The Issue Whether Permit No. DO19-101251 issued to Mr. Vail on July 11, 1985 to construct and operate an on-site wastewater treatment and disposal system should be revoked?
Findings Of Fact Mr. Vail is the owner and operator of a business called the St. George Inn and Restaurant (hereinafter referred to as the "Inn"). The Inn is located at the southeast corner of the intersection of Franklin Boulevard and Pine Avenue on St. George Island, Florida. In May of 1984 Mr. Vail spoke with an employee of the Department of Health and Rehabilitative Services about obtaining a permit to construct a septic tank on his property for use by the Inn for the treatment and disposal of wastewater. Mr. Vail was instructed to submit a design of the septic tank for approval. Mr. Vail contracted with McNeill Septic Tank Company for the design and construction of the septic tank. The evidence failed to prove when Mr. Vail applied with the Department of Health and Rehabilitative Services for a permit. As of March, 1985, however, Mr. Vail had not received approval or disapproval of his application from the Department of Health and Rehabilitative Services. Mr. Vail, therefore, went to the Governor's office to seek help in getting a response. Shortly after contacting the Governor's office, the Department of Health and Rehabilitative Services informed Mr. Vail that he needed to obtain a permit from the Department and not from the Department of Health and Rehabilitative Services. On or about March 18, 1985, Mr. Vail filed an Application to Operate/Construct Industrial Wastewater Treatment and Disposal Systems (hereinafter referred to as the "Application"), with the Department. The Application was prepared by Brown and Associates Civil Engineers and Land Surveyors, Inc., Mr. Vail's engineering consultant. The Application was certified by Benjamin E. Brown, Professional Engineer. Mr. Vail signed the Application as "owner" and indicated that he was aware of the contents of the Application. In the Application, "St. George Inn Restaurant" is listed as the "Source Name." Under Part II, A of the Application, the applicant is asked to "[d]escribe the nature and extent of the project." In response to this request, the following answer was given: This project will provide a sewage disposal system for a one hundred and fifty (150) seat restaurant on St. George Island. Sizing of the septic tank system is based on 50 GPD/seat and secondary treatment will be provided by the design proposed. Under Part III, A of the Application, the applicant is asked to provide the following information and the following answers were given: Type of Industry Restaurant . . . . 3. Raw Materials and Chemicals Used Food preparation only. Normal Operation 12 hrs/day 7 days/week . . . . If operation is seasonal, explain This restaurant will be used the most during the summer months which corresponds with ocean/beach recreation & the tourist trade. Nowhere in the Application is it indicated that the permit applied for involved anything other than a restaurant. The Application gives no information from which the Department could have known that the proposed wastewater treatment and disposal system would handle waste from guest rooms or an apartment. In the Application Mr. Vail sought approval of a permit to construct and operate a wastewater treatment and disposal system to serve a 150 seat restaurant. In the Application Mr. Vail sought a permit for a system which was to have a design flow of 7,500 gallons per day based on 50 gallons, per seat, per day water usage. An employee of the Department wrote a memorandum dated May 5, 1985, recommending approval of the Application. The Department determined, however, that the size of the property on which the Inn was to be located was not large enough for the drain field necessary to accommodate a 150 seat restaurant. Therefore, Mr. Brown modified the proposed system and resubmitted application data indicating that a 108 seat restaurant would be constructed. The design flow of the new proposal was 2,160 gallons per day based on 20 gallons per seat per day. Mr. Brown had requested that the Department approve a system based upon the newly submitted design flow. The Department and Mr. Brown both agreed that this design flow was adequate; that it was reasonable to anticipate and provide for the treatment and disposal of a maximum of 2,160 gallons per day design flow. The effect of reducing the design flow and the number of seats was to allow a shortened drain field which could be accommodated by the size of the property the Inn was to be located on. On June 27, 1985, Mr. Vail arranged for a notice to be published in the Apalachicola Times. That notice provided, in pertinent part, the following: State of Florida Department of Environmental Regulation Notice of Proposed Agency Action on Permit Application The department gives notice of its intent to issue a permit to Jack Vail to construct a restaurant and on-site wastewater treatment and disposal system [sic] at Franklin Boulevard and Pine Avenue, St. George Island. The treatment consists of grease trap, septic tank, and sand filter followed by disposal into a drainfield. The project meets applicable standards and will not impair the designated use of the underlying ground water. There is no anticipated impact on surface waters or air quality. . . . . This notice was sent to Mr. Vail by the Department and he made arrangements for it to be published. Nowhere in the notice is it indicated that the system to be approved by the Department is for anything other than a restaurant. On July 11, 1985, less than four months after the Application was filed with the Department, the Department issued Permit Number DO19-101251 (hereinafter referred to as the "Permit"). In the cover letter sent with the Permit the Department indicated that the Permit allowed Mr. Vail "to construct and operate a 2,160 gallon per day, on-site wastewater treatment and disposal system serving St. George Inn Restaurant. . . ." The Department also indicates in the Permit that it is for the "St. George Inn Restaurant." The Permit also provides, in pertinent part, the following with regard to the purpose of the Permit: The above named applicant, hereinafter called Permittee, is hereby authorized to perform the work or operate the facility shown on the application and approved drawing(s), plans, and other documents attached hereto or on file with the department and made a part hereof and specifically described as follows: Construct and operate a 108 seat restaurant with an on-site wastewater treatment and disposal system. Wastewater flows shall be a maximum of 2,160 gallons per day generated by domestic facilities and kitchen wastes . . . Construction shall be in accordance with application dated March 18, 1985 and additional information submitted April 29, 1985, specifications and other supporting documents prepared by Brown and Associates and certified by Benjamin E. Brown, P.E. and submitted to the Department on June 5, June 17, and June 20, 1985. The Permit also contains the following "General Condition" number 2 and "Specific Condition" number 15: . . . . 2. This permit is valid only for the specific processes and operations applied for and indicated in the approved drawings and exhibits. Any unauthorized deviation from the approved drawings, exhibits, specifications, or conditions of this permit may constitute grounds for revocation and enforcement action by the department. . . . . 15. The Department shall be notified and prior approval shall be obtained of any changes or revisions made during construction. . . . . The Permit provides the following with regard to the effect of the conditions of the Permit: The terms, conditions, requirements, limitations, and restrictions set forth herein are "Permit Conditions", and as such are binding upon the permittee and enforceable pursuant to the authority of sections 403.161, 403.727, or 403.859 through 403.861, Florida Statutes. The permittee is hereby placed on notice that the Department will review this permit periodically and may initiate enforcement action for any violation of the "Permit Conditions" by the permittee . . . . During the week after the Permit was issued, Mr. Vail obtained a building permit from Franklin County for the construction of the "inn." In February, 1986, after construction of the Inn had begun, Department inspectors went to the construction site of the Inn. The Permit authorized this inspection and other inspections carried out by the Department. The Department determined that the Inn being constructed by Mr. Vail included a restaurant, an apartment on the third floor of the Inn with two bathrooms, and eight guest rooms on the second floor, each containing a bathroom. This was the first time that the Department knew that Mr. Vail's facility was to include guest rooms and living quarters in addition to containing a 108 seat restaurant. In March of 1986, the Department sent a warning letter to Mr. Vail notifying him of the violation of the General Conditions of his Permit: the use of the approved system for the treatment and disposal of wastewater from the ten bathrooms in the guest rooms and the two bathrooms in the apartment in addition to the 108 seat restaurant. On April 1, 1986, Department personnel met with Mr. Vail and Mr. Brown. The Department reminded Mr. Vail and Mr. Brown that the Permit requested and approved by the Department was for a 108 seat restaurant only. The Department had not authorized a system which was to be used for a 108 seat restaurant and ten additional bathrooms. Pursuant to General Condition 14, the Department informed Mr. Vail that it needed an engineer's evaluation of the ability of the system which had been approved to handle the additional flow which could be expected from the additional ten bathrooms. By