The Issue The issue in this case is whether the Variance Review and Advisory Committee and the Department of Health had just cause to disapprove Petitioner's application for a variance.
Findings Of Fact The Department of Health (DOH) is the agency responsible for oversight of the on-site sewage treatment and disposal systems program and the Variance Review and Advisory Committee which meets monthly to recommend agency action on variance requests pursuant to Chapter 381, Florida Statutes. In August 1999, Petitioner applied to the DOH for a second variance to extend a variance previously granted in June 1999, to use an existing septic system for six months. Petitioner's application for the second variance stated that county sewer would be available in 2001, and she would be required to hook into the sewer. Therefore, Petitioner wanted an extension to continue using the existing undersized septic system until the sewer was available. She also attached water usage records for June 1998 through July 1999, for her property. Petitioner owns the commercial property served by the septic system and located on Howland Boulevard in Deltona, Florida. The property consists of a strip mall with five offices and one restaurant. The property originally contained six office spaces in 1990, when Petitioner applied for a permit to install a septic system to handle the building's sewage flow. See Petitioner's Exhibit No. 1. Petitioner was granted a construction permit for the septic system on August 14, 1990, which contained the statement: "no food service operations permitted in this building." Prior to May 1999, Petitioner leased an office in her commercial property to Milagros Martinez to operate a sandwich shop. Ms. Martinez applied to DOH for approval to use Petitioner's existing septic system to handle her sandwich shop sewage, and was denied because of increased water use and septic system demands of a restaurant. Petitioner's septic system contains a 750-gallon tank with 162 square feet of drainfield. In order to handle the additional sewage generated by the sandwich shop, the Florida Administrative Code requires a 1350-gallon tank and a drainfield of 787 square feet. There is enough room on Petitioner's property to install a separate septic system to handle the sewage generated from the sandwich shop. Petitioner applied to DOH for her first variance in May 1999, requesting to utilize the septic system to handle the waste from the sandwich shop. Petitioner appeared before the DOH Variance Review and Advisory Committee in June 1999. The committee recommended, and DOH concurred, to approve the first variance with four provisos. See DOH Exhibit No. 2. The four provisos were: The applicant shall obtain and maintain an annual onsite sewage treatment and disposal system operating permit in accordance with subsection 64E-6.003(5), F.A.C. The owner shall maintain an annual contract with a licensed septic tank contractor to inspect and service the onsite sewage treatment and disposal system at least once per month or more frequently as necessary. This variance allows operation of the sandwich shop for no more than six months. During that six months, the applicant shall take all necessary steps to increase the capacity of the system to accommodate the additional 230-gallon sewage flow from the sandwich shop. At the end of the six months, the system shall be in compliance or the sandwich shop shall be closed and remain closed until compliance is achieved. The four provisos were additionally explained to Petitioner in a letter dated July 14, 1999, from Sharon Heber, Director of the DOH Environmental Health Division. See DOH Exhibit No. 1. Petitioner accepted the provisions of the first variance on July 20, 1999. See DOH Exhibit No. 4. Petitioner does not have a current annual on-site sewage treatment and disposal system operating permit as required by the first proviso. Petitioner did not contract with a licensed septic tank contractor to inspect and service her system at least once per month as required in the second proviso. Petitioner called a contractor to inspect her system four times in the six-month period since the first variance was granted. Within six months, Petitioner did not take the necessary steps to increase the capacity of her septic system to handle the additional flow as required by the third proviso of the first variance. The system is not in compliance and the sandwich shop is not closed as stated in the fourth proviso. In August 1999, Petitioner filed for a second variance requesting that the first variance be extended until year 2001. That is the date the county plans to install a sewer line on Howland Boulevard in Deltona, which will serve her commercial property. She submitted a letter from the Volusia County Public Works Service Center stating that the "sewer service is planned to be available sometime in the year 2001." See Petitioner's Exhibit No. 4. The Variance Review and Advisory Committee considered Petitioner's request at their September meeting. The variance committee unanimously denied Petitioner's request for a second variance. The Petitioner's system was not designed to handle an increased amount of sewage flow, and that it would eventually collapse or fail. The committee's approval of the first variance was to allow Petitioner adequate time to install the necessary septic system for the restaurant, and not put Petitioner in the position of telling her tenant she could not open her restaurant. See DOH Exhibit No. 5. When Petitioner's existing system fails, sewage will pond on the ground. The ponding fluid will consist of raw sewage. The leaking/ponding sewage may seep into the groundwater and then into drinking water aquifers. In the right conditions, this pollution can cause the spread of waterborne diseases such as typhoid and cholera, or viral infections, such as hepatitis A or polio.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Health enter a final order affirming the decision of the Variance Review and Advisory Committee and the Department of Health to disapprove Petitioner's second variance application. DONE AND ENTERED this 17th day of April, 2000, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of April, 2000. COPIES FURNISHED: Connie Biancardi 2820 Howland Boulevard Deltona, Florida 32725-1606 Charlene J. Petersen, Esquire Department of Health Volusia County Health Department 420 Fentress Boulevard Daytona Beach, Florida 32114 Angela T. Hall, Agency Clerk Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1703 William Large, General Counsel Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701 Dr. Robert G. Brooks, Secretary Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701
