Findings Of Fact At all times material to this case, the Respondent, Joseph Lawton, was licensed as a registered roofing contractor in the State of Florida, holding license number RC 0052537. At all times material to this case, the Respondent was the qualifying agent for All Florida Systems located in Fort Lauderdale, Florida. The Notice of Hearing was mailed to Respondent at his last known address. Ronald Klein lives at 8245 Northwest Ninety-fifth Avenue, Tamarac, Florida. A portion of the roof on Mr. Klein's residence is flat and a portion is pitched. In the middle of August, 1987, Respondent met with Mr. Klein at the Klein residence to discuss Mr. Klein's roofing needs. Respondent told Mr. Klein during their meeting that the flat portion of his roof needed to be re-roofed and quoted a price for the work that Mr. Klein found acceptable. This was the only meeting between Mr. Klein and Respondent and was the only time Mr. Klein has seen Respondent. There was no written contract between Respondent and Mr. Klein because Respondent did not mail to Mr. Klein a written contract as he had agreed to do. On Sunday, August 30, 1987, Earl Batten, one of All Florida System's workers, re-roofed the flat portion of Mr. Klein's roof. Mr. Klein paid Mr. Batten $1,575.00 for the work pursuant to the verbal agreement between Respondent and Mr. Klein. Mr. Klein made his check payable to Earl Batten because Respondent had told Mr. Klein to pay his worker when the work was completed. Mr. Klein noted on the check that the check was in payment of work done by All Florida Systems. Respondent did not obtain the permits required by local law for the work done on the Klein residence. Because there was no agreement to the contrary, it would have been Respondent's responsibility to obtain the permits required by local law. Respondent did not obtain the inspections required by local law for the work done on the Klein residence. Because there was no agreement to the contrary, it would have been Respondent's responsibility to obtain the inspections required by local law. Mr. Klein's roof began leaking after Mr. Batten completed his work on August 30, 1987. In response to three weeks of repeated telephone calls from Mr. Klein, Respondent sent one of his supervisors to inspect Mr. Klein's roof. The supervisor told Mr. Klein that the work had to be redone because the work on the flat roof had not been properly tied into the remainder of the roofing system. Mr. Klein was further advised by the supervisor that Respondent would be in contact with Mr. Klein. After Respondent failed to respond further, Mr. Klein hired a second roofing contractor who corrected the deficient work in October of 1987 at a price of $1,377.00. Between the time Mr. Batten worked on his roof and the time the second contractor corrected the deficiencies, Mr. Klein sustained damages to his residence which required expenditures of over $1,500.00 to repair. Respondent was previously disciplined by the Construction Industry Licensing Board in Case No. 90265.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding Respondent guilty of having violated Sections 489.129(1)(d) and (m), Florida Statutes, and which imposes an administrative fine against Respondent in the amount of $5,000.00 and places Respondent on probation for a period of one year. DONE and ENTERED this 19th day of May, 1989, in Tallahassee, Florida. CLAUDE B. ARRINGTON 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 19th day of May, 1989. APPENDIX The findings of fact contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 18, 19, 20, 22 are adopted in substance; insofar as material. The findings of fact contained in paragraphs 16, 17, 21 of Petitioner's proposed findings of fact are subordinate. COPIES FURNISHED: Elizabeth R. Alsobrook, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph Lawton 1000 South Ocean Boulevard Apartment 6C Pompano Beach, Florida 33062 Kenneth E. Easley, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seely, Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201
The Issue Whether the allegations in the Administrative Complaint filed by the Department of Business and Professional Regulation, Division of Hotels and Restaurants (Petitioner), against Koy Wan Hibachi Buffet (Respondent) are correct.
