Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMENDED that the application of Jay Hall for a septic tank permit at Lot 1, Deerwood Estates, Baker County, Florida be DENIED. However, applicant should be given thirty days from date of the final order in this cause to raise the height of the system to Department recommended specifications. DONE and RECOMMENDED this 29th day of April, 1983, in Tallahassee, Florida. DONALD R. ALEXANDER 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 29th day of April, 1983.
The Issue The issue for determination is whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what action should be taken.
Findings Of Fact The Department of Agriculture and Consumer Services (Petitioner) is charged with the administration and enforcement of Chapter 500, Florida Statutes, together with the rules promulgated thereunder, relating to food and water sanitation within the State of Florida. Wima Corporation (Respondent) is a water vending machine operator and is located at 4252 Northwest 55th Street, Coconut Creek, Florida. The president of Respondent is Donald Epstein. Respondent has been in the water vending business since 1980 and has never received any notification that its water has caused anyone to become ill. Respondent is the owner and operator of a water vending machine, Identification Tag No. 5890 (Machine ID Tag No. 5890), located at Lyons Amoco, Lyons Road and Glades Road, Boca Raton, Florida. Machine ID Tag No. 5890 dispenses drinking water, potable water that originates from an approved municipal provider and is processed by reverse osmosis. The drinking water is sold to the general public. Approximately 20 to 50 vends per day are dispensed from Machine ID Tag No. 5890 to the general public who provide their own container for collecting the water. A vend is one gallon of water. On March 3, 1997, one of Petitioner's sanitation and safety inspectors (inspector) collected a vended water sample from Machine ID Tag No. 5890. The inspector collected the first "slug" of water from the spout of Machine ID Tag No. 5890 the same as a paying public consumer. The first "slug" of water is the first water that the first paying public consumer would receive from Machine ID Tag No. 5890. Petitioner's inspector collected 100 ml of water in a sanitary container, sealed the container, and immediately packed the container in ice in order to refrigerate the water sample. The water sample remained in the custody and control of Petitioner's inspector until it was shipped, packed in ice, to Tallahassee, Florida, via Greyhound Bus, for analysis by Petitioner's food laboratory. The shipping process was in accordance with protocol established by Petitioner. On March 4, 1997, the water sample was received by the Petitioner's food laboratory for analysis. The sample remained in the custody and control of the laboratory staff. The analysis of the water sample was initiated within 30 hours of collection. Upon analysis, the water sample was found to contain 21 coliforms per 100 ml. Florida's safe water standards require a total absence (zero) coliforms. The water sample was contaminated with coliforms and was not appropriate for human consumption. The analysis was performed in accordance with the protocol established by Petitioner. By certified letter, return receipt, dated March 17, 1997, Respondent was notified, among other things; that the water sample was adulterated; that ID Tag No. 5890 was required to be cleaned and sanitized; and that another sample was required to be taken. After the analysis of the water sample showed adulteration, Respondent's president contacted an independent laboratory, Spectrum Laboratories, Inc., (Spectrum), approved by Petitioner, and requested that an analysis of the dispensed water by Machine ID Tag No. 5890. Spectrum forwarded the necessary items to Respondent's president in order for him to obtain a water sample and informed him of the procedure and process in obtaining the sample. On March 19, 1997, Respondent's president obtained the water sample in accordance with Spectrum's instructions and forwarded the sample to Spectrum. On March 20, 1997, Spectrum performed an analysis of the water sample and found no coliforms. On or about March 24, 1997, Respondent's president forwarded the results of Spectrum's analysis to Petitioner. On March 25, 1997, a second vended water sample was taken by Petitioner's same inspector from Machine ID Tag No. 5890, using the same procedure and process as before. Also, the water sample was shipped for analysis to Petitioner's food laboratory in Tallahassee using the same procedure and process. The collection and shipping procedure and process were again in accordance with protocol established by Petitioner. On March 26, 1997, the second water sample was received by the Petitioner's food laboratory for analysis. Upon analysis, the second water sample was found to contain 18 coliforms per 100 ml. The water sample was contaminated with coliforms and was not appropriate for human consumption. The analysis was again performed in accordance with the protocol established by Petitioner. By certified letter, return receipt, dated April 10, 1997, Respondent was notified, among other things, that the second water sample was adulterated; that Machine ID Tag No. 5890 would be taken out of service until the source of the contamination was found; and that Machine ID Tag No. 5890 would be immediately placed under a "Stop Use" order. By Stop Use Order dated April 11, 1997, Respondent was notified, among other things, that Machine ID Tag No. 5890 could not be used. Respondent was further notified that Machine ID Tag No. 5890 could resume being used after a showing of no contamination from a water sample taken by Petitioner's inspector and analyzed by Petitioner's food laboratory. Respondent cooperated fully with Petitioner in correcting the problem. Respondent complied with all of Petitioner's requests. On April 16, 1997, a third vended water sample was collected by Petitioner's inspector from Machine ID Tag No. 5890. The same collection procedure and process were followed as in the previous two collections. The same procedure and process were followed in forwarding the water sample to Petitioner's food laboratory as in the previous two collections. All procedures and processes were in accordance with protocol established by Petitioner. On April 17, 1997, Petitioner's food laboratory performed an analysis of the third water sample. The analysis was performed in accordance with the protocol established by Petitioner. Petitioner's laboratory found no coliforms. The water sample was not contaminated and was appropriate for human consumption. Respondent was notified of the results of Petitioner's third analysis. Petitioner permitted the use of Machine ID Tag No. 5890 to resume.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order: Finding that the Wima Corporation violated Subsections 500.459(4)(f), and 500.04(1), Florida Statutes (1995), and Rule 5K-9.005, Florida Administrative Code. Imposing a $500 administrative fine against Wima Corporation. DONE AND ENTERED this 7th day of April, 1998, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 7th day of April, 1998.
