The Issue Whether Petitioner North Fort Myers Homeowners Association, Inc. (Homeowners) participated in DOAH Case No. 91-6436 for an improper purpose.
Findings Of Fact On September 11, 1991, Homeowners filed its Petition for Administrative Hearing and Request to Consolidate with Administrative Hearing set for November 7, 1991. The Petition alleged that Homeowners' interests would be adversely affected by Bradley's request for a permit for construction of a wastewater collection system that it planned to connect to Florida Cities Water Company's Sewage Treatment Plant. It was further alleged that Florida Cities current violations of federal water quality standards would increase as a result of such a connection. Bradley responded to the Petition by filing a Motion to Dismiss for failure to State a Claim/Or in the Alternative Motion for Summary Judgment. On October 31, 1991, Hearing Officer Quattlebaum granted Bradley's Motion to Dismiss for Failure to State a Claim. The Hearing Officer found that the Petition did not allege that the application for a wastewater collection system permit failed to comply with the agency's relevant rules and criteria. The Hearing Officer also ruled that the Petition did not identify when such criteria would be unmet by the project. Homeowners was given leave of ten days to file an Amended Petition. Homeowners timely filed its Amended Petition for Administrative Hearing on November 13, 1991. This Amended Petition continued to focus upon whether Bradley's wastewater collection system should connect to Florida Cities Water Company's Sewage Treatment Plant and the federal water quality issue as it relates to discharge after treatment. After Bradley filed its Motion to Dismiss the Amended Petition and Homeowners replied, Hearing Officer Quattlebaum entered a Recommended Order of Dismissal on December 12, 1991. The basis for the recommendation was that Homeowners had "failed to allege that the application for permit failed to comply with the relevant criteria as set forth in statute and rule which govern issuance of the permit." The Temporary Operating Permit under which Florida Cities was operating expressly allowed Bradley's wastewater collection system to connect to the sewage treatment plant upon satisfaction of the Department's permitting requirements for such a collection system. Homeowners lost its opportunity to address whether such a connection was proper when it failed to timely challenge this Temporary Operating Permit. The only agency action subject to challenge in this case was whether Bradley's application to construct the wastewater collection system complied with the Department's permitting requirements for the system. Florida Cities anticipated actions were irrelevant to this particular proceeding because final agency action had already been taken on the question of whether the connection could take place. Throughout this proceeding, Homeowners failed to comprehend that it had waived its opportunity to pursue a challenge to the connection of Bradley's wastewater collection system to the sewage treatment plant when it did not timely challenge Florida Cities' Temporary Operating Permit. The Order granting Bradley's Motion to Dismiss dated October 31, 1991, did not affirmatively set forth that the connection issue could not be pursued in DOAH Case No. 91-6436. Homeowners' lack of comprehension on this issue remains evident in the Amended Petition, the Motion for Reconsideration filed after the Recommended Order of Dismissal, the Response to the Motion for Attorney's Fees and the testimony presented at hearing. Lack of comprehension is a neutral condition which neither proves nor disproves that the Petition and Amended Petition were filed for improper purposes, as defined by Subsection 120.59(6)(e), Florida Statutes. No direct evidence of Homeowners' participation in the proceeding for an improper purpose was established at hearing. The attorney for Homeowners at the time the Petition and Amended Petition were filed denied that Homeowners was motivated by an improper purpose. It was seeking to protect water quality in its locale and to assure the local sewer treatment system is adequate. There was no evidence presented as to whether Homeowners has participated in other such proceedings involving Bradley and the same project for an improper purpose.
Recommendation Based upon the foregoing, it is recommended that the Department enter a Supplemental Final Order denying Bradley's request for attorney's fees and costs as Homeowners did not participate in this proceeding for an improper purpose as defined by Subsection 120.59(6)(e), Florida Statutes. RECOMMENDED this 26th day of June, 1992, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY 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 26th day of June, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-6436 Homeowners' proposed findings of fact are addressed as follows: Accepted. See HO #1. Accepted. See HO #6. Accepted. Accepted. Accepted. See Preliminary Statement. Accepted. See Preliminary Statement. Accepted. Rejected. Contrary to fact. See separate order on that issue. Rejected. Pleading amended accordingly. Accepted. See HO #13. Rejected. Contrary to fact. See Preliminary Statement. The Department's proposed findings of fact are addressed as follows: Accepted. Accepted. See HO #1. 3. Accepted. See HO #2. 4. Accepted. See HO #3. 5. Accepted. 6. Accepted. 7. Accepted. See HO #4. 8. Accepted. See HO #4. 9. Accepted. See HO #5. 10. Accepted. See HO #6. 11. Accepted. 12. Accepted. See HO #6. Accepted. See Preliminary Statement. Accepted. See Preliminary Statement. Accepted. See Preliminary Statement. Accepted. See Preliminary Statement. Accepted. Rejected. Contrary to fact. See HO #7 - HO #13. Bradley's proposed findings of fact are addressed as follows: Accepted. See HO #1. Accepted. See HO #2. Accepted. See HO #3. Accepted. See HO #4. Accepted. See HO #5. Accepted. See HO #6. Accepted. See HO #6. Accepted. See Preliminary Statement. Accepted. See Preliminary Statement. Accepted. See HO #7 and HO #8. Accept that Homeowners failed to present any justifiable issue of law or fact that could be heard in relation to this permit. See HO #7 - HO #9. COPIES FURNISHED: HAROLD M STEVENS ESQ PO DRAWER 1440 FT MYERS FL 33902 FRANCINE FFOLKES ESQ ASST GENERAL COUNSEL DEPT OF ENVIRONMENTAL REGULATION 2600 BLAIRSTONE RD TALLAHASSEE FL 32399 2400 GERI L WAKSLER ESQ PEPER MARTIN JENSEN MAICHEL & HETLAGE 2000 MAIN ST - STE 600 FT MYERS FL 33901 DANIEL H THOMPSON ESQ GENERAL COUNSEL DEPT OF ENVIRONMENTAL REGULATION 2600 BLAIRSTONE RD TALLAHASSEE FL 32399 2400 CAROL BROWNER, SECRETARY DEPARTMENT OF ENVIRONMENTAL REGULATION 2600 BLAIRSTONE RD TALLAHASSEE FL 32399 2400
Findings Of Fact At all times pertinent to the allegations herein, the Petitioner, Pinellas County Construction Licensing Board, (Board), was the Pinellas County agency responsible for the certification and regulation of construction specialties. Respondent was certified by the Board as an irrigation systems specialty contractor under license C-5997 in force at the time. Respondent was the qualifying contractor for Sun City Lawn Irrigation. On or about May 17, 1994, Respondent contracted with William J. Schneider, who resided at 5661 25th Avenue North in St. Petersburg, to install a lawn irrigation system in Mr. Schneider's front lawn. The automatic system was to incorporate 2 zones and was, according to the contract and the testimony of Mr. Schneider, to be connected to Schneider's then existing 1/2 horsepower electric pump which drew water from several wells on his property. Mr. Schneider claims there are four wells. No evidence was introduced to contradict that. On the day the system was installed, Mr. Schneider was not at home. Respondent's employees performed a test of the water capacity on Mr. Schneider's property. At first, the wells produced 10 gpm, which was adequate for the system, but after a few minutes of drawdown, they found that the wells were producing only 4 gpm, along with some air. At that time Mr. Freestone, Respondent's sales manager, spoke with Mrs. Schneider about the situation, advising her there were two options open. One was to install a larger pump and the second was to connect the system to the city water supply. Mrs. Schneider returned to the house, presumably to call Mr. Schneider to get his decision on the matter. He claims she did not reach him. Respondent claims that she thereafter returned with directions to install a water line for connection to the city system. This is completely contrary to what Mr. Schneider had wanted and to what is included in the contract. Mr. Schneider claims he did not want to connect to city water because of the added expense of doing so, and he claims he made this very clear to Respondent's employees at the beginning and at all times thereafter. In any case, the system was installed and was, somehow, connected