Findings Of Fact The Petitioner is the state agency charged with regulation of restaurants pursuant to chapter 509, Florida Statutes (2013).1/ At all times material to this case, the Respondent was operating as a large buffet-type public restaurant located at 945 West State Road 436, Suite 1179, Altamonte Springs, Florida 32714. On April 22, 2013, Amy Zaleski and Cecelia Chiu, trained and experienced sanitation and safety specialists employed by the Petitioner, performed a routine inspection of the Respondent, during which the inspectors observed various violations of the Code. At the conclusion of the routine inspection, Ms. Zaleski prepared a written report documenting the Code violations observed by the inspectors. Before leaving the premises, Ms. Zaleski provided a copy of the inspection report to a manager identified as Ander Chow and discussed the violations with him. According to the inspection report, the violations were to be corrected by 8:00 a.m., on June 21, 2013, at which time a "callback" inspection was scheduled to occur. The purpose of the callback inspection was to determine whether the Code violations identified during the routine inspection had been corrected. On June 24, 2013, Inspectors Zaleski and Chiu performed a callback inspection of the Respondent and observed that some of the Code violations observed during the routine inspection had not been corrected. At the conclusion of the routine inspection, Ms. Zaleski prepared a written report documenting the Code violations observed by the inspectors. Before leaving the premises, Ms. Zaleski provided a copy of the inspection report to a manager identified as Melody Chen and discussed the violations with her. The Code classifies violations as either "high priority," "intermediate" or "basic," essentially reflecting the level of threat to public health posed by a deficiency. A high priority violation is one that poses a direct or significant threat to public health. An intermediate violation is one that, uncorrected, could develop into a high priority violation. A basic violation is one of core sanitation and maintenance requirements that does not meet the level of a high priority or intermediate violation. Count 1 Raw oysters and other "shellstock" are sold to restaurants in containers that are tagged to identify the source of the product and the date of the harvest. The relevant portion of the Code requires that establishments serving shellstock must prevent the comingling of products from different sources and harvest dates. The Code also requires establishments to retain the tags for 90 days to permit identification of the source and date of harvest. The purpose of the requirement is to facilitate identification of a potential source of contaminated shellstock after an occurrence of food-borne illness by persons consuming the product. The Respondent offered raw oysters available for public consumption. On the dates of both the routine and the callback inspections, the Respondent was unable to make the shellstock tags available for inspection, and the Petitioner cited the Respondent for failing to maintain the tags in the manner required. The Petitioner classified the deficiency as an intermediate violation. At the hearing, the Respondent asserted that the tags were properly maintained and available at the time of the inspections, and that the managers present at the time of the inspections were not sufficiently proficient at speaking English to understand the inspectors' request. The assertion was not supported by credible evidence. The Respondent was unable to demonstrate compliance with the tag retention requirement on the dates of the inspections. Counts 2 and 3 The relevant portion of the Code requires that certain food products be stored within specified temperature ranges to minimize the potential for bacterial growth. In the alternative, establishments may use "time control" to monitor the safety of potentially hazardous food. Essentially, an establishment can meet Code requirements either by controlling the temperature at which the product is held or by limiting the time during which the product must be consumed, cooked or discarded. In Count 2, the Petitioner alleged that during both the routine and the callback inspections, the temperatures of various food items including "Krab," sprouts, shrimp, raw pork, surimi, boiled eggs, and cut melon failed to comply with the temperature- based requirements of the Code. The Petitioner classified the deficiency alleged in Count 2 as a high priority violation. In Count 3, the Petitioner alleged that during both the routine and the callback inspections, sushi, a potentially hazardous food being served on the buffet line, failed to comply with the temperature-based requirements of the Code. The Petitioner classified the deficiency alleged in Count 3 as an intermediate violation. The Respondent asserted that it used time control to monitor the products for safety. The Code requires that an establishment choosing to use time control must have written documentation identifying the practices implemented and must make the documentation available to the Petitioner on request. The Respondent was unable to produce written documentation of the time control procedures during either the routine or the callback inspection. Count 5 The relevant portion of the Code prohibits storage of food on the floor because dirt, bacteria, and floor cleaning chemical residue can contaminate food stored on the floor. During both the routine and the callback inspections, the Petitioner's inspectors observed boxed food being stored on the floor of a walk-in freezer. This deficiency was classified as a basic violation. At the hearing, the Respondent asserted that the products had been delivered just prior to the inspections, the delivery employee placed the boxes on the freezer floor, and Respondent's employees had not yet moved the boxes from the floor to the shelves. The assertion was not supported by credible evidence. Count 6 The relevant portion of the Code provides that an employee may drink from a closed beverage container if the container is handled in a manner which prevents contamination of the employee's hands, the container, exposed food, and clean equipment and utensils. The Petitioner alleged that the Respondent violated the Code because inspectors observed an employee's beverage container on a food prep counter. The evidence is insufficient to establish that the potentially permissible beverage container was not handled in such a manner as to comply with the requirements of the Code. Count 9 (Part A) The relevant portion of the Code requires that food contact surfaces must be "clean to sight and touch" to prevent bacterial contamination. During both the routine and the callback inspections, meat-cutting boards at cooking stations were stained and soiled. Count 9 classified the deficiency as an intermediate violation. Counts 10 and 12 The relevant portion