Findings Of Fact In December, 1993, Suwannee Farms, through one of its partners, Robert Wight, applied to the Department of Environmental Protection for a wastewater treatment facility permit to be constructed on part of its property in Suwannee County, Florida. The Department of Environmental Protection requested clarification or amendment of the initial application. Suwannee Farms amended its initial application and the Department determined that the applicant had provided reasonable assurances of compliance with Florida Statutes and the Department's rules and regulations. The permittee listed on the initial application is Robert Wight. Suwannee Farms is a partnership consisting of Robert Wight and Joseph Hall. The permit is to be issued in the name of Suwannee Farms. Issuance in the name of the partnership is within the scope of the Department of Environmental Protection's authority. On January 25, 1994, the Department issued its Intent to Issue the permit. The intent to issue provided in part: Pursuant to Section 403.815, F.S. and DER Rule 17-103-150, Florida Administrative Code, you (the applicant) are required to publish at your own expense the enclosed Notice of Intent to Issue Permit. The Notice shall be published one time only within 30 days, in the legal ad section of a newspaper of general circulation in the area affected. For the purpose of this rule, "publication in a news- paper of general circulation in the area affected" means publication in a newspaper meeting the requirements of Sections 50.011 and 50.031, F.S., in the county where the activity is to take place. Where there is more than one newspaper of general circulation in the county, the newspaper used must be one with significant circulation in the area that may be affected by the permit. If you are uncertain that a newspaper meets these require- ments, please contact the Department at the address or telephone number listed below. The applicant shall provide proof of publication to the Department, at Northeast District Office, 7825 Baymeadows Way, Suite B-200, Jacksonville, Florida 32256-7577, within seven (7) days of the publication. Failure to publish the notice and provide proof of publication within the allotted time may result in the denial of the permit. The Notice Of Intent to Issue was published in the Gainesville Sun on February 5, 1994. Proof of publication was timely filed with the Department. The Gainesville Sun is a daily newspaper printed in Alachua County, Florida. The paper is available for purchase by the general public in Suwannee County, Florida and is sold to the general public at newspaper racks. Additionally, the Sun is available to residents of Suwannee County, including the area of the proposed project, through subscription and delivery via newspaper carrier "tubes." The Gainesville Sun is the only newspaper of general circulation delivered on a daily basis to homes in the area affected by the proposed permit. The Gainesville Sun contains national, state and local news stories, including local events in Suwannee County. Additionally, the Sun contains a legal ad section. The information in the Sun is of a public character and of interest and value to the residents of Suwannee County.dd The Sun has been published for more than a year in both Alachua and Suwannee Counties. At least twenty-five percent of the words in the Sun are in the English language and is entered as second class mail at the post office. There is no question that the Gainesville Sun meets the legal requirements of the Department for publication of Notices of Intent to Issue Permits in Suwannee County. Therefore, publication of the Intent to Issue Permit for the proposed wastewater facility involved in this case was appropriate. Through discovery and after an order compelling such answers, the Petitioner listed her objections to the issuance of the permit generally as noncompliance with nitrate level regulations, noncompliance with fencing regulations, noncompliance with set-back regulations and noncompliance with excessive noise and odor regulations. The evidence at the hearing demonstrated that the proposed wastewater treatment facility and land application meet the requirements of Florida Statutes and the Department's rules in the areas specified by the Petitioner as well as other areas of the statutes and rules. Suffice it to say that Petitioner offered no evidence which even remotely demonstrated that the Suwannee Farms permit did not meet these requirements or in some way failed to reasonably assure the Department that the requirements for a wastewater treatment permit with rapid rate land application would be met. Indeed, the only evidence in this case demonstrated that the technology proposed for the wastewater plant and rapid rate land application has been in use for a long time and has historically either met or exceeded the Department's requirements for nitrates (not to exceed 12 milligrams per liter), noise, odor and fecal coliform. There was no evidence submitted that would cause one to conclude that the technology for this facility would not perform as it has in the past at other locations. The plans of the facility clearly show adequate fencing and that the percolation ponds will be set-back at least 500 feet from any wells and at least 100 feet from any property line. Both fencing and pond location meet the requirements of Florida Statutes and Departmental rule. Given these facts, Petitioner has shown its entitlement to a construction permit for its proposed project.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Protection issue a Final Order granting the application of Suwannee Farms for a wastewater treatment facility and rapid land application permit. DONE and ENTERED this 4th day of May, 1995, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of May, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-2800 1. The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, and 10 of Respondent's Proposed Findings of Fact are adopted in substance, insofar as material. COPIES FURNISHED: Stephen C. Bullock P. O. Box 447 Jacksonville, FL 32201 Thomas I. Mayton, Jr. Assistant General Counsel D E P 2600 Blair Stone Rd. Tallahassee, FL 32399-2400 Frederick L. Koberlein P. O. Drawer 2349 Lake City, FL 32056-2349 Virginia B. Wetherell, Secretary D E P 2600 Blair Stone Rd. Tallahassee, FL 32399-2400 Kenneth Plante General Counsel D E P 2600 Blair Stone Rd. Tallahassee, FL 32399-2400
The Issue Whether Respondent John M. Williams deposited fill in waters of the state without a permit from the Department of Environmental Protection. If so, what is the appropriate corrective action and penalty?
Findings Of Fact Mr. Williams and the Cowford Subdivision Petitioner John M. Williams is a retired mechanic. In 1992, he became acquainted with the Cowford subdivision in Walton County, near Bruce, Florida. The subdivision fronts the Choctawhatchee River. Mr. Williams purchased lot 29 of the subdivision. Three or four years later, he bought lot 30. All told, Mr. Williams paid approximately $47,000 for the lots, an electric power line and an "above-ground" septic tank. The purchase price of the lots was $38,000. Running an electric line and installation of an electric light pole cost about $4,000. Mr. Williams paid about $5,000 for the septic tank and its installation. Mr. Williams' ultimate goal in purchasing the lots and adding the improvements was to build a house on the property for use in his retirement. Attempt to Obtain the Necessary Permits The septic tank was not purchased by Mr. Williams until after he had obtained a permit for its construction. At the county offices where he went to obtain the necessary permit, he was "sent over to the power company." (Tr. 216). At hearing, he described what happened there: I paid my money to get my power and they -- well, they informed me . . . once I got my power on I had 6 months to get my septic tank in the ground or they would turn my lights off. So here I had a $3,500 light pole put up and I couldn't very well see this thing going down. So, I went ahead to the Health Department. (Id.) Mr. Williams' testimony is supported by a Walton County Environmental Health Notice dated March 8, 1999, that states, "The Walton County Building Department will not be issuing approval for power for any residence until final approval of the septic system is obtained from the Walton County Environmental Health Office." P7, the first page after Page 3 of 3, marked in the upper right hand corner as PAGE 10. At the Health Department, on April 12, 1999, Mr. Williams applied for an "Onsite Sewage Treatment and Disposal System" permit on a form bearing the following heading: STATE OF FLORIDA DEPARTMENT OF HEALTH ONSITE SEWAGE DISPOSAL SYSTEM APPLICATION FOR CONSTRUCTION PERMIT Authority; Chapter 381, FS & Chapter 10D-6, FAC P7, page 1 of 3. According to the form, he paid the $200 fee for the permit on April 29, 1999. The payment was made within a month or so after the installation of the power line. An attachment to the "Walton County Environmental Health Onsite Sewage Treatment and Disposal System Application," made out by Mr. Williams on April 12, 1999, contains the following warning: OTHER AGENCY PERMITS: As the owner or agent applying for an OSTDS permit it is my responsibility to determine if the proposed development is in compliance with the zoning requirements