STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALLEN T. SEGARS, )

)

)

Petitioner, )

)

vs. ) CASE NO. 89-3705

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

)

Respondent. )

)

APPEARANCES

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Jane C. Hayman, held a formal hearing in the above- styled case on October 5, 1989, in Miami, Florida.

APPEARANCES

For Petitioner: Alice Weisman, Esquire

Robert A. Sugarman, Esquire Sugarman & Susskind, P.A.

5959 Blue Lagoon Drive Suite 150

Miami, Florida 33126

For Respondent: Cynthia K. Christen, Esquire

Department of Environmental Regulation

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400

STATEMENT OF THE ISSUES

The issue presented is whether Petitioner has the requisite experience necessary for certification by Respondent as a Class A drinking water treatment plant operator.

PRELIMINARY STATEMENT

By Notice of Final Order of Denial dated May 20, 1989, Respondent notified Petitioner that his application to take the examination, as a prerequisite for certification as a Class A drinking water treatment plant operator, had been denied. As reason for the denial, the Notice of Final Order of Denial stated that Petitioner did not have the requisite experience as defined in Rule 17- 16.300, Florida Administrative Code.

By amended petition dated July 3, 1989, Petitioner objected to the denial and requested a formal hearing. On July 10, 1989, Respondent referred the matter to the Division of Administrative Hearings with a request that a Hearing Officer be assigned to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes.

At the formal hearing, Petitioner testified on his own behalf and presented the testimony of four additional witnesses. Petitioner offered six exhibits which were received into evidence. Respondent presented the testimony of two witnesses and offered two exhibits which were received into evidence.

Respondent elected not to engage the services of a certified court reporter to preserve the record of the proceeding and duly notified Petitioner of Respondent's intent to use mechanical recording equipment to preserve the record. The official record of the formal hearing consists of three cassette tapes.

By rule, the parties' proposed findings of fact were due on October 16, 1989. Both parties submitted proposed findings of fact which have been addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. On May 9, 1989, Petitioner, Allen T. Segars, in an attempt to enhance his professional status, applied to Respondent, Department of Environmental Regulation, for certification as a Class A drinking water treatment plant operator. Respondent reviewed Petitioner's application and denied it for failure to demonstrate the requisite twelve years of experience in the operation, supervision and maintenance of a drinking water treatment plant.

   
   

2. Since June 30, 1969, Petitioner has been employed by the Miami-Dade Water and Sewer Authority (WASA) in several capacities each dealing with drinking water treatment. However, Petitioner has never served as a drinking water treatment plant operator nor been licensed as a drinking water treatment plant operator at any classification.

   
   

3. WASA is composed of three regional drinking water treatment plants and nine interim plants servicing portions of South Florida with a total average production of 320 million gallons per day.

   
   

4. From June 30, 1969 through March 21, 1982, Petitioner worked with the electrical component of WASA. For seven of those years, he worked as an electrician. He was then promoted to be an electrical supervisor which position he held for five years. His duties while working in the electrical operation involved performing preventative maintenance, installing and repairing equipment and supervising the personnel working with him in the electrical area. This experience is not in the management of a drinking water treatment plant and does not qualify as actual experience therein.

   
   

5. On March 22, 1982, Petitioner was promoted to his current position of Water Production Superintendent to oversee the employees and the entire drinking water treatment operation of WASA. He remains on call twenty-four hours a day and is actually on the job approximately forty-five hours per week. He begins a typical day around 6:00 A.M. by contacting each of the plants to determine their capacity levels and to find out if any problems exist. If the operation is normal, Petitioner begins his daily process of visiting each plant. He begins at the Hialeah Treatment Plant which houses his office.

6. At each stop, Petitioner goes over the operational log with the treatment plant supervisor. He inspects the facility. He collects samples and spot tests the results. If an adjustment is necessary, he prescribes the remedy or goes over it with the operator on duty. He assesses the chemical inventory and places necessary orders. Petitioner also makes repairs and adjustments; he carries his own repair tools.