of the Code requires that "a handwashing sink shall be maintained so that it is accessible at all times for employee use" and that the sink "shall be equipped to provide water at a temperature of at least 100 degrees." During both the routine and the callback inspections, one of the 12 handwashing sinks available to employees had various items stored in it, and there was no hot water available at that sink. Count 10 identified the hot water deficiency as an intermediate violation. Count 12 classified the accessibility deficiency as an intermediate violation. The Respondent asserted that the hot water supply line was leaking at that particular sink and so it had been turned off. The items were placed in the sink to prevent its usage. The evidence failed to establish the reason the sink remained unrepaired after being cited as a deficiency during the routine inspection. Count 11 The relevant portion of the Code requires that a vacuum breaker device be installed on certain plumbing fixtures to prevent the backflow of contaminated water into the water supply system. During both the routine inspection and the callback inspection, the inspectors observed that a splitter fitting had been installed on the mop sink faucet and that no vacuum device was present. This deficiency was classified as a high priority violation. Count 13 The relevant portion of the Code requires that the operator of an establishment take effective measures to protect the premises from infestation by vermin, such as roaches. During the routine inspection, a gap was visible at the threshold of an exterior door at the rear of the restaurant through which vermin could enter the building. During the routine inspection, inspectors observed dead roaches inside a cabinet under a "soft-serve" ice cream machine, in a cabinet under a handwash sink, on the floor at a "wait station," and inside a storage area where unused equipment was located. Roach excrement was present on the gasket of an unused cooler located in the storage area. During the callback inspection, the gap remained unrepaired. Inspectors again observed dead roaches inside a storage area where unused equipment was located and roach excrement on the gasket of an unused cooler. Roaches present a risk of bacterial contamination and disease to surfaces and food contact areas. Count 13 classified presence of vermin as a high priority violation and the gap under the exterior door as a basic violation. Count 15 The relevant portion of the Code requires that carbon dioxide and helium tanks be adequately secured. An unsecured carbon dioxide tank can fall over, explode, and become a dangerous projectile. During both the routine inspection and the callback inspection, inspectors observed a carbon dioxide tank stored in an upright position without being properly secured. This deficiency was classified as a basic violation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order imposing a fine of $6,900 against the Respondent and requiring that the Respondent complete an appropriate educational program related to the violations set forth herein. DONE AND ENTERED this 2nd day of April, 2014, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 2014.
Findings Of Fact The respondent; Dr. Asher S.A. Padeh d/b/a Ladon Apartments, currently operates under license number 23-5073H. The Ladon Apartments is located at 2217 Normandy Drive, Miami Beach, Florida. On September 16, 1985, the petitioner conducted an inspection of the Ladon Apartments. At this time the following conditions were noted: (a) there was no proof that the fire extinguishers had been serviced the tags were missing (b) the clean out plug in the rear of the apartments had been removed to alleviate indoor plumbing problems, and effluent was all around the area (3) a refrigerator was located outside the apartments (4) the state operational license had not been posted. As a result of the inspection, Dr. Padeh was sent a notice which stated, "WARNING Minor and/or major violations in the operation of your establishment must be corrected by 10 days from notice." The notice explained what had to be done to remedy the situation. On October 7, 1985, petitioner conducted a call back inspection of the premises. None of the violations had been corrected. However, there was no evidence presented to show that this inspection occurred after ten days from receipt of the notice. Although Dr. Padeh received the notice sometime in late September or early October, insufficient evidence was presented to find that respondent received it ten days before the inspection of October 7, 1985. On or about November 1; 1985, petitioner issued a Notice to Show Cause which alleged that respondent was in violation of various statutes and rules based on the conditions noted on September 16, 1985, which remained uncorrected on October 7, 1985. An informal hearing was scheduled for November 19, 1985. 1/ On November 9, 1985, Dr. Padeh completed the Request for Hearing form attached to the Notice to Show Cause. Under the statement "Disputed issues of fact", Dr. Padeh referred to the four violations alleged stating, "They have all been corrected since." On November 15, 1985, another inspection of the apartments revealed that the only condition that had been corrected was that the refrigerator had been removed from the premises. On February 17, 1986, petitioner conducted another inspection, due to the impending hearing in this cause, and found that all of the problems had been corrected. Mr. Delgado, the manager of the Ladon apartments, testified that he tried to fix everything as soon as possible after being informed of the violations. He explained that the clean out plug had to be replaced several times because the tenents would remove it everytime it was replaced. As of the date of the hearing, the clean out plug had been permanently affixed. The fire extinguishers always had been properly serviced, but the tags had been removed or had blown away. The tags are now taped on and the extinguishers are protected from the wind. The refrigerator outside the building had been taken out of an apartment, and its door had been removed. The city had been called to pick it up, but it took the city a couple of weeks before they came and removed it. The state license is now posted over the mailboxes. Although Mr. Delgado explained why the problems existed and what he had ultimately done to correct them, there was no evidence presented that would explain or justify respondent's failure to have all the violations corrected prior to the November inspection.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered finding that respondent violated rules 7C-1.02(1), 7C-1.04(l)and 7C-3.0l(l), Florida Administrative Code, and assessing a fine of $200 for each of the violations, for a total amount of $600. DONE and ENTERED this 30th day of April, 1986, in Tallahassee, Florida. DIANE A. GRUBBS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 1986.