of Walton County. I further assume responsibility to obtain any applicable permits from other State and Local Government Agencies. P15, page 2. (emphasis supplied) (See also P7, the second page after Page 3 of 3, marked in the upper right hand corner as PAGE 11). On May 5, 1999, about three weeks after Mr. Williams submitted the construction permit application, the site where the septic tank would be installed was evaluated by an EH Specialist, an inspector. On the same day, an Onsite Sewage Treatment and Disposal System Construction Permit was issued for an "above-ground" 900-gallon septic tank. Installation With county personnel present and under county supervision, the septic tank was installed on a ridge on Mr. Williams property about 17 feet above mean sea level. Fill dirt was brought onto the site and placed on top of the tank to create a septic tank mound. No dredging of the property was done in connection with the installation. Chance Discovery After a complaint was registered with DEP about dredge and fill activity on one of the lots near Mr. Williams, Gary Woodiwiss, then an environmental specialist in the Department assigned to conduct inspections in Walton and Holmes Counties, visited the Cowford subdivision in July 2000. During the visit, Mr. Woodiwiss noticed the septic tank mound on Mr. Williams' property and that the mound, in part, consisted of fill dirt. Being of the opinion that the both the fill dirt and the septic tank system constituted "fill" and that the fill may have been deposited in jurisdictional wetlands, that is, "waters of the state," Mr. Woodiwiss consulted with DEP personnel about the status of the site and DEP jurisdiction. Ultimately, DEP determined that the site of the septic tank mound, within the flood plain of the Choctowhatchee River, was jurisdictional wetlands. The Department took action. DEP Action On November 16, 2000, Mr. Woodiwiss issued a memorandum to the DEP file with regard to "John Williams. Unauthorized Fill in Flood Plain." The memo states: Site is located next to Charles Riley who is the subject of Department action for filling jurisdictional wetlands. Williams was erroneously given a permit by Walton County health Dept. to install a septic system in 1999, which he subsequently installed. I visited the site with the administrator for the septic tanks program in Walton and she indicated that they would pay for the installation of a new system on a new lot for Mr. Williams. I recommend that the removal of the system and relocation of the inhabitants of the lot to an area outside of the immediate flood plain. P6. (emphasis supplied) Five days later, on November 21, 2002, a warning letter was generated by Mr. Woodiwiss under the signature of Bobby A. Cooley, Director of District Management for DEP. The letter advised Mr. Williams as follows: Recent Department survey data established at your property has determined that your entire lot is below the mean annual flood line of the Choctawhatchee River and is subject to dredge and fill jurisdiction of the Department. Any construction on the property including placement of a mobile home, septic tank and drainfield or other structures must first receive a dredge and fill permit from the Department. Preliminary assessment of your proposed development of the property indicates that you may not meet the public interest criteria of Chapters 403 and 373 Florida Statutes for qualifying for a permit. R5. By this letter the Department informed Mr. Williams both that he was in violation of the law by not having secured a permit for the filling of the site and warned that, on the basis of a preliminary assessment, it was not likely that he would be eligible for an after-the-fact permit. The assessment of whether the site was eligible for a permit was re-stated in writing again, but with added certainty in a Compliance Assessment Form (the Form) prepared by DEP personnel. In Section V. of the form, there appears, together with the signature of the "Section Permit Processor and a date of "11/09/2000", the following: Project is not permittable due to type of wetland system being impacted and project must not be "Contrary to the Public Interest". The project could affect the public health, safety and welfare and property of others. The project is of a permanent nature. P13. Although the permit processor entered her assessment on November 9, 2000, and other sections of the form were entered on November 1, 2000, by Mr. Woodiwiss, the Compliance Assessment Form bears a final date of February 1, 2001. The Form shows the "Event Chronology" that led to the issuance of the NOV. The chronology, consistent with the testimony at hearing, reveals the following: 25 Jul.00. Complaint inspection for fill in wetlands on adjacent lot. Found isolated fill areas in a slough and adjacent to an apparent upland area. Vegetation is 100% jurisdictional but soil is composed of alluvial deposits in ridge like configurations, one of which the respondent wished to live on. Solicited the jurisdictional team for a district assist in determining jurisdiction. 21 Aug.00. District assist. Hydrologic indicators and vegetation present in sufficient quantities to establish jurisdiction. John Tobe PhD. Requested that the mean annual flood be established on the site in order to augment his determination. October 11, 2000. District assist by Bureau of Survey and mapping and the establishment of a survey line of the 2.33 year (16.42 feet above MSL) mean annual flood elevation on the adjacent violation site. The whole site is clearly under the MAF, which extends approximately 200 meters up grade towards SR 20. The elevation of the MAF is consistent with hydrological indicators (porella pinnatta) that indicate such a flood elevation, as reported in previous studies. November 7, 2000. Met with Crystal Steele and Mike Curry of Walton County DOH to establish why Mr. Williams has a septic tank permit. They indicated that the permit was issued in error and that they would require the system to be moved. Ms. Steele stated that the County would pay for Mr. Williams to have a new system installed on another site because of the oversight. There are currently two moveable vehicles on the site, one of which is connected to the system, the other has a contained service for sewage. November 21, 2000. WLI [presumably Warning Letter Issued] November 27, 2000. Call to Mr. Williams. He wants to get money back or swap property for higher. I advised him to approach the owner Mr. Martin and make his situation known. January 22, 2000. Mr. Williams has refused to remove the fill and requests an NOV. P13, (emphasis supplied) MAF and Wetland Delineation There was considerable testimony introduced at hearing about establishment of the mean annual flood ("MAF") line for the purpose, among others, of its relationship to the elevation of the septic tank mound. The issue stemmed, no doubt, from Dr. Tobe's request that MAF be established in order to "augment his determination" with regard to DEP jurisdiction based on employment of the methodology in DEP's wetland delineation rule, see paragraph 13, above. Resolution of the issue is not necessary to augment the determination that all of lots 29 and 30 of the Cowford subdivision are located in wetlands that constitute "waters of the state." That the septic tank and the fill dirt were deposited on wetlands under the jurisdiction of DEP was clearly established by Dr. Tobe in his testimony at trial and the evidence in support of it. Petitioner concedes as much in his Proposed Final Order. Environmental Harm and Human Health Exposure Wetlands whose surface area is covered by the septic tank mound have been filled. The filling has caused environmental damage. An assessment of the damage was not offered at hearing but it appears from this record that the damage is minimal. During the time the septic tank has been on Mr. Williams' property, it has never been below the flood waters of the Choctawhatchee River and therefore has not yet caused direct hazard to human health. Corrective Action and Penalty It will be expensive to remove the septic tank; the expense will be more than the cost of installation. Petitioner fears, moreover, that it will render his property worthless. There is no evidence that Petitioner's violation of Department permitting requirements was willful. He has no history of violations previous to this one. Options to continued retention of a septic system through use of a portable wheeled waste remover or use of an upland drain field on another property are either not viable or so problematic as to be impractical. DEP Modification of its Position At the outset of the hearing, DEP announced that it no longer intended to seek civil penalties of $1,500 as it had intended when the NOV was issued. All that is sought by DEP by way of corrective action or penalty is removal of the septic tank and monetary reimbursement for the cost of the investigation of $250 (see Tr. 9, lls. 17-25, and Tr. 10, lls. 1-5.)
The Issue Is Pioneer Farms (E. T. Usher) entitled to the issuance of a permit from the State of Florida, Department of Environmental Protection which would allow the construction of a 0.033MGD dairy waste management system which includes rotational grazing of the dairy herd and the application of spray effluent derived from a solids separation chamber and an anaerobic lagoon?
