Findings Of Fact Petitioner operates a plant which manufactures wire and wire products located at the foot of Florida Street, Jacksonville, Florida adjacent to the St. Johns River. Petitioner's manufacturing operations include "pickling" (acid cleaning) of raw materials which generates a spent solution containing sulphuric acid and ferrous sulphate. Petitioner has requested a variance from Rule 17-3.05(2)(p) of the Florida Administrative Code which specifies a water quality standard of not exceeding .3 mg/1 of iron, which standard, as applied to the Petitioner in this instance, would require that Petitioner's effluent not contain in excess of .3 mg/1. Petitioner proposed-to construct a treatment system for its effluent which includes alkaline neutralization with continuous pH control, followed by the addition of an ionic polymer to enhance settling. Following polymer addition, settling and clarification will take place in a clarifier. The overflow from the clarifier will flow to a multimedia granular filter and thence to a pH adjustment station and thence to a continuous flow monitoring and sampling station and finally into the St. Johns River. The sludge that has settled to the bottom of the clarifier will be filtered by a cloth-media filter where it will be further de-watered such that the solids are discharged from the filter as a solid cake. The solid cake will be landfilled by an independent contractor. The above described treatment system represents at least the best practicable means known or available for the adequate control of iron in Petitioner's effluent. Petitioner is seeking a variance for a period of five years from the date Petitioner's treatment system becomes operational. Petitioner could suffer irreparable damage and harm if the variance were denied because no practicable technology is presently known or available which would reduce the iron in Petitioner's effluent to .3 mg/1. By using the treatment system proposed, Petitioner can reduce iron in its effluent to 1 mg/1 and can achieve that level of treatment within eleven months after commencement of construction of the treatment system. Since there is no other practicable means presently known or available for the removal of iron from Petitioner's effluent, Petitioner will be unable to reduce iron in its effluent to .3 mg/1 at any time during the presently foreseeable future. No discernible disadvantages will result to residents or the environment in the affected area by the granting of Petitioner's variance request. No evidence was presented at the hearing as to a weekly average of concentrations of iron which the Petitioner would be able to meet through its proposed system, and which would be appropriate and enforceable.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED: That Petitioner's request for variance to discharge effluent containing iron from its Jacksonville, Florida plant into the St. Johns River in excess of the State of Florida iron standard specified in Rule 17-3.05(2)(p) of the Rules of the Florida Department of Environmental Regulation, be granted subject to the following conditions: The effluent limitations which shall apply during the period of the variance are: Iron in Mid-State's effluent is to be composed of ferrous hydroxide, Fe(OH)2, with only a trace of ferric hydroxide, Fe(OH)3. The iron portion of the effluent is to be mostly in the particulate phase with a small amount of dissolved ferrous hydroxide. The following effluent concentrations of total iron shall not be exceeded: Monthly average: one (1) mg/1 total iron Daily maximum: three(3) mg/1 total iron The variance is granted for a period of five (5) years and eleven (11) months from the date that an approved construction permit is issued by the Florida Department of Environmental Regulation for the treatment facility. In the event of development of better practicable treatment technology during the period of the variance, the Florida Department of Environmental Regulation will provide reasonable notice of the later developed technology and propose a reasonable schedule for implementation of said treatment technology, at which time Mid-States will, subject to its right to obtain review of proposals by the Florida Department of Environmental Regulation, be obligated to make appropriate improvements in its waste treatment facility, as may be required of the steel wire process industry in Florida. Mid States shall be required to establish a monitoring program for total iron in its effluent to be approved by the Florida Department of Environmental Regulation. Data obtained by such an approved monitoring program shall be submitted to the Florida Department of Environmental Regulation Subdistrict office on a routine basis. RECOMMENDED this 24th day of January, 1977, in Tallahassee, Florida. G. STEVEN PFEIFFER, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Gene Petersen, Esquire 1125 First National Bank Building Peoria, Illinois 61602 J. D. Boone Kuersteiner, Esquire 2562 Executive Center Circle East Montgomery Building Tallahassee, Florida 32301
The Issue The issues to be resolved in this proceeding concern whether the Respondent violated Section 489.127(1)(f), Florida Statutes, by contracting without a license.