to the city water system near the place where the water line enters the house. In addition, no backflow preventer was installed to insure against contamination getting into the water system as is required by the building code. Most, if not all, the work on this project was completed by Respondent's son and employee, Scott, who was not present at the hearing. Respondent attempted to introduce an unsworn written statement by Scott Bosworth, but it was not accepted. Scott advised Mr. Schneider, when he returned from work that day, that they had been unable to use his pump and wells. Nonetheless, Mr. Schneider paid Respondent in full for the work for which he had contracted, except for a supplemental charge in the amount of $190.95 for the tie in to the city water and the valves and other items connected therewith. Mr. Schneider claims that he made several calls to Respondent's office in an effort to correct the situation but was unable to reach anyone who could give him satisfaction. However, the evidence indicates that on at least one occasion, Mr. Schneider got through and was called back by Mr. Freestone with whom he discussed the situation and the additional charges. He was subsequently advised by counsel that he did not have to pay the additional sum and did not do so. Some time thereafter, Mr. Schneider was advised by the city that he would be fined because of the illegal installation. He then contacted another irrigation company, run by Mr. Williams, who examined the system and determined that the irrigation system installed by Respondent had been connected to the city water system and that no backflow preventer had been installed. A check with the city's building department revealed that no permit had been procured for this installation. Respondent's license to install irrigation systems does not include authority to connect that system with the public water system. That procedure must be done by a licensed plumber. Respondent and Mr. Freestone, the only individuals in the company who had the authority to arrange with a plumber to make the actual hook up to the city system, both deny that any arrangement was made by them to have the system connected to the city water system. Mr. Schneider arrived home on the day in question to find only Respondent's son, Scott, at work on the project. Scott indicated it would be necessary to move two bushes near the house to facilitate connection of the system with the water supply. Mr. Schneider contracted with Scott to move the bushes and remove them from the premises. Scott moved them but failed to remove them. In light of the fact that Scott was working on the system at the time Mr. Schneider arrived home, and the system was found to be connected to the city system thereafter without anyone else touching it, it must be concluded that the connection was made him. Respondent admits he did not come to the property in question while the system was being installed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be issued by the Board suspending the license of the Respondent for a period of six months with provision for withholding execution of the suspension for a period of one year conditioned upon such criteria as may be deemed appropriate by the Board. RECOMMENDED this 31st day of March, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 31st day of March, 1995. COPIES FURNISHED: William J. Owens Executive Director Pinellas County Construction Licensing Board 11701 Belcher Road Largo, Florida 34643-5116 Larry J. Bosworth 8901 14th Street North St. Petersburg, Florida 33716
The Issue The issues in this case concern the entitlement of Petitioners to the grant of a variance for the purpose of installation of an onsite sewage disposal system on property located in Dixie County, Florida. See Section 381.272, Florida Statutes and Chapter 10D-6, Florida Administrative Code.
Findings Of Fact On April 27, 1989, the property which is at issue was deeded over to Diane H. and Charles A. Miller. The property is located in Dixie County, Florida, and contains 0.377 acres. On Nay 23, 1989, Petitioners were granted an easement for purposes of ingress and egress to and from the property. On May 4, 1989, under the signature of Diane H. Miller, a Petitioner in this case, an application was made for onsite sewage disposal at the aforementioned property. A copy of that application form may be found as Petitioners' exhibit No. 3 admitted into evidence. It states that this application is for a new system at lot No. 2, southwest corner, New Pine Landing Subdivision. Reference is also made to the directions to the property and suggestion that the property is located behind Nevin Kean Public Park [sic]. The warranty deed, a copy of which may be found as Petitioners' exhibit No. 1 admitted into evidence, describes the fact that the property is adjacent to Nevin Keen Public Park. The application form points out that this is a new system which is by type of residence "MH." It would contain two bedrooms and a heated or cooled area which is 12 feet by 60 feet. Also attached in Petitioners' exhibit No. 1 is a paper which purports to establish the benchmark elevation of the property as part of what that paper describes as the unrecorded subdivision at New Pine Landing. It speaks in terms of an elevation of 11.36 feet as allegedly surveyed by Herbert H. Raker. That information is hearsay and may not be used for purposes of fact finding in establishing the true elevation in an instance where Herbert H. Raker has not provided this explanation. See Section 120.58, Florida Statutes. As a consequence, there being no other explanation of the elevation, it is unknown. To the extent that it is accepted that there exists a New Pine Landing Subdivision, of which the Miller property is a part, evidence was not presented at the hearing which would establish the date upon which it was platted. Copies of the warranty deed and easement which were admitted into evidence do not indicate that the property is in New Pine Landing Subdivision, nor do they describe the date upon which the subdivision was platted, if ever. From the proof submitted, especially the warranty deed and easement, it does not appear that the parcel in question is part of a recorded subdivision. This coincides with representations by Ms. Virginia Sessions, whose daughter is Diane Miller. Ms. Sessions speaks in terms of this being an unrecorded subdivision and Petitioners' exhibit No. 4 admitted into evidence directed to Jermone Blake of the Dixie Public Health Unit on stationery of Suwannee River Water Management District refers to this location as New Pine Landing. Under the circumstances it is accepted that this parcel lies within an unrecorded subdivision known as New Pine Landing. There was a period of time during which the applicants did not receive a response from Respondent concerning the request for a permit to install the onsite sewage disposal system. Ms. Sessions testified that her daughter made a phone call to the Respondent to determine the status of the application and that the daughter reported that someone affiliated with Respondent said that Respondent would be getting back in touch with the applicants. This report by Mrs. Sessions of her daughter's remarks concerning a purported conversation between the daughter and the Respondent's employee is hearsay and may not be used to decide whether in fact there was a communication between the daughter and the Respondent. See Section 120.58, Florida Statutes. In any event, Mr. Blake communicated with Mrs. Sessions and informed Mrs. Sessions that the Petitioners would not be given a permit for installation of an onsite sewage disposal system and would need to file a request for variance from the requirements to obtain permission to install the onsite sewage disposal system. In furtherance of that instruction, the appropriate fee was paid and a form executed by Mrs. Sessions requesting a variance. A copy of that variance request may be found as Petitioners' exhibit No. 8 admitted into evidence. The date of that application was July 13, 1989. The form makes reference to the authority of the agency to examine the request for variance as being set forth in Chapter 381, Florida Statutes, and Chapter 10D-6, Florida Administrative Code. The form points out to the applicants that the variance may not be granted unless: The Department is satisfied the stated hardship was not caused intentionally by the applicant. A reasonable alternative sewage treatment method is not available The sewage discharge will not adversely affect public health and/or significantly degrade ground or surface water quality. The application for variance makes reference to the New Pine Landing Subdivision. It states that the parcel in question is lot No. 2, and makes reference to a book and page number and a plat number and purported page number associated with the plat number allegedly pertaining to