Findings Of Fact Pioneer applied for necessary environmental permits to construct a 0.033 MGD dairy waste management system in Levy County, Florida. Pioneer sought permission for this construction from DEP. DEP has regulatory authority over the construction of Pioneer's proposed waste management system in accordance with Chapter 403, Florida Statutes and Chapter 62, Florida Administrative Code. Desmond owns property in Levy County, Florida. His property is adjacent to the Pioneer property where the dairy waste management system would be established. When Desmond received notice that DEP intended to grant a permit to Pioneer to construct the dairy waste management system, he petitioned in opposition to that grant. Desmond asserts that the proposed waste management system is experimental in nature and will adversely affect surface and subsurface water quality, that use of spray irrigation is not appropriate for the area, that the property upon which the project would be located is prone to flooding and has flooded in the past, that the applicant has failed to delineate the landward extent of wetlands and surface waters, that the supporting engineering studies do not contain historical data on flood duration periods, that there is no record of plant species surveyed, that the property in question ponds during the rainy seasons and that the ponding lasts longer than seven days, that the property is saturated during the rainy season and the saturation is of a duration greater than 20 days, that the subsurface water level during the rainy season is less than 18 inches from the surface, that the percolation rate of the properties soils are equal to or greater than 20 inches per hour or 40 feet per 24 hours, that the engineering report does not contain sufficient data for supporting adequate modeling of manure and nitrate transport, that the Floridan Aquifer is highly vulnerable to contaminants in the area of the project, and that pollution will certainly occur with the advent of the project, that facts indicate that ammonia and nitrate deposits will be washed through the soils before sufficient retardation and denitrification can occur, that the holding pond design fails to meet the 25-year, 24-hour storm event, that there are records of storms greater than the 25-year storm as frequent as 13 times in the last 94 years, that the piezometric head in the northwest portion of the property is unknown, and that as a consequence the subsurface directional water flow has not been determined. Desmond failed to prove these facts. By contrast, Pioneer and DEP have proven that the necessary reasonable assurances have been presented to allow the construction project to be permitted subject to general and specific conditions set forth in the notice of intent to issue the permit. The dairy waste management system is designed to accommodate a herd of 978 lactating cows on 374 acres of rotationally grazed pastures and 200 dry cows and 224 heifers pastured on a 124 acre effluent spray field and 112 acres of rotationally grazed pastures. The calves that are part of this herd will be grazed off-site. The waste management system consists of a concrete solids separation chamber; a 54,000 cubic foot anerrobic lagoon, and the 124-acre effluent spray field. Effluent, by way of solids in the barn area where the separation chamber is found, are transported by gravity to a pond referred to as the anerobic lagoon. That effluent is then sprayed on certain pasture land. While there are areas within the project site which are subject to ponding, the herd will not be allowed to access the ponded areas. The ponded areas are not sufficiently wide spread to compromise the project design. Waste solids associated with the herd's grazing activities will be applied to a pine forest adjacent to the site. The waste management system is designed to collect and treat wastewater that is generated at the milking barn and contaminated storm-water runoff that is processed through the solids separation chamber and that enter the lagoon. The lagoon/pond is designed to respond to a storm event that is greater than the 25 year/24 hour storm event. Well sites will be located on the property to monitor the effects of solid wastes from the herd grazing on pasture land and the effects of spray effluent on the pasture land as these sources influence groundwater quality, having in mind compliance with Chapter 62-522, Florida Administrative Code. The engineering design is set forth in Usher Exhibit No. 2, the report in support of the permit application. Usher Exhibits Nos. 3 and 5, are responses to the DEP requests for additional information about the permit application. Adequate information has been provided concerning the soils in the area, their structure and drainage potential. Emphasis has been placed on the excavation of the lagoon/pond and the existing soil structure in that area and any need to over-excavate and fill. Any necessary fill will be constituted of sand or limestone with sufficient compaction to meet design specifications for the lagoon/pond. Appropriate attention has been paid to grade elevations of the primary structures associated with the project, the side slopes of embankments against the barn floor, concrete cattle lanes, solids separator and entrance ramp to the storage pond and the storage pond itself, as these engineering features respond to drainage issues. Appropriate attention has been paid to hydro-geology of the region in which this project is located by specific information obtained through soil borings made at on-site monitoring wells as this information anticipates percolation rates. Studies at the project site reveal that the information from potentiometric maps of the Floridan Aquifer are incorrect concerning the direction of groundwater flow. The more specific studies done by the applicant show that the flow is in a northeastern direction. In determining the direction of flow of groundwater, 13 wells were drilled. While the concept in this project of using frequent and intensive grazing rotations in the pasture land, referred to as paddock areas, is a new concept in Florida, the expected performance by the herd, the pasture land and the overall waste management system in this project are based upon reasonable assumptions and do not lead to the results that violate the DEP statutes and rules for the protection of surface water and groundwater. This system is one in which the lactating cows within the herd would spend 85 percent of their time in the paddock areas/pasture land. There are four separate grazing areas with individual irrigation pivots. There is a fifth pivot not involved with the lactating herd. This pivot is associated with the spray effluent process from the lagoon. The lactating herd will spend 15 percent of their time in the barn area, known as the milk/feed barn. That barn will be flushed after each milking with the wastewater traveling into the storage lagoon and eventually applied to the pasture land associated with the fifth center pivot. The spray effluent will be applied to parts of that paddock area served by the fifth pivot only at times when the cows are not there. Dry cows and heifers will be located in the field area served by the fifth pivot, and an area just north of the fifth pivot area will also serve as pasture land for the non-lactating cows. In the fifth pivot area the non- lactating cows will rotate through paddock areas within that pasture. Likewise the lactating herds will rotate through the other four pivot areas. The rotation in these pastures is a fourteen day rotation. One day is spent in each paddock. Within each individual pivot of pivots 1 through 4, one herd of cows will be located under pivot 1, another herd under pivot 2 and a third under pivots 3 and 4. Each day the lactating herds will spend about 20 hours in the pasture land under the pivots and roughly 4 hours walking to and from the milk/feed barn and being milked. More specifically, the manure deposited in the milk barn will be flushed from floors to a gutter collector. From there the waste goes by a gravity flow from the gutter collector to a concrete lined ditch and into a solids separator trap. The solids separator is designed to remove all of the sand and the majority of the course solids associated with waste. This assists in the reduction of solids accumulation in the storage pond. The solids that are collected at the separator will undergo dewatering and then will be transported and spread on adjacent land owned by Pioneer. The amount of solids that enter the lagoon/pond are expected to be applied to the pasture land under pivot number 5. Nonetheless, on a quarterly basis, solids accumulations are noted when the lagoon/storage pond is pumped. If there is a significant accumulation, then solids will be removed from the pond. As well as accommodating the 25 year 24 hour design storm, the storage lagoon/pond is designed to hold 10 days of dairy operation wastewater and direct rain fall simultaneously. As extra capacity, the lagoon/pond