The Issue This is a license discipline case in which the Department of Health and Rehabilitative Services seeks to impose an administrative fine in the amount of $350.00 on the basis of allegations that the Respondent, failed to report visible and accessible evidence of dry wood termite fecal pellets.
Findings Of Fact At all times material to this case, the Respondent, James M. Dodds has been licensed to conduct residential termite inspections. On June 12, 1990, he conducted a termite inspection at the residence of a Mrs. Mitchell, located at 7420 W. 15 Court, Hialeah, Florida. During the course of that inspection, Dodds did not inspect the attic of the residence. The reason he did not inspect the attic was because the access to the attic (which was through a crawlspace in the ceiling of a small bedroom closet) was blocked by a large number of boxes stacked in the closet. During the course of the inspection Dodds told the owner of the house that unless she arranged to move all the boxes out of the way, he would have to indicate on his report that the attic was not inspected. The owner did not arrange to get the boxes moved and Dodds did not inspect the attic. At the conclusion of his inspection of the property described above, Dodds filled out an inspection report form and left a copy of the inspection report with the property owner. Dodds placed some check marks in some preprinted boxes on the back of the inspection report form. Those check marks included one that indicated "attic not available for inspection." Shortly thereafter, the house was sold to a new owner who, shortly after moving in, discovered what appeared to him to be evidence of possible termite infestation. Subsequent inspections of the premises by another pest control company and by an inspector of the Department of Health and Rehabilitative Services revealed the presence of fecal pellets left behind by dry wood termites. The termite fecal pellets were discovered in the attic near the crawl space opening. There was no other evidence of the presence of termites. No live termites were seen on either of the follow-up inspections.
Recommendation For all of the foregoing reasons, it is recommended that the Department of Health and Rehabilitative Services issue a final order in this case dismissing all charges against the Respondent, James M. Dodds. DONE AND ENTERED at Tallahassee, Leon County, Florida, this 11th day of March, 1991. MICHAEL M. PARRISH, 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 11th day of March, 1991. COPIES FURNISHED: Martha F. Barrera, Esquire, Department of Health and Rehabilitative Services 201 West Broward Boulevard Fort Lauderdale, FL 33301 Mr. James M. Dodds Creative Construction Services, Inc. P. O. Box 38-1996, Miami, Florida 33138 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Linda K. Harris Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
Findings Of Fact At all material times, Respondent has been the certified operator in charge of the pest control activities at American Pest Control, Inc. On September 11, 1989, Respondent conducted an inspection for wood- destroying organisms incidental to the purchase of a residence located at 2 Wisteria Drive, Ormond Beach, by Mr. Orren Nye. The residential lot contains two structures: the primary residence and a detached garage. Respondent detected no problems in the house. However, in the garage, Respondent discovered that work had recently been done on the roof. He observed sawdust on the floor in the northwest corner of the garage. On closer examination, Respondent found that a portion of some of the roof rafters had been cut off and new rafters scabbed together with the old. Respondent noticed that some dry rot remained in the old wood at the joint with the new wood. Because the area was not moist and he did not see how further repairs could be undertaken, Respondent decided not to mention the dry rot in his inspection report. Dry rot is a condition caused by the work of fungi, which are wood- decaying organisms. The fungi are active when the wood is wet. After the fungi are no longer active, they typically leave the wood in a dry, weakened condition. It is from this condition that the term, dry rot, is derived. There was no evidence of active fungi in the visible and accessible portions of the garage, which were dry at the time of Respondent's inspection. There was no evidence of any active termite infestation visible and accessible in the garage. The presence of sawdust was did not conclusively indicate the presence of termites in view of such other factors as the absence of any termite pellets. Following his inspection, Respondent prepared a standard wood- destroying organisms inspection report on a form prepared by Petitioner. The report identifies Mr. Nye's residence. The report lists only the "residence" as the "specific structure inspected." However, under "structures on property NOT inspected," the report states, "none." The inspection report describes the scope of the inspection for wood- destroying organisms as including termitesand wood-decaying fungi. The report is expressly limited to "what was visible and accessible at the time of the inspection." The material findings of the report indicate no visible evidence of wood-destroying organisms observed, no live wood-destroying organisms observed, no "visible damage observed," and no "visible evidence of previous treatment . . . observed." On September 20, 1990, Petitioner's entomological investigator visited the Nye residence in response to a complaint received from Mr. Nye. The investigator found active wood-decaying fungi in the areas of the garaged previously inspected by Respondent, including those areas where Respondent had seen dry rot where new and old wood had been joined. The investigator also found considerable evidence of an active termite infestation. The primary problem noted by Petitioner's investigator was the wood- decaying fungi. The evidence was not clear and convincing that any evidence of termite infestation was visible and accessible when Respondent conducted his inspection about one year earlier. The evidence is stronger that any evidence of wood-decaying fungi was visible and accessible at the time of Respondent's inspection. However, in the intervening year, the garage roof had been leaking for at least five months. On balance, Petitioner has failed to prove by clear and convincing evidence that Respondent overlooked visible and accessible evidence of active wood-decaying fungi. However, by Respondent's own admission, he saw visible damage that he failed to report. The dry rot remaining after the roof repairs clearly constituted damage from the work of wood-destroying organisms, which Respondent was required to report regardless of the absence of evidence of the presence of any active fungi or Respondent's estimation of the lack of need of further repairs. It is impossible to dismiss this omission as immaterial in view of the later problems that arose in the same area of the garage roof. This failure constitutes negligence in the performance of pest control and a deviation from good industry practice and standards in connection with inspections. Petitioner seeks to impose an administrative fine of $500 for the violations alleged in the Administrative Complaint.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order imposing an administrative fine against Respondent in the amount of $500. ENTERED this 5th day of April, 1991, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of April, 1991. APPENDIX TO RECOMMENDED ORDER Treatment Accorded Proposed Findings of Petitioner 1: adopted except for second-to-last sentence, which is rejected as unsupported by clear and convincing evidence. 2: adopted. 3: rejected as hearsay, subordinate, and recitation of evidence. 4: adopted. 5: rejected as subordinate and recitation of evidence except that last sentence is adopted. 6: adopted only as to damage from wood-decaying fungi, not as to the presence of active wood-decaying fungi. 7-8: rejected as recitation of evidence. 9: rejected as unsupported by clear and convincing evidence. Respondent testified to the presence of dry rot. The fungi are active when the area is wet. Because the area was dry, the condition that Respondent observed and failed to report was damage, not active infestation of fungi. 10: rejected as evidence excluded at the hearing. Treatment Accorded Respondent's Proposed Findings 1: adopted except that the inspection report deviated from his observations and the requirements of law as to the indication that Respondent observed no visible damage from wood-destroying organisms. 2: adopted. 3: rejected as subordinate. 4: first sentence adopted. Remainder rejected as subordinate and recitation of evidence except for last sentence. The last sentence is rejected because Petitioner proved by clear and convincing evidence--namely the testimony of Respondent--that he detected dry rot during his inspection and did not report it. Dry rot is damage from a wood-destroying organism. The damage was visible and accessible because Respondent admitted that he saw it. 5-6: rejected as subordinate and irrelevant. 7-8: rejected because Petitioner proved by clear and convincing evidence that the damage from fungi was seen by Respondent during his investigation. COPIES FURNISHED: Ana Sonia Nieves Environmental Health Attorney Department of Health and Rehabilitative Services 400 W. Robinson St., Suite S-827 Orlando, FL 32801 Donald A. Myers, Jr. Lowndes, Drosdick, et al. P.O. Box 2809 Orlando, FL 32802-2809 Linda K. Harris Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
The Issue The issues to be resolved are as follows: With regard to Count Four of the Amended Petition, whether the Petitioners have sufficiently alleged a rule challenge and more particularly whether sufficient facts have been alleged to identify the challenged rule, whether existing, proposed, or unpromulgated; and whether, through an unpromulgated rule, the Department (Respondent) has prohibited the installation of "pest control insulation" or borate containing insulation by anyone other than a card-carrying employee of a certified pest control operator or licensee. If so, it must be determined whether such action is outside the Respondent's rulemaking authority, whether it is contrary to statute, whether it disregards the exceptions proved in Section 482.211(9), Florida Statutes, and whether it violates Section 482.051, Florida Statutes. With regard to Count Five of the Amended Petition, whether the Petitioners have sufficiently alleged a rule challenge to a proposed or existing rule or have offered evidence legally sufficient to establish a rule, proposed, or existing, which the Petitioners are challenging relating to the Respondent allegedly having selectively investigated pest control operators performing 100 or more pre-construction termite treatments annually, and whether such action is an invalid exercise of delegated legislative authority. With regard to Count Six of the Amended Petition, whether the Petitioners have sufficiently alleged a rule challenge to a proposed or existing rule or have offered evidence legally sufficient to establish a rule, proposed, existing, or unpromulgated, which the Petitioners are challenging relating to the Respondent's alleged enforced application of termiticide arbitrarily and capriciously by not requiring the best available technology and not regulating according to acceptable standards in the manner in which it conducts field investigations. With regard to Count Seven of the Amended Petition, whether the Petitioners have sufficiently alleged a rule challenge based on a proposed or existing rule or have offered legally sufficient evidence to establish a rule, proposed, existing, or unpromulgated, which the Petitioners are challenging relating to the Respondent's enforcement of Chapter 482, Florida Statutes, as it relates to preventive soil treatments for new construction and its alleged failure to protect the public. With regard to Counts Two, Three, and Eight of the Amended Petition, whether the Petitioners have alleged any facts or presented any evidence to establish a proposed, existing, or unpromulgated rule substantially affecting the interests of the Petitioners. Whether either the Petitioners or the Respondent are entitled to recovery of attorney's fees and costs.