The Issue Whether, under the facts and circumstances of this case, Respondent is guilty of the violations alleged in the Amended Notice To Show Cause issued November 9, 1989 by the Division of Hotels and Restaurants, Department of Business Regulation.
Findings Of Fact Upon consideration of the evidence adduced at the hearing, the following relevant facts are found: At all times material to this case, the Respondent, Barkap, Inc., d/b/a Flamingo Inn (Flamingo) held a valid public lodging establishment license located at 2011 South Atlantic Avenue, Daytona Beach, Volusia County, Florida, license number 74-03605H. Flamingo is operated by Peter Kappelman, President of Barkap Inc., and his wife who is also a corporate officer of Barkap, Inc. Flamingo has only 24 rental units. Prior to June 1988, George Houllis, Environmental Health Inspector, with the Division of Hotels and Restaurants (Division), was assigned to inspect Flamingo's establishment. While attempting to inspect a fire extinguisher Houllis broke the glass in the door of a cabinet containing a fire extinguisher. Houllis contends that the glass door was already cracked, while Kappelman contends that it was not cracked, and that Houllis attempted to "cover it up". At Kappelman's insistence, the Division paid for the repair at a cost of approximately $35.00. However, as a result of this incident, Charles Casper, another Environmental Health Inspector with the Division, was assigned to inspect the Flamingo establishment beginning June 1988. The Division's policy is to inspect licensed public lodging establishments on a quarterly basis and, in accordance with that policy, Charles Casper inspected the Flamingo on at least a quarterly basis beginning in June 1988. Shortly after Casper began inspecting the Flamingo, the relationship between Casper and Kappelman deteriorated and reached a point where each party became personal with their remarks, with Kappelman refusing to sign the inspection report, describing Casper's behavior as "Gestapo methods", and alleging that the Flamingo was being treated differently than other establishments along the "strip" on Daytona Beach. While Casper may have been strict with his inspections of the Flamingo, there is insufficient evidence to show that his behavior could be described as arbitrary or that he treated the Flamingo differently than any other licensed establishment. Violations of a minor nature are normally cited on the inspection report to document, warn or educate the licensee of corrections that need to be made, usually by the next routine inspection date. However, where corrections of minor violations are not made by the date indicated on the inspection report, a minor violation can become a major violation, usually at the discretion of the inspector. The Flamingo had been warned on the September 12, 1988 inspection report by Casper for having exit doors propped open on all floors and listed the violation as a minor violation. There was no date for making the correction on the report, but two subsequent inspection reports dated December 15, 1988 and January 12, 1989 did not show exit doors being propped open as a violation on those dates. The record is not clear as to why another inspection was made within a month of the December 15, 1988 inspection, but apparently it was a follow-up inspection concerning a major violation listed on the September 12, 1988 inspection report concerning locking devices on doors wherein a Notice To Show Cause was issued. However, this matter was settled without the necessity of a hearing and the case dismissed. Flamingo was cited again on June 5, 1989 for having exit doors propped open with wooden wedges and advised to remove all props from the exit doors and given until the next routine inspection date to make the correction. The next routine inspection of the Flamingo was on September 25, 1989, and at that time Flamingo was cited again for having exit doors propped open with wooden wedges on the first second and third floors. Since the same violation had been cited on June 5, 1989 and not corrected by the time of the next routine inspection on September 25, 1989, Casper considered this violation as a major violation and requested that a Notice To Show Cause be issued. In addition to the major violation cited on September 25, 1989, Casper cited six minor violations on the inspection report issued on September 25, 1989. These violations were as follows: (1) Failure to provide exit sign for stairway exit door; (2) Failure to maintain walkway emergency light in good repair; (3) Failure to maintain fiberglass shower liners, building exteriors, stairways, inside cabinet under sink and walls in good repair and failure to maintain proper cleanliness of back panel and wall behind trash can; (4) Failure to maintain proper cleanliness of tub and bathroom walls in good repair (walls need paint); (5) Failure to provide covers for exterior trash cans and; (6) Failure to provide room rate for door in unit number 204. A Notice To Show Cause was issued by the Division on November 9, 1989 charging Flamingo with the major and minor violations discussed above. Casper conducted a pre-conference re-inspection of Flamingo on November 