Findings Of Fact At all times material to this proceeding, Sandra B. Frazier was a licensed real estate broker-salesman in the State of Florida, License No. 0185565, as an associate with Property Associates, Inc., Tallahassee, Florida. On July 1, 1989, Howard M. Burkholz, Leslie Burkholz, and Jacob H. Schiff entered into an Exclusive Right of Sale Agreement with Property Associates, through its agent, Frazier, for the sale of a house located in Forest Green Subdivision, at 2062 Pepperidge Way, Tallahassee, Florida. The Exclusive Right of Sale Agreement states in part: Seller further certifies and represents that the property has no latent defects except the following: septic tank is pumped monthly at Sellers request. [sic] Mr. and Mrs. Burkholz both told Frazier that the septic tank was not a problem, but Frazier had previous knowledge of septic tank problems in the vicinity and of the significance of needing septic tank pumping. Frazier sold the house across from the Burkholz's house. That house, at 2061 Pepperidge Way, was bought by Marcie Doolittle in December of 1988. The listing information and Notice to Prospective Buyers showed that, due to the composition of the soil and heavy rains, it was necessary to have the septic tank pumped. The seller offered an offset to the buyer for the cost of additional drainfield. Only after Doolittle bought the house did Frazier learn of the severity of the problems and the necessity for pump outs every two weeks. In a letter written by Frazier to Doolittle on February 9, 1989, Frazier indicated that "once a septic tank fails it does not correct itself. It then requires regular pumping." Frazier suggested that the only resolution was more drainfield or regular pumping. After Frazier listed the Burkholz house, she mentioned to Mrs. Doolittle that she could not show the Burkholz house during wet weather because the backyard, in which the septic tank and drainfield was located, was too boggy. Further, Frazier discussed with Mrs. Doolittle that the city was going to install sewer in the area because of the septic tank failures. In conformance with the Exclusive Right of Sale agreement with the Burkholzs, Frazier listed the house through the Multiple Listing Service. The data on the house was input on an input sheet. If there are defects, they can be listed on lines RE1-RE4 on the input form. Despite her knowledge about the Burkholz's septic tank and the Doolittle's septic tank, Frazier did not list this as a defect. Mary Wheatley, a sales associate with Bob Wolfe Real Estate, worked with Jesse and Susan Day to locate a house to purchase. She showed the Days the Burkholz house. Her only knowledge of that house came from the MLS listing, the brochure entitled Highlights of this Home prepared by Frazier, and from information verbally given by Frazier. Wheatley had no knowledge of the septic tank problems and Frazier did not tell her anything about the septic tank or the potential hook up to city sewer. After various offers and counteroffers, the Days and the Burkholtzs signed a contract for the sale and purchase of the house on November 24, 1989. The Contract states in paragraph 14: CONDITION OF PROPERTY: BUYER ACKNOWLEDGES THAT HE HAS NOT RELIED UPON ANY REPRESENTA- TIONS MADE BY A REALTOR(S) AS TO THE CONDI- TION OF THE PREMISES. . . .SELLER warrants that the . . . septic tank . . . shall be in working order on the date of closing. SELLER agrees to repair any of the preceding items not in working order. BUYER agrees to inspect the property prior to closing to determine condition of said items; . . . If BUYER fails to make inspections as required, BUYER agrees to accept property in "as is" condition. BUYER and SELLER will diligently learn and disclose to each other prior to closing all facts affecting the value of the property. On December 26, 1989, the night before the closing, the Days, the Burkholzs, Frazier, and Wheatley did the final walk through. While Wheatley and Susan Day were in another room measuring for curtains, Mr. Day flushed a toilet and noted that it went down very slowly. He asked if there were septic tank problems. Mr. Burkholz indicated that there were, but that sewer hookup was coming and the septic tank was pumped out monthly by the city at no cost. Mr. Day asked about the costs and was told that the pumpouts were free and the sewer would cost several hundred dollars. There is a clear conflict in the testimony of the various witnesses about the sewer cost estimate given to Mr. Day, but the exact figure is of no consequence to the ultimate outcome of the case. Therefore the conflict is not resolved. The Days discussed the septic tank and sewer hookup and decided to go through with the closing. After the walk through, they signed an inspection sheet in which they accepted the premises as inspected, without any noted exceptions, and they relieved the sellers and the realtor from further warranty or responsibility for the condition of the property. According to Thomas Bryant, an engineer with the City of Tallahassee, in December, 1989, no one knew whether there would be sewer installed in Forest Green or the potential cost of sewer hookup. No one knew that even on the date of hearing. The city did enter into an agreement to charge $650 for sewer hookup in Forest Green, but there are additional charges and costs to the homeowner which are as yet undetermined. The septic tank problems constitute a latent defect which should have been disclosed to the buyers before a contract was agreed upon. The failure to disclose is not egregious since the regular pumping of the septic tank is done at no cost to the homeowner and results in no liability to the homeowner. The projected sewer hook up was too uncertain to have required such disclosure.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Real Estate Commission enter a Final Order and therein: Find Sandra B. Frazier guilty of one Count of concealment in violation of Section 475.25(1)(b), Florida Statutes. Based on the mitigating factors set forth above and on the relatively minor nature of the offense, impose a fine of $100.00 on Sandra B. Frazier. Issue a written reprimand to Sandra B. Frazier. RECOMMENDED this 27th day of March, 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 27th day of March, 1991. APPENDIX TO THE RECOMMENDED ORDER, CASE NO. 90-6189 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted in this case. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Sandra B. Frazier 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: 1(1). Proposed findings of fact 2-9 are subordinate to the facts actually found in this Recommended Order. COPIES FURNISHED: Janine B. Myrick Senior Attorney Department of Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32801-1772 William J. Haley Attorney at Law Post Office Box 1029 Lake City, FL 32056-1029 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Darlene F. Keller Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32801
The Issue Whether a septic tank permit, should be granted for lot 2, Whispering Oaks Subdivision. More specifically, does the' requirement of no more than four lots per acre require a minimum lot size of 1/4 acre? In the alternative, must the subject lot be grouped with three contiguous lots to determine whether the density requirement is met? If a permit should be denied, is a variance appropriate under HRS' rules and the circumstances of the case?