the subdivision. Competent evidence was not presented to establish that these references found on the application were correct portrayals of the recordation of the subdivision and plat number. See Section 120.58, Florida Statutes. Again, this leaves the record incomplete as to any recordation of the existence of the subdivision and a plat number associated with that subdivision. The application describes the reason for requesting a variance as related to the fact that the lot is in a flood area where more than 36 inches of fill dirt may not be added. Proof was not submitted at hearing concerning the exact nature of the property in question; however, Mrs. Sessions as the person who had applied for the variance and has a layperson's knowledge of the property in question, is entitled to depict the general nature of the property and her explanation that it is flood prone is accepted. How much fill dirt may be added to the property was not established by competent evidence. Under the instructions for the owner associated with the application for the variance, the applicants are told that they should provide any supportive material and documents to the County Health Unit in Dixie County, Florida. This entails submission of a site plan, site location and reference map. These details were not submitted with the application as far as the record reveals. More importantly they were not provided at hearing. The instructions call upon the applicants to satisfy the terms of Section 381.272(2) and (3), Florida Statutes, and to state the reasons for requesting the variance under the requirements of Chapter 10D-6, Florida Administrative Code. The applicants were told to explain why variance from the requirements would relieve or prevent excessive hardship and to provide technical documentation to support the supposition that a variance would not likely result in pollution or impairment to public health. Written on the form submitted is the suggestion that this project is a variance from the requirements of Rule 10D-6.047(6), Florida Administrative Code, related to the 10 year flood event. The application points out the size of the parcel as being approximately .38 acres and the sewage flow anticipated is 250GPD. It points out that the drinking water supply is a private source. It points out that the type of residence is a single-family retreat that has two bedrooms. It describes the proximity to sanitary sewer as 13 miles and to public water supply as 7,500 feet. The distance to private wells is said to be 775 feet and to a stream 7,400 feet. The proposed system that the applicant has in mind is a septic tank and drain field that is mounded. The system is referred to as a subsurface septic tank and drain field with six inches of fill sand. Although the application describes that the water table during the wettest season of the year is below the ground surface by 36 inches and at the time testing was done that the water table was below the ground surface and "not found 72 inches," competent proof of these assertions was not presented in the course of the hearing. The description of the type of soil as being sand is accepted. Nothing more was revealed about the soil characteristics. The application points out that the 10 year MSL flood elevation is 14 feet and that the property elevation MSL is 11 feet. Competent evidence of those facts was not presented at hearing. Nor was there competent evidence of the adequacy of the surface water drainage at the property site. The application form points out that the Dixie County Health Unit recommended approval of the variance on July 13, 1989. That says that the property is in the Suwannee River floodway where maximum fill allowed is 36 inches and that mounds are subject to erosion and moving water. It is accepted that the property is in the area of the Suwannee River. The other facts that are suggested in these summary remarks were not established by competent evidence. The form reminds the county health unit that procedures associated with the variance requests must comply with Section 120.60, Florida Statutes. The county staff is instructed to list additional details in terms of the site evaluation and tell why standards cannot be met if that is the opinion held. It reminds them to reference the specific sections within Chapter 10D-6, Florida Administrative Code, and Section 381.272, Florida Statutes, that are involved with the variance request and state reasons why a recommendation of approval or disapproval is being made. The completed form is then submitted to the Environmental Health Program ten days prior to any scheduled Variance Review Board meeting date. Substantiating documents must be submitted in place of or in addition to the data just described to include the application for septic tank permit, denial letter and engineering report and USDA Soil Conservation Service reports. Based upon this record an engineer's report has never been submitted. More particularly, an engineer or acceptable substitute did not present evidence supporting the variance. Mrs. Sessions received an August 18, 1989 letter from Richard G. Hunter, PHD, Assistant Health Officer for Environmental Health. A copy of this may be found as Petitioners' exhibit number 5 admitted into evidence. It requests that additional information be provided to the Dixie County Public Health Unit associated with the date that the lot was subdivided from lot 2, if it was subdivided at one time. Mrs. Sessions testified that she responded to this request. The exact information that she provided was not presented at the hearing. Consequently, it is not clear whether the information that was presented satisfied that review group. Within the correspondence of August 18, 1989, is mention of the fact that the review group will consider the variance request at a September 7, 1989 meeting in Tampa, Florida, assuming that the information that had been requested was provided by August 28, 1989. On November 29, 1989, Kevin M. Sherman, PHD, M.P.H., Environmental Administrator, Environmental Health Programs wrote to Mrs. Sessions to advise her that the application for variance had been placed on a meeting agenda for December 7, 1989 in Sarasota, Florida. A copy of this may be found as Petitioners' exhibit No. 6 admitted into evidence. This is seen as an acceptance of the application for purposes of making a decision on the merits. Neither Petitioners nor someone representing their interests attended the December 7, 1989 meeting in Sarasota, Florida. On December 13, 1989, Dr. Hunter wrote to Mrs. Sessions to advise her that the request for variance had been rejected. A copy of this letter of rejection may be found as Petitioners' exhibit No. 7 admitted into evidence. It reminds the applicants that the purpose of the grant of a variance is for relieving or preventing excessive hardships where it can clearly be shown that the public health will not be impaired and where pollution of groundwater or surface water will not result. The basis of rejection was that the request was not considered to be a minor deviation from minimum requirements specified in Rule 10D-6.047(6), Florida Administrative Code. The letter of rejection advised Petitioners of their right to a hearing. That request for hearing was made on January 11, 1990, within the 30 days allowed for making such requests. Testimony presented by Alma Walker did not establish the nature of the New Pine Landing Subdivision and whether it had been recorded or not and the date that the property may have been platted. Mrs. Walker talked with a person within the Dixie County Health Unit whose name is Frost. This gentleman told Mrs. Walker that the case had been referred for a hearing and that the applicants should continue to pursue that matter. His secretary made some remark to Mrs. Walker concerning the impression that six inches of fill is less than allowed for septic tanks. This representation is not considered to be competent evidence as to the amount of acceptable fill. Mrs. Walker's comments concerning the applicants seeking a new benchmark from a surveyor and the suggestion that the surveyor gave this information to Mr. Frost is hearsay and does not establish the fact that a surveyor presented a new benchmark for the property to Mr. Frost. Nonetheless, following this circumstance Mrs. Walker spoke to Mr. Frost about the survey to establish benchmark and was told by Mr. Frost that the applicant still could not get a permit because of not meeting the requirements of the 10 year floodplain. Petitioners' exhibit No. 4 admitted into evidence attempts to describe the impression of the application for a variance as held by the Suwannee River Water Management District. It is hearsay and may not be used to find facts in that competent evidence about the opinion of the Suwannee River Water Management District as to the acceptability of the variance request was not presented at hearing.
