Findings Of Fact Petitioner operates a plant which manufactures wire and wire products located at the foot of Florida Street, Jacksonville, Florida adjacent to the St. Johns River. Petitioner's manufacturing operations include "pickling" (acid cleaning) of raw materials which generates a spent solution containing sulphuric acid and ferrous sulphate. Petitioner has requested a variance from Rule 17-3.05(2)(p) of the Florida Administrative Code which specifies a water quality standard of not exceeding .3 mg/1 of iron, which standard, as applied to the Petitioner in this instance, would require that Petitioner's effluent not contain in excess of .3 mg/1. Petitioner proposed-to construct a treatment system for its effluent which includes alkaline neutralization with continuous pH control, followed by the addition of an ionic polymer to enhance settling. Following polymer addition, settling and clarification will take place in a clarifier. The overflow from the clarifier will flow to a multimedia granular filter and thence to a pH adjustment station and thence to a continuous flow monitoring and sampling station and finally into the St. Johns River. The sludge that has settled to the bottom of the clarifier will be filtered by a cloth-media filter where it will be further de-watered such that the solids are discharged from the filter as a solid cake. The solid cake will be landfilled by an independent contractor. The above described treatment system represents at least the best practicable means known or available for the adequate control of iron in Petitioner's effluent. Petitioner is seeking a variance for a period of five years from the date Petitioner's treatment system becomes operational. Petitioner could suffer irreparable damage and harm if the variance were denied because no practicable technology is presently known or available which would reduce the iron in Petitioner's effluent to .3 mg/1. By using the treatment system proposed, Petitioner can reduce iron in its effluent to 1 mg/1 and can achieve that level of treatment within eleven months after commencement of construction of the treatment system. Since there is no other practicable means presently known or available for the removal of iron from Petitioner's effluent, Petitioner will be unable to reduce iron in its effluent to .3 mg/1 at any time during the presently foreseeable future. No discernible disadvantages will result to residents or the environment in the affected area by the granting of Petitioner's variance request. No evidence was presented at the hearing as to a weekly average of concentrations of iron which the Petitioner would be able to meet through its proposed system, and which would be appropriate and enforceable.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED: That Petitioner's request for variance to discharge effluent containing iron from its Jacksonville, Florida plant into the St. Johns River in excess of the State of Florida iron standard specified in Rule 17-3.05(2)(p) of the Rules of the Florida Department of Environmental Regulation, be granted subject to the following conditions: The effluent limitations which shall apply during the period of the variance are: Iron in Mid-State's effluent is to be composed of ferrous hydroxide, Fe(OH)2, with only a trace of ferric hydroxide, Fe(OH)3. The iron portion of the effluent is to be mostly in the particulate phase with a small amount of dissolved ferrous hydroxide. The following effluent concentrations of total iron shall not be exceeded: Monthly average: one (1) mg/1 total iron Daily maximum: three(3) mg/1 total iron The variance is granted for a period of five (5) years and eleven (11) months from the date that an approved construction permit is issued by the Florida Department of Environmental Regulation for the treatment facility. In the event of development of better practicable treatment technology during the period of the variance, the Florida Department of Environmental Regulation will provide reasonable notice of the later developed technology and propose a reasonable schedule for implementation of said treatment technology, at which time Mid-States will, subject to its right to obtain review of proposals by the Florida Department of Environmental Regulation, be obligated to make appropriate improvements in its waste treatment facility, as may be required of the steel wire process industry in Florida. Mid States shall be required to establish a monitoring program for total iron in its effluent to be approved by the Florida Department of Environmental Regulation. Data obtained by such an approved monitoring program shall be submitted to the Florida Department of Environmental Regulation Subdistrict office on a routine basis. RECOMMENDED this 24th day of January, 1977, in Tallahassee, Florida. G. STEVEN PFEIFFER, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Gene Petersen, Esquire 1125 First National Bank Building Peoria, Illinois 61602 J. D. Boone Kuersteiner, Esquire 2562 Executive Center Circle East Montgomery Building Tallahassee, Florida 32301
The Issue The issue in this case is whether Suncoast Concrete, Inc. (Suncoast), is entitled to Permit No. 194919-003-SO, to construct and operate a construction and demolition debris disposal facility (C & D facility) in Santa Rosa County, Florida.
