STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MANUEL RODRIGUEZ, JR., )

)

Petitioner, )

)

vs. ) CASE NO. 89-4052

) STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on October 4, 1990 in Miami, Florida.

APPEARANCES

For Petitioner: Calvin Fox, Esquire

Elena C. Tauler, Esquire Tauler & Fox, P.A.

3477 S.W. Third Avenue Miami, Florida 33145

For Respondent: Cynthia K. Christen, Esquire

Department of Environmental Regulation

2600 Blair Stone Road Tallahassee, Florida 32399-2400

STATEMENT OF THE ISSUE

Whether Petitioner has documented that he has the requisite experience to qualify to take the Class A Domestic Drinking Water Plant Operator certification examination.

PRELIMINARY STATEMENT

By Notice of Final Order of Denial dated May 31, 1989, the Department of Environmental Regulation (DER) notified Petitioner that his application to take the Class A water treatment operator examination had been denied. Taking and passing the examination is a prerequisite for certification as a Class A operator. As reason for denial, the Notice of Final Order of Denial stated that Petitioner did not have the requisite satisfactory full-time employment in the operation of a treatment plant.

Petitioner timely objected to the denial and requested a formal administrative hearing. On June 11, 1990, a Recommended Order was entered in this proceeding which recommended, for the reasons state therein, that the case

be dismissed. Following review of the Recommended Order, DER remanded the case to the Division of Administrative Hearings for further proceedings. The matter was reassigned to the undersigned Hearing Officer and the case was rescheduled for formal hearing. At the formal hearing, Petitioner testified on his own behalf and presented the testimony of six additional witnesses. Petitioner offered twelve exhibits, eleven of which were accepted into evidence. DER presented one additional witness, and presented one exhibit, which was received into evidence.

A transcript of the proceedings has been filed. Rulings on DER's proposed findings of fact may be found in the Appendix to this Recommended Order.

Petitioner did not timely file a proposed recommended order.

FINDINGS OF FACT

1. Petitioner, Manuel Rodriguez, Jr., applied for and received certification from DER as a Florida Class C Domestic Drinking Water Plant Operator in 1985. The requirements for certification as a Class C Operator included three years of actual or recognized constructive experience with at least one year of actual experience in the operation, supervision, and maintenance of a drinking water plant. In the processing of this application, DER accepted Mr. Rodriguez's claimed 12.96 months of actual experience without requiring documentation of that experience.

   
   

2. Mr. Rodriguez applied for and received certification from DER as a Class B Domestic Drinking Water Plant Operator in 1988. The requirements for certification as a Class B Operator included eight years of actual or recognized constructive experience with at least two years of actual experience in the operation, supervision, and maintenance of a drinking water plant. In the processing of this application, DER accepted Mr. Rodriguez's claimed 38.76 months of actual experience without requiring documentation of that experience.

   
   

3. The requirements for certification as a Domestic Drinking Water Plant Operator at the A, B, and C levels of certification have not changed since 1985. DER should have required Mr. Rodriguez to document his actual experience when he applied for his C level of certification and for his B level of certification, but it did not do so.

   
   

4. On or about May 5, 1989, Mr. Rodriguez, submitted to DER an "Application for Certification for Operators of Domestic Wastewater or Drinking Water Plants" on a DER form found at Rule 17-1.210(1), Florida Administrative Code. This application was for certification as a drinking water operator at certification level "A". The application form for certification at the "B" and "C" levels were on the same form used for the "A" level. The criteria for certification has not changed since 1982.

   
   

5. Such an application for certification must be reviewed and accepted by DER before the applicant is permitted to sit for the requisite examination. The application submitted by Mr. Rodriguez was rejected by DER because the application failed to document that Mr. Rodriguez met the actual experience requirements for certification at the "A" level.

   
   

6. In order to qualify to take the Class A level certification examination, an applicant must document 12 years (144 months) of total experience. Of this, 4 years (48 months) must be actual experience. DER considers 2,080 hours of experience as being equal to one year of experience. DER's application form (which has been adopted as a rule) requires an applicant

   to document his experience by: (a) listing the name and address of each public drinking water system at which the applicant has performed work that qualifies for actual experience credit, (b) listing the class designation of that water system, and (c) detailing the number of hours the applicant has worked at that system.

