STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF ENVIRONMENTAL ) PROTECTION, )

)

Petitioner, )

)

vs. ) Case No. 04-654EF

) DAJOMA, INC., d/b/a DOUBLE D ) MOBILE RANCH, )

)

Respondent. )

______________________________)

FINAL ORDER

Pursuant to notice, this matter was heard before the Division of Administrative Hearings by its assigned Administrative Law Judge, Donald R. Alexander, on May 11, 2004, in Daytona Beach, Florida.

APPEARANCES

For Petitioner: Kelli M. Dowell, Esquire

Department of Environmental Protection 3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

For Respondent: John D'Houdt, President

Dajoma, Inc.

Two Tropic Wind Drive

Port Orange, Florida 32128-6532 STATEMENT OF THE ISSUE

The issue is whether Respondent should have an administrative penalty imposed, take corrective action, and

pay investigative costs for allegedly maintaining a sewage treatment plant in violation of applicable rules and statutes.

PRELIMINARY STATEMENT

On January 15, 2003, Petitioner, Department of Environmental Protection (Department), filed an eight-count Notice of Violation, Orders for Corrective Action, and Civil Penalty Assessment (Notice) under Section 403.121(2), Florida Statutes (2003),1 alleging that during the course of a routine inspection performed by a Department representative in February 2002, he observed seven violations of statutes and rules by Respondent, Dajoma, Inc., which owns and operates a wastewater treatment plant at the Double D Mobile Ranch in Port Orange, Florida.2 For these violations, the Department seeks to impose administrative penalties in the amount of

$5,750.00, require Respondent to take certain corrective action, and recover reasonable costs and expenses ($750.00) incurred by the Department during its investigation.

On February 18, 2004, Respondent, through its President, John D'Hondt, filed an Amended Petition for Administrative Hearing (Amended Petition) for the purpose of contesting the charges.3 The matter was then referred to the Division of Administrative Hearings on February 24, 2004, with a request that an Administrative Law Judge be assigned to conduct a hearing. By Notice of Hearing dated March 4, 2004, a final

hearing was scheduled on May 6, 2004, in Daytona Beach, Florida. On March 19, 2004, the final hearing was rescheduled to May 11, 2004, at the same location.

On May 5, 2004, Petitioner filed a Motion for Partial Summary Final Order (Motion) in which it alleged that on the basis of responses given by Mr. D'Hondt at his deposition on April 20, 2004, and admissions in his Amended Petition, both of which are attached to the Motion, there were no disputed facts regarding Counts I-VI of the Notice. It further contended that as to Counts I-VI, it was entitled as a matter of law to a summary final order in its favor. Thereafter, during a status conference held by telephone on May 7, 2004, Mr. D'Hondt acknowledged that the allegations in Counts I-VI were true, and that he desired only to present mitigating evidence regarding those charges. Based on that acknowledgement, the undersigned orally ruled that the Department would not be required to prove up those charges at the final hearing. However, Respondent was allowed to provide mitigating testimony at the hearing, if it desired to do so, as allowed by Section 403.121(10), Florida Statutes.

Therefore, only Counts VII and VIII are still in issue.

At the final hearing, the Department presented the testimony of Edward Thomas Fitzgerald, a Department Environmental Specialist Inspector and accepted as an expert;

and Clarence C. Anderson, Jr., a Department Environmental Supervisor. Also, it offered Petitioner's Exhibits 1-9, which were received in evidence. Respondent was represented at the final hearing by its President, John D'Hondt, who testified on its behalf.

There is no transcript of the hearing. Proposed findings of fact and conclusions of law were due on May 21, 2004. The same were timely filed by the Department, and they have been considered by the undersigned in the preparation of this Final Order. On May 25, 2004, Respondent filed a document entitled "Additional Information from Respondent," which contained written argument concerning Counts I-IV, VI, and VII.