Findings Of Fact The Petitioners conceded at hearing that the Order on the Motion to Dismiss, prior to the hearing, concerning the mootness caused by the withdrawal of the above-referenced agency memos not only disposed of Count One of the Amended Petition, but had rendered moot Counts Two and Three, as well. No evidence was presented as to the those counts. Neither was any evidence or argument presented regarding Count Eight of the Amended Petition. Thus, Counts Two, Three, and Eight, as well as Count One, should be dismissed. The Petitioners, with regard to Count Four of the Amended Petition, did not allege the text of any statement or description of one which could be construed as an unpromulgated rule by the agency, which prohibited the installation of insulation containing borate by anyone other than a "card- carrying" employee of a certified pest control operator or licensee. There was no evidence to establish the existence of such an unpromulgated statement or rule of general application. Cliff Killingsworth testified that he was an officer and party representative of the Petitioners' companies in this case. "In-cide" is a cellulose fiber with borate or borate- containing materials for fire retardancy and fungal control. The manufacturer had increased the borate content in the material so that it could make claims with the Environmental Protection Agency (EPA) for the product's pest control value. Mr. Killingsworth acknowledged that it was a licensed and registered "pest control product." While Mr. Killingsworth agreed that claims to the public about the pest control value of the product should be done by a pest control operator, he felt that should not prevent him from subcontracting the installation of the insulation material to a professional insulation installer so that the material would be properly installed in a home or other building. Mr. Killingsworth met with Steve Dwinell and Joe Parker, representatives of the Respondent agency, in Jacksonville, Florida, in the summer of 1997. He provided them with a 30-to-40-page report regarding installation of the insulation with its pest control properties. He received no communication from the Respondent following this meeting and sought no written opinion from the Respondent about the use of the material before he began using it. Mr. Killingsworth invited George Owens, a field inspector for the Respondent in the Northwest Florida area, to observe the product being installed in a structure. Mr. Killingsworth testified that Mr. Owens, thereafter, sent him a letter stating that the Respondent was not going to regulate that material. Mr. Killingsworth, however, did not produce that letter or a copy of it. Mr. Owens testified that he had visited a site in Destin, Florida, at Mr. Killingsworth's invitation, where "Green Stone" insulation was being applied by being blown into a small section of a wall. He did not know that a subcontractor was making the application when he visited the site. He thought that an employee of Mr. Killingsworth was performing the installation of the material. Mr. Owens did not recall telling Mr. Killingsworth or any of his representatives that application of the product by an agent other than Mr. Killingsworth's own company would be prohibited. It was not Mr. Owens' belief that he had authority to make those decisions. He did not believe that he had authority to approve or disapprove the application of a pesticide. Mr. Killingsworth invited Mike McDaniels, another field investigator with the Respondent in the Gainesville, Florida, area to observe the installation of the product in the spring of 1998. Mr. McDaniels commented to Mr. Killingsworth that he was glad that they were doing it, but he made no report. After the Petitioners' companies had been operating for two or three months in the Gainesville area, sharing space with Green Stone Industries, the company producing the insulation, Mr. McDaniels returned. He informed Mr. Killingsworth that the Respondent agency had changed its position on the application of the product. Because it was a "labeled material," that is, labeled and promoted as a certified pest control product, for purposes of EPA regulations, it had to be installed and handled only by a pest control operator meeting the definition of an employee under Chapter 482, Florida Statutes. Mr. McDaniel was shown the insulation in question by Mr. Killingsworth and how it was installed at a job site. He never told Mr. Killingsworth whether he could use the product or not, but during a "non-adversarial inspection," he told him that he had to have "ID cardholders" (i.e., employees of a licensed pest control operator) install the insulation, since it had advertised pesticide qualities. Mr. McDaniel was shown a warehouse with two different types of insulation. One had borate advertised as a fire retardant. The other had a higher content of borate which was advertised to have pesticide qualities. Mr. McDaniel determined that employees applying the second type of product were conducting pest control by installing that product and should, therefore, have pest control operator identification cards. He explained that to Mr. Killingsworth and thought he may have written that opinion on an inspection form which he supplied to Mr. Killingsworth. He also believes he notified his supervisor, Phil Helseth. His normal practice, when a new material is reported to him or observed, is to inform his superior of the facts concerning that product. He never told Mr. Killingsworth or his representatives that they could not install the product in question. He informed them that since it was listed as a pesticide that they would have to be have employees of a licensed pest control operator to legally install the product. Mr. McDaniel did not consult with anyone at the Respondent agency about this, but rather relied on his own judgment as to agency policy and the interpretation of the statutes and rules enforced by the Respondent. He testified that he had no central direction from his superiors at the Department on the issue and was unaware what other districts or regions under the Department's regulation were doing to address this question. He simply determined that if the Petitioners' personnel were applying a product that was a registered pesticide insulation that, under his understanding of the broad statutory definition of pesticides as anything that "curbed, mitigated, destroyed, or repelled insects," then the installers would have to be employees of a registered pesticide operator. Mr. Dwinell testified as the bureau chief for the Bureau of Entomology and Pest Control. He met with Mr. Killingsworth along with Mr. Parker, another employee of the bureau. Mr. Killingsworth made a presentation regarding the product in dispute, the borate-impregnated cellulose insulation. He determined that the product was a pesticide because it was advertised as a registered pesticide and performed pesticide functions, in addition to its insulation function. He did not recall that the precise issue of subcontracting with a non- licensed pest control operator or insulation installer was a topic of their conversation. Following that meeting, he may have discussed the question with Mr. Helseth, in a general way, but does not recall discussing it with any other person. He recalls some discussion concerning the Gainesville office of the Killingsworth companies and whether Mr. Killingsworth, or that office of his company, was licensed as a certified operator. He believes he recalls that a cease and desist letter informing the Killingsworth companies of the need to have the application of the product performed by someone licensed to do pest control may have been sent, although he is not certain. Mr. Dwinell established that the Respondent agency had never published anything regarding pest control insulation. He noted that a pesticide was a pesticide under the statutory definition, whether a corn bait, insulation, or mixed in a jug. The same laws applied to it and under Chapter 482, Florida Statutes, a pesticide must be applied by a licensed applicator. Mr. Killingsworth insisted that the insulation product, though a registered pesticide, was exempt from the provisions of Section 482.211(9), Florida Statutes, because it was a derivative wood product. He agreed that the product in question was a wood by-product and not wood. If a product did not meet the statutory definition of being exempt, then it would be appropriate for the Respondent to issue a cease and desist directive until the Petitioners came into compliance with Chapter 482, Florida Statutes. Mr. Dwinell opined that the subject insulation product was not exempt under the provisions of Section 482.211(9), Florida Statutes. Unlike pre-treated lumber, which is exempt, the installation product at issue is a registered pesticide. Pre-treated lumber, though treated with pesticide in the manufacturing process, is not intended to be used as pesticide, nor is it a registered pesticide. The Petitioners have not stated a basis for a rule challenge pursuant to Section 120.56, Florida Statutes, as to Counts Five and Six of the Amended Petition. Although references were made to alleged "actions" by the Respondent agency, the Petitioners have not alleged with particularity, nor adduced any competent, substantial evidence of any rule provisions alleged to be invalid, nor have they shown, in an evidential way, any to be invalid. The evidence does not show that there is a rule, either proposed, existing, or as an unpromulgated agency statement of general applicability, which is actually being challenged by the Petitioners. There has not been a definitive showing by preponderant evidence that such exists concerning the product and operation at issue. The Petitioners in Count Seven of the Amended Petition have not stated any basis for a rule challenge in accordance with Section 120.56, Florida Statutes. There are numerous references to provisions of Chapter 482, Florida Statutes, but it is not alleged with any particularity which rule provisions are purported to be invalid, nor has preponderant evidence been adduced to establish any rule provisions either proposed, existing, or as unpromulgated agency statements, which have imposed a substantial effect on the Petitioners. In this regard, the Petitioners' counsel argued at the hearing: Your Honor, what we have suggested is that the rule that's being challenged is the Department's statutory obligation under the statute as it relates to their promulgated Rule 5E-14.105, and as it relates to their treatment guarantees or warranties that are required by that regulation for a treatment that just doesn't work. The Department rule requires a certain warranty and requires a renewable warranty, placing that upon the pest control operator under the guise of protecting the consumer, but the fact of the matter is, it doesn't protect the consumer, and it just endangers the pest control operator. And so I guess the actual rule is the 5E-14.105. In addition to that we have the statutory obligations of the Department, which is to provide a protection to the public health and the economic benefit of the consumer and evaluate these chemicals that they are requiring warranties for. That's the basis of the rule challenge, and admittedly, this one is a little bit nebulous, but there is a regulatory, I guess, mandate of these preconstruction soil treatments as a method, as the preferred method, and to the extent that the operators, who are the regulated entity in this case are required to--is mandated to require a warranty for a method they know doesn't work . . . . Mr. Killingsworth acknowledged in his testimony that he was not contending that there should not be a warranty requirement for treatments of subterranean