Findings Of Fact Petitioners Lois and Wallis Mahute live within two miles of the proposed C & D facility. Petitioner Nathaniel Williams, Jr., resides less than one mile from the proposed facility. Suncoast is a Florida corporation and is the applicant for Permit No. 194919-003-SO. The site of the proposed C & D facility is already permitted by the Department as a disposal facility for land clearing debris. It is located on U. S. Highway 90, 1.9 miles east of State Road 87. The disposal area is 7.2 acres on a parcel of land that is 57.8 acres. Suncoast provided all of the information required by the Department for applications for C & D facilities, including geotechnical data, hydrologic data, and financial assurance for closure. The proposed permit includes numerous conditions, including the use of an impermeable liner, groundwater monitoring, stormwater controls, leachate collection and storage, and access control. The requirement for an impermeable liner is uncommon for C & D facilities and adds greater protection for groundwater. Issues Raised by Petitioners Petitioners expressed concern about groundwater contamination. The required liner is designed to prevent rainwater that might become contaminated after contact with the materials in the landfill from entering the groundwater. The proposed facility would be located over some existing land clearing debris. The existing debris is located on part of one side of the proposed landfill. Before the liner is installed, the base would be prepared by covering the area with six inches of compacted soil. After the liner is installed, two feet of clean soil is placed on top of the liner. The liner would be installed in a manner to prevent the liner from being punctured or torn. Groundwater monitoring is required so that any contamination that occurs will be detected and remediated. There are no potable water wells within 500 feet of the proposed facility. The nearest public water supply well is approximately 4,000 feet away. Petitioners presented the testimony of Kyle Holley, who expressed his views on hydrogeologic conditions in the area. Mr. Holley is not a geologist or hydrologist and was not competent to testify regarding the hydrogeologic conditions in the area. Petitioners expressed concern about odors, but presented no competent evidence that foul or unhealthy odors would be generated by the facility. The permit conditions that require a small working face and weekly cover with soil would minimize odors. Petitioners expressed concern about fires, partly because fires have occurred at other C & D facilities. The evidence shows that the requirements of the proposed permit, including the prohibition against burning and requirements to maintain a small working face and to cover with soil on a weekly basis, would minimize the possibility of fires at the facility. The facility must maintain access for fire trucks to the disposal area so that, if a fire occurs, it can be suppressed. Petitioners expressed concerns that the facility would not be safely closed in the event that Suncoast became bankrupt or otherwise ceased operations at the facility. The evidence shows that the financial assurance requirements of the proposed permit provide a means to close the facility in the event that Suncoast was unwilling or unable to close the facility. Petitioners expressed concerns about the “pattern of abuse” by landfill owners. However, Petitioners presented no evidence that Suncoast has shown a pattern of noncompliance, or that the landfills where these alleged abuses have occurred are similar to Suncoast’s proposed C & D landfill with respect to physical conditions and permit requirements. Suncoast provided reasonable assurance by a preponderance of the evidence that the facility, with the conditions in the permit, will comply with all applicable rule requirements regarding the protection of groundwater, odor and fire control, and proper closure of the facilities. In summary, Suncoast proved by a preponderance of the evidence that it has provided reasonable assurance that the proposed facility meets all regulatory criteria for entitlement to Permit No. 194919-003-SO.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order granting Permit No. 194919-003-SO, subject to all the conditions set forth in the Department’s Notice of Intent to Issue, for the construction and operation of a construction and demolition debris disposal facility in Santa Rosa County, Florida. DONE AND ENTERED this 20th day of May, 2009, in Tallahassee, Leon County, Florida. BRAM D. E. CANTER 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 20th day of May, 2009. COPIES FURNISHED: Michael W. Sole, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Tom Beason, General Counsel Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Lea Crandell, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 William J. Dunaway, Esquire Clark, Partington, Hart, Larry Bond & Stackhouse 125 West Romana, Suite 800 Pensacola, Florida 37502 Ronda L. Moore, Esquire Department of Environmental Protection Douglas Building, Mail Stop 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Nathaniel Williams, Jr. 8984 Tara Circle Milton, Florida Wallis Mahute 32583 5500 Cox Road Milton, Florida 32583 Lois Mahute 5504 Cox Road Milton, Florida 32583
The Issue Whether Robert A. Pace has violated Section 482.161(5) and (6), Florida Statutes, and Rules 10D-55.04(4) and 10D-55.35(2), Florida Administrative Code, and therefore should be denied a pest control identification card and the opportunity to take the examination to become a certified pest control operator.
Findings Of Fact Testimony and evidence was introduced by DHRS from various witnesses regarding Pace's activities as the holder in the past of a pest control identification card with both Suncoast and Bay Area Control Companies, and as an emergency certified pest control operator for Suncoast Pest Control Company. From that testimony only the following factual allegations were proven. All other allegations against Robert A. Pace as stated in the letters of denial clearly were not proven by substantial and competent evidence. On or about March 21, 1974, Pace was a holder of a pest control identification card as an employee of Suncoast Pest Control. At this time Pace was also a partner in this company. On that date, Robert Pace offered to conduct a free termite inspection of the residence of Melvin Redlin. The inspection was conducted and live termites were shown to Mrs. Redlin by Pace with the explanation that they had been found in the area of the tub trap or plumbing service access in the bathroom of the Redlin's home. On the same day, Pace solicited a termite treatment contract with the Redlins. Treatment for subterranean termites was begun by employees of Suncoast Pest Control, but while it was in progress, one of Redlin's neighbors stated that he had never seen termites. One of the Suncoast employees stated that he had some live termites in the truck and showed Redlin and others a log infested with live termites. At that point Redlin became irate, suspecting that the individual who had inspected his home had shown his wife termites taken from the truck and not from the plumbing access space. Redlin ordered all work by Suncoast to cease. At the time Redlin directed them to stop, chemicals