letter dated April 1, 1986, the Department memorialized the meeting and indicated that Mr. Vail could operate a 100 seat restaurant and the apartment during the interim. By letter dated May 8, 1986, Mr. Brown asked for additional time to submit the evaluation requested by the Department. The Department approved this request by letter dated May 14, 1986. By letter dated May 16, 1986, Mr. Brown submitted an engineering evaluation which proposed modifications to the approved system to handle the additional ten bathrooms. By letter dated June 13, 1986, the Department indicated that the evaluation was generally acceptable" but requested additional information. In January, 1987, before the additional information was submitted, Mr. Brown died in an airplane accident. No evidence was presented to explain why the information requested by the Department in June of 1986 had not been submitted before January, 1987. In March, 1987, the Department inspected Mr. Vail's facility again. In April, 1987, the Department informed Mr. Vail that the Department would take action to revoke the Permit. Before the Administrative Complaint was issued, the Department requested that certain information be provided on behalf of Mr. Vail by an engineer in an effort to resolve the dispute. Mr. Vail did not, however, obtain the services of an engineer. Instead, Mr. Vail sent the Department information purporting to show the amount of water which had been used at the Inn. That information failed to prove the ability of the system that the Department had approved to handle the maximum wastewater which could be expected from maximum use of the 108 seat restaurant and ten additional bathrooms. At best, the information submitted by Mr. Vail is partial proof that the system is capable of handling the wastewater that has been generated at the Inn for the period of time for which the information relates. No competent substantial proof has been submitted to indicate that the system is capable of handling the maximum wastewater flows which may be experienced or even that the system is adequately handling the current flow. All that has been proved is that there is no apparent problem with the system in handling the current flow. In September, 1987, the Department issued the Administrative Complaint. Pursuant to this Complaint, the Department has sought the revocation of the Permit and prescribed certain orders for corrective action. No application has been submitted by or on behalf of Mr. Vail to the Department to construct and operate a wastewater treatment facility designed to accommodate the sewage flows which may be generated by the Inn as it has been constructed. Although the Department of Health and Rehabilitative Services and other agencies were aware that the Inn includes a restaurant and guest rooms, the Department was never so informed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a Final Order requiring that Mr. Vail comply with all of the corrective orders, except Paragraph 18, contained in the Administrative Complaint. DONE and ORDERED this 11th day of March, 1988, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of March, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NUMBER 87-4242 The parties have submitted proposed findings of fact. It has been noted below which Proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Department's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact of Acceptance or Reason for Rejection 1 Conclusion of law. 2 1. 3 6. 4 10. 5 12 and 13. 6 14. 7 15. 8 18. 9 19. 10 20. 11-12 16. 13 21. 14 23. 15 24. 16 25. 17 26. 18-19 27. 20 28. 21 29 22 Hereby accepted. Mr. Vail's Proposed Findings of Fact 1A 15. Not supported by the weight of the evidence and irrelevant. Hearsay and irrelevant. Although technically true, this is not the issue in this case. The evidence did not prove that the system "can in actuality handle three times the amount permitted." Not supported by the weight of the evidence and irrelevant. 2A Not supported be the weight of the evidence. Exhibit 6 indicates that the Department was aware that the Inn included "hotel rooms" but not the number. Irrelevant. The evidence did not prove that the Department was aware of the scope of the project. Not supported by the weight of the evidence. 3A Irrelevant. Not supported by the weight of the evidence and irrelevant. Even if this were true, the fact remains that the Department was unaware that the Inn included guest rooms or an apartment. Irrelevant. 4A-B Irrelevant. 5A-B Irrelevant. 6A 2-4. B 5. 6 and 11. Not supported by the weight of the evidence. See 12. 13 and 15. Not supported by the weight of the evidence and irrelevant. Not supported by the weight of the evidence. 7A-C Not supported by the weight of the evidence and irrelevant. 8A-D Not supported by the weight of the evidence and irrelevant. 9A-B Not supported by the weight of the evidence and irrelevant. 10-12 Not supported by the weight of the evidence and irrelevant. COPIES FURNISHED: Richard L. Windsor, Esquire State of Florida Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Mr. John Vail St. George Inn Post Office Box 222 St. George Island, Florida 32328 Dale Twachtmann, Secretary State of Florida Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, Esquire General Counsel State of Florida Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Findings Of Fact On September 19, 1979, Lester Nelson, Hospital Consultant for the Petitioner, conducted a survey of Monticello Manor and discovered certain Class III deficiencies, one of which was roach infestation in the cabinets beneath the kitchen sink. Ms. Rhoades was present on that date and was aware of the deficiencies to be cited. The facility was notified by letter dated October 22, 1979, that the deficiencies cited were to be corrected by November 1, 1979. A revisit of the nursing home was made by Mr. Nelson on November 27, 1979, by which time all deficiencies had been corrected with the exception of the roach infestation. On that date, roaches were observed in three of the five cabinets inspected. At the time of the September 19 survey, Monticello Manor had in effect a Service Agreement with Truly Nolen for pest control services. In addition, a maintenance man was spraying the premises twice a week. On December 1, 1979, Respondent entered into a contract with a different exterminating company after cancelling its contract with Truly Nolen.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED THAT: The Department of Health and Rehabilitative Services enter its final order imposing a civil penalty in the amount of one hundred dollars against the Respondent. RECOMMENDED this 3rd day of June, 1980, in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings Department of Administration Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the clerk of the Division of Administrative Hearings this 3rd day of June, 1980. COPIES FURNISHED: Harold L. Braynon, Esquire District X Legal Counsel Department of Health and Rehabilitative Services 91 West Broward Boulevard Fort Lauderdale, Florida 33301 Ms. Carolyn Rhoades Administrator Monticello Manor 1701 North Federal Highway Fort Lauderdale, Florida 33308 Steven W. Huss, Esquire Staff Attorney Central Operations Services Department of Health and Rehabilitative Services 1317 Winewood Boulevard Tallahassee, Florida 32301 Mr. David H. Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
Findings Of Fact Petitioner began employment with Respondent in November 1983. He was assigned to the Water and Sewer Department as a laborer. In 1986, Petitioner was transferred by the Respondent to the Water and Sewer Department water meter shop to be a water meter repairman. Petitioner continued his employment in that section until the spring of 1993. At that time, Petitioner accepted status under the Respondent's Disability Income Replacement policy. This arrangement is for an employee who is absent due to disability for more than 60 days. He then becomes eligible to receive payment of 60 percent of the employee's regular earnings. From the years 1986 into 1990, Petitioner enjoyed good health. During that period his employee work evaluations ranged from satisfactory to above satisfactory. In 1990, Petitioner developed psoriasis. In the beginning, the condition was controlled through medical treatment. However, in 1991, Petitioner was diagnosed with bladder cancer. As a result, while being treated for the bladder cancer in 1991 and 1992, to include two surgeries, Petitioner was unable to receive medical treatment for his psoriasis. Consequently the psoriasis became more severe. There was a change in supervisory personnel on April 4, 1991, which affected Petitioner's employment status together with that of other employees within the Water and Sewer Department. The change came about when Richard Davis, who headed the Water and Sewer Department was replaced by Henry Hicks. Respondent had found it necessary to replace Davis, because in Respondent's view Davis was not satisfactorily addressing the personnel issues within the Water and Sewer Department. When hired, one of the issues which Hicks felt he needed to address was a morale problem caused by employee perceptions that the Department of Water and Sewer employee rules were not being enforced in a consistent manner. Hicks was of the opinion that this perception existed, in part, because supervisors maintained a casual approach to employee counseling and discipline. Hicks, in his tenure, reminded the supervisors to formalize their procedures in dealing with employee counseling and disciplining. He required the supervisor provide documentation of any disciplinary action whether verbally given or by a written reprimand. This change in direction tended to increase the number of documented incidences of imposition of employee discipline