STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF ENVIRONMENTAL PROTECTION,

Petitioner,

vs.

JOHN J. D'HONDT,

Respondent.

)

)

)

)

)

) Case No. 06-2235

)

)

)

)

)

RECOMMENDED ORDER

Pursuant to notice, a final administrative hearing was held in this matter on December 13, 2006, in Orlando, Florida, by Jeff B. Clark, a duly-appointed Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Ronda L. Moore, Esquire

Department of Environmental Protection 3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

For Respondent: John J. D'Hondt, pro se

2 Tropic Wind Drive

Port Orange, Florida 32128 STATEMENT OF THE ISSUE

Whether Respondent, John J. D'Hondt, as a licensed operator, should be disciplined for violations of Florida Administrative Code Rule 62-602.650(2), (4) and (4)(f).

PRELIMINARY STATEMENT

On March 15, 2006, Petitioner, the Department of Environmental Protection, issued a "probation" letter placing Respondent, John J. D'Hondt, a licensed drinking water plant and wastewater plant operator, on probation for two years for violations in his duties as the licensed operator of the

Double D Mobile Home Ranch's drinking water and wastewater treatment plants. The letter alleged that Respondent failed to timely submit five monthly operation reports ("MORs") for the drinking water treatment plant, failed to maintain separate operation and maintenance logbooks for the drinking water and domestic wastewater treatment plants, and failed to maintain the domestic wastewater logbook with entries of the performance of preventative maintenance and repairs or request for repairs of equipment.

Respondent timely requested a final administrative hearing.

On June 22, 2006, Petitioner transferred this matter to the Division of Administrative Hearings to conduct a final administrative hearing.

On June 22, 2006, an Initial Order was sent to both parties. Based on the responses of the parties, on July 7, 2006, a Notice of Hearing was entered scheduling a final hearing on October 3, 2006, in Orlando, Florida. On September 27, 2006, Respondent requested that the final hearing be continued. The

request was granted, and the final hearing was rescheduled for December 13, 2006.

The final hearing took place as rescheduled on December 13, 2006. Respondent presented the testimony of Elaine Racicot, Yvette Lewis, Patricia Carrico, Richard Lott, Edward Fitzgerald, and Gary Miller. Petitioner presented 14 exhibits that were admitted into evidence and marked as Petitioner's Exhibits 1 through 14. Respondent testified on his own behalf and offered two exhibits that were admitted into evidence and marked as Respondent's Exhibits 1 and 2.

At their request, the parties were given until January 10, 2007, to file their respective proposed recommended orders. No hearing transcript was ordered. Both parties timely filed proposed recommended orders.

FINDINGS OF FACT

Based upon the testimony and evidence received at the hearing, the following facts were established by clear and convincing evidence:

1. Petitioner is the State agency vested with the responsibility of regulating Florida's air and water resources, administering Chapter 403, Florida Statutes (2006), and the rules promulgated in Florida Administrative Code Rule

   Chapter 62. Petitioner has the statutory authority to establish qualifications; examine and license drinking water and domestic

   wastewater treatment plant operators and to place an operator on probation; and issue, deny, revoke, or suspend an operator's license pursuant to its rules.

2. Respondent is the owner, supplier of water, and licensed operator of the Double D Mobile Home Ranch's drinking water and domestic wastewater treatment plants located in Volusia County, Florida. He holds Certified Operator Drinking Water License No. 0000542 and Certified Operator Wastewater License No. 0006032.

3. The Volusia County Health Department is a county health department that has been approved by Petitioner pursuant to Subsection 403.862(1)(c), Florida Statutes (2006), to enforce Chapter 403, Florida Statutes (2006), and the rules promulgated for the State's drinking water program for Volusia County.

4. As a result of not having received Respondent's September 2004 MOR, by letter dated October 20, 2004, the Volusia County Health Department notified Respondent that MORs were to be submitted to the Volusia County Health Department by the tenth of the month following the month of operation.

5. The November 2004 MOR was to have been submitted to the Volusia County Health Department by December 10, 2004. Respondent signed and dated the November 2004 MOR on

   December 12, 2004; it was received by the Volusia County Health Department on December 27, 2004.

6. The December 2004 MOR was to have been submitted to the Volusia County Health Department by January 10, 2005. On February 4, 2005, Respondent was sent a late reporting violation letter stating that the December 2004 MOR had not been received. This letter again reminded Respondent that MORs were to be submitted within ten days after the month of operation. The December 2004 MOR was received on February 11, 2005.

7. The April 2005 MOR was to have been submitted by

   
   

   May 10,	2005.	Respondent signed and dated the April 2005 MOR on
   May 17,	2005.	It was received on May 27, 2005.

   
   

8. The September 2005 MOR was to have been submitted by October 10, 2005. It was received on October 18, 2005.

9. The November 2005 MOR was to have been submitted by December 10, 2005. It was signed and dated December 14, 2005, and received on December 19, 2005.

10. Respondent did not timely submit MORs for the months of November 2004, December 2004, April 2005, September 2005, and November 2005.

