The Issue The issues in this case are whether penalties should be imposed and investigative costs and expenses assessed against Respondent for water supply system violations; and, if so, the amount of the penalties and assessments.
Findings Of Fact Respondent, Premier Construction Group, Inc., owns and operates a water treatment plant and associated piping in a commercial building it owns and leases at 2315 Highway 41 North in Inverness. The water treatment plant consists of a 500- gallon tank that holds groundwater pumped from a well. The water in the tank is treated with chlorine and distributed throughout the building for potable water use. The water system serves 25 or more people daily for at least 60 days a year and serves the same people for over six months a year. Respondent owned and operated the water system for 18 and a half years with no violations. Respondent hired a licensed water treatment plant operator to monitor and ensure compliance with applicable DEP rules. In August 2009, Respondent’s licensed operator increased his price substantially. Rick Suggs, as Respondent’s owner and president, disputed the increase and asked the licensed operator to reconsider. Family obligations then required Mr. Suggs to travel to South Carolina for an extended period of time, and Respondent did not attend to the matter further. By the end of August 2009, Respondent’s licensed operator notified DEP that he would no longer be servicing Respondent’s water system as of the end of the month. On August 24, 2009, DEP mailed Respondent a letter relaying this information and putting Respondent on notice that a new licensed operator would have to be hired for September. Notwithstanding Respondent’s communications with its licensed operator and DEP in August, Respondent did not hire a new licensed operator. Mr. Suggs testified that Respondent did not know its licensed operator actually quit until later in September. When this was brought to Mr. Suggs’ attention, he instructed his office manager to hire a replacement. Respondent thought the matter was resolved, but the supposed replacement did not proceed with the work. While Respondent was without a licensed operator, the residual chlorine in the system dropped to zero when tested by DEP on September 17, 24, and 30 and on October 7 and 13, 2009. As a result, the water system did not comply with disinfection requirements during September and October 2009. Respondent did not notify DEP of its failure to comply with disinfection requirements in September and October 2009. No monthly operation reports were submitted to DEP for Respondent’s water system for September or October 2009. No bacteriological samples were collected from Respondent’s water system for the months of September and October 2009. Respondent did not notify DEP of its failure to collect bacteriological samples in September and October 2009. While without a licensed operator, Respondent did not provide public notification of its failure to collect bacteriological samples in September and October 2009. Well into October 2009, Respondent became aware that the supposed replacement licensed operator was not doing work for Respondent. Mr. Suggs hired a replacement licensed operator named Mike Watson, who began servicing Respondent’s water system on November 17, 2009. Public notification of Respondent’s failure to collect bacteriological samples in September and October 2009 was given on November 25, 2009. On December 11, 2009, Respondent submitted a completed DEP Form 62-555.900(22), Certification of Delivery of Public Notice, as to its failure to notify the public of its failure to collect bacteriological samples in September and October 2009. By not having a licensed operator in September and October 2009, Respondent saved $332. By not having bacteriological samples collected and tested in September and October 2009, Respondent saved $60. There was evidence that DEP spent approximately $678 investigating and enforcing the violations. More may have been spent, but no evidence of any additional costs or expenses was presented. There was no evidence of any other water treatment violations by Respondent after October 2009. Although there was a potential that the violations could have posed a health threat, there was no evidence that the public’s health actually was threatened by Respondent’s violations. The water system was tested on November 18, 2009, and did not have any coliform bacteria. The NOV includes corrective actions (essentially coming into and staying in compliance), which Respondent already has taken. The NOV requests that penalties be paid within 30 days by cashier’s check or money order made payable to the “State of Florida Department of Environmental Protection” and including the notations OGC File No. 09-3847-09-PW and “Ecosystem Management and Restoration Trust Fund” to be mailed to DEP’s Southwest District office at 13051 North Telecom Parkway, Temple Terrace, Florida 33637. Respondent believes the penalties sought by DEP in this case are excessive. Mr. Suggs cited Respondent’s clean record for 18 and a half years, his personal and financial difficulties during the two months when the violations occurred, and his responsiveness in correcting violations beginning in November 2009. Mr. Suggs testified that, during mediation, DEP informed him that the penalties could have totaled $115,000 if an unexplained “matrix” had been used to calculate the penalties. Mr. Suggs thought $115,000 was “ludicrous.” Mr. Suggs also requests that the lesser penalties sought in the NOV be further reduced, especially considering that Respondent paid a lawyer $2,800 for representation earlier in the proceeding, until the lawyer withdrew from the case.