28, 1989 to determine compliance with the September 25, 1989 inspection report. While Flamingo did not totally comply by correcting all cf the violations cited in the September 25, 1989 inspection report, it did correct several of the violations. For convenience, Kappelman leaves the wooden wedges in the vicinity of the exit doors for use by the guest in propping open doors while carrying luggage in and out of their rooms and the cleaning staff while carrying linen and other items in and out of the rooms and other areas of the motel. Kappelman did not remove the wooden wedges from the vicinity of the exit doors after Flamingo was cited for this violation on June 5, 1989. Casper did not observe any persons, including maids or guest, in the vicinity of the exit doors that were propped open on September 25, 1989. Although not every inspection report shows the time of day the inspection was made, those reports that do show the time indicate the inspection was made during the time of day when the maids would be cleaning and guests would be checking out of their rooms. Flamingo is aware that the doors are being propped open for short periods of time for the purposes previously stated but does not feel that this is a violation. The minor violation cited in the September 25, 1989 inspection report concerning the missing exit sign on second floor west was not cited in the November 28, 1989 inspection report as a violation. Apparently it had been corrected, because the exit sign was missing on September 25, 1989 as admitted to by Kappelman. However, there is insufficient evidence to show that there was not another approved exit sign that clearly marked the exit and visible from any direction of the exit access. Likewise, there was insufficient evidence to show that low level exit signs were specifically required in the Flamingo. The minor violation cited in the September 25, 1989 inspection report for failure to maintain the walkway emergency light by Room 106 in good repair in violation of Rule 7C-1.004(3), Florida Administrative Code, was also cited in the November 28, 1989 inspection report as a violation. However, there was insufficient evidence to show that the area of Flamingo serviced by this emergency light would not be well-lighted during the day and night in the event the regular light was not functioning. On September 25, 1989 Casper inspected Rooms 204 and 303 as suggested by Kappelman because these rooms were unoccupied and available for rent. In both rooms (204 and 303) Casper cited Flamingo for bathtub liners having loose caulking resulting in the liner separating from the wall. The violation had not been corrected at the time of the re-inspection on November 28, 1989. Casper cited cleanliness violations on September 25, 1989 as follows: (1) in room 204 a substance on back portion of cabinet; (2) hair on tub in room 303; (3) splatter on wall behind trash can in room 303; and (4) exterior trash can lid missing by rooms 103 and 106. The re-inspection report indicates the splatter on wall behind trash can to be in room 204 rather than room 303 as indicated in September 25, 1989 inspection report. Kappelman admits that a splatter the size of a quarter was present. The remaining cleanliness citations in the September 25, 1989 inspection report appear to have been corrected at the time of re-inspection. Numerous cracks were noted on the exterior of stairwell and outer walls on September 25, 1989. Casper assumed these cracks to be maintenance cracks and not structural in nature (settling cracks) because, with one exception, the cracks did not have any monitoring devices (measuring gauges). These cracks were still evident at the re-inspection. However, the cracks previously had measuring gauges to determine if there was settling, but had been removed without Kappelman's knowledge. The record is not clear whether the cracks were eventually determined to be structural or maintenance cracks. However, all of the cracks were monitored for a period of time. In any event, the cracks had not been repaired at the time of re-inspection, but are now repaired. Casper determined that the "paint job" on the bathroom walls in Room 303 was poor because it appeared that there was only one coat of paint resulting in the dry wall bleeding through. There was no mention of the bathroom walls needing paint in Room 204. However, in the re-inspection report Casper noticed that the bathroom walls in Room 204 needed painting. It is not clear whether Casper made an error in room numbers or if both rooms needed painting and Room 303 had been corrected on November 28, 1989. However, it is clear that the bathroom walls in all rooms were not painted as such but the drywall was impregnated with paint to give the appearance of being painted. There is insufficient evidence to show that painting would be applicable in either room due to the type of wall. Flamingo was cited on September 25, 1989 for failure to have room rates posted in room 204. Based upon Casper's thorough job of inspecting that day, as testified to by Rappelman, it has been shown that that the room rates were neither posted on the door nor in the room, notwithstanding Kappelman's testimony to the contrary.