Findings Of Fact The Petitioner is an agency of the State of Florida charged with regulating entry into and the practice of contracting. It is also charged with discipline of licensed contractors who violate the various provisions of Chapter 489, Florida Statutes and the related rules, as well as those who practice contracting without appropriate licensure or certification. The Respondent, by his own admission and by stipulation, was not registered, certified, or otherwise licensed by the State of Florida for engaging in the practice of contracting, at pertinent times. On or about February 21, 1996, at her request, the Respondent provided Betty Thompson with a proposal to remodel and complete a new addition to her home at 110 Granger Street, Panama City Beach, Florida. The agreed-upon contract price was $26,685.00. Ms. Thompson signed the proposal, which contemplated construction of an addition in the amount of 593 square feet, at a price of $45.00 per square foot or $26,685.00. The price included all concrete, plumbing, and electrical work and installation. The terms of the contract stated that the price included the materials and the labor involved. The Respondent also obtained plans for the addition on Ms. Thompson's behalf. The plans depict the Respondent's name thereon as the contractor for the project. The Respondent then instructed Ms. Thompson to obtain the necessary building permit, which she did. The Respondent obtained several laborers to perform work on the project, including Eddie George, his son Shannon George, and Tim Polston. He introduced them to Ms. Thompson as the men who would perform most of the labor on the addition to her home. He hired these men as laborers and not Ms. Thompson. Later when he abandoned the job she hired them, or at least some of them, to finish the job. Eddie and Shannon George performed the majority of the actual labor on the project under the Respondent's supervision. Mr. Polston performed the electrical work. According to Mr. George's testimony they were supervised by the Respondent just as they would be by any contractor. They were paid by the Respondent by the hour. The Respondent stopped at the job site frequently and discussed the job's progress with Ms. Thompson. She addressed any questions and concerns to the Respondent, who conveyed any necessary information to his foreman, Eddie George. The Respondent also performed some construction work himself. The Respondent helped tear out a back wall of the house, set two (2) doors, did some painting, and did some air conditioning work on the project. He also checked the job site each day, and checked to see what materials were needed, and bought and delivered the needed materials. The Respondent received intermittent payments from Ms. Thompson, which he used to pay for the materials he purchased for the project. He also used a portion of those payments to pay his laborers. On or about May 6, 1996, the Respondent abandoned the job. This occurred shortly after he first met with Ms. Thompson's father who was paying for the job. Apparently there were some disagreement or issue raised between them and the Respondent never appeared at the job site again. After the Respondent abandoned the project, Ms. Thompson was unable to get another contractor to complete the job. She thereupon employed the laborers who had already worked on the job, the Georges and Tim Polston, to continue working there, which they agreed to do. It was only after the Respondent abandoned the job that Ms. Thompson paid the laborers directly herself. The addition that the Respondent contracted to construct has numerous construction flaws, including, but not limited to, malfunctioning air conditioning in the addition, improperly installed flooring, gaps between the old and new roofs and the old and new exterior concrete block work, as well as a leaking roof. These problems arose during the construction which occurred under the Respondent's supervision.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a Final Order be entered by the Florida Construction Industry Licensing Board, finding that the Respondent violated Section 489.127(1)(f), Florida Statutes, by contracting without proper licensure or certification, and imposing a fine of $5,000.00. DONE AND ENTERED this 1st day of April, 1998, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 1st day of April, 1998. COPIES FURNISHED: John O. Williams, Esquire Boyd, Lindsey, Williams, and Branch, P.A. 1407 Piedmont Drive, East Tallahassee, Florida 32317 Sher L. Allan, Esquire 731 Oak Avenue Panama City, Florida 32402 Rodney Hurst, Executive Director Construction Industry Licensing 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Linda L. Goodgame, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007
The Issue Whether Respondent's license as a certified roofing contractor in the state of Florida should be revoked, suspended or otherwise disciplined under the facts and circumstances of this case.
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 material to this proceeding, Respondent, Christopher G. Coxon, held a license as a certified roofing contractor, number CGC029604. On or about November 15, 1988, Respondent entered into a written contract with John DeCarlucci to repair a leak in the roof of DeCarlucci's residence at 1717 North Oregon Circle, Tampa, Florida. The contract amount was $400.00, of which Respondent was paid $200.00 by DeCarlucci on November 16, 1988. The Respondent gave DeCarlucci a one-year warranty on his work. The balance owed on the contract was to be paid upon satisfactory completion of the job. Respondent commenced work on the DeCarlucci residence on November 16, 1988. On November 16, 1988 Respondent removed two rows of roofing tile from DeCarlucci's roof while attempting to repair the leak in the roof. The Respondent carried these roofing tiles away from DeCarlucci's residence on November 16, 1988 and has never returned these roofing tiles or provided DeCarlucci with any replacement roofing tiles. On November 23, 1988 the area of the roof that Respondent had attempted to repair leaked. As a result of several telephone calls to Respondent from DeCarlucci, the Respondent returned to the job site on November 26, 1988 and December 7, 1988, and whatever repairs the Respondent attempted on those dates failed in that the roof continues to leak. After December 7, 1988 the Respondent did not return to the job site. DeCarlucci attempted to reach Respondent through the remainder of December 1988 and January and February 1989 by telephone and a certified letter but to no avail. As a result of DeCarlucci filing a complaint with the City of Tampa Building Department on January 5, 1989, the job site was inspected by the construction inspector for the building department and the project cited for violation of the building code. Respondent was notified of the complaint and building code violation. The Respondent was given until February 14, 1989 to correct the leakage and to replace the missing roofing tiles. As a result of Respondent's failure to take any corrective action toward repairing the roof or replacing the missing roofing tiles, the DeCarlucci complaint was filed with the City of Tampa Unified Construction Trades Board for disciplinary action. The Respondent subsequently returned the $200.00 to DeCarlucci that he had received from DeCarlucci on the contract price on November 16, 1988. In its complaint against the Respondent the City of Tampa Unified Construction Trades Board alleged that Respondent's failure to properly repair the roof was a violation of Section 101.1-Covering, Standard for the Installation to Roof Coverings, 1985, edition, Southern Building Code Congress International, Inc., and Section 25-101(5)(10) and (22) Grounds for Disciplinary Action, Penalties, City of Tampa, Building and Construction Regulations. Respondent was duly notified of the hearing to be held on April 4, 1989 on the allegations. At the hearing on April 4, 1989 the Respondent was found to have violated those sections set forth in Finding of Fact 13 and by unanimous decision the Board ordered Respondent to cease all construction activity and revoked the Respondent's permitting privilege. At no time material to this proceeding, has the Respondent made restitution to DeCarlucci for the missing roofing tiles or the cost of labor and materials for installing such tiles. While Section 489.129(1), Florida Statutes, provides for the assessment of costs associated with the investigation and prosecution of a case, there was no evidence presented by the Department as to the amount of those costs.
