name, company and license. Walsh Job (Case No. 97-1435) In the Fall of 1995, Patrick and Susan Walsh entered into an oral agreement with John Petracelli for an addition to and the remodeling of their home, located at 761 Glen Ridge Road, Key Biscayne, Florida. On October 16, 1995, the Walshes entered into a verbal agreement with Petracelli for an engineer to produce a set of plans at a cost of $2,250 for the construction to their home. The Walshes paid Petracelli the $2,250 on October 16, 1995. On December 7, 1995, the Walshes entered into a written agreement with Petracelli for the construction work on their home at a cost of $84,000. Pursuant to this written agreement, the Walshes paid Petracelli $16,800 on December 7, 1995. Petracelli contacted Respondent and requested Respondent to be the contractor for the construction work on the Walshes' home. Respondent and Petracelli had met one another previously when Petracelli was a salesperson for Bader. Petracelli informed Respondent that he (Petracelli) had already told the Walshes that Respondent was the contractor. To the contrary, Petracelli had not informed the Walshes that Respondent was involved in the construction to their home. Respondent agreed to be the contractor but informed Petracelli that, until a set of plans was approved by the Village of Key Biscayne Building Division (Building Division), he could not provide Petracelli with a cost figure for the construction work. Petracelli informed Respondent that the plans were being prepared, but did not inform Respondent that the Walshes had paid for the preparation of the plans. Respondent agreed further to submit the completed plans to the Building Division for a "dry run" only. After the dry run, Respondent would provide a cost figure for the construction work. A dry run is a process in which a contractor, who has a complicated job which requires an engineer, submits a set of plans, together with an application for a building permit, to the Building Division for approval. The plans may be subject to several modifications requested by the Building Division before they are approved. As a result, the contractor does not know the estimated cost of a job until the plans have gone through the requested modifications, if any, and approved by the Building Division. After the plans are approved by the Building Division, the contractor is notified to come to the Building Division and sign for and obtain the building permit. Pursuant to the agreement between Respondent and Petracelli, on or about December 11, 1995, Respondent completed an application for a building permit for the addition to and the remodeling of the Walshes' home and gave it to Petracelli. The application reflected, among other things, CBS (Respondent's company) as the contractor, and Respondent as the qualifier. Respondent provided the application to Petracelli for the dry run process only. Further, Respondent reiterated to Petracelli that, once the plans were approved by the Building Division, he (Respondent) would meet with the Walshes and agree on a cost for the construction work on their home and that, after agreeing on the cost he (Respondent) would sign for and obtain the building permit for the construction to begin. Respondent was not aware that Petracelli and the Walshes had a signed agreement for the construction work. Petracelli submitted the plans, along with the permit application, to the Building Division for approval. The plans were modified several times to meet the approval of the Building Division, but were never approved. The Building Division considered the plans submitted to be substandard. Since no plans were approved, no building permit was issued. On or about January 3, 1996, the Walshes met at the Building Division with some of the Building Division's officials, Petracelli, and the engineer who prepared the plans. As a result of the meeting, among other things, the Walshes were able to review the permit application and discovered that Respondent, not Petracelli, was licensed and the contractor for the construction work; concluded that the engineer's work was considered so substandard by the Building Division that any modification produced by the engineer would not be approved by the Building Division; and determined that they no longer wanted Petracelli to perform the construction work on their home. Within 24 hours of the meeting, the Walshes telephoned Petracelli and terminated his services. Also, the Walshes requested the return of all of the monies paid to Petracelli by them; however, Petracelli did not return any of their money. At no time material hereto was Petracelli licensed by the Petitioner to engage in the practice of contracting. Respondent knew or should have known that Petracelli was not licensed by the Petitioner. At no time material hereto did Respondent or his company (CBS) have a contract with the Walshes. At no time material hereto did Respondent have any communication or contact with the Walshes. Biscayne Kennel Club Job (Case No. 97-2998) The Biscayne Kennel