were being introduced into the ground around the slab foundation of the Redlin home. Before leaving, a Suncoast employee poured a jar of chemicals into the tub trap. Three weeks later, in response to a complaint by the Redlins, William Bargren, who is qualified as an expert witness in entomology and who is employed as an investigator with DHRS, inspected the Redlin's residence. Bargren found no evidence of prior termite infestation. On or about July 1, 1974, a contract for the treatment of subterranean termites was solicited from John A. Johnson by Suncoast Pest Control Company. This contract bore the signature of Robert A. Pace as a representative of Suncoast; however, Johnson was unable to identify Robert A. Pace at the hearing and described the man with whom he had dealt as being taller and heavier than Pace. Pursuant to this contract, the Johnson's house was treated for subterranean termites and certain structural repairs were made in the attic by employees of Suncoast. William Bargren, identified above, testified that upon his subsequent inspection of the home, in his opinion, it was only partially treated. Bargren found evidence of previous subterranean termite infestation but concluded that the inner walls of the foundation of the house had not been treated. For the treatment of the subterranean termites and repairs to the house Johnson wrote checks payable to Suncoast in the amount of One Thousand Eight Hundred Twenty-Two Dollars and Forty-Five Cents ($1,822.45) and One Thousand One Hundred Fifty-Five Dollars ($1,155.00). Pace was not an emergency pest control operator until July 10, 1974. The deposition of Mrs. Annie Symons, admitted pursuant to stipulation of the parties, indicates that in October, 1974, an employee of Suncoast Pest Control known only as "Joe" to Mrs. Symons inspected her residence for termites. Mrs. Symons had recently purchased the house and obtained a termite inspection and certificate prior to purchase certifying there was no evidence of termite infestation. The Suncoast employee inspected Symons' residence and advised her that her house had an active termite infestation showing her a piece of wood with live termites. Mrs. Symons called Southern Labs, the pest control firm which had conducted the original inspection. Michael Spokes, an employee of Southern Labs, reinspected Symons' residence and found no evidence of termite infestation. Concerned at the conflicting reports, Mrs. Symons contacted the Division of Health and her house was inspected by David Jones, an etomologist qualified and accepted as an expert witness at hearing and employed by the Division of Health as an inspector. Jones inspected Symons' house and could find no evidence of termite infestation. In October, 1974, Pace was the emergency certified pest control operator for Suncoast. There was no evidence introduced that Suncoast was advised of the Symons matter and that Pace was on notice of the conduct of his employee. On or about July 23, 1975, Robert A. Pace, Philip Nicholson and Rick Draper went to the residence of Irene Shipley, 301 East Lake Fern, Lutz, Florida. Mrs. Shipley was offered a free inspection by Mr. Pace which she accepted. While Pace talked with her outside of her house, Rick Draper inspected her house and a mobile home belonging to her son located to the rear of her property. According to Mrs. Shipley, Draper went under both structures and produced insects which he identified as termites. Mrs. Shipley and Pace stood outside during the inspection and discussed and negotiated a price for treating both structures. Pace stated that he would spray under both homes, the woodwork and the attic for One Hundred Fifty Dollars ($150.00) for each home. Eventually a price of Two Hundred Fifty Dollars ($250.00) was negotiated to treat by spraying both homes. The area under and around both homes was sprayed, and an attempt to spray the attic was made but was thwarted by an inner roof. After completing the Work, Mrs. Shipley gave a check to Pace payable to him in the amount of Two Hundred Fifty Dollars ($250.00). Pace gave her a contract for pest control treatment. Subsequently, Mrs. Shipley became concerned and asked the assistance of the Division of Health. William Bargren, identified above, conducted an inspection of both houses. Under Mrs. Shipley's home he could find no evidence of subterranean termite infestation but did discover dry rot, and under the mobile home, Bargren found evidence of a prior subterranean termite infestation. Bargren stated that in his opinion the treatment given both homes was insufficient because there was no evidence trenching around the house supports or boring in the pilings which he discovered under the mobile home. In October, 1975, Frank Logan contacted Robert A. Pace, while Pace was treating a home for subterranean termite infestation. Logan stated that he was impressed with the work being done and asked for Pace's card. Logan stated that he knew that his home was infested with termites and later called Pace and asked for Pace to inspect his home. Pace conducted an inspection of Logan's home and advised Logan that he had a subterranean termite infestation. Pace testified that he also saw no evidence of what he took to be an inactive dry wood termite infestation in Logan's attic. Subterranean termite treatment was made of Logan's home; however, when Logan's problems were unabated for a year, he contacted the Division of Health. William Bargren, identified above, inspected Logan's residence and found evidence of subterranean termite infestation, a substandard treatment for subterranean termites, and an active dry wood termite infestation in Logan's attic. The subterranean termite treatment was substandard in that the voids in the concrete block foundation had not been drilled and treated. Bargren also testified that the signs of dry wood termites which Pace described as having seen would not indicate an inactive infestation but an active infestation. Bargren did not offer any opinion as to whether the dry wood infestation was over a year old. Bargren stated that dry wood termites are not effected by control treatment for subterranean termites because they do not require contact with the ground. Pace and his colleague, Nicholson, who had assisted Pace on the job, each thought that the other had treated the foundation. ULTIMATE CONCLUSIONS OF LAW Pace is charged with the violation of Section 482.161 (5) and (6) and Rule 10D-55.04(4), Florida Administrative Code, arising out of his conduct in providing pest control services to Melvin Redlin. Because Mr. Redlin demanded that the employees of Suncoast cease treatment of his home prior to their having completed the job, a charge of negligently treating the Redlin residence cannot be sustained. Because live termites were shown to Mrs. Redlin, strong evidence did exist of an active infestation if the termites were from the bathroom plumbing service access. If the termites were introduced by Pace into the Redlin home, clearly Pace would be guilty of fraud and misrepresentation in violation of Section 482.161(5) Florida Statutes. Based on Bargren's testimony that no evidence was found in the bath plumbing service access area of a prior subterranean termite infestation, together with the fact that treatment of that area was done rapidly without opportunity