vs. ) CASE NO. 80-231
MICHAEL J. LECCESSEE, )
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by it duly designated Hearing Officer, William E. Williams, held a public hearing in this cause on July 23, 1980, in Pembroke Pines, Florida.
For Petitioner: Randall E. Denker, Esquire
For Respondent: Michael J. Leccessee
By Administrative Complaint for Suspension of License and Imposition of Costs, dated January 7, 1980, the State of Florida, Department of Environmental Regulation ("DER" or "Petitioner") charged Respondent, Michael J. Leccessee ("Respondent") with fraudulently altering a short school training certificate, and with unlawfully and fraudulently submitting false information to DER in his applications for water and wastewater treatment plant operator's licenses. In addition, DER seeks to recover its costs and expenses in investigating Respondent's allegedly fraudulent acts. Respondent requested a formal hearing pursuant to Section 120.57(1), Florida Administrative Code, and by notice dated February 7, 1980, DER requested the appointment of a Hearing Officer from the Division of Administrative Hearings to conduct the final hearing in this cause.
Final hearing was scheduled for July 23, 1980, by Notice of Hearing dated June 30, 1980. At the final hearing, DER called Barry McAlister, Earl Adams and Lawrence T. Nettle as its witnesses. DER offered Petitioner's Exhibits 1 through 16, each of which was received into evidence. Respondent called Jerry Champion as his only witness, and offered no exhibits for inclusion in the record.
Respondent currently holds Water Treatment Plant Operator's License No. 2158 issued by DER pursuant to Chapter 17-16, Florida Administrative Code. In order to obtain a license as a water or wastewater treatment plant operator, an applicant for a Class "C," "Class "B," or Class "A" operator's certificate must satisfy certain experience requirements through either "actual" or "constructive" job experience. "Actual experience" requires satisfactory full- time employment in the actual on-site operational control of a water or wastewater treatment plant. See, Rule 17-16.02(8), Florida Administrative Code. "Constructive experience" includes education, training or occupational time credits which may be added to other "actual experience" credits to satisfy the total accumulated experience required for Class "A," "B," or "C" grades of certified operators.
In order to obtain a Class "C" water or wastewater treatment operator's certification, an applicant must accumulate at least three years of actual or constructive experience, at least one year of which must be "actual experience." Eight years of actual or constructive experience is required to obtain a Class "B" operator's license, and at least two years of that experience must be "actual." To obtain a Class "A" operator's license, an applicant must accumulate at least twelve years of actual or recognized constructive experience, at least four years of which must be "actual experience" in the operation, supervision or maintenance of either a water or wastewater plant. Among the types of "constructive experience" allowed by DER to meet certification requirements is attendance at approved "regional short courses."
The record in this proceeding establishes that Respondent worked full time in a wastewater treatment plant operated by the City of Pembroke Pines, Florida, from December of 1973 through December of 1975. The wastewater treatment plant operated by the City of Pembroke Pines, Florida, was closed in December of 1975. Thereafter, from December of 1975 until shortly prior to the final hearing in this cause, Respondent worked full time in the water treatment plant operated by the same city. Respondent had no work experience in a water treatment plant during the period from December of 1973 through December of 1975, or prior thereto.
On January 14, 1975, Respondent applied to DER for a Class "C" water plant operator's license. In his application Respondent represented that he had "actual experience" of one year, two months in operating a water plant. In truth, Respondent's entire experience at this point in time was in the operation of a wastewater treatment plant, and the representation that he had one year, two months experience in the operation of a water plant was untrue and was known by him to be untrue at the time the representation was made.
On December 20, 1976, Respondent applied to DER for a Class "B" wastewater plant operator's license, and represented to DER in his application that he had been employed as a wastewater plant operator from December 1973 through December 1975. Although this representation was inconsistent with his Class "C" water operator's license application, the record establishes that Respondent, at the time of his application for a Class "B" wastewater license, possessed the requisite experience necessary for licensure.
In June of 1976, Respondent applied to DER for a Class "B" water plant operator's license. In his application Respondent represented that he had been employed as a water plant operator from December of 1973 through August of 1976. The record establishes that this representation was untrue since Respondent did
not begin employment in a water plant until after December of 1975. As a result, at the time the application was submitted, Respondent did not possess the requisite experience for licensure as a Class "B" water plant operator, contrary to the representations contained in his license application.