within the Water and Sewer Department. The first employee evaluation which Petitioner received after Hicks' assumption of his position of director of the Water and Sewer Department was in 1991. The 1991 evaluation which Petitioner was given contained positive and negative remarks about Petitioner's work performance. In the spring of 1991, the Water and Sewer Department held a picnic, an activity in which the employees were encouraged to participate. As in prior years the Petitioner volunteered to be a member of the food committee for the picnic and was appointed to that committee. Members of the food committee would serve food at the picnic. At that time, the Petitioner's psoriasis was such that he was noticeably peeling and flaking. Howard Johnson, a supervisor with Respondent approached Hicks and told Hicks that several employees had stated that they, the employees, would not go to the picnic if Petitioner served food because they were afraid that Petitioner's skin would flake into the food. Having been apprised of this situation, upon a date prior to the picnic, Hicks met with Petitioner and told Petitioner what had been reported to Hicks and asked Petitioner to serve the needs of the picnic activity in some other manner than food service. Specifically, the Petitioner was offered the opportunity to help "set up" the picnic area. Petitioner did not accept the alternative offer to assist in the outing. Instead, Petitioner was offended and felt that he was unreasonably singled out due to his psoriasis. Nonetheless, the reaction by other employees to having Petitioner serve food and the response by Hicks to offer an alternative opportunity to assist in the activity did not constitute harassment or unreasonable conduct toward Petitioner. In association with the picnic for the spring of 1991, Bobby Thigpen, a supervisor with Respondent, made a comment to Petitioner about Petitioner's psoriasis and Petitioner's participation on the food committee at the picnic. Although Petitioner was mindful of Thigpen's candor about the subject, Thigpen's remarks contributed to Petitioner's hurt feelings concerning other employees not wishing Petitioner to serve food at the picnic. The remarks by Thigpen were not designed to harass Petitioner based upon Petitioner's physical condition. In addition, Petitioner did not report Thigpen's remarks to his supervisor pursuant to Respondent's "No times relevant to the inquiry, prohibited harassment on the basis of handicap status as well as other protected categories. The policy instructed the employee who believed that he had been harassed to bring the matter to the supervisor or to the Human Resource Department within the organization if the employee did not feel that he could discuss the matter with his supervisor. Respondent's employees are required to attend an annual meeting to review this policy. Petitioner did not complain to the Human Resource Department that he had been harassed by Thigpen through Thigpen's remarks regarding Petitioner's service on the food committee. No other competent proof was offered to the effect that Respondent's employees had made derogatory comments about Petitioner's physical disabilities. Because Petitioner's psoriasis was in a more severe condition, Petitioner would leave flakes of skin on chairs in the Water and Sewer Department break-room. When the Petitioner's co residue they would switch chairs rather than sit in the chair on which Petitioner had left flakes of skin. Although Petitioner found out that the other employees were switching chairs due to the flakes of Petitioner's skin being found on the initial chair, there is no competent proof that any employee ever commented to the Petitioner that the employee would be opposed to the Petitioner eating in the break-room due to his physical condition. Petitioner, together with other employees who were supervised by Dan Miller, had been harassed by Miller at times relevant to the inquiry. In Petitioner's instance, Miller's harassment was not directed to Petitioner's physical disabilities. Some of the remarks made by Miller to Petitioner were that Petitioner was short and fat and further derogatory comments about Petitioner's haircut and clothes. Miller had also called the Petitioner dumb or stupid because Petitioner asked Miller to repeat instructions over the radio that was used for communicating between the supervisor and his respective employees. Notwithstanding Petitioner's contention that he had told Miller that he was having trouble hearing because of psoriasis that had spread to Petitioner's ears, Miller denies that Petitioner had told Miller that psoriasis was affecting Petitioner's hearing, and Miller's testimony is credited. On the contrary, without knowledge of any physical disability concerning hearing which Petitioner had, and without regard for the reaction any other employees which Miller supervised might have, Miller made insulting comments to employees which he supervised when talking to them on the radio. Employees other than Petitioner to whom the insulting comments were directed had no known physical disabilities. James Scarberry, a co-employee who worked for Miller, overheard Miller yell at Petitioner on occasion having to do with Petitioner's job performance, not Petitioner's physical disability related to hearing. Petitioner asked Miller and a co-worker not to smoke in his presence because he had recently had bladder cancer surgery. Petitioner contends that this request was met with laughter and jokes. Miller testified that the request was not met with jokes or laughter. Instead, Miller recalls, and his testimony is credited, that Petitioner complained that Al Nichols, a co-worker, had smoked excessively in Petitioner's presence. The subject of Nichols' and Miller's smoking in Petitioner's presence was discussed among Miller, Nichols and Respondent, and it was agreed that Nichols and Miller would try not to smoke excessively in Petitioner's presence. No medical evidence was presented which tended to identify the necessity for Petitioner to be afforded a smoke environment due to his medical condition or that Petitioner had ever made requests other than that directed to Miller and Nichols regarding not smoking in his presence at work. Petitioner had made requests that he be provided light duty because of the problems he experienced with his knees due to psoriasis. These requests were directed to Miller, Petitioner's immediate supervisor. The requests were not always granted. When Petitioner was turned down for light duty it was based upon the fact that light duty was generally not available in the Water and Sewer Department for any employee. Moreover, at that time, employees in Petitioner's work assignment usually worked alone and it would adversely affect the production of the unit if two repairmen were dispatched to do a job which would ordinarily take only one repairman to complete. Petitioner presented no proof concerning denial of light duty at a time when a physician may have specifically recommended light duty for Petitioner. Concerning discipline directed to the Petitioner, on March 18, 1982, Petitioner stopped at a job site to which he had not been assigned. There he engaged David Lipps, an employee of Respondent, in a conversation. Lipps was a supervisor at the site and the conversation had to do with the meal policy which had been applied at the site. Eventually the conversation became an argument, at which point Lipps told Petitioner that he did not belong at the job site and asked him to leave. Lipps then reported the incident to his supervisor, Rodney Thompson and the matter eventually came to the attention of Hicks. Hicks discussed the matter with the Petitioner and Lipps and concluded that Petitioner had no business purpose for being at the Lipps' job site and that Petitioner was responsible for causing the argument with Lipps. Petitioner was issued a written warning on March 26, 1992. The disciplinary reprimand was not related to Petitioner's physical disabilities. On May 18, 1992, Petitioner received a written reprimand. The reprimand was based upon the Petitioner's conduct while on weekend standby duty. This assignment was in keeping with the periodic requirement to serve on weekend standby. On May 16, 1992, Petitioner was on a standby status with Lipps. Lipps was referred to as the "A" worker and Petitioner was the "B" worker. The "A" worker was in charge of the work team. Petitioner arrived at the first job site 34 minutes before Lipps. When Lipps arrived, Petitioner complained that Lipps was an hour late. Petitioner then told Lipps that he had somewhere else to go that day. Lipps and Petitioner went to a second job and by that time Lipps told Petitioner that he was tired of Petitioner's complaining about having to work that day and concluded that Lipps did not have Petitioner's full cooperation. As a result, Lipps determined to leave the completion of the second job until the following Monday. Lipps reported the incident to his supervisor, Rodney Thompson. Petitioner had been previously counseled about his attitude concerning standby duty. Hicks reviewed the facts surrounding Lipps' complaint and decided to issue a written reprimand to Petitioner for making negative verbal remarks about Petitioner's duties and for failing to cooperate with his supervisor on standby duty. The disciplinary action was not for purposes of discriminating against Petitioner because of Petitioner's physical disabilities. Moreover, Hicks had reprimanded two other employees, Ed Swift and Bob Buckley for making negative verbal comments about job duties. Hicks did not know these other individuals to be suffering from any form of physical disability. In June of 1992, Petitioner applied for and was granted a leave of absence for an unspecified period. By June 