Findings Of Fact The essential facts in this case are uncontroverted. Ben F. Ward is the President and sole stockholder of Ben Ward, Incorporated. His business for over eighteen years has been real estate, construction and development. He has built over 300 homes and is familiar with the procedures for developing a subdivision, including obtaining septic tank permits. In 1979, Ben Ward purchased the property now designated Whispering Oaks Subdivision, located in the City of Oviedo, Seminole County, Florida. The property contains approximately six acres, net. That is, the paved right of ways have been disregarded. There are no streams, lakes or other bodies of surface water on the property. Ward subdivided his property into 26 lots, two of which, lots number 12 and 17, are dedicated for recreational use and will not have homes. Some of the lots are less than 1/4 acre; others are more. Lot number 2 has 9,137 square feet, 1,753 square feet less than 1/4 acre. As a condition of plat approval, the City of Oviedo required Ward to obtain approval from the Seminole County Health Department. Val Roberts was the county health officer with whom Ward consulted. A process was devised for "borrowing" acreage from lots of over 1/4 acre to meet the minimum requirements for lots less than 1/4 acre. In other words, it was determined that the total net acreage in the subdivision would be considered in computing the four lots per acre minimum. The plat was approved and was recorded in 1980. Between 1981 and 1987, 19 residences were built and septic tank permits were obtained. There is city water service in the subdivision. In 1985, Ward sold 16 lots to the Erie Land Company, a partnership comprised of Mary Ellen Hines and her husband. In reliance on the arrangement worked out with the health department, Ward assured ELC that the lots were buildable. He remained trustee of the property. On February 26, 1987, the Seminole County Health Department (HRS) denied Ward's application for a septic tank permit for lot number 2, including a 3-bedroom, 2-1/2-bath home, comprising 2100 square feet. The denial letter cites rule 10D-6.46(7)(b), F.A.C., and says "Four lots grouped together lack approximately 3000 square feet of meeting the required lot size...". The letter provides the procedure for petition for a variance to Rule 10D-6, F.A.C. Ward applied for the variance, and its approval was recommended by a vote of 3-2 by the HRS Review Group for Individual Sewage Disposal. The recommendation was denied by the HRS State Health Officer, E. Charlton Prather, M.D. in a letter dated May 7, 1987 which states, in pertinent part: Grouping of lots to determine whether the subdivision meets the four lot per acre requirement must be done in a logical manner to maximize the homogenous dissemination of sewage effluent or prevent a concentration of sewage effluent in a small or limited area. Once a specific area is utilized in calculating sewage flow dispersal for a group of lots, that area cannot be further used for another lot or group of lots. Lot number 2 meets all requirements of HRS for septic tanks, with the exception of the density methodology. Ward surveyed the homes built and occupied for approximately a year and found that the subdivision as a whole is about 60% of allowable capacity. Ms. Haynes has lived on lot number 22 for six years and has never had septic tank problems. She holds an inactive real estate license, and before purchasing the property found the subdivision high and dry and well-developed.
Recommendation Based on the foregoing, it is, hereby RECOMMENDED: That the application for septic tank permit for lot 2, Whispering Oaks subdivision, be GRANTED. DONE and RECOMMENDED this 18th day of February, 1988, in Tallahassee, Florida. MARY CLARK 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 18th day of February, 1988. COPIES FURNISHED: Ben F. Ward, Jr. Ben Ward Agency, Inc. P. O. Box 670 Oviedo, Florida 32765 John A. Baldwin, Esquire Baldwin & Baum 7100 S. Highway 17-92 Fern Park, Florida 32730 James A. Sawyer, Jr., Esquire HRS District 7 Legal Counsel 400 W. Robinson St., Suite 911 Orlando, Florida 32801 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Suite 407 Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, Esquire Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue At issue in this proceeding is whether a citation and imposition of a $1,500.00 fine for installing a septic tank without a permit was properly imposed on Respondent, Paul Ware, a/k/a Paul Montgomery-Ware, by Petitioner, the Department of Health, Polk County Health Department (the "Department").
Findings Of Fact Respondent is the owner of three contiguous lots in Polk County (Bevington Manor, PB 20 PG 47, Lots 100 through 102), purchased via tax deed recorded on October 21, 2003. Respondent's lots are surrounded by property owned by Irma Walker, whose son, William Walker, testified at the hearing. Respondent apparently intended to develop his lots as a commercial enterprise and had erected a Quonset-type structure on the property. From his mother's adjoining property, Mr. Walker regularly observed Respondent's activities. Mr. Walker testified that Respondent was using his property to operate a motorcycle repair shop. On June 4, 2004, Mr. Walker observed Respondent using a backhoe on his property. Mr. Walker testified that Respondent was installing a septic tank. Mr. Walker told his mother, who then initiated inquiries as to whether Respondent had a permit to install a septic tank. When her inquiries met with a negative response, Ms. Walker called in a complaint to the Department. On June 7, 2004, the Department sent environmental specialist Susan Patlyek to the site. Ms. Patlyek observed infiltrator chambers on the site. Infiltrator chambers are used only in connection with OSTD systems. Ms. Patlyek also observed a recently excavated area and a rented backhoe, commonly used to dig out areas for septic tank installation. It was obvious to Ms. Patlyek that a septic tank and drainfield had been installed on Respondent's property, though no permit had been issued by the Department allowing installation of an OSTD system. Installation of an OSTD system without a permit constitutes a sanitary nuisance. The Department sent a letter to Respondent dated June 8, 2004, advising him of the need to abate the nuisance by obtaining a permit. With the letter, the Department enclosed a blank application form that Respondent could have completed and returned to the Department's permitting office. Respondent replied by contending that the Department lacked jurisdiction over activities on his land and suggested that the Department initiate court action. Respondent also returned the application form in its original blank form. The Department then issued Respondent a citation for violations of Subsection 381.0065(4), Florida Statutes (2003), and Florida Administrative Code Rule 64E-6.003(1), constructing an OSTD system without a permit; and for a violation of Subsection 386.041(1)(b), Florida Statutes (2003), maintaining a sanitary nuisance. The citation provides for a $1,500.00 fine. The Department's citation also informed Respondent of his right to a hearing pursuant to Chapter 120, Florida Statutes (2003). Respondent contends that the relegation of this matter to an administrative forum is unconstitutional.