Findings Of Fact Respondent is a licensed cosmetologist in the State of Florida. His license number is CL-0114757. At times relevant to the inquiry, Respondent was the owner and/or operator of a cosmetology salon named La'Moods. At times relevant, the license number for La'Moods was CE-0058354. At times relevant that salon was located in Jacksonville, Florida. Carol Engels is an inspector for the Petitioner. In performing her duties she routinely inspects cosmetology salons. Ms. Engels made a routine inspection of La'Moods on October 27, 1994. While the inspection was being conducted, the salon was open for public business. At that time, Chester Akins, a cosmetologist at the salon was combing a customer's hair. Ms. Engels inspected Mr. Akins' work area. In the Akins' work area there were loose hair cuttings. There was clutter on the top of a counter in the work area. When that clutter was moved by Ms. Engels, several cockroaches crawled out onto the work station. In addition, Ms. Engels observed a number of "gobs" of hair and greasy combs in that part of the work area that is referred to as a "clean area". Reference the cosmetologist's obligations to be performed after each customer leaves, the combs should be washed with soap and water and then disinfected for about 20 minutes and then stored in the clean area. In this instance, the clean area for Mr. Akins' work station was a drawer and that drawer had loose hair, greasy combs with hair in them, and dirty brushes in it. The drawer also had Mr. Akins' personal effects, some papers such as receipts, keys and money. The receipts, keys and paper should not have been in the clean area. Respondent was not in attendance when the inspection commenced. He came to the salon before the inspection was concluded. He did not observe the clean area at the Akins' work station on the date the inspection was made. The inspection sheet concerning the prior inspection that had been performed was not conspicuously displayed on October 27, 1994. It had been moved from a conspicuous location to the shampoo area. Respondent surmises that the inspection sheet had been placed there by a cleaning crew. This was not the first occasion in which the prior inspection sheet was not conspicuously displayed. Respondent had been cited for violations of not having prior inspection sheets conspicuously displayed because the inspection sheet had fallen off the wall or been moved by persons cleaning the salon.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That a Final Order be entered making Respondent responsible for the violations found and fining Respondent $250.00. DONE and ENTERED this 25th day of July, 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 25th day of July, 1995. APPENDIX The following discussion is given concerning the Petitioner's proposed findings of fact: Those facts are subordinate to facts found in the Recommended Order. COPIES FURNISHED: Dorothy Faircloth, Executive Director Board of Cosmetology Department of Business and Professional Regulation 1940 No. Monroe Street Northwood Centre, Suite 60 Tallahassee, FL 32399-0790 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 N. Monroe Street Northwood Centre, Suite 60 Tallahassee, FL 32399-0790 James E. Manning, Qualified Representative Department of Business and Professional Regulation 1940 N. Monroe Street Northwood Centre, Suite 60 Tallahassee, FL 32399-0792 Eugene Eubanks 1443 Raven Drive Jacksonville, FL 32218
The Issue The issues presented are whether Respondent failed to maintain sewage drains and to prevent the presence of roaches in violation of Food Code Rules 5-402.13 and 6-501.111, and, if so, what penalty, if any, should be imposed.
Findings Of Fact Petitioner is the state agency responsible for licensing and regulating restaurants in the state. Respondent is licensed as a restaurant, pursuant to license number 3912699, and is located at 1235 Hillsborough Avenue, Tampa, Florida. A sanitation and safety specialist (Specialist) for Petitioner inspected the restaurant on March 15, 2006. Respondent committed two violations. One violation involved waste water sewage, and the other involved roaches. Waste water sewage backed up into the mop sink in the floor drain in the dishwashing room. Waste water also backed up in the kitchen hand sink drain. Eight roaches were present in a shelf, and 10 roaches were clustered in cracks in a pipe. Another roach crawled out from behind the kitchen stove. The deficiencies were significant violations. Petitioner issued an emergency order closing the restaurant. Respondent corrected the offenses in one day. There is no evidence the violations are continuing. Respondent submitted credible and persuasive evidence of diligent efforts to maintain the restaurant in proper condition.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of committing the acts and violations alleged in the Administrative Complaint and imposing a fine of $1,000, due and payable to the Division of Hotels and Restaurants, 1940 North Monroe Street, Tallahassee, Florida 32399-1011, within 30 calendar days of the date that the agency serves Respondent with a copy of the final order. DONE AND ENTERED this 1st day of August, 2006, 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 1st day of August, 2006. COPIES FURNISHED: Maria B. Vences Los Tucanes 1235 East Hillsborough Avenue Tampa, Florida 33604 Jessica Leigh, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2202 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 George Luebkemann, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues in this case are whether the allegations set forth in the Administrative Complaint are correct, and, if so, what penalty should be imposed.
Findings Of Fact At all times material to this case, the Respondent was a registered septic tank contractor, registration number SR0041456. At all times material to this case, the Respondent was authorized to provide septic tank contracting services through the corporation "Anytime Septic Enterprise, Inc.," authorization number SA0091662. The Respondent has advertised his services to the public as a septic tank contractor and has engaged in the business of providing septic tank services since at least September 2010. At all times material to this case, the Respondent was permitted to provide septage disposal services via permit number 36-QA-28986 issued by the Lee County Health Department. On or about September 13, 2010, the Respondent was hired to pump a septic system located at 2710 Northwest 5th Street, Cape Coral, Lee County, Florida, by another septic tank contractor. The employing contractor had been hired to service and repair the septic system, but did not have the ability to pump the tanks. On September 13, 2010, the Respondent pumped out the septic tank. The Respondent did not pump out the "dosing