2, 1992, Petitioner knew that he would need to go on extended leave beginning June 8, 1992. He failed to inform any of his supervisors that he was going on this medical leave. He did not show up for work on June 8, 1992. Hicks inquired of Petitioner on June 8, 1992, about not telling his supervisor that he was going to be on medical leave. Petitioner responded to the inquiry by indicating that he had told Scarberry, Petitioner's co-worker, of his intention to go on medical leave and that he had told a city clinic nurse that he was going on leave of absence. Hicks pointed out, correctly, that telling the nurse and Scarberry of Petitioner's intentions to take medical leave did not relieve Petitioner of the duty to directly inform a supervisor of that intention. Moreover, Scarberry had told the Petitioner that he, Scarberry, would not be at work the first day of Petitioner's medical leave, making it questionable that Scarberry would have advised a supervisor that Petitioner was hoping to be absent from work that day. Scarberry made Hicks aware that Scarberry had pointed out to Petitioner that he would not be at work on June 8, 1992. Petitioner's assertion that he wrote a note to his immediate supervisor, Miller, regarding the plan to be out on June 8, 1992, if true, is of no utility because the note was not given directly to Miller and was never indirectly received by Miller. Miller had not been at work June 5, 1992, the friday before Petitioner was missing from his job duty on June 8, 1992. Petitioner knew that Miller was not at work on June 5, 1992. As a consequence of not informing a supervisor that he was going to be on extended medical leave, Petitioner was disciplined. The action by Respondent on which Petitioner was given a written reprimand for failure to inform a supervisor that Petitioner was going to take extended medical leave did not constitute discrimination against Petitioner based upon his physical disabilities. Petitioner was allowed to take the extended medical leave. Noel Werner, a secretary in the Water and Sewer Department had also been reprimanded by Hicks for failing to follow proper procedures for obtaining authorization to take medical leave. Hicks is unaware of any physical disability that Ms. Werner may have. When Petitioner took leave in June of 1992, he believed that he would be eligible for Disability Income Replacement. However, in August 1992, Petitioner was informed that the Respondent's Risk Management Department had determined that he was ineligible because he was under the care of a licensed health counselor as opposed to an M.D. or a Ph.D. Carol Ingham, Respondent's Human Resource Director, learned of this circumstance and contacted the Assistant City Manager, Dick Lewis, and requested that Petitioner be granted an exception to the policy of not being eligible for Disability Income Replacement when using a licensed health counselor. As a result, Petitioner's request was reevaluated and he was ruled eligible for Disability Income Replacement through the policy pertaining to that status for the period August 4 through 30, 1992. Concerning his physical condition, in the spring of 1992, Petitioner was diagnosed with osteoarthritis in his knees. This meant he was disabled to do any persistent bending or kneeling, which was a requirement of his employment in the Water and Sewer Department. His condition also disabled him from doing his assigned work because his work as a water meter repairman involved walking distances of a 100 feet or more on a persistent basis and standing all day. Concerning the medical leave of absence which Petitioner took in the summer of 1992, this subject was discussed by Ingham in conversation with the city clinic nurse, Holly McLaughlin. They talked about the stress which Petitioner seemed to be experiencing and the failure to follow the policy of informing his supervisor of his intention to take medical leave. On June 15, 1992, Ms. Ingham met with Petitioner and his wife to discuss Petitioner's stress. At that time, Petitioner reported to Ms. Ingham that Petitioner's supervisor Miller had treated him badly and that Miller had also treated other employees badly. Petitioner told Ingham that Miller had called Petitioner stupid and had been abusive in conversation over the radio. No claim was made by Petitioner that Miller had made comments directed to Petitioner's physical disabilities. As a follow Ingham discussed Petitioner's remarks about Miller's conduct with a number of the Petitioner's co-workers. Ingham decided that Miller had, in fact, yelled and cursed at a number of employees he supervised, to include Petitioner. No other employee reported to Ingham that Miller had made derogatory comments in their presence concerning Petitioner's physical disabilities. Based upon Ingham's findings, Hicks determined to discipline Miller for his conduct directed toward employees whom Miller supervised. Miller received a written reprimand and was given the option of being demoted or seeking counseling through an employee assistance program. Miller opted to go to the employee assistance program. Moreover, Miller was told that if conduct toward subordinates continued that he would be subject to more severe discipline to include discharge. Miller's treatment of the employees he supervises has improved since the imposition of discipline. Petitioner returned to work in August 1992, following his leave of absence for medical purposes. At that time, he was issued a service truck which another employee had been using. Petitioner felt that he should have been issued a new truck which the Water and Sewer Department operated. The truck that Petitioner had been issued was dirty and smelly. Miller told Petitioner that the newer truck was assigned to an employee who needed the larger truck because that employee would be performing heavier work than Petitioner would be called upon to perform. Miller offered to have the truck which Petitioner had been issued cleaned up or detailed. Petitioner declined that offer. Petitioner complained about the truck that he had been assigned to a co-worker, Fred Sauls. He told Sauls that he was going to take the truck he was issued and drive it to city hall to show Ingham, the Human Resource Director. In fact, Petitioner reported the incident to Ms. Ingham. The Petitioner received a letter of reprimand on September 4, 1992, for complaining to a co-worker and Ms. Ingham about an everyday work related problem rather than following the chain of command. Prior to receiving that written reprimand, Petitioner had been specifically counseled by Hicks concerning handling everyday work related problems through Petitioner's supervisor. Those specific instructions on everyday work related problems were not countermanded by the general opportunity which Hicks had described for employees to go outside the chain of command when they did not feel that they would get satisfaction from an immediate supervisor, and the open door opportunity to consult with the Human Resource Director. In this instance, the response from Miller was adequate to meet Petitioner's needs in confronting an everyday work related problem and Petitioner had no reason to complain to Sauls or to complain to Ingham. The written reprimand given to Petitioner was not designed to discriminate against Petitioner based upon his physical disabilities. Hicks and Ingham became aware of the Petitioner's inability to perform his assigned job duties due to his physical disabilities and they looked for other duties that the Respondent might be able to perform in view of his physical disabilities. The only positions that were found for which Petitioner was otherwise qualified and physically able to perform were part-time positions that did not offer medical benefits. Upon further reflection, Ingham and Hicks offered to combine these two positions in the Respondent's Recreation Department into a single job which would allow Petitioner to continue working and to receive benefits. The combined position was at a lesser pay than the present position which he held. Petitioner decided that he would prefer to be placed in the status of Disability Income Replacement in lieu of the combined jobs. In April 1993, Petitioner accepted the status of Disability Income Replacement and has not returned to work.
Recommendation Based upon the findings of fact and conclusions of law reached, it is, RECOMMENDED: That a final order be entered by the Florida Commission on Human Relations which dismisses the Petitioner's claims. DONE and ENTERED this 13th day of June, 1994, in Tallahassee, Florida. CHARLES C. ADAMS, 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 13th day of June, 1994. APPENDIX The following discussion is given concerning the Proposed Findings of Fact of the parties: Petitioner's Facts: Paragraphs 1 through 6 are subordinate to facts found. Paragraphs 7 through 14 are contrary to facts found. Respondent's Facts: Paragraphs 1 through 26 are subordinate to facts found. COPIES FURNISHED: William A. Ramputi, Esquire Scott, Gleason & Pope, P.A. 409 Southeast Fourteenth Street Ocala, Florida 34471 David H. Spalter, Esquire Fisher & Phillips 2310 One Financial Plaza Fort Lauderdale, Florida 33394 Sharon Moultry, Clerk Human Relations Commission Building F Suite 240 325 John Knox Road Tallahassee FL 32303-4149 Dana Baird, General Counsel Human Relations Commission Building F Suite 240 325 John Knox Road Tallahassee FL 32303-4149
The Issue The issue for consideration in this proceeding concerns whether the Petitioner is entitled to a variance for installation of an on-site sewage disposal system ("OSDS") for property located near the Suwannee River in Dixie County, Florida, in accordance with the provisions of Section 381.272, Florida Statutes, and Chapter 10D-6, Florida Administrative Code.