11. In 2004, the Volusia County Health Department inspected the Double D Mobile Home Ranch's drinking water treatment plant and found that Respondent maintained a combined logbook for the drinking water and domestic wastewater treatment plants. Respondent was informed that he was required to keep a

    separate operation and maintenance logbook for each of the drinking water and domestic wastewater treatment plants.

12. On August 10, 2004, Petitioner inspected the Double D Mobile Home Ranch's domestic wastewater treatment plant and found that there was a combined logbook for the drinking water and domestic wastewater treatment plants. Respondent was again informed that he was required to keep separate logbooks for each plant. A non-compliance letter dated October 12, 2004, and a copy of the August 10, 2004, inspection report were sent to Respondent informing him that he needed to separate his operation and maintenance logbook.

13. In 2005, the Volusia County Health Department inspected the Double D Mobile Home Ranch's drinking water treatment plant and found that Respondent still maintained a combined logbook for the drinking water and domestic wastewater treatment plants. During the inspection, Respondent was again informed that he was required to keep a separate operation and maintenance logbook for the drinking water and domestic wastewater treatment plants.

14. On June 15, 2005, Petitioner inspected the Double D Mobile Home Ranch's domestic wastewater treatment plant and again found that Respondent was keeping a combined logbook for the drinking water and domestic wastewater treatment plants. During this inspection, Respondent was again informed that he

    was required to keep separate logbooks. A non-compliance letter and a copy of the June 15, 2005, inspection report were sent to Respondent again informing him that he was required to maintain separate logbooks for the drinking water and domestic wastewater treatment plants.

15. On February 13, 2006, the Volusia County Health Department inspected the Double D Mobile Home Ranch's drinking water treatment plant and found that Respondent still maintained a combined operation and maintenance logbook for the drinking water and domestic wastewater treatment plants. During this inspection, Respondent was again informed that he was required to maintain a separate logbook for each plant.

16. Over the extended period reflected by the inspections cited in paragraphs 11 through 15, Respondent failed to maintain separate logbooks for the operation and maintenance of the Double D Mobile Home Ranch's drinking water and domestic wastewater treatment plants.

17. On August 10, 2004, Petitioner inspected the Double D Mobile Home Ranch's domestic wastewater treatment plant and found that the logbook did not contain sufficient entries of the performance of preventative maintenance and repairs or request for repairs of equipment. During this inspection, Respondent was informed that he was required to keep adequate entries of preventative maintenance and repairs or request for repairs of

    equipment for the domestic wastewater treatment plant. A non-compliance letter and a copy of the August 10, 2004,

    inspection report were sent to Respondent informing him that he was required to maintain entries of the performance of preventative maintenance and repairs or request for repairs of equipment for the domestic wastewater treatment plant.

18. On June 15, 2005, Petitioner inspected the Double D Mobile Home Ranch's domestic wastewater treatment plant and again found that Respondent was not keeping adequate entries of the performance of preventative maintenance or repairs for the domestic wastewater plant. During this inspection, Respondent was again informed that he was to keep such entries. A

    non-compliance letter and a copy of the June 15, 2005, inspection report were sent to Respondent informing him that he needed to maintain such entries for the domestic wastewater treatment plant.

19. Photocopies of the combined logbook have essentially no entries for the performance of preventative maintenance or repairs or requests for repairs to a domestic wastewater treatment plant. Infrequent margin notes are not decipherable and do not differentiate between the two activities.

    CONCLUSIONS OF LAW

    
    

20. DOAH has jurisdiction over the parties and the subject matter in this proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2006).

21. Petitioner is the State agency authorized to control drinking water and wastewater systems in the State of Florida.

    § 403.061, Fla. Stat. (2006). Petitioner is authorized by Subsection 403.862(1)(c), Florida Statutes (2006), to require county health departments to assist Petitioner in the regulation of water systems.

22. When an administrative agency seeks to impose disciplinary proceedings that are penal in nature, such as suspension, revocation or even the imposition of an administrative fine against a person or license, it bears the burden of proof by clear and convincing evidence. Dept. of Banking and Finance v. Osborne, Stern, and Co., 670 So. 2d 932, 935 (Fla. 1996). Ferris v. Turlington, 510 So. 2d 292, 294 (Fla. 1987). Clear and convincing evidence is:

    [Evidence] that entails both a qualitative and quantitative standard. The evidence must be credible; the memories of the witnesses must be clear and without confusion; and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy. Clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be

    precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

    
    

    In re Davey, 645 So. 2d 398, 404 (Fla. 1994); Slomowitz v.

    
    

    Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

    
    

23. Section 403.867, Florida Statutes (2004), provides that a person may not perform the duties of an operator of drinking water or domestic wastewater treatment plants unless he or she holds a current operator's license issued by Petitioner.

24. Section 403.876, Florida Statutes (2004), requires Petitioner to establish rules regarding grounds for taking disciplinary action against an operator, including suspending or revoking a valid license, and placing a licensee on probation.

25. Florida Administrative Code Rule 62-602.800(7) provides that an operator's failure to comply with Petitioner's rules pertaining to drinking water or domestic wastewater treatment plants are grounds for disciplinary action.