tank," a part of the septic system connected to the septic tank. After pumping out the septic tank, the Respondent completed a "DH Form 4015," signed and dated on September 13, 2010. The form collected information on the evaluation and repair of the septic system, including identification of system components and tank capacities. The contractor servicing the system is required to complete the form and identify the services provided. The Respondent identified the components of the referenced septic system and the capacities of both the septic and dosing tanks. The Respondent signed and dated the certification statement. As completed by the Respondent, the certification statement stated as follows: I certify that the listed tanks were pumped on 9/13/10 by Anytime Septic, have the volumes specified as determined by legend are free of observable defects or leaks, and have a [solids deflection device/outlet filter device] installed. Although the Respondent certified that he pumped the dosing tank on September 13, 2010, he did not pump the dosing tank on that date. The Respondent certified the dosing tank to be free of observable defects or leaks; however, the failure to pump the dosing tank prevented proper observation of the dosing tank, and it is highly unlikely that an accurate evaluation of the condition of the dosing tank was possible under the circumstances. Under the applicable rule, a pumper may perform an incomplete pumpout under certain circumstances, but the rule requires that the pumper must provide written documentation to the system owner identifying the reason for the incomplete pumpout, the gallonage pumped from the system, and the material left in the tank. The Respondent failed to provide such documentation to the system owner. An inspection by an employee of the Petitioner on September 16, 2010, revealed that the dosing tank had not been pumped and that the tank lids had not been sealed after the service. The Respondent was notified on September 20, 2010, that the dosing tank should have been pumped at the same time as the septic tank. On that same date, the Respondent returned to the site, pumped the dosing tank, and then completed, signed and dated a second "DH Form 4015" certifying that the dosing tank had been pumped. The Respondent recorded additional information on the form to indicate that the remaining work would be performed by the septic tank contractor who had employed the Respondent. At the hearing, the Respondent asserted that upon the initial inspection of the property, the Respondent observed that the septic tank conditions were non-standard, that he communicated such information to the contractor who had hired him, and that the Respondent's services, including certification of the tanks, were provided in accordance with the requests of the contractor.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final order imposing a $1,500 fine against the Respondent for falsely certifying the work performed on September 13, 2010, and the condition of the dosing tank; for failing to fully pump the system without providing appropriate documentation; and for failing to properly seal the tank lids. DONE AND ENTERED this 24th day of February, 2011, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 2011. COPIES FURNISHED: Denise Duque, Esquire Southwest Alliance of County Health Departments 2295 Victoria Avenue, Room 206 Fort Myers, Florida 33901 Stephen M. Maher, Esquire Stephen M. Maher, Attorney at Law, P.A. 2077 First Street, Suite 206 Fort Myers, Florida 33901 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, FL 32399-1701 E. Renee Alsobrook, Acting General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701 Secretary, State Surgeon General Department of Health 4052 Bald Cypress Way, Bin A-00 Tallahassee, Florida 32399-1701
The Issue The issues to be considered in this Recommended Order relate to an Administrative Complaint which the Petitioner filed against Respondent. In particular, the Administrative Complaint calls for the revocation of Respondent's certificate to conduct laboratory analyses for various microbiological parameters, select chemical tests and turbidity studies. This disciplinary action is in keeping with the State Public Water Laboratory Certification Program, Section 403.863, Florida Statutes, and Chapter 10D-41, Florida Administrative Code, which relates to that same subject. These alleged violations are set forth in the Administrative Complaint and those allegations are further refined through the attachments to the Administrative Complaint. They deal with certain alleged failures on the part of the Respondent in performing tests, analyses, recording functions, provision of materials, tabulations, and retention of records. He is also accused of making false statements through documents dealing with certification. All of these acts are in violation of provisions of Chapter 10D-41, Florida Administrative Code, according to the complaint. (The details of the Administrative Complaint are discussed in the Conclusions of Law section of this Recommended Order.) WITNESSES AND EXHIBITS The list of witnesses, in order of their appearance, may be found in the index to transcript. The list of exhibits, page of their identification and receipt may be found in the index to transcript, with the exception of those exhibits upon which ruling on their admissibility was reserved. Those exhibits which were not admitted in the course of the hearing are discussed in the Conclusions of Law section of this Recommended Order.
Findings Of Fact In keeping with language in Section 403.863, Florida Statutes, and Chapter 10D-41, Florida Administrative Code, Petitioner licensed Kamran Kahjeh- Noori, who does business as as Kahjeh-Noori Laboratory. The licensing was through a process of certification to allow Kahjeh-Noori to conduct water testing. In particular, the laboratory was certified in microbiology (membrane filters); microbiology (most probable number); chemistry, and those materials, arsenic, barium, cadmium, chromium, lead, mercury, selenium and silver; chemistry (nitrates); chemistry (fluorides) and turbidity. Water testing laboratories test drinking water from community and non- community water distribution systems. At times relevant to this case, Respondent's laboratory performed microbiological and chemical tests of drinking water. On October 13, 1981, Petitioner filed an Administrative Complaint against the Respondent charging various violations related to Respondent's certification. The Respondent requested a Subsection 120.57(1), Florida Statutes, hearing and that hearing was conducted on August 11, 1982. In connection with the aforementioned certification in the various categories which Respondent had applied for and been granted, Petitioner, through its employees, conducted surveys of the Kahjeh-Noori Laboratory