Findings Of Fact The Petitioner is the owner of certain real property located in Dixie County, Florida, more particularly described as Lot 4, Wonderland Subdivision. The property is approximately 60 by 150 feet in size and was purchased in 1982 for a price of $9,000.00. It is presently appraised at $11,000.00; however, if an OSDS could be permitted and installed, the property would appraise for approximately $22,000.00. The lot was platted in 1957. On October 19, 1989, the Petitioner made an application for a variance from the OSDS permit requirements for the property. The application form indicated, and the Petitioner intends, that this would be a new system for a single-family residence. The residence would contain two bedrooms and would produce approximately 250 gallons per day of sewage flow. The Petitioner desires to construct a residence on the property to have a pleasant place to live and is suffering a hardship because of the investment which he has made in the property, which is of no use to him if he cannot obtain the subject permit or variance and install the OSDS so that he can construct his residence. Alternatively, he is unable to sell the property readily without the ability to obtain an OSDS permit or variance for the property. At the behest of the Respondent in the permit application or variance application process, the Petitioner obtained a survey of the property by a registered land surveyor (see Petitioner's Exhibit No. 2 in evidence). That survey resulted in a benchmark elevation being established of 12 feet above mean sea level ("MSL"). The site of the proposed OSDS installation is 11.71 feet above MSL. The ten-year flood plain elevation for this property is 16 feet above MSL, as verified by records of the Suwannee River Water Management District in evidence without objection. The property is also located within the regulatory floodway of the Suwannee River. Although the Petitioner acknowledged in a general way that he would be amenable to consideration of various alternative types of systems involving piping of sewage effluent to an appropriate upland disposal and treatment area, the use of chemical toilets or other appropriate non-discharge types of treatment and disposal systems, no concrete evidence was adduced from the Petitioner to establish that such are or are not reasonable alternatives to the conventional subterranean septic tank and drainfield type of disposal system with which the variance application is concerned. Consequently, the Petitioner's proof does not establish that no reasonable alternatives exist in order to secure the grant of a variance nor did the Petitioner's proof establish that the type of system proposed would not pollute the ground or surface waters or pose a threat to public health in terms of the standard subterranean OSDS or any alternative systems which the Petitioner might theoretically employ, including the types mentioned above. The Petitioner's proof simply did not establish that installation of a standard subterranean OSDS would only pose a minor deviation from the permitting statute and rules cited herein nor did the Petitioner establish that no reasonable alternatives exist to the establishment of a standard OSDS, as that relates to the substantiality of the hardship which the Petitioner is experiencing in not getting the OSDS originally requested permitted; and the Petitioner did not establish that any system proposed would not pose a threat to public health or pollute ground or surface waters. In summary, the Petitioner did not establish that a sufficient hardship is experienced, because reasonable alternatives have not adequately been explored and considered by the Petitioner nor made a part of the subject of Petitioner's proof nor has the Petitioner established that a grant of a variance would involve only a minor deviation from the permitting statute and rules standards because it has not been proven that the public health nor the ground or surface waters would not be adversely affected. Finally, because the property is located in the regulatory floodway of the Suwannee River, under Rule 10D- 6.047(6), Florida Administrative Code, before a mounded or filled OSDS could be permitted and installed, which is one alternative under consideration, a registered professional engineer must certify that the mounding of the system and installation of fill in the regulatory floodway area would not cause elevation of the "base flood" of the Suwannee River. No such engineering evidence or testimony has been adduced iii this proceeding; therefore, such an alternative system cannot herein be recommended for approval.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that a Final Order be entered denying the Petitioner's application for a variance from the statutory and regulatory requirements for an OSDS permit. DONE AND ENTERED this 10th day of December, 1990, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 11th day of December, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-3111 Respondent' Proposed Findings of Fact: All of Respondent's proposed findings of fact are accepted. COPIES FURNISHED: Sam Power, Agency Clerk Department of HRS 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Linda K. Harris, Esq. General Counsel Department of HRS 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Marilou Clark Suwannee Plantation Realty Rt. 3, Box 73 Old Town, FL 32680 Frances S. Childers, Esq. Assistant District III Legal Counsel Department of HRS 1000 Northeast 16th Avenue Gainesville, FL 32609
Findings Of Fact The applicant, Island Village Condominiums, prepared and submitted to the Department of Environmental Regulation a completed application for construction of its extended aeration sewage treatment plant. The relative distance and direction from the proposed treatment plant to major bodies of surrounding surface water are depicted in an aerial photograph which accompanied the application. The elevation of the surrounding waters in all directions is 39 feet. When the treatment plant is operated in compliance with its design features, the effluent from the plant will exceed the Department's standards for effluent discharge. The zone of discharge will be confined to the owners' property. Surface waters will not be involved in discharge. There will be no adverse impact upon ground waters. The treatment plant would not create a hazzard to the deep water wells of Point O' Woods Utilities, Inc. The treatment plant, as designed, meets or exceeds the engineering standards established by the Department. The likelihood of geologic subsurface failure is remote. Ground water levels are included on the schematic plan which accompanied the application to the Department. The tops of the holding ponds are above the 100-year flood level. The treatment plant will produce no noticeable odor. No exterior lights are to be used with the plant. The noise from the plant's operation would not travel more than 200 feet. The holding ponds would be more than 120 feet from the nearest surface water. The estimate of the cost is accurate at $98,000. Martin I. Gunn, Inc., is the developer of the property, which is also owned by the corporation, Island Village Condominiums, also known as Island Village of Inverness. The treatment plant will become the property of the home owners association and will be operated by the association from maintenance fees paid by the home owners. Martin I. Gunn/Island Village is not a public utility.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the permit for the construction and operation of an extended aeration sewage treatment plant be issued to Island Village Condominiums subject to the general and specific conditions stated in the Department's original notice. DONE and ORDERED this 19th day of February, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, 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 19th day of February, 1982. COPIES FURNISHED: Thomas V. Infantino, Esquire Post Office Drawer. B Winter Park, Florida 32790 Donald F. Perrin, Esquire New Bank of Inverness Building Highway 41, South Post Office Box 1533 Inverness, Florida 32650 William W. Deane, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 Victoria J. Tschinkel, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue The ultimate issue is whether Celebrity Resorts, Inc., (Celebrity) is entitled to a permit to construct a wastewater treatment and reuse/disposal facility in Marion County, Florida.