Club (BKC), located at 320 NW 115th Street, Miami Shores, Florida, was a track for greyhound racing. On October 30, 1995, the last race was run at BKC. In February 1996, the BKC sold its Pari-Mutuel license. On or about December 11, 1996, the BKC, by and through its representative, Carl Spitzer, entered into a written contract with Cuyahoga Wrecking Corporation (CWC), by and through its representative, Thomas Schwab, for, among other things, the removal of asbestos and the demolition and removal of BKC's grandstand structure and viewing area. The contract was prepared by Schwab, who had 25 years of experience in the demolition business, with 20 years of that experience in the State of Florida. All contract negotiations were between Schwab and Spitzer. At no time was the President and CEO of BKC, Kay Spitzer, involved in the contract negotiations. As to cost, the contract provided at Article 4 that the cost was $37,500 and that the $37,500 was "dedicated to the removal of the described ACM." Further, Article 4 provided that the "balance of the work to be paid for by the sale of the ferrous and non-ferrous metals by the contractor." In addition, the contract provided in Article 7 that, among other things, all permits were included in the contract price and that BKC and the "contractor" would share "equally all the proceeds of the non-ferrous metals minus whatever costs are incurred bringing it to market." The contract did not restrict or prohibit CWC from engaging the services of any individual or subcontractor to perform the work required in the contract. The grandstand structure and viewing area were one structure. Attached to the roof of the structure was a small building which was used by BKC personnel for viewing the races. The roof was the highest part of the structure, except for the small building. The distance from ground level to the top of the roof was 69 feet and 10 inches; and the top of the small building was approximately 15 feet higher than the top of the roof. CWC contracted with Sal's Abatement to perform the asbestos removal. Schwab was licensed by Dade County, Florida, as a specialty contractor. He was notified that the work for the BKC job was outside the scope of his license and that a contractor, licensed by the Petitioner, was required for the BKC job. Schwab contacted Respondent to be the general contractor. Schwab had worked with Respondent before on other, but smaller, jobs. Respondent agreed to be the general contractor in return for a percentage of the contract. Per the agreement, Respondent would obtain the necessary permits, provide the equipment necessary for the demolition, and supervise the workers on the job. On March 6, 1997, Respondent completed an application for a building permit with Miami Shores Village, Florida, for the demolition of the BKC grandstand. The application reflected Respondent's company (CBS) as the contracting company and Respondent as the qualifier. Carl Spitzer signed the permit application on behalf of BKC. On March 17, 1997, a building permit (permit number 41084) was issued by the Village of Miami Shores for the demolition of BKC's grandstand. On April 29, 1997, the cost of the permit, $566.50, was paid. At no time material hereto was Schwab or CWC licensed by Petitioner to engage in the practice of contracting. Respondent knew or should have known that neither Schwab nor CWC were licensed by Petitioner. At no time did a contract exist between Respondent or his company with BKC for the demolition job. Respondent supervised CWC's preparation of the grandstand for demolition. In preparing the grandstand for demolition, Respondent and Schwab met at the site at least 3 times to discuss the demolition and its progress. On May 16, 1997, the grandstand was scheduled to be demolished. On the morning of May 16th, as Schwab was leaving BKC, Respondent arrived. Shortly thereafter, the grandstand accidentally collapsed--the beams supporting the roof of the grandstand failed, and the roof collapsed. Two of CWC's workers were killed and three were seriously injured. After the collapse, BKC contracted with another company, Omega Contracting, to complete the demolition job. The Petitioner submitted documents reflecting that its costs of investigation and prosecution of the complaints against Respondent, excluding costs associated with attorney's time, to be $1,017.25. On May 22, 1997, pursuant to an Emergency Suspension Order, on May 22, 1997, the Petitioner suspended Respondent's license. Respondent has no prior disciplinary action taken against him by the Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Construction Industry Licensing Board enter a final order: Dismissing all counts in Case Nos. 97-1435 and 97-1436. Finding that Arthur Signore violated Subsections 489.129(1)(c), (e), and (j), 489.1265(3), and 455.227(1)(a), Florida Statutes (1995). Revoking Arthur Signore's certified general contractor's license. Requiring Arthur Signore to pay all reasonable costs of investigation and prosecution associated with the Department of Business and Professional Regulation's investigation and prosecution of the charges set forth in the Administrative Complaint of Case No. 97-2998.3 DONE AND ENTERED this 13th day of January, 1998, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 13th day of January, 1998.