   
   

7. On his application for his Class A Certification, Mr. Rodriguez claimed

   49.85 months of actual experience for his employment with Atlantic Salt & Water Treatment, a company Mr. Rodriguez owns and operates. This company is not a water treatment plant, but provides services to residential customers and to certain public drinking water systems. The application provided no documentation as to the public drinking water systems at which Mr. Rodriguez claimed to have performed services. Mr. Rodriguez also claimed actual experience based on information on file with DER in past applications.

   
   

8. Mr. Rodriguez was notified that his application was rejected because of his failure to document his actual experience. The Notice of Final Order of Denial, dated May 31, 1989, based the rejection of the application on the following:

   
   

   You have not accumulated the 4 years of satisfactory full-time on-site employment in the operation of a treatment plant, as required by Section 17-16.03, F.A.C. Your application indicates that you have only 11 years, 0 months of operational experience on the date of the application.

   
   

9. The Notice of Final Order of Denial, dated May 31, 1989, erroneously reflected that Mr. Rodriguez had been credited with 11 years, 0 months of operational experience. This erroneous statement was caused by a computer error. Mr. Rodriguez was aware of this error and was aware that DER had credited him with having no actual experience because his application failed to document that experience.

   
   

10. Following the rejection of his application, Mr. Rodriguez filed an amendment to his application which provided additional information regarding his work experience. This information, submitted in late June 1989, claimed 76 months of actual experience as follows:

    
    

    1. 39 months between March 1985 and June 1989 while employed as the owner and operator

       of Atlantic Salt (the full name of Petitioner's company was not spelled out on the amendment). This claimed experience is based on services rendered to Jones Fish Camp (twice a week) and to South Dade Storage and Industrial Park (once a week).

       
       

    2. 14 months between October 83 and December

       84 while employed by Home Refinement. This claimed experience is based on services to South Dade Shopping Center (twice a week), Commercial Carriers (once a week), Dennys Restaurants Miami Beach (once a week), Dennys

       S. Dixie Highway (once a month), Bank of Homestead (twice a week), Tivoli Shopping Plaza

       (twice a week), Florida Power & Light Princeton Complex (twice a week), Florida Rock & Fill (twice a week), Florida Transport (twice a week), The Dialysis Center Homestead (once a month), and Botanical Garden (once a month).

       
       

       1. 12 months while employed by Culligan Water between October 1978 and October 1979. This claimed experience is based on services to Jackson Memorial Hospital (twice a week), Mercy Hospital (twice a week), Coral Reef Hospital (twice a week), Baptist Hospital of Miami (once a month), Howard Johnson Hotel Downtown (once a month), Americana Hotel Miami Beach (twice a month), Kings Bay Club (once a month), and Standard Concrete Plant (twice a month).

          
          

       2. 7 months while employed by Enviropact, Inc., between March 1977 and October 1978 (sic). This claimed experience is based on services to Quality Inn S. Dixie Highway (once a week).

          
          

       3. 4 months while employed by Florida Water Treatment between January 1977 and March 1977 (sic). This claimed experience is based on services to Hialeah Garden School for the Handicapped (once a week).

       
       

11. The application, as amended, did not contain the required documentation of actual experience. There was no listing of the address of each respective water system, the class designation for each system, or the number of hours Mr. Rodriguez claimed to have worked at each water system.

    
    

12. DER maintains a computer list which contains a complete inventory listing of all public drinking water systems recognized as such be DER, including inactive systems. DER checked the establishments for which Mr. Rodriguez claimed experience against its computer records to determine which of those establishments are DER approved public drinking water systems. Although such a computer check is not authorized by rule, this type check is routinely performed by DER and the computer records are verified for accuracy and for completeness. Mr. Rodriguez correctly contends that inclusion on the DER computer inventory should not determine whether an entity is a public drinking water system because that determination should be made by application of the pertinent DER rules. However, in the absence of documentation to the contrary, this computer check provides a reasonable means of determining whether an entity is a public drinking water system.