on December 12, 1979; December 8, 1980, February 10 and 11, 1981, and June 9, 1981, to insure compliance with rules related to Respondent's certification. The inspection on December 12, 1979, revealed that the inhibitory residue test as specified in Rule 10D-41.55(6)(b)8., Florida Administrative Code, had not been performed to demonstrate that the washing/rinsing processes provide glass free of toxic materials. This relates to microbiology. Respondent was made aware of this deficiency in writing and in responding to the statement of deficiencies, indicated that correction had been made or as Respondent stated that the correction had been "performed." A survey conducted by the Petitioner on December 8, 1980, revealed the same problem with the inhibitory residue test as had been described in the matters related to the December 12, 1979, visit, in that that test had not been performed in accordance with Rule 10D-41.55(6)(b)8., Florida Administrative Code. Respondent was again advised in writing of the deficiencies and in response to the deficiencies indicated that a correction had been "performed" on January 8, 1981. This response, as was the case in the December 12, 1979, incident, was a written response. A further survey was conducted on February 10 and 11, 1981, in which the laboratory was inspected and the problem with the inhibitory residue test, in that it was not performed, was discovered in the course of this inspection, again related to Rule 10D-41.55(6)(b)8., Florida Administrative Code. This statement of deficiencies or violation was made known in writing and in his written response, Respondent indicated "media have been ordered from FIFFCO and will be completed by week of 4/20/81." Finally, in an inspection on June 9, 1981, the problem with the inhibitory residue test, that is to say the fact that that test was not being performed to demonstrate that the washing/rinsing processes were providing glassware free of toxic material as specified in Rule 10D-41.55(6)(b)8., Florida Administrative Code, was still observed in the inspection. The inhibitory residue test, which is designed to determine whether the washing of glassware is leaving residue on that container which might inhibit or enhance bacterial growth, was conducted subsequent to the last survey. In particular, it was conducted on June 17, 1981, and February 25, 1982, by an employee of the Respondent. The results of those tests may be found as Respondent's Exhibit Nos. 1 and 2. In the inspection of December 12, 1979, it was discovered by Petitioner that laboratory pure water had not been analyzed annually by the test for bacteriological properties set forth in Rule 10D-41.55(6)(a)4., Florida Administrative Code (microbiology). Respondent was made aware of this shortcoming by written notification and in replying to this deficiency, indicated that the matter had been "performed." Further inspection of the matter of laboratory pure water in the test for bacteriological properties set forth in Rule 10D-41.55(6)(a)4., Florida Administrative Code, was made during December 8, 1980, and a written notification was given to Respondent, indicating that this test had not been performed and requiring an explanation of that deficiency. In responding to the deficiency, Respondent indicated that it "had been analyzed only 2 parameters missing" and the date stated for the completion of that correction was January, 1981. The inspection of February 10 and 11, 1981, discovered the same difficulty on the topic of laboratory pure water, in that the water was found not to have been analyzed on an annual basis by the test for bacteriological properties as required by Rule 10D-41.55(6)(a)4., Florida Administrative Code. This violation or problem was made known to the Respondent by written communication and replying to the deficiencies, in writing, Respondent indicated that "water will be analyzed by end of April." The June 9, 1981, survey by the Petitioner of the Respondent's laboratory, established the same problem with testing related to laboratory pure water under the terms of Rule 10D-41.55(6)(a)4., Florida Administrative Code. Again written notification was made of this shortcoming. Subsequent to the inspection of June 9, 1981, and specifically on June 17, 1981, an employee of Respondent made the test required by Rule 10D- 41.55(6)(a)4., Florida Administrative Code, and the results of that test may be found in Respondent's Exhibit No. 2. The water tested was that water which had been used in the Respondent's laboratory as far back as May, 1981, the date of the initial employment of the employee conducting this test. The conclusion reached was that the water did not contain toxic substances. The survey of December 12, 1979, revealed that laboratory pure water had not been analyzed monthly for conductance, pH, chlorine residual and standard plate count as specified by Rule 10D-41.55(6)(a)5., Florida Administrative Code (microbiology). Surveys by the Petitioner of Respondent's laboratory conducted on December 8, 1980; February 10 and 11, 1981, and June 9, 1981, concerning Rule 10D-41.55(6)(a)5., Florida Administrative Code, revealed the same shortcomings on the matter of monthly analysis for conductance, pH, chlorine residual and standard plate count. The responses made to the written notification of the problems, which notification occurred following each survey, were the same as were related in the responses for violations of Rule 10D- 41.55(6)(a)4., Florida Administrative Code, discussed above. The inspection of Respondent's laboratory, by Petitioner's employee, which occurred on December 8, 1980, revealed that sample bottles were not being tested with lauryl tryptose broth as required by Rule 10D-41.55(6)(b)9., Florida Administrative Code (microbiology). This problem was announced to Respondent in writing. By written response, the Respondent indicated that this matter was "performed" on January 8, 1981. Further inspection of February 10 and 11, 1981, as conducted by Petitioner on Respondent's laboratory, revealed a lack of compliance with the rule related to testing of sample bottles with lauryl tryptose broth as specified in Rule 10D-41.55(6)(b)9., Florida Administrative Code. This deficiency was made known in writing from Petitioner to Respondent and in answering this shortcoming, Respondent indicated in writing that the matter was "completed," effective February 17, 1981. In the period beginning late December, 1980, through late May, 1981, some tests related to sample bottles by the lauryl tryptose broth technique were carried out by one of Respondent's employees; however, no record was kept. In the absence of that record, it was reported in the evaluation report of the June 9, 1981, survey, which report was made by Petitioner's employee, that the matter related to testing sample bottles with lauryl