Findings Of Fact Respondent was initially employed by Petitioner on April 13, 1970. He was appointed to the position of Superintendent of Petitioner's West Palm Beach Field Station in 1973, and continued in that position until March 9, 1983, when he was discharged. As Superintendent of the West Palm Beach Field Station, Respondent supervised approximately 80 maintenance operations and administrative employees. The facility is located adjacent to Petitioner's headquarters, and is somewhat larger in terms of employees than Petitioner's other field stations. Respondent was a generally capable and dedicated employee of Petitioner. However, his management style and personality were often irritating to his employees, coworkers and supervisors. The incident which precipitated his discharge involved the retirement of a valued employee who was supervised by Respondent. The employee informed Respondent's supervisor that one of the reasons for retirement was his difficulty in working for Respondent. Specifically, the retiring employee was embarrassed by Respondent's handling of a subordinate's failure to earn promotion. Respondent advised the employee in his subordinate supervisor's presence that he (Barnette) was ready to promote the employee, but that the subordinate supervisor was opposed. The cancellation of the promotion was unnecessarily dramatized by Petitioner dropping the promotion form in the wastebasket in the presence of the subordinate supervisor and the employee. The testimony of witnesses from the West Palm Beach Field Station established that the Respondent has a hot temper, and is subject to frequent temper outbursts. His radio room operator overheard Respondent yelling at people in his office through a closed door once every week to two weeks. Other witnesses also observed the Respondent engaged in loud arguments with his subordinates. Respondent admitted on cross-examination to having a temper, and did not deny that the incidents attested to by Petitioner's witnesses. Respondent's temper outbursts were unacceptable conduct, and Petitioner counseled Respondent regarding this deficiency in 1978 and periodically thereafter. The testimony of Mr. George Dupley, Supervising Professional Engineer, established that on several occasions Respondent refused to comply with design instructions from headquarters, which resulted in additional project cost to the District. His testimony also indicated Respondent had a generally uncooperative attitude, and that he was much less cooperative than other field station superintendents, with whom Mr. Dupley had no problem. Mr. Rob Baskin, Assistant Structure Maintenance Coordinator, was subjected to an incident where Respondent blew up at him in the presence of other employees and told him to leave the job, while he was attempting to carry out assigned duties. Dupley, Baskin and other headquarters staff personnel avoided dealing with Respondent whenever possible because of his hot temper and hostile attitude. Respondent's uncooperative attitude extended to the District's personnel office. Respondent generally disregarded the Petitioner's recruitment policy which required that no external applicant be interviewed or hired for an open position until internal employees had been interviewed. Respondent's refusal to comply with this policy created morale problems and prompted the filing of several employee grievances. Respondent was counseled on this problem in 1981. Respondent's disregard of personnel policy was most flagrant in his hiring of his niece's husband in 1982, after being advised by Petitioner's personnel office that such action would constitute a violation of its anti- nepotism policy. Respondent was disciplined for this infraction under Petitioner's "Corrective Action Policy" (discussed below), and assigned 25 points. This was a "category 2" offense for which the penalty was to remain in effect for six months. This disciplinary action would have expired March 14, 1983, five days after Respondent was discharged. In the nepotism memorandum, dated September 17, 1982, Respondent's supervisor also stated: [I]t has come to my attention from numerous sources that both employees and supervisors avoid discussions with you for fear of temper outbursts. You are attempting to maintain a one man iron rule at the station which is out of step with the District's management philosophy . . . Any future problems may require dismissal. Although Respondent never received an unsatisfactory merit review rating, his April 7, 1978, rating included the following observations: A negative form of reluctance is evident relative to meeting organizational and program objectives. There is too much disregard for certain headquarters expertise. As a superintendent improvement is mandatory. Decision-making on certain occasions appears tainted with prejudice against endeavors of well intentioned key staff members. Respondent's most recent merit review rating, dated October 21, 1982, included the following: The handling of matters which impact on board personnel must improve. Emphasis has been placed upon this issue in several previous evaluations, including the last two. Thus, Respondent had ample notice of his expected performance and the opportunity to correct his deficiencies. In addition to the above notices and meetings, Petitioner's efforts to upgrade Respondent's performance included his attendance at several management training seminars. After concluding that Respondent would have to be replaced, Petitioner considered demoting rather than discharging him. However, no suitable position was available. Petitioner's Corrective Action Policy (Respondent's Exhibit One, in evidence) sets forth expected standards of performance for all District personnel. Respondent is familiar with these standards, both as a supervisor and as an employee of Petitioner.
Recommendation From the foregoing, it is RECOMMENDED: That Petitioner enter a Final Order discharging Respondent. DONE and ENTERED this 23rd day of September, 1983, in Tallahassee, Florida. R. T. CARPENTER, 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 23rd day of September, 1983.
The Issue The issue for consideration herein is whether the withdrawal by Amerifirst of its application for a permit from the Department to build a recreation area and boat ramp on the Braden River precludes a hearing to determine whether the project can be constructed under a general permit held by Amerifirst.
Findings Of Fact On July 13, 1989, the Department received an application from the Respondent, Amerifirst, for a permit to construct a recreational area and boat ramp for its 465 acre, 966 unit Mote Ranch development in Manatee County. Thereafter the Department published an Intent to Issue the permit in question in which it advised persons whose substantial interests were affected thereby of their right to protest and request a formal hearing. By Petition filed June 1, 1990, the City filed a timely Petition For Formal Hearing protesting the Intent to Issue, claiming that the project would degrade the quality of the City's only public drinking water supply. The matter was forwarded to the Division of Administrative Hearings for appointment of a Hearing Officer, and on June 22, 1990, the undersigned set the matter for hearing in Bradenton on August 28, 1990. However, in July, 1990, Amerifirst communicated to the Department its intention to use the general permit under Section 17-312.803, F.A.C., for the installation of the boat ramp, and by letter of August 13, 1990, the Department indicated that proposed action appeared to be authorized. Thereafter, on August 14, 1990, Amerifirst requested withdrawal of the previously filed special permit which had been protested by Petitioner herein. The parties agree that Amerifirst's withdrawal of its application for special permit renders moot the issue of that permit's propriety.