to substantially clean the area, the Hearing Officer finds that such a false representation was in fact made by Pace. Evidence introduced by DHRS clearly indicated that Pace was not an emergency certified pest control operator until July 10, 1974. The treatment of the Johnson residence occurred on July 1, 1974. Rule 10D-55.35, Florida Administrative Code, applies only to certified pest control operators; therefore, Pace cannot be held accountable under that rule for his own activities or the activities of Suncoast employees with regard to the termite control treatment of the residence of John A. Johnson. Bargren found evidence of a prior subterranean termite infestation at the Johnson residence; therefore, there could have been no misrepresentation of an infestation. Bargren did find that the foundation of the Johnson residence was not properly drilled and protected with pesticide. Therefore, Pace did not use methods suitable for the treatment of subterranean termites in violation of Section 482.161(5), Florida Statutes. Although the certified pest control operator for Suncoast on July 1, 1974, would have been responsible for Pace's failure, Pace himself cannot avoid responsibility for his failure to properly treat the Johnson residence by virtue of the provisions of Rule 10D-55.35, supra. There is clear evidence that an employee of Suncoast other than Pace misrepresented the facts of an infestation to Annie G. Symons contrary to Section 482.161(5), Florida Statutes, and Rule 10D-55.04(4), Florida Administrative Code, in October, 1974. At that time Pace was an emergency certified pest control operator. There was no evidence introduced that Pace was contacted by Symons or by DHRS regarding misrepresentation to Annie G. Symons by an employee of Suncoast. Pace cannot be vicariously liable under the provisions of Section 482.161(5) or Rule 10D-55.04(4), Florida Administrative Code, where knowledge of a misrepresentation is required. Although responsible for the pest control treatments as a certified operator, Pace cannot be considered liable for the misrepresentations of a Suncoast employee when Pace was not aware a contract had been made. Pace clearly violated Rule 10D-55.05(2), Florida Administrative Code, by failing to give Mrs. Shipley a copy of the contract before the work was done and payments made. It was clear that the nature of the treatment Pace was to perform was clearly explained to Mrs. Shipley prior to the commencement of the work. Bargren found prior evidence of subterranean termite infestation under one of the homes, and damage to the wood under the other as a result of dry rot. In any event, the inspection of the premises was by Rick Draper, and although Pace sold Mrs. Shipley the contract, it is clear that Mrs. Shipley knew that Pace did not conduct the inspection of the houses because she was talking with Pace outside while watching Draper inspect the house. Bargren's testimony was that the treatment was substandard, and he also testified that the prior infestation of subterranean termites under the mobile home had been stopped. The testimony indicated that bargaining went on between Pace and Shipley regarding the treatment that would be applied and the price for the treatment. Treatment in accordance with this agreement was performed or a good faith effort made. Considering the circumstances there is not substantial and competent evidence of a violation of Section 482.161(5) or (6), Florida Statutes, or of Rule 10D-55.04(4), Florida Administrative Code. Pace is charged with not providing adequate subterranean termite treatment and not treating an active dry wood termite infestation at the residence of Frank Logan. Bargren's inspection revealed evidence of a prior subterranean termite infestation which had been controlled and an active dry wood termite infestation in Logan's attic. Bargren's inspection took place over one year from the date of Pace's initial inspection and treatment. Pace stated that he saw evidence of what he took to be an inactive dry wood infestation when he initially inspected Logan's residence. No evidence was obtained concerning whether the infestation of dry wood termites was over one year old. Testimony was received that dry wood termites will not be affected by subterranean termite control measures; and, further, dry wood termites may fly into a building and start a colony if preventive measures have not been taken. Logan testified that the initial treatment by Pace did not control the termites because he kept seeing them. Pace was negligent in treating for subterranean termites in that he failed to assure that the foundation voids were treated contrary to Section 482.161(6), Florida Statutes. The length of time between Bargren's inspection and Pace's treatment together with the manner of infestation of dry wood termites creates sufficient doubt regarding the allegation of Pace's failure to properly identify the dry wood infestation to find the allegations not proven. The individual allegations proven above are not significant when taken singularly; however, the evidence taken as a whole presents a picture of high pressure salesmanship by Pace and those with whom he was associated, together with poor workmanship in application of treatments. In one instance the evidence is clear that Pace made a misrepresentation of a termite infestation where evidence was lacking. He did solicit contracts on occasions in which another employee made the inspections and he lacked specific knowledge of the conditions found. As part owner of Suncoast, Pace had the responsibility to oversee his employees which he failed to do. Pace should have taken greater care to insure his employees had properly inspected homes, and were dealing honestly and forthrightly with customers. As an employee, Pace did not treat homes in a workman like manner in accordance with accepted practices. The course of conduct engaged in by Suncoast and Pace's failure to control his employees cannot be overlooked.
Recommendation Considering the findings of fact generally and the conclusions of law, the Hearing Officer would recommend that the Department of Health and Rehabilitative Services deny Pace's application to take the examination to become a certified pest control operator on the basis that Pace has not actively worked in pest control for some months, that substantial and competent evidence exist which indicates that Pace's expertise in pest control is lacking, and that his prior conduct raises questions of his business reputation and his ability to supervise employees. The Hearing Officer would further reand that Lewis S. Hall's request for an identification card for Pace be disapproved on the specific basis that Pace misrepresented an infestation to Mrs. Marian Redlin, which reflects adversely on Pace's business reputation and good character. DONE and ORDERED this 29th day of April, 1977, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Frank Wollett, Esquire Nixon E. Farnell, Esquire 521 Oak Avenue Clearwater, Florida 33516 Barbara Dell McPherson, Esquire Post Office Box 2417 F Jacksonville, Florida 32231
The Issue Did Respondent violate Section 475.25(1)(b), Florida Statutes, through fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme, or device, culpable negligence, or breach of trust in a business transaction?