   
   

7. Petitioner performs most all of the functions of the treatment plant supervisor. Added to his responsibilities are the administrative duties of being the Water Production Superintendent. On the average, these administrative duties encumber less than eight hours of his normal forty-five four week

   
   

8. Although Petitioner's current position is supervisory in nature, in fact, it is a technical and operational position. Petitioner participates at most all levels of the operation of the drinking water treatment process. In each position that Petitioner has held with WASA, he has been involved in onsite, on-hands activity with the facilities and equipment controlling the operation of WASA. For the seven years and one month that Petitioner has served as Water Production Superintendent, his work has been actual experience in the operation supervision and maintenance of a drinking water treatment plant.

   
   

9. Petitioner is a high school graduate and has successfully completed 128 hours of classroom and laboratory work in a course approved by Respondent. Petitioner has also completed 16 classroom hours in a course pertaining to cross connection control in a treatment plant. These activities yield three years and five months of constructive experience.

   
   

10. The combination of Petitioner's total experience accounts for ten years and six months of the twelve years of experience required for classification as a Class A operator. Thus, Petitioner's activity fails to meet the experience requirement necessary for certification as a class A drinking water treatment plant operator.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings.

    
    

12. Respondent is authorized to establish qualifications for, and to examine and certify, water treatment plant operators, Section 403.101(3), Florida Statutes. Accordingly, Respondent has promulgated criteria for the certification of drinking water treatment plant operators, Rule 17-602.300, Florida Administrative Code.

    
    

13. Petitioner has the burden of proving that he meets the criteria for certification, Florida Department of Transportation v. J. W. C. Company, Inc.,

    396 So.2d 778 (Fla. 1st Dist. App. 1981).

    
    

14. In pertinent part, the criteria, in Rule 17-602.300(4) require that an applicant for Class A certification must document the following:

    
    

    ... 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 either a drinking water or domestic wastewater treatment plant, as appropriate.

    
    

15. Actual experience is defined in Rule 17-602.200(1) as "full time employment in the actual onsite operational control of a water or wastewater treatment plant." In the certification process, actual experience for the purposes of computing eligible treatment plant operation is further defined in Rule 17-602.300(10) 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....

    
    

16. Petitioner's experience while serving as Water Production Superintendent constitutes seven years and one month of actual experience as specified in Rule 17-602.300(10). In particular, he has shown that his day to day responsibilities and activities embody management, inspection monitoring and adjustment of the plant treatment processes as required in Rule 17-602.300(b) (a). His activities, also, comply with four of the remaining subparagraphs; collecting samples, in-plant testing and interpreting results, Rule 17- 602.300(10)(b), supervising plant personnel, Rule 17-602.300(10)(c); adjusting and recharging chemical feeding equipment, Rule 17-602.300(10)(e); and maintaining, lubricating and repairing plant equipment, Rule 17- 602.300(10)(f). In addition, Petitioner has administrative responsibilities which compose a minimal amount of his time.

    
    

17. However, Petitioner failed to demonstrate that his years of electrical experience prior to his appointment as Water Production Superintendent qualified as actual experience. Specifically, as shown, Petitioner's electrical experience from June 30, 1969 through March 21, 1982 did not contain the management responsibilities required in Rule 17-602.300(1)(a), although, arguably, his experience did involve the supervision and maintenance elements of Rule 17- 602.300(10)(c) and (f).

    
    

18. Accordingly, Petitioner has demonstrated actual experience amounting to the period of his tenure as Water Production Superintendent, from March 22, 1982 to the date of his application, May 9, 1989, or seven years and one month.

19. Yet, to reach the required twelve years of experience, Petitioner, then, must show that the remaining four years and eleven months are in constructive experience, Rule 17-602.300(4). Constructive experience for the purposes of calculating the eligibility for Class A certification as quoted from Rule 17-602.300(6) is the following:

    
    

    CONSTRUCTIVE EXPERIENCE NUMBER OF MONTHS SCHEDULED

    High School Graduate: 24

    Successful completion of 12 (up to 48) each academic year of college with

    major in science or engineering:

    Attendance at annual statewide 6

    statewide short course.*

    Attendance at approved regional 4

    short course.*

    
    

    Successful completion, or instruction, 1 for each 16

    of formal classroom course pertaining classroom hours or for to treatment plant operation:* each 32 laboratory

    hours.

    
    

    Successful completion, or instruction, 1 for each 8

    of an approved resident training course.* classroom hours or for

    each 16 laboratory hours.