termites, as stated in the above-cited Rule 5E-14.105, Florida Administrative Code. He also acknowledged that he was not contending that the Respondent should require warranties from pest control companies for every kind of pest control performed. He thought there were a lot of factors not within a pest control operator's control affecting particular wood fungi, but what was in the pest operator's control was the opportunity to do a preventive treatment for more than just subterranean termites and they, in his view, should not be prevented from doing so. When asked what preventive treatment he had been prevented from doing by the Respondent, his reply was: The effect of memos and other actions prevented us from doing our choice of preventative treatment, the borate application, through the effects of raising questions in building officials' eyes, through the effects of increasing the economic impact to us to get it done. Builders will not pay enough to do both soil treatment and bait and borate. The memoranda referred to as preventing Mr. Killingsworth from doing his choice of preventive treatment were not actually identified in the record, however. Mr. Dwinell testified that the EPA guidelines require an efficacy standard for soil treatments which states: "Data derived from such testing should provide complete resistance to termite attack for a period of five years." The EPA also provides guidelines for preventive treatment/wood impregnation: "When acceptable data derived from testing for at least two years, or less than five years, shows complete resistance to termite attack, the product may be registered." The efficacy standard for borate, thus, was not five years, but two years. Mr. Dwinell had concerns about the type of data that had been relied upon by the EPA for registration and how that data related to the situation in Florida. That was the basis for the negotiated rulemaking process that the Respondent was engaged in at the time of the hearing in this case. The purpose of the negotiated rulemaking process was to comply with the statute that required a rule, but ultimately the purpose was to have a mechanism in the State of Florida where the product was registered for use under construction and a reliable set of data that could show whether the product would actually protect against termites when applied. The ultimate goal of the statute at issue is to protect the consumer, which is the Respondent's statutory duty. Borate pesticides are registered for use, with label directions for use during construction. They are one of three categories of materials for use in construction, including soil- applied pesticide materials, baiting products, and wood treatments, the last being the borates. There are no directives issued by the Respondent that specifically preclude the use of either borate as a stand-alone treatment or a baiting system as a stand-alone treatment. The Respondent does not require soil treatments only. Mr. Dwinell has never told any licensee that he could not use borate products if he were licensed.
The Issue The issue is whether Petitioner is eligible to continue participating in the Drycleaning Solvent Cleanup Program.
Findings Of Fact Petitioner, Sunset Square General Partnership, is the owner of Sunset Square Shopping Center located in Clearwater, Florida, and in which Tux Cleaners, Department of Environmental Protection Identification No. 529501419, was a tenant conducting a drycleaning business. At all times relevant hereto, the Sunset Square Shopping Center was managed by the Stuart S. Golding Company on behalf of Sunset Square General Partnership. At all times relevant to this proceeding, Tux Cleaners was owned and operated by Angelo Guarnieri. In June 1996, Petitioner submitted an application to participate in the Drycleaning Solvent Cleanup Program (Program/ Drycleaning Solvent Cleanup Program). The application was signed by a representative of Petitioner and by Guarnieri. David Scher, an employee of the Stuart S. Golding Company, was listed on the application as the contact person for Petitioner. All applications to the Drycleaning Solvent Cleanup Program are joint applications that include the real property owner, the operator of the drycleaning facility, and the owner of the drycleaning facility. Thus, in this instance, the applicant was Petitioner, the owner of the real property on which the drycleaning facility was located, and Guarnieri, the owner and operator of the facility. Petitioner was listed as the "designated applicant" on the aforementioned application filed with the Department. The "designated applicant" served to advise and provide the Department with a single point of contact. Upon review of Petitioner's application, the Department determined that Petitioner met the prescribed eligibility requirements for participation in the Drycleaning Solvent Cleanup Program. Thereafter, by letter dated September 27, 1996, the Department notified Petitioner that its site, Tux Cleaners, was eligible for participation in the Drycleaning Solvent Cleanup Program. The letter advised Petitioner that its "participation in the Program is contingent upon continual compliance with the conditions of eligibility set forth in Section 376.3078(3), F.S." At the time Petitioner's letter of eligibility was issued, Section 376.3078(7), Florida Statutes (1995), required that owners and operators of drycleaning facilities install secondary containment by January 1, 1997. This statute was enacted in 1995, the year before Petitioner was determined eligible for participation in the Drycleaning Solvent Cleanup Program. To maintain its eligibility in the Drycleaning Solvent Cleanup Program, Petitioner was required to install secondary containment at Tux Cleaners by January 1, 1997. As of January 1, 1997, secondary containment had not been installed at Tux Cleaners. Consequently, on January 2, 1997, Petitioner and Tux Cleaners were no longer in compliance with the eligibility requirements for participation in the Drycleaning Solvent Cleanup Program. On January 21, 1998, Margaret Hennis, a Pinellas County environmental inspector, conducted an inspection of Tux Cleaners as part of a Title V compliance inspection. During the inspection, Hennis discovered that Tux Cleaners did not have the required secondary containment and advised Guarnieri that secondary containment needed to be installed. Guarnieri then informed Hennis that the equipment had been ordered in late 1997. Guarnieri initially ordered secondary containment for Tux Cleaners in June 1997 but cancelled the order because he thought the business had been sold. When the business was not sold, Guarnieri reordered the secondary containment in late 1997, almost one year after it should have been installed. There is no evidence that the secondary containment was ever delivered to Tux Cleaners; and it clearly was never installed at Tux Cleaners. Prior to becoming eligible for the Drycleaning Solvent Cleanup Program, Petitioner hired an environmental consultant, who subsequently advised Petitioner to apply for participation in the Program. After the application of Petitioner and Tux Cleaners was approved, Petitioner believed that the environmental consultant would monitor the drycleaning facility to ensure that the site was in continual compliance with Program eligibility requirements. Although Petitioner and Guarnieri submitted a joint application to the Department, they never discussed the need to install secondary containment at Tux Cleaners. It was only after receiving the February 26, 1998, letter described below that Petitioner had actual knowledge of the secondary containment requirement. Accordingly, Petitioner never asked Guarnieri whether the secondary containment had been installed or directed Guarnieri to install the required secondary containment. Furthermore, Guarnieri never discussed with Petitioner the January 1997 inspection of Tux Cleaners, Hennis' notification that secondary containment needed to be installed, or any matters relative to Guarnieri's ordering and reordering of the secondary containment. By letter dated February 26, 1998 (notice of cancellation), the Department notified Petitioner of its intent to cancel Petitioner's eligibility for participation in the Drycleaning Solvent Cleanup Program and of the reason for the cancellation. According to the notice of cancellation, the reason for the cancellation was that Tux Cleaners had "fail[ed] to continuously comply with the conditions of eligibility set forth in s. 376.3078(3), F.S." The February 26, 1998, letter stated, in pertinent part, the following: The Department has determined that the referenced site is no longer eligible to participate in the Drycleaning Solvent Cleanup Program for the following reason: Pursuant to s. 376.3078(7)(a), Florida Statutes (F.S.), owners or operators of drycleaning facilities shall by January 1, 1997, install dikes or other containment structures around each machine or item of equipment in which drycleaning solvents are used and around any area in which solvents or waste- containing solvents are stored. As of January 21, 1998, secondary containment had not been installed at the referenced facility. Failure to meet this requirement constitutes gross negligence (s. 376.3078(7)(d), F.S.). Also, failure to meet this requirement constitutes a failure to continuously comply with the conditions of eligibility set forth in s. 376.3078(3). Pursuant to s. 376.3078(3)(n)1., F.S., the Department shall have the authority to cancel the eligibility of any drycleaning facility or wholesale supply facility that fails to continuously comply with the conditions of eligibility set forth in s. 376.3078(3), F.S. Persons whose substantial interests are affected by this Order of Eligibility Cancellation have a right, pursuant to Sections 120.569 and 120.57, F.S., to petition for an administrative determination (hearing). The Petition must conform to the requirements of Chapters 62-103 and 28-5, F.A.C., and must be filed (received) with the Department's Office of General Counsel, 3900 Commonwealth Boulevard, Tallahassee, Florida 32399-3000, within forty-five (45) calendar days of receipt of this Notice. Failure to file a petition within the forty-five (45) calendar days constitutes a waiver or any right such persons have to an administrative determination (hearing) pursuant to Sections 120.569 and 120.57, F.S. * * * If a petition is filed, the administrative hearing process is designed to formulate agency action. Accordingly, the Department's final action may be different from the position taken by it in this Notice. * * * This Order of Eligibility Cancellation is final and effective forty-five (45) calendar days after the date of receipt of this Order unless the attached site access form is signed and returned to the Department or unless a petition is filed in accordance with the preceding paragraph. Upon the timely filing of such petition, this Order will not be effective until further order of the Department. Please be advised that mediation of administrative disputes arising from or relating to this Order of Eligibility Cancellation is not available [s.] 120.573, F.S.; when requested the Department will continue to meet and discuss disputed issues with parties adversely affected by this order. The February 26, 1998, notice of cancellation contained a typographical error in that it referenced an "attached site access form." That reference was as follows: "This Order of eligibility cancellation is final and effective forty-five (45) calendar days after the date of receipt of this Order unless the site access form is signed and returned to the Department or unless a petition is filed in accordance with the preceding paragraph." The reference in the notice of cancellation to the site