    
    

13. On July 7, 1989, DER notified Mr. Rodriguez that the amendment was insufficient in a letter that provided, in part, as follows:

    
    

    The Department carefully reviewed your amend- ment to your application. Of the establish- ments you listed only Jones Fish Camp and Botanical Garden (Morey's Garden Center) are public drinking water systems. We estimated that you have spent approximately 200 hours

    over four years at these businesses. This is not sufficient to meet the criteria for an "A" level water treatment license.

    
    

14. DER determined that at most Mr. Rodriguez has documented 200 hours of actual experience for work at Jones Fish Camp and the Botanical Garden. (It was determined after the letter of July 7, 1989, that no credit should have been given for the Botanical Garden because the entity to which Mr. Rodriguez referred was not the same Botanical Garden that appeared on the computer inventory.) DER properly awarded no actual experience credit to Mr. Rodriguez for services he rendered to any other entity he listed in his amended application because none of the other entities were on DER's computer inventory of DER approved public drinking water systems or otherwise documented by Mr. Rodriguez to have been public drinking water systems as defined by DER.

    
    

15. Mr. Rodriguez has not provided an accurate or detailed statement as to the number of hours he has spent during the course of his employment in the operation of those entities he asserts should be considered to be public drinking water system.

    
    

16. Mr. Rodriguez's inability to give details about the services he has provided has been impaired because his former employers are now his competitors and they refused to cooperate with him. However, there was no evidence that Mr. Rodriguez attempted to subpoena any of the records from these former employers.

    
    

17. Mr. Rodriguez has received appropriate constructive experience credit for his education and specialized training. He has successfully completed all of the required course work for the Class A water treatment plant operator certification, and it was only his inability to document his actual experience that prevented his sitting for the Class A examination.

    
    

18. Each level of certification is independent of each other, and a lower level certification is not necessary in order to receive a higher level. DER determined that the credit for actual experience given to Mr. Rodriguez based on his application for Class C certification and his application for Class B certification should not have been given because he did not document that experience, and did not credit him with the experience for the Class A certification to the extent he was unable to document such experience.

    
    

19. Mr. Rodriguez failed to document that he has the requisite experience to sit for the Class A examination. While Mr. Rodriguez may in fact have such experience with public water systems, he has not documented that experience either in his application or at the formal hearing.

    
    

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes.

    
    

21. DER is authorized to establish qualifications for, and to examine and certify water treatment plant operators pursuant to Section 403.101, Florida Statutes. Accordingly, DER has promulgated rule criteria for the certification of drinking water treatment plant operators which is contained in Chapter 17- 602, Florida Administrative Code.

22. Rule 17-602.300(4), Florida Administrative Code, provides, in pertinent part, that the applicant for a Class A Certification must meet certain requirements met by the applicant in this proceeding, but must also:

    
    

    (a) Document at least twelve (12) years of actual or recognized constructive experience as herein scheduled which shall include at least four (4) years of actual experience in the operation, supervision, and maintenance of ... a drinking water ... plant ... .

    
    

23. Rule 17-602.200, Florida Administrative Code, provide the following definitions pertinent to this proceeding:

    
    

    (1) "Actual Experience" means full time employment in the actual on-site operational control of a water plant.

    
    

    * * *

    
    

    (16) "Water Plants" means the structures, equipment, and processes necessary to treat drinking water in a public water system as defined in Chapter 17-550, F.A.C.

    
    

24. A "public water system" is defined by Section 403.852, Florida Statutes, which provides, in pertinent part, as follows:

    
    

    1. "Public Water System" means a community or noncommunity system for the provision to the public of piped water to the public for human consumption, provided that such system has at least fifteen service connections or regularly serves at least twenty-five individuals at least 60 days out of the year. The term includes:

       1. Any collection, treatment, storage, and distribution facilities under the control of the operator of such system and used primarily in connection with such system.

       2. Any collection or pretreatment storage facilities not under such control which are used primarily in connection with such system.

    2. "Community water system" means a public water system which serves at least 15 service connection used by year-round residents or regularly serves at least 25 year-round residents.