Recommendation In making the following recommendation I am mindful of the Division's "guidelines" of increasing the penalty five times for a major violation and doubling the penalty of a minor violation when the violation is not corrected at the time of the Informal Conference Call-Back Inspection. However, these guidelines would appear to have a "chilling effect" on a licensee's decision to challenge the Division in the administrative forum, and also conclusively presume that the penalty should be the same regardless of the facts and circumstances surrounding the violation. Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the circumstances surrounding the violations, it is, therefore, RECOMMENDED that the Petitioner enter a Final Order finding Respondent guilty of: (1) the major violation of securing exit doors in an open position in violation of Section 17-2.2.1(a) and 5.2.2.8 of the Code as adopted by Rule 4A-43.006, Florida Administrative Code; (2) the minor violation of failing to properly maintain the fiberglass liner and the cleanliness of the inside of the cabinet and the area behind the trash can in violation of Section 7C-1.003(1), Florida Administrative Code; (3) the minor violation of failing to keep the lid on an exterior trash can in violation of Section 7C-1.003(5), Florida Administrative Code, and (4) the minor violation of failing to post room rates in room 204 in violation of Section 7C-3.002(2), Florida Administrative Code, and for such violations assess an administrative fine of $100.00 for the major violation and $50.00 for each of the three minor violation for a total fine of $250.00. It is further recommended that all other violations cited in the Amended Notice to Show Cause be DISMISSED. DONE AND ENTERED this 3rd day of April, 1990, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of April, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 90-0183 Specific Rulings on Proposed Findings of Fact Submitted by the Petitioner 1-4. Adopted in Findings of Fact 1, 2, 3 and 3, respectively. 5-7. Adopted in Findings of Fact 4, 5 and 5, respectively as modified. Adopted in Findings of Fact 10 and 16. Adopted in Finding of Fact 15. Adopted in Findings of Fact 7 and 9. 11-12. Adopted in Findings of Fact 17, and 10, respectively. 13-16. Adopted in Findings of Fact (4,6), (7,9), 18, 19, and (20,21), respectively. Adopted in Findings of Fact 22 and 23 with the exception of the room number which should be 303. Rejected as not being supported by substantial competent evidence in the record. 19-21. Adopted in Findings of Fact 22, 5, and 25, respectively. 22. Not material or relevant to this proceeding. Specific Rulings on Proposed Findings of Fact Submitted by the Respondent The Respondent did not file any proposed findings of fact with the Division of Administrative Hearings. COPIES FURNISHED: Elizabeth C. Masters, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Paul J. Dubbeld, Esquire First Union Bank Building Suite 815 444 Seabreeze Boulevard Daytona Beach, Florida 32118 Fred Fluty, Director Division of Hotels and Restaurants Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Joseph A. Sole, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Stephen R. MacNamara Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007
Findings Of Fact Respondent Jackson County proposes to build a Class I landfill in western Jackson County, about 1.5 miles south of Campbellton on the west side of State Road 273. The named petitioners live near the proposed site, and all parties stipulated to petitioners' standing or party status on account of the proximity of their homes. The forecast is that the proposed landfill would be in service for 15 years, during the last of which it would receive wastes generated by 16,000 persons. Contingent on issuance of the construction permit it seeks in these proceedings, Jackson County has agreed to purchase 85 to 89 acres in section 15, township 6N, range 12W, of which 55 acres would be devoted to the proposed landfill. About ten of the remaining acres are covered by the southern reaches of Grant Pond. Grant Pond may be a sinkhole, but there is no connection between its waters and the Florida aquifer. There is no evidence of sinkhole activity on the site at the present time. One hundred ten feet from the southwest boundary of the proposed site long-time residents have shallow wells from which they once drew water with buckets. There are mostly small farms in the area. A trailer and 6 to 8 homes are located within 1,000 yards of the proposed site. LEACHATE NOT ANTICIPATED Jackson County contemplates eventually dumping 215 cubic yards daily of residential, commercial and agricultural wastes including sewage sludge, in a series of "cells" to H developed seriatim on the site. Developing a cell would entail digging a pit 15 feet deep, 200 feet wide and 650 feet long, lining it with some of the clay removed in excavating, and compacting the two-foot-thick clay bottom liner to 90 percent Proctor. The uncontroverted testimony was that such a liner would be impermeable. A cell is expected to accommodate about a year's worth of refuse. The plan is to have one cell in operation and another