Attached to the filing were various documents not admitted into evidence at the hearing.4 To the extent the filing is based on evidence of record, it has been considered.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. Background

   
   

   1. Since 1969, Respondent, an active Florida corporation, has owned and operated a relatively small mobile home park (with around 55 mobile homes) at Two Tropic Wind Drive, Port Orange, Florida, known as Double D Mobile Ranch. In conjunction with the mobile home park, Respondent owns and

      operates a wastewater treatment plant (facility) for its residents. The facility is under the regulatory jurisdiction of the Department. Respondent's president is John D'Hondt, who is the only certified operator for the facility.

   2. On June 8, 2001, a Department representative inspected Respondent's facility and noted that Respondent had violated a number of statutes and rules. In accordance with Department protocol, on September 26, 2001, the Department sent Mr. D'Hondt by certified mail a "Noncompliance Letter" (First Letter), which identified the various violations and requested that Respondent respond within 14 days with a schedule of corrective action. Mr. D'Hondt received the First Letter but did not file a response.

   3. On February 27, 2002, a Department representative conducted a routine follow-up inspection of the facility. Mr. D'Hondt was present during the inspection. During the course of the inspection, the representative noted the following violations, some of which were repeat violations from the earlier inspection:

      1. Count I. The logbook on-site was not bound with numbered pages, and it did not contain the signature of the operators, as required by Florida Administrative Code Rule 62- 602.650(4).

      2. Count II. A copy of the operation and maintenance

         manual was not on-site, as required by Florida Administrative Code Rule 62-600.410(4)(f).

      3. Count III. A copy of the certified operator's license was not on site, as required by Florida Administrative Code Rule 62-620.350(8).

      4. Count IV. Respondent failed to submit Discharge Monitoring Reports from May 2001 through January 2002, as required by Florida Administrative Code Rule 62-601.300(1)(b).

      5. Count V. After effluent samples were collected and tested, the tests revealed that the Total Suspended Solids were 185 milligrams per Liter (mg/L), which exceed the permit limit of 60 mg/L for a single sample, in violation of Florida Administrative Code Rule 62-600.740(1)(b)1.d.

      6. Count VI. Advisory signs were not posted at the facility indicating the nature of the project area, as required by Florida Administrative Code Rules 62-610.418(1) and 62-610.518(1).

      7. Count VII. The percolation pond located adjacent to the plant had less than one foot of freeboard, in violation of Florida Administrative Code Rule 62-610.516.

   4. In addition to the foregoing charges, by its Count VIII, the Department seeks to recover investigative costs totaling not less than $750.00, which the Department claims were incurred during the investigation and processing of the

      Notice.

      
      

   5. On April 2, 2002, the Department sent Mr. D'Hondt by certified mail a second Noncompliance Letter (Second Letter) outlining the various violations and requesting that he respond within 14 days after receipt of the Second Letter with a schedule of corrective action. Although Mr. D'Hondt received the Second Letter around April 20, 2002, he failed to file a response.

   6. On July 1, 2002, the Department sent another letter (Third Letter) by certified mail to Mr. D'Hondt requesting a reply to the Second Letter previously sent in April. The Third Letter advised Mr. D'Hondt that if he wished to avoid an enforcement action, he should file a response within 7 days from receipt of the letter. Mr. D'Hondt received the Third Letter around July 20, 2002, but he failed to respond to either the Second or Third Letters.

   7. On January 15, 2003, the Department issued its Notice alleging that Respondent had violated various statutes and rules (as described in Finding of Fact 3) in seven respects.

   8. After an informal conference failed to resolve the matter, Respondent eventually filed an Amended Petition on February 18, 2004, contesting the validity of the charges.

2. The Charges

   
   

   1. Because Respondent has acknowledged that the

      allegations in Counts I-VI are true, no further proof as to those matters is necessary. Accordingly, it is found that the charges in those Counts have been established.