Findings Of Fact Proposed Project Celebrity is seeking a DER permit to construct a 0.065 million gallon per day wastewater treatment and reuse/disposal facility to serve a proposed recreation vehicle (RV) park. The facility is to be located in northern Marion County on the southern border of Orange Lake, an Outstanding Florida Water. The RV park is to be located on 75 acres of land, and is to contain 372 RV and "park model" sites, four bath houses, a clubhouse, and an expanded boathouse. The sewage treatment plant (STP) and effluent disposal system, consisting of a spray irrigation system, are to be located on the southern end of the site, away from Orange Lake. There is a "break" in the watersheds of the Celebrity property caused by a ridge across the approximate center of the project site. The effect of this "break" is that approximately one-half of the property drains toward the lake while the approximate southerly half of the property drains into an independent depression creating a watershed separate from the lake. Some underground pipes for a sewage collection system were installed at the site without an appropriate DER permit. Celebrity stopped the installation upon notice from DER that a permit was required for such installation. The permit needed for the installation of the collection system pipes was not the permit for the sewage treatment project which is being considered in this proceeding. Celebrity was penalized for its collection system violation, which was resolved with a consent order. Sewage Treatment Plant (STP) The STP is an extended aeration plant. It is designed to meet secondary treatment standards (90% removal of BOD and suspended solids from raw sewage) and basic disinfection. This type of treatment plant is very reliable. All mechanical components have a 100% backup so if a pump or blower fails, another is available to operate. The STP is designed to be capable of treating the flow from this RV park. Additionally, the facility has a holding pond for treated sewage effluent that can store five days of flow. Furthermore, because the RV park is a transient facility, it is possible in an emergency to shut down the entire plant and have people leave. By its nature, this is much more convenient in an RV park that in a residential or commercial neighborhood. The holding pond is to be lined with a 60 millimeter high density polyethylene liner, so there should be no leakage to the ground or groundwater even if there is an accident in the STP causing release of untreated sewage into the holding pond. The STP is to be maintained five days a week and must be attended for three nonconsecutive visits a week by a Class D certified plant operator. The amount of dissolved/undissolved heavy metals in the effluent is typically not a problem in domestic sewage effluent such as from the proposed RV park. To the extent that trace amounts of metals will exist, the STP will remove some heavy metals from the effluent during the treatment process and entrain them in the sludge (which will be taken to appropriately licensed landfill). There is no possibility of effluent leaking or discharging from the plant to directly discharge to Orange Lake, even if the STP completely malfunctions. Although the proposed STP is not a highly sophisticated plant, reasonable assurances have been provided that the STP will comply with DER's requirements for secondary treatment and basic disinfection and proper operation. Effluent Disposal System (Spray Irrigation System) Phase I of the effluent disposal system (spray irrigation system) is 3.66 acres in size, with an additional 1.7 acres designated if Phase II is implemented. Approval under this permit authorizes only the 3.66 acres on Phase I. Numerous separate sprinkler heads will spray the treated effluent on the field. The heads can be separately controlled and shut down. The sprayfield is sited on the southwestern corner of the 75-acre site and is separated hydrologically from the Orange Lake drainage basin by the "break" referred to in Paragraph 4 above. Therefore, surface water drainage in the area of the sprayfield drains away from the lake and does not connect back to the lake. The permitted loading rate is 1.7 inches per week, or approximately 24,000 gallons per day at full capacity. This amount corresponds to only approximately 170% of natural rainfall, but is more evenly distributed and controlled. After uptake of nutrients by green plants and evaporation (evapo- transpiration), the average amount of treated effluent that will percolate below the "uptake zone" to the surficial aquifer (to the extent that such exists on the site) is 0.3 to 0.4 inches per week. The surficial water table in the area of the sprayfield generally flows to the north toward the lake, although the flow is not immediately direct toward the lake. The Floridan Aquifer (which is beneath the intermittent surficial water table) in the area of the sprayfield generally flows away from the lake to the south and southeast. There are four sinkholes on the 75-acre site, although none of these four sinkholes have been identified on the 3.66-acre sprayfield. The four sinkholes on the 75-acre site and the majority of sinkholes in the area are "subsidence sinkholes." These sinkholes do not result in an open void down to the limerock after the collapse forming the sinkhole, but instead continue to have unconsolidated material above the limerock, even though a depression forms on the surface. One of the sinkholes has standing water within it and could possibly represent a connection with the lake water table or the Floridan Aquifer, but that sinkhole is separated hydrologically from the sprayfield site by the "break" across the property. There will generally be a slight increase in hydrologic conductivity through a subsidence sinkhole, since the unconsolidated material on the surface remains and is loosened. In some cases there may be even less hydrologic transmissivity due to a "jamming up" of the unconsolidated material, and in some cases there may be an increase in transmissivity when the unconsolidated material falls into an even less consolidated state. A "lineament" may exist on the 75-acre site. A lineament is a fracture zone, which indicates an increase in ground water transmissivity, resulting in an increase in solution of limestone and therefore indicating a more likely location for sinkhole formation. If a sinkhole develops within the sprayfield and if the sinkhole results in an increased area of ground water transmissivity, it could be a conduit for treated effluent to reach the surficial aquifer or Floridan Aquifer. Sinkholes which may form on the site are subject to being repaired with impervious material which prevents their becoming routes of contamination to the aquifer. In addition, the loading rate of any single sinkhole that forms within the spray irrigation field is so light and so easily shut down that there is a high confidence rate that no new sinkhole will act as a conduit for even the small immediate discharge over the area of the new sink to reach the Floridan Aquifer. A spray irrigation effluent disposal system is appropriate for this area which is subject to sinkhole formation. Spray irrigation allows dispersal of the effluent over a large area as opposed to a percolation pond which concentrates in the percolation area and therefore increases the chance of sinkhole formation and the chance of larger amounts of effluent reaching the Floridan Aquifer if all the intervening safeguards should fail simultaneously. In addition, the repair of any sinkhole forming within the sprayfield is simplified by the ability to simply shut off the sprinkler head or heads affecting that sinkhole while repair is being effected. Permit conditions further limit excessive effluent application rates by limiting the amount of flow, prohibiting application during storm events, and requiring monitoring of the flow. Spray irrigation is a common method of effluent disposal which generally has fewer problems than use of percolation ponds. No evidence has been presented that discharge from the sprayfield will cause violations of groundwater quality standards or violations of surface water quality standards, including the Outstanding Florida Water requirements in Orange Lake. Reasonable assurance has been provided that the proposed effluent disposal system will not violate DER water quality standards or other applicable DER rules. Standing Petitioner Suto could be substantially affected by this proposed facility if it causes pollution to Orange Lake since she uses the lake for nature photography. Additionally, she resides to the southeast of the proposed sprayfield and has concerns over contaminated ground water reaching her property and affecting her drinking water. Petitioner Riley could be substantially affected by this proposed facility if there is pollution to the Floridan Aquifer since she lives southeast of the proposed facility and has two drinking water wells on this property. Additionally, Petitioner Riley is a user of Orange Lake and therefore could be substantially affected by the proposed facility if it impacts the lake. Petitioner Solomon could be substantially affected by the proposed project if the project impacts Orange Lake since Mr. Solomon earns his living on the lake as a commercial fisherman and bass fishing guide.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Regulation enter a Final Order granting to Celebrity Resorts, Inc., a permit to construct a wastewater treatment facility and spray irrigation disposal system subject to the conditions set forth in the Intent to Issue. RECOMMENDED this 15th day of July, 1991, in Tallahassee, Florida. DIANE K. KIESLING, 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 15th day of July, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-2722 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Celebrity Resorts, Inc. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 4(1); 5(2); 6(4); 7(5&6); 8- 12(7-11); 13(12); 14(13); 15(14); 16(15&16); 17(17); 18(18); 19-21(20-22); and 22-27(26-31). Proposed findings of fact 1-3 are unnecessary. Proposed finding of fact 28 is subordinate to the facts actually found in this Recommended Order. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Environmental Regulation Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 4-6(1-3); 7-13(5-11); 14(12); 15-17(13-15); 18(17); 19(18); 20-26(19-25); 27-32(26-31); and 33-35(32- 34). Proposed findings of fact 1-3 are unnecessary. COPIES FURNISHED: Delcie J. Suto, Pro Se 2400 N.W. 165th Street Citra, FL 32113 Carol B. Riley, Pro Se 2250 N.W. 165th Street Citra, FL 32113 Crawford Solomon, Pro Se 1303 N.W. 186th Place Citra, FL 32113 Karen English 3680 West Highway 318 Citra, FL 32113 Marilyn Nehring P. O. Box 481 Orange Lake, FL 32112 John Monsees 2400 NW 165 Street Citra, FL 32113 William L. Townsend, Jr. Attorney at Law Post Office Box 250 Palatka, FL 32178-0250 Douglas H. MacLaughlin Assistant 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 Daniel H. Thompson General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue Whether the Respondent, Terry John Conley, d/b/a Terry's for Men's/Women's Hair, should be disciplined for violating Section 477.029(1)(i), Florida Statutes (1985)?