Recommendation RECOMMENDED that Petitioner, the Department of Health, Polk County Health Department, enter a final order imposing a $500.00 fine for the violations described in the above Findings of Fact and Conclusions of Law. DONE AND ENTERED this 30th day of November, 2004, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 2004. COPIES FURNISHED: Roland Reis, Esquire Polk County Health Department 1290 Golfview Avenue, Fourth Floor Bartow, Florida 33830-6740 Paul Ware 6557 Crescent Lake Drive Lakeland, Florida 33813 R.S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Quincy Page, Acting General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
Findings Of Fact Franklin T. and Barbara Snow acquired the NE corner of the S-1/2 of the SE-1/4 of Government Lot 3 in Section 14, Township 19 South, Range 16 East near Ozello in Citrus County. This property was acquired by Petitioner at a public sale by the U.S. Government who had acquired the property in a tax delinquency proceeding. Petitioner purchased the property to use as a homesite for a doublewide prefabricated home he desired to place on the property. Before a building permit will be issued by Citrus County, Petitioner is required to have access to water and to sewage disposal facilities. No central sewage treatment facility serves this area and other developed lots in the vicinity use septic tanks. Petitioner's application for a septic tank permit was denied by the Citrus County Health Department because there was an insufficient buffer zone between the proposed drain field and surface water. Section 381.272, Florida Statutes, provides onsite sewage disposal systems shall be placed no closer than 75 feet from surface waters. Because the lot owned .by Petitioner was platted prior to 1972, the minimum setback for this property is 50 feet from surface waters. Petitioner appealed to the Review Group for Individual Sewage Disposal, DHRS, for a waiver from this setback requirement. By letter dated March 9, 1984, Petitioner was advised that his request for variance was denied. Following discussions with Citrus County Health Department officials who issue septic tank permits, on May 11, 1984, Petitioner applied to DER for a dredge and fill permit to place some 750 cubic yards of fill into a wetland area on Petitioner's property to provide a sufficient buffer or setback zone for a proposed septic tank and drain field installation. The subject property is located at the northeast corner of a marsh approximately 1,200 feet from the open waters but within the landward extent of the St. Martins River. The marsh area consists principally of black rush and salt grass and is interlaced with small tidal creeks which flow into the two adjacent canals or into St. Martins River. Petitioner's property contains an upland parcel approximately 50 feet in width between existing canals which resulted from dredging these canals. The "upland" configuration was larger at one time than its present configuration, but was reduced to its present size through enforcement action by environmental agencies. The area which Petitioner seeks to fill had fill removed therefrom in these enforcement proceedings. The waters surrounding and including the project site are classified as Class III waters. Soil borings taken at the site shows the salt marsh underlain by 8 to 12 inches of sand, which overlays an organic mat of decaying anerobic black rush. Beneath this organic layer is limerock. Petitioner's application for a permit to fill this property was denied by Respondent because of the proposed septic tank installation. Respondent suggested chemical sewage disposal systems could be used at this site; however, the only witness qualifying as an expert in waste disposal facilities is familiar with other waste disposal systems and testified none of those systems can be used at this site. Before a building permit will be granted, household water supply is required and treatment of this water after use for bathing, washing, etc., will still be necessary and this treatment cannot be accomplished in a chemical system. Septic tank systems are regulated by DHRS and applications therefor are approved by DHRS specialists at the county health department level. The property here involved is within the 10-year flood plain and in order to obtain septic tank approval the site must be elevated above that plain. Here, that is 4.9 feet above sea level. The site is 3.5 feet above sea level. The bottom of the drain field is required to be 24 inches above the water table. If the fill permit is granted and approximately three feet of fill is placed over the 4,500 square feet, this will raise the property sufficiently so it will not be subject to tidal action and will provide a buffer zone sufficient to allow Citrus County to issue a septic tank permit. One objection raised by DER is that filling the area over existing vegetation will create another organic mat of decaying vegetation which will leach laterally into adjacent surface waters where it will contribute nutrients and exert an oxygen demand on the water column. Citrus County Health Department has authority to require the existing detritius be removed before new fill is applied and to require the perimeter of the fill area to be constructed with clayey soils to inhibit leachate escaping from the site. Removal of salt grass would precede removal of the decaying vegetation under the 8 to 12 inches of sand and leave nothing to add to the nutrient level of adjacent surface waters or impose an oxygen demand on the water column. The black rush and salt grass which presently dominate the proposed fill site perform a significant water quality function in trapping sediments, filtering runoff and assimilating nutrients. The presence of adjacent canals increases the value of this function. The proposed fill site also functions as a productive habitat for numerous aquatic species which comprise a portion of the estuarine food chain and ecosystem. More than a dozen aquatic organisms were turned up by a singe scoop of a dip net in an area nearly in the center of the proposed fill site. Leaving the site in its present condition creates a public benefit to the State. Adding fill to the area as requested will allow the site to comply with the regulations for septic tank installation. The U.S. Army Corps of Engineers will issue a federal dredge and fill permit to Petitioner if this application is granted. Therefore, the granting of this application for a dredge and fill permit will allow Petitioner to use the property he purchased for a home site. Respondent called one witness who qualified as an expert in the field of public health microbiology. This witness testified that studies have shown dead end canals and septic tank leachate to be significant contributors to high fecal coliform densities in adjacent waters. This witness opined that the statutory buffer zone is inadequate to prevent violations of Class III water standards in adjacent surface waters from such sources. Proposed finding No. 16, while not technically incorrect, is misleading. Bradley did represent that a buffer zone whose perimeter is composed of clay will keep leachate from escaping the site; that if a 50-foot setback could be maintained from surface waters, the county would grant the permit; and he believed the fill permit should be granted.