tryptose broth, as specified in Rule 10D-41.55(6)(b)9., Florida Administrative Code, was still a problem. Beginning June 13, 1981, written records were kept of bottles tested with lauryl tryptose broth, as may be seen through Respondent's Exhibit No. 4a, which is a record of those tests. That record reveals no growth of bacteria. The February 10 and 11, 1981, survey conducted by Petitioner's employee, revealed that Respondent's laboratory was not recording the time of water sample arrivals as specified by Rule 10D-41.55(5)(a)7., Florida Administrative Code (microbiology). This violation was made known to the Respondent in writing and in his written reply, Respondent indicated that the matter was being "performed" effective February 12, 1981. The inspection of June 9, 1981, conducted by Petitioner's employee found that Respondent and his laboratory personnel were still failing to record the time of sample arrival, as required by Rule 10D-41.55(5)(a)7., Florida Administrative Code. Petitioner had contended that Respondent, in his equipment, i.e., sample bottles with screw caps, had liners to those caps that could not withstand repeated sterilizations as required by Rule 10D-41.55(5)(a)6., Florida Administrative Code (microbiology). This notice of violation was made in the course of the June 9, 1981, survey conducted by Petitioner at Respondent's laboratory. The facts when considered do not reveal such a violation or problem. Moreover, the Respondent's laboratory used "whirlpacks" for purposes of collecting drinking water samples and that had been its process beginning June, 1980. During the June 9, 1981, survey, Petitioner discovered that the Respondent, in his laboratory operation, was not carrying out water sample incubations at 350 degrees Celsius +/- 0.5 degrees Celsius. This discovery in the June 9, 1951, survey is borne out by the record of temperature controls made by the Respondent in a period of April, May and June, 1981, prior to the inspection, and also following the inspection in June through December, 1981, Respondent's Exhibit Nos. 5a-c. This allegedly violates Standard Methods, 14th Edition, pages 916, 917, 918 and 931, and thereby contravenes Rule 10D- 41.55(4)(a), Florida Administrative Code (microbiology). Respondent admits that he had this text during pertinent times; however, this volume was not provided to the Hearing Officer. The inspection of December 8, 1980, conducted by Petitioner's employee, revealed that the Respondent, in his laboratory operation, was not using quality control charts or a tabulation of mean and standard deviation to document data validity of silver and nitrate analyses as required by Rule 10D- 41.56(5)(1), Florida Administrative Code (chemistry). This problem was made known to the Respondent in writing and in answering the deficiencies Respondent indicated that the matter had been "performed" effective January 8, 1981. During the course of the February 10 and 11, 1981, inspection, the same problem was observed with the quality control charts on the topic of tabulation of mean and standard deviation set forth in Rule 10D-41.56(5)(1), Florida Administrative Code. In response to this written notification of violation, Respondent replied in writing "corrected and copy was mailed 2/20/81" and indicated a completion date of 2/18/81. Although certain charts had been received by the Petitioner prior to the June 9, 1981, survey (Petitioner's Exhibit No. 9c), that survey still revealed that quality control charts on silver and nitrate analyses as required by Rule 10D-41.56(5)(1), Florida Administrative Code, were missing. Respondent ultimately submitted charts on silver and nitrate, Respondent's Exhibit Nos. 10 through 13. Those exhibits from the Respondent are flawed in that the measurements of precision and accuracy related to the chemical substances are identical and that degree of exactitude makes the results unreliable. (Accuracy describes whether an average of a group of identical samples represents a true value of those samples and precision describes whether the individual test results of several identical samples are similar.) In the June 9, 1981, survey, it was discovered that the raw data and calculations related to quality control charts for the substances arsenic, barium, cadmium, chromium, lead, mercury, selenium and fluoride analyses had not been retained by Respondent's laboratory as specified by Rule 10D-41.59(1)(f)2., Florida Administrative Code. Respondent has made statements in answering stated deficiencies found in paragraphs 5a through 5h of the Administrative Complaint which did not prove to be accurate. These circumstances are reported in the findings of fact related above. Tests of sample bottles performed using lauryl tryptose broth during the period late December, 1980, through May, 1981, were not always recorded as specified by Rule 10D-41.59, Florida Administrative Code, in that on some occasions no record was made of the test.
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner was discriminated against based upon his age, in the manner addressed by Section 760.10, Florida Statutes.
Findings Of Fact The Petitioner was an employee of the City of Leesburg at times pertinent hereto. He was employed as a waste water operator trainee, commencing employment on or about June 5, 2000. The Respondent is a city government and unit of local government which operates two waste water plants. At times material to this proceeding the Respondent was employed and assigned to the "Canal Street Plant." The Petitioner was required to perform several job functions in his capacity as a waste water operator (trainee). Respondent's Exhibit Nine, in evidence, provides a job description for the Petitioner's employment positions which include the following: Record all flows; constantly survey charts and meter readings; repair leaking waste water pipes; perform building maintenance chores; maintain vigilance over all the department facilities and log or report any unusual situations; take oral and written instructions and carry them out in a quick and responsible manner; load and unload lawn cutting equipment, and cut and trim grass at utility plant sites; make repairs and/or replace parts on plant equipment; and repair leaks and other operations as directed. That job description also required a trainee to have knowledge of the functions and mechanics of pumps and other waste water plant equipment, knowledge of the occupational hazards and safety measures required in plant operations; to have an ability to detect faulty operating characteristics in equipment and to institute remedial action. The trainee is also required to be able to read meters, chart accurately and to adjust procedures to meet plant volume requirements. He must have an ability to understand and follow oral and written instructions. The