Findings Of Fact At all times relevant to this proceeding the Respondent, Terry John Conley, was licensed to practice cosmetology and to operate a cosmetology salon in the State of Florida. Mr. Conley's license numbers are CL 0095556 and CE 0028208. At all times relevant to this proceeding, Mr. Conley was the owner of a cosmetology salon known as Terry's for Men's/Women's Hair (hereinafter referred to as "Terry's"). Terry's is located at 272 Palm Coast Parkway, Palm Coast, Florida 32026. On December 3, 1987, an employee of the Petitioner inspected Terry's. More than one of the drawers where employees of Terry's stored sanitized brushes and combs contained hair, coins, cards and medicine. Mr. Conley admitted that there may have been coins in the drawers and a little hair on brushes. Two additional alleged violations were cited as a result of the December 3, 1987, inspection. These alleged violations were corrected as of the date of the next inspection of Terry's by the Petitioner. On September 21, 1988, the same employee of the Petitioner that inspected Terry's on December 3, 1987, inspected Terry's again. During this inspection the inspector determined that the drawers where sanitized brushes and combs were stored were in a condition similar to their condition on December 3, 1987. Additionally, the following additional conditions were discovered during the September 21, 1988, inspection: Hair rollers, and the trays where hair rollers were kept, contained an excessive amount of hair and dirt; The Petitioner's sanitation rules were not displayed for public viewing in a conspicuous place; and More than one of the five sanitizer jars for combs were not filled sufficiently-to cover all of the teeth of the combs. Mr. Conley admitted that the jars are refilled "every day or two." The inspector also cited Terry's because one of the persons working at the shop had allegedly used clippers and scissors without sanitizing them. This alleged violation was not supported by the weight of the evidence. Mr. Conley has been operating Terry's for eleven years. The cited violations of December 3, 1987, and September 21, 1988, are the first violations cited against Mr. Conley or Terry's.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Terrance John Conley, d/b/a Terry's for Men's/Women's Hair be found to have violated Rules 21F-20.002 and 21F-20.004, Florida Administrative Code, in violation of Section 477.029(1)(i), Florida Statutes. It is further RECOMMENDED that Terrance John Conley, d/b/a Terry's for Men's/Women's Hair be required to pay an administrative fine of $150.00. DONE and ENTERED this 10th day of April, 1989, in Tallahassee, Florida. LARRY J. SARTIN 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 10th day of April, 1989. COPIES FURNISHED: Charles Tunnicliff Senior Attorney Tobi C. Pam Staff Attorney Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Terry John Conley d/b/a Terry's for Men's/Women's Hair 272 Palm Coast Parkway Palm Coast, Florida 32307 Myrtle Aase Executive Director Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Kenneth Easley General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether Petitioner must be discharged from his position as a sanitation equipment operator II because he can no longer perform the essential functions of that job, with or without a reasonable accommodation.
Findings Of Fact Chapter 2001-324, Laws of Florida, declared the Escambia County Utilities Authority an independent special district with transferred assets and enumerated powers. Chapter 2004-398, Laws of Florida, changed the Escambia County Utilities Authority’s name to ECUA. By law, ECUA provides utility services throughout Escambia County, Florida, and has the power to appoint, remove and suspend its employees, and fix their compensation within the guidelines of Escambia County Civil Services Rules. ECUA’s mission statement specifies that ECUA and its employees “are committed to providing the highest quality service” and that “ECUA will always provide cost-effective services.” ECUA has adopted standards set forth in the Manual in order to govern employee conduct. For instance, Section B-11 provides that “[r]easonable accommodation is available to all disabled employees, where his or her disability affects the performance of job functions.” Section B-13 A (10) of the Manual requires ECUA employees to maintain all capabilities that are necessary for them to perform their assigned duties. Mr. Smith is 52 years old and initially worked for ECUA as a sanitation equipment operator from March 1997 through October 2002. He returned to his previous position at ECUA in January 2018. ECUA’s description of the sanitation equipment operator II position describes the “essential job functions” as follows: Operates a heavy duty, highly technical, and specially designed, one-person automated residential or commercial refuse collection truck equipped with a hydraulically operated container loading and waste packing mechanism in order to remove solid waste on an assigned collection route. Required to manually load yard trash, brush, or bulk waste when assigned to yard-trash duty. Operates a heavy duty residential rear-loading, semi-automated refuse collection truck equipped with a hydraulically operated container leading and waste packing mechanism in order to remove solid waste on an assigned collection route, while acting as crew leader for the two/three person assigned crew. Other “essential job functions” include activities such as manually picking up waste containers for disabled customers, climbing in and out of trucks, climbing stairs and ladders, and walking refuse containers to and from residences. As for the position’s physical requirements, the job description states that: While performing the essential functions of this job the employee is regularly required to sit, stand, or walk, use hands to finger, handle, or feel, reach with hands and arms, stoop, kneel, jump, step, or crouch, and lift and/or move up to 100 pounds and occasionally required to lift over 100 pounds. On June 25, 2019, Mr. Smith’s right knee collided with the rear door or bumper of a refuse truck while he was dumping refuse into a landfill. He sought medical attention that day, and the resulting “work status report” from the Sacred Heart Medical Group indicated he could return to work on June 26, 2019, but was prohibited from bending at the waist, stooping, kneeling, crawling, climbing, or squatting for the next eight days. ECUA learned of Mr. Smith’s injury on June 25, 2019, and he was promptly placed on leave pursuant to the Family and Medical Leave Act (“FMLA”). The standardized form memorializing that action advised Mr. Smith that “[y]ou will be required to present a fitness-for-duty certificate to be restored to employment.” Mr. Smith’s injured knee did not improve to a point at which he could return to his position as a sanitation equipment operator II, and he exhausted his 12 weeks of FMLA leave in September of 2019.1 At that point, ECUA’s Human Resources department placed him in two light-duty positions. The first was a temporary position counting inventory. That temporary position comes open for a week at the end of every ECUA fiscal year. After Mr. Smith completed that work, he was assigned to removing paper and plastic from ECUA’s composting operation. Mr. Smith’s tenure with the compost operation was brief because he was unable to walk or stand for long periods of time.2 1 Mr. Smith enjoyed working for ECUA and was interested in other employment opportunities there following his accident. Because he has 20 years of customer service experience and associates degrees in culinary management and hotel and restaurant management, Mr. Smith inquired about becoming a customer service representative. However, ECUA only had one such opening between March and November of 2019 and typically receives hundreds of applications when such a position comes open. Also, ECUA’s Human Resources department does not have the authority to reassign employees from one department to another. An employee interested in a position outside his or her department must apply for the position, and the department seeking to fill that opening makes the final decision as to who is hired. 