Findings Of Fact Application 7500165 requested average withdrawal of water of 1,804,750 gallons per day from 4 wells located about a mile east of Highway 41 and a mile north of Apollo Beach. The four wells would be for irrigation of tomato crops on total acreage of 4 acres located in Hillsborough County (Exhibit 1, Testimony of Elsberry and Boatwright). Notice of hearing as to the application was published in a newspaper of general circulation in accordance with statute and rule (Exhibit 3). A letter of objection from Joseph S. Benham, Apollo Beach, Florida, dated November 19, 1975 was submitted to the Water Management District, wherein he expressed concern regarding water shortages and, although he does not seek to totally deny the application, is of the belief that the district must insure sufficient controls and management of irrigation activities so that resources are not wasted, water runoff to drainage ditches is eliminated and renewed justification is given each year for the withdrawal (Exhibit 2). A representative of the District staff established that there would be no violation of statutory or regulatory requirement for issuance of a consumptive water use permit in this case except as to the fact that potentiometric level of the applicant's property would be lowered below sea level as a result of withdrawal. It was agreed at the hearing that a period of thirty days should be granted both parties to formulate a stipulation as to control of runoff. An unsigned stipulation was received from the Water Management District by the hearing officer on March 1, 1976, which provided that the permit would be granted with the following stipulations: Runoff from the property will be limited to 25 percent of the quantity pumped and by December 31, 1980 shall be reduced to 16.5 percent of the quantity pumped. The District may at its own expense install metering devices for the purpose of monitoring runoff. The permittee will be notified in advance of such action. The Permit will expire on December 31, 1980. (Testimony of Boatwright, Exhibit 4).
Recommendation That application 8500165 submitted by Elsberry and Elsberry, Inc. Route 2, Box 70 Ruskin, Florida, for a consumptive water use permit be granted with the conditions as follow: Runoff from the property will be limited to 25 percent of the quantity pumped and by December 31, 1980 shall be reduced to 16.5 percent of the quantity pumped. The District may at its own expenseinstall metering devices for the purpose of monitoring runoff. The permittee will be notified in advance of such action. The Permit will expire on December 31, 1980. That the Board grant an exception to the provision of Rule 16J- 2.11(4)(e), F.A.C., for good cause shown. DONE and ENTERED this 15th day of March, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Jay T. Ahern, Esquire Southwest Florida Water Management District Post Office Box 457 Brooksville, Florida 33512 Elsberry & Elsberry, Inc. Route 2, Box 70 Ruskin, Florida
The Issue The issue is whether the Respondent, Kingsley Service Company, should be granted an operating permit to increase the capacity of its Fleming Oaks Waste Water Treatment Plant from .490 MGD to .720 MGD.
Findings Of Fact The Fleming Oaks Waste Water Treatment facility is located on Fleming Island, at the south end of Bahia Road. (T 25). It includes three units, a .180 MGD, a .150 MGD and a .490 MGD plant. (T 49). The facility is owned and operated by Kingsley Service Company, the largest utility in Clay County. (T 24) Kingsley has operated in Clay County for more than 26 years and presently services the equivalent of over 17,000 homes. (T 23). Fleming Island is a relatively large piece of land bounded on the east by the St. Johns River, on the south by Black Creek, and on the north by Doctors Lake. On the west, Black Creek and Doctors Lake are connected by Swimming Pen Creek and a swampy marsh area. (T 25-26). In 1982, a .080 MGD sewage treatment plant was built at the present Fleming Oaks location. In 1984, a .0150 MGD plant was added, bringing the total facility capacity to .230 MGD. Effluent from those plants was discharged through a pipe to the St. Johns River. On February 25, 1986, Kingsley received permit No. D010-115962 authorizing continued operation at the Fleming Oaks facility of the 0.080 MGD and 0.150 MGD sewage treatment plants. This operation permit expired on February 25, 1991. (RE #1). On October 8, 1987, the Department issued permit No. DC10-139744 to Kingsley to expand "the existing 0.230 MGD...Sewage treatment plant by constructing a separate 0.490 MGD extended aeration sewage treatment plant with a total design capacity of 0.720 MGD." (RE #2). On January 25, 1990, the Department issued permit No. D01-104228 to Kingsley, "[t]o operate a 0.490 MGD extended aeration sewage treatment plant." This permit required Kingsley to apply for an operation permit for the full capacity of the plant, 0.720 MGD, when the new plant, 0.490 MGD reaches a load of approximately 90% of its capacity. The operation permit for the .490 MGD expires on January 25, 1995. (RE #3). Pursuant to the permit requirement referenced in the preceding paragraph, Kingsley applied to the Department on January 17, 1991 for an operation permit to "[p]lace [the] existing 0.230 MGD WWTP into service raising treatment capacity to 0.720." (RE #5). After reviewing that application, the Department executed a notice of permit issuance, authorizing Kingsley to operate a parallel 0.490 MGD extended aeration waste water treatment plant ("WWTP"), a 0.150 MGD contact stabilization WWTP and a 0.080 MGD contact stabilization WWTP having a combined design capacity of 0.720 MGD serving Fleming Island and authorizing discharge of the treated effluent into the St. Johns River, via an existing 500-foot pipe, 8 inches in diameter. (RE #7). This permit allowed the previously-constructed 0.230 MGD plant to be placed back in service. It is this permit which the Petitioners challenge. The system in question was designed by a qualified engineering firm with substantial experience in the design of waste water treatment plants (R 46, 47 & 48) and in compliance with Department regulations. (R 63-64). The system, as designed and constructed, is being operated by qualified personnel and consistent with Department regulations. (R 280, R 124, 131, 132). The 0.490 MGD plant consists of an aeration tank, a digester, and a clarifier. (RE #8; T 51). Raw sewage is pumped from lift stations into a "surge tank," where it falls through a bar screen and grid chamber which take out large items and sand which accumulate in the sewage system. (T 55-56). Raw sewage is then pumped from the surge tank to the aeration portion of the plant. (T 56). In the aeration tank, solids and liquids, called "mixed liquor," are evenly distributed throughout the depth of the liquid in the aeration tank, where the breakdown process occurs. (T 65). A control box is located between the aeration tank and clarifier which allows waste water from the aeration tank to flow into the clarifier once it reaches a certain level in the aeration tank. (T 56-57). The flow moves through the control box and into the portion of the clarifier called an "annular weir." The annular weir is approximately 18 inches from the outside wall of the clarifier and looks like the outer ring of a bull's-eye target from above. The purpose of the annular weir is to distribute flow evenly into the clarifier. At the center of the circular clarifier is a rectangular-shaped structure called an "effluent weir." (T 57). In the part of the clarifier outside the rectangular effluent weir, undigested solid material settles out onto the bottom. The liquid portion which remains after the solids settle out flow over the top of the effluent weir into the interior of the rectangular structure. The interior of the effluent weir can only be reached from the top. There are no entry points at the