access form was irrelevant to the notice and improperly and inadvertently included in the notice. That reference should have been omitted from the notice of cancellation and the sentence which mistakenly referred to the site access form should have stated: This Order of Eligibility Cancellation is final and effective forty-five (45) calendar days after receipt of this Order unless a petition is filed in accordance with the preceding paragraph. The February 26, 1998, notice of cancellation complies with the requirements of Section 376.3078(3)(n)2., Florida Statutes, notwithstanding the aforementioned typographical error contained therein. Consistent with the statutory requirements, the letter gives written notice to the applicant of the Department's intent to cancel Petitioner's program eligibility and also states the reason for the cancellation. Section 376.3078(3)(n)2., Florida Statutes, provides that the "applicant shall have 45 days to resolve the reason for the cancellation to the satisfaction of the Department." Typically, the Department's cancellation notices do not state that applicants or participants have 45 days to resolve the reason or reasons for cancellation of their eligibility. Nevertheless, the Department affords this opportunity to adversely affected parties. To facilitate this process, the Department's cancellation notices advise these parties that, when requested, the Department will "continue to meet and discuss disputed issues with parties adversely affected by this Order." Petitioner availed itself of the opportunity to discuss the disputed issues with the Department. In fact, shortly after receiving the notice of cancellation, Petitioner contacted the Department officials to determine what steps it could take to remain eligible for participation in the Drycleaning Solvent Cleaning Program. Thereafter, Petitioner took immediate steps in an attempt to resolve the reasons for cancellation of its eligibility. After extensive discussions between Petitioner and Department officials, the Department concluded that the notice of cancellation had been properly issued. The Department reached this conclusion after Petitioner acknowledged that Tux Cleaners did not have secondary containment installed by the January 1, 1997, the statutorily prescribed deadline for such installation. Having determined that the secondary containment had not been installed by the January 1997 deadline, the Department concluded that the reason for the cancellation of Petitioner's eligibility could not be resolved or corrected. The Department has interpreted the 45-day language in Section 376.3078(3)(n)2., Florida Statutes, to allow Program applicants or participants the opportunity to resolve items that do not constitute gross negligence within the meaning of the statute. In an attempt to bring the facility into compliance, Petitioner insisted that Guarnieri shut down all drycleaning operations at Tux Cleaners and remove all machines and solvents from the property. By mid-March 1998, Tux Cleaners had shut down all drycleaning operations and by the end of March 1998, all drycleaning machines were removed from the facility. Moreover, in mid-March 1998, after the drycleaning operations ceased, Tux Cleaners continued only as a dry drop-off facility. Any store operating solely as a dry drop-off facility is not required to have secondary containment. Secondary containment was not installed at Tux Cleaners by January 1, 1997, the statutorily prescribed deadline, even though it operated as a drycleaning facility from January 1, 1997, until mid-March 1998. Consequently, beginning in January 1, 1997, and through March 1998, Petitioner and Tux Cleaners were not in compliance with the eligibility requirements of the Drycleaning Solvent Cleanup Program.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby: RECOMMENDED that the Department issue a final order finding that Petitioner's facility is not eligible to participate in the Drycleaning Solvent Cleanup Program. DONE AND ENTERED this 10th day of January, 2000, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 10th day of January, 2000. COPIES FURNISHED: Martha L. Nebelsiek, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Richard M. Hanchett, Esquire Trenam, Kemker, Scharf, Barkin, Frye, O'Neill & Mullis, P.A. 2700 Barnett Plaza 101 East Kennedy Boulevard Post Office Box 1102 Tampa, Florida 33601-1102 Kathy Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Teri Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
The Issue The issue for determination is whether Redd’s Cleaners, DEP Facility No. 139502588 is eligible for state-administered cleanup under the Drycleaning Solvent Cleanup Program pursuant to Section 376.3078, Florida Statutes.
Findings Of Fact Metropolitan Dade County (Petitioner) is a political subdivision of the State of Florida. Pursuant to Chapter 24, Metropolitan Dade County Code, Petitioner regulates, among other things, the use, storage, and disposal of industrial wastes and hazardous substances in Dade County. Sekoff Investments, Inc. (Intervenor) is a Florida corporation and is the owner of commercial real property located at 5821 Ponce de Leon Boulevard, Coral Gables, Florida. Intervenor is a "real property owner" as defined by Section 376.301(25), Florida Statutes (1995). Florida Department of Environmental Protection (Respondent DEP) is an agency of the State of Florida. Pursuant to Chapters 20, 376, and 403, Florida Statutes, Respondent DEP has jurisdiction, among other things, over the regulation and protection of the State's surface waters, groundwater, and other natural resources. From 1956 to December 1994, Intervenor leased its property to "drycleaning facilities," as that term is defined by Section 376.301(8), Florida Statutes (1995), which operated under the name "Redd's Cleaners" (Respondent Cleaners). Intervenor was not an owner of the drycleaning facilities, nor did it participate in their management or operation. Intervenor's property has never been served by sewers and has a septic tank. Intervenor's property is not in an area served by private drinking water wells or in a cone of influence of a County wellfield. Starting in 1988, Petitioner began inspecting drycleaning facilities and requiring them to obtain operating permits pursuant to Section 24, Metropolitan Dade County Code. On February 28, 1989, Petitioner issued Operating Permit No. IW5-3387-88 to Jen-Dan, Inc., d/b/a Respondent Cleaners. Operating Permit Nos. IW5-3387-89, IW5-3387-90, IW5-3387-91, IW5-3387-92, and IW5-3387-94 were subsequently issued for the period between April, 1989 through April, 1995. On October 14, 1993, Petitioner collected soil and groundwater samples from the septic tank and storm drain/soakage pit at Intervenor's property and discovered elevated levels of perchloroethylene, a "drycleaning solvent," as that term is defined by Section 376.301(9), Florida Statutes (1995). On March 15, 1994, Petitioner issued Respondent Cleaners and Intervenor a Notice of Violation and Orders for Corrective Action (NOV). The NOV provided that the presence of drycleaning solvents in the septic tank and storm drain/soakage pit violated Sections 24-11, 24-13, 24-14, 24-26, and 24-55, Metropolitan Dade County Code, and ordered Respondent Cleaners and Intervenor to submit a formal plan for the assessment and cleanup of the drycleaning solvent contamination. The cited provisions of the Dade County Code generally provide that it is unlawful to throw, drain, run, seep, or otherwise discharge industrial or liquid wastes into septic tanks, sewers, or waters of the County; to cause or maintain a nuisance or sanitary nuisance as defined by the Metropolitan Dade County Code; or to violate any provision or condition of an operating permit. Intervenor hired the environmental consulting firm, REP Associates, Inc., which prepared and submitted to Petitioner a Contamination Assessment Plan (CAP) dated April 21, 1994. By letter dated May 5, 1994, Petitioner approved the CAP with modifications, and required the immediate pump out and disposal of the contaminated contents of the septic tank and storm drain/soakage pit. In May and June, 1994, Intervenor began collecting soil, groundwater, and sediment samples from the septic tank and storm drain, and installed a groundwater monitoring well, as required by the CAP. The test results disclosed the presence of drycleaning solvents in the soils and groundwater at Intervenor's property. The contaminants in the septic tank and storm drain/soakage pit were a source or a likely source of soil and groundwater contamination at the facility. On May 8, 1994, Respondent DEP announced that it was suspending all enforcement actions against drycleaning facilities based on the Florida Legislature's anticipated passage of the Florida Drycleaning Solvent Contamination Cleanup Act (Drycleaning Act). On June 3, 1994, the Drycleaning Act became effective. On August 23, 1994, Petitioner mailed Intervenor and Respondent Cleaners a Final Notice Prior to Court Action stating that they were not in strict compliance with the deadlines set forth in the NOV. On September 22, 1994, Intervenor submitted to Petitioner a Report of Sampling and Analysis summarizing the results of the work performed in May and June, 1994. By letter dated September 23, 1994, Intervenor further advised Petitioner that it would be applying for participation in the Drycleaning Solvent Contamination Cleanup Program (Drycleaning Cleanup Program) as soon as Respondent DEP promulgated the necessary implementation rules. Intervenor proposed that Petitioner approve a no further action plan pending its notice of eligibility under the Drycleaning Act. By letter dated September 30, 1994, Petitioner disapproved Intervenor's no further action plan. Petitioner again notified Intervenor and Respondent Cleaners that they must immediately remove and dispose of the contents of the septic tank and storm drain. In December, 1994, Intervenor evicted Respondent Cleaners. Since that date, the former drycleaning facility has remained vacant. On July 18, 1995, Intervenor's environmental consultants removed and properly disposed of the contents of the septic tank and storm drain. 18.1 On October 3, 1995, Intervenor's consultants advanced new soil borings and installed a new groundwater monitoring well. Groundwater samples were collected on October 24, 1995. 19.2 On February 21, 1996, Intervenor submitted its Contamination Assessment Report Addendum to Petitioner, summarizing the results of the work performed in July and October, 1995, and requesting a monitoring only plan (MOP). By letter dated February 29, 1996, Petitioner disapproved Intervenor's proposed MOP. 20. In March 1996, Respondent DEP began to accept applications for the Drycleaning Cleanup Program. Intervenor submitted its application for Respondent Cleaners on March 8, 1996. 21.3 By letter dated June 11, 1996, Respondent DEP approved Intervenor's application and determined that Respondent Cleaners' drycleaning facility was eligible to participate in the Drycleaning Cleanup Program. By Petition for Formal Administrative Hearing served July 11, 1996, Petitioner appealed Respondent DEP's eligibility determination. According to Petitioner, Intervenor's failure to timely comply with Petitioner's order to assess and remediate Respondent Cleaners constitutes gross negligence in the operation of the cleaner, thereby precluding its eligibility in the Drycleaning Cleanup Program.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order finding Redd's Cleaners, DEP Facility No. 139502588 eligible to participate in the Drycleaning Solvent Contamination Cleanup Program.DONE AND ENTERED this 14th day of May, 1997, in Tallahassee, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 1997.