has one foot of free board for safety in the operation. The effect of the one foot free board is to create a condition where it would require approximately a 1,000 year storm event to over-top the pond. Approximately two and a half hours of effluent irrigation per week is necessary to accommodate the wastewater from the milk barn. The irrigation system for effluent is sensitive to the level of water in the lagoon/pond. The pasture under the fifth pivot also uses fresh water irrigation separately. Attention will be paid to the maintenance of grass in the pasture areas available to the dairy herd. The health of the grass is supported by freshwater irrigation, effluent spray irrigation and direct waste deposits from the herd. The applicant has given the necessary assurances concerning nutrient management of nitrogen and phosphorus. As part of stormwater management system, the herd will not be allowed into areas of the property which are within the 100 year flood plain. There are five groundwater monitoring wells, the second, third and fifth of which are to determine compliance with DEP water quality standards. Under wet conditions where there is a high incidence of rainfall, pivot number 5 may be in operation; however, without intention to operate that pivot in a manner which will cause spray effluent to be applied to ponded areas, thereby producing runoff on the surface. The soils in the area have high permeability rates in the range of 6- 20 inches per hour. Thus, waste water easily infiltrates the soil at acceptable rates unless there is an extremely high water table, which is not anticipated. It is especially unlikely that a high water table of long duration will be experienced. Dr. Dale Bottcher is an expert in agricultural engineering and dairy design. He established that the project as proposed by Pioneer will provide the necessary reasonable assurances to the DEP that the activities associated with the dairy will not contaminate surface waters or exceed standards for the protection of groundwater. To arrive at those assurances, the applicant has assessed the location of the herd densities in the dairy operation, the soil uptakes related to nutrient balance, with specific emphasis on the assurance that there will not be excess nitrogen available that could migrate from the project site to adjacent property and contaminate that adjacent property by exceeding DEP standards. As established by Dr. Bottcher the animal waste produced that is immediately dropped on the pasture land and the spray effluent from the lagoon/pond is used up by the grass on the pasture land. In fact, there is not enough animal waste generated to produce the grasses. It is anticipated the animal waste will produce 50-70 percent of the necessary nutrients for the grasses. Therefore, a supplemental fertilization program is to be put in place for the grass production. To make certain that the grass is uptaking the nutrients adequately the monitoring wells will be installed. The monitoring wells are strategically located to insure groundwater protection. Under pivot 5, the spray effluent pasture, in combination between the spray effluent and direct deposits by the animals, 250 pounds of nitrogen will be produced a year of the needed 700 pounds. As Dr. Bottcher established there are areas on the property that are subject to periodic flooding for no more than a few weeks per year. During those times that land will not be available to the herd in its grazing activities. Again, those ponded areas will not receive spray effluent under pivot 5. Dr. Bottcher gave the opinion, within a reasonable degree of engineering certainty, that the dairy waste management system would abate and prevent water pollution to the extent required by applicable statutes and rules and that the activities in the project would not allow for discharge or cause water pollution in violation of those applicable DEP rules. His opinion is accepted. Dr. Bottcher established that the phosphorus produced on the site is bound up in the soils and the groundwater is further protected in some places by an underlying clay layer. Mark Bardolph, DEP Environmental Manager within the Industrial Wastewater Section is an expert in dairy design. His opinion that no problems will be experienced with ponding of water is accepted. The opinion by Mr. Bardolph that this design is a better alternative to traditional diary designs is accepted. John Davis is a Professional Geologist. He is employed by DEP. He is an expert in hydro-geology. His opinion as a hydro-geologist that reasonable assurances have been given that the proposed dairy waste management system will comply with applicable laws and rules is accepted. David Bolam is an expert in environmental engineering who works for DEP. He does not believe that there is a problem with ponding of water on the site that would interfere with the operation of the dairy waste management system. That opinion is accepted. His professional opinion that reasonable assurances have been given that the construction and operation of the waste management system would comply with the applicable DEP laws and rules is accepted.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That a final order be entered which grants Pioneer permission to construct the 0.033 MGD dairy waste management system as proposed by DEP in its draft permit with general and specipic conditions. DONE and ENTERED this 1st day of May, 1995, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of May, 1995. APPENDIX The following discussion is given concerning the proposed findings of fact by the parties: Petitioner's Facts: Desmond: Paragraph 1 is contrary to facts found. Paragraph 2 is rejected in its suggestion that Pioneer has not adequately met applicable DEP rules. Paragraph 3 is accepted in its suggestion that the Floridan Aquifer is vulnerable to contamination but is rejected in the suggestion that the activities by Pioneer will cause such contamination. Paragraph 4 is contrary to facts found. Pioneer and DEP: Paragraph 1 is not necessary to the resolution of dispute. Paragrap 2 through 4 are subordinate to facts found. Paragraphs 5 and 6 are accepted to the extent that they correspond to the findings in the recommended order related to testimony from witnesses for Pioneer and DEP and the suggestion that the allegations by Desmond have not been proven. COPIES FURNISHED: Noel K. Desmond Post Office Box 1771 Chiefland, FL 32626-1771 Marty Smith, Esquire Post Office Box 3310 Ocala, FL 34478-3310 Thomas I. Mayton, Esquire Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Kenneth Plante, General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
Findings Of Fact This application is to provide irrigation necessary to develop 11,520 acres zoned agricultural into improved grazing land. The land to be so developed is Sections 1, 2, 3, 10, 11, 12, 13, 14, 15, 23, 24, & 25, Township 47 South, Range 34 East, a portion of Sections 4, 9, 16, 21, 22, 26, 27, 35 & 36, Township 47 South, Range 34 East, a portion of Section 1, Township 48 South, Range 34 East, and a portion of Section 6, Township 48 South, Range 35, East. It is bounded on the west and southwest by the L-3 canal, and on the east by the Rotenberger tract which has been purchased by the State of Florida as a Wildlife Management Area. Details of the proposed water management system are contained in Exhibit 4, C&SFCD Staff Report. The tract here involved is basically flat with the elevation going from +14 feet in the northwest portion to +13 feet in the southeast portion. Although the Addendum to the Staff Report (Exhibit 5) states that the application calls for the conversion of several thousand acres of original sawgrass Everglades into improved pasture, expert witnesses testified without contradiction that the tract involved is more on the edge of the Everglades and only a small portion in the southeastern part thereof is truly swamp and marsh land typical of the Everglades. The western portion of the area is comprised of sandy soil rather than the muck characteristic of Everglades land. Although the Intervenors contended that the development of the tract would be environmentally counterproductive, no evidence was submitted to support this position. Conversion of the land to pasture may prove more useful to wildlife than leaving it in its present state which primarily supports deer. As improved pasture the land would still support a substantial deer population. Wading birds in particular will benefit if the wild land is converted to pasture. The annual water allocation recommended by the C&SFCD staff and concurred in by applicant, should be 15,360 acre-feet (16.0 inches/acre/year) which is the basin yield for the area. Therefore the irrigation use should have no adverse impact on the water resource or affect other users.
The Issue The issue to be determined in this case is whether proposed Florida Administrative Code Rule 62-4.161 of the Department of Environmental Protection (“DEP”) is an invalid exercise of delegated legislative authority.