    
    

    Successful completion of an approved no more than 12 for correspondence training course each course. pertaining to operation, supervision,

    and maintenance of treatment plants:*

    
    

    * Course work must pertain to the type of certification desired, i.e., drinking water treatment courses will not be credited toward wastewater treatment certification, and vice versa.

    
    

20. The proof demonstrated that Petitioner had only three years and five month of constructive experience under Rule 17.602(6). This total is calculated by applying Rule 17-602.300(6) to the following proven experience: Petitioner completed high school which granted him twenty-four months credit; Petitioner successfully completed 128 classroom hours in an approved resident training course which granted his sixteen months credit; Petitioner successfully completed sixteen classroom hours in a course pertaining to the cross connection control of the treatment plant process which granted him one month credit.

    
    

    Therefore, the total of his approved constructive experience is forty-one months or three years and five months.

    
    

21. The sum of Petitioner's seven years and one month of actual and three years and five months of constructive experience falls short of the twelve years required to be demonstrated by Rule 17-602.300(4).

22. Respondent argued that Rule 17-602.300(5) prevented any of Petitioner's experience as Water Production Superintendent from being considered as actual experience. Rule 17-602.300(5) reads as follows:

    
    

    Periods of employment as directors of public works, engineers, utility managers, regulatory inspectors, or in other occupations which do not include actual operations or direct onsite supervision of the operation of water or wastewater plants shall not be credited as actual experience as defined herein.

    
    

23. Petitioner, on the other hand, persuasively asserted that although he had a job classification and the responsibility of what appears to be a director of public works, his actual duties fall within the exception noted in the phrase "which do not include actual operation or direct onsite supervision" Id. Here, Petitioner's employment clearly includes, on a daily basis, the actual operation and direct onsite supervision of WASA. He is not merely a supervisor, but, instead a touring, onsite, workman who is involved with most of the steps of the drinking water treatment process.

    
    

24. However, since Petitioner failed to demonstrate that his experience was comprised of a combination of twelve years of actual and constructive experience, he does not meet the experience requirements of Rule 17-602.300(4).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Department of Environmental Regulation issue a Final

Order denying Petitioner's application of May 9, 1989 for certification as a Class A drinking water treatment plant operator.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 7th day of November 1989.

JANE C. HAYMAN

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 7th day of November 1989.

APPENDIX TO RECOMMENDED ORDER CASE NO. 89-3705

Petitioner's proposed findings of fact are addressed as follows:

1. Addressed in paragraph 5.

2. Addressed in paragraph 1.

3. Addressed in paragraph 1.

4. Addressed in paragraph 1.

5. Subordinate to the result reached.

6. Subordinate to the result reached.

7. Subordinate to the result reached.

8. Subordinate to the result reached.

9. Subordinate to the result reached.

10. Subordinate to the result reached.

11. Addressed in paragraphs 5 and 6.

12. Addressed in paragraph 6.

13. Addressed in paragraph 5.

14. Not supported by competent and substantial evidence.

15. Addressed in paragraph 6.

16. Addressed in paragraphs 4 and 6.

17. Addressed in paragraphs 3 and 8.

Respondent's proposed findings of fact are addressed as follows:

1. Addressed in paragraphs 2 and 3.

2. Addressed in paragraphs 5 and 6.

3. Addressed in paragraph 4.-

4. Addressed in paragraph 9.

5. Addressed in paragraph 1.

6. Addressed in paragraph 1.

7. Subordinate to the result reached.

8. Conclusion of law.

9. Subordinate to the result reached and addressed in paragraph 10.

10. Addressed in paragraph 8.

11. Subordinate to the result reached.

12. Subordinate to the result reached.

13. Subordinate to the result reached.

14. Subordinate to the result reached.

15. Subordinate to the result reached.

COPIES FURNISHED:

Alice Weisman, Esquire Robert A. Sugarman, Esquire Sugarman & Susskind, P.A.

5959 Blue Lagoon Drive Suite 150

Miami, Florida 33126

Cynthia K. Christen, Esquire Department of Environmental Regulation Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32399-2400

Dale H. Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32399-2400

Daniel H. Thompson General Counsel

Department of Environmental Regulation Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32399-2400

Docket for Case No: 89-003705

Orders for Case No: 89-003705