STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 79-479

)

ARTHUR M. JONES, JR., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a bifurcated hearing herein on May 30 and August 15, 1979, in Jacksonville, Florida.

APPEARANCES

For Petitioner: Silvia Morell Alderman, Esquire

Department of Environmental Regulation Twin Towers Office Building

600 Blair Stone Road Tallahassee, Florida 32301

For Respondent: Joseph S. Farley, Jr., Esquire

Mahon, Mahon & Farley

350 East Adams Street Jacksonville, Florida 32202

ISSUE

The issue posed herein is whether or not the Respondent, Arthur M. Jones, Jr.'s Wastewater Treatment Plant Operator's license should be suspended or revoked based on conduct set forth hereinafter in detail based on allegations as set forth in the Petitioner's Administrative Complaint filed January 31, 1979.

FINDINGS OF FACT

1. Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel and the documentary evidence received, the following relevant facts are found.

   
   

2. Respondent, Arthur M. Jones, Jr., is a duly certified Class C Wastewater Treatment Plant Operator, certified pursuant to Chapter 17-16, Florida Administrative Code. Respondent holds license No. 793 originally issued by the Florida Department of Health and Rehabilitative Services on May 13, 1971. The responsibility for certification of wastewater treatment plant operators was transferred to the Florida Department of Pollution Control by Executive Order

   72-75. The Florida Department of Environmental Regulation is the successor

   agency to the Florida Department of Pollution Control by virtue of Chapter 75- 22, Laws of Florida, and is authorized by Section 403.101, Florida Statutes, to issue and revoke operators' certificates pursuant to its rules and Chapter 120, Florida Statutes.

   
   

3. At all times material to this complaint, Respondent was employed by the Duval County School Board in Jacksonville, Florida. At all times material, Respondent was employed by the School Board as a School Sewer/Water Plant Mechanic, a position requiring certification by the Department as a Wastewater Treatment Plant Operator. In his capacity as a School Sewer/Water Plant Mechanic and Class C Operator, Respondent was responsible for the operation, supervision, maintenance and collection of influent and effluent samples from various Duval County schools. Persons responsible for the operation, supervision, maintenance and collection of influent and effluent samples must be licensed and certified by the Department as a Wastewater Treatment Plant Operator.

   
   

4. Additionally, Respondent, in his capacity as a School Sewer/Water Plant Mechanic and Certified Class C Wastewater Treatment Plant Operator, was responsible for the proper collection of composite samples of raw sewage and the treated effluent from each such plant. According to instructions given the Respondent, a composite sample was to be taken by filling one-third of a sample bottle at two-hour intervals until the bottle was full. The composite sample of raw sewage was to be taken from the influent line and the composite sample of treated final sewage was to be taken from the effluent line. After the collection process, Respondent was responsible for properly and accurately labeling the composite samples and for depositing them in a refrigeration unit at School No. 98. The composite samples are then picked up at School No. 98 by authorized personnel for laboratory analysis to determine whether sewage is being adequately treated.

   
   

5. The complaint, in summary fashion, alleged that the Respondent on or about February 15 and March 15, 1978, completely filled a raw sample bottle from the filter bed rather than from the influent line of the plant at School No. 94. That sample was submitted as a composite sample and placed in the refrigeration unit for pickup and analysis by laboratory personnel. Additionally, the complaint alleges that on February 15, 1978, at School No. 82, Respondent filled raw and final sample bottles for Schools Nos. 82, 64, 83 and 153, none of which were a proper composite sample. The samples, it is alleged, were all taken from School No. 82.

   
   

6. The complaint alleges that similar acts occurred on March 15, 1978; on April 4, 1978 and April 11, 1978, all of which acts "constitute gross neglect and fraud in the performance of duties as an operator of a wastewater plant." Based thereon, the Petitioner seeks revocation of the Respondent's Class C Wastewater Treatment Plant Operator's license.

   
   

7. L. L. Masters is Respondent's foreman and is in charge of the wastewater treatment plant facilities. Masters is Respondent's immediate supervisor. On March 15, 1978, Foreman Masters assigned Respondent the duties of taking composite samples of Schools 94, 64, 83, 82 and 159. Evidence reveals that Foreman Masters arrived at School 82 at 9:00 o'clock a.m. and departed at 2:00 p.m. Evidence also reveals that Foreman Masters had a clear view of the entire wastewater treatment plant and that it was impossible for the Respondent to enter and leave the treatment plant in a manner whereby composite samples could be collected without Foreman Masters seeing him. In this regard, Respondent's work orders reflect that he reported having arrived at School 82 at

   10:40 a.m. and departed at 12:10 p.m. (Petitioner's Exhibits 5, 6, 7 and 8.) On April 4, 1978, Respondent was assigned to collect composite samples from Schools 72, 233, 76 and 208. (Petitioner's Exhibit 9.) Foreman Masters observed Respondent on April 4, 1978, with employee Carl Casey. Masters went to School

   77 at 8:30 and Respondent was not there, although he had given a dispatcher a routing which would have taken him to School 76. When Foreman Masters noted that Respondent had not arrived at School 76 by 8:30 a.m., he took employee Carl Casey to School 233 and left Casey at School 233 while he returned to School 76. The Respondent was not there and Masters drove to School 208 where the Respondent arrived at approximately 9:30 a.m. It suffices to say that the Respondent then left for School 233 and arrived there at 10:30. From approximately 10:45 to 11:45, the Respondent was in the wastewater treatment area of School 233 and took three samples from the effluent line and three samples from the influent line at School 233 from the period 10:30 a.m. through 11:45 a.m. (Petitioner's Exhibits 9, 10 and 11.) Employee Pat Wilson testified that he accompanied Respondent on February 15, 1978, and that all samples were taken from the filter beds of Schools 98 and 82.

   
   

8. Detective Jack C. Adams of the Jacksonville Police Department was assigned to the surveillance of Respondent on April 11, 1978. Detective Adams credibly testified that the Respondent did not take composite samples from the assigned schools as reflected by the work orders submitted by Respondent

   
   

9. Respondent appeared and testified that one of the events for which he had been charged occurred as alleged; however, he testified that inasmuch as he questioned the procedures, he was of the opinion that since no harm was done, and since no school experienced problems, he is not guilty of gross neglect and fraud in the performance of his duties as an operator of a wastewater treatment plant as alleged.

   
   

10. The evidence herein reveals that the Respondent was instructed as to the proper procedures for testing, collecting and preserving composite raw and final samples from wastewater treatment plants by his employer. He testified that he had attended a seminar wherein the instructions for such procedures were outlined to him and that he was given a manual on the methods for collecting raw and final samples. Barry McAlister, a certification officer for the Department, testified that Class C operators are instructed as to the proper procedures for collecting samples. Additionally, he testified that the submitting agencies rely heavily on the operators to properly collect samples which are submitted for analysis. Chapters 17-19.04, Florida Administrative Code, additionally set forth the sampling and testing methods for collection and preservation of composite samples. Although there was some conflicting testimony respecting the adherence to the procedures uniformly by the various wastewater treatment plant operators employed by the School Board, the undersigned is of the opinion that the Respondent was not at liberty to select and choose the manner within which he would collect composite samples for analysis by his employer in view of outstanding instructions which were in effect during his employment.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Subsection 120.57(1), Florida Statutes.

    
    

12. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

13. The authority of the Petitioner is derived from Chapter 403, Florida Statutes, and Chapter 17, Florida Administrative Code.

    
    

14. Competent and substantial evidence was offered to establish that the Respondent improperly collected and submitted composite samples of raw and final sewage for pickup and analysis by his employer's laboratory personnel on or about February 15, 1978; March 15, 1978; April 4, 1978, and April 11, 1978, as alleged in the Administrative Complaint filed herein on January 31, 1979.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby,

RECOMMENDED:

That the Respondent, Arthur M. Jones, Jr.'s license as a Class C Wastewater Treatment Plant Operator be suspended for a period of two (2) years.

RECOMMENDED this 28th day of September, 1979, in Tallahassee, Florida.

JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Silvia Morell Alderman, Esquire Department of Environmental Regulation Twin Towers Office Building

2600 Blair Stone Reed Tallahassee, Florida 32301

Joseph S. Farley, Jr., Esquire Mahon, Mahon & Farley

350 East Adams Street Jacksonville, Florida 32202

Docket for Case No: 79-000479

Orders for Case No: 79-000479