The Issue The issue in this case is whether the Notice of Violation (NOV) and Orders for Corrective Action (OCA) filed by the Department of Environmental Protection (DEP) against Respondents, Thomas Kerper (Kerper) and All Salvaged Auto Parts, Inc. (ASAP) , in DEP OGC File No. 02-0447 should be sustained.
Findings Of Fact 1. The real property located at 3141 Sharpe Road, Apopka, Florida, is owned by the heirs of Donald Joynt, who owned it for the 30 years prior to his death in 2002. The property consists of approximately 40 acres in the shape of a right triangle with the west side bordered by Sharpe Road, the south side by a potting soil business, and the northeast side (the hypotenuse of the right triangle) bordered by a railroad track. Prior to his death, Joynt used the property primarily for the purpose of operating a junkyard and recycling business ultimately entitled Don's Auto Recycling. 2. At some time before 2000, Joynt became desirous of selling his property. He offered it to a neighbor named José Luis Benitez for $600,000. Benitez counter-offered for between $350,000 and $400,000 because he thought it would cost $200,000 to $250,000 to clean the property up. Joynt rejected the counter-offer, and asked Benitez to help him find a buyer who would pay more than Benitez. At some point, Joynt listed the property with a real estate broker for $600,000. 3. In 1999, Kerper was operating an automobile parts salvage business at a location near Joynt's property. Kerper needed a new location to move his business and inventory. A real estate broker showed him Joynt's property. The broker told Kerper that the seller's broker said the property was clean and had no environmental problems. The broker also told Kerper that Orange County had recently purchased an easement for $300,000 to run a drainage ditch through the property to a local lake, which was true. While this gave Kerper some level of assurance, the broker advised Kerper to have an environmental assessment done before going forward with the sale. 4. After being shown the property by the broker, Kerper spoke with Joynt directly. It was agreed that they could save the real estate commission and split the savings by waiting until the listing expired. Joynt personally assured Kerper that there were no environmental issues, as evidenced by Orange County's purchase of the easement for a drainage ditch. In late March of 2000, after expiration of the real estate commission, Kerper and Joynt entered into an informal agreement allegedly written on a scrap of paper, which was not placed in evidence. Kerper testified that the agreement was for him to buy the property for $500,000, with $100,000 down, and the balance payable over time at seven percent interest. He also testified that the required $100,000 down payment would be payable in installments, with $25,000 payable whenever Joynt cleaned 25 percent of the site to make it usable by Kerper for his business operations. 5. When it came time for Kerper to move onto Joynt's property, Kerper discovered that Joynt had not done any clean-up or removed any of his property from the site. Used cars, car parts, and tires that belonged to Joynt remained throughout the site. According to Kerper, it was agreed that Kerper would help Joynt clean off the western half of the property, which was split approximately in half by a stream, while Joynt worked on cleaning off the eastern half of the property.” 6. Starting from the gate at Sharpe Road, Kerper began removing junk from the western side to the eastern side of the site for Joynt to remove from the property. Pieces of equipment and used car parts that had been left there by Joynt were removed from this section of the property. When enough space was cleared off, Kerper began setting up his auto salvage operations on the western side. He used a bulldozer to level the driveways and spread powdered concrete where the ground was soft. He also used the bulldozer to level an area near the scale house, which was on the western side of the property, but continued to be used by Joynt for Don's Auto Recycling business. In doing this work, his workers encountered steel reinforcement bars, which Kerper had them cut with a torch. Some tires and battery casings also were visible in the ground. Kerper had several truckloads of fill dumped in the area and installed a concrete pad for storing and dismantling automobiles. 7. In September or October of 2000, Kerper was evicted from his prior business location, and he had to move to Joynt's property regardless of its condition. As he increased business operations on the cleared spaces, Kerper continued to clear more space on the western side of the property. Another concrete pad was installed farther to the north. Eventually, Kerper was operating ASAP on approximately ten acres on the western side of the 40-acre site. 8. As Kerper continued to move north, his heavy equipment began encountering assorted kinds of buried material. When a buried propane tank exploded, Kerper stopped working his heavy equipment in the area and confronted Joynt. Joynt denied any knowledge of buried tanks and stated they must have been placed there by someone else. Joynt told Kerper he would let Kerper move his operations to the east side of the property when Joynt finished cleaning it up, and then Joynt would finish clearing the western side for Kerper. Kerper agreed, and continued making payments on the required down payment. According to Kerper, he eventually paid $90,000 of the down payment. 9. By August of 2001, Kerper began to have serious misgivings about Joynt's promises and the condition of the site, and he decided to seek advice. Kerper hired David Beerbower, vice-president of Universal Engineering, to perform an assessment of the northern portion of his side of the site (in the vicinity where the exploding tanks were encountered). During his assessment on August 20, 2001, Beerbower observed various automotive parts including numerous crushed fuel tanks, antifreeze containers, and motor oil containers being excavated from the upper three feet of soil. It was determined by Beerbower, and stated in his written report to Kerper, dated September 21, 2001, that these parts appeared to have been buried there several years ago. This determination, which DEP does not dispute, was based on the high level of compaction of the soil found around these items that could be attributed to either the passing of a significant amount of time or a bulldozer passing over the items. Since the excavations Beerbower observed were in a separate location from where Kerper had already bulldozed, the soil compaction around these items could not be attributed to Kerper's bulldozing. It was stated in Beerbower's letter that the “amount of buried automotive debris qualifies this area essentially as an illicit landfill." ad 10. Mark Naughton from the Risk Management Division of the Orange County Environmental Protection Division (OCEPD), which runs the petroleum storage tank and cleanup program for Orange County under contract with DEP, was also present during the time Beerbower conducted his assessment. Naughton agreed with Beerbower's assessment that Kerper is not liable for the assessment or remediation of this area. Naughton also advised Kerper to move ASAP off Naughton's property and to seek legal advice from attorney Anna Long, who used to be the Manager of OCEPD. 11. Meanwhile, according to Kerper, Joynt changed his position and began to maintain that it was Kerper's responsibility to clean up the western side of the property. Given the newly-discovered environmental condition of the property, Kerper did not feel it was in his best interest to purchase the property "as is," and contacted Long to help him negotiate to extricate himself from his arrangement with Joynt. While negotiations proceeded, Kerper began to scale down ASAP's operations in anticipation of relocating. Kerper began fixing up more whole automobiles for resale, and had a car crusher used in connection with ASAP's business begin crushing more cars for removal from the site for recycling. 12. Eventually, Long had Beerbower conduct another assessment of portions of Joynt's property to try to establish responsibility for contamination as between Kerper and Joynt. On 10 February 13, 2001, Beerbower took a surface water sample froma "drain pipe under the north driveway," a soil sample "where the car crusher was," and another soil sample from "the sandblasting area." The evidence was not clear as to the exact location of these samples, particularly the soil samples, as described in Beerbower's written report to Long dated March 11, 2002. But it appears that the "car crusher" refers to the location of Respondents' car crusher operation in the northern part of the site, just across the northern driveway; it appears that the sandblasting area refers to a location used by Joynt on the eastern side of the property, but located just east of the trailers used by Kerper for his offices. These samples were analyzed and found not to contain volatile organic compounds (VOC) or total recoverable petroleum hydrocarbons (TRPH) in excess of Florida's cleanup target levels. 13. Kerper continued to operate his junkyard until the beginning of March of 2002. On March 5, 2002, Long filed a citizen's complaint with OCEPD on Kerper's behalf. While acknowledging that Kerper was operating on the site at the same time as Joynt in recent years, the complaint alleged Kerper's discovery that Joynt had been burying waste batteries, tires, and gasoline tanks on the property and covering the burial sites with broken concrete pieces. The complaint alleged that Kerper had been moving his personal property off of the site since August of 2001, when he backed out of his "lease to purchase" agreement 11 with Joynt, and would be "completely off the property by 3/10/02." 