bottom, where the solids are. (T 66). The clear liquid that flows over the effluent weir and the sludge that settles to the bottom of the clarifier undergo further, separate treatments. The clarified effluent that flows over the top of the effluent weir is piped to the chlorine contact chamber for disinfection. (T 52). Chlorine is fed into the effluent to destroy pathogens which may be present. (T 81). The final 2-1/2 feet of the chlorine contact chamber is where dechlorination takes place. (T 62). Dechlorination is required so that the chlorine level in the effluent is reduced. (T 54). Dechlorination occurs when sulfur dioxide is mixed with the chlorinated effluent. Discharge monitoring takes place in the chlorine contact chamber. (T 62). The treated and dechlorinated effluent is pumped to the St. Johns River through an outfall which is 500 feet from shore. (T 53, 63). The sludge which settled to the bottom of the clarifier is drawn off at the bottom of the clarifier and directed into the "digester" where, under aerobic conditions and without additional food, bacteria die-off occurs. (T 59). The sludge is actually a liquid substance, approximately 97% water and 3% solids. (T 98-99). The digester is an ancillary process separate from the treatment of waste water. (T 57). The digester stabilizes and further reduces the organic content of the sludge. (T 51). Tanker trucks regularly remove the sludge from the digester and transport it to dairy farms where it is applied to the land. (T 98-101; RE #11 for invoices). The 0.490 MGD plant "has been designed and constructed to meet all the requirements currently posted or regulated by the State of Florida." (T 64). The construction and operation of the Fleming Oaks plant, when compared with the other 600 in the Department's Northeast District, is "very good." (T 131). Although the BOD and TSS limits are 20, the Fleming Oaks plant consistently gets better than 10 and many times less than 5 for these parameters. (T 131). Sampling of the St. Johns River at the end of the outfall pipe has shown that the water quality standards have been met for each sample. (T 141). The Monthly Operating Reports show that required parameters are almost always met. (RE #11). On June 7th, a machine sampled sewage coming into the plant and sewage that was leaving the plant. Two samples were taken, one where raw sewage comes in and one the final effluent. The raw sewage had a BOD of 205 and the treated effluent had a BOD of 1. (T 283-286). TSS was run the same way. Raw sewage had a TSS of 182 while the treated sewage had a TSS of 1. (T 287). Petitioners' concerns about the permitting of the 0.230 MGD capacity center around the buildup of "muck" in the river in the vicinity of the existing outfall. Petitioners assert that Kingsley pumped sludge through the outfall which "polluted" their waterfront as "muck." Donald Loop, who lives 4,000-5,000 feet to the south of the outfall, described the muck buildup as starting 18 months ago "at two to three inches and over a period of time increas[ing] to 18 inches in some places and other places over 24 inches." In conjunction with the muck buildup was "extreme devastation of all greenery, starting with cattails and many other green plants that grew out there." (T 153-154). During this time frame, the rainfall was 25% below the annual average and "the river flows were much less than normal." (T 153, 270). Damon Loop, Donald Loop's brother, lives on a canal, 350-400 feet off the St. Johns River. The canal is approximately 1,000 feet north of the outfall of the Fleming Oaks facility. (T 233). He noticed a muck buildup "when Kingsley Service Company first started putting the effluent into the river." (T 228). At that time, the end of the canal area started filling up with muck. The muck now covers almost 4-1/2 feet and has been there for six or seven years. (T 228). Two or three hundred feet out in the St. Johns River, where it is 10 feet deep, there is a black silt one foot to 15 inches deep. (T 229). Other witnesses also described the muck. Saxton Weir, who lives approximately one-half mile to the north of the outfall, described the muck as being 43 or 44 inches thick. (T 200, 204). The muck extended along his shoreline "over 500 feet" and extended out into the water "from 5 feet to over 100 feet." (T 212-213). Mr. Weir actually saw muck extending as far out as "485 feet from the shoreline." (T 214). The accumulated muck was blown away after three days of rain and a storm. (T 205). A video tape of the conditions caused by the muck was received and viewed. There are tons and tons of muck in this area. Petitioners believe that the muck was actually sludge or TSS illegally discharged from the Fleming Oaks facility. This belief was based upon the mistaken conclusion that the 0.430 MGD treatment process was requiring an inappropriately large amount of chlorine. Petitioners concluded that there was excessive chlorine in the water because of the death of barnacles on pilings in the area. Chlorine kills bacteria and oxidizes other organic materials. (T 116). Small amounts of organic matter which have not been completely digested by the treatment process can be oxidized by chlorine. (T 102). Chlorine is increased to treat unoxidized organic material. (T 83). The MOP/11 operation waste water manual, characterized by Mr. Loop as the "Bible of waste water treatment," indicates that about three parts per million chlorine is appropriate. (T 176). For June of 1990, the average chlorine feed was actually 3.3 parts per million. (T 297-298). The chlorine levels were within normal limits. The barnacles were killed by some other factor, perhaps the drought which occurred at about this time. Because of the muck-related complaints, a sample of sludge was taken by a Department employee from an unknown location in the area and analyzed at the Department laboratory, where it was microscopically determined that the sample was decaying vegetation. (T 138). Without intentionally discharging large amounts of sludge over a period of time, the chance of even noticing any buildup along the shoreline is very, very small. The particles left in the effluent are very small and very light. The ability of this material to settle in a water flowing at even low velocity is difficult. The velocity of the current at the outfall is sufficient to prevent any particles from settling out. (T 96). The "muck" in the river in front of the houses of the Petitioners was not shown to be sludge from the Fleming Oaks Waste Water Treatment Plant after testing by the Petitioners. (R 252). The capacity at issue in this proceeding, 0.230 MGD capacity, consists of 0.080 MGD plant, composed of two tanks, and a 0.150 MGD plant that is composed of three tanks. (T 49-50). Both of these plants are contact stabilization plants. ( T 67). Although permitted until February of 1991, these two plants ceased operating in April of 1989. (T 37). The St. Johns River is Class III waters of the State of Florida. Secondary treatment, which is required for these plants, is sufficient to maintain the water quality standards for the St. Johns River. (T 124-125, 130). When the 0.080 and 0.150 MGD plants were operational, they operated within the limits of the permit at issue here. (T 67). They will meet the requirements for issuance of the permit. (T 124). When the .230 MGD capacity is brought on line, raw sewage entering the surge tank will be routed to each of the three plants rather than just to the aeration plant alone, as it is at present. (T 88). Waste water will be pumped proportionately to the separate plants through variable speed pumps. (T 89). After appropriate treatment in the 0.80 MGD and 0.150 contact stabilization plants, clear liquid effluent will be transferred from them to the chlorine contact chamber where it will be chlorinated, dechlorinated and then pumped to the St. Johns River through the existing outfall. (T 90).