Recommendation Upon consideration of the foregoing findings of fact and conclusions of law and disciplinary guidelines set forth in Rule 21E-17.001, Florida Administrative Code, it is accordingly, RECOMMENDED: That the Board enter a Final Order finding Respondent, Christopher G. Coxon guilty of violation of Section 489.129(1)(d)(i) and (m), Florida Statutes, and for such violation revoke his license as a certified roofing contractor. DONE and ENTERED this 2nd day of January, 1992, in Tallahassee, Florida. WILLIAM R. CAVE 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 2nd day of January, 1992. APPENDIX The following constitutes my specific rulings pursuant to Section 120-59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in the case. Rulings on Proposed Finding of Fact Submitted by the Petitioner Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is the Finding(s) of Fact which so adopts the proposed findings of fact: 4-6(1); 7-8(2); 9-10(3); 11(4); 13-16(5); 17-18(3); 19(6); 20-21(7); 22-23(8); 24-26(9); 27 28(10); 29-30(11); 31(12); 32(16); 33(13); 34(14); and 35- 36(15). Proposed findings of fact 1-3 are covered in the Preliminary Statement. Proposed finding of fact 12 is rejected as not being supported by competent substantial evidence in the record. See proposed findings of fact 20 and 21 and finding of fact 7. Rulings on Proposed Findings of Fact Submitted by the Respondent The Respondent did not submit any proposed findings of fact. COPIES FURNISHED: Craig M. Dickinson, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Christopher Coxon 554 Carson Drive Tampa, FL 33615 Daniel O'Brien, Executive Director Construction Industry Licensing Board P.O. Box 2 Jacksonville, FL 32202 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
Findings Of Fact On February 27, 1974, Pelle J. Lindquist contracted with Patrick G. Yeager to build a house on Concord Road in Ormond Beach, Florida. This contract was admitted in evidence as petitioner's Exhibit No. 1. The contract called for work to begin on March 1, 1974, and to be completed within 90 days. Work did not begin on March 1, 1974, but did begin in the latter half of March, 1974. Frequent rain in March, 1974, caused the roof to warp, so that it had to be replaced. After considerable delay in undertaking the repair, actually replacing the roof took only about a week. Replacing the roof added significantly to respondent's costs in performing under the contract. Eleven months after construction began, Mr. Yeager moved in. Because the kitchen and both bathrooms lacked wallpaper, and because the gravel yard was partly unfinished, respondent Lindquist paid Mr. Yeager $300.00, in exchange for which Mr. Yeager released Mr. Lindquist from all liability in connection with the house. The release was admitted in evidence as respondent's Exhibit No. 1. In the course of construction, Haven Vaughn, a sub- contracting carpenter, filed a notice of intent to lien on behalf of himself and his partner, Cal Fisher. As long as Mr. Lindquist was allowed draws on the construction loan, Messrs. Vaughn and Fisher were paid regularly. For reasons which were not developed in the evidence, the lender withheld part of the loan proceeds from respondent. When the draws stopped, the carpenters were not paid, and they stopped work on the Yeager house. The lender ultimately paid the carpenters in full. At the time Mr. Yeager contracted with Mr. Lindquist for the house, Mr. Lindquist entered into a separate agreement with Mr. Cameron, a real estate broker who introduced Mr. Lindquist to Mr. Yeager. Under the latter agreement, Mr. Lindquist was to pay Cameron Realty Company a brokerage fee upon "obtaining last draw from lending firm." The brokerage fee has not been paid and is currently the subject of civil litigation. On February 15, 1974, Mr. and Mrs. Horace N. Smith, Jr., contracted with respondent for the construction of a house on another lot on Concord Road in Ormond Beach, Florida. This contract was admitted in evidence as petitioner's Exhibit No. 2. The contract called for completion of the Smith house on or about June 15, 1974. After the contract was signed, the Smiths returned to New Jersey, entrusting oversight of the project to Mr. Cameron, a real estate broker who introduced Mr. Lindquist to the Smiths. As construction progressed, Mr. Cameron kept Mrs. Smith advised, and she mailed installment payments on the strength of Mr. Cameron's representations. In this fashion, Mr. Lindquist was paid 75 percent of the total contract price of $27,600.00. For reasons which were not developed in the evidence, the Smiths stopped payments under the contract, presumably at Mr. Cameron's suggestion. When the payments stopped, work on the house also stopped, and, during the ensuing hiatus in construction, vandals broke a glass door, scrawled obscenities on the walls, scraped the walls, damaged the outside doors, and ruined the wooden trim. Work had fallen far behind schedule when, in April of 1975, a lawyer retained by Mr. and Mrs. Smith wrote Mr. Lindquist to the effect that the Smiths would take over the project unless it was finished within a week. When the week had passed, the Smiths began dealing directly with the sub-contractors, the house was eventually completed at a total cost to the Smiths of $29,100.00, or $1,500.00 more than the Smiths had agreed to pay Mr. Lindquist for the job. As completed, the house lacked an electric garage door opener and a sprinkler system which Mrs. Smith guessed would cost $1,000.00, but no competent evidence as to the cost or value of either the door opener or the sprinkler system was adduced. Vandalism added significantly to the cost of the Smith house. Mr. Lindquist replaced a