    3. "Noncommunity water system" means a public water system for provision to the public of piped water for human consumption, which serves at least 25 individuals daily at least 60 days out of the year, but which is not a community water system; except that a water system for a wilderness educational camp is a noncommunity water system.

    * * *

    (17) "Nontransient noncommunity water system" means a public water system that is not a community water system and that regularly serves at least 25 of the same persons over 6 months per year.

    
    

25. Rule 17-602.300(10), Florida Administrative Code, provides, in pertinent part, as follows:

    
    

    (10) Actual experience recognized by the Department for computing eligible treatment plant operation includes experience in item

    (a) below and experience in at least 3 other areas listed (b) through (f):

    1. Management, inspection, monitoring and adjustment of the plant treatment processes.

    2. Collection of samples, in-plant testing or interpretation of test results.

    3. Supervision and management of plant personnel.

    4. Preparation and maintenance of reports, logs and records.

    5. Adjustment and recharging of chemical feeding equipment.

    6. Maintenance, lubrication and repair of plant equipment. ...

    
    

26. Petitioner has failed to establish a factual basis upon which a conclusion can be based that DER is estopped to challenge or to reject Petitioner's claim of "actual experience" in his Class A application merely because it did not make such challenges to his applications for Class C and Class B, respectively.

    
    

27. DER's determination as to which of the entities for which Mr. Rodriguez claims experience credit based on the information made available to it by Mr. Rodriguez and the information contained in its computer records was a reasonable exercise of its discretion based on its interpretation of its statutory responsibilities and the rules it has adopted in furtherance of those responsibilities. This is especially true where the agency has extensive regulatory authority and responsibilities over such water systems. See Part VI of Chapter 403, Florida Statutes. An agency's interpretation of its rules and governing statutes will not be overturned unless the interpretation is clearly erroneous. Health Quest Corporation, et al. v. Department of Health and Rehabilitative Services and Arbor Health Care Co., et al., 11 FALR 5427 (1989), ABC Liquors, Inc. v. Department of Business Regulation, 397 So.2d 696 (Fla. 1st DCA 1981); Department of Insurance v. Southeast Volusia Hospital District, 438 So.2d 815 (Fla. 1983).

    
    

28. Even if Mr. Rodriguez is correct in his assertion that all of the entities he listed in his amendment to his application should be considered public water system, his inability to provide detailed information about his experience with these entities justified DER's decision to reject his application to sit for the Class A certification examination.

29. Petitioner has the burden of proving by a preponderance of the evidence that he is entitled to the relief he seeks. Rule 28-6.08(3), Florida Administrative Code. See also, Florida Department of Transportation v. J.W.C., Co., 396 So.2d 778 (Fla. 1st DCA 1981). Petitioner has failed to meet that burden.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered which upholds the Department of Environmental Regulation determination that Petitioner, Manual Rodriguez, Jr., has failed to document that he has the actual experience required for Class A Domestic Drinking Water Plant Operator, and which upholds the rejection of his application to sit for the Class A Domestic Drinking Water Plant Operator examination.

RECOMMENDED in Tallahassee, Leon County, Florida, this 13th day of February, 1991.

CLAUDE B. ARRINGTON

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 1991.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-4052

The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent.

1. The proposed findings of fact in paragraphs 1-5, 7-8, and 10-15 are adopted in material part by the Recommended Order.

2. The proposed findings of fact in paragraphs 6 and 9 are rejected as being subordinate to the findings made.

3. The proposed findings of fact in paragraph 16 are rejected as being unnecessary to the conclusions reached.

COPIES FURNISHED:

Calvin Fox, Esquire Elena Tauler, Esquire TAULER & FOX, P.A.

3477 S.W. Third Avenue Miami, Florida 33145

Cynthia K. Christen, Esquire Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32399-2400

Carol Browner, Secretary Department of Environmental

Regulation

Twin Towers Office Building 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

Daniel H. Thompson General Counsel

2600 Blair Stone Road Tallahassee, Florida 32399-2400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 89-004052

Orders for Case No: 89-004052