Findings Of Fact The Parties DEP is the state agency granted regulatory and enforcement powers in chapter 403, Florida Statutes, to control air and water pollution. Associated Industries of Florida, Inc., is a non-profit corporation. It is the largest association of business, trade, commercial, and professional organizations, partnerships, and proprietorships in Florida. Florida Farm Bureau Federation is a not-for-profit agricultural organization. It is the State’s largest general- interest agricultural association with about 145,000 members. Florida Retail Federation, Inc., is a non-profit corporation with over 4,000 members, which are retail companies operating in Florida. The Florida Petroleum Marketers and Convenience Store Association is a division of the Federation. Florida Trucking Association, Inc., is a non-profit corporation whose members include about 26,000 trucking companies. National Federation of Independent Business, Inc., is the Nation’s leading small business association. It has about 10,500 members operating in Florida. A principal purpose of each Petitioner is to represent the interests of its members before elected and appointed officials of state government. For each Petitioner, a substantial number of its members are owners and operators of installations or otherwise engaged in activities capable of having “reportable releases” as that term is defined in the proposed rule. The Proposed Rule Proposed rule 62-4.161, entitled “Public Notice of Pollution,” is lengthy and does not need to be set out here in its entirety to understand the objections raised by Petitioners or the defenses advanced by DEP. In summary, the proposed rule requires a person who has a reportable release of a regulated substance to inform DEP, the general public (via television and newspaper), and the local government within 24 hours after the release occurs. Within 48 hours of the release, additional information must be provided to the same entities. If the release goes beyond the property of the owner/operator, the adjacent property owner must be notified within 24 hours, as well as DEP and the local government. The proposed rule describes the information that must be included in the notices and the penalty for non-compliance with the rule’s requirements. Rulemaking Authority The proposed rule identifies seven statutes as authority for the rule. Section 377.22(2). This provision grants authority to DEP to adopt rules to implement and enforce the provisions of chapter 377, which regulates oil and gas resources. Section 403.061(7). This provision grants authority to DEP to adopt rules to implement the provisions of the Florida Air and Water Pollution Control Act, which is a part of chapter 403. Section 403.061(8). This provision grants authority to DEP to issue orders “necessary to effectuate the control of air and water pollution.” Section 403.061(28). This provision authorizes DEP to “Perform any other act necessary to control and prohibit air and water pollution.” Section 403.062. This provision grants DEP general control over surface and ground waters under the jurisdiction of the state insofar as their pollution may affect public health or the public interest. Section 403.855(1). This provision authorizes DEP to adopt emergency rules to protect the public health when DEP has information that a contaminant may present an imminent hazard or substantial danger to public or private water supplies. Section 403.861(9). This provision authorizes DEP to adopt rules to implement the provisions of the Florida Safe Drinking Water Act, which is a part of chapter 403. Law Implemented The proposed rule identifies eight statutes as the law implemented by the rule. Two of these statutes, sections 403.62 and 403.861(9), have already been described above. The other six statutes are described below. Section 377.21. This provision, in pertinent part, authorizes DEP to collect data, make inspections, and “[p]rovide for the keeping of records and making of reports” related to oil, gas, and other petroleum products. Section 403.061(16). This provision requires DEP to encourage voluntary cooperation to achieve the purposes of the Florida Air and Water Pollution Control Act. Section 403.061(17). This provision requires DEP to encourage local governments to handle pollution problems on a cooperative basis. Section 403.061(18). This provision requires DEP to conduct investigations and research related to pollution and its causes, prevention, abatement, and control. Section 403.061(28). This provision empowers DEP to perform any act necessary to control and prohibit air and water pollution. 403.855(3). This provision authorizes DEP to establish a program designed to prevent contamination or to minimize the danger of contamination to potable water supplies. Within chapters 377 and 403, the only provisions that specifically address reporting of spills or contamination require that the report be made to DEP only. For example, section 377.371(2), Florida Statutes, requires that a spill or leak of oil, gas, other petroleum product, or waste material be reported to the Division of Resource Management within DEP. Upon review of the proposed rule by the staff of the Joint Administrative Procedures Committee (“JAPC”), DEP was asked why the proposed rule was not an unlawful modification or enlargement of section 377.371(2), which only requires notice to DEP in the event of a spill or leak. Section 376.30702, entitled “Contamination notification,” requires notice only to DEP for several scenarios where contamination is discovered: The Legislature finds and declares that when contamination is discovered by any person as a result of site rehabilitation activities [pursuant to statutes dealing with dry- cleaning, petroleum storage, brownfields, and other contamination], it is in the public’s best interest that potentially affected persons be notified of the existence of such contamination. Therefore, persons discovering such contamination shall notify the department . . . and the department shall be responsible for notifying the general public. § 376.30702(1), Fla. Stat. There are two other statutes that require notice to DEP for actions which are somewhat analogous to a release of pollution. Section 403.862(1)(b) provides that county health departments must notify DEP of potential violations of standards at any public water system. Section 403.93345(5) requires a vessel owner or operator to notify DEP within 24 hours if the vessel has struck or damaged a coral reef. For comparison, section 376.707(11) requires an applicant for a DEP solid waste facility permit to notify the local government and the general public by newspaper that it has applied for the permit. This statute shows the Legislature has required broader notice when it wanted. Lower Cost Regulatory Alternative DEP prepared a Statement of Estimated Regulatory Costs (“SERC”) for the proposed rule and published notice of its availability as required by section 120.541. In the SERC, it is estimated that the total increased regulatory costs are $182,000 per year. On October 19, 2016, 27 regulated entities, including Petitioners, submitted a Lower Cost Regulatory Alternative (“LCRA”) to DEP. Florida Electric Power Coordinating Group, Inc., also submitted a LCRA. Both LCRAs proposed that DEP be responsible for notice to the general public, local governments and adjacent property owners, which would result in lower costs to the regulated community. In the SERC made available to the public in November 2016, DEP stated that it rejected the LCRA because the party who caused an unauthorized release of contaminants is the more appropriate party to incur the reporting costs imposed by the proposed rule, and (2) the party who releases contaminants is in a better position to know details about the substances that were released which must be included in the report.