Findings Of Fact Petitioner is responsible for the licensing and regulation of persons who practice real estate in Florida. Authority for the licensure and regulation is set forth in Chapters 20, 120, 455, and 475, Florida Statutes, and associated provisions of the Florida Administrative Code. Respondent has been licensed as a Florida real estate broker at all times relevant to the inquiry. Respondent holds license no. 0237202 as broker for Shad and Shad Realty, Inc., located at 9955 Lem Turner Road, Jacksonville, Florida 32208. At all times relevant to this case, Respondent served as a property manager for the Veteran's Administration in relation to property held by that governmental body. The property management function which Respondent performed for the Veteran's Administration was as a management broker. Property at 3128 Plum Street, Jacksonville, Florida, was one of the properties managed by Respondent for the Veteran's Administration. In the interest of selling the property Respondent invoiced the Veteran's Administration and charged a management fee for his services in relation to that parcel to be paid by the Veteran's Administration. Respondent's management involved the correction of problems with the home at that address. Among the fee services provided by Respondent was the arrangement to have the house treated to rid the premises of fleas, the installation of signs, installing a lock, and certain other repairs. In these circumstances, Petitioner would have other persons responsible for performing the work or would perform the work himself. A related responsibility which Respondent performed for the Veteran's Administration in reference to the Plum Street property was to order a wood-destroying organism inspection to be performed by a licensed firm, J. F. Yearty and Sons, Inc., of Jacksonville, Florida, and for that firm to report the results of its findings in writing. That inspection was performed on June 7, 1995, and a report was prepared. The report which Respondent was provided and read, pointed out visible evidence of wood-destroying organisms observed to the extent, "old signs of powder post beetles scattered throughout the substructure." The report referred to live wood-destroying organisms observed as subterranean termites in the wall studs, sills, and bracing of the right side of the home. The report also stated the following: Water rot to the siding and trim scattered around the entire house. Heavy subterranean termites damage to the wall studs, sills, and bracing on the right side. Water stains to the kitchen and bathroom subflooring. Water stains to the flooring on the porch left front corner of the house. Respondent sent the inspection report to the Veteran's Administration. Realizing that the report referred to active termites, Respondent ordered termite treatment for the home. In doing so he understood that there were problems with termites in the wall studs, sills, and bracing. In his experience Respondent further understood that the extent of the damage that had been found at the home could be major. Respondent obtained a termite bond following the treatment. Respondent knew that there was a contract pending for the purchase of the Plum Street property. The buyer was John Harold Bamping. Mr. Bamping was represented by Shirley Jean Irons as a real estate sales agent for Lester W. Jenkins Real Estate, Inc., Lester Jenkins Broker, whose business address is 5147 San Juan Avenue, Jacksonville, Florida 32210. In preparation for the closing on the Plum Street property, Ms. Irons went to Respondent's office, who was acting as the seller's representative for the Veteran's Administration in this context. Ms. Irons obtained a property receipt, the termite bond involving the treatment of the Plum Street property and the keys to the property. The bond constituted evidence that the property had been treated for termites but did not explain the degree of the problem for which treatment was necessary. At the time these items were picked up, Ms. Irons asked Respondent's wife for the termite inspection report related to the property. The wife told Ms. Irons that reports were not given out, only bonds. Ms. Irons told the wife that Ms. Irons needed the termite inspection report. The wife summoned Respondent from another part of the Respondent's office. Respondent then told Ms. Irons that he did not furnish the termite inspection report, properly referred to as wood-destroying organism inspection report. Respondent told Ms. Irons that the bond for termite treatment would be the only item provided to Ms. Irons in relation to the upcoming real estate closing. At hearing, Respondent indicated that his practice is not to provide a copy of the termite inspection report unless it is specifically asked for and then that Respondent does not always give the report to the party requesting the report "because that's VA property. That belongs to the VA." The VA refers to Veteran's Administration. Ms. Irons made John Bamping and Audrey Bamping his wife aware of the fact that Respondent was not providing a copy of the wood-destroying organism inspection report for purposes of the closing. This meant that the only evidence of the circumstances associated with the termite problem remained the termite bond. On July 11, 1995, the transaction closed for purchase of the Plum Street property, utilizing forms prepared by the Veteran's Administration. Ms. Irons and the Bampings attended the closing. Subsequent to the closing the Bampings became aware of the wood-destroying organism damage at the Plum Street house. The problems discovered were not evident when Ms. Bamping first saw the home before it was purchased. After the Bampings discovered the extent of the problem, they obtained a copy of the wood-destroying inspection report from Yearty and Sons which reflected the exact nature of the problems with the dwelling. Attempts were made to try and resolve the issue concerning the damage to the home. Eventually, the Bampings found it necessary to hire an attorney to assist them in addressing the damage to the home caused by the wood-destroying organisms. A suit was filed against the Veteran's Administration and damages were recovered in the amount of $2,000, and the Veteran's Administration was released in full from all claims for the wood-destroying organism damage. The Bampings also authorized their lawyer to file a complaint with Petitioner concerning Respondent's failure to disclose the wood-destroying organism inspection report.