In June and December of 1977, Respondent applied to DER for a Class "A" water plant operator's license. In his application Respondent represented that he had been employed from December of 1973 through the date of the application as a water plant operator. As indicated above, this representation was untrue since Respondent's experience as a water plant operator did not commence until after December of 1975. Since four years of actual experience is necessary as a condition precedent to licensure as a Class "A" water plant operator, Respondent, contrary to the representations in his applications, was not eligible for issuance of such a license.
In further support of his application for licensure as a Class "A" water plant operator, Respondent, in order to establish evidence of "constructive experience" for licensure, submitted a certificate of attendance from the Florida Water and Pollution Control Operator's Association, indicating that he had attended the annual regional short school on water and wastewater treatment conducted September 14-17, and September 21-24, 1976. In truth, the Respondent did not attend that short school, but instead altered the certificate of attendance of a coworker who did attend the short school so as to make it appear that Respondent had also attended.
In the course of investigating the alleged violations which were the subject matter of the administrative complaint herein, DER has incurred costs and expenses in the amount of $108.40.
It should be noted that the basis upon which DER seeks to revoke the Respondent's water treatment operator's license is the aforementioned misrepresentations which occurred in the license application process. The Respondent has apparently been performing functions of a water treatment plant operator for some time, and nothing in the record of this proceeding would suggest that he has performed those job functions in other than a competent fashion. By the same token, when this dispute is viewed from an administrative standpoint, DER has two employees whose responsibility it is to review approximately 2,000 water and wastewater treatment plant operator's license applications yearly. As a result, the opportunity for misrepresentation such as that existing in the present case going undetected is great. Consequently, DER, in order to enforce its policy of protecting the public health and environment by assuring the safe operation of water and wastewater treatment plants through licensure of plant operators must, to a large extent, depend upon the good faith of license applicants in submitting their license applications.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this action. Section 120.57(1), Florida Statutes.
Section 403.161(1)(c), Florida Statutes, provides:
It shall be a violation of this Chapter, and it shall be prohibited: . . .
(c) 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, or to falsify, tamper with, or knowingly render inaccurate any monitoring device or method required to be maintained under this Chapter or by any permit, rule, regulation, or order issued under this Chapter.
Section 403.161(4), Florida Statutes, provides:
Any person who commits a violation specified in subsection (1)(c) shall be guilty of a misdemeanor of the first degree punishable as provided in ss. 775.082(4)(a) and 775.083(1)(g) by a fine of not more than
$10,000 or by 6 months in jail, or by both for each offense.
Rule 17-16.08(2)(b), Florida Administrative Code, provides that:
(2) The Department may permanently revoke a certificate for any of the following reasons:
. . .
(b) Fraud . . . in the performance of duties of an operator of water or wastewater plant.
Rule 17-16.15(2), Florida Administrative Code, provides that "[n]o person shall perform the duties of an operator without a valid certificate."
Rule 17-16.08(1)(a), Florida Administrative Code, authorizes DER to refuse to issue a certificate for ". . . [s]ubmission of false information when applying for examination or certification."
Based upon the foregoing findings of fact, it is concluded as a matter of law that Respondent violated the aforementioned statutes and rules by submitting false information, known by him at the time to be false, concerning his actual work experience in order to obtain his Class "C," "B," and "A" water plant operator's certification.
DER seeks to recover its investigative costs herein citing Sections 403.121(2) and 404.141(1), Florida Statutes, as authority for the propriety of the granting of such relief. Section 403.121(2), Florida Statutes, however, allows DER to invoke the administrative process only to establish liability for and to recover for damage ". . . to the air, waters, or property including animal, plant, or aquatic life of the state. . . ." In addition, Section 403.141(1), Florida Statutes, limits the recovery of damages and investigative costs and expenses by DER to situations in which there has been actual injury to the air, waters, or property of the state. Since the record in this proceeding is devoid of any showing of actual injury to the air, waters, or property of the state, DER's request to recover its costs and expenses should be denied.
Based upon 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 suspending Respondent's Water Treatment Plant
Operator's License Number 2158 for a period of three (3) years, and denying DER's request to recover its investigative costs and expenses.
DONE AND ENTERED this 19th day of September 1980 in Tallahassee, Florida.
WILLIAM E. WILLIAMS
Filed with the Clerk of the Division of Administrative Hearings this 19th day of September 1980.
Randall E. Denker, Esquire
Michael J. Leccessee 8790 Taft Street