glass door broken by vandals. On account of the vandalism, the Smiths paid the carpenters an additional $300.00 for their labor. The front doors, the trim, and all bays had to be replaced; the cost of replacement materials was not established. At the time Mr. and Mrs. Smith contracted with Mr. Lindquist for the house, Mr. Lindquist entered into a separate agreement with Mr. Cameron. Under the latter agreement, Mr. Lindquist was to pay Cameron Realty Company a brokerage fee. The brokerage fee has not been paid and is currently the subject of civil litigation. Certified general contractors' licenses are renewable annually in June, pursuant to Section 468.108, Florida Statutes (1975). Mr. Lindquist had such a license for 1974-75. In June of 1975, he desired to renew his license, but in a fashion which would authorize him to contract on behalf of a corporation, rather than as an individual. He telephoned the Jacksonville office of the Florida Construction Industry Licensing Board and explained his situation. That office mailed him forms which he filled out and mailed back in June of 1975. In March of 1976, some nine months later, the completed forms were mailed back to respondent, but no license was issued. On March 22, 1976, Mr. Clyde Pirtle, an investigator employed in the Jacksonville office of the Florida construction Industry Licensing Board, filled out and mailed to respondent a Notice of Violation," notifying respondent that he had failed to renew his certificate during June of 1975. The same "Notice of Violation" advised respondent of his putative failure to notify the Florida Construction Industry Licensing Board of his new address, although his application papers for the 1975-76 license had been returned to the new address. On the Monday after the Friday on which respondent received the "Notice of Violation," he telephoned Mr. Pirtle's office and was told that Mr. Pirtle would contact him. On or about June 3, 1976, Mr. Pirtle did contact respondent and meet with him. At this meeting, respondent showed Mr. Pirtle the papers he had mailed to the Board in June of 1975, and which were returned to him unprocessed in March of 1976. Mr. Pirtle told respondent that the papers had been returned because the application forms were for a registered, and not for a certified, contractor's license, and furnished respondent another set of forms. Respondent filled out the new set of forms and mailed them to the Board in June of 1976. A month and a half before the hearing in this cause, respondent received 1976-1977 certified general contractor's license No. CGC007702, which is currently in force. No contractor's license for 1975-76 was ever issued to respondent. On May 3, 1976, respondent applied for and was issued a building permit to erect a new residence at 1623 Anniston Avenue in the City of Holly Hill. At that time, respondent had no current contractor's license and presented to the authorities a license which had expired.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED that disciplinary action against Respondent, if any, be limited to a reprimand. DONE and ENTERED this 6th day of April, 1977, in Tallahassee, Florida. ROBERT T. BENTON Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Mr. Barry Sinoff, Esquire 1010 Blackstone Building Jacksonville, Florida 32202 Mr. Thomas L. West, Esquire Post Office Box 1857 1030 Volusia Avenue Daytona Beach, Florida 32015 J. K. Linnan, Executive Director Florida Construction Industry Licensing Board Post Office Box 8621 Jacksonville, Florida 32211
The Issue The issue is whether Petitioner is liable for a penalty for failure to maintain workers’ compensation insurance in violation of relevant provisions in Chapter 440, Florida Statutes (2007).1
Findings Of Fact Respondent is the state agency responsible for enforcing the statutory requirement that employers secure the payment of workers’ compensation for the benefit of their employees. § 440.107. Petitioner is a limited liability company domiciled in Florida and engaged in the sale of stone countertops. The disputed issues of fact arise from a single, integrated transaction involving “one and the same business” within the meaning of Subsection 440.10(1)(b). The “business” includes a contractor, a wholesaler, and two subcontractors, one of which is Petitioner. The integrated transaction is between the business and a homeowner. The contractor is identified in the record as Manasota Land Development (Manasota). The homeowner owns a residence on Agate Road in Port Charlotte, Florida (the homeowner). The contractor referred the homeowner to Petitioner for the purpose of selecting granite countertops. Petitioner’s representative visited the residence, took measurements, and received the order for granite from the homeowner. Petitioner placed the order with the wholesaler, the name of which is not material to this proceeding. The wholesaler delivered granite to a fabricator and installer designated by Petitioner and identified in the record as Granite Exclusive (the installer). The installer fabricated the countertops and installed them at the residence. Petitioner visited the residence to ensure customer satisfaction, and Petitioner paid the wholesaler and installer from funds provided by Manasota. Petitioner did not collect payment from the homeowner. Rather, Petitioner agreed with Manasota to a total price of $7,141.00. Petitioner billed Manasota for $3,570.00, an amount equal to approximately one-half of the total agreed price, on May 21, 2008, inferentially when the homeowner placed the order with Petitioner. Manasota paid Petitioner the 50 percent deposit. Petitioner billed Manasota for the balance due, in the amount of $3,571.00, on July 22, 2008, when