Findings Of Fact This cause comes on for consideration based upon the petition of John C. Walker and others, residents of Fort Myers, Florida, who have challenged the Respondent, State of Florida, Department of Environmental Regulation's intention to grant a Complex Air Source Permit to the Respondent, Lee County Board of County Commissioners, for purposes of constructing a four-lane road at Daniels Road, Lee County, Florida. The Respondent, State of Florida, Department of Environmental Regulation, is an agency charged with the promotion and protection of air quality within the State of Florida. The authority for this function is found in Chapter 403, Florida Statutes, and various rules enacted to implement the provisions of this statute. Specifically, as it pertains to this dispute, the Respondent, State of Florida, Department of Environmental Regulation, is charged with the maintenance of Ambient Air Quality Standards. The standards are set forth in Chapter 17-2, Florida Administrative Code. To carry out this function, Rule 17-2.06, Florida Administrative Code, has been enacted, which establishes maximum limiting levels for Ambient Air Quality Standards. This sets the allowable limits for pollutants existing in the ambient air, the purpose for such standards being the protection of human health and public welfare. It involves the consideration of the pollutants, sulphur dioxide, particulate matter, carbon monoxide, photochemical oxidants (by measurement and correction for interference due to nitrogen oxide and sulphur dioxide), hydrocarbons (used as a guide in devising implementation plans to achieve oxidant standards, to be measured and corrected to methane), and nitrogen dioxide. The Respondent, Lee County Board of County Commissioners, is a unit of local government in the State of Florida charged with the function of carrying on the business of government for that county, to include the construction of those roads necessary to accommodate the needs of the public. To that end, on February 1, 1978, the Respondent, Lee County Board of County Commissioners, applied for a Complex Air Source Permit to be granted for the construction of a four-lane road at Daniels Road, Lee County, Florida. Subsequent to that initial application, revisions of the data provided in support of the application were made on October 12, 1978, and again on January 19, 1979. That application, as revised, may be found as the Respondent's (Lee County) Exhibit No. 1 admitted into evidence and includes aerial photographs. On May 4, 1978, through the person of Phillip R. Edwards, District Manager of the State of Florida, Department of Environmental Regulation, South Florida District, an indication was given that the department intended to issue a Complex Air Source Permit to the Lee County Board of County Commissioners. This exhibit is found as the Respondent's (Lee County) Exhibit No. 2 admitted into evidence. An engineer for the South Florida District, State of Florida, Department of Environmental Regulation, has made a review of the revisions in addition to the original application and is still of the persuasion that the Complex Air Source Permit should be granted. This letter of intent to grant the permit makes reference to the permitting chapter of the Florida Administrative Code pertaining to Complex Air Source Permits and other types of permits. Rule 17-4.07, Florida Administrative Code, sets out the general criterion which must be met prior to the issuance of the Complex Air Source Permit. That provision establishes the need for the applicant to affirmatively provide reasonable assurances based on its plans, test results and other information that the construction of the road and operation on that road will not discharge, emit or cause a violation of the Ambient Air Quality Standards set forth in Rule 17-2.06, Florida Administrative Code, previously referenced. In this case, those assurances have been given. In examining the particular pollutants set out in the Ambient Air Quality Standards table, sulphur dioxide and particulate matter are not items of significant concern, because motor vehicles do not promote the emission of those pollutants in quantities sufficient to exceed the maximum limiting levels. In measuring the amount of carbon monoxide, Lee County utilized a technique known as the representative site method, to be applied in the Cal-Air Model. The ecolyzer which measures this pollutant, was placed in various locations near the intersection of U.S. 41 and Daniels Road, with the object in mind to achieve the gravest readings as a basis for projecting the future amounts of carbon monoxide that would be present in the area of the proposed road expansion. The traffic projections and average speed at the