STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ENGLEWOOD WATER DISTRICT, )

)

Petitioner, )

)

vs. ) CASE NO. 85-0792

)

DUANE O. SCHUSTER, d/b/a )

ENGLEWOOD OYSTER BAR; )

PHILLIP C. STUTZMAN; )

GERALD P. STUTZMAN and )

AMERICAN DRUGGIST )

INSURANCE COMPANY, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on May 1, 1985, at Englewood, Florida.

APPEARANCES

For Petitioner: Robert A. Dickinson, Esquire

460 South Indiana Avenue Englewood, Florida 33533

For Respondent Stewart Borne, Esquire Schuster Enter- 100 South Washington Boulevard prises, Inc.: Sarasota, Florida 33577

For Respondent, Russell Snyder, Esquire Gerald 351 West Venice Avenue

Stutzman: Venice, Florida 33595

American Druggist Insurance Company was not represented.

By Citation (undated) the Englewood Water District, Petitioner, seeks to revoke or otherwise discipline the operating permit of the wastewater treatment facility located at Englewood Oyster Bar, Englewood, Florida. As grounds therefor it is alleged the facility is not properly treating wastewater and is discharging effluent in a manner dangerous to the public health.

At the beginning of the hearing the parties stipulated that Phillip Stutzman has no interest in the land involved and should be dismissed as a party and that Schuster Enterprises has filed for protection under Chapter 11 of the Federal Bankruptcy Act. The parties then accepted a Stipulation which was presented to the Hearing Officer in resolution of all issues in these proceedings. That Stipulation is:

1. That the Respondent's wastewater treatment facility was in violation of the Englewood Water District's regulations on February 19, 1985, as more specifically alleged in the Citation.

   
   

2. That the Respondent has submitted an application for reconstruction of the facility to the Department of Environmental Regulation and the Englewood Water District, calculated to solve the deficiencies set forth in the Citation.

   
   

3. That the following interim measures shall be implemented immediately with regard to the operation of the wastewater treatment facility and continued until the reconstruction is complete and operational:

   
   

   1. That effluent shall be pumped out and transported to an appropriate disposal location as needed to keep the drainfield

      dry.

      
      

   2. That the drainfield shall be chlorinated daily as needed to maintain .5 parts per million total chlorine in standing water.

   3. That berms shall be maintained around the drainfield to prevent outflow.

      
      

4. That the parties shall jointly stipulate to the

   entry of a Recommended Order recommending a Final Order forfeiting the Respondent's operational bond and revoking the Respondent's operational permit for the wastewater

   treatment facility, provided, however, that the effectiveness of the Order shall be stayed for a period of thirty (30) days following the issuance of necessary permits from the D.E.R. and Englewood Water District and other affected jurisdictions for the reconstruction work and further provided that the interim measures as set forth above are diligently followed and maintained.

   
   

5. That the Respondents shall use diligence to obtain a permit from the Englewood Water District and Department of Environmental Regulation and other affected regulatory jurisdictions to complete the reconstruction work.

   
   

6. That all reconstruction work shall be diligently prosecuted within thirty (30) days from the issuance of said permit.

   
   

7. That if said permits cannot, for any reason, be obtained but for technical revisions to the application or proposal, the Respondent shall have the option of obtaining the permits based upon a modified application and prosecuting the work in accordance with the changes required by each agency, or by rescinding this Stipulation and proceeding to final hearing on the Citation issued by the Petitioner, provided the interim measures for protection of the health, welfare and safety of the public are maintained.

   
   

8. If the reconstruction work is not completed within thirty (30) days after the respective permits are issued, or if the interim measures for the protection of the health and welfare of the public are not maintained by the Respondent as stipulated, then, and in that event, the Order shall become fully effective and the operational bond shall be forfeited and the operating permit revoked.

   
   

9. If the reconstruction work is completed according to the permits within the thirty (30) day period, then the Citation shall be dismissed by the Petitioner and the Final Order shall be rescinded.

   
   

10. Stewart Borne, on behalf of his client, consents to the entry of the stipulated Recommended Order and Final Order and agrees that his client shall cooperate with the terms and spirit of the Stipulation.

It Is

RECOMMENDED that the above Stipulation be accepted.

ENTERED this 10th day of May, 1985, at Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 10th day of May, 1985.

COPIES FURNISHED:

Robert A. Dickinson, Esquire

460 South Indiana Avenue Englewood, Florida 33533

Stewart Borne, Esquire

100 South Washington Boulevard Sarasota, Florida 33577

Russell Snyder, Esquire

351 West Venice Avenue Venice, Florida 33595

American Druggist Insurance Company Post Office Box 41715

Cincinnati, Ohio 45241

Docket for Case No: 85-000792

Orders for Case No: 85-000792