in reserve at all times. Waste would be compacted and then covered over with clay soils daily to minimize the possibility of leachate formation. In addition, a six-inch layer of clay would be put down at the end of each "lift," more or less weekly. Once the cell was completely filled, it would be covered with an even thicker layer of clay and/or other materials specified by applicable regulations. Against the possibility of leachate formation before the cell is finally sealed off, the bottom of the cell would be sloped (4:1) so that any leachate generated would accumulate at one point in the cell, from which it could be pumped to a leachate holding pond. The leachate holding pond is also to be lined with impermeable clays. The engineer who designed the project predicts that no leachate whatsoever will be generated and the project plans do not identify the specific method for disposing of leachate, once it reaches the holding pond. Depending on the quality and consistency of any leachate, it could be left in the holding pond to evaporate, or be removed by truck for disposal off site; or be treated biologically and/or chemically before being spread on site. STORMWATER The stormwater management system consists of a series of elongated detention ponds and two ditches, or swales, that drain into Grant Pond. The detention ponds are to be 1.2 feet deep, have varying widths (26.5 to 64 feet), with sides sloping at a 4:1 ratio, and vary in length from 1,000 to 1,600 feet. Water that would accumulate in them as a result of 3.2 inches of rainfall (the amount a 25-year one-hour storm would bring) would fill the ponds. The ponds are designed to overflow through baffled culverts along the swales into Grant Pond. The soils are such that 3.2 inches of rainfall could percolate into the unsaturated soil from the holding ponds in 72 hours. The closest baffle to Grant Pond would be some 200 feet distant; significant sheet flows would also enter Grant Pond. The landfill is designed to insulate stormwater runoff from contamination by waste or leachate. Only when wastes in an almost filled cell had not yet been covered would there be danger that stormwater falling on wastes would end up in the flow of stormwater draining across the surface of the proposed site and ultimately into Grant Pond. This danger could be all but eliminated by placing the last layer of wastes deeply enough in the cell. The plan is to ring the cells with excavated material, as well. If leachate is generated and pumped to the leachate holding pond and if there is enough of it to fill the pond or nearly to fill it, a storm might result in an overflow from the leachate holding pond that would drain eventually into Grant Pond. This danger, too, could be all but eliminated by operating the landfill so that the level of leachate in the holding pond always remained low enough, and by disposing of all leachate, if the facility generates any, off site, rather than "by landspreading on site." Jackson County's Exhibit No. 6. The same people who manage the landfill in eastern Jackson County would manage the landfill here proposed. No leachate has been generated at Jackson County's eastern landfill, but litter that can blow out of the cells at the eastern landfill does. If the same practices obtain at the new site, airborne litter that does not reach Grant Pond on the wing, may later be washed into the Pond by stormwater, even though the baffles would eliminate floatables in the water flowing out of the detention ponds. TWO AQUIFERS The parties are in agreement "that the leachate and or other pollutants will probably never reach the Floridan Aquifer." Petitioners' Closing Argument, p. 4. The Floridan aquifer is a limestone rock formation underlying the proposed site at depths varying between 30 and 130 feet, and separated by a layer of stiff clay from the overlying silts and sands. The stringers of saturated sands lying near the surface comprise a distinct, surficial aquifer that lies between five and twenty feet below ground over most of the site but crops out as Grant Pond on the northern edge of the property. No cell would be built within 200 feet of the highwater line of Grant Pond. The water table in the surficial aquifer, which yields potable water, is a subdued replica of the ground topography. Surface water from the southwest part of the proposed landfill site, where wells are closest, flows into Grant Pond. Water sometimes stands on the southeast part of the site, an area one witness described as boggy. A trailer stands on a parcel adjoining the property to the southeast with its near boundary 300 or 400 feet from the site proposed for the first working cell. No cell is to be dug within 500 feet of any existing or proved potable water well. The application contemplates monitoring wells. Groundwater in the Floridan aquifer flows south. Three wells to a depth of about 45 feet each are planned for south of the cells so that, in the unlikely event that pollution reached the Floridan aquifer, it could be promptly determined. There will also be a monitoring station in Grant Pond so the effect of stormwater runoff on water quality in the pond can be gauged. One well, 250 feet east