   2. In Count VII, Respondent is charged with having "a freeboard of less than one (1) foot" in its percolation pond, as required by Florida Administrative Code Rule 62-610.516. ("Freeboard" refers to the area between the top of the water in the pond and the top of the surrounding berm.) Under that rule, "[p]ercolation ponds . . . shall be provided with an emergency discharge device to prevent water levels from rising closer than one foot from the top of the embankment or berm." This means that a facility operator must maintain at least one foot of separation between the water level in the treatment pond and the top of the berm. The purpose of maintaining this amount of separation is to prevent an overflow of treated liquids in the event of an extremely heavy rainfall or a catastrophic event. This is especially important here since Respondent's percolation pond (which is used to dispose of treated liquids from the facility) appears to be no more than

      30 feet or so from several mobile homes. See Petitioner's

      
      

      Exhibit 3.

      
      

   3. Testimony by the Department inspector established that when the inspection occurred, there was less than one foot of separation on the right side of the pond, as

      corroborated by, and reflected in, Petitioner's Exhibit 3, a digital photograph of the pond taken during the inspection. Respondent's contention that a separation of at least one foot existed in the pond at the time of inspection has been considered and rejected in light of the credible contrary evidence. Therefore, the charge in Count VII has been established.

   4. The evidence supports a finding that the Department incurred at least $750.00 in investigative costs while conducting the inspection, performing tests, attempting to informally resolve the case, and issuing the Notice. This amount is based on the cost of the field and laboratory tests, the hourly compensation of the inspector, and the hourly compensation of the supervisor who reviewed the inspector's work. It also includes the time expended by Department personnel in attempting to informally resolve the matter and later issuing the NOV. See Petitioner's Exhibit 9.

      Therefore, the charges in Count VIII have been sustained.

      
      

   5. Under the statutory scheme in place, the violations in Counts I through VII call for an administrative penalty in the amount of $5,750.00. The derivation of this amount is found in Petitioner's Exhibit 7, which is a penalty computation worksheet.

3. Mitigating Evidence

1. Although he was given an opportunity to offer mitigating evidence at the final hearing, Mr. D'Hondt failed to present any evidence that the violations were caused by circumstances beyond his control or that they could not have been prevented by due diligence. While Mr. D'Hondt did testify at final hearing that he has reduced the occupancy rate in the mobile home park to 70 percent to satisfy Department flow capacity requirements, this by itself is insufficient to warrant a reduction in the penalty.

   CONCLUSIONS OF LAW

   
   

2. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Sections 120.569, 120.57(1), and 403.121, Florida Statutes.

3. Section 403.121(2), Florida Statutes, prescribes the administrative enforcement process for the Department "to establish liability and to recover damages for any injury to the air, waters, or property . . . of the state caused by any violation." Under that process, the Department is authorized to "institute an administrative proceeding to order the prevention, abatement, or control of the conditions creating the violation or other appropriate corrective action." § 403.121(2)(b), Fla. Stat. The process is initiated by "the

   department's serving of a written notice of violation upon the alleged violator by certified mail." § 403.121(2)(c), Fla.

   Stat. If a hearing is requested by the alleged violator, "the department has the burden of proving with the preponderance of the evidence that the respondent is responsible for the violation." § 403.121(2)(d), Fla. Stat. Thereafter, "the administrative law judge shall issue a final order on all matters, including the imposition of an administrative penalty." Id.

4. By a preponderance of the evidence, the Department has established that all charges in the Notice have been sustained. Therefore, Respondent is guilty of the charges, as alleged in the Notice. Under the guidelines in Section 403.121(3)-(5), Florida Statutes, these violations call for an administrative penalty in the amount of $5,750.00. That amount has been accepted as being an appropriate penalty. Respondent should also reimburse the Department for investigative costs in the amount of $750.00, which were incurred during the course of the investigation and up to the time the Notice was issued. See § 403.141(1), Fla. Stat.

5. Finally, Section 403.121(10), Florida Statutes, provides that the administrative penalties may be mitigated under certain circumstances. More specifically, the statute provides that

   [t]he administrative law judge may receive evidence in mitigation. The penalties identified in subsection (3), subsection (4), and subsection (5) may be reduced up to 50 percent by the administrative law judge for mitigating circumstances, including good faith efforts to comply prior to or after discovery of the violations by the department. Upon an affirmative finding that the violation was caused by circumstances beyond the reasonable control of the respondent and could not have been prevented by respondent's due diligence, the administrative law judge may further reduce the penalty.