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered finding Respondent in violation of Section 475.25(1)(b), Florida Statutes, and imposing a 30-day suspension and a fine of $1,000. DONE AND ENTERED this 9th day of April, 1999, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 9th day of April, 1999. COPIES FURNISHED: Laura McCarthy, Esquire Division of Real Estate Department of Business and Professional Regulation Suite N308 400 West Robinson Street Orlando, Florida 32801-1772 Vernon B. Shad Shad and Shad Realty, Inc. Post Office Box 9750 Jacksonville, Florida 32208 Herbert S. Fecker, Division Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 William Woodyard, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact The certified general contractors examination given on February 23-24, 1993, consisted of two parts. Petitioner received a score of 71 on the first part and a score of 67 on the second part. The minimum score required to pass each part is 70. Petitioner challenged question 5 in the second part. The question related to the "angle of repose". The term "angle of repose" has been used for a number of years in the field of construction. The angle of repose is used when calculating the stability of soils for purposes of excavation. Petitioner chose answer "B" to question 5. The correct answer to question 5 is answer "D", i.e., 5 feet 6 inches. The testimony of Respondent's expert witness was credible and persuasive. Petitioner also challenged question 9 relating to the extra square feet needed for fire resistant partition walls. The problem required calculating the linear feet first and then multiplying by the height of the walls after subtracting for slab thickness. The examination was open book. Petitioner was permitted to refer to the Standard Building Code. The correct answer to question 9 was "B". Petitioner chose answer "D". The testimony of Respondent's expert witness was credible and persuasive. Petitioner challenged question 10 which required a calculation of the time to lay interior masonry walls. The correct answer to question 10 was "A". Petitioner chose answer "C". The testimony of Respondent's expert witness was credible and persuasive.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying Petitioner's challenge to his score of 67 on the general contractors examination given on February 23-24, 1993. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 2nd day of December, 1993. DANIEL MANRY 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 2nd day of December, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3938 Respondent submitted proposed findings of fact. It is noted below which proposed findings of fact were accepted and the paragraph number(s) in the Recommended Order where they were accepted, if any. Those proposed findings of fact which were rejected and the reason for their rejection are also noted below. No notation is made for unnumbered paragraphs. The Respondent's Proposed Findings of Fact Respondent's paragraphs 2-3 are rejected as irrelevant and immaterial. Respondent's remaining proposed findings of fact are accepted in substance. COPIES FURNISHED: Daniel O'Brien, Executive Director Department of Business and Professional Regulation Construction Industry Licensing Post Office Box 2 Jacksonville, Florida 32202 Jack McRay General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Vytas J. Urba, Asst. General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0750 Behzad Khazaree 142 Tollgate Trail Longwood, Florida 32750
The Issue Whether Respondent violated Subsection 489.129(1)(j), Florida Statutes (1997), and Subsections 489.129(1)(n) and (o), Florida Statutes (1995).
Findings Of Fact At all times material to this proceeding, Frazier was licensed by the Department as a certified roofing contractor, having been issued license number CC CO56955 as Ronald Lee Frazier, d/b/a Frazier Urethane 4 No Leak. On or about November 24, 1995, Frazier, contracted with Victor and Janie Anderson to remove and replace the roof of the Anderson's home at 433 111th Street, Marathon, Florida, for $4,657.25. The Andersons paid the full contract price to Frazier in two increments. On or about November 24, 1995, they paid $2,328.62, and on or about January 25, 1996, they paid $2,328.63. In January 1996, Frazier removed and replaced the Anderson's roof, but Frazier applied the new roofing material without first installing a base sheet or moisture barrier. No evidence was presented on the specific manufacturer's specification for the product installed by Frazier; however, the evidence did establish that typical manufacturers' specifications for products such as urethane require the installation of a base sheet before such products are applied. The Monroe County Building Code does require that self-adhesive roofs such as the one installed by Frazier must have a one ply ASTM D226 type II anchor sheet with a four-inch headlap. In other words, the roof should have a base sheet of 30-pound felt before the urethane is applied. The base sheet or moisture barrier helps keep water off the roof, and it also facilitates removal and replacement of the roof. Failure to install the base sheet contributed to the development of roof leaks which the Andersons began noticing approximately 17 months after the work was done, a much shorter time than the normal life expectancy for the urethane roof materials that Frazier used. Frazier's failure to install a base sheet on the Andersons' roof constitutes incompetency in the practice of contracting. The only way to correct Frazier's work on the Anderson's roof is to remove the roof installed by Frazier and install a new roof in a proper manner. The Andersons began noticing leaks in the roof in June 1997. They notified Frazier by telephone and by letters. Frazier and his employees inspected the Anderson's roof and agreed to perform work to stop the leaks. In September 1997, Frazier went to the Anderson's home and began attempting to work on the roof. Monroe County roofing inspector Al Forrest met with Frazier that day at the Anderson's home and discussed the work that needed to be done. Frazier agreed to correct the deficiencies in the roof; however, Frazier left that day without completing the work and never returned to perform further work. On or about December 1, 1995, Vivian Haverly contracted with Frazier to repair the leaky roof on her home at 1711 Avalon Avenue, Ft. Pierce, Florida. Frazier was to install a new urethane roof on Ms. Haverly's house. Among other things, the contract called for Frazier to "raise the A/C unit on stand as per code." The contract price was $5,039.00. Pursuant to the contract, Ms. Haverly paid Frazier $1,039.00 on December 1, 1995, and $3,900 on