The Issue The issues in this case are the validity of Florida Administrative Code Rules 18-14.003(4) and 18-21.004(1)(g)-(h) and (7)(i),1 and an alleged unadopted rule prohibiting fish cleaning stations over sovereign submerged land (SSL); and Petitioner's claim to an award of attorney's fees and costs under Section 120.595(3)-(4), Florida Statutes.2
Findings Of Fact Petitioner owns land on Lake Talquin. In 2003, he obtained a joint permit and SSL consent of use to build a seawall, a boat dock and a covered but not walled boathouse there. In 2005 he obtained another joint permit and SSL consent of use to build another boat dock and another covered boathouse at another location on his property there. Both joint permit/authorizations had general and special conditions. Both had a general condition that limited the permit/authorization to "the specific processes and operations applied for and indicated in the approved drawings or exhibits" and required Petitioner to operate and maintain the facilities "to achieve compliance with the conditions of this permit." Both have a specific condition prohibiting "fish cleaning stations . . . on any structure that is located over the water." The 2003 joint permit/authorization has a specific condition prohibiting any walls and doors on the boathouse and another specific condition prohibiting the installation of water and electric lines. The 2005 joint permit/authorization omits those specific conditions. DEP has issued a Notice of Violation (NOV) against Petitioner for violating the 2005 joint permit/authorization's specific condition prohibiting water and electric lines, for exceeding the dimensions of the boathouse authorized by the joint permit/authorization, for adding a second story structure of livable space (with a kitchen, bathroom, shower, furnished seating area, flat-panel television, and window air conditioning unit) above the boathouse in the space between the roof rafters and the top of the authorized first story structure. DEP has not issued an NOV as to the 2003 joint permit/authorization although it also has electric and water lines. DEP has not issued an NOV as to either joint permit/authorization for having a fish cleaning station over the water. An inspector told Petitioner that the fish cleaning station on the newer facility was a violation of the 2005 permit but that it was not an issue anymore after a change in the law. Petitioner attempted but failed to prove that DEP or BOT prohibits fish cleaning stations over water as a general rule. It is not clear what change in the law has occurred with respect to fish cleaning stations. In any event, the evidence was that these facilities are prohibited when appropriate for protection of water quality, not as a general rule. Rule 18-14.003 states in pertinent part: It shall be a violation of this rule for any person or the agent of any person to knowingly refuse to comply with any provision of Chapter 253, F.S., willfully violate any provision of Chapter 253, F.S., or to willfully damage state land (the ownership or boundaries of which have been established by the state) or products thereof, by doing any of the following: * * * (4) Maintain, place or build permanent or temporary structures, including, but not limited to, additions to existing structures; all structures whose use is not water- dependent; sanitary septic systems; fences, docks and pilings; houses; oil rigs; and utility installations on or over state land without consent or authority from the Board or Department. Petitioner's rule challenge focuses on the part of the rule specifying: "structures whose use is not water-dependent; sanitary septic systems; . . . houses; . . . and utility installations on or over state land without consent or authority from the Board or Department." Rule 18-21.004 states in pertinent part: The following management policies, standards, and criteria shall be used in determining whether to approve, approve with conditions or modifications, or deny all requests for activities on sovereignty submerged lands. General Proprietary. * * * Activities on sovereignty lands shall be limited to water dependent activities only unless the board determines that it is in the public interest to allow an exception as determined by a case by case evaluation. Public projects which are primarily intended to provide access to and use of the waterfront may be permitted to contain minor uses which are not water dependent if: Located in areas along seawalls or other nonnatural shorelines; Located outside of aquatic preserves or class II waters; and The nonwater dependent uses are incidental to the basic purpose of the project, and constitute only minor nearshore encroachments on sovereign lands. Stilt house, boathouses with living quarters, or other such residential structures shall be prohibited on sovereignty lands. * * * General Conditions for Authorizations. All authorizations granted by rule or in writing under Rule 18-21.005, F.A.C., except those for aquaculture activities and geophysical testing, shall be subject to the general conditions as set forth in paragraphs through (i) below. The general conditions shall be part of all authorizations under this chapter, shall be binding upon the grantee, and shall be enforceable under Chapter 253 or 258, Part II, F.S. * * * (i) Structures or activities shall be constructed, operated, and maintained solely for water dependent purposes, or for non- water dependent activities authorized under paragraph 18-21.004(1)(g), F.A.C., or any other applicable law. Petitioner's rule challenge focuses on the parts of this rule prohibiting non-water dependent uses over SSLs, unless in the public interest as determined by a case-by-case evaluation and prohibiting stilt houses, boathouses with living quarters, and other residential structures. Petitioner contends that these rules: exceed their legislative authority; enlarge, modify, or contravene the laws they implement; are vague, lack adequate standards for BOT decisions, and vest unbridled discretion in the BOT (particularly by use of the terms "structure whose use is not water dependent," "utility installations," and "public interest by a case by case evaluation"); and are arbitrary and capricious (for essentially the same reasons they allegedly are vague). See § 120.52(8)(b)- (e), Fla. Stat. The term "structure whose use is not water dependent" is not defined by rule, but Rule 18-21.003(68) states: "'Water dependent activity' means an activity which can only be conducted on, in, over, or adjacent to water areas because the activity requires direct access to the water body or sovereign submerged lands for transportation, recreation, energy production or transmission, or source of water, and where the use of the water or sovereign submerged lands is an integral part of the activity." DEP makes determinations of water-dependency on a case- by-case review of the facts and circumstances presented in each case. DEP does not have a list of factors used in making this determination in any rule, non-rule policy, or other document. According to the evidence, DEP considers docks and boathouses to be water-dependent structures. A roof over a dock may be considered water-dependent depending on the facts and circumstances and whether the roof is an integral and required part of the water-dependent activity. The same is true with respect to benches that are part of a dock structure. Boating- related paraphernalia such as boat paddles, life vests, and similar items can be stored in empty rafters under the roof of a permitted docking facility, but not rakes and shovels cannot, because boating-related paraphernalia are associated with transportation across water, while rakes and shovels are not. Cans of gasoline are related to transportation on water, but their storage on the rafters of a boathouse is not necessarily a water-dependent activity because this is not considered to be safe. Depending on the circumstances, DEP has authorized the installation of electrical and water lines and sewage pump-out systems on boat docking facilities. The installation of electrical and water lines and sewage pump-out systems can be an integral or required part of a public or private commercial marina or docking facility, but generally not a noncommercial dock. DEP once authorized the use of golf carts in connection with a long private pier. The evidence proved that reasonable people of common intelligence can disagree on the interpretation and application of the "not water-dependent" definition. Even experienced consultants are required to check with DEP to be sure they are interpreting and applying the definition correctly. DEP employees sometimes are required to check with DEP headquarters in Tallahassee to be sure they are interpreting and applying the definition correctly. But the evidence did not prove that the definition is vague, lacks adequate standards for BOT decisions, or vests unbridled discretion in the BOT. The term "utility installations" is reasonably clear and is generally understood to mean the installation of water, sewer, and electricity. The evidence did not prove that the term is vague, lacks adequate standards for BOT decisions, or vests unbridled discretion in the BOT. The evidence did not prove that the term "public interest by a case by case evaluation" is vague, lacks adequate standards for BOT decisions, or vests unbridled discretion in the BOT. The evidence was that DEP interprets the definition in the sentence that immediately follows in Rule 18-21.004(1)(g) to limit the "public interest" exception to certain "public projects" (which BOT then broadly interprets to include privately-owned marinas that are open to the public). The evidence did not prove that the challenged parts of Rules 18-14.003 and 18-21.004 are unsupported by logic or the necessary facts, or were adopted without thought or reason or are irrational.