Recommendation It is, therefore: RECOMMENDED that the Department's Notion To Dismiss be granted and that an Order be issued dismissing the City of Bradenton's Petition For Formal Proceeding in this case. RECOMMENDED in Tallahassee, Florida this 19th day of October, 1990. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of October, 1990. COPIES FURNISHED: Mark A. Nelson, Esquire Harllee, Porges, Hamblin & Hamrick, P.A. P.O. Box 9320 Bradenton, Florida 34206 Steven J. Chase, Esquire Abel, Band, Brown, Russell & Collier, Chartered P.O. Box 49948 Sarasota, Florida 34230-6948 Richard Donelan, Esquire Department of Environmental Regulation 2600 Blair Stone Rd. Tallahassee, Florida 32399-2400 Dale H. Twachtmann, Secretary Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
Findings Of Fact In May, 1986, Radar Corporation, owned by Ronald Ross, bought the assets of United Water Consultants, Inc., and continued the business of selling water purifiers under the fictitious name, United Water Consultants. As part of the agreement to purchase the United Water Consultants' assets, Ross, who had no experience in the business, insisted that the seller arrange to have an experienced manager agree to stay on and work for Radar at least until either Ross was able to learn the business adequately or could hire another suitable manager. The seller recommended, and Radar hired as manager, a man named Robert Gillette, who had about 30 years experience in the business. One of the first orders of business for Radar and Gillette was to hire staff, including telephone solicitors, the heart of the business. Among-those Gillette hired were the petitioners--Leisha F. Fickes, Petitioner in Case No. 87-2605, hired in early June, 1986; Marian C. Norz, Petitioner in Case No. 86- 2606, hired in late May, 1986; and Eileen A. Warner, Petitioner in Case No. 86- 2607, hired approximately May 20, 1986. Fickes, Norz and Warner (like all other United Water Consultants personnel) signed agreements shortly after they began work stating that they were independent contractors. But the main purpose of those agreements, as Gillette explained to them, was to help justify Radar's failure to take federal income tax withholding and social security out of their pay checks. Functionally, the petitioners had the attributes of employees. They were under the close supervision, direction and control of Gillette in the day-to-day details of their work. They were paid a salary based on an hourly wage, plus commissions on telephone solicitations that resulted in sales. Soon after the petitioners began work, Gillette began making advances towards them. At first, Gillette was not too bold and some of his advances were innocent enough to be in public. He would do things like come up behind one of them and gently massage her shoulders and neck. This type touching was not entirely unwelcome, especially to someone who had been sitting in one place making telephone calls for some length of time. But very quickly, Gillette began to subject the petitioners to coarse and unwelcomed sexual advances in private. On one occasion, Gillette came in the room where Fickes was working and, after massaging her shoulders, began to try to kiss her neck. On another occasion, Gillette loaned Fickes $20 and implied she could pay him back with sexual favors. Later, he began to take opportunities to drop pens and similar articles down her blouse and offer to retrieve them himself. One day Gillette came up behind Warner after posting recent sales and began to rub her breasts, saying "see what I got for you?" Warner pushed him away, and he angrily stormed out of the office. On one Friday, Gillette offered Warner $20 for oral sex and asked her to think about it. On Monday, Gillette followed up his offer and, when Warner declined the offer, said he thought she probably did it for her husband for free. Later, to punish Warner for her refusal to give him sexual favors, Gillette began to give her customer lists for solicitation bearing the names of people who recently had declined to buy a water purifier, and Warner's commissions dropped. When Warner complained, Gillette hold her, "you do for me, and I'll do for you." When Norz asked Gillette for higher commissions, Gillette also told her that he would get her more money in return for sexual favors. He also told her, when she refused his requests that they go out socially together, that he did not know why she was married to an "old man." As Gillette's conduct worsened, all three of the petitioners separately went directly to Ross to complain. Ross said he would look into the allegations and "take care of it." In fact, Ross did nothing. Although most of Gillette's coarser sexual advances were made in private, Norz once observed Gillette rubbing Warner's shoulders as he closed the door of the room they were in, and Warner once observed Gillette drop an article down Fickes' blouse. As they talked with one another, the petitioners began to realize the extent of Gillette's conduct and decided to approach Ross together to see if they could be more persuasive. On July 11, 1986, the petitioners met Ross in the parking lot as he came in to work and demanded to speak to him. They reiterated the facts and demanded that Ross fire Gillette or move him out of the telephone room or they would quit. Ross asked them to come back after lunch. Meanwhile, Ross confronted Gillette for the first time, and Gillette denied the allegations. Gillette demanded a direct confrontation with the petitioners, thinking they would back down. At the meeting after lunch, the petitioners re-asserted their allegations, and Gillette angrily stormed out of the room, expressing an ultimatum that it looked like it would have to be him or them. Ross, whose business would be seriously adversely affected by the departure of Gillette, his manager, told the petitioners that he would have to discuss the situation with his "colleagues" and would get back with them. They told him that they were anxious to hear from him because they (especially Warner and Fickes) needed the work but that they would no longer work under Gillette. When the petitioners did not hear from Ross, Fickes telephoned him and was told that they all had been fired, allegedly because a customer list had turned up missing. (If true, the petitioners had nothing to do with it.) Later, Ross would maintain that the petitioners voluntarily quit on July 11, 1986. Fickes and Warner earned approximately $220 per week and Norz earned approximately $195 per week at United Water Consultants. Norz made no real effort to mitigate damages by seeking other employment after July 11, 1986. Warner and Fickes, both of whom were pregnant, were unable to find other employment before the birth of their babies in August and November, 1986, respectively. Warner took about six weeks off after childbirth and worked three different jobs from late October, 1986, through July, 1987, each of which paid her approximately $140 per week. Fickes did not return to work until March, 1987, when she began earning approximately $170 per week at a restaurant. /1 At least from the time Radar took over the United Water Consultants business through at least December, 1986, at least five employees worked for the business each and every week. Radar operates the United Water Consultants business out of an address located in Largo, a municipality in Pinellas County other than the City of Clearwater.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Community Relations Board of the City of Clearwater, acting as the Commission that administers Pinellas County Ordinance 84-10, codified under Chapter 17.5 of the Pinellas County Code, enter a final order: Holding the respondents, Radar Corporation and United Water Consultants, guilty of having violated Section 2-17.5-3, Pinellas County Code, by discriminating against the petitioners, Leisha F. Fickes, Marian C. Norz and Eileen A. Warner, in employment on the basis of sex; and Ordering the respondents, Radar Corporation and United Water Consultants, jointly and severally, to pay to Leisha F. Fickes $7,740 and to Eileen A. Warner $5,880 as actual damages RECOMMENDED this 6th day of November, 1987, in Tallahassee, Florida. J. LAWRENCE JOHNSON 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 6th day of November, 1987.