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of witnesses, and the pleadings and arguments of the parties, it is RECOMMENDED that the application of the Kingsley Service Company for the waste water treatment operating permit at issue be granted, on the terms and conditions set forth in the Department's Draft Permit, in evidence as Respondents' Exhibit 7. DONE and ENTERED this 13th day of March, 1992, in Tallahassee, Florida. STEPHEN F. DEAN 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 13th day of March, 1992.
Findings Of Fact At all times material to this proceeding, Respondent, James A. Tipton ("Tipton"), has been a registered professional engineer in the State of Florida, having been issued license number PE 0018147, which expires on January 31, 1987. Tipton employed the services of Robert Corno as a field man for taking samples to establish soil profiles, site characteristics and existing water tables for septic tank applications prepared and filed by Tipton. Corno had actual authority from Tipton to conduct tests, site examinations and evaluations and to submit his findings to Tipton. Sometime before April 8, 1985, Tipton was retained to perform professional engineering services in connection with the preparation and filing of an application for a septic tank on lot 168, block 3, Charlotte Ranchettes Subdivision in Charlotte County ("lot 168"), owned by Joseph Duseo. Tipton sent Corno to lot 168 on April 13, 1985, to examine and evaluate the site, take soil samples and make other observations that would have to be reported to Tipton in connection with Tipton's work. Corno completed his work and reported to Tipton. Corno did not bring Tipton the actual soil samples. On April 8, 1985, Duseo's general contractor told Corno about a well on lot 168. When Corno visited the site, he observed the well. The well is an artesian well, about 3 feet high and six inches in diameter. The well is an irrigation-type well and is non-potable. The well was within fifty feet of the drain field of the septic system Tipton proposed for lot 168. The well also is approximately 5 to 10 feet from the north property line. Corno knew at the time of his visit to the site that the well was not plugged. However, Corno understood that Duseo was in the process of arranging with the Southwest Florida Water Management District to have the well plugged. Corno did not tell Tipton about the well before Tipton prepared and filed the application for the proposed septic tank. Therefore, Tipton did not know there was a well on lot 168 when he was preparing the application for the septic tank permit. Tipton did not ask Corno any questions calculated to reveal whether there was a well on lot 168. Corno held the belief that non-potable wells, especially those that were to be plugged, did not have to be shown on septic tank permit applications. There was evidence about a survey of lot 168 certified by a land surveyor employed by a firm of professional engineers which did not show any well on lot 168. However, Tipton did not have access to the survey before he prepared the septic tank permit application on lot 168. (The survey bears two dates, April 17 and April 18, and was not signed until April 25, 1985.) On or about April 15, 1985, Tipton signed and certified the septic tank permit application for lot 168. The application was filed at the Charlotte County Public Health Unit (Health Department) on April 16, 1985. The application indicates "none" in the space provided to indicate the "location of wells within 75 feet of property lines." The well on lot 168 is an important consideration which should have been depicted on the application. Septic tank drain fields could pollute a well. Even if Tipton had known that the well was supposed to be plugged, it was not plugged until July 1985. Failure to show the well was a serious omission. Tipton was negligent for relying on Corno without having an understanding whether Corno would report to him the existence of non-potable wells within 50 feet of the drain field of a septic system or within 75 feet of a property line if the well was likely to be plugged. If he had used due care, Tipton would have either made explicit inquiry of Corno sufficient to reveal the existence of the well or ascertained from Corno in advance that he would report to Tipton the existence of any well within 50 feet of the drain field of a proposed septic system or within 75 feet of property lines. Having failed to exercise due care, Tipton did not realize that Corno would not be reporting to him the existence of a non-potable well which was supposed to be plugged in the future. A few days after he filed the application, Tipton learned about the well on lot 168. But at about the same time, Duseo and his contractor began discussing construction alternatives that would change the septic system and require a new septic tank application. Therefore, Tipton did not immediately amend the April 15 application to show the well. In mid-May, Tipton filed a new application for the different septic system. The new application, not in issue in this case, showed the well. The application also contained a soil profile which probably is not accurate. However, Tipton's soil profile simply reflects the information reported to him by Corno. While Tipton's soil profile does not correspond with soil profiles from other test holes dug in the area of the proposed drain field by the Health Department and an expert witness, the information Corno reported to Tipton was well within the realm of possibilities for soil in the area of lot 168. Corno generally seemed to be a qualified and experienced field man who used proper tools to do his job. There was nothing suspicious about Corno's information, and there was no reason for Tipton to suspect that it was false or fraudulent. While it is the better practice for a professional engineer to require his field man to deliver the actual soil sample to support a soil profile report, this is not required of professional engineers if there is no reason to suspect that a field man's soil profile report is false or fraudulent. On the application, Tipton estimated the high water table on lot 168 at 2.2 feet below existing grade. While other expert witnesses estimated a higher high water table, the evidence did not prove that Tipton was negligent in his estimate. Some of the conflicting estimates were Health Department estimates which, the evidence indicates, tend to be high to be on the safe side. Others were estimates on permit applications which may have been influenced by the Health Department's desires and which may not reflect the engineers' actual estimates. Of all the estimates, only Tipton's was supported by testimony how the estimate was derived. (Tipton used what he called Darcy's Law.) Finally, Petitioner's own expert witness testified that Tipton's high water table estimate could not be called negligent.