Respondent's personnel policies and procedures manual (manual), in evidence as Respondent's Exhibit Eight, states at Policy No. 600.2(13) that "poor performance" is a violation of policy sufficient to initiate discipline. Poor performance is described in that section as a failure to perform assigned duties according to prescribed dimensions and standards on the individualized performance plan. Policy No. 600.2 provides for progressive discipline ranging from a verbal warning, to a written warning, a one-to-three day suspension, a four-to-five day suspension, or termination. Thus the discipline for violation of that policy is a range of appropriate actions from verbal warning to termination. On or about July 11, 2001, the Petitioner was the subject of a corrective action performance evaluation by his supervisor, Bob Mirabella. Mr. Mirabella, the Respondent's Operations Supervisor, accorded the Petitioner a grade of zero in several categories of work performance. Those are deficiencies indicating the Petitioner's lack of understanding of basic concepts related to his job position, including failure to following instructions, difficulty making simple decisions, difficulty or failure in following standard procedures, and a poor attitude. Overall his evaluation shows a rating of the Petitioner's performance as "unacceptable." That corrective action evaluation also contains a section that the Petitioner and his supervisor must initial, indicating that the Petitioner had reviewed the evaluation and that the performance deficiencies had been communicated to him. Mr. Mirabella advised the Petitioner of corrective measures to take and that any continued failure to meet expectations might result in termination. Mr. Mirabella created a type-written plan of improvement for the Petitioner with remedial activities, objectives, and developmental activities. Under the Respondent's consistent policy, the action plan would have been reviewed in 60 days, September 11, 2001, in order to determine that the Petitioner was meeting those expectations. On August 13, 2001, the Petitioner received a written reprimand for failure to perform duties assigned to him on July 23, 25, and August 9, 2001. These were duties that were in accordance with the prescribed dimensions and standards of the individual performance plan for the Petitioner. The written reprimand, in evidence as Respondent's Exhibit Two, included a description of the Petitioner's failure to perform duties including lawn maintenance, and again cited his argumentative attitude. On August 29, 2001, the Petitioner received a three-day suspension from duties for failure to perform assigned duties according to prescribed dimensions and standards as set forth in the individual performance plan. The disciplinary action form, in evidence as Respondent's Exhibit Three, specifically referred to the Petitioner's failure to perform lawn maintenance duties, failure to follow established rules and policies, and failure to take appropriate action to correct a leaking pump. It was also noted that the Petitioner was making coffee and watching television instead of performing assigned duties. Mr. Mirabella created a performance evaluation summary in preparation for the Petitioner's September 11, 2001, 60-day review of the initial, unsatisfactory evaluation of July 11, 2001. The summary showed a continuation of the Petitioner's difficulties and problems both in understanding his job and in dealing with other people in the course of his duties. The summary cited an incident where the Petitioner was abrasive, including swearing, toward other employees. It was Mr. Mirabella's intention to give the Petitioner a written reprimand regarding the swearing incident. However, due to the emergency nature of the events occurring on September 12, 2001, at the waste water plant, the written reprimand was not completed prior to the beginning of the investigation that ultimately led to the Petitioner's termination. The Petitioner made no major progress in correcting any of the problems outlined in the action plan that constituted part of the July 11, 2001, evaluation. On or about September 12, 2001, it was determined that there was a near overflow of sewage at the Canal Street Plant. Scott Moss, the employee who worked on the morning shift on September 13, 2001, discovered the problem and took corrective action immediately. Mr. Mirabella learned of the problem and reported it to the Respondent's Director of Environmental Services, Susanna Littell. Upon learning of the potential overflow occurrence, Ms. Littell began an investigation to determine when the overflow problem occurred. She gathered plant flow information and took measurements of the tanks. Employing engineering calculations, based upon the flow rates at the plant, Ms. Littell was able to determine that the problem had occurred on the Petitioner's shift. The Petitioner was the only employee on duty at the time the problem occurred. Ms. Littell consulted two outside engineers (non-city employees) to review her calculations. Those engineers found that her calculations were accurate. According to Ms. Littell, the waste water employees on duty at the plant should have observed the valve positions or otherwise noticed a problem in the plant that needed remediation. This was a regular part of their assigned duties, including the Petitioner. Mr. Mirabella determined a number of valves had been changed, which had caused the "aereation bay" to begin to fill with waste water. The aereation bay almost overflowed, which would have caused a serious environmental hazard and damage. It would have caused irreparable harm to the credibility of the waste water department, and could have engendered a minimum of $10,000.00 dollars in fines imposed by the Department of Environmental Protection. The importance of preventing these types of situations has been emphasized to employees who worked at the waste water plant, including the Petitioner. Because of the Petitioner's failure to notice the obvious serious problem occurring at the plant on his shift, and his failure to take corrective action, he was cited for negligence in performing his assigned duties in violation of the Respondent's policy. The employee who worked as his counter- part on the shift immediately after the Petitioner's, Elmer Wagner, was also cited for negligence in performing his duties because of his failure to notice the problem and to take corrective action. Mr. Wagner at the time in question was 67 years of age. The information obtained during Ms. Littell's investigation was forwarded to Ms. Jakki Cunningham-Perry, the Respondent's Director of Human Resources, in order for her to determine the appropriate disciplinary action to take. Ms. Cunningham-Perry performed an investigation of the September 12, 2001, incident. She spoke to several