Findings Of Fact Respondent, Lois Green, is a resident of Florida and owns the property known as the Nichols Post Office located on Highway 676 in Nichols, Polk County, Florida. There is one employee stationed at the post office and members of the public use the post office for U.S. mail purposes. On October 11, 1990, Petitioner advised Respondent that the source of water that she used to supply the post office building did not comply with the requirements of the Florida Administrative Code. Thereafter, on September 23, 1991, Petitioner issued an Administrative Complaint to Respondent, advising of Petitioner's notice of intent to assess a fine of $100.00 per day until the corrections were made or for 30 days, whichever occurred first. At the hearing, Petitioner orally amended paragraph 4 of the Administrative Complaint to change the reference "December 22, 1989" to "October 4, 1990." Following service of the Administrative Complaint on Respondent and for 30 days thereafter, the water source for the post office building was a well located behind the post office on Respondent's property. In approximately December of 1991, Respondent disconnected the well which was presently serving the post office and connected to another well located adjacent to the property which supplied a residential home. The well which provided water to the post office was originally drilled as an irrigation well. The well head was located approximately 50 ft. to the closest septic tank and restroom pipe outlets. That well had no raw sample taps or a pressure tank with an inlet or outlet. Additionally, there was no surface protection pad nor were quarterly bacteriological samples taken to measure the water quality samples. Finally, the well was not approved by Petitioner prior to placing it into use by Respondent. Sometime subsequent to 30 days after Petitioner issued the Administrative Complaint to Respondent, Respondent abandoned the well without notifying the Petitioner and connected to a residential well which also contravenes the setback requirements contained in Chapter 17, Florida Administrative Code. Specifically, that well is approximately 30 ft. from the on-site sewage disposal system (septic tank) and is in violation of Rule 17- 555.302, Florida Administrative Code, formerly Rule 17-22.615(2), Florida Administrative Code. Petitioner's agent, Mark Fallah, during times material, was employed in Petitioner's Code Enforcement Section and was charged with investigating the problems surrounding Respondent's supply of water to the Nichols Post Office. Throughout the course of employee Fallah's involvement with the investigation of this matter, there have been several proposals and counter-proposals which have been exchanged by and between Petitioner and Respondent. Petitioner's agent Fallah attempted to see if a variance could be obtained whereby Respondent could continue to use the then existing well despite the fact, however, that it was in violation of the setback requirements. Additionally, Fallah attempted to get Respondent to make certain minor changes and modifications to the existing well which were not successful. Throughout the course of the parties negotiations in an effort to resolve this matter, there has been certain concessions made by both sides; however, the well which supplies the post office is a water system which is noncompliant with applicable statutory and rule requirements. Petitioner, through its employee Fallah, checked with a local well drilling company, Dunham Well Drilling Company, to obtain an estimate for a well. That company gave an estimate of approximately $2,000.00 to $3,500.00 to install a water supply system to the post office which would comply with Petitioner's requirements.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner enter a Final Order imposing an administrative fine against Respondent in the total amount of $3,000.00 of which amount $2,500.00 shall be suspended pending Respondent's initiation of a plan to construct and install a water well system to provide the Nichols Post Office which complies with Petitioner's requirements enunciated in Chapters 403 and 381, Florida Statutes and Rule Chapter 17, Florida Administrative Code. In the event that Respondent fails to initiate a plan of correction and complete the installation of the well within sixty (60) days of the date of Petitioner's entry of its Final Order, then Petitioner shall be authorized to impose the full administrative penalty of $3,000.00 without further administrative proceedings. Respondent shall submit to Petitioner the five hundred dollar ($500.00) administrative fine within thirty (30) days from the entry of Petitioner's Final Order. DONE and ENTERED this 22 day of April, 1992, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 day of April, 1992. COPIES FURNISHED: Raymond R. Deckert, Esquire Asst District Legal Counsel HRS District VI Legal Office 4000 W Dr Martin Luther King Jr Blvd Tampa, Fl 33614 Mygnon Evans, Esquire 5600 US Highway 98 N Lakeland, Fl 33809 Richard S. Power Agency Clerk Dept of Health and Rehabilitative Services 1323 Winewood Blvd Tallahassee, Fl 32399 0700 John Slye, Esquire General Counsel Dept of Health and Rehabilitative Services 1323 Winewood Blvd Tallahassee, Fl 32399 0700
Findings Of Fact Respondent is an individual who owns or operates a water system that provides piped water for human consumption to the Hardy House Diner in Washington county, Florida. The water system serves at least 35 persons daily at least 60 days out of the year. Respondent has owned or operated the water system since at least October 28, 1976. Respondent does not continually apply effective disinfectant measure to the water distributed to the customer of the Hardy House Diner, nor is Respondent's water system equipped with any disinfection equipment. Respondent's water system has a daily flow greater than 2,500 gallons per day, but less than 100,000 gallons per day. The operation, maintenance and supervision of the water system is not performed by a person who has passed an examination that entitles such a person to be a certified operator. Neither the Department nor the Washington County, Florida Health Department has received from Respondent reports which contained information about the operation and maintenance of the Respondent's water system. The water system's lack of disinfectant equipment and the absence of a certified operator for the system and Respondent's failure to file operation reports have existed continuously since "October, 1976. Representatives of the Department conducted a public water systems inspection of Respondent's water system on October 26, 1976. At that time, the system was found to be unsatisfactory in several categories, including general plant condition, existence of safety hazards, lack of chlorination, failure to submit regular reports, failure to submit monthly bacteriological samples, failure to perform chemical analysis of drinking water and failure to install a raw water tap between the pump and point of chlorination. A second inspection was performed on April 7, 1977, in which it was determined that Respondent still had not installed a chlorinations system, had failed to submit monthly operating reports had failed to employ a certified operator, had failed to submit monthly bacteriological samples, and had failed to perform annual chemical analysis of water disposed from the system. On December 7, 1977, a representative of the Department whose job responsibilities included inspecting public water systems was refused permission to enter and inspect the water system serving the Hardy house diner and its customer. The Department representative was refused entry after he had identified himself and made his purpose known to Respondent. The Department has incurred expenses of $117.58, including personnel time and travel expense, in the course of investigating Respondent's alleged violations.