of the west property boundary and 250 feet south of the north boundary, is planned for monitoring the surficial aquifer. TOXIC WASTES Toxic wastes are generated in Jackson County. Hundreds of drums with a little something still left in them are brought to the County's eastern landfill. No toxic wastes can lawfully be dumped at landfills like the one Jackson County proposes to build near Campbellton, but containers which once held toxic substances can lawfully be disposed of at such landfills, provided they have been rinsed out with water three times. Signs to this effect are to be posted. The landfill would have a single entrance. An attendant would be on duty during the landfill's hours of operation (8 to 5, five days a week), but would not be expected to have sampling equipment or to enforce the triple rinsing requirement, if past practice at the eastern landfill is any indication. When the landfill is not open, according to the applicant's engineer, green boxes will nevertheless be available for dumping. SCREENING Litter fences are planned only "if needed." A green belt 100 feet wide is proposed along the southern and the eastern perimeter of the property. "Appropriate trees and shrubs" are to be planted there, perhaps bamboo or oleander. SEPTAGE DISPOSAL PITS In a letter dated December 1, 1982, under the heading "septage disposal pits", C. G. Mauriello, the engineer who designed the proposed landfill, wrote DER's Wayne Hosid: This item was not shown on the original application but should be included. It has been recognized by the County that disposal of this type waste material should be handled at the new west site and therefore, provisions will be made for the disposal. Basically, a trench type operation similar to the East Site will be provided. The location of the disposal area will be to the south of the Future Holding Pond and north of the Salvage Area. Jackson County's Exhibit No. 6. A drawing prepared by the same person in July of 1982 shows a "septic tank/drainfield" southeast of the location described for the "septage disposal pits." DER's Exhibit No. 1. The permit DER proposes to issue contains numerous conditions, including the following: Construction of septage drying beds will be identical to those permitted under Permit No. 5032-22067 for Jackson East Sanitary Landfill as modified on July 20, 1981. Jackson County's Exhibit No. 9. Permit No. 5032-22067 was not made a part of the record in these proceedings. Incidentally, the word "septage" does not appear in Webster's Third New International Dictionary (1971). A septic tank or any similar system would differ significantly from the systems described by the witnesses who testified at hearing. Septic tanks eventually discharge their contents into surrounding soils, after treatment by anaerobic bacteria. Septic tanks cannot be sealed off by clay or anything else from the earth around them, if they are to function properly. Sooner or later discharge from any septic tank on site could be expected to enter the surficial aquifer and, ultimately, through the groundwater, Grant's Pond. Nothing in the evidence indicates how long it might take for any such effluent to reach the groundwater or leach into Grant Pond; or what its chemical composition might be. MORAL OBJECTION STATED Petitioners' witness Frederick L. Broxton, Sr. testified that, even conceding the absence of a scientific or legal basis for objection to the proposed project, it was immoral for the County Commission to choose a site so close to people's homes, when there was so much land available in that part of the county, where nobody lived. PROPOSED FINDINGS CONSIDERED All parties filed posthearing submissions which have been considered in preparation of the foregoing findings of fact. Respondent Department of Environmental Regulation filed proposed findings which have been adopted, in substance, for the most part. Where proposed findings have not been adopted, it is because they have been deemed immaterial, unsupported-by the weight of the evidence, subsidiary or cummulative.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the Department of Environmental Regulation issue Jackson County a permit for construction of a landfill at the site proposed subject to the conditions (except condition No. 24) stated in the proposed permit, Jackson County's Exhibit No. 9, and subject to the following additional conditions: (a) any leachate generated shall be disposed of off site (b) the whole landfill shall be fenced, and the view from State Road 273 shall be obstructed (c) portable fences shall be placed around any cell in use (d) an additional monitoring well shall be placed between the well southeast of the site and the nearest cell and (e) no septic tank or "septage" disposal pits shall be built on site. DONE and ENTERED this 17th day of August, 1983, in Tallahassee, Florida. ROBERT T. BENTON, II 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 17th day of August, 1983. COPIES FURNISHED: Robert L. Travis, Jr., Esquire 229 East Washington Street Quincy, Florida 32351 J. Paul Griffith, Esquire P. O. Box 207 Marianna, Florida 32446 E. Gary Early, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