Recommendation Based upon the consideration of the facts found and the conclusions of law, it is, RECOMMENDED: That a Final Order be entered which denies Petitioners request for a variance from the requirements to obtain a permit for onsite sewage disposal. DONE and ENTERED this 8th day of June, 1990, in Tallahassee, Florida. CHARLES C. ADAMS, 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 8th day of June, 1990. APPENDIX CASE NO. 90-1204 The following discussion is made of the fact finding suggested by the parties. Petitioners' Facts Paragraph 1 is subordinate to facts found. Paragraph 2 is subordinate to facts found with the exception of suggestion that a benchmark elevation was determined. No competent evidence was presented to establish the benchmark elevation. Paragraph 3 is subordinate to facts found in the sense that it is acknowledged that an application for onsite sewage disposal system permit was made. Proof was not established that all necessary information required by law was presented with the application. Paragraph 4 with its discussion of the significance of information provided by the Suwannee River Water Management District is not accepted to the extent that it attempts to describe the entitlement to a permit based upon remarks made by the Suwannee River Water Management District. The issue of whether adequate reasons were given for denying the permit application was not noticed for consideration at the final hearing and to the extent that that issue has any relevance in considering the variance request Petitioner's have failed to demonstrate any prejudice to their cause in pursuing the variance request. Paragraphs 5 and 6 are subordinate to facts found. The indication in paragraph 7 that Petitioners were having to reapply for a variance does not coincide with the understanding of this process in which the facts tend to establish that the initial variance request was processed to conclusion. In Paragraph 8 the idea of reapplication is rejected as is the contention that there was a failure in the explanation as to the reasons why the variance was denied. The explanation was adequate to notice the Petitioners of the reasons which the agency had in mind in denying the variance application. Respondent's Facts Paragraphs 1-7 are subordinate to facts found. Paragraph 8 constitutes a conclusion of law. COPIES FURNISHED: Sam Power, Department Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Frances S. Childers, Esquire Department of Health and Rehabilitative Services District 3 Legal Office 1000 N.E. 16th Avenue Gainesville, FL 32601 Michael Smith, Esquire Post Office Drawer 579 Perry, FL 32347 =================================================================
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Petitioner L. C. Prevatt is the owner and operator of the Riverview Speed Wash, Inc., a coin operated laundry which has been in existence for over ten years. The facility has twelve top load washers, four double load washers, one triple load washer and seven gas dryers. It is open from 7:00 a.m. to 9:00 p.m., seven days a week. The facility is located in a shopping center in space which petitioner rents on a month-by-month basis. The facility utilizes a 0.0075 mgd waste treatment plant with effluent disposal to a county-owned drainage ditch which is connected and discharges to the Alafia River approximately 0.6 miles south of the facility. On or about May 29, 1981, petitioner submitted an application for a temporary operation permit for his Riverview laundry facility. Temporary operation permits are issued by the DER when a facility is not currently meeting State water quality standards and the applicant needs or desires a period of time to bring the facility up to the applicable standards. Here, the petitioner stated on his application that no upgrade of the waste treatment facility was planned. The application further stated that the facility would be connected to an area wide regional waste treatment system when that system became available. After numerous requests for further information from the applicant and various inspections of the facility, the DER issued its notice of intent to deny petitioner's application for a temporary operation permit. Reasons for the intended denial included failure to provide requested background water quality information, failure to provide a proposed water quality standards compliance schedule, failure to provide reasonable assurance that a municipal sewer would be available as an alternative means of disposal and improper and deficient operation and maintenance of the facility. Numerous inspections of the petitioner's facility by personnel from the DER and the Hillsborough County Environmental Protection Commission revealed that the facility was not functional in terms of operating correctly and that the design of the plant was inadequate to meet State water quality standards. Specifically, these inspections revealed that the chlorination equipment was not operational, that the trickling filter was not operational, that the removal rates for BOD and suspended solids were consistently and significantly less than the State standard of 90 percent, that the discharge and effluent were of a milky color and would not meet the State standards for turbidity and color, that the water quality of the drainage ditch was extremely low and that the water quality results were actually worse after going through the existing system. It was determined that the discharge was degrading the quality of the receiving waters and that, even if the petitioner's operational and maintenance problems were solved, the design of the facility is not adequate to assure future compliance with State standards. Petitioner admits that his facility does not currently meet State water quality standards. In mitigation, it is contended that many other laundries in the area also do not meet State standards, that it is not economically feasible to redesign the facility to attain compliance, that he has no land available upon which to discharge effluent and that he would be willing to install a sand filter and did have the permission of the manager (not the owner) of the property to discharge effluent into the parking lot drain ponds. No written evidence of this agreement was adduced and there was no demonstration that such runoff ponds would be able to hold and/or treat effluent from the petitioner's facility. There was also no evidence offered to demonstrate that a municipal or regional sewer system would be available in the near future to serve the laundry facility.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that petitioner's application for a temporary operation permit for Riverview Speed Wash, Inc. be DENIED. Respectfully submitted and entered this 7th day of September, 1982, in Tallahassee, Florida. DIANE D. TREMOR, 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 7th day of September, 1982. COPIES FURNISHED: L. C. Prevatt Post Office Box 998 Gibsonton, Florida 33534 William W. Deane, Esquire Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 Victoria Tschinkel, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint. If so, what action should be taken against him.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: The Department is a state government licensing and regulatory agency. Respondent is registered with the Department as a septic tank contractor. Gayle Gibson owns and resides in a three-bedroom, two- bath single-family home located at 2425 Riverlane Terrace in Fort Lauderdale, Florida (Gibson's property). In late 1993 or early 1994, Gibson was experiencing problems with the septic system on her property (in the form of sewage backup and resultant unpleasant odors). Gibson contacted Respondent (who is the son of Gibson's former mailman) and asked him to come to her property to ascertain what was wrong and to take whatever remedial action was necessary. Respondent complied with Gibson's request and went to her property. After examining the situation, he told Gibson that she needed to have the septic tank on the property pumped and a new drainfield installed. Respondent recommended that the new drainfield be installed on the side of Gibson's home, instead of in the front yard (where the existing drainfield was located). Gibson made arrangements for Respondent to perform these services in exchange for money and art work. These arrangements between Gibson and Respondent were not reduced to writing. On or about January 20, 1994, Respondent pumped out the septic tank on Gibson's property and Gibson paid him $200.00, by check, for having performed such work. In late February of 1994, Respondent installed a new drainfield on the side of Gibson's home and Gibson paid him $500.00, by check, for having performed such work. At no time did Respondent obtain a permit to install the drainfield. The heavy equipment that Respondent used to perform the work was unloaded in Gibson's front yard. The unloading of the heavy equipment damaged the front yard. It cost Gibson a total of $175.00 to have the damage repaired. The drainfield that Respondent installed was an EEE ZZZ Lay Drain system comprised of Styrofoam material. Considering the size of Gibson's home, the drainfield was grossly undersized, as Respondent should have realized. It was approximately one-third the size it should have been. Predictably, shortly after this undersized drainfield was installed, Gibson again experienced sewage backup and related problems on her property. Gibson informed Respondent of the reoccurrence of these problems. Respondent told Gibson that he would take remedial action if Gibson paid him another $500.00. Gibson refused to make any additional payments to Respondent. Respondent never returned to Gibson's property to correct the error he had made in installing an undersized drainfield. Gibson contacted the Department and advised it of the problems she was experiencing with her septic system. Following an investigation of the matter, the Department issued the Administrative Complaint described in Preliminary Statement of this Recommended Order. Subsequently, on January 13, 1998, in an unrelated case, the Department issued and served on Respondent a citation imposing a $500.00 fine against Respondent for abandoning, without good cause, a septic system installation project he was contractually obligated to complete. The citation contained a "Notice of Appellate Rights," which indicated that "[t]his citation becomes a Final Order of the Department if you have not contested the Citation within thirty (30) days of the date which the Citation was served upon you." Respondent has neither "contested" the citation, nor paid the $500.00 fine it directed him to pay.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order finding Respondent guilty of the unlawful conduct alleged in the Administrative Complaint and disciplining him therefor by suspending his septic tank contractor's registration for 90 days and fining him in the amount of $1,000.00. DONE AND ENTERED this 29th day of June, 1998, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 1998.