intersection were factored in by Joseph Ebner, P.E., an expert in traffic engineering. The most recent statement of those traffic projections may be found in the January 19, 1979, revision to the application offered by the Respondent, Lee County Board of County Commissioners, which is a part of that Respondent's Exhibit No. 1. In that revision, as was the case of the revision of October 12, 1978, and the original application, the average speed at the intersection was established at fifteen miles per hour, calculated from an engineering textbook, "Highway Capacity Handbook (1975), Highway Research Board, Special Report No. 87". This represents the lowest average speed for an eight-hour period in a signalized intersection of an urban area. In arriving at the traffic count calculations, Mr. Ebner relied on the Lee County Transportation Study, Technical Report No. 6, which contains traffic projections for the year 1990. A copy of this report may be found as Petitioner's Exhibit No. 10 admitted into evidence. The statistics found in that report take into account the projected construction of a regional airport located east of Interstate-75 on Daniels Road, to be opened in the year 1982, and the Opinion that Canal Road, which will intersect with Daniels Road, will be opened in that same year. Calculations made in the January 1, 1979, revision are based upon the belief of a rate of increase in traffic to be eight percent per annum in the area of the intersection of U.S. 41, Cypress Lake Drive and Daniels Road. (At this point it should be indicated that the calculations in the revision of January 1, 1979, labeled, 8-hour Co. Concentrations, U.S. 41 & Cypress Lake Drive [natural traffic mix], are improperly depicted in the columns entitled, "U.S. 41 and Cypress Lake Drive" and must be transposed in their labeling to arrive at the proper mathematical result.) When that adjustment is made, it is established that the highest concentration of carbon monoxide in an eight-hour period in the intersection of U.S. 41 and Cypress Lake Drive in the location of the northwest quadrant for the years 1980 through 1990 was in the year 1980. In that year the measurement would be 9.13 mg/m3 in an eight-hour period. The second most severe year is 1981, in which the measurement is 9.10 mg/m3 as the highest eight-hour carbon monoxide concentration levels in that intersection. The balance of those measurements for the years 1982 through 1990 may be found in the Respondent's, Lee County Board of County Commissioners, Exhibit No. 1 in the January 19, 1979, revision to the permit application. Finally, it should be indicated that the projections made by the Lee County Board of County Commissioners in its application are premised upon a vehicular mix of ninety-four percent automobiles and six percent trucks. Tom Davis, an engineer for the Department of Environmental Regulation, who has the responsibility to review permit applications for Complex Air Source Permits, was involved in advising the applicant on the requirements for compliance for the granting of the permit. Through his involvement, Mr. Davis has been satisfied with the techniques used by the applicant in its efforts at measuring the carbon monoxide and the modeling necessary to answer the ultimate question of whether or not this project will violate the Ambient Air Quality Standards. In this instance, Mr. Davis does not believe those air quality standards will be violated. His testimony established that there are no models designed specifically for the measurement of photochemical oxidants, hydrocarbons or nitrogen dioxide. The hydrocarbons and nitrogen dioxide are area wide phenomena and are not subject to such specific site measurement. However, the area wide monitoring which has been done for nitrogen dioxide throughout the State of Florida, and more particularly in Lee County, Florida, has never shown that pollutant to exceed ten percent of the maximum limiting level. Moreover, carbon monoxide, hydrocarbons and nitrogen dioxide are felt to decrease at roughly the same percentage rate throughout the years, so that the decrease in the carbon monoxide levels at the project site beyond 1980 would reflect a similar decrease at that site in the amounts of hydrocarbons and nitrogen dioxide. Therefore, if there are no problems with carbon monoxide there is no reason to believe that there would be a problem with hydrocarbons and nitrogen dioxide, nor with the photochemical oxidants which are a bi-product of hydrocarbons and nitrogen dioxide combinations. These opinions stated herein are those of Mr. Davis, and David Barker, Ph.D., an air quality expert who testified in behalf of the Respondent, Lee County Board of County Commissioners, agrees. As indicated, these opinions are well founded. Notwithstanding the belief that the Respondent, Lee County Board of County Commissioners, has complied with the requirements of law, an examination of the Petitioners position would seem to be indicated. The Petitioners' argument against the approval of the Complex Air Source Permit falls into two broad categories. The first of those categories has to do with the allegation that the Respondent, Lee County Board of County Commissioners, failed to comply with the instructions in the application form. After considering the testimony in this cause and the exhibits submitted, this contention on the part of the Petitioners is rejected. The second basis for attacking the application concerns the techniques for gathering and applying the data which was utilized by the Respondent, Lee County Board of County Commissioners, in their efforts to establish reasonable assurances that the project would not violate Ambient Air Quality Standards in terms of the maximum limiting levels set forth in Rule 17-2.06, Florida Administrative Code. To this end, the Petitioners offered a series of competing statistics through their exhibits, in terms of traffic projections. In addition, their expert on air quality, Dr. Detar, was of a different persuasion on the question of the average automobile speed through the signalized intersection U.S. 41 and Daniels Road. In Dr. Detar's mind the average speed would be eight miles per hour as the low average speed for an eight-hour period. In view of all the testimony, this projection of the low average speed is not found to be acceptable. Finally, the Petitioners were of the persuasion that the average mix of automobiles and trucks in the area of the project would be more along the lines of the national average of eighty percent cars and twenty percent trucks. The studies conducted by the Respondent, Lee County Board of County Commissioners, in prior projects demonstrated the efficacy of the ninety- four percent automobiles and six percent trucks standard. In measuring other sources of pollution than sulphur dioxide and particulate matter (which the Petitioners do not question in this case), Dr. Detar believed that hydrocarbons and nitrogen dioxide could be modeled. His explanation of the modeling technique, when contrasted with the argument of the Lee County Board of County Commissioners and the State of Florida, Department of Environmental Regulation, to the effect that those two substances may not be modeled on a specific site basis, failed to be persuasive. In summary, in contrasting the evidence offered in behalf of the Petitioners with that offered in behalf of the Respondent; the Respondent, Lee County Board of County Commissioners, has demonstrated reasonable assurances that maximum limiting levels of the applicable pollutants will not be exceeded in the area of the project. The various memoranda and proposed findings of fact and conclusions of law have been reviewed by the undersigned, and to the extent that those items are not inconsistent with the findings of fact rendered herein and conclusions of law and recommendation, they are hereby acknowledged by the entry of this Order. To the extent that those aforementioned items are inconsistent with the findings of fact, conclusions of law and recommendation by the undersigned, they are rejected.
Recommendation It is recommended that the Respondent, Lee County Board of County Commissioners, be granted a Complex Air Source Permit for the construction of the improvements at Daniels Road, Lee County, Florida. DONE AND ENTERED this 1st day of March, 1979, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Room 101, Collins Building MAIL: 530 Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: E. G. Couse, Esquire Grace & Couse, P.A. Suite 202, Courtney Building Post Office Drawer 1647 Fort Myers, Florida 33902 L. Caleen, Jr., Esquire General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 Beverly E. Myers, Esquire Assistant County Attorney Lee County Post Office Box 398 Fort Myers, Florida 33902 ================================================================= AGENCY FINAL ORDER =================================================================
Findings Of Fact Respondent, Peagler, applied for a permit from the Department of Environmental Regulation to install 21 pilings and repair approximately 120 feet of deteriorated seawall at its present location and to remove 7 existing mooring pilings. The 21 mooring piles would be placed in three rows at 40 foot centers, parallel to the existing shoreline and extending no more than 120 feet waterward. On May 24, 1977, the Department gave notice of its intent to issue a permit/certification pursuant to Chapters 403 and 253, Florida Statutes, and Section 401, Public Law 92-500. Petitioner, an adjacent property owner, then filed a petition for a Section 120.57, Florida Statutes, hearing. Petitioner's primary objections were that the project would substantially affect vessel ingress and egress on his property and interfere with navigation in the waters of Garrison Bight. Before the hearing commenced, Petitioner and Respondent, Peagler, reached a compromise. The Department had no objection to the terms, which have been incorporated into the Joint Settlement signed by all the parties and incorporated herein as Exhibit "A".