January 19, 1996. The Southern Building Code Congress International (SBCCI) has been adopted as the building code by all counties in Florida except for Dade and Broward Counties. Section 1509.1.2 of the SBCCI provides that "[r]oof coverings shall provide weather protection for the building at the roof." Frazier's crew worked on Ms. Haverly's roof but never fixed the leaks. The leaks worsened, causing damage in the interior of Ms. Haverly's house. Frazier failed to raise the roof-mounted air conditioning equipment and sprayed urethane on the air conditioning unit, damaging it to the point that the air conditioner became inoperable and had to be replaced at a cost of $2,700. Frazier did not spray urethane on the portion of the roof below the air conditioning unit as he should have done. Ms. Haverly had to have another company repair her roof. On or about April 18, 1997, John Ward entered into a contract with Frazier as Frazier Urethane 4 No Leak to repair the roof of a two-story building in Marathon, Florida, owned by Virginia Ward and managed for her by her son John Ward. Frazier was to apply a urethane coating to the roof and fix roof leaks for $4,200. The Department incurred costs for the investigation and prosecution of Case Nos. 98-5213 and 99-2186 in the amount of $1,219.18. The Department incurred costs for the investigation and prosecution of Case No. 99-3573 in the amount of $244.65.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Ronald Lee Frazier did not violate Subsections 489.119(2) and 489.129(1)(j), Florida Statutes, as set forth in Count III of Case No. 98-5212; finding that Ronald Lee Frazier did violate Subsection 489.129(1)(n), Florida Statutes (1995), as set forth in Count III of Case Nos. 98-5213 and 99-2186 and Count II of Case No. 99-3573; finding that Ronald Lee Frazier did violate Subsection 489.129(1)(o), Florida Statutes, as set forth in Count III of Case No. 99-3573; imposing an administrative fine of $1,000 for violation of Subsection 489.129(1)(n), Florida Statutes, in Count III of Case Nos. 98-5213 and 99-2186; imposing an administrative fine of $1,000 for violation of Subsection 489.129(1)(n), Florida Statutes, in Count II of Case No. 99-3573; imposing an administrative fine of $1,500.00 for violation of Subsection 489.129(1)(o), Florida Statutes, in Count III of Case No. 99-3573; suspending Ronald Lee Frazier's license for six months; assessing costs of $1,463.83 for investigation and prosecution in Case Nos. 98-5213, 99-2186, and 99-3573; and taking no action to enforce or collect payment of the fines or assessed costs without authorization of the bankruptcy court unless Ronald Lee Frazier's bankruptcy petition is dismissed or discharged. DONE AND ENTERED this 30th day of August, 2000, in Tallahassee, Leon County, Florida. Susan B. Kirkland Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of August, 2000. COPIES FURNISHED: Theodore R. Gay, Esquire Department of Business and Professional Regulation 401 Northwest Second Avenue Suite N-607 Miami, Florida 33128 Ronald Lee Frazier Post Office Box 12735 Ft. Pierce, Florida 34979-2735 Ronald Lee Frazier 1006 Southwest Sultan Drive Port St. Lucie, Florida 34983 Barbara D. Auger, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Rodney L. Hurst, Executive Director Construction Industry Licensing Board 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467
Findings Of Fact At all times pertinent to the charges, respondents have been licensed real estate salesmen and brokers. Respondent Ed Wasdin holds real estate salesman's license number 0341534. Respondent Betty L. Green 2/ held real estate salesman's license number 0341467 at the time of the alleged misconduct. She now is a licensed broker. Respondent Ester L. Turner holds broker's license number 0090375. At the time of the alleged misconduct, she was the qualifying broker for Ed Wasdin Realty, Inc., a registered corporate real estate broker. (Pretrial Stipulation; Testimony of Vann.) During the time in question, Mr. Wasdin also owned and operated Ed Wasdin and Son, Inc., a licensed construction company, where Ms. Green served as his full-time secretary and office manager. She worked as a real estate salesman for Ed Wasdin Realty, Inc., on a part-time basis. (Testimony of Vann; Pretrial Stipulation.) II. On November 11, 1980, Hank V. Mannheimer and his wife, Barbara, saw an Ed Wasdin Realty, Inc., "For Sale" sign in front of a house located at 721 West Crossway Road, Tallahassee, Florida. They called the telephone number listed on the "For Sale" sign and made an appointment for respondent Wasdin to show them the house. (Testimony of H. Mannheimer, B. Mannheimer.) Later that day, Mr. Wasdin took the Mannheimers on a tour of the house. They then returned to Mr. Wasdin's office where respondent Green, as his secretary, prepared a standard real estate contract on a form published by the Florida Association of Realtors. The Mannheimers signed the contract as purchasers, and Ed Wasdin signed on behalf of Ed Wasdin and Son, Inc., the seller. The Mannheimers also delivered a $1,000 earnest money deposit check made payable to the seller, Ed Wasdin and Son, Inc. (Testimony of H. Mannheimer, B. Mannheimer; P-10, R-5.) III. The real estate sales contract contained a "Termite Clause" granting the buyers the right to have the property inspected "to determine whether there is any active termite or wood destroying organisms in any improvement on said property, or any damage from prior termite or wood destroying organism to said improvements". (P-10.) During the morning of January 15, 1981, respondent Green, on behalf of the seller, Ed Wasdin and Son, Inc., telephoned Helms Exterminating, Inc., and ordered a termite inspection of the house. David Baker, a termite inspection, was sent to the house to conduct the inspection that same morning. (Testimony of Vann, Baker.) On inspecting the house, Mr. Baker found termite infestation and termite damage to the left front corner of the house. He then telephoned Ms. Green and told her that he had seen evidence of termites. He did not, however, tell her of any termite damage. She told him that she needed a "clear" termite report by that afternoon (since closing was scheduled for that afternoon or the next day) and authorized him to treat the house for termites. She did not speak to respondent Wasdin before authorizing the treatment. (Testimony of Vann.) Mr. Baker testified that he told Ms. Green of termite damage to the house and that she promised to repair the damage in order to get him to issue a "clear" termite report that day. Ms. Green denied that Mr. Baker told