individuals, including, but not limited to, Mr. Mirabella, Ms. Littell, Jim Richards, who was one of the engineers consulted by Ms. Littell, as well as the Petitioner. She thereafter deliberated and prepared a written memorandum setting forth her investigative findings. Ms. Cunningham-Perry concluded that the closing of the valves occurred during the Petitioner's shift. She also concluded that Mr. Wagner should have noticed the change in the pump flow and valves during his shift. Both the Petitioner and Mr. Wagner were cited for failure to perform assigned duties in violation of city policy 600.0(13), as a result of the investigation performed by Ms. Cummingham-Perry. She reviewed the personnel history of both the Petitioner and Mr. Wagner in order to determine the appropriate levels of discipline. The Petitioner's prior history included the special corrective action evaluation of July 11, 2001, indicating unacceptable performance; the August 13, 2001, written reprimand for violation of policy 600.2(13); and the suspension for violation of that same policy. In light of the past performance of the Petitioner, as well as the September 12, 2001, incident, Ms. Cunningham-Perry recommended that he be terminated. On November 30, 2001, the Petitioner was terminated from his employment with the Respondent. The Petitioner's last day on the payroll with the Respondent was December 6, 2001. Mr. Wagner is older than the Petitioner and has had an exemplary performance record with the Respondent City. He never had any disciplinary problems on his record for 15 years of his employment with the Respondent. Because of his theretofore spotless employment disciplinary record, he was given a written reprimand as a result of his negligent performance of job duties on September 12, 2001. No evidence was adduced indicating that the Respondent treated any employees over the age of 40, including the Petitioner, any differently than employees under the age of 40. During the relevant time period the Respondent had approximately 22 employees in the waste water department. Fifteen of those 22 employees were over the age of 40. The Petitioner actually produced no evidence in his case establishing his date of birth or age. There is no evidence that the Petitioner's age was considered or was a factor in his termination decision. The decision to terminate him was based solely on his failure to perform assigned duties and his prior performance record. Moreover, the Petitioner adduced no evidence to show that he was replaced or otherwise lost his position to a younger individual. The individual who became a waste water trainee after the Petitioner's termination was Scott Moss. Mr. Moss is currently employed as Waste Water Operator with the Respondent. There is no doubt that Mr. Moss is a significantly younger individual, purported to have been in his late 20's when the incident in question occurred. The Petitioner, however, produced no evidence regarding Mr. Moss' date of birth or his age in relationship to the Petitioner's. He also produced no evidence to show that he was actually replaced by Mr. Moss. Mr. Moss had been hired on or about January 29, 2001, nearly one year prior to the date of the Petitioner's termination. Both the Petitioner and Mr. Moss were working at the Canal Street Plant in similar capacities and duties, at the time the Petitioner was terminated. Mr. Moss, therefore, just continued to work there and ultimately was elevated, through his adequate performance, to the position of Waste Water Operator. It was not established that he was hired simply to replace the Petitioner when the Petitioner was terminated. Further, the Petitioner did not adduce sufficient, persuasive evidence to show that he was actually qualified to perform the job. His prior performance had been unacceptable since at least July 11, 2001, and likely before that time. The Petitioner repeatedly failed to comprehend and perform assigned duties of a Waste Water Operator Trainee on multiple occasions. This was despite efforts by the Respondent to help the Petitioner correct his deficiencies. Accordingly, it has not been established that the Petitioner was "qualified" for the position of Waste Water Operator Trainee.
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 Commission on Human Relations dismissing the Petition in its entirety. DONE AND ENTERED this 3rd day of May, 2004, in Tallahassee, Leon County, Florida. S 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 www.doah.state.fl.us Filed with Clerk of the Division of Administrative Hearings this 3rd day of May, 2004. COPIES FURNISHED: Michael George 25131 Southeast 167th Place Umatilla, Florida 32784 Steven W. Johnson, Esquire McLin & Burnsed, P.A. Post Office Box 491357 Leesburg, Florida 34749-1357 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact By letter dated August 10, 1979, Indian River County (hereafter "County") submitted to the Department of Environmental Regulation (hereafter "Department" or "DER") applications for construction permits for the Gifford Area sewer treatment plant and collection improvements thereto, a domestic wastewater treatment and disposal system located in the County. (DER Exhibits Nos. 1 & 2). After receiving the permit applications submitted by the County, the Department's Orlando District Office requested additional information to determine whether reasonable assurances were provided that the facility would not discharge, emit or cause pollution in violation of Department standards. (Testimony of William Bostwick; testimony of Chancellor; DER Exhibits Nos. 3, 4, 5, 6, 7 & 8). The County, through its consulting engineers Sverdrup & Parcel and Associates, Inc., responded to the Department's requests for additional information. (DER Exhibits Nos. 3, 4, 5, 6, 7 & 8). The Department presented testimony of two professional engineers in its employ, Mr. William M. Bostwick and Mr. Gerald Chancellor, both of whom were accepted as expert witnesses in the field of sewage treatment technology and the processing and evaluation of permit applications for sewage treatment plants. Both witnesses testified that in their expert and professional opinion, based on their review of all plans, test results and other information submitted by the County, the applicant provided the Department with reasonable assurances that the proposed construction and operation of the sewage treatment facility and its collection system would not discharge, emit or cause pollution in violation of Department standards. (Testimony of Bostwick; testimony of Chancellor). The standards applicable to the subject construction permit applications involve (a) treatment level and (b) ambient standards of the receiving waters. The proposed system provides a minimum of ninety (90) percent treatment to incoming wastewaters. Because of the added features