414. It is not clear exactly when Kerper and ASAP were completely off the property. The testimony and evidence on the point is inconsistent. Kerper, after some confusion, placed the date at March 9, 2002. His wife said it was March 2, 2002. An attorney representing Kerper and ASAP in an eviction proceeding filed by Joynt and his wife, filed a notice "that as of the evening of March 15, 2002, [ASAP had] vacated the property." In any event, the evidence seemed clear that Kerper and ASAP did not go on Joynt's property on or after March 15, 2002. 15. On March 15, 2002, DEP representatives inspected Joynt's property in response to Long's complaint. Kerper remained outside the front gate of the property and did not participate in the inspection. This inspection covered the entire property including the section that had been occupied by Kerper and ASAP. 16. doynt told the DEP inspectors that Respondents were responsible for a 55-gallon drum found tipped over on its side on the western half of the site and leaking a substance that appeared to be used oil from a hole in the side of the drum. DEP's inspectors righted the drum, which still was partly full of its contents. There also were several other unlabeled 55-gallon drums and 5-gallon containers "of unknown fluids"; a burn pile containing burned oil filters, battery casings, and electrical 12 wiring; other broken battery casings; and an area of dark-stained soil which appeared to be soaked with used oil. Joynt accepted responsibility for other contamination on the site, but told DEP that Kerper and ASAP were responsible for these items. Kerper denied the allegations. 17. As to the leaking oil drum, Kerper first contended that DEP did not prove that the overturned drum contained used oil. But the evidence was clear that DEP's inspectors were ina position to determine that the liquid was oily. Respondents also contended that the drum would have been empty, not still partly full, if Kerper or ASAP had left it on its side at the site when they vacated the property several days earlier. Kerper alleged that Joynt could have put the hole in the drum and turned it over shortly before the arrival of DEP's inspectors. But, as stated, it was not clear when Kerper and ASAP vacated the site, and it was not clear from the evidence that Respondents were not responsible. 18. Similarly, the other unlabeled drums and containers were in a part of the site occupied and used by Respondents. Despite Kerper's denials, it is not clear from the evidence that they belonged to Joynt or that they were placed where DEP found them after Respondents vacated the site. Testimony that Respondents had containers properly labeled "used oil," "antifreeze," and "gasoline" inside one of the trailers on the site did not negate the existence of unlabeled drums and 13 containers on the site. However, there was no proof whatsoever as to what the closed drums and containers held. But some were open, and DEP's inspectors could see that these held an oily substance (possibly hydraulic fluid), mixed with other substances. 19. As to the dark-stained soil, none of it was tested, and Respondents contended that it was just naturally darker in color or possibly wet from water or some other liquid, DEP's witness conceded could explain the color variation. (Natural reasons such as different soil or rainwater probably do not explain the color variations in the site.) Joynt told DEP's inspectors that the discoloration seen by them on March 15, 2002, was froma hydraulic hose on a piece of heavy equipment that burst earlier. The evidence was not clear who Joynt was saying owned and operated the equipment. But Respondents also blamed Joynt's employees for repeatedly blowing hoses on aged heavy equipment all over the site. It is found that the dark-stained soil probably was the result of one or more releases of hydraulic fluid or motor oil. However, the testimony and evidence was not clear that all of the releases were Joynt's doing and that Respondents bear no responsibility at all for the releases observed on March 15, 2002, in the areas where Respondents were operating. 20. Respondents were able only to produce documentation of proper disposal of 232 gallons of oily water through IPC/Magnum, 14 dated February 13, 2002, and 29 batteries through Battery World, dated March 8 and 14, 2002. 21. The testimony of Kerper and others was that Respondents generally removed gasoline from automobiles and placed it ina marked container for reuse within a day or two by Respondents and their employees. The testimony was that used oil and antifreeze generally also were removed from automobiles and placed in marked containers until proper disposition. The testimony was that batteries were removed from automobiles and that most were given to one of the employees to sell for a dollar apiece. There was no documentation to support this testimony. 22. There was testimony that, when Respondents had cars crushed, E & H Car Crushing Co., Inc., managed the collection and proper disposition of gasoline, used oil, and batteries. But the documentation placed in evidence contained no description of the wastes removed, but only provided a weight calculation of the materials removed from Respondents’ facility. 23. There was testimony that Gabriel Lynch, who was properly licensed, removed freon from automobiles at Respondents’ facility every two to three days, or upon request. Respondents would trade the freon Lynch recovered and used in his business, Gabe's Auto Tech, for repair work on Respondents' vehicles. However, no documentation of these transactions was produced. (Lynch testified that he did not know it was required that he provide documentation to Respondents.) 15 24. Runoff from where Respondents were operating on Joynt's property entered the stream running north-south through the center of the property. Neither Joynt nor Respondents had a stormwater permit or an exemption from stormwater permitting. 25. Kerper argued that his duties were limited to managerial responsibilities for ASAP, and that he was not at any time responsible for ASAP's day-to-day operations and did not conduct any activities that may or could have resulted in hazardous waste or petroleum discharge violations so as to be liable as an "operator." But the evidence was clear that Kerper was involved in ASAP's day-to-day operations. 26. While the evidence did not totally absolve Respondents from the allegations in the NOV, several people testified on Respondents' behalf as to their practice of properly disposing of hazardous materials generated by his business. For example, Rafael Rivera, a former employee, testified that Kerper would get mad at him if any gas or oil was spilled and left on the ground or was not disposed of properly. Meanwhile, it appeared that environmental problems at Joynt's site existed for years before the arrival of Respondents. Mrs. Sandra Lovejoy, a neighboring property owner for the past 30 years, testified that she had experienced problems with her water quality, such as a foul smell or funny taste, for many years before Respondents moved onto Joynt's property. An inspection was conducted by OCEPD in September of 2000, in response to Lovejoy's complaint regarding 16 fuel odor and a drinking well which was no longer in service. In part, OCEPD's written report on the complaint found "[m]any spots of surficial petroleum contamination . . . from gasoline, motor oil and other petroleum products leaking or spilled from the junk vehicles" at Don's Auto Recycling and included a recommendation "referring this site to the FDEP task force that has been put together to inspect and deal with junk yard facilities," although "[n]o Petroleum Cleanup issues were found at [that] time." For reasons not explained by the evidence, it does not appear that Don's Recycling was referred to any task force, or that OCEPD followed up on the reported contamination. 27. Respondents contend that this entire proceeding against them was part of a vendetta against Kerper for going to the local television station to expose the condition of the site, the failure of OCEPD and DEP to follow up on the September 2000, report and recommendation, and Orange County's purchase of a north-south drainage easement through the western portion of the property in 2000. The evidence did not prove this contention. However, it is clear that Joynt was responsible for the condition of most of the 40-acre site, not Respondents, and that Joynt shared responsibility with Respondents for the conditions alleged in the NOV. 28. While this case has been pending, Joynt's heirs have cooperated with DEP in cleaning up the site, and DEP acknowledged in its PRO that several items in the OCA--specifically, those 17 relating to Counts II, III, and VII of the NOV--are moot and unnecessary in light of Respondents' eviction from the property and subsequent cleanup operations by Joynt's heirs. It also is suggested that the corrective actions requested in DEP's PRO to address Counts IV, V, and VI of the NOV--relating to failure to document proper disposal of wastes--are unnecessary. It seems clear that, to the extent such disposals occurred, any available documentation would have been placed in evidence during the final hearing. Ordering that they be produced within 30 days of the Final Order, as suggested in DEP's PRO, would be a futile act. 29. Count VIII of the NOV alleged costs "of not less than $500. In its PRO, DEP requested recovery of $1,367.31 of costs. Some of these costs--$867.31--were itemized in the PRO. The balance appears to relate to the $500 alleged in the NOV. There was no evidence introduced at the final hearing as to any of these alleged costs, and the costs itemized in the PRO seem to represent travel costs of counsel for DEP.
Conclusions David J. Tarbert, Esquire Jason Sherman, Esquire Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Albert E. Ford II, Esquire Webb, Wells & Williams, P.A. 994 Lake Destiny Road Suite 102 Altamonte Springs, Florida 32714
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order providing: 1. Under Count I of the NOV, Respondents shall be jointly and severally liable, along with Donald Joynt and Don's Auto Recycling, for cleaning up the releases of used oil evidenced by the discolored soils photographed by DEP's inspectors on 24 March 15, 2002 (DEP Exhibit 20, photographs 5 and 7 on page 2 of the exhibit). As such, they shall be responsible, along with Donald Joynt and Don's Auto Recycling, for implementation of DEP's Initial Site Screening Plan to assess and remove all contaminated soils resulting from those releases. If the results of the Initial Site Screening indicate that further assessment and/or remediation of the contamination is required, Respondents shall also participate, along with Donald Joynt and Don's Auto Recycling, in completing the required work, consistent with the "Corrective Actions for Contaminated Site Cases" (DEP Exhibit 16). 2. Counts II through VIII of the NOV are dismissed. 3. Respondents' Motion for Attorney's Fees and Costs is denied. DONE AND ENTERED this 19th day of December, 2003, in Tallahassee, Leon County, Florida. Vane ya J. LAWRENCE JOHNSTON 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 19th day of December, 2003. 25
Findings Of Fact At all times pertinent to the charges, respondents have been licensed real estate salesmen and brokers. Respondent Ed Wasdin holds real estate salesman's license number 0341534. Respondent Betty L. Green 2/ held real estate salesman's license number 0341467 at the time of the alleged misconduct. She now is a licensed broker. Respondent Ester L. Turner holds broker's license number 0090375. At the time of the alleged misconduct, she was the qualifying broker for Ed Wasdin Realty, Inc., a registered corporate real estate broker. (Pretrial Stipulation; Testimony of Vann.) During the time in question, Mr. Wasdin also owned and operated Ed Wasdin and Son, Inc., a licensed construction company, where Ms. Green served as his full-time secretary and office manager. She worked as a real estate salesman for Ed Wasdin Realty, Inc., on a part-time basis. (Testimony of Vann; Pretrial Stipulation.) II. On November 11, 1980, Hank V. Mannheimer and his wife, Barbara, saw an Ed Wasdin Realty, Inc., "For Sale" sign in front of a house located at 721 West Crossway Road, Tallahassee, Florida. They called the telephone number listed on the "For Sale" sign and made an appointment for respondent Wasdin to show them the house. (Testimony of H. Mannheimer, B. Mannheimer.) Later that day, Mr. Wasdin took the Mannheimers on a tour of the house. They then returned to Mr. Wasdin's office where respondent Green, as his secretary, prepared a standard real estate contract on a form published by the Florida Association of Realtors. The Mannheimers signed the contract as purchasers, and Ed Wasdin signed on behalf of Ed Wasdin and Son, Inc., the seller. The Mannheimers also delivered a $1,000 earnest money deposit check made payable to the seller, Ed Wasdin and Son, Inc. (Testimony of H. Mannheimer, B. Mannheimer; P-10, R-5.) III. The real estate sales contract contained a "Termite Clause" granting the buyers the right to have the property inspected "to determine whether there is any active termite or wood destroying organisms in any improvement on said property, or any damage from prior termite or wood destroying organism to said improvements". (P-10.) During the morning of January 15, 1981, respondent Green, on behalf of the seller, Ed Wasdin and Son, Inc., telephoned Helms Exterminating, Inc., and ordered a termite inspection of the house. David Baker, a termite inspection, was sent to the house to conduct the inspection that same morning. (Testimony of Vann, Baker.) On inspecting the house, Mr. Baker found termite infestation and termite damage to the left front corner of the house. He then telephoned Ms. Green and told her that he had seen evidence of termites. He did not, however, tell her of any termite damage. She told him that she needed a "clear" termite report by that afternoon (since closing was scheduled for that afternoon or the next day) and authorized him to treat the house for termites. She did not speak to respondent Wasdin before authorizing the treatment. (Testimony of Vann.) Mr. Baker testified that he told Ms. Green of termite damage to the house and that she promised to repair the damage in order to get him to issue a "clear" termite report that day. Ms. Green denied that Mr. Baker told of the damage and denied that she promised to make repairs. The testimony of Ms. Green is more credible and worthy of belief than that of Mr. Baker, whose previous statements about this incident have been incomplete, 3/ untrue or contradictory. In his termite inspection report of January 15, 1981, Mr. Baker indicated that no active termite infestation or visible termite damage was observed--the first statement was, at best, incomplete, the second was false. After discovering the termite damage, Mrs. Mannheimer questioned him twice. The first time, he told her that he had only found ter-mites on January 15, 1981, and mentioned nothing of termite damage. Later, when questioned again, he stated that he had also found termite damage. Further, Ms. Green was not authorized to promise structural repairs to a residence, and it is unlikely that she would have made such a promise when she did not know the extent of the damage and had no way of knowing the cost of repair. The conflict in testimony is therefore resolved in Ms. Green's favor. (Testimony of Vann, Baker.) On January 15, 1981 after treating the residence for termites, Mr. Baker issued a termite inspection report indicating that he had observed no active termite infestation or visible damage. The report, on its face, indicated that it was to be mailed to Ed Wasdin Realty at 4432 Kensington Road, Tallahassee, Florida. The Mannheimers did not see the report until after the closing. (Testimony of Baker, Green; P-7.) IV. In negotiating for and purchasing the house from Ed Wasdin and Son, Inc., the Mannheimers believed, and had reasonable grounds to believe, that they were dealing with realtors associated with Ed Wasdin Realty, Inc. The house was advertised by an Ed Wasdin Realty, Inc., "For Sale" sign; they called the number listed on the sign, and Mr. Wasdin showed them the property; a contract identified with the Florida Association of Realtors was executed which contained an Employment of [Real Estate] Agent clause; 4/ both Ms. Green and Mr. Wasdin worked for both companies; and the offices of the Wasdin realty and construction companies were located in the same model home. Although the offices in the model home were separately marked as construction or realty company offices, the conference room (where the closing took place) was not marked as belonging to either. In actuality, the sale of the residence was not a transaction on the account of Ed Wasdin Realty, Inc. The house was not listed with the realty company; a commission was not promised or paid to the realty company; and the deposit was not placed in the realty company escrow account. (Testimony of Vann, H. Mannheimer, B. Mannheimer.) No evidence was presented to show that respondent Wasdin knew, or should have known, that the house in question had a termite infestation or termite damage. There is not a sufficient factual basis to impute such knowledge to him. Neither was any evidence presented to show that respondent Turner, qualifying broker for Ed Wasdin Realty, Inc., knew, or should have known, about the real estate transaction in question, including the termite infestation and damage. The evidence is insufficient to support a factual inference that Ms. Turner was negligent or derelict in her duty to supervise the realty company's operations. Although, in this case, a realty company's sign was used to advertise a property which was not listed with the company, the evidence does not show that this had ever happened before, that this was anything but an isolated mistake. The evidence is insufficient to support a finding that either Mr. Wasdin or Ms. Green saw the termite inspection report prior to closing, or affirmatively represented to the Mannheimers that no termites had been discovered during the January 15, 1981, termite inspection. 5/
Recommendation Based on the foregoing, it is RECOMMENDED: That the administrative complaint against the respondents be dismissed. DONE and RECOMMENDED this 15th day of October, 1982, in Tallahassee, Leon County, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of October, 1982.
The Issue Whether Respondent is in violation of various provisions of Chapter 403, Florida Statutes, as alleged in the Notice of Violation and Orders for Corrective Action dated October 30, 1991.
Findings Of Fact BEI's composting facility is a potential source of water and air pollution and to operate the facility, BEI requires a permit issued by DER. The original permit issued to DER for this facility expired on June 1, 1991 and has not been renewed. Although its permit had expired, BEI was allowed to continue to operate while informal proceedings were ongoing between BEI and DER. When these informal proceedings were terminated by DER on May 20, 1992, further operation of this composting facility was in violation of Chapter 403.707(1), Florida Statutes, and Rule 17-709.400(1), Florida Administrative Code. On at least two occasions while this composting facility was in operation, the air around the facility was polluted by foul odors. During the period following the expiration of BEI's license, BEI failed to submit monthly operating reports and did not conduct quarterly samplings and testing of the compost and submit the testing to DER as required.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Secretary of the DER enter a Final Order finding that BEI has violated Section 403.161(1)(b), Florida Statutes, on each of five counts; and that BEI should immediately cease operation of its solid waste facility, volume reduction plant, until and unless it obtains an appropriate and valid permit from DER and in that regard, BEI shall: Immediately cease acceptance of all materials on the property. In the event that Respondent does not receive a permit from the Department to resume operations at the facility, within 90 days of the effective date of the Final Order, Respondent shall remove all solid waste from the property to an approved solid waste management facility and provide the Department written documentation of its disposal within 30 days of removal. In the event that Respondent does receive a permit from the Department to resume operation at the facility, Respondent shall remain in strict compliance with all terms and conditions of such permit. Within 30 days of the effective date of the Final Order, Respondent shall, if it has not already done so, provide the following to the Department: All records of testing and monitoring conducted on the compost material since January 1, 1990, including daily reports on the temperature and moisture content of compost material, and any testing of compost material conducted prior to distribution. All records documenting application rates of stillage, manure, and leachate to the compost withdrows since January 1, 1990. All records, documenting distribution of composted or mulch material, including amount of compost or mulch material delivered, date of delivery, specific destination of compost or mulch, and intended use of compost or mulch material delivered, since January 1, 1990. All records documenting amount of yard trash received at the facility since January 1, 1990. Within 30 days of execution of the Final Order, Respondent shall make payment to the Department for costs and expenses in the amount of $500.00. Payment shall be made by, cashier's check or money order to the "State of Florida Department of Environmental Regulation". Payment, specifying Office of General Counsel Case No. 91-2006, shall be sent by certified mail to Administrator, Division of Waste Management, Department of Environmental Regulation, 3804 Coconut Palm Drive, Tampa, Florida 33619. DONE AND ENTERED this 16th day of June, 1993, in Tallahassee, Florida. K. N. AYERS 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 16th day of June, 1993. COPIES FURNISHED: Tracey S. Hartman, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Howard C. Batt, Esquire 611 Druid Road East Suite 712 Clearwater, Florida 34616 Virginia B. Wetherell, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Ken Plante, Esquire General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times material to this proceeding, Petitioner Richard W. Gardner was an employee of Pestagon Termite and Pest Management, Inc. and the holder of an identification card issued by the Department in accordance with Section 482.091, Florida Statutes, which authorized Petitioner to perform inspections of structures for wood-destroying organisms. Petitioner has been an identification cardholder for approximately six and one-half years and during that time has received special training in the detection and control of wood-destroying organisms. In accordance with instructions from his employer, Pestagon, Petitioner performed an inspection for wood-destroying organisms of a residence located at 1550 Wilson Road, Sarasota, Florida on February 16, 1993. The inspection was made at the request of the realtor in connections with the sale of the residence where the termite inspection was a condition to the closing of the sale. After completing his inspection of the premises for wood-destroying organisms, Petitioner issued a Wood-Destroying Organisms Inspection Report in accordance with Section 482.226, Florida Statutes, and Rule 5E-14.142(2)(c), Florida Administrative Code. Petitioner's report was what is commonly referred to as a "clean report", i.e. showing no evidence of wood-destroying organisms, no visible damage and no evidence of previous treatment. Ronald P. Forshee, purchaser in the real estate transaction, relied on Petitioner's report, among other things, and purchased the residence. Sometime around mid-February, 1994, Forshee encountered swarming termites in several rooms in his residence. Several pest control companies, including Pestagon, inspected the residence and confirmed that there was a termite infestation. None of the pest control companies who inspected the residence gave a definite time period when the termites may have first infested the Forshee residence. On March 6, 1994, Forshee filed a complaint against the Petitioner with the Department. In response to the complaint filed by Forshee, Thane Beehler, inspector for the Department, inspected the residence on April 15, 1994, and May 19, 1994, and discovered evidence of subterranean termites. Beehler found visible signs (mud tunnels) of termite infestation by looking through a vent to the underside of the residence. The vent would have been accessible to Petitioner at the time of his inspection of the Forshee residence on February 16, 1993. Beehler's size prevented him from crawling throughout the underside of the residence without some excavation because of a low floor joist. Although Beehler did not find any visible evidence of termites in the area where he crawled, a distance of 20 - 25 feet, he was able to see mud tunnels, both in use and abandoned, beyond where he crawled. In order to get photographs of the termite infestation beyond where Beehler crawled, and not require excavation, Forshee crawled under the floor joist and took photographs with Beehler's camera. This area was accessible to Petitioner on February 16, 1993, when he made his inspection of the Forshee residence. While there is insufficient evidence to establish the exact time the Forshee residence was infected with subterranean termites, there is sufficient evidence to show that the termite infestation observed by Beehler at the time of his inspection of the Forshee residence on April 15, 1994, and May 19, 1994, had been present at the Forshee residence no less than three to five years. There is sufficient evidence to show that the termite infestation observed by Beehler at the Forshee residence on April 15, 1994, and May 19, 1994, existed, and was visible from areas accessible to Petitioner, at the time Petitioner made his inspection of the Forshee residence on February 16, 1993.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order finding Petitioner guilty of violating Section 482.161(1)(f), Florida Statutes. It is further recommended, after considering Section 482.161(7), Florida Statutes, that for such violation Petitioner be required to pay an administrative fine of $500. DONE AND ENTERED this 23rd day of May, 1995, in Tallahassee, Florida. WILLIAM R. CAVE, 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 23rd day of May, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-6975 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the Department in this case. Petitioner's Proposed Findings of Fact: The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1(1); 2(2); 3(3); 4(4); and 5-6(6). The first four sentences of proposed finding of fact 7 are adopted in Findings of Fact 8-10. The balance of proposed finding of fact 7 are rejected as not being supported by evidence in the record. The first two sentences of proposed finding of fact 8 is adopted in Finding of Fact 3. The balance of proposed finding of fact 8 is rejected as not being supported by evidence in the record. Department's Proposed Findings of Fact: The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1-4(1-4,respectively); 5(5,6);and 7(8-12). The first two sentences of proposed finding of fact 6 is neither material nor relevant. The balance of proposed finding of fact 6 is adopted in Finding of Fact 7. COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler General Counsel Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810 Gary M. Glassman, Esquire 2100 South Tamiami Trail Sarasota, Florida 34239 Robert F. Worley, Esquire Department of Agriculture and Consumer Services 515 Mayo Building Tallahassee, Florida 32399-0800
The Issue The issues in this case are whether Respondent violated certain rules of the Department of Environmental Protection (Department) related to petroleum contamination site cleanup criteria as alleged in the Department’s Notice of Violation, Orders for Corrective Action, and Administrative Penalty Assessment (NOV); whether Respondent is liable for the administrative fines and investigative costs assessed by the Department; whether mitigation of the administrative fine is appropriate; and whether Respondent should be required to take the corrective action described in the NOV.
Findings Of Fact The Parties The Department is the state agency charged with the power and duty to administer and enforce the provisions of Chapters 376 and 403, Florida Statutes (2008),1 and the rules promulgated in Florida Administrative Code Title 62, pertaining to petroleum contamination. Respondent Z.K. Mart, Inc., is a Florida corporation, and owns and operates a retail fueling facility (DEP Facility No. 8507091) located at 5077 Normand Boulevard, Jacksonville, Florida (“the facility”). In January 2004, soil sampling in conjunction with the removal of an underground petroleum storage tank at the facility showed petroleum contamination. Respondent reported the contamination to the Department in a Discharge Report Form on January 29, 2004. Respondent removed the tank that was the source of the contamination, conducted source removal activities, and submitted various reports to the Department, including a Site Assessment Report (SAR), submitted in February 2006. In March 2006, the Department determined the SAR was incomplete and requested that Respondent submit a SAR addendum. To date, Respondent has not submitted the SAR addendum. Respondent’s insurer, Mid-Continent Casualty Company, refused coverage for the assessment and cleanup costs associated with the reported discharge, asserting that the contamination “arose out of” the tank removal. Respondent contends that the contamination occurred before the tank removal. In October 2004, Respondent sued Mid-Continent in the circuit court for Duval County for wrongful denial of coverage. Respondent requested that the Department also file suit against Mid-Continent, pursuant to Section 376.309(2), Florida Statutes, for violating financial responsibility requirements. In December 2008, the Department sued Mid-Continent. The litigation is ongoing. Respondent spent over $300,000 to remove 2,503 tons of contaminated soil and to conduct site assessment activities associated with the reported contamination. In August, September, and October 2006, Respondent filed financial affidavits and additional materials with the Department in support of Respondent’s claim that it was unable to pay for additional assessment work. By letter dated November 3, 2008, the Department rejected Respondent’s claim that it was financially unable to undertake the requested site assessment. Respondent submitted a financial affidavit prepared by Abdul Khan, the vice president and secretary of Z.K. Mart, Inc., which states that the net income of Respondent was $36,479 at the end of 2005. Financial information for later years, including 2008, was also submitted by Respondent. However, no financial analysis was included. No evidence was submitted to establish the estimated costs of future site assessment activities. It cannot be determined from the financial information in the record whether Respondent is currently financially able to conduct additional site assessment activities. The Department states in the NOV that Count I constitutes a violation of Florida Administrative Code Rule 62- 770.800(5). That rule provides that it is a violation of Chapters 376 and 403, Florida Statutes, for a responsible party to fail to submit additional information or meet any time frame “herein.” The Department explained that Count I was intended to charge Respondent with failing to complete site assessment. The only applicable time frame in Florida Administrative Code Rule 62-770.800, entitled “Time Schedules,” is in subsection (3), which requires a responsible party to submit additional information within 60 days of the Department’s request for the information. That violation, however, is more specifically charged in Count II. Count II of the NOV charges Respondent with violating Florida Administrative Code Rule 62-770.600(11), which states that, if a SAR is incomplete, the Department shall inform the responsible party and the responsible party shall submit a SAR addendum within 60 days. Counts I and II charge Respondent with the same offense, failing to submit requested information within 60 days of the request. As stated in the Conclusions of Law, Respondent cannot be made to pay administrative fines under a duplicate charge. Count III of the NOV charges Respondent with liability for the Department’s investigative costs of $500 incurred in conjunction with this enforcement matter. These are nominal costs and were never disputed by Respondent.