the work was completed to the satisfaction of the homeowner, and Manasota paid the balance due. Petitioner was a sales agent, order processor, and a collection and payment processor for Manasota. Petitioner paid the wholesaler and installer from funds provided by Manasota. The fact-finder draws a reasonable inference from the evidence that Manasota collected a sum from the homeowner that was equal to or greater than the price Manasota paid to Petitioner. Petitioner and the installer are subcontractors of Manasota. Petitioner had no supervisory control over the installer. Respondent’s claim that a written or oral contract existed between Petitioner and the wholesaler and installer is not supported by clear and convincing evidence. It is undisputed that neither the installer nor Petitioner have workers’ compensation insurance, and the two subcontractors are, by operation of Subsection 440.10(1)(b), the employees of Manasota in “one and the same business.” Manasota is responsible for providing workers’ compensation coverage by operation of the statute. Petitioner mistakenly believed, in goof faith, that it was exempt from the requirements of Chapter 440. A company officer of Petitioner obtained an exemption certificate and, reasonably, concluded that the exemption was for Petitioner and both of Petitioner’s officers or employees. Such an exemption was the officer’s stated purpose when she entered the local state office responsible for issuing exemption certificates. The state employee represented that the exemption certificate actually issued achieved the officer’s stated purpose. The express terms of the exemption certificate provide that the exemption is for the person “and” company named in the certificate. However, Subsection 440.05 makes clear that an exemption covers only the company officer named in the certificate and that each of the two officers must be named in the certificate or that each officer must obtain a separate certificate. Petitioner did not engage in the business of fabricating or installing the stone countertop. Petitioner made a sale of the granite countertop and placed an order with a wholesaler. The wholesaler shipped the countertop to a the installer designated by Petitioner based on proximity to the project site. The fabricator installed the countertop. Petitioner did not supervise the fabrication or installation of the countertop. The fact-finder has considered and weighed conflicts in the evidence pertaining to the issue of whether Petitioner engaged in the business of fabricating and installing the stone countertop and has resolved any evidential conflicts in favor of Petitioner. The testimony of Petitioner’s witness, describing the nature and scope of Petitioner’s business, is consistent with Article 5 in Petitioner’s Articles of Incorporation which states: The general purpose for which the Company is organized is to engage in the business of natural stone countertop sales. . . . On June 3, 2008, Respondent’s investigator, conducted a compliance check at 8206 Agate, South Gulf Cove, Florida, to verify compliance with the workers’ compensation statutes. At the worksite, Respondent’s investigator observed three men installing a stone countertop for the installer. Installation of stone countertops is part of the construction industry and is assigned Class Code 5348 in the Scopes Manual, published by the National Council on Compensation Insurance and adopted in Florida Administrative Code Rule 69L-6.021. The investigator interviewed the three men and requested proof of compliance with the workers’ compensation law. One of the three men, neither furnished proof of an election to be exempt from workers’ compensation nor showed that he had secured workers’ compensation coverage. Utilizing the Department of Financial Services’ Coverage and Compliance Automated System (CCAS), the investigator was unable to determine that the employee of the installer was exempt from the requirements of the workers’ compensation law or that Petitioner had secured the payment of workers’ compensation. On June 4, 2008, the investigator issued a Stop-Work Order and Order of Penalty Assessment against Petitioner for failure to meet the requirements of Chapter 440. Respondent ordered Petitioner to cease all business operations and assessed a $1,000.00 penalty against Petitioner pursuant to Subsection 440.107(7)(d). On June 4, 2008, the investigator issued a Division of Workers’ Compensation Request for Production of Business Records for Penalty Assessment Calculation. Petitioner complied with the Request and provided the required records. Based on Petitioner’s business records, the investigator issued an Amended Order of Penalty Assessment on June 11, 2008, in the amount of $1,218.52. Mr. Thomas Harvey, a company officer of Petitioner, did not posses an election to be exempt from workers’ compensation. Ms. Leslie Lockett, the other company officer had applied for and obtained an exemption from workers’ compensation coverage. Ms. Lockett’s exemption from workers’ compensation lists the scope of business or trade as countertops, pursuant to instructions from the agency employee who issued the certificate. Ms. Lockett’s exemption from workers’ compensation is a construction industry exemption. Ms. Lockett applied for a Notice of Election to be Exempt as a member of a limited liability company in the construction industry pursuant to the instructions previously described. In the transaction at issue in this proceeding, Petitioner collected payment for materials and installation of a stone countertop from Manasota. Petitioner did not collect payment from the homeowner and had no control or authority over either the wholesaler or the installer.