Findings Of Fact The Department of Agriculture and Consumer Services (Department) is the state agency charged with responsibility for administration of the Florida Food Act, Chapter 500, Florida Statutes. Guy Ratcliff (Respondent) is the owner and operator of the Scratch & Dent Food Mart (Food Mart) located at 702 East Baker Street, Plant City, Florida. Inspections were conducted by a representative of the Department on July 12 and 26, September 20, October 21, and November 23, 1993. On all five inspections, the inspector assigned an overall evaluation rating of "poor" to the store. During the inspection performed on July 12, 1993, dust, bugs, spiders and rodent droppings were present on food shelves. Moths and beetle infestation were present in dry cereals and in dry cat and dog food. On orders of the Department, the Respondent removed the contaminated food from sale. During the inspection performed on July 26, 1993, various grain products were found to be infested with beetles and moths. Some canned foods were rusted or swollen. Beetles, moths, spiders, rodent droppings and "nesting materials" were found on food display shelving. On orders of the Department, the Respondent removed the contaminated food from sale. By letter dated August 19, 1993, the Department advised the Respondent that, "[y]our food establishment was inspected and found sanitarily "poor"." The letter states that the Department was reviewing the matter to determine if administrative action was warranted and notes that "[f]ailure to comply with sanitation provisions of Chapter 500, Florida Statutes, and Chapter 5E-6, Florida Administrative Code, can result in an administrative fine and/or suspension of your Food Permit." By letter of August 23, 1993, the Department advised the Respondent that, "[y]our food establishment received a "poor" sanitation rating on August 12, 1993." The evidence fails to establish that an inspection and sanitation rating were performed on August 12, 1993. The letter further states that the establishment would be reinspected "in the near future" and that "[f]ailure to correct the deficiencies may result in a continued poor rating "and possible action by the department to safeguard the public health." During the inspection performed on September 20, 1993, roach and rodent droppings and swollen and leaking canned tomato and fruit products were present on food display shelves. On orders of the Department, the Respondent removed the contaminated food from sale. During the inspection performed on October 21, 1993, swollen and leaking canned tomato products and roach and rodent droppings were present on food display shelves. On orders of the Department, the Respondent removed the contaminated food from sale. During the inspection performed on November 23, 1993, live beetles and moths were present in dry cat and dog food. Live beetles were present in dry sauce mixes. Roach and rodent droppings were present in the dry cereal, dry pet food, baby food and other sections of the store. On orders of the Department, the Respondent removed the contaminated food from sale. By letter dated November 30, 1993, the Department advised the Respondent that, "[y]our food establishment was inspected and found sanitarily "poor"." The letter states that the Department was reviewing the matter to determine if administrative action was warranted and notes that "[f]ailure to comply with sanitation provisions of Chapter 500, Florida Statutes, and Chapter 5E-6, Florida Administrative Code, can result in an administrative fine and/or suspension of your Food Permit." Based on the deficiencies noted herein as determined during the inspections, the Department filed the Administrative Complaint at issue in this proceeding. In response to the allegations of the complaint, the Respondent acknowledged that problems had been found by the inspector. He stated that a bad shipment of food had resulted in contamination of the warehouse and store by pests and rodents. The Respondent asserts that continuing efforts are made to clean the store and place it in more sanitary condition. According to the Department's inspector, on the March 30, 1994 evaluation of the facility, no violations were noted and a sanitation rating of fair was assigned.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Agriculture and Consumer Services enter a Final Order imposing a fine of $5,000 against the Respondent. DONE and RECOMMENDED this 20th day of July, 1994 in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 20th day of July, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-0695 To comply with the requirements of Section 120.59(2), Florida Statutes, the following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order. Respondent The Respondent did not file a proposed recommended order. COPIES FURNISHED: Honorable Bob Crawford Commissioner of Agriculture The Capitol , PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol , PL-10 Tallahassee, Florida 32399-0810 Linton B. Eason Qualified Representative Department of Agriculture and Consumer Services Mayo Building Room 515 Tallahassee, Florida 32399-0800 Guy Ratcliff, President Scratch & Dent Food Mart, Inc. 702 East Baker Street Plant City, Florida 33566
The Issue Whether Petitioner's application for a septic tank permit application should be granted?
Findings Of Fact On July 29, 1987, Petitioner applied for a septic tank permit for a proposed individual sewage disposal system to serve a single family residence on Lot 40, Block P, Killearn Lakes Unit I (Unit 1), in Leon County, Florida. A septic tank system consists of a tank and a drainfield which is wholly or partly underground. The decision of whether to grant a septic tank system permit is greatly influenced by the elevation of the wet season water table in the area where the septic tank system will be located. Under normal circumstances, the elevation of the wet season water table can be determined by taking a boring of the ground in question using an auger. If water is found at the time the boring is conducted, that is an indication of where the water table is located. If no water is found, the elevation of the wet season water table can be determined by examining the soil removed from the ground for signs of mottling. Mottling is the discoloration of the soil caused by the interaction of water with the minerals in the soil. The process of mottling takes place over hundreds of years. Therefore, a rapid change in conditions may cause the elevation of the wet season water table to be different than what would be indicated by mottling. Because of the development of Unit I and the drainage method used in Unit I (sheetflow), the elevation of the wet season water table in Unit I is estimated to be between 12 and 20 inches higher than what is indicated by mottling. On July 7, 1987, a boring was taken on an indeterminate area on Lot 40, by Certified Testing, Inc., a private engineering firm. The evaluation of the boring resulted in mottling being present at a depth of 60 inches. On August 3, 1987, Ms. Teresa A. Hegg, an Environmental Health Specialist with HRS, took two borings on Lot 40. The first boring was taken in an area other than where the septic tank system's drainfield would be located. This boring resulted in mottling being present at a depth of 45 inches. The second boring was taken in the area where the septic tank system's drainfield would be located. This boring resulted in mottling being present at a depth of 22 inches. Based on the boring taken at the proposed site for the septic tank system, showing mottling at 22 inches, and the estimate that the wet season water table in Unit I is from 12 to 20 inches higher than mottling would indicate, the estimated wet season water table for Lot 40 is between 2 to 10 inches below the ground surface. Unit I has a history of septic tank system failures. Unit I was platted prior to January 1, 1972. There exists a very high probability that any septic tank system, even a mound system, installed in Lot P-40 will fail.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent issue a final order denying Petitioner's application for a septic tank permit. DONE and ENTERED this 28th day of July, 1988, in Tallahassee, Florida. JOSE A. DIEZ-ARGUELLES 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 28th day of July, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4085 The Respondent has submitted proposed findings of fact which are addressed below. Paragraph numbers in the Recommended Order are referred to as "RO ." The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection First phrase accepted. Remainder of paragraph supported by competent evidence but unnecessary to the decision reached. First two sentences accepted. Third sentence supported by competent evidence but unnecessary to the decision reached. Accepted. Accepted. 5,6,7,8,9,10 Supported by competent evidence but unnecessary to the decision reached. Accepted. Accepted. 13,14 Supported by competent evidence but unnecessary to the decision reached. 15. First sentence accepted. Second sentence rejected; the wet season water table on Lot P-40 is from 2-10 inches below grade. Third sentence accepted. COPIES FURNISHED: Salvatore A. Carpino, Jr., Esquire One Urban Centre, Suite 750 4830 West Kennedy Boulevard Tampa, Florida 33609 John R. Perry, Esquire Assistant District II Legal Counsel Department of Health and Rehabilitative Services 2639 North Monore Street Suite 200-A Tallahassee, Florida 32303 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
