STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GEORGE H. HOPPER, )

)

Petitioner, )

)

vs. ) CASE NO. 77-2295

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

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on March 29, 1979, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Russell L. Forkey, Esquire

3081 East Commercial Boulevard Fort Lauderdale, Florida 33308

For Respondent: Randall E. Denker, Esquire

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301

The Petitioner, George H. Hopper, appealed the Respondent, Department of Environmental Regulation's notice of intent to deny him a license to operate a Class "C" wastewater treatment plant. Based thereon, the instant action was initiated.

Based upon my observation of the witnesses and their demeanor while testifying, the memoranda submitted post hearing, and all the other evidence of record, the following relevant facts are found.

FINDINGS OF FACT

1. Petitioner, George H. Hopper, submitted an application for a license to operate a Class "C" wastewater treatment plant to the Respondent on or about April 8, 1977. On November 28, 1977, the Respondent issued a letter of intent to deny the license. This letter of intent was subsequently modified by a letter to petitioner from Respondent dated January 4, 1978. The Respondent, in the above-referenced correspondence, based its letters of intent to deny the Petitioner a Class "C" wastewater treatment plant operator's license based upon two primary grounds. Those grounds are as follows:

   
   

   1. "This Department has concluded that you have not fulfilled the actual experience requirement

      of section 17-16.03(2)(b), Florida Administrative Code (F.A.C.), as defined by section 17-16.02(8) F.A.C." (See letter dated November 28, 1977.)

      
      

      "In addition to the above referenced deficiency in actual work experience, it has been noted that

      you have not completed an approved course related to wastewater treatment plant operation as required by Section 17-16.03(2)(c), Florida Administrative Code." (See letter dated

      January 4, 1978.)

      
      

2. Respecting the second allegation, Petitioner presented testimony during the course of the hearing which, in fact, indicates that he did complete an approved coarse related to wastewater treatment plant operation as required by Section 17-16.03(2)(c), Florida Administrative Code. Additionally, Petitioner presented a diploma supporting this contention. This certificate reflects the fact that the Petitioner satisfactorily completed the course on "Operation of Wastewater Treatment Plants" on or about May 2, 1977. Based thereon, and the testimony of Respondent's certification officer, Robert W. Hall, to the effect that the Respondent did comply with the Code requirement which mandates completion of an approved course related to wastewater treatment plant operation, that ground is no longer a basis for the denial of Petitioner's certification.

   
   

3. Petitioner testified, and the other documentary evidence introduced during the coarse of the hearing indicates, that Petitioner was employed from January, 1975, through December 25, 1975, as administrator of the Margate Utility Authority. From December 25, 1975, through February 15, 1976, the Petitioner was employed in a position other than as administrator, his resignation being effective on February 15, 1976. Accordingly, the Petitioner was employed at the Authority for a period in excess of one year. What is at issue, is the Respondent's contention that the Petitioner was not actually performing duties tantamount to fulfillment of the actual experience requirement of Section 17-16.03(2)(b), Florida Administrative Cede, inasmuch as his duties as an administrator were more in the nature of being in charge of the facility, with little practical experience as the term "experience" is meant in Chapter 17 of the Florida Administrative Code. Additionally, it was noted that the Petitioner was re-employed by the City of Margate as a supervisor.

   
   

4. During the hearing, the Petitioner outlined his duties as an administrator which included being in charge off the overall operation of the wastewater treatment plant. Petitioner testified that when he was first employed at the Margate Utility Authority, the wastewater treatment plants were not operational. He testified that a water-sewer moratorium had been placed by the Board of Health, citing approximately five violations. Petitioner testified that he instituted numerous changes in the operations of the wastewater treatment facilities which included hiring a contractor to supervise deficiencies in the wastewater treatment plant and its injector systems which were over-pressurized. He testified that within approximately two months of his employment with the Authority, he was able to correct approximately 80 percent of the problems and was able to again make the treatment plant operational. Petitioner testified that he normally worked a five day week; however, he was on duty in excess of forty hours weekly for the resolution of all daily operational problems.

5. Evidence introduced during the course of the hearing reveals that the wastewater treatment facility here involved is fully automated and that the operators have very little to do in terms of manual tasks. In this regard, the Petitioner testified that he was on duty at the facility throughout his employment during the period January, 1975, through December, 1975, to operate the wastewater treatment plant. Additionally, the Petitioner testified that his office, as an administrator, was located in close proximity to the wastewater treatment facilities and he was available to in fact operate the wastewater treatment plant, as needed. Finally, Respondent's certification officer, Robert

   W. Hall, testified that in his opinion, being available to operate as opposed to actual operation is what is required by the actual experience requirements of the Florida Administrative Code. Based thereon, I shall recommend that the Respondent withdraw its notice of intent to deny Petitioner's application for a Class "C" wastewater treatment plant operator's license.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Subsection 120.57(1), Florida Statutes.

   
   

7. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

   
   

8. The authority of the Respondent is derived from Chapter 403, Florida Statutes, and Section 17-16, Florida Administrative Code.

   
   

9. Competent and substantial evidence was offered to establish that the Petitioner satisfied the relevant provisions of Section 17-16, Florida Administrative Code, and as such, Petitioner's application for a Class "C" wastewater treatment plant operator's license should be granted.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is hereby,

RECOMMENDED:

That Petitioner's application for a Class "C" wastewater treatment operator's license be GRANTED.

RECOMMENDED this 8th day of May, 1979, in Tallahassee, Florida.

JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Russell L. Forkey, Esquire 3081 East Commercial Boulevard

Fort Lauderdale, Florida 33308

Randall E. Denker, Esquire

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301

Docket for Case No: 77-002295

Orders for Case No: 77-002295