Recommendation Based on the Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent issue a final order dismissing the Stop-Work Order and Amended Order of Penalty Assessment against Petitioner and Mr. Harvey. DONE AND ENTERED this 24th day of October, 2008, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 24th day of October, 2008.
The Issue The issue in this proceeding is whether Pinewood should be granted a permit to construct and operate an air pollution source, specifically a concrete batching plant. Petitioners contend that Pinewood has failed to give reasonable assurances that it can operate the plant in harmony with the Department's rules and regulations, and that deed restrictions on the property where Pinewood proposes to construct the plant prohibit it. Pinewood and the Department contend that Pinewood has provided reasonable assurance that the plant will not result in violation of the Department's air pollution source standards.
Findings Of Fact Pinewood is seeking to construct a concrete batching plant on Big Pine Key, Florida. The plant would be located within 1,000 feet of a body of water known as "Coupon Bight." Petitioners reside in a residential area across Coupon Bight from the plant location. Their residences are approximately one mile from the plant. If the proposed plant resulted in violations of the Department of Environmental Regulation's air pollution standards, Petitioners would suffer a degradation of their living environment. This would be especially true if the proposed plant resulted in violations of the Department's standards for particulate or dust emissions. Pinewood was formed as a corporation in August, 1981. It appears that the corporation was formed primarily to construct and operate the concrete batching plant which is the subject of this proceeding. In November, 1981, Pinewood obtained applicable construction permits from Monroe County, Florida. Pinewood ordered the plant from Stephens Manufacturing Company in Kentucky. The plant was constructed on the site during November, 1981. Anthony Paterniti, Pinewood's President, was responsible for obtaining the local permits and constructing the plant. He was not aware that permits would be required from the Department of Environmental Regulation before the plant could be constructed and operated. The Department of Environmental Regulation cited Pinewood for constructing the plant without the proper permits by initiating an enforcement proceeding. The enforcement proceeding was concluded by the Department and Pinewood entering into a consent order. Pinewood paid a fine of $250. Paterniti construed the consent order as allowing him to operate the plant. During April, 1982, the plant operated for nineteen days. The Department again initiated enforcement proceedings. These proceedings were concluded by the Department and Pinewood again entering into a consent order. During this time, Pinewood filed its application with the Department to construct and operate the concrete batching plant. The plant, while already constructed, has not operated since April, 1982. The plant, which Pinewood has already constructed and proposes to operate, is a ten yard batching plant. It batches, or loads, aggregate and cement into a cement truck, where the materials are mixed while on route to a job site. The plant is large enough to load only one truck at a time. The only air pollution that is likely to result from operation of such a plant is particulate emissions, or dust. In order to reduce these emissions, a "bag house" is installed in such a manner as to trap cement dust. The "bag house" functions in the manner of a vacuum cleaner, allowing air to pass through it, but trapping emissions. In normal use, a plant such as Pinewood's would emit approximately one-half pound of cement dust per hour into the air. Without use of the "bag house" from 7 to IS pounds per hour could be expected to be emitted. A second source of particulate emissions from operation of a hatching plant is the loose aggregate that is stored adjacent to the plant. If the aggregate is not properly stored, wind can blow it about and cause substantial emission of cement dust into the air. It is possible to virtually eliminate this source of pollution. Pinewood proposes to store loose aggregate within concrete bins. During high wind episodes, the bins could be covered. Pinewood also proposes to keep loose aggregate wet by sprinkling it with water, thus reducing that source of pollution. Other dust that might result from operation of a hatching plant such as would result from the utilization of heavy trucks in dusty areas are controllable. Pinewood has placed a firm marl base around the plant which can be kept wet during dry times. So long as the proposed concrete hatching plant is properly operated, and loose aggregate in the area is properly managed, it is not likely that emissions from the operation would result in violation of the Department's air pollution standards set out in Chapter 17-2, Florida Administrative Code. Pinewood's plant would be operated by Anthony Paterniti. Paterniti is a licensed general contractor. He is familiar with the operation of batching plants. While operating the plant is not difficult and maintenance requirements are minimal, it is necessary that proper operating and maintenance procedures be carefully observed. The property on which Pinewood proposes to operate its batching plant is owned by David S. and Judy A. Shephard. It appears that the Shephards are partners in the cement batching plant venture with Pinewood, and that they are prepared to enter into a lease agreement with Pinewood. The deed by which the Shephards obtained the property contains the following deed restriction: "The property may not be used as a site of a cement plant." Local government authorities in Monroe County have apparently interpreted this restriction to not include a concrete batching plant, but rather pertain to a cement manufacturing plant. There was testimony offered at the hearing from which it could be concluded that the intent of the restriction was to include batching plants. Petitioners have contended that there is a likelihood that operation of the plant would result in violations of water quality standards in Coupon Bight. The evidence does not sustain that contention. In an effort to get the petitioners to drop their opposition to this permit application, Paterniti wrote a letter dated June 1, 1982, to all the Petitioners. The letter included the following: I think that you all should know that the Benhams [two of the originally named Petitioners] themselves have an illegal duplex on RU-1 zoning on lot 17, block 3 Pine Channel Estates. I intend to file a zoning violation with the Monroe County Zoning Dept. and have this violation of our zoning laws investigated. I am prepared to go to court over this matter. * * * I would like to ask your group to write a letter to the DER withdrawing your request for a hearing. If you do this, I will not file the zoning violation with the county, which I intend to do this week. You leave me no other choice. The tone of this letter is certainly threatening; however, it does not stand as evidence to establish that Pinewood is incapable of properly operating a concrete batching Plant. No evidence was offered as to the interests of Petitioners other than Naubereit and Kite in this proceeding, and no appearance was entered on their behalf at the hearing.
The Issue The issue in this case is whether Respondent, Action Instant Concrete, LLC (AIC), should be allowed to use the Concrete Batching Plant Air General Permit promulgated by Respondent, Department of Environmental Protection (DEP), in Florida Administrative Code Rule 62-210.300(4)(c)2.1
Findings Of Fact Petitioners, Paul and Barbara Corbiey, live at 7380 Southwest 86th Lane, Ocala, Florida, in an area called Green Turf Acres. Petitioners' property shares a boundary with property owned by AIC at State Road 200. In 2003 AIC began construction of a relatively small cement silo and area for storage of rock aggregate and sand to mix with the cement, similar to facilities at a related operation some distance away. The other operation is within the jurisdiction of DEP's Central District, which did not require a permit for the operation. AIC's operation in Ocala is in DEP's Southwest District, which is headquartered in Tampa. Periodically (and irregularly but apparently usually early in the morning) AIC receives deliveries of cement to the silo at its facility next to the Corbieys. The silo is essentially a rectangular bin with a baghouse, essentially another rectangular structure attached to the silo and containing a combination of filters. Deliveries are made using an enclosed truck with a blower and flexible hose that can be positioned and attached to the fill spot on the silo. The transfer of cement from truck to silo is accomplished pneumatically, with the air exhausted through the baghouse, which is designed to capture and retain cement particles within the silo as the air passes through to the outside of the silo. If there are particulate emissions during the process, they typically would come from the baghouse. AIC also has aggregate and sand delivered to storage areas on either side of the silo. Each of the storage areas has walls made of 4-5 courses of cement block on three sides. The walls are there mainly to contain the aggregate and sand but also serve as a partial windbreak. During AIC's operations, trucks come to pick up cement, aggregate, and sand. To load cement onto the trucks, cement is gravity-fed from a hopper on the silo, through a flexible tube, and into the truck; aggregate and sand also are loaded into trucks using a front-end loader. Unconfined emissions can and, at least sometimes, do occur during the loading processes. After loading, the trucks are driven offsite, typically to a construction site, where the cement, aggregate, and sand are batched to form concrete. When AIC began operations, its yard was covered with grass and weeds, which helped suppress fugitive dust when trucks drove in and out. Later, the grass and weeds died, and AIC installed three sprinkler heads to keep the area watered to help suppress fugitive dust. When AIC began construction and operation, Petitioners complained to numerous authorities that AIC's construction and operation were illegal, inappropriate, and should not be allowed for various reasons, including alleged particulate emissions and fugitive dust that was harmful to the health and property of Petitioners and their neighbors.13 One complaint was lodged with DEP's Central District, which referred it to DEP's Southwest District. DEP's Southwest District investigated, determined that AIC should have obtained a permit, initiated compliance action, and required AIC to make use of the Concrete Batching Plant Air General Permit promulgated by DEP in Rule 62- 210.300(4)(c)2. DEP also fined AIC in the amount of $4,150, plus $100 to reimburse DEP for its costs, for constructing and operating without a permit.14 These amounts were paid. It does not appear from the evidence in the record that DEP ordered AIC to cease operations until DEP allowed AIC to use the Concrete Batching Plant Air General Permit. It does not appear that AIC ceased operations. As DEP instructed, AIC had a VE test performed in accordance with EPA Method 9 for submission with a Concrete Batching Plant Air General Permit Notification Form, fee, and proof of public notice. AIC retained Koogler & Associates for this purpose, and the test was performed on April 26, 2005. On April 29, 2005, AIC published notice in the Ocala Star-Banner that it intended to use the Concrete Batching Plant Air General Permit. On May 5, 2005, Koogler & Associates prepared a VE Observations Report for AIC. On May 16, 2005, Petitioners filed a Petition opposing AIC's use of the Concrete Batching Plant Air General Permit and seeking its revocation. On May 19, 2005, AIC submitted a Concrete Batching Plant Air General Permit Notification Form, fee, proof of public notice, and VE observation report to DEP. At the hearing, John B. Koogler, Ph.D., P.E., an expert in environmental science and air quality, and the principal of Koogler & Associates, testified as to the cement and concrete industry in general, EPA Method 9, required certifications for conducting a VE test under EPA Method 9, VE testing under EPA Method 9, and the VE Observations Report prepared for AIC by Koogler & Associates. In the case of AIC's operation, VE testing measures stack emissions during standard loading of cement under pressure. Typically, if there are emissions during the process, they will be seen at the baghouse on the silo--i.e., the dust collector at the exhaust point. This is where VE is measured during testing. AIC's stack emissions were tested at a loading rate of approximately 50 tons per hour; at that rate, 25 tons of cement were loaded into the silo in half an hour. According to AIC's VE Observations Report, there were no stack emissions during testing. Dr. Koogler did not perform the test himself and did not sign the Observations Report, but the test was performed and the report was prepared under his general supervision, and experts in his field routinely rely on VE testing performed by certified technicians under general supervision and on observations reports prepared by others under general supervision. According to Dr. Koogler, the test for AIC appeared to have been performed properly and met the requirements of EPA Method 9 and DEP's statutes and rules for use of the Concrete Batching Plant Air General Permit. Petitioners questioned the veracity of the VE Observations Report, primarily by speculating that the certified technician who performed the test may have fabricated the observations, either with or without his employer's knowledge. This speculation is rejected as unfounded. Petitioners also repeatedly questioned the consistent and reasonable testimony of all the experts that valid, authorized VE observations could not be performed using Petitioners' videotapes. Besides, the videotape in evidence did not show loading of the silo. As a result, Petitioners presented no evidence that VE in excess of five percent opacity occurred during cement loading of the silo. Petitioners also alleged that violations occurred during the loading of trucks at AIC's operation. Witnesses testified to seeing various amounts of dust from various distances occurring at various times, but their testimony was not specific. Parts of the videotape in evidence show some unconfined emissions occurring during the loading of at least some of the trucks. However, as indicated above, VE testing is not done for unconfined emissions; in addition, standardized opacity measurements could not have been made from a videotape. Finally, the videotape showed that AIC uses a chute, or partial enclosure, to mitigate emissions at the drop point to the truck, and the evidence was that AIC maintains its parking areas and yards and applies water when necessary to control emissions. Cf. Conclusions 22-23, infra. Dr. Koogler also opined that AIC and its operation may use the Concrete Batching Plant Air General Permit under a proper interpretation of the statutes and rules, in particular Rule 62-296.414, which states that it not only applies to "emissions units producing concrete and concrete products by batching or mixing cement and other materials" but also applies to "facilities processing cement and other materials for the purposes of producing concrete." This opinion was consistent with DEP's interpretation of the statutes and rules. Petitioners also contended that AIC was ineligible for the Concrete Batching Plant Air General Permit because its facility already was in existence and was operating without a permit. However, expert witnesses for DEP and for AIC testified consistently and reasonably that DEP can require a facility operating without a permit to use the Concrete Batching Plant Air General Permit in order to come into compliance. It is not necessary for the facility to dismantle its facility and rebuild after obtaining authorization to use the Concrete Batching Plant Air General Permit under Rule 62-210.300(4)(a)2. Under these circumstances, it is reasonable for the facility to submit VE test results along with the facility's initial Concrete Batching Plant Air General Permit Notification Form, fee, and proof of public notice. In the exercise of its discretion to enforce compliance, DEP allowed AIC to continue to operate before and during the pendency of this proceeding. Petitioners questioned the wisdom and propriety of this choice, but DEP's exercise of discretion in enforcing compliance is not at issue in this proceeding. See Conclusion 24, infra.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DEP enter a final order approving AIC's use of the Concrete Batching Plant Air General Permit under Rule 62-210.300(4)(a)2. Jurisdiction is retained to consider a motion for costs and attorney fees under Section 57.105, Florida Statutes, if filed within 30 days after issuance of the final order. DONE AND ENTERED this 31st day of March, 2006, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 31st day of March, 2006.