Recommendation RECOMMENDED: That a final order be entered by the State of Florida, Department of Environmental Regulation, finding the Respondent to be in violation of the above-referenced statutes and regulations, and requiring Respondent to pay the state its reasonable costs and expenses, in the amount of $117.58 incurred in investigating and prosecuting this administrative proceeding. RECOMMENDED this 26th day of February, 1979, at Tallahassee, Florida. WILLIAM E. WILLIAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 2230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 1979. COPIES FURNISHED: Vance W. Kidder, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Mr. Eugene Hardy 1005 Highway 90 West Chipley, Florida 32428 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION, Petitioner, vs. CASE NO. 78-1209 DER Case No. WC-10-78 EUGENE HARDY, Respondent. /
Findings Of Fact The Respondent, Albert R. Stewart applied to take the examination given on August 3, 1979, to receive a Class "C" waste-water treatment plant operator license. At the examination site of Clearwater, Florida, on the scheduled examination date, the examinees were instructed to print their names on the examination answer sheet and to sign their names on the cover of the examination booklet. At the request of Mr. Stewart, Mr. Alan Ferguson appeared and took the examination in Clearwater, Florida, on August 3, 1979, in the place of and on behalf of Mr. Stewart. Mr. Ferguson signed the examination cover (DER Exhibit 2) and answer sheet (DER Exhibit 3) with the name of "Albert Stewart". The signature on the examination booklet does not resemble any of the signatures of Albert R. Stewart on his application for this examination or for any previous exams. The signature does resemble that of Mr. Ferguson in his prior correspondence with the Department of Environmental Regulation. (Mr. Ferguson presently holds a Class "C" permit). The testimony of Mr. Stewart that he actually took the examination administered on August 3, 1979, is not credible. To allow Mr. Ferguson to be admitted to the examination, Mr. Stewart provided him with his social security card and his driver's license. He also gave Mr. Ferguson twenty dollars ($20.00) for his expenses incurred in traveling to and from Clearwater. At the time of the examination, Mr. Stewart who is presently employed as a supervisor for the Waste-Water Treatment Plant for the City of Inverness, was the supervisor of Mr. Ferguson. Mr. Stewart by his agreement with Mr. Ferguson to take the examination in his place, has falsely represented to DER that he took the August 3, 1979 examination. This false representation occurred in the process of his application for a waste-water treatment plant operator license.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered by the State of Florida, Department of Environmental Regulation immediately revoking the Class "C" waste-water treatment plant operator's license granted to Respondent, Albert R. Stewart. DONE and ENTERED this 25th day of July, 1980, in Tallahassee, Florida. MICHAEL PEARCE DODSON Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of July, 1980. COPIES FURNISHED: Alfred W. Clark, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Mr. Albert Roscoe Stewart Post Office Box 306 Crystal River, Florida 32629 =================================================================
Findings Of Fact On April 22, 1994, Respondent, Southwest Florida Water Management District (SFWMD), published proposed amendments to Rule 40D-4.051 in the Florida Administrative Weekly, Volume 20, Number 16, at page 2450. The portions which are the subject of this proceedings are as follows: * 40D-4.051 Exemptions <<(1) Exemptions are found in>> [[The following activities are exempt from permitting under this chapter: The activities specified in]] Sections 373.406, Florida Statutes. (2)-(7) No Change. * Note: In the above quotation, language added to the statute is within the <<>>; deleted language is within the [[]]. On May 13, 1994, Petitioner, Gerald A. Robbins, filed a Petition to Challenge Proposed Rule 40D-4.051. On May 20, 1994, Petitioner filed an Amended Petition to Challenge Proposed Rule 40D-4.051. In its rule challenge, Petitioner requests that 40D-4.051(1) be rewritten as follows: "Exemptions are as found in Sections 373.406 AND 403.927 Florida Statutes." On July 1, 1994, Respondent withdrew its proposed amendment to Subsection (1) of Rule 40D-4.051. The following Notice of Withdrawal appeared in Florida Administrative Weekly, Volume 20, No. 26: Southwest Florida Water Management District RULE TITLES: RULE NOS.: Exemptions 40D-4.051(1) NOTICE OF WITHDRAWAL Notice is hereby given that the above proposed rule amendment, published in the Florida Administrative Weekly, Volume 20, Number 16, on Page 2450, April 22, 1994, have (sic) been withdrawn. This is the sole subsection being withdrawn from rulemaking pursuant to Section 120.54(13)(b), Florida Statutes. The remainder of the proposed amendments to Section 40D-4.051, Florida Administrative Code remains subject to Section 120.54(1), Florida Statutes. By Order dated June 28, 1994, the portion of Petitioner's rule challenge relating to Rule 40D-4.051(7) was dismissed. Petitioner appealed the Order to the Fifth District Court of Appeal, Gerald A. Robbins v. Southwest Florida Water Management District, Case No. 94-1717. The court denied Petitioner's Petition for Review of Non-Final Administrative Action by Order dated October 10, 1994.
The Issue Whether Respondent, American Water Service Company, Inc., (“American Water”), discriminated against Petitioner, Micheal D. Bristol (“Bristol”), in violation of the Florida Human Rights Act and, if so, what penalty should be imposed?
Findings Of Fact Bristol is a 33-year-old, Caucasian male. He has been diagnosed with lumbar disk degeneration, depression, and anxiety. He holds a General Education Degree. At all times relevant hereto, Bristol was employed by American Water as a customer service representative. A customer service representative fields calls from American Water’s customers concerning complaints, renewals, changes in services, or other issues. The customer service representative uses a telephone and computer to respond to between 60 and 100 customer inquiries per day. The customer’s account information is brought up on the customer service representative’s computer in order to assist with whatever issue is raised concerning the customer’s complaint or issue. American Water is a utilities company that contracts with municipalities to provide water and sewer services to the citizens of the cities. It is a national company with water utility customers in several states. It is governed in part by the Public Utilities Commission and is charged with meeting certain standards regarding customer complaints. Having customer service representatives who are available and qualified is an important factor in meeting those standards. There are between 200 and 250 customer service representatives at American Water’s office in Pensacola, Florida, where Bristol was employed. American Water has another customer service center in Alton, Illinois, with about 200 customer service representatives. Calls coming in from customers are routed to the first available representative, regardless of at which service center they are working. Each representative sits in a cubicle with a desk holding two computer monitors, a telephone, and other necessary equipment. The customer service representatives wear headsets for the telephone which have cords of five to six feet in length. The back side of the cubicle is open to a common area. It is imperative that American Water maintain an adequate workforce of representatives each day. Using historical data, American Water tries to estimate the number of representatives who must be working each hour of each day. Some days historically have more incoming calls than other days, and American Water staffs accordingly. It is understood that some employees may need to take sick leave from time to time. All employees are given vacation days. Thus, making sure that there are enough workers on any given day is a moving target, yet it is integral to the work being done. American Water has instituted policies to help assure adequate staff. For example, there is a limit on the number of employees who may be on vacation at any given time. Some employees are allowed to work part time, but with a very definitive schedule. All employees are required to notify American Water immediately if they are unable to work on their assigned dates and times. Attendance is a singularly important requirement for an American Water customer service representative. At some point in time after he was first hired by American Water, Bristol was diagnosed with a degenerative disk disorder. The disorder causes him discomfort, making it difficult to sit for long periods of