Recommendation Based upon the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Board of Professional Engineers enter a final order holding Respondent, James A. Tipton, guilty of negligence in the practice of engineering under Count I of the Amended Administrative Complaint (but dismissing Count II of the Amended Administrative Complaint) and imposing an administrative fine in the amount of five hundred dollars ($500.00). RECOMMENDED this 19th day of May, 1986, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of May, 1986. COPIES FURNISHED: Ms. Sarah Logan Executive Director Board of Professional Engineers 130 North Monroe Street Tallahassee, FL 32301 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 Salvatore A. Carpino, Esq. General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 Wings Slocum Benton, Esq. Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 John Charles Heekin, Esq. C-1 Ocean Plaza 21202 Ocean Blvd. Port Charlotte, FL 33952 APPENDIX The following are specific rulings on all the parties' proposed Findings of Fact as required by Section 120.59(2), Florida Statutes (1985). Rulings on Petitioner's Proposed Findings of Fact Petitioner's Proposed Findings of Fact 1 through 3, 9, 10, 13 through 16, 19, 21 and 22 are accepted as substantially factually accurate and are incorporated in the Findings Of Fact in the same or similar format to the extent necessary. Petitioner's Proposed Finding Of Fact 4 would have been included in paragraph 1 above except that the last sentence is unnecessary. Petitioner's Proposed Finding Of Fact 5 would have been included in paragraph 1 above except that the third sentence is unnecessary. Petitioner's Proposed Findings Of Fact 17, 18 and 27 would have been included in paragraph 1 above except that they are unnecessary. Petitioner's Proposed Finding Of Fact 26 would have been included in paragraph 1 above except that whether Alligator Creek is a "significant" drainage feature would depend on the definition of "significant" which was not established by the evidence. In addition, Petitioner's Proposed Finding Of Fact 26 is unnecessary. Petitioner's Proposed Findings Of Fact 6 through 8 are rejected as conclusions of law and because the last sentence of Proposed Finding Of Fact 6 is cumulative. Petitioner's Proposed Finding Of Fact 11 is rejected because the first sentence is contrary to the greater weight of the evidence and Findings Of Fact and the second sentence is, subordinate to Findings Of Fact. Petitioner's Proposed Findings Of Fact 12, 20, 23 and 24 are rejected as subordinate to Findings Of Fact. Petitioner's Proposed Finding Of Fact 25 is rejected because the first sentence is subordinate to Findings Of Fact and the second sentence is contrary to the greater weight of the evidence. Rulings on Respondent's Proposed Findings of Fact. Respondent's Proposed Findings Of Fact 1 through 3, 5 and 12 are accepted as substantially factually accurate and are incorporated in the Findings Of Fact in the same or similar format to the extent necessary. Respondent's Proposed Finding Of Fact 4 would have been included in paragraph 1 above except that the second sentence is unnecessary. Respondent's Proposed Finding Of Fact 8 would have been included in paragraph 1 above except that it is unnecessary. Respondent's Proposed Finding Of Fact 9 would have been included in paragraph 1 above except that it is in part unnecessary. Respondent's Proposed Finding Of Fact 11 would have been included in paragraph 1 above except that it is contrary to the greater weight of the evidence and Findings Of Fact that there is "no way" for an engineer to avoid relying on a field man's error such as Corno's error in omitting to report the existence of the well. Respondent's Proposed Finding Of Fact 14 would have been included in paragraph 1 above except that it is irrelevant. Respondent's Proposed Finding Of Fact 6 is rejected because it is subordinate to Findings Of Fact and is unnecessary. Respondent's Proposed Finding Of Fact 7 is rejected because it is simply a recitation of conflicting evidence, some of which is accepted but some of which is rejected as contrary to the greater weight of the evidence and Findings Of Fact. Specifically, it was found that Corno did not tell Tipton about the well and that Tipton did not have the survey in his possession at the time the application was filed. Respondent's Proposed Finding Of Fact 10 is rejected as contrary to the greater weight of the evidence and Findings Of Fact. Specifically, the evidence supported a finding of negligence on the part of Tipton for failure to utilize due care and to have due regard for acceptable standards of engineering principles whether or not practicing in Charlotte County. In addition, Mr. Murray's expert testimony must be disregarded because it was given upon a hypothetical assumption that an engineer had possession of a sealed survey showing no improvements on the property as the time of the application, a fact not proved by the evidence. Respondent's Proposed Finding Of Fact 13 is rejected as contrary to the greater weight of the evidence and Findings Of Fact. Specifically, personnel in the Health Department, part of the "general public," were misled. (The general public also reasonably could have been led to a fallacious conclusion, but there was no "misconduct" on Tipton's part. See Conclusions of Law.) ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF PROFESSIONAL ENGINEERS DEPARTMENT OF PROFESSIONAL REGULATION, FLORIDA BOARD OF PROFESSIONAL ENGINEERS Petitioner, vs. DOAH CASE NO. 85-2684 DPR CASE NO.0058289 JAMES A. TIPTON, Respondent. /