of the damage and denied that she promised to make repairs. The testimony of Ms. Green is more credible and worthy of belief than that of Mr. Baker, whose previous statements about this incident have been incomplete, 3/ untrue or contradictory. In his termite inspection report of January 15, 1981, Mr. Baker indicated that no active termite infestation or visible termite damage was observed--the first statement was, at best, incomplete, the second was false. After discovering the termite damage, Mrs. Mannheimer questioned him twice. The first time, he told her that he had only found ter-mites on January 15, 1981, and mentioned nothing of termite damage. Later, when questioned again, he stated that he had also found termite damage. Further, Ms. Green was not authorized to promise structural repairs to a residence, and it is unlikely that she would have made such a promise when she did not know the extent of the damage and had no way of knowing the cost of repair. The conflict in testimony is therefore resolved in Ms. Green's favor. (Testimony of Vann, Baker.) On January 15, 1981 after treating the residence for termites, Mr. Baker issued a termite inspection report indicating that he had observed no active termite infestation or visible damage. The report, on its face, indicated that it was to be mailed to Ed Wasdin Realty at 4432 Kensington Road, Tallahassee, Florida. The Mannheimers did not see the report until after the closing. (Testimony of Baker, Green; P-7.) IV. In negotiating for and purchasing the house from Ed Wasdin and Son, Inc., the Mannheimers believed, and had reasonable grounds to believe, that they were dealing with realtors associated with Ed Wasdin Realty, Inc. The house was advertised by an Ed Wasdin Realty, Inc., "For Sale" sign; they called the number listed on the sign, and Mr. Wasdin showed them the property; a contract identified with the Florida Association of Realtors was executed which contained an Employment of [Real Estate] Agent clause; 4/ both Ms. Green and Mr. Wasdin worked for both companies; and the offices of the Wasdin realty and construction companies were located in the same model home. Although the offices in the model home were separately marked as construction or realty company offices, the conference room (where the closing took place) was not marked as belonging to either. In actuality, the sale of the residence was not a transaction on the account of Ed Wasdin Realty, Inc. The house was not listed with the realty company; a commission was not promised or paid to the realty company; and the deposit was not placed in the realty company escrow account. (Testimony of Vann, H. Mannheimer, B. Mannheimer.) No evidence was presented to show that respondent Wasdin knew, or should have known, that the house in question had a termite infestation or termite damage. There is not a sufficient factual basis to impute such knowledge to him. Neither was any evidence presented to show that respondent Turner, qualifying broker for Ed Wasdin Realty, Inc., knew, or should have known, about the real estate transaction in question, including the termite infestation and damage. The evidence is insufficient to support a factual inference that Ms. Turner was negligent or derelict in her duty to supervise the realty company's operations. Although, in this case, a realty company's sign was used to advertise a property which was not listed with the company, the evidence does not show that this had ever happened before, that this was anything but an isolated mistake. The evidence is insufficient to support a finding that either Mr. Wasdin or Ms. Green saw the termite inspection report prior to closing, or affirmatively represented to the Mannheimers that no termites had been discovered during the January 15, 1981, termite inspection. 5/
Recommendation Based on the foregoing, it is RECOMMENDED: That the administrative complaint against the respondents be dismissed. DONE and RECOMMENDED this 15th day of October, 1982, in Tallahassee, Leon County, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of October, 1982.
The Issue The issue in this case is whether proposed Rule 5E-2.038 is an invalid exercise of delegated legislative authority.
Findings Of Fact On November 5, 1993, Respondent published in the Florida Administrative Weekly the text of a proposed rule to be known as Rule 5E-2.038, which Respondent indicated that it intended to adopt. The proposed rule reads: 5E-2.038 Restrictions on Use of Bromacil in Citrus: Penalties. Definition. For the purpose of this rule "permeable, better drained soils" means those soils defined as such in the U.S.D.A. Agricultural Handbook No. 436 (1975), a copy of which may be obtained from the U.S. Government Printing Office, Washington, D.C. 20402-9328. Use Restriction. The use of Bromacil is prohibited for weed control in areas producing citrus fruit on any permeable, better drained soil identified in the intended site of application. Permeable, better drained soils which occur in citrus producing areas of the state include, but are not limited to, soils unnamed and characteristic of Quartzipsamments, and the following soil series classifications: Adamsville Archbold Astatula Bahiahonda Broward Canaveral Candler Cocoa Dade Florahome Fort Meade Gainesville Lake Lakewood Neilhurst Orlando Palm Beach Paola Satellite St.Augustine St. Lucie Tavares Orsino Penalties. The use or application of bromacil by any person in a manner inconsistent with the provisions of this rule is a violation of Chapter 487, Florida Statutes. Specific Authority 570.07(23) FS. Law implemented 487.031(10), 487.031(13)(g), 487.051(1) FS. History--New. 1/ Bromacil, which is manufactured by Dupont, is a broad- spectrum residual herbicide. It has been used extensively in citrus groves since its introduction about 25 years ago. The application rate of bromacil has generally increased since its introduction in the late 1960s. At first, growers applied bromacil in narrow strips down the rows of trees. In the 1970s, growers applied bromacil in bands out to the drip lines of the trees. By the late 1970s, growers applied bromacil twice annually, rather than once annually, as had been more typical at first. From the 1980s through present, growers began applying bromacil trunk to trunk, row to row. Growers control weeds to reduce competition, especially around young trees. Also, when growers began changing from overhead to microjet irrigation 10-15 years ago, it became more important to clear undergrowth from the area around the microjet, which is only 6-12 inches above the ground. Historically, weed- clearing was done manