15-006014CM Dorothy Brown-Alfaro And Amilcar Alfaro vs. White Rock Quarries Status: Closed DOAH Final Order on Thursday, October 27, 2016.

Summary: Petitioners failed to prove, by a preponderance of the evidence, that Respondent's use of explosives in connection with construction materials mining activities caused damages to Petitioners' home.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DOROTHY BROWN - ALFARO AND

AMILCAR ALFARO,

Petitioners,

vs. Case No. 15 - 6014CM

WHITE ROCK QUARRIES,

Respondent.

_______________________________/

FINAL ORDER

This case came befor e Administrative Law Judge Darren A.

Schwartz of the Division of Administrative Hearings (ÐDOAHÑ) for

final hearing on May 25 and 26, 2016, in Fort Lauderdale,

Florida.

APPEARANCES

For Petitioner s : Dorothy Brown - Alfaro, pro se

14699 S out hwest 47th Street

Miramar, Florida 33027

For Respondent: Miguel A. De Grandy, Esquire

Pedro Gassant, Esquire

Holland & Knight, LLP

Suite 3300

701 Brickell Avenue

Miami, Florida 33131

STATEMENT OF THE ISSUE S

Whether RespondentÓs use of explosives in connection with

construction materials mining activities caused damage s to

PetitionersÓ home , and, if so, the amount of damages to which

Petitioners are entitled.

PRELIMINARY STATEMENT

On October 23, 2015, Petitioners, Dorothy Brown - Alfaro and

Amilcar A lfaro (referred to herein as ÐPetitioners , Ñ Mrs. Alfaro,

or Mr. Alfaro) , pro se, filed with DOAH a Petition Under the

Florida Construction Materials Mining Activities Administrative

Recovery Act , alleging that Respondent, White Rock Quarries

(ÐRespondentÑ) , caused damage s to their home through the use of

explosives in connection with construction materials mining

activiti es. This case was initially assigned to Administrative

Law Judge Cathy M. Sellers. On October 27, 2015, Judge Sellers

entered an Order Requiring Mediation. On October 28, 2015, this

case was transferred to the undersigned for all further

proceedings.

On December 14, 2015, Petitioners, through counsel, filed an

Amended Petition. On February 29, 2016, the parties mediated

this case and reached an impasse. On March 11, 2016,

RespondentÓs Report on Mediation was filed.

On March 15, 2016, Respondent not iced PetitionersÓ

depositions for April 26, 2016. On March 17, 2016, the

undersigned set this matter for final hearing in Fort Lauderdale

on May 25 and 26, 2016. On April 26, 2016, Petitioners failed to

appear for their depositions . On April 26, 2016, R espondent

filed a motion for sanctions or to strike the Amended Petition

based on Petitioners Ó failure to appear for their depositions.

On May 3, 2016, PetitionersÓ counsel filed a motion to

withdraw as counsel for Petitioners. On May 4, 2016, the

unde rsigned entered an Order Allowing Withdrawal as Counsel.

On May 12, 2016, a telephonic hearing on RespondentÓs

motion s and a status conference w as held with counsel for

Respondent and Mrs. Alfaro participating in the conference.

B ased on Mrs. AlfaroÓs rep resentation in the telephonic

conference that Mr. Alfaro suffered a stroke, has a heart

condition, and is unable to testify and give a deposition,

Mr. Alfaro was precluded f rom testifying at the final hearing.

As to Mrs. Alfaro, she was compelled to appe ar for deposition at

the law offices of RespondentÓs counsel at 10:00 a.m. on May 20,

2016 , which she did . D uring t he telephonic conference, the

u ndersigned also denied Mrs. AlfaroÓs ore tenus motion for a

continuance of the final hearing. That same day, the undersigned

entered an Order memorializing the rulings from the telephone

conference and denying the motions .

The final hearing commenced as scheduled on May 25, 2016,

and concluded on May 26, 2016, with counsel for Respondent and

Mrs. Alfaro pres ent. At the hearing, Mrs. Alfaro testified on

her own behalf and presented the additional testimony of Barbara

Hagan, Paul Ingelmo, and Ismailia Rashid. PetitionersÓ

Exhibits 1 through 6, and 8 were received into evidence.

Respondent presented the test imony of Jeffrey A. Straw, David L.

Teasdale, and Michael Schraeger. RespondentÓs Exhibits 1

through 15 were received into evidence.

At hearing, the parties agreed to file their proposed final

orders within 30 days after the filing of the final transcri pt at

DOAH. The five - volume final hearing Transcript was filed at DOAH

on June 27, 2016. The parties timely filed their proposed final

orders, which were given consideration in the preparation of this

Final Order.

Unless otherwise stated, all statutory and rule references

are to the statutes and rules in effect at the time of the

alleged violations.

FINDING S OF FACT

The Parties

1. Petitioners reside in a single - family , one - story home

located at 14699 S outhwest 47th Street, Miram ar, Broward County,

Florida 33027. Petitioners are the third owners of the home,

which was built in 1981. Petitioners have resided in the home

since 1998. The home is approximately 3,000 square feet Ðunder

air , Ñ and is composed o f conc rete block with st ucco finishes, a

shallow slab - o n - grade foundation system, wood - framed interior

walls, and ceramic tile flooring.

2. Respondent engages in construction materials mining

activities in Miami - Dade County, Florida. Specifically,

Respondent utilizes expl osives to procure construction materials

(i.e. , limestone) from quarries that are located in northwest

Miami - Dade County, Florida.

RespondentÓs Blasting Activities

3. The subject quarries are located within various

geographic areas identified by differ ent sections. Of particular

relevance to the instant matter are sections 7, 6, and 4/5.

Section 7 is approximately 2.6 or 2.7 miles from PetitionersÓ

home. Section 6 is approximately 2.3 or 2.4 miles from

PetitionersÓ home. Section 4/5 is approximately 1.6 miles from

PetitionersÓ home.

4. Each of the sections ha ve been utilized as a discrete

location where blasting activities occur in order for Respondent

to obtain construction materials. Section 7 was in operation

from the mid - 1990 s through the end o f 2015 . Currently, no

blasting activities occur in section 7.

5. Section 6 was in operation from 2000 through 2015 .

Currently, no blasting activities occur in section 6.

6. Section 4/5 began blasting operations in the first

quarter of 2015 and halted in the fourth quarter while excavation

was done. Blasting in section 4/5 resumed in January 2016.

7. To monitor the impact of its blasting activities,

Respondent utilizes the firm GeoSonics , Inc . (ÐGeoSonicsÑ).

GeoSonics has performed vibration measure ment, evaluation, and

reporting to Respondent since 1986.

8. Jeffrey A. Straw is a seismologist with 39 years of

experience and is employed by GeoSonics. As a seismologist,

Mr. Straw is responsible for monitoring the impacts of vibration

from Responde ntÓs blasting activities and analyzing their effects

on structures.

9 . GeoSonics placed seismographs to monitor the impact of

RespondentÓs blasting activities. Peak particle velocity (ÐPPVÑ)

is the speed at which a particle of ground oscillates as the

vibration wave moves through the ground. The seismographs are

used to determine if RespondentÓs blasting activities are within

the PPV limit of 0 .5 inch per second established by the s tate of

Florida.

10. The seismographs must be located within one mil e of

each blast location to record the PPV resulting from the blasting

activities. The seismographs are monitored and evaluated to

ensure that their readings are accurate. The seismograph

readings are evaluated by GeoSonics, which provides reports on

the readings to Respondent and to the state fire marshall.

1 1 . Each seismograph undergoes testing to ensure that the

instrument is working properly and providing effective and

accurate readings. Every time a seismograph provides a reading

concerning a bl ast, it sends a calibration pulse, which indicates

whether the seismograph is working properly. Each seismograph

instrument has an accompanying certification demonstrating that

the instrument has successfully undergone testing and is working

in accordance with the industry standards and specifications.

1 2 . There are six seismographs located within the vicinity

of PetitionersÓ home . T he further the distance from the blasting

location, the lower the blasting intensity. Each seismograph is

located closer to the blasting location than PetitionersÓ home.

Thus, the PPV measured by the seismographs are greater than what

the blasting intensity would be at PetitionersÓ home.

13. At no time ha ve any of RespondentÓs blasting activities

reached or exceeded the 0 .5 PPV limit.

Petitioners Failed to Prove that RespondentÓs Blastin g

Activities Caused Damages to T heir Home

1 4 . In the instant case, Petitioners assert that

Respondent Ó s quarrying activities caused damages to their home.

PetitionersÓ alleged dama ges center on ÐcracksÑ that exist

throughout the home -- s pecifically, cracks throughout the tile

flooring inside the home; cracks on the cement flooring of the

garage; cracks in the interior and exterior walls and ceilings ;

cracks in the semi - circular , sta mp - concrete driveway and patio ;

and cracks around the surface of the windows.

1 5 . It is clear that cracks exist in PetitionersÓ home.

However, the iss ue to be determined in this case is whether the

cracks were caused by RespondentÓs blasting activiti es. They

were not.

16. In support of PetitionersÓ position, Mrs. Alfaro

presented a t hearing a home inspection report . The inspection

was conducted on April 18, 2016, and was not performed by a

general contractor or structural engineer. Although the

inspector identified various cracks based on his visual

observations, the inspector specifically excluded any opinion

regard ing the cause of any need for repairs . Petitioners were

specifically advised to obtain an opinion from a general

contractor or stru ctural engineer as to the cause of the damages .

1 7 . Mrs. Alfaro is an electrical contractor. She is not a

licensed general contractor or structural engineer. At hearing,

Mrs. Alfaro conceded that she does not have experience as a

general contractor or s eismologist. She has not had any training

in seismology or blasting activities. Mrs. AlfaroÓs testimony at

hearing regarding the purported cause of the cracks is not

credited and is unpersuasive.

1 8 . At hearing, Mrs. Alfaro presented the testimony of

Bar bara Hagan. Ms. Hagan resides in Country Club, Miami - Dade

County, Florida , and is retired. She serves as the president of a

civic association and secretary and treasurer of her homeownerÓs

association. She is not a general contractor, engineer, or

seismologist. She has no experience in the use of explosives.

She has never visited PetitionersÓ home. At hearing, Ms. Hagan

conceded that she has no opinion regarding the cause of any of

the damages in PetitionersÓ home.

1 9 . Mrs. Alfaro also pres ented the testimony of Paul

Ingelmo. Mr. Ingelmo is a structural engineer who performed a

visual inspection of PetitionersÓ residence. Mr. Ingelmo did not

review or analyze PPV data relevant to the blasts complained of

by Petitioners. Mr. Ingelmo has no training or experience as to

the appropriate threshold with respect to blasting activities

and PPV. He is not familiar with how a wave behaves from a blast

versus a seismic event. Mr. Ingelmo is not familiar with how PPV

is measured or calculated. Imp ortantly, Mr. Ingelmo could not

give an opinion on whether the damages to PetitionersÓ home were

caused by RespondentÓs blasting activities. In fact, Mr. Ingelmo

conceded that the damages could have been caused by any number of

unspecified factors.

20 . Finally, Mrs. Alfaro presented the testimony of

Ismailia Rashid. Ms. Rashid is a general and roofing contractor.

Ms. Rashid visited PetitionersÓ home, conducted a visual

inspection, and observed cracks on the patio, interior floors,

and driveway. Ms. Ra shid is not familiar with PPV or ground

vibration. She has never been in a home where she was present

and there was blasting. Importantly, Ms. Rashid did not offer an

opinion on whether the damages to PetitionersÓ home were caused

by RespondentÓs blastin g activities.

2 1 . In sum, Petitioners failed to prove by a preponderance

of the evidence that the damages to their home were caused by

RespondentÓs blasting activities.

2 2 . Rather , the preponderance of the evidence presented at

hearing demonstrates t hat the damages to PetitionersÓ home were

not caused by RespondentÓs blasting activit ies .

2 3 . In reaching this conclusion, the undersigned credits

and finds persuasive the testimony of RespondentÓs witnesses :

Jeffrey A. Straw, David L. Teasdale, and M ichael Schraeger.

2 4 . Mr. Straw visited PetitionersÓ home twice: in April

2006 and January 2016. At those visits, Mr. Straw accompanied

Michael Schra e ger, a licensed general contractor with Diversified

Services, Inc. On both occasions, Mr. Straw brou ght a camera and

notepad with him to catalog the defects identified by

Petitioners. Mr. Straw took extensive and comprehensive

photographs detailing the cracks throughout PetitionersÓ home and

driveway. Mr. Straw t estified that 90 percent of the alleged

defects he observed in 2016 were items that he also observed in

some format in 2006. 1/

2 5 . Mr. Teasdale is a civil structural engineer with Haag

Engineering and serves as v ice president of engineering and

principal field e ngineer.

2 6 . Mr. TeasdaleÓs specialty focuses on the extent of

damage to structures due to ground vibrations, explosions, and

earthquakes. He is a licensed engineer in the state of Florida

and 34 other s tates and has been a licensed engineer since 1988.

He is extensively familiar w ith seismographs and has extensive

experience installing and using them.

2 7 . Mr. Teasdale was accepted by the undersigned as an

expert in structural behavior from ground motion and normal

service loads, the influence of construction practices and

enviro nmental conditions on building features, soils and

hardscape, the causes and conditions documented at the

PetitionersÓ residence, and lot features including the

suitability of existing safe blasting standards in the s tate of

Florida.

2 8 . Mr. Teasdale testified that there are substantial

differences between an earthquake and quarry blasting .

Mr. Teasdale explained that the fundamental difference between an

earthquake and a quarry blasting is the amount of energy being

released by the activity.

2 9 . Quarry blasting is a localized source event. An

earthquake involves a fault line, which can extend for many miles

and become mobilized. There is a direct correlation between the

length of a fault line ripped versus the magnitude of an

earthquake. Mr. T easdale also explained that the measurement for

quarry blasting, unlike the Richter Scale used for earthquakes,

is a direct measurement; meaning that a PPV of 1 .0 is twice the

impact of a PPV of 0 .5.

30 . Mr. Teasdale testified that for blasting to cause

d amage to a structure, distortion must occur. Distortion occurs

where the foundation of a structure is accelerated laterally and

causes the upper - part of the building to lag in response, which

cause s the building to shift back - and - forth and mimic a

paralle logram shape. He explained that when distortion occurs,

cracks will emanate from the corner of the walls and that those

cracks will be mirrored on the opposite walls (inside and outside

the structure).

3 1 . Mr. Teasdale explained that there was no damag e to the

foundation of PetitionersÓ home, and the foundation and floor of

a home would not experience distortion at 0 .5 PPV or below

because those limits are too low to produce the energy necessary

to cause a structure to become mobilized.

3 2 . According to Mr. Teasdale, PetitionersÓ home exhibited

a variety of horizontal and vertical cracks and separations in

the finishes, which are typical of environmental stresses in

those materials. Mr. Teasdale also testified that distortion

causes diagonal cracks , w hile thermal environmental stresses

cause cracks vertically and horizontally. He explained that

cracks caused by environmental conditions do not correlate on the

inside and outside, while cracks caused by distortion do

correlate on the inside and outside. He emphasized that the

absence of corresponding cracks on the inside and outside of the

structure generally precludes blasting as the cause of damages.

3 3 . Mr. Teasdale explained that from the moment the

concrete is cast, it begins to shrink and develo p cracks.

Mr. Teasdale further explained that stucco, which is essentially

the same material as concrete, is also prone to cracks due to

normal environmental conditions.

3 4 . Mr. Teasdale testified that at the level in which

Respondent has blasted belo w 0 .5 PPV, it is impossible for

RespondentÓs blasting to have cause d damages to PetitionersÓ

home.

3 5 . Based on his review and analysis of PetitionersÓ home,

Mr. Teasdale concluded that he would exclude blasting to a

reasonable degree of scientific cert ainty as the cause of damages

to PetitionersÓ home.

3 6 . Mr. Schra e ger is a general contractor and building

inspector. He is self - employed through his company Diversified

Services, Inc., and serves as the owner/operator.

3 7 . Mr. Schra e ger has approxim ately 30 years of experience

in commercial and residential construction. He has been licensed

as a general contractor for 22 years and specializes in repairs,

remodeling, and renovations of commercial and residential

structures. He has 20 years of experi ence performing inspections

of buildings relating to determination of material, construction

failure, and defects.

3 8 . Mr. Schra e ger was accepted by the undersigned as an

expert in construction practices and environmental effects on

materials and struct ures.

3 9 . Mr. Schra e ger inspected Petitioners Ó home in 2006 and

2016. He testified that 90 to 95 percent of the alleged defects

he observed in PetitionersÓ home in 2016 existed when he

inspected the home in 2006.

40. Mr. Schra e ger testified that the cracks that he

observed on the tile floor inside PetitionersÓ home are very

typical in a South Florida home because concrete typically cracks

within all concrete structures. These types of cracks can be

caused by poor installation of the tile or shrinkag e of the

monolithic slab over time. There was no evidence of foundation

damage. 2/

4 1 . Mr. Schra e ger further testified that in his

professional opinion, some of the cracks in PetitionersÓ home are

the result of poor construction practices. For example, h e

explained that most of the cracks in the interior of PetitionersÓ

home are due to poor construction practices because of the use of

an inappropriate method for finishing the joints in the drywall.

During his 2016 inspection, Mr. Schra e ger observed tape on some

of the joints , which either had no joint compound under them , or

the tape was applied after the compound started to dry , causing a

bond failure. Some of the cracks generating from the corners of

openings appeared to be from improperly secured corn er bead.

42. During his 2016 inspection, Mr. Schra e ger also observed

a crack in the master bedroom approximately eight feet in length,

which appeared to be a joint in the drywall. This was apparent

to Mr. Schra e ger because the crack was visible on both sides of

the joint tape, which had failed. According to Mr. Schra e ger,

the cause of this failure was moisture from a roof leak.

Staining due to moisture on the ceiling in the area and a repair

of the roof above this area indicated a previous leak. Nota bly,

other areas of the home indicated roof leaks , including stains on

the ceiling of the office area and staining around the skylight

in the hallway.

4 3 . Mr. Schra e ger further testified that the patio tile and

driveway lack sufficient control joi nts, t hereby making the

stamped - concrete driveway and patio prone to crack.

4 4 . Mr. Schra e ger also identified issues of poor

maintenance by Petitioners. For example, he noted that the

cau l king around the windows was brittle and almost nonexistent.

A t hearing, Mrs. Alfaro acknowledged that in the 17 years she has

owned the home, the windows have never been re - caulked.

45. According to Mr. Schra e ger, several cracks were

observed on the stucco exterior walls of the home. With the

exception of a severe crack on the wing wall on the rear of the

patio, all of the cracks in the exterior walls of the home were

attributed to common aesthetic cracks caused by the lack of

control joints , dissimilar materials, bond failure, and improper

maintenance . The crack on the w ing wall of the patio , which ran

along the bottom of a large tie beam, was attributable to poor

construction methods.

CONCLUSIONS OF LAW

4 6 . DOAH has jurisdiction over the subject matter and

parties pursuant to sections 120.569, 120.57(1), an d 552.40,

Florida Statutes.

4 7 . This proceeding is governed by the Construction

Materials Mining Activities Administrative Recovery Act (ÐActÑ) ,

sections 552.32 through 552. 44. The Act provides a specific

administrative remedy for complaints related to the use of

explosives in construction materials mining activities.

§ 552.34(3) , Fla. Stat .

4 8 . Pursuant to section 552.36(1), DOAH Ðhas exclusive

jurisdiction over all claims for damages to real or personal

property caused by the use of explosives in c onnection with

construction materials mining activities.Ñ

4 9 . Petitioners have the burden of proving, by a

preponderance of the evidence, that RespondentÓs blasting

activities caused damages to PetitionersÓ home. §§ 552.40(7)

and (8) , Fla. Stat .

50 . The preponderance of the evidence standard requires

proof by Ðthe greater weight of the evidenceÑ or evidence that

Ðmore likely than notÑ tends to prove a certain proposition.

Gross v. Lyons , 763 So. 2d, 280 n. 1 (Fla. 2000).

51 . Whether RespondentÓs b lasting activities caused damages

to PetitionersÓ home is a question of fact to be determined by

the undersigned. Padron v. State , 143 So. 3d 1037, 1040 - 41 (Fla.

3d DCA 2014).

5 2 . As detailed above, Petitioners failed to prove, by a

preponderance of the evidence, that RespondentÓs blasting

activities caused damages to their home. Rather, the

preponderance of the evidence presented at hearing demonstrates

that the damages to PetitionersÓ home w ere not caused by

RespondentÓs blasting activities. 3 /

ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that PetitionersÓ Amended Petition Under the

Florida Construction Materials Mining Activities Administrative

Recovery Act is DENIED.

DONE AND ORDERED this 16th day of Augu st , 2016 , in

Tallahassee, Leon County, Florida.

S

DARREN A. SCHWARTZ

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 16th day of August , 2016 .

ENDNOTE S

1/ Notably, in August 2006, Petitioners submitted an insurance

claim for damages to their home , whic h they alleged were caused

by RespondentÓs blasting activities. The insurance company

denied PetitionersÓ insurance claim. Subsequently, Petitioners

submitted three separate complaints to the Division of State Fire

Marshall regarding alleged damages caus ed to their home due to

RespondentÓs blasting activities. In response, Petitioners

received three notices from the Division of State Fire Marshall

in October 2007, December 2010, and February 2014. In these

notices, Petitioners were advised of their righ t to submit a

petition to DOAH, which has exclusive jurisdiction over such

claims for damages occurring due to the use of explosives in

connection with construction materials mining activities.

However, PetitionersÓ petition was not filed with DOAH until

October 23, 2015.

2 / Significantly, in June 2015, Petitioners hired a company to

replace some of the tile floors inside the home. At hearing,

Mrs. Alfaro testified that the company used quality tile, proper

materials, and properly prepared the cement surface before

installing the new tile, in order to properly bond the tile to

the slab surface. No cracks have appeared in the new tile, which

further belies any notion that RespondentÓs blasting activities

caused damages to the old tile.

3 / In its pr oposed final order, Respondent asserts that

PetitionersÓ claim is also barred by section 552.40(1), which

requires that a petition with DOAH be filed Ðwithin 180 days

after the occurrence of the alleged damage , Ñ and section

95.11(3)(f), Florida Statutes, w hich requires that claims based

on a statutory right be brought within four years of the date the

cause of action accrued. It is unnecessary for the undersigned

to reach these i ssues because of the evidence which clearly

demonstrates that Petitioners cann ot prevail on the merits of

their claim upon which they have the burden of proof (i.e. ,

causation). Nevertheless, the undersigned has considered

RespondentÓs argument and concludes that Respondent failed to

meet its burden of proof of demonstrating that P etitionersÓ

claims are barred by sections 552.40(1) and 95.11(3)(f). See

Snyder v. Wernecke , 813 So. 2d 213 (Fla. 4th DCA 2002)( concluding

that construction defect claim involving worsening of cracks in

home over many years was not barred by the four yea r statute of

limitations found in section 95.11(3)).

COPIES FURNISHED:

Miguel A. De Grandy, Esquire

Pedro Gassant, Esquire

Holland & Knight, LLP

Suite 3300

701 Brickell Avenue

Miami, Florida 33131

(eServed)

Dorothy Brown - Alfaro

Amilcar Alfaro

14699 Southwest 47th Street

Miramar, Florida 33027

(eServed)

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled

to judicial review pursuant to section 120.68, Florida Statutes.

Review proceedings are governed by the Florida Rules of Appellate

Procedure. Such proceedings are commenced by filing the original

notice of administrative appeal with the agency clerk of the

Division of Administrative Hearings within 30 days of rendition

of the order to be re viewed, and a copy of the notice,

accompanied by any filing fees prescribed by law, with the clerk

of the District Court of Appeal in the appellate district where

the agency maintains its headquarters or where a party resides or

as otherwise provided by la w.