2 The witnesses disagreed about how long Mr. Smith worked at the compost operation. Chiquita Payne, a senior human resources generalist at ECUA, and Tim Dean, ECUA’s lead compost technician, testified that Mr. Smith spent no more than a few days with the compost operation. Mr. Smith testified that he was there for 2.5 weeks. Mr. Smith never returned to his position as a sanitation equipment operator II. The medical restrictions prohibiting Mr. Smith from activities such as bending at the waist, stooping, kneeling, crawling, climbing, or squatting were not lifted. A note from Dr. Juliet De Campos, Mr. Smith’s attending physician at the Andrews Institute of Orthopedics & Sports Medicine, gave the following assessment of Mr. Smith: This 52-year-old male, truck driver had an impact injury to the anterior [of] the right knee in the patellofemoral area with a fall to the ground which may have twisted his knee. He had a laceration which healed uneventfully but had recurrent swelling and giving way of his knee. X-ray showed no fracture or loose body. MRI suggested abnormal MRI and medial meniscus. What was not read was a prepatellar bursitis and contusion. The contusion has resolved but the patient still has recurrent swelling, catching, and giving way. He has had physical therapy and a knee sleeve. Exam today shows findings consistent with medial meniscus tear but no ACL injury, atrophy. Prepatellar bursitis has resolved. He continues to have recurrent swelling and instability. He has been in physical therapy which has helped but [has not restored] normal function. Within a reasonable degree of medical certainty, this injury was caused by the job injury and treatment is necessary on that basis. The note continued by recommending that Mr. Smith have right knee surgery, and he ultimately did so on January 22, 2020. Following the surgery, Mr. Smith’s attending physician anticipated that Mr. Smith would have a “permanent impairment rating” and recommended that he do no stooping, squatting, or kneeling. The attending physician also recommended that Mr. Smith not lift anything over 10 pounds. Thus, the attending physician noted that “[o]ffice work would be appropriate” and counseled against Mr. Smith engaging in “commercial driving.” Section D-16 of the Manual contains a section on workers’ compensation providing that: Employees will return to work anytime they are medically able, with or without reasonable accommodations, within six (6) months of the date of injury. If after six (6) months from the date of injury the employee remains unable to perform the essential functions of his or her job, with or without reasonable accommodation, the employee’s department director, in consultation with the Human Resources Director, shall consider the employee’s prognosis and anticipated return-to- work date, the department’s present and projected workload and needs, and all other relevant factors in determining whether additional leave is appropriate under the circumstances. Should the employee remain unable to perform the essential functions of his or her job, with or without reasonable accommodation, after passage of six (6) months from the date of the injury and any extension thereof, if any, he or she shall retire, resign, or be terminated. Keith Kyles Sr., ECUA’s sanitations collections manager, issued a letter to Mr. Smith on December 3, 2019, stating the following: The most recent medical note in your file shows you were last seen by your treating physician, Dr. DeCampos, on November 19, 2019. Regarding your ability to return to work to perform the essential functions of your job, Dr. DeCampos stated, “No change – will need to schedule surgery.” Based on the above, it is clear you are unable to perform the essential functions of your position as a Sanitation Equipment Operator II. Moreover, a return to work date is unknown and there is no estimated date for your return to work at this time. Your continued absence, without a probable date of your return to work, creates a substantial hardship on the operational needs of the Sanitation Department and impairs ECUA’s ability to properly fulfill its responsibilities to its ratepayers. ECUA is also unaware of any reasonable accommodations which would enable you to perform the essential functions of your job. Moreover, ECUA cannot indefinitely hold your position open, as the duties which it entails simply must be performed. We have done everything reasonably possible to accommodate your work restrictions. However, we can no longer allow your continuing inability to perform the essential functions of your job, with or without a reasonable accommodation, to create a substantial hardship and impair ECUA’s ability to properly fulfill its business obligations. The letter closed by notifying Mr. Smith that Mr. Kyles had scheduled a predetermination hearing for December 10, 2019, so that Mr. Smith could have an opportunity to discuss whether he could perform the essential functions of a sanitation equipment operator II, with or without a reasonable accommodation. After the predetermination hearing, Mr. Kyles issued another letter to Mr. Smith on December 12, 2019, notifying him that his employment with ECUA had come to an end: During your hearing, you provided information that your knee surgery is scheduled for December 26, 2019. After surgery, you stated that you would be required to be on crutches for 10 days, followed by an additional eight weeks off work for recovery post-surgery. Based on the information provided, I have determined your continued inability to perform the essential functions of your position, with or without reasonable accommodation, creates a substantial hardship and impairs ECUA’s ability to properly fulfill its business obligations. Your inability to perform the essential functions of your job, with or without reasonable accommodations, constitutes a violation of Section B-13 A (10) . . . of ECUA’s Human Resources Manual Therefore, it is with regret I notify you that your employment with ECUA is hereby terminated effective close of business December 12, 2019. The preponderance of the evidence demonstrates that Mr. Smith cannot tolerate the physical demands associated with his former position as a sanitation equipment operator II, nor is there any reasonable accommodation that could be made that would allow him to perform the duties of a sanitation equipment operator II. Thus, Mr. Smith is not in compliance with Section B- 13 A (10) of the Manual. Mr. Smith did not meaningfully contest ECUA’s argument that he could no longer perform the physical tasks associated with a sanitation equipment operator II. Instead, Mr. Smith’s case focused on arguing that there are other, less demanding positions, within ECUA’s Sanitation Department and that assigning him to one of those positions would be a reasonable accommodation. However, Mr. Smith failed to prove that he was capable of handling the physical demands associated with those positions. For instance, Mr. Smith raised the possibility of being assigned to ECUA’s “miss truck.” ECUA’s standard refuse trucks occasionally miss refuse pick-ups due to inadvertence on the drivers’ part or residents’ failure to place their garbage on the curb in a timely manner. The miss truck is not as large as a typical refuse truck and is more automated. Therefore, miss truck duty is not as physically demanding as driving a typical refuse truck. Nevertheless, Mr. Kyles’s testimony demonstrated that miss truck duty is still a physically demanding position in that the miss truck driver must be capable of transporting large refuse cans to and from residences over all types of surfaces and distances. Because ECUA’s standard refuse trucks typically miss 40-50 refuse pickups a day, the preponderance of the evidence indicates that the physical demands associated with miss truck duty are not appropriate for someone with Mr. Smith’s physical limitations. Mr. Smith also raised the possibility of transporting ECUA’s fuel trailer. ECUA obtains fuel for its refuse trucks by transporting a fuel trailer to the Alabama-Florida line, acquiring the fuel, and transporting it back to ECUA. While this work is probably not as physically demanding as operating a refuse truck, Mr. Kyles testified that a fuel trailer operator would still have to satisfy the physical requirements associated with the sanitation equipment operator II position. Mr. Smith did not present any evidence to rebut Mr. Kyles’s testimony, and it is therefore accepted. Finally, Mr. Smith mentioned “monitoring piles” during his direct testimony. However, he presented no details about such duty. As a result, there is no competent, substantial evidence indicating that pile monitoring would be within his physical limitations, or that it would be a reasonable accommodation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the executive director of the Emerald Coast Utilities Authority find that James V. Smith, Sr., is no longer qualified to perform the functions of a sanitation equipment operator II and take such action as deemed appropriate under the pertinent provisions of the Human Resources Manual and Employee Handbook. DONE AND ENTERED this 26th day of March, 2020, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 26th day of March, 2020. COPIES FURNISHED: Kimberly E. Scruggs Emerald Coast Utilities Authority Post Office Box 17089 Pensacola, Florida 32522-7089 James V. Smith, Sr. 901 Booker Street Cantonment, Florida 32533 Jessica L. Scholl, Esquire Moore, Hill & Westmoreland, P.A. Post Office Box 13290 Pensacola, Florida 32591 (eServed) Steve E. Sorrell, Executive Director Emerald Coast Utilities Authority 9255 Sturdevant Street Pensacola, Florida 32514 (eServed) Cynthia Sutherland, Director Human Resources and Administrative Services Emerald Coast Utilities Authority 9255 Sturdevant Street Pensacola, Florida 32514 (eServed)
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