time. (However, see paragraph 19, below.) Bristol left his employment with American Water in October 2010. In May 2011, he returned to American Water, again as a representative in the customer service center. He had the same duties as in his previous employment. As Bristol began to experience more problems with his back, he began to use up all of his annual leave and sick leave when he felt he was unable to work. There was no evidence presented at final hearing as to how many annual leave hours employees receive, but each employee is allowed 80 sick leave hours per year. In 2012, Bristol applied for additional leave under FMLA and was approved for 480 hours, equivalent to 60 full work days. American Water approved intermittent leave under FMLA for one day per month with up to two days per time. During calendar year 2012, Bristol used some but not all of his FMLA leave. Bristol reapplied for FMLA leave again in February 2013, and was approved for another 480 hours. In that year, he used all 480 hours of FMLA leave. Bristol took leave whenever he felt like his back pain would prevent him from working. The leave was described as “intermittent” because there was no regular schedule or times associated with the leave. His schedule was, therefore, contrasted from a part-time employee who works fewer hours on a predetermined but regular schedule. On or about November 18, 2013, Bristol was notified that his FMLA leave had been used up. He had also exhausted his annual leave and sick leave allotment. Despite the fact that Bristol’s intermittent leave had created scheduling problems for the company, an employee of American Water provided Bristol with the necessary paperwork for requesting leave under the Americans with Disability Act (“ADA”). Part of that paperwork was a Health Care Provider Statement (“HCPS”) to be completed by his physician. Bristol was advised that after completing the HCPS, American Water would try to ascertain whether there were any accommodations they could provide to him on the job. Bristol submitted the HCPS to his treating physician to be completed and returned to American Water. Meanwhile, American Water tried to accommodate Bristol’s condition. He was provided an ergonomic work station, having a desk that could be raised or lowered, allowing Bristol to work while standing or sitting. He could change positions as needed to alleviate his back pain as much as possible. He could move, albeit not very far, within his small work area. Contradictory testimony was presented as to the exact size or configuration of the work space, so how much Bristol was able to move around is not clear. It is clear, however, that American Water attempted to accommodate his needs as much as the situation allowed. Bristol’s physician, Dr. Carie Fletcher, completed and signed the HCPS on November 26, 2013. The form was provided to American Water. Based upon the information supplied by Dr. Fletcher, American Water notified Bristol by letter dated December 2, 2013, that the current ergonomic work station and job duties were sufficient accommodations for the malady described by his doctor. Bristol said he did not believe the accommodations were sufficient. American Water thereafter asked Dr. Fletcher whether she had anything to add concerning Bristol’s disability or impairment. In response to that inquiry, Dr. Fletcher amended her previous submission, specifically on sections 4(b) and 7 of the form. Section 4(b) asks this question: “Is the Patient ‘substantially limited’ as to the condition, manner, or duration under which the Patient can perform that major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.” Dr. Fletcher had originally stated, “Cannot stand/sit for prolonged periods (>1 hr), cannot lift objects >25 lbs secondary to back pain.” Upon American Water’s inquiry, she added this statement: “May expect exacerbation of back pain/DJD intermittently, up to 5-7 occurrences per month, at two days per occurrence.”2/ The question at section 7 of the form asked, “Does the diagnosed condition or conditions affect the Patient’s ability to perform any one of the essential functions of the Patient’s position?”. Dr. Fletcher originally stated: “Recommend allowing frequent position changes, limit lifting; will likely still experience intermittent exacerbations of back pain.” When American Water asked for additional detail, Dr. Fletcher added: “Please allow pt to stand and walk at liberty for approx five minutes every hour.” The amendments were provided to American Water on December 10, 2013. American Water’s HR personnel discussed the doctor’s recommendations and decided that the ergonomic work area and the extension cord on the telephone headset would allow Bristol the movement and flexibility needed. Lifting heavy objects was not part of Bristol’s job duties, so that was not discussed. Dr. Fletcher did not specifically suggest intermittent leave for Bristol, nor did she state that he would need to take leave five to seven times per month at one to two days per time. Rather, her response to American Water’s inquiry was that Bristol “may expect exacerbation” of his condition five to seven times a month. In section 8 of the form – which is the section for the physician to recommend accommodations – Dr. Fletcher wrote only, “As noted above.” (Again, see endnote 2, below). On January 31, 2014, American Water again contacted Dr. Fletcher for additional information. She was asked about Bristol’s mental or psychological disorder, to which she replied, “depression and anxiety” but that the condition did not currently limit Bristol’s activities. As to the lumbar disk degeneration, the limitations were listed as, “limits his ability to sit/stand/lift items and duration of work tolerated.” Dr. Fletcher was provided a matrix outlining Bristol’s essential job functions and asked what accommodations might be warranted for each. Dr. Fletcher replied to those inquiries on February 6 as follows (paraphrased): As for typing, Bristol may need to take breaks every hour; As for sitting, Bristol should be allowed to move/walk for five minutes every hour; As for standing, Bristol should be allowed to sit/rest for five minutes every hour; As to whether he could work full time, i.e., attendance, yes, as long as the previously noted accommodations were provided. It is significant that Dr. Fletcher again did not recommend intermittent leave for Bristol. Bristol nonetheless continued to ask American Water to approve intermittent leave as an accommodation. The primary reason American Water would not approve intermittent leave for Bristol was that it was necessary to be able to staff the customer service center at all times. Allowing employees to miss work randomly would adversely affect American Water’s ability to insure adequate staff. In fact, American Water considered Bristol a very good employee and would have preferred to retain him if possible. This was despite an allegation that Bristol had forwarded computer screen shots of customers to his personal email address, a terminable offense. American Water considered its actions to be in compliance with the recommendations of Dr. Fletcher. Although attached to a headset wire, Bristol had some minimal ability to move about his work space. He was able to stand when he needed to stand and sit when he needed to sit. He was not required to lift anything over 25 pounds. He was able to leave his work station to walk around every hour or so, but would have to log out temporarily to do so. Employees could log out using a special “AUX” code for bathroom breaks. It must be noted that during the entirety of the final hearing, Bristol sat without taking (or asking for) any breaks. He did not take advantage of breaks requested by others; rather, he remained seated as he talked with his counsel. His willingness and ability to remain seated during the final hearing flies in the face of his stated difficulties while working at American Water. While there may be some unstated reason that Bristol did not need relief at the final hearing, without some explanation that fact significantly affects the credibility of his testimony.3/ Bristol continued to miss many days (or parts of days) at work after his FMLA leave was used up. Being away from one’s work station for over an hour was considered an absence by American Water.4/ He presumed that those absences would ultimately be covered or approved under his anticipated ADA leave, but no one ever told him that would be the case (nor did he inquire about it). His presumption was based on the fact that his prior absences while applying for FMLA leave had been covered once FMLA was approved. While waiting for a response to the ADA leave request, Bristol continued working at American Water – and continued missing all or parts of days from work. He would ask his direct supervisor, Shelby Weese, about the status of his ADA application from time to time, but she did not have any information from HR to share with him. On February 13, 2014, Bristol and his union representative (Courtney Brown) met with HR business partner Delles. Bristol at that time explained that he believed his ADA leave would be retroactively applied to his unexcused absences. At this meeting, Delles explained that the FMLA leave Bristol had taken previously was mandated by law, i.e., American Water could not object to the leave once Bristol was approved. To obtain FMLA leave, an employee needs only to work the requisite number of hours in their job. Thus, he was allowed to miss numerous days of work without recourse. The ADA leave, however, was different; the requirements for approval of ADA leave are more stringent than for FMLA leave. An employer does not have to grant ADA leave, but is required to approve FMLA leave if the employee qualifies. At the meeting with Delles, Bristol advised her that he would be filing a claim against American Water with the Employee Equal Opportunity Commission. This was despite the fact that American Water had attempted to provide accommodations. Further, Bristol had never been chastised or reprimanded by American Water for applying for ADA leave or FMLA leave. In fact, American Water had prompted Bristol to apply for ADA when his FMLA leave was exhausted. All the while, Bristol continued to be absent from work in excess of his available leave. Bristol had been notified on June 12, 2013, that he was being issued a Level I verbal warning for non-attendance pursuant to American Water’s attendance policy. On that same day, he was notified that he was being issued a Level II written warning for non-attendance due to a second occurrence. On November 15, 2013, he was given a Level III final written warning for non-attendance. A Level I verbal warning is issued when an employee uses up his sick leave and annual leave and then misses between one hour and one full day of work, i.e., an unexcused absence. The warning would remain “active” in an employee’s file for up to six months. A Level II written warning is issued when the employee has a second unexcused absence while the verbal warning was still active. The Level II warning would remain active for up to 12 months. A Level III final warning is issued when there is a third unexcused absence while the Level II warning was still active. If there is a fourth unexcused absence, the employee’s contract of employment will be terminated. American Water followed its progressive discipline policy regarding Bristol’s absences. On February 24, 2014, Bristol was notified by American Water that his employment was being terminated. The stated reason for the termination of employment was excessive absences. The letter of notification indicated absences of over one hour on 34 additional days following his final written warning. Bristol refused to accept the accommodations suggested by American Water. He maintained that the only way he could continue working was to be allowed to take intermittent leave whenever he felt the need. American Water could not agree to that plan because it had a defined need for customer service representatives to be available on the days they were scheduled, except for normal expectation of sickness or other unforeseen reasons for being absent. Otherwise, American Water would find it impossible to effectively schedule the necessary number of representatives on any given day. American Water did not offer Bristol an alternative job because, as a union member, he was in the only job covered by the union. Whether he could have withdrawn from the union was not discussed with Bristol (or addressed at final hearing). After termination of his employment at American Water, Bristol became employed as a “salad chef” at a local restaurant called Jaco’s. He works approximately seven hours each day and stands for the duration of his work shift, but he gets to walk around the kitchen area. Bristol did not say whether Jaco’s was asked to provide any accommodations for his disability. This fact, too, negatively colors Bristol’s credibility concerning his claims against American Water.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that American Water Service Company, Inc., did not discriminate against Micheal D. Bristol. DONE AND ENTERED this 24th day of April, 2015, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 24th day of April, 2015.
The Issue Did Respondents violate the provisions of Rules 62-550.518(3), 62-555.320(4)(8), 62-560.410(2)(c), 62555.350(2), and 62-555.345, Florida Administrative Code, as alleged in the Notice of Violation and Orders for Corrective Action, Case Nos. 96-653PW2442B and 96- 653PW2442C dated June 9, 1997?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times pertinent to this proceeding, the Department, through the Polk County Health Department, under the authority of an Interagency Agreement with the Department of Environmental Protection, was the agency of the State of Florida charged with the responsibility for inspecting and clearing Public Water Systems in Polk County Florida under Section 403.121, Florida Statutes. SDS Properties Investors Group, Inc. (SDS) is a Florida corporation authorized to do business as Budget Motel. SDS is owned by Shaikh. Sanitary surveys are conducted by the Department every three years and include the inspection of Public Water Systems (PWS) . On January 26, 1996, the Department conducted a routine sanitary survey of Budget Motel (Budget) located at 1418 Highway 17 South, Lake Wales, Florida, which should have included Budget's public water system, PWS 6532442. However, Polk County's inspector, Henry Tagioff, was shown a well, by a Budget employee, that was located on the adjacent property owned by Smokey's Mobile Home Park (Smokey's) and not a part of Budget's water system. Tagioff was not aware that the well he inspected was owned by Smokey's and not on Budget's property. During the inspection, Tagioff noted several violations and advised the Budget employee that Tagioff needed to discuss these violations with Shaikh. On January 29, 1996, Tagioff and Lee Forgey, another Polk County employee, met with Shaikh to discuss the violations noted by Tagioff on January 26, 1996. During this meeting, Shaikh, Tagioff, and Forgey discussed the violations previously found by Tagioff on January 26, 1996, concerning the well on Smokey's property. At no time during this meeting did Shaikh advise Tagioff or Forgey that neither he nor Budget own the well under discussion. The record is not clear, but sometime between January and May 1996, Budget's well had collapsed and was not useable. Subsequent to Budget's well collapsing, Shaikh contracted with George Dunham, after obtaining Smokey's permission, to connect Budget's water system (PWS6532442) to Smokey's well. At the time of connecting Budget's water system to Smokey's well, Dunham advised Shaikh that this was only a temporary solution and gave Shaikh a proposal for a new well since Budget's old well could not be repaired. On May 2, 1996, Tagioff made a reinspection of Budget's water system and found that Budget's well had collapsed and was inoperable, and that Budget had connected to Smokey's well to furnish water to the motel and its guests. Tagioff advised Shaikh that Budget would need a new well since its old well was inoperable and the connection to Smokey's well was only temporary. On May 21, 1996, Mark Fallah, a Polk County employee, conducted a site inspection and prepared a report for use in connection with Budget's application with Southwest Florida Water Management District (SWFWMD) for a new well permit. In connection with Fallah's site inspection and report, the Department advised Shaikh by letter dated May 21, 1996, of certain things concerning the new well that had to be completed prior to placing the well into public use. The letter provides in pertinent part as follows: Upon completion of the drilling and the verification of the grouting procedure by the Water Management District, the following items, as required by Chapters 62-555 and 62550 of the Florida Administrative Code, are to be completed prior to this water system being placed into public use. * * * 2. A continuous chlorination unit that is electrically interlocked with the well pump circuit. * * * A flow measuring device is required on all Non-Community Water Systems. A copy of the well completion report must be furnished to this office by the well driller within thirty (30) days after the well installation. Bacteriological clearance of the well must be performed by submitting twenty (20) consecutive water samples for analysis to an HRS certified laboratory. A maximum of two (2) samples per day taken at least six hours apart may be collected. Additional samples may be required until twenty (20) consecutive satisfactory samples are received. * * * After the well and plant construction is completed, contact our office for an inspection so that written clearance can be issued. It is prohibited for any Public water system to be placed into use without clearance being issued from this department. (Emphasis Furnished). SWFWMD approved Budget's new well application and issued Budget Permit No. 579811.01 for drilling a new well. However, upon completion of the new well, there were certain conditions that had to be met as indicated in the letter from the Department dated May 21, 1996. On May 31, 1996, and July 10, 1996, Fallah inspected Budget's new water system for compliance and, on both occasions, found that Budget had failed to install the chlorination unit, the flow meter, and had not submitted a well completion report or bacteriological samples. On July 15, 1996, the Department issued a Warning Notice to Shaikh advising him that the system could not be used until approved by the Department. For enforcement purposes, the file was transferred to Lewis Taylor, enforcement officer for drinking water systems for Polk County. On November 14, 1996, Taylor conducted an inspection of Budget's water system and reported that: (1) Budget's well had been placed into service without approval from the Department; (2) there was no chlorinator in operation; (3) there was no flow meter; (4) the Department had not received any bacteriological samples since November 1995; (5) there was no certified operator servicing the motel's water system; and (6) Budget had not provided public notice to its customers of its failure to monitor its drinking water. A second Warning Notice was issued by the Department and furnished to Shaikh on November 22, 19-96, which in substance advised Shaikh that Budget was in violation of Rules 62-550 and 62- 555, Florida Administrative Code, for its: (1) failure to obtain the Department's clearance before placing its new well in service; (2) failure to provide quarterly bacteriological samples; (3) failure to maintain proper chlorine residual in the water system; failure to provide a flow meter in the water system; (5) failure to provide public notification to its customers that its water system had failed to comply with Rule 62-550, Florida Administrative Code; and (6) failure to provide the Department with verification of Budget retaining a certified operator to oversee the operation and maintenance of its water system. On March 3, 1997, Tagioff and John GoPaul, US Environmental Agency, inspected Budget's water system and found that: (1) there was no chlorine residual in the system; (2) the chlorination unit located at the motel was not in use; (3) there was no flow meter within the system; (4) no quarterly bacteriological samples had been furnished to the Department; and the well had not been cleared for use by the Department. Based on the testimony of Lewis Taylor which I find credible, the Department has expended the following in the inspection of Budget's water system: (1) 20.25 hours of professional time at a rate of $30.00 per hour for a total of $607.50; (2) three hours of clerical time at a rate of $15.00 per hour for a total of $45.00; and (3) $27.00 in travel costs and postage. The total amount expended in the inspection of this water system by the Department was $679.50.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order finding Respondents guilty of the violations as charged and requiring Respondents to comply with the Orders for Corrective Action as set out in the Notice of Violation and Orders of Corrective Action in Case Nos. 96-653PW2442B and 96-653PW2442C. It is further recommended that Respondents be required to pay the costs and expenses of investigating the violations and prosecuting this matter in the amount of $679.50. DONE AND ENTERED this 27th day of May, 1998, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 27th day of May, 1998. COPIES FURNISHED: Angela T. Hall, Agency Clerk Department of Health 1317 Winewood Boulevard, Building 6 Tallahassee, Florida 32399-0700 Roland Reis, Esquire Department of Health Polk County Health Department 1290 Golfview Avenue, 4th Floor Bartow, Florida 33830-6740 Habib U. Shaikh 4014 Billingsgate Road Orlando, Florida 32839-7515 SDS Properties Investors Group, Inc. d/b/a Budget Motel 1418 Highway 17 South Lake Wales, Florida 33853
The Issue The issue to be determined in this case is whether the proposed amendment to Florida Administrative Code Rule 62-555.360 of the Department of Environmental Protection (“Department”), pertaining to cross-connection control for public water systems, is an invalid exercise of delegated legislative authority.
Findings Of Fact The Parties Petitioner is a natural person residing at 1805 Burlington Circle, Sun City Center, Hillsborough County, Florida. The Department is the state agency with powers and duties to protect public drinking water as set forth in the Florida Safe Drinking Water Act, section 403.850, et seq., Florida Statutes (2013). Background The term “cross-connection” is defined in rule 62-550.200(26) as: any physical arrangement whereby a public water supply is connected, directly or indirectly, with any other water supply system, sewer, drain, conduit, pool, storage reservoir, plumbing fixture, or other device which contains or may contain contaminated water, sewage or other waste, or liquid of unknown or unsafe quality which may be capable of imparting contamination to the public water supply as the result of backflow. Cross-connections are prohibited unless appropriate backflow protection is provided to prevent backflow through the cross-connection into the public water system. See Fla. Admin. Code R. 62-550.360(1). There are three types of backflow prevention devices germane to this proceeding: Reduced Pressure Principle Assembly ("RP"), Double Check Valve Assembly ("DC"), and Dual Check Device ("DuC”). Typically, but not in every case, the water customer is responsible for the costs of installation, inspection, and maintenance of a backflow prevention device. It is undisputed that the RP is the most expensive to purchase, install, and maintain; followed by the DC; and then the DuC.2/ The RP and DC are installed above-ground, usually near a street. Test ports on these assemblies allow them to be tested to determine whether they are still functioning to prevent backflow. The DuC is usually installed underground and has no test ports. The Department asserts that this difference makes the DuC less reliable than the RP and DC. The rule states, and Petitioner did not refute, that the RP and DC offer greater backflow protection than the DuC. Petitioner has an auxiliary water system at his residence, which he uses to pump untreated water from a nearby lake to irrigate his lawn. There is no cross-connection between the plumbing system in Petitioner’s residence and his auxiliary water system. Petitioner does not have a backflow prevention device installed at his property. Hillsborough County has an ordinance that requires the installation of an RP device for residential customers who have auxiliary water systems, but the County currently has a moratorium on the enforcement of its ordinance. Petitioner is on a local committee established to investigate and advise the Hillsborough County Board of County Commissioners regarding cross-connection control. He believes the County is likely to modify its ordinance and allow the DuC for residential customers who have auxiliary water systems. The Department Rule The Department stated its purposes for the rule in the Notice of Proposed Rulemaking: These rules are being amended to significantly reduce the overall regulatory burden of cross-connection control requirements on community water systems (CWSs) and their residential customers by: allowing a dual check device to be used as backflow protection at or for residential service connections from CWSs to premises where there is any type of auxiliary or reclaimed water system; and (2) allowing biennial instead of annual testing of backflow preventer assemblies required at or for residential service connections from CWSs. A community water system (“CWS”) is a public water system which serves at least 15 service connections or regularly serves at least 25 year-round residents. See § 403.852(3), Fla. Stat. The Department requires each CWS to have a cross- connection control program, and Table 62-555.360-2 in the rule establishes the “Minimum Backflow Protection” that must be provided at or for the service connection from the CWS to various types of water customers. The minimum backflow protection specified in the table for a residential service connection with an auxiliary water system is a DuC. All references hereafter to “residential service connection” shall mean one with an auxiliary water system. There is a footnote for the DuC at the bottom of the table, which explains: A DuC may be provided only if there is no known cross-connection between the plumbing system and the auxiliary or reclaimed water system on the customer's premises. Upon discovery of any cross•connection between the plumbing system and any reclaimed water system on the customer's premises, the CWS shall ensure that the cross-connection is eliminated. Upon discovery of any cross- connection between the plumbing system and any auxiliary water system other than a reclaimed water system on the customer's premises, the CWS shall ensure that the cross-connection is eliminated or shall ensure that the backflow protection provided at or for the service connection is equal to that required at or for a non•residential service connection. The SERC As part of the rulemaking process for the proposed amendments to rule 62-555.360, the Department prepared a Statement of Estimated Regulatory Cost ("SERC"). Section 120.541, Florida Statutes (2013), governs the preparation of SERCs and provides that a substantially affected person may submit a “good faith written proposal for a lower cost regulatory alternative that substantially accomplishes the objectives of the law being implemented.” See § 120.541(1)(a), Fla. Stat. The parties dispute whether Petitioner challenged the SERC. In his amended petition, Petitioner states no objection to any statement in the SERC. Petitioner did not challenge the SERC. The parties dispute whether Petitioner submitted a lower cost regulatory alternative. The Notice of Proposed Rulemaking stated: Any person who wishes to provide information regarding a statement of estimated regulatory costs or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice. Within 21 days of the notice, the Department received Petitioner's written comments. In his comments, Petitioner cites section 120.52(8)(f), which provides that a rule is invalid if it imposes regulatory costs which could be reduced by adopting a less costly alternative. Petitioner recommends that the rule be changed to specify that the less costly DuC is the only acceptable backflow prevention device for residential service connections and “A CWS shall not impose a requirement for a more expensive type of backflow prevention valve.” The Department contends that Petitioner’s comments did not constitute a good faith lower cost regulatory alternative, citing pages 87-98 of the Transcript. Those pages contain some argument on the issue, but do not prove Petitioner did not submit a lower cost regulatory alternative. Petitioner’s timely written comments included a citation to the relevant statute and a plainly-worded proposal. As explained in the Conclusions of Law, Petitioner’s comments were sufficient to constitute a lower cost regulatory alternative. Petitioner’s Objections Petitioner objects to rule 62-555.360 because (1) it specifies use of the RP and DC, which he contends are unreasonably dangerous to public health and safety; (2) it specifies the DuC for residential service connections as the “minimum” protection, which he contends allows a CWS to require the more expensive RP or DC; (3) it requires testing of backflow devices “at least biennially” (once every two years), which he believes is too frequent; (4) it makes biennial testing a “minimum” testing interval, which he contends allows a CWS to require more frequent inspection; and (5) it does not require the backflow prevention device to be attached to the CWS’s water meter where Petitioner believes it should always be located. Unreasonable Danger Petitioner contends that the RP and DC are unreasonably dangerous to public health and safety because a person could intentionally pump contaminants through a test port on one of these assemblies into a public water supply. The Department does not dispute that a person could introduce contaminants into a public water supply in this way. The flaw in Petitioner’s reasoning is his failure to see the danger in proper perspective. Department personnel and other persons with expertise in public water systems throughout the United States are well aware that there are many access points in potable water collection, treatment, and distribution systems and many methods to introduce contaminants into these systems. There are many access points other than RPs and DCs. For example, there are methods available that would allow contaminants to be pumped into a public water system from any building connected to the system that has no backflow prevention device installed. RPs and DCs are primarily designed to prevent accidental introduction of contaminants into a public water system. However, they also prevent a person from intentionally pumping contaminants into the public water system from inside a house or building, hidden from view. The danger described by Petitioner assumes that the criminal who is intentionally pumping contaminants through the RP or DC will do it while standing next to the device, in the open, near a street. It is a well-known fact officially recognized by the Administrative Law Judge that criminals prefer to conduct their criminal activities hidden from sight rather than in plain view. Therefore, a criminal planning to contaminate a public water supply is more likely to choose a means other than introducing contaminants through an RP or DC. RPs and DCs are already in wide use. There is no reported incident of intentional contamination of a public water supply by pumping contaminants through one of these devices. When these factors are taken into account, the rule’s specifications for the continued use of RPs and DCs do not create an unreasonable danger to the public health and safety. Minimum Backflow Protection Petitioner contends that Table 62-555.360-2 is invalid because it violates the Department’s duty under section 120.541 to adopt “less costly alternatives.” Petitioner asserts that by specifying the DuC as the “minimum” backflow protection required for residential service connections the rule allows a local government to require the more costly RP or DC. The Department cannot dispute that the DuC substantially accomplishes the statutory objectives. The RP and DC provide greater backflow protection than the DuC, but the Department specified the DuC for residential service connections, indicating that the lower protection provided by the DuC did not make it fall short of the statutory objectives. However, as explained in the Conclusions of Law, the rule imposes the least costly regulatory alternative for residential service connections because it only requires the DuC. Biennial Testing Schedule Petitioner contends that section III.D. of Table 62-555.360-1 also violates the Department’s duty to adopt less costly alternatives because the rule requires “backflow assemblies” to be tested biennially, which Petitioner believes is too frequent. The term “backflow preventer assemblies” refers only to the RP and DC. See footnote 1 of Table 62-555.360-1. Section III.E. of Table 62-555.360-1 indicates that the DuC must be refurbished or replaced “at least once every 5 to 10 years.” Petitioner did not object to this requirement. The preponderance of the evidence presented shows that biennial testing is reasonable. Furthermore, it is determined in the Conclusions of Law that Petitioner has no standing to object to the testing frequency specified for the RP and DC, because the rule does not require him to have an RP or DC. Location of the Backflow Preventer Petitioner objects to section III.B. of Table 62-555.360-1, which requires backflow prevention devices to be “installed as close as practical to the CWS’s meter or customer’s property line.” Petitioner contends that this is an unconstitutional interference with private property and is unreasonably dangerous because it provides a means for intentional contamination. Petitioner’s private property rights claim is based on his allegation that if he were required by Hillsborough County to have an RP and DC, the device could be placed on his private property. Petitioner did not allege or present evidence to show that placing an RP or DC on his property would deprive him of all reasonable uses of his property so as to cause a taking of his private property for a public purpose without full compensation. See Art. X, § 6(a), Fla. Const. Furthermore, it is determined in the Conclusions of Law that Petitioner has no standing to raise this issue because the rule does not require him to have an RP or DC. Petitioner contends the rule should require that backflow prevention devices always be attached to the water meter because that reduces the opportunity for intentional contamination. Petitioner is not an expert in public water systems, generally, or the installation of backflow prevention devices, in particular. He is not competent to state the relevant factors and constraints associated with installation of the devices. He is not competent to express an opinion whether it is always possible or always appropriate to attach the devices directly to the water meter. Furthermore, Petitioner’s claim of unreasonable danger was refuted above.