   
   

6. There being no evidence to show (a) that Respondent made "good faith efforts to comply prior to or after discovery of the violations" (here the Respondent did not respond to the First, Second, or Third Letters); (b) that the violations were caused by circumstances beyond Respondent's control; or (c) that the violations could have been prevented by Respondent's due diligence, mitigation of the fine is not warranted.

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

ORDERED that the Notice of Violation, Orders for Corrective Action, and Civil Penalty Assessment issued against Respondent are sustained, and that Respondent be fined

$5,750.00 for said violations and reimburse the Department in the amount of $750.00 for investigative costs incurred during the processing of this matter. Said penalty and costs shall

be paid to the Department within thirty days from the date of this Order by cashier's check or money order payable to the "State of Florida Department of Environmental Protection" and shall include thereon the OGC Case Number (02-1715) and the notation "Ecosystem Management and Restoration Trust Fund." The payment shall be sent to the Department of Environmental Protection, Program Manager, Wastewater Compliance/Enforcement Section, Central District Office, 3319 Maguire Boulevard, Suite 232, Orlando, Florida 32803-3767. It is further

ORDERED that Respondent shall comply with all Department rules regarding domestic waste treatment and disposal.

Respondent shall also correct and redress all violations in the time periods below and shall comply with all applicable rules in Florida Administrative Code Chapters 62-600, 62-601, 62-610, and 62-620. It is further

ORDERED that Respondent shall immediately obtain a hardbound logbook containing consecutive number pages. Respondent shall also record the identification of the plant, the signature and license number of each operator, the time in and time out, the signatures of the persons making the entries, the specific operation and maintenance activities, the tests performed, the samples collected, and any major repairs made. The log shall be maintained on-site in a location accessible to 24-hour inspection, protected from

weather damage, and current to the last operation and maintenance performed. It is further

ORDERED that within thirty days of the effective date of this Order, Respondent shall maintain the wastewater plant in order that the effluent limits shall not be exceeded.

DONE AND ORDERED this 7th day of June, 2004, in Tallahassee, Leon County, Florida.

S

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 7th day of June, 2004.

ENDNOTES

1/ Unless otherwise noted, all future references are to Florida Statutes (2003).

2/ Although Respondent was originally identified in the style of this case as the Double D Mobile Ranch Association, the proper name appears to be the Double D Mobile Ranch. The style of the case has been changed to reflect the correct name.

3/ According to papers filed in this cause, after the Notice was issued on January 15, 2003, Respondent requested an informal conference to address the findings in the Notice.

After an informal conference was held, on September 23, 2003, the Department announced that it was closing the informal

conference. Respondent then filed a Petition for Administrative Hearing challenging the closing of the informal hearing. On January 24, 2004, the Department issued an Order Dismissing Petition with Leave to Amend. Respondent's Amended Petition was thereafter filed on February 18, 2004.

4/ Even if the attached documents were received in evidence and considered, most of them relate to events which occurred before the inspection in question, or to conditions which existed during prior inspections dating back to 1996, and therefore would have little, if any, probative value on the issue of mitigation. As to Respondent's comments concerning various charges, they either are contrary to the more persuasive evidence (e.g., contentions that the Department inspector testifying at hearing was not the individual who conducted the inspection in question, and that the percolation pond had more than one foot of freeboard), or they constitute new evidence which should have been presented at hearing before the record was closed.

COPIES FURNISHED:

Kelli M. Dowell, Esquire

Department of Environmental Protection 3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

John D'Hondt Dajoma, Inc.

Two Tropic Wind Drive

Port Orange, Florida 32128-6532

Kathy C. Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original Notice of Appeal with the agency clerk of the Division of Administrative Hearings and a copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.

Docket for Case No: 04-000654EF

Orders for Case No: 04-000654EF