of surge tanks, gas chlorination, and dual blowers and motors, the ninety (90) percent minimum treatment was expected to be exceeded. (Testimony of Bostwick; testimony of Chancellor). The secondarily treated effluent from the proposed sewage treatment plant will be dispersed by spray irrigation. Because the effluent is expected to percolate to area groundwaters, the ambient groundwater standards of Section 17-3.101, Florida Administrative Code are applicable. The discharge from the facility will not cause any violation of the groundwater quality standards of the Florida Administrative Code. (Testimony of Bostwick; testimony of Chancellor; testimony of Aront). Although the design of the plant does not contemplate surfacewater discharge, if it did, it would meet the waste load allocation of Indian River County which permits discharge to surfacewaters. When the treated waste leaves the sprinkler head, it will meet secondary water treatment standards. (Testimony of Bostwick; testimony of Chancellor). In the course of evaluating a permit application for a wastewater treatment plant, the Department considers only Chapter 403, Florida Statutes, and its implementing rules and regulations and does not consider local issues relating to zoning, the propriety of expenditure of public funds or the like. (Testimony of Bostwick). There is presently no state standard regulating permissible levels of viruses in effluent discharged to either surface of groundwaters. Large numbers of viruses exist in the effluent discharged from spray irrigation treatment plants which operate at a ninety (90) percent treatment level. The viruses contained in the discharge remain viable as they percolate through the soil. The greatest concern exists when humans are in physical contact with such discharge. However, the present sewage treatment facility in its existing condition is a greater threat to public health than the proposed spray irrigation system. (Testimony of Dr. Welling, Petitioner's Exhibits Nos. 1, 2 & 3). Research concerning viral standards for effluent discharge is in an experimental stage. The Department is examining this question for possible future rule drafting. Neither the federal government nor any state, with the exception of Maryland, has adopted viral standards. (Testimony of Welling) The design of Use Gifford plant contemplates a series of perimeter monitoring wells through which groundwater samples can be attained and tested for compliance with groundwater standards end the presence of viruses. (Testimony of Aront) The plant will spray irrigate effluent at the rate of one (1) inch per week. Although surface run off is not expected, any that occurs due to heavy rains, etc., will be discharged into a perimeter ditch surrounding the plant. The plant design is formulated to retain effluent on site. (Testimony of Chancellor). There are four (4) different types of soil on the site with a water permeability of moderately rapid to very rapid. These soils have a percolation rate which makes the site suited for the intended purpose provided surface drainage is obtained. On a conservative basis the site could accept up to fourteen (14) inches of water per day or ninety-eight (98) inches per week. (Testimony of Connell; testimony of Eng; DER Exhibit No. 6). The parties stipulated prior to the hearing to the following: The project complies with local zoning laws; and The applicable provisions of law are Sections 403.086, 403.087, 403.088, Florida Statutes, and Rules 17-3.091, 17-4.03, 17-4.07 and 17-4.26, Florida Administrative Code.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the Department issue a construction permit to the County on condition that sample effluent from the monitoring wells on the subject facility be regularly analyzed for compliance with Department rules and the existence of infectious viruses. DONE and ENTERED this 3rd day of March, 1980, at Tallahassee, Florida 32301. SHARYN SMITH Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 COPIES FURNISHED: Sherman N. Smith, Jr., Esquire Post Office Box 1030 Vero Beach, Florida 32960 George G. Collins, Jr., Esquire Post Office Box 3686 Vero Beach, Florida 32960 Segundo J. Fernandez, Esquire Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue The issues in this case are whether Petitioner was responsible for maintaining a sanitary nuisance on his property by piping sewage onto the ground from the septic system and by ignoring the need to repair a failed septic system; and whether the Department of Health properly issued a citation to Petitioner for violation of Sections 386.041(1)(a) and (b).
Findings Of Fact In November, 1995, a Department of Health, Volusia County Health Department employee, Sherry Rodriguez, was performing a sanitary survey of the water system at 479 Maytown Road, Osteen, Florida, when she observed sewage on the ground. The property in questions consists of a large, two-story house which contains rental units. The house is provided water by a well on the property and sewage is handled by an onsite septic system. On November 6, 1995, Ms. Rodriguez issued a Notice of Violation for the sanitary nuisance which stated that the violation must be corrected by November 20, 1995. The septic system was not repaired by November 20, 1995. Ms. Rodriguez subsequently issued a Notice of Intended Action (NIA), giving Petitioner a deadline of December 5, 1995, to repair his system. When Ms. Rodriguez went to the property to serve the NIA, she observed PVC pipe on the ground, with one end at the septic tank and the other at the read of the property. Sewage was on the ground at the end of the pipe. Ms. Rodriguez took photographs of the pipe before she departed. Agency employee, Britt Williams, visited Petitioner's property on November 1, 1996, and observed sewage on the ground. Mr. Williams issued a follow-up NIA to Petitioner on January 30, 1997, which required Petitioner to repair the septic system by February 3, 1997. Petitioner did not obtain a repair permit to correct the violations, therefore, Mr. Williams issued a citation for the violations of sewage on the ground and having an improperly maintained septic system.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That a final order be entered affirming the civil penalty against Petitioner and requiring Petitioner to repair his septic system. DONE AND ENTERED this 8th day of April, 1998, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of April, 1998. COPIES FURNISHED: John Gee 1245 Gee Whiz Lane Osteen, Florida 32764 Charlene J. Petersen, Esquire Department of Health 420 Fentress Boulevard Daytona Beach, Florida 32114 Angela T. Hall, Agency Clerk Department of Health Building 6 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Dr. James Howell, Secretary Department of Health Building 6, Room 306 Tallahassee, Florida 32399-0700