Findings Of Fact The Petitioner is a wholly owned subsidiary of Florida Land Company which is, in turn, a wholly owned subsidiary of the Continental Group, Inc., a New York corporation. The parent developer companies are providing and will continue to provide the required financial backing. The Utility served 421 primarily residential customers at the end of 1979, the test year agreed to by the parties. This was the first rate proceeding involving the Utility since it was established in 1975. Service The Utility is providing satisfactory water and sewer service. There were no service complaints presented at the public hearing by the customers, nor were there any citations or corrective orders outstanding. Rate Base The Utility experienced rapid growth during the 1976 - 1979 period, increasing the number of customers served from 62 to 421. Therefore, year end rate base rather than average rate base should be utilized. 1/ The water and sewer rate bases are $155,920 and $179,360 respectively. These amounts are based on the computations detailed below and incorporate proposed Commission adjustments to which the utility stipulated. In addition, reductions to plant in service and construction work in progress (CWIP) were made by the Utility to reflect excess plant capacity which is of no benefit to current customers. The Utility replaced its reverse osmosis water treatment plant with a lime softening system in 1979. The new facility will be somewhat more expensive to operate but will improve water quality and fire flow (pressure). Because of the reverse osmosis water treatment plant retirement, the $3,615 in building and $34,541 in treatment plant assets remaining on the Utility books should be removed. This is a total adjustment to Utility Plant in Service of $38,156. A further reduction in both water and sewer rate base is needed to adjust the working capital allowance to the standard authorization, which is one-eighth of operation and maintenance expenses. The proper amounts to he authorized in these accounts are $5,338 water and $2,931 sewer. TEST YEAR PER UTILITY UTILITY ADJ. TEST ADJ. TO YEAR PER COMM. ADJ. & CORRECT. TO UTILITY ADJ. UTILITY TEST YEAR EXHIBIT BALANCE TEST YEAR $820376. $-551059. $269317. $-38156. $231161. 57866. -57866. 0. 0. 0. -18841. 17155. -1686. 0. -1686. -238419. 159526. -78893. 0. -78893. Water Rate Base Plant in Svc. C.W.I.P. Accum. Depr. C.I.A.C. Net of Amort. Working Capital Allowance 4755. 1421. 6176. -838. 5338. Income Tax Lag 0. 0. 0. 0. 0. Rate Base $625737. $-430823. $194914. $-38994. $155920. Sewer Rate Base UTILITY COMM. ADJ. TEST UTILITY ADJ. TEST & CORRECT. YEAR PER ADJ. TO YEAR PER TO UTILITY ADJ. UTILITY TEST YEAR EXHIBIT BALANCE TEST YEAR Plant in Svc. $591945. $-205690. $386255. $0. $386255. C.W.I.P. 77919. -77919. 0. 0. 0. Accum. Depr. -2815. 2551. -264. 0. -264. C.I.A.C. Net of Amort. -321611. 112049. -209562. 0. -209562. Working Capital Allowance 2558. 401. 2959. -28. 2931. Income Tax Lag 0. 0. 0. 0. 0. Rate Base $347996. $-168608. $179388. $-28. $179360. Operating Revenues The Utility is seeking water revenue of $41,429 and sewer revenue of $35,550. Computations and adjustments in support of these amounts along with test year expenses are detailed below. Because of the extraordinary expenses associated with replacement of the water treatment plant, it would not be appropriate to utilize test year data to determine operating costs. Therefore, a projected or pro forma operating expense of $42,789 removing replacement expenses is proper. A further adjustment to water operations is required to eliminate $1,987 of depreciation expense on contributed property as not authorized by current law. 2/ In addition, the useful life of various items of equipment should be increased to periods of 20 to 40 years. These extended depreciation periods are based on an engineering study which the Utility does not challenge. Finally, the requested revenue increase of $27,432 and the associated gross receipts tax of $686 are reversed to show test year operating results. The requested sewer revenue increase of $19,413 and gross receipts tax of $485 are also reversed on the sewer operating statement to show test year operating results. As with the water plant, depreciation on contributed sewer plant is disallowed, reducing depreciation by $5,261. Water Operating Statement UTILITY COMM. ADJ. TEST UTILITY ADJ. TEST & CORRECT. YEAR PER ADJ. TO YEAR PER TO UTILITY ADJ. UTILITY TEST YEAR EXHIBIT BALANCE TEST YEAR $ 14006. $ 27423. $ 41429. $-27423. $ 14006. 38039. 11368. 49407. -6678. 42789. 0. 0. 0. 0. 0. 6325. 3762. 10087. -5525. 4562. 0. 0. 0. 0. 0. 1979. 500. 2479. -686. 1793. 0. 0. 0. 0. 0. 0. 0. 0. 0. 0. Oper. Revenues Oper. Expenses Operation Maintenance Depreciation Amortization Taxes Other Than Income Other Expenses Income Taxes UTILITY COMM. ADJ. TEST UTILITY ADJ. TEST & CORRECT. YEAR PER ADJ. TO YEAR PER TO UTILITY ADJ. UTILITY TEST YEAR EXHIBIT BALANCE TEST YEAR Total Operating Expenses $46343. $15630. $61975. $-12889 $49084. Oper. Income -32337. 11793. -20544. -14534. -35078. Rate Base $ 825737. $ 194914. $ 155920. Rate of Return -5.17 pct. -16.54 pct. -22.50 pct. Oper. Sewer Operating Statement UTILITY COMM. ADJ. TEST UTILITY ADJ. TEST & CORRECT. YEAR PER ADJ. TO YEAR PER TO UTILITY ADJ. UTILITY TEST YEAR EXHIBIT BALANCE TEST YEAR Revenues $16137. $19413. $35550. $-19413. $16137. Oper. Expenses Operation 20462. 3208. 23670. -233. 23437. Maintenance 0. 0. 0. 0. 0. Depreciation 619. 9060. 9679. -5261. 4418. Amortization 0. 0. 0. 0. 0. Taxes Other Than Income 1747. 630. 2377. -485. 1892. Other Expenses 0. 0. 0. 0. 0. Income Taxes 0. 0. 0. 0. 0. Total Operating Expenses $22828. $12898. $35726. $-5979. $29747. Oper. Income $-6691. $6515. $-176. $-13434. $-13610. Rate Base $847996. $179388. $179360. Rate of Return -1.92 pct. -10. pct. -7.59 pct. Capitalization Debt $ 555,624. 60.96 percent Customer Deposits 6,195. .68 The capitalization of the Utility is as follows: Amount Percent to Total Common Equity 349,627. 38.36 $ 911,446. 100.00 percent Rate Design Both parties seek adoption of a base facility charge rate structure. This rate design provides a fixed charge to each customer served computed on that customer's share of fixed operating costs. The second element of the base facility charge represents the variable cost of water actually used. This rate design provides an equitable method of allocating service costs and has been adopted in virtually all recent water and sewer rate proceedings. The base facility charge should also be utilized where there is a temporary discontinuance of service. The Commission proposes a tariff revision incorporating a monthly standby charge equal to the base facility charge. Again, this method allocates the Utility's readiness to serve costs equitably among both active and temporarily inactive customers.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the petition of Sugar Mill Utility Company be granted in part, and that Petitioner be authorized to file new rates structured on the base facility charge concept, designed to generate gross water revenue of $41,429 annually, and gross sewer revenue of $35,550 annually, based on the number of customers served at the end of the test year. It is further RECOMMENDED that the Petitioner be permitted to retain interim revenues collected pursuant to Respondent's Order No. 9392, and that tie rate refunding bond requirement of said order be cancelled. DONE and ENTERED this 20th day of November, 1980, in Tallahassee, Leon County, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
The Issue Whether Petitioner was wrongfully denied general permits to construct an extension to a public water supply distribution system and to construct a waste water treatment system at a camp being constructed by Petitioner.
Findings Of Fact On December 11, 1991, the Department of Environmental Regulation (DER), Ft. Myers office, received applications from the Orange Blossom Baptist Association, Petitioner, submitted by its project engineer, for general permits to install an extension to provide water to, and construct a waste water treatment facility for, a camp being built by Petitioner. These applications were reviewed by the Respondent, and on January 2, 1992, James Oni telephoned Petitioner's engineer to tell him the applications were incomplete and additional information was required. Some of this additional information was submitted by Petitioner on January 7, 1992, but the word "vertical" was left out of the application to indicate what the 18 inch separation of the water and sewer lines represented; no pump out was provided for the lift station; the flotation formula as submitted contained a typographical error where an "s" was substituted for a "5", leaving the calculation of storage capacity of the system indeterminable; the lift station was only 4.5 feet deep and should normally be 10 feet; the configuration of the sump to insure solids would settle to the bottom was not provided, nor was the amount of concrete to be used to obtain this configuration shown; and the type of equipment to be used was not clearly shown. In summary, when submitted the application was not technically correct, and it remained technically incorrect after the additional information was submitted by the applicant. General permits are required to be processed by DER within 30 days of their receipt, and if not denied within that 30 day period they must be approved regardless of their compliance with the statutes and regulations.
Recommendation It is recommended that a Final Order be entered denying Orange Blossom Baptist Association general permits to install a waste water treatment facility and to construct an extension to a public water supply distribution system in Highlands County, Florida. ORDERED this 6th day of May, 1992, in Tallahassee, Florida. K. N. AYERS 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 6th day of May, 1992. COPIES FURNISHED: William N. Clark, P.E. 233 E. Park Avenue Lake Wales, FL 33853 Francine M. Ffolkes, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Carol Browner Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
Findings Of Fact On October 15, 1982, Hal Thomas Reid Associates applied for a septic tank permit to serve a 16-room motel. On February 2, 1983, this application was amended to a 5,800 gallon septic tank to serve a 32-unit condominium and office. The lot on which this drain field is to be located is 70 feet by 100 feet. When the application was filed, the lot was inspected by the Citrus County Health Department. The elevation of the land averaged 2.5 to 2.9 feet above mean sea level. The 10-year flood plane in this area is 4.9 feet. Occasional high tides inundate this area; however, the water drains off rapidly and no one testified that water ever remained standing as long as seven consecutive days. Usually the water drains off in less than 24 hours. On March 1, 1983, an extremely high tide flooded this area and roads in the vicinity to a depth of approximately one foot. This water remained on the site less than 24 hours. The site is not located adjacent to state waters, is not an area designated as wetlands, and is without the dredge and fill permitting jurisdiction of the United States Army Corps of Engineers and the Florida Department of Environmental Regulation (Exhibits 20 and 21). By adding five feet of fill to the site, the bottom of the gravel below the drain pipes will be above the 10-year flood plane. The drain field capacity is adequate to handle the flow from 33 bathrooms of residential units. In approving this permit, the Citrus County Health Department used the 150 gallons per day discharge for residential units rather than the 100 gallons per day discharge from a motel unit. The water table at this location is two feet above mean sea level. This is determined by the elevation reached at high tides for 14 consecutive days. As a condition to Citrus County withdrawing as an intervenor in these proceedings, Applicant agrees: To revegetate and restore any alleged wetlands affected by the permit to a like or similar condition; To install three shallow draft monitor wells around the drain field towards the wetlands area adjacent to the site and towards Woods 'n Waters subdivision, establish an existing level of bacteria count prior to the activation of the septic tank, and to monitor said wells through the Citrus County Health Department on a quarterly basis; and In the event any monitor wells shall test at an unsatisfactory level, Applicant will forthwith correct this condition to the satis- faction of the Citrus County Health Department. This application meets all of the code requirements of Chapter 10D-6, Florida Administrative Code.
Findings Of Fact Cooper City Utilities, Inc. provides water and sewer service to its customers in Broward County, Florida, under the jurisdiction of the Commission pursuant to Chapter 367, Florida Statutes. The company was incorporated in 1973. All of the outstanding stock of the utility was owned by Moses Hornstein until his death on October 28, 1979, when ownership thereof became vested in the estate of Moses Hornstein, deceased. The personal representatives of this estate are Gertrude Hornstein, S. Lawrence Hornstein, and Judith A. Goldman. Gertrude Hornstein serves as president of Cooper City Utilities, Paul B. Anton as vice president, and Lawrence Lukin as secretary. Quality of Service At the hearing, a representative of the Broward County Health Department testified concerning the quality of service. Although some customer complaints had been received, there are no outstanding citations against Cooper City Utilities, Inc., and the quality of the utility's service will be improved when its new lime-softening plant, under construction, is completed in approximately August, 1980. The investigation by the Commission's staff engineer did not reveal any outstanding citations against either the water or sewer treatment facilities. Accordingly, on the basis of the entire record, the evidence supports a finding that the utility is in compliance with all state standards, and that the quality of its water and sewer service is satisfactory. Rate Base and Operating Statement Between the time in July when public hearings commenced, and September 24 when the hearings concluded, the utility abandoned its position on several matters which had been in dispute, leaving only two controverted subjects for resolution. These two remaining areas of disagreement are, (1) the cost of money [because of a pending petition for approval of additional financing (Docket No. 800562-WS)], and (2) the expense for an additional field laborer hired subsequent to the test year, which the utility seeks to have included as a pro forma expense. Based on the stipulation of the parties, the following schedule sets forth the rate base of Cooker City Utilities (Exhibit 15): Water Sewer Utility plant in service $2,331,137 $3,723,347 Plant held for future use (47,989) (166,375) Accumulated depreciation (286,651) (460,297) CIAC (net of amortization) (1,322,487) (2,302,707) Working capital allowance 51,083 37,680 Rate Base $ 725,093 831,648 Based on the stipulation of parties, prior to any consideration of the allowance of any expense for the laborer hired subsequent to the test year, the following schedule sets forth the utility's operating statement (Exhibit 15): Water Sewer Operating Revenues $ 368,562 $ 489,886 Operating Expenses: Operation 346,916 232,406 Maintenance 61,750 69,030 Depreciation 22,447 25,543 Amortization -0- -0- Taxes other than income 55,853 75,043 Other expenses -0- -0- Income taxes -0- -0- Total Operating Expenses $ 486,566 $ 402,022 Operating Income (Loss) $ (118,404) 87,864 5. On the matter of allowance of sufficient revenue to cover the cost of one additional laborer hired after the test year, the estimated annual expense is approximately $7,240. However, to the extent that this employee was hired due to an increase in the number of customers subsequent to the test year, or due to plant capacity not used and useful, it is not a proper pro forma adjustment. Without an affirmative showing that the laborer was necessary during the test year for existing customers, the adjustment should be disallowed, and there is insufficient evidence in this record to support such a finding. On the issue of cost of money, during the test year the utility's capital structure was composed of one hundred percent debt at a stated cost of ten percent. In Docket No. 800562-WS the company seeks Commission authority to borrow an additional sum of $450,000, and it plans to amend this application to include authority to borrow $400,000 more in order to make refunds to customers in compliance with a Commission order which was upheld in Cooper City Utilities, Inc. v. Mann (Fla. Sup. Ct. Case No. 58,047, September 12, 1980). However, the utility's proposed debt has not yet been approved by the Commission, and will not be incurred until some time in the future, if approved. In these circumstances, it is not appropriate to take the cost of new debt into consideration in determining cost of capital in this rate case. The evidence in the record supports a ten percent cost of capital. The earned rate of return for the water system is a negative 16.33 percent. The earned rate of return for the sewer system is 10.57 percent. Therefore, the utility's water rates should be increased, and its sewer rates should be decreased, to achieve an overall ten percent rate of return. Accordingly, the annual revenue requirement for the water system is $564,370, which amounts to an annual revenue increase of $195,808. The annual revenue requirement for the sewer system is $485,067, which amounts to an annual revenue decrease of $4,819. Rate Structure The present rates of Cooper City Utilities are structured in the conventional manner, consisting of a minimum gallonage charge and a one-step excess rate over the minimum. The utility proposes. rates with the same basic structure, but with changes in the minimum charge and the minimum gallonage allowance. However, the Commission has consistently taken the position that any rate that requires customers to pay for a minimum number of gallons, whether used or not, is discriminatory. Invariably, a base facilities type of rate structure has been required to be implemented in these circumstances. Under the base facilities charge, each customer pays a pro-rata share of the related facilities cost necessary to provide service, and in addition, pays only the cost of providing the service actually consumed under the gallonage charge. The evidence in this record supports the implementation of the base facilities charge form of rate structure. Under its tariff, Cooper City Utilities is authorized to charge guaranteed revenues in an amount equal to the minimum rate for water service and the applicable rate for sewer service for each equivalent residential connection to be served for a period of one calendar year in advance. Under the base facilities charge type of rate structure, the utility should be authorized to collect guaranteed revenues solely in the amount of the base facilities charge.
Recommendation Based upon the findings of fact and conclusions of law set forth above, it is RECOMMENDED that the application of Cooper City Utilities, Inc., 3201 Griffin Road, Suite 106, Fort Lauderdale, Florida, 33312, be granted for the water system and denied for the sewer system, and that the utility be authorized to file revised tariff pages, containing rates designed to produce annual gross revenues of $564,370 for its water system and $485,067 for its sewer system. It is further RECOMMENDED that the utility be required to implement a base facility charge type of rate structure. It is further RECOMMENDED that the utility be required to make appropriate refunds to its sewer customers in amounts to be approved by the Commission. It is further RECOMMENDED that the rate-refunding bond filed in this docket be maintained until the utility has accomplished the refunds indicated above. THIS RECOMMENDED ORDER entered on this 18th day of November, 1980, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 1980. COPIES FURNISHED: Andrew T. Lavin, Esquire Post Office Box 650 Hollywood, Florida 33022 Sam Spector, Esquire Post Office Box 82 Tallahassee, Florida 32302 James L. Ade and William A. Van Nortwick, Esquires Post Office Box 59 Jacksonville, Florida 32201 John W. McWhirter, Jr., Esquire Post Office Box 2150 Tampa, Florida 33601 Alan F. Ruf, Esquire 2801 East Oakland Park Boulevard Fort Lauderdale, Florida 33306 William H. Harrold, Esquire Florida Public Service Commission 101 East Gaines Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA PUBLIC SERVICE COMMISSION In re: Application of Cooper City DOCKET NO. 800415-WS (CR) Utilities, Inc. for a rate increase ORDER NO. 9699 to its water and sewer customers in DOAH CASE NO. 80-1188 Broward County, Florida. ISSUED: 12-16-80 / The following Commissioners participated in the disposition of this matter: WILLIAM T. MAYO GERALD L. GUNTER JOSEPH P. CRESSE JOHN R. MARKS, III Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William B. Thomas, held public hearings in this matter on July 16 and 17, and on September 23 and 24, 1980, in Cooper City, Florida. The Division of Administrative Hearings assigned Case No. 80-1188 to the above-noted docket. APPEARANCES: Andrew T. Lavin, Esquire Post Office Box 650 Hollywood, Florida 33022 and Sam Spector, Esquire Post Office Box 82 Tallahassee, Florida 32302 for the Petitioner, Cooper City Utilities, Inc. James L. Ade and William A. Van Nortwick, Esquires Post Office Box 59 Jacksonville, Florida 32201 for PCH Corporation Intervenor in opposition. John W. McWhirter, Jr., Esquire Post Office Box 2150 Tampa, Florida 33601 and Alan F. Ruf, Esquire 2801 East Oakland Park Boulevard Fort Lauderdale, Florida 33306 for the City of Cooper City, Florida, Intervenor in opposition. William H. Harrold, Esquire Florida Public Service Commission 101 E. Gaines Street Tallahassee, Florida 32301 for the Respondent, Florida Public Service Commission and the public generally. The Hearing Officer's Recommended Order was entered on November 18, 1980. The time for filing exceptions thereto has expired and no exceptions have been filed. After considering all the evidence in the record, we now enter our order.
The Issue The issues in this case essentially are whether the Respondent, the Department of Environmental Regulation (DER), should reimburse Anthony F. Kopp, Owner, La Casa Del Sol, for the difference between the cost to him of the DER's remedy for the EDB contamination of the drinking water supply at La Casa Del Sol and the remedy that is least costly to the Petitioner, together with the cost of a new irrigation system, engineering and attorney fees, and other incidental costs to the Petitioner.
Findings Of Fact The Petitioner, Anthony F. Kopp, is the owner of La Casa Del Sol (La Casa), a 40-acre development at 1255 U.S. Highway 27 North, Davenport, Florida. La Casa is divided into 309 mobile home lots, a clubhouse and five acres of common green space. In January, 1987, the Petitioner received a permit for construction of a water supply system for both drinking water and irrigation needs at La Casa. The construction permit was granted with the proviso that, when La Casa's population reached 350, a second backup drinking water well, six inches in diameter at 410 feet, with a casing to 366 feet, and an auxiliary power source would have to be installed. It would cost La Casa approximately $65,000 to install the backup well and auxiliary power source. La Casa did not reach a population of 350 until January, 1991. The St. Johns River Water Management District permitted the construction of the backup well, but the well never was constructed, and the construction permit now has expired. The auxiliary power source also was not installed. The main water supply system for La Casa was installed during the summer of 1987. It included a well and a system of lines for carrying water to each of the 309 lots. It also included hose bibs (faucets) at each lot so that the water also could be used for irrigation at each lot. The system also supplied water for irrigation of the common green space. Although all of the lots at La Casa were connected to the water supply system in the manner described, not all the lots had homes on them. During the summer of 1989, only about 175 of the lots had homes on them; by January, 1991, 198 lots had homes on them. Although not all of the lots were occupied, the entire water supply system was permitted, and no additional permits were required to provide water to the lots. However, when La Casa's population reached 350, the backup well and auxiliary power source would have to be installed under the permit conditions. In about May, 1988, DER tests showed that the La Casa water supply system was contaminated with ethylene dibromide (EDB) at levels in excess of the maximum allowable for drinking water. In October, 1988, the Petitioner completed and filed a Grant Application for EDB Clean-Up Funds. As part of the application, the Petitioner agreed that DER could: arrange for the purchase and installation of appropriate filters and inhibitors; provide a new well; or arrange for the connection of [the Petitioner's] well to an existing public supply system, whichever is more cost-effective as determined by the Department of Environmental Regulation. DER contracted with Continental Water Systems to provide a temporary carbon filter system for La Casa's water supply system to remove the EDB and supply uncontaminated drinking water to the development, pending a permanent solution to the EDB contamination. The temporary filter system was designed to provide 100 gallons per minute of water, which should have been adequate for drinking water needs at La Casa. However, water pressure problems arose due to algal growth and the use of the system for irrigation purposes in addition to the drinking water purposes for which it was designed. DER is a member of the Ground Water Task Force, which met biweekly or monthly to discuss, among other things, potable wells contaminated with EDB. Other member agencies are the Department of Heath and Rehabilitative Services, the Department of Agriculture and Consumer Services, the Department of Transportation and the Department of Community Affairs. The Task Force discussed the La Casa contamination problem and agreed that the possibility of having La Casa connected to an existing water supply should be explored. DER began negotiating both with Polk County and with Haines City for a water line connection. Connection with the Polk County line would have been more expensive, and Polk County was not particularly interested in extending its line. Negotiations continued with Haines City. Negotiations with Haines City progressed to the point that DER was able to present for consideration by the Task Force cost figures for a permanent filter system at La Casa, with ten years of projected cost of operation and maintenance, as compared to the cost of extending the Haines City line. The Task Force agreed with DER that extending the Haines City line north to La Casa and connecting La Casa to it was the most cost-effective use of state funds to remedy the EDB problem at La Casa, particularly in view of other EDB-related drinking water supply problems in the area and anticipated future drinking water supply problems in the area. The Petitioner was not invited to participate in the negotiations with Polk County and Haines City and did not participate in them. Nor was the Petitioner invited to participate in either the DER or the Task Force decision- making process, and the Petitioner did not participate in those processes, either. However, the Petitioner, through his engineering consultant, was made aware in early 1989 that DER was exploring options to have La Casa connected to an existing water supply. DER paid approximately $400,000 for the Haines City water line extension and La Casa connection. This included $90,000 for Haines City impact fees to cover the 175 then existing mobile homes at La Casa (DER actually paid $450 per unit for 200 units), as well as the plumbing contractor fees for connecting La Casa to the extended city water line. It also includes the cost of installing a water meter at La Casa. The ten-year cost to the DER to solve just the La Casa drinking water problem using an EDB filter system would have been less than the cost to the DER of extending the Haines City line and connecting La Casa to it. But the evidence is clear that, in the long run, and taking into consideration other EDB-related drinking water supply problems in the area, and anticipated future drinking water supply problems in the area, the most cost-effective use of state funds to remedy the problem was to extend the Haines City line and connect La Casa to it. (Even the Petitioner's expert witness agreed that the Haines City extension and connection was the most cost-effective use of state funds to remedy the area's EDB problem.) DER advised the Petitioner of its agreement with Haines City in approximately May or June, 1989. By letter dated July 27, 1989, DER explained to the Petitioner the details of the agreement, specifically what DER would pay and what DER would not pay. By the fall of 1989, the Petitioner knew that work was beginning. At the time, the extension of the Haines City line and connection to La Casa was projected for completion in January, 1990, but there were delays, and the city water supply was not ready to be connected to La Casa until August, 1990. By this time, a dispute had arisen between the Petitioner and DER as to the cost to the Petitioner of connecting to the city water, and actual connection was further delayed. Finally, by letter dated October 11, 1990, DER gave the Petitioner an ultimatum: either be connected to the city water supply; or forfeit any state contribution to the cost of remedying the EDB contamination of the Petitioner's water supply. Faced with the prospect of having to open the winter peak season without any drinking water, the Petitioner agreed, under protest, to be connected to the city water supply, and initiated formal administrative proceedings to challenge DER's intended decision to limit the extent to which the DER would cover the Petitioner's costs. There was evidence that the plumbing contractor hired by DER may have caused damage to the landscaping and one mobile home that has not yet been repaired. However, DER acknowledged its responsibility for the damage and intends to have the plumbing contractor repair the damage. There also was evidence that the Petitioner received a bill from Haines City for the installation of a water meter at La Casa. But the evidence also was that DER may already have paid the bill. In any event, DER acknowledges its responsibility for the cost of the water meter as part of the cost of connecting La Casa to the extended city water line. Although DER had the Haines City water line extended in response to the Petitioner's Grant Application for EDB Clean-Up Funds, two commercial properties south of La Casa were connected because of EDB contamination, and the line also was extended north of La Casa in preparation to address anticipated future EDB contamination problems. Under the DER's response to the Petitioner's Grant Application, each additional mobile home unit over 200 connected to the city water supply will require the payment of a $450 impact fee. In addition, Haines City will charge monthly water fees of $1.80 1/ per 1000 gallons for the use of water at La Casa, with a $1,000 minimum charge per month. 2/ Based on current occupancy of 200 lots, the Petitioner estimates water fees of $42,000 per year, figured at approximately $5,000 per month for six peak months (based on a recent peak season monthly bill) and $2,000 per month for six off-peak months. However, it is not clear whether some of that estimated usage includes irrigation. If, in order to save gallonage fees, the Petitioner puts in a separate irrigation system supplied by its well, it will have to put in a separate distribution system since the current system is being used to bring city water to the lots. This would cost approximately $90,000. The Petitioner has paid approximately $2,100 in engineering fees to assess the problem with the temporary filter and to propose solutions, to estimate the cost of installing a separate irrigation system, and to estimate the cost to the Petitioner of connecting to the Haines City water supply. There was no evidence as to the reasonableness of those fees. The Petitioner also has paid approximately $4,500 in attorney fees to negotiate with the DER for payment of a larger portion of the Petitioner's cost of connecting to the Haines City water supply. There was no evidence as to the reasonableness of the attorney fees.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order dismissing the Amended Petition for Formal Hearing in this case. RECOMMENDED this 14th day of March, 1991, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 14th day of March, 1991.