26. Florida Administrative Code Rule 62-602.650 reads, in pertinent part, as follows:

    An operator is responsible for performing treatment plant operation and maintenance duties in a responsible and professional manner consistent with standard operating practices. The duties shall be the following:

    * * *

    
    

    (2) Submit all required reports in the manner required by the Department in Rule 62-601.300 or 62-550.730, F.A.C., to the permittee or supplier of water.

    
    

    * * *

    
    

    (4) Maintain operation and maintenance logs for each plant, on site in a location accessible to 24-hour inspection, protected from weather damage, and current to the last operation and maintenance performed. The logs shall be maintained in hard bound books with consecutive page numbering, and shall contain a minimum of the previous three months of data at all times.

    
    

    * * * The logs shall contain:

    1. Identification of the plant;

    2. The signature and license number of the operator and the signature of the persons making any entries;

    3. Date and time in and out;

    4. Specific operation and maintenance activities and any repairs made;

    5. Results of tests performed and samples taken, unless documented on a laboratory sheet.

    6. Performance of preventive maintenance and repairs or requests for repair of the equipment.

    
    

27. Florida Administrative Code Rule 62-550.730 reads, in pertinent part, as follows:

    Suppliers of water and DOH-certified laboratories shall report as follows:

    1. Suppliers of Water.

       (a) Except where a shorter reporting period is specified in this chapter, the suppliers of water shall report to the appropriate District office of the Department or Approved County Health Department the results of the test measurement or analysis required by this chapter within the first ten days following the end of the required monitoring period as designated by the Department, or the first ten days following the month in which the sample results were received, whichever time is shortest.

       
       

28. Florida Administrative Code Rule 62-602.850(1)(h) reads as follows:

    Failure to comply with the provisions of Rule 62-602.650, F.A.C. The recommended penalty for failure to submit reports in a timely manner, or to maintain operation and maintenance logs, as required by Rule

    62-602.650, F.A.C., is from a minimum issuance of a probation letter to a maximum administrative fine of $100 per day of the occurrence up to a maximum of $1,000 for the offense.

    
    

29. Florida Administrative Code Rule 62-602.200(10) reads as follows:

    "Probation letter" means a letter reprimanding the operator for failure to comply with the provisions of Rule

    62-602.650, F.A.C. This letter shall initiate up to a two year probation wherein the operator must complete one additional CEU. An additional violation of a similar nature or failure to complete the additional CEU shall result in the suspension of the license for two years.

    
    

30. As evidenced by the repeated directions to Respondent and non-compliance letters, Petitioner interprets Florida

    Administrative Code Rule 62-602.650(4) to require operators to maintain separate logbooks for drinking water and domestic wastewater treatment plants. Petitioner's interpretation of Florida Administrative Code Rule 62-602.650(4) falls within the rule's plain meaning.

31. Respondent is given wide discretion in the interpretation of the statutes and rules it has been given the power and duty to administer. Sullivan v. Florida Department of Environmental Protection, 890 So. 2d 417, 420 (Fla. 1st DCA 2004). "If an agency's interpretation is within the range of possible and reasonable interpretations, it is not clearly erroneous and should be affirmed." Id. (quoting Florida

    Department of Education v. Cooper, 858 So. 2d 394, 396 (Fla. 1st DCA 2003)).

32. Petitioner has demonstrated clearly and convincingly that Respondent violated Florida Administrative Code Rule

    62-602.650(2) when he, as the operator and the supplier of water for the Double D Mobile Home Ranch, did not submit the

    November 2004, December 2004, April 2005, September 2005, and November 2005 monthly operation reports to Petitioner within ten days after the month of operation.

33. Petitioner has demonstrated clearly and convincingly that Respondent violated Florida Administrative Code Rule

    62-602.650(4), because he did not maintain separate logbooks for

    the operation and maintenance of the Double D Mobile Home Ranch's drinking water and domestic wastewater treatment plants.

34. Petitioner has demonstrated clearly and convincingly that Respondent violated Florida Administrative Code Rule

62-602.650(4)(f) when he did not maintain logbook entries of the performance of preventative maintenance and repairs or requests for repairs of the equipment for the Double D Mobile Home Ranch's domestic wastewater treatment plant.

RECOMMENDATION

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

RECOMMENDED that the licenses of John J. D'Hondt, as a Certified Operator Drinking Water and a Certified Operator Wastewater, be disciplined as set forth in the "probation" letter of March 15, 2006.

DONE AND ENTERED this 13th day of February, 2007, in Tallahassee, Leon County, Florida.

S

JEFF B. CLARK

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 13th day of February, 2007.

COPIES FURNISHED:

Ronda L. Moore, Esquire

Department of Environmental Protection 3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

John J. D'Hondt

2 Tropic Wind Drive

Port Orange, Florida 32128

Lea Crandall, Agency Clerk

Department of Environmental Protection Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Michael W. Sole, Secretary

Department of Environmental Protection Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Tom Beason, Acting General Counsel Department of Environmental Protection Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of 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: 06-002235

Orders for Case No: 06-002235