STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT OF ) ENVIRONMENTAL REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 80-040

)

ALBERT ROSCOE STEWART, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its assigned Hearing Officer, Michael Pearce Dodson, held a public hearing in this case on March 17, 1980, in Ocala, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Alfred W. Clark, Esquire

Assistant General Counsel

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301

For Respondent: Mr. Albert Roscoe Stewart, pro se

Post Office Box 306

Crystal River, Florida 32629

These proceedings began on October 26, 1979, when the Department of Environmental Regulation (DER) served its administrative complaint on the Respondent, Albert Roscoe Stewart. On December 20, 1979, Respondent filed his request for a hearing on the complaint. The case was forwarded to the Division of Administrative Hearings on January 9, 1980, for the assignment of a Hearing Officer and the scheduling of a final hearing.

By a notice to all parties, the hearing was scheduled for and held on March 17, 1980, in Ocala, Florida. The factual issue in this case is whether Mr. Alan Ferguson took the Class "C" examination for a waste-water treatment plant operator license in the place of Mr. Stewart who had applied for the license.

The Department presented Mr. Barry McAllister, Mr. Richard Sheldon, Mr.

Alan Ferguson, Mrs. Linda Ferguson, Mr. Carl Ferguson, Mr. John Wilson, and Mr. Joseph Jarrett as witnesses and offered Exhibits 1-9, all of which were received into evidence. The Respondent offered the testimony of himself and Mr. Russell Dodge; and tendered Respondent's composite Exhibit A which was received into evidence.

FINDINGS OF FACT

1. The Respondent, Albert R. Stewart applied to take the examination given on August 3, 1979, to receive a Class "C" waste-water treatment plant operator license.

   
   

2. At the examination site of Clearwater, Florida, on the scheduled examination date, the examinees were instructed to print their names on the examination answer sheet and to sign their names on the cover of the examination booklet. At the request of Mr. Stewart, Mr. Alan Ferguson appeared and took the examination in Clearwater, Florida, on August 3, 1979, in the place of and on behalf of Mr. Stewart. Mr. Ferguson signed the examination cover (DER Exhibit

   2) and answer sheet (DER Exhibit 3) with the name of "Albert Stewart".

   
   

3. The signature on the examination booklet does not resemble any of the signatures of Albert R. Stewart on his application for this examination or for any previous exams. The signature does resemble that of Mr. Ferguson in his prior correspondence with the Department of Environmental Regulation. (Mr. Ferguson presently holds a Class "C" permit). The testimony of Mr. Stewart that he actually took the examination administered on August 3, 1979, is not credible.

   
   

4. To allow Mr. Ferguson to be admitted to the examination, Mr. Stewart provided him with his social security card and his driver's license. He also gave Mr. Ferguson twenty dollars ($20.00) for his expenses incurred in traveling to and from Clearwater. At the time of the examination, Mr. Stewart who is presently employed as a supervisor for the Waste-Water Treatment Plant for the City of Inverness, was the supervisor of Mr. Ferguson.

   
   

5. Mr. Stewart by his agreement with Mr. Ferguson to take the examination in his place, has falsely represented to DER that he took the August 3, 1979 examination. This false representation occurred in the process of his application for a waste-water treatment plant operator license.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case, Section 120.57(1), Florida Statutes.

7. It is the violation of Chapter 403, Florida Statutes (1979) to: Knowingly make any false statement,

   representation, or certification in any

   application, record, report, plan, or other document filed or required to be maintained under this chapter. . .

   
   

   Section 403.161(1)(c), Florida Statutes (1979). In representing the answer sheet which was filled in by Mr. Ferguson to be his own, Mr. Stewart knowingly made a false representation in his application for a Class "C" waste-water treatment plant operator license. He has therefore engaged in an act prohibited by Chapter 403, Florida Statutes.

   
   

   Pursuant to Section 403.101(3), Florida Statutes (1979):

   "The department is authorized to establish qualifications for and to examine and certify all water and waste-water treatment plant operators; to issue, deny, revoke, and suspend annual operator certificates pursuant to its rules and Chapter 120:. . .

   
   

   By its rules the Department has provided that:

   
   

   1. The Department may refuse to issue a certificate for any one of the following reasons:

      1. Submission of false information when applying for examination or certification.

      2. Failure to supply information needed to complete application for either examination or certification.

      3. Failure to pass the appropriate examination as provided for in Section 17-16.05.

         
         

   2. The Department may permanently revoke a certificate for any one of the following reasons:

      1. Gross neglect in the performance of duties as an operator of a water or waste-water plant.

      2. Fraud (including the submission of false or incorrect operational reports) in the performance of duties as an operator of a water or waste-water plant.

         
         

         Section 17-16.08, Florida Administrative Code. There is no specific explicit provision in either the statutes or in the Department's rules which allow it to revoke a license, once granted, when that license has been obtained in violation of Chapter 403, by the submission of false information. The Department's Rule 17-16.08 provides that it may refuse to issue a certificate for that reason, but curiously the rule does not provide that the Department may revoke a license already issued for that reason.

         
         

8. While not made explicit by either the Department's rules or Chapter 403, Florida Statutes, the Department has the implicit authority to exercise its power given by Section 403.101(3), Florida Statutes (1979) to revoke a license obtained in a flagrant violation of Section 403.161(1)(c), Florida Statutes (1979). State Board of Education v. Nelson, 372 So.2d 144 (Fla 1st D.C.A. 1979).

RECOMMENDATION

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

That a final order be entered by the State of Florida, Department of Environmental Regulation immediately revoking the Class "C" waste-water treatment plant operator's license granted to Respondent, Albert R. Stewart.

DONE and ENTERED this 25th day of July, 1980, in Tallahassee, Florida.

MICHAEL PEARCE DODSON

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 25th day of July, 1980.

COPIES FURNISHED:

Alfred W. Clark, Esquire Assistant General Counsel Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

Mr. Albert Roscoe Stewart Post Office Box 306

Crystal River, Florida 32629

=================================================================

AGENCY FINAL ORDER

=================================================================

BEFORE THE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION

STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION,

Petitioner,

vs. CASE NO. 80-040

ALBERT ROSCOE STEWART,

Respondent.

/

FINAL ORDER

BY THE DEPARTMENT:

On July 25, 1980, the duly appointed hearing officer in the above-styled matter submitted to the Department and all parties a Recommended Order consisting of Findings of Fact, Conclusions of Law, and a Recommendation. A copy of said Recommended order is attached as Exhibit "A".

Pursuant to Section 17-1.68, Florida Administrative Code, and Section 120.57(1)(b)8., Florida Statutes, all parties were allowed ten (10) days in which to submit exceptions to the Recommended Order. No exceptions have been filed. The Recommended Order thereafter came before me, as head of the Department, for final agency action on this matter.

In Paragraph 2 of the Conclusions of Law, the hearing officer states that the Department has no "specific explicit" authority to revoke a license, once granted. The hearing officer has overlooked the provisions of Sections 17- 16.08(2) and 17-4.10(3), Florida Administrative Code, and Sections 403.087(6) and 403.101(3), Florida Statutes, which clearly give the Department express authority to revoke any license or permit which was obtained through fraudulent means.

Having carefully considered the Recommended Order, and being otherwise fully advised, it is, therefore,

ORDERED:

That the hearing officer's Recommended order be, and is, adopted as modified hereby as the final action of this agency. Accordingly, the Class "C" waste-water treatment Plant operator's license of the Respondent, Albert Roscoe Stewart, shall be immediately revoked.

DONE AND ENTERED this 8th day of August, 1980.

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION

JACOB D. VARN

Secretary

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 Telephone: 904/488-4807

Clerk's Acknowledgment:

FILING AND ACKNOWLEDGMENT

Filed on this date, pursuant to S120.52 (9), Florida Statutes, with the designated Department Clerk, receipt of which is hereby acknowledged.

8-11-80

LINDA BENARD Date

Clerk

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final order has been furnished to Mr. Albert Roscoe Stewart, Post Office Box 306, Crystal River, Florida 32629, by United States Mail this 11th day of August, 1980.

ALFRED W. CLARK

Deputy General Counsel

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301

(904) 488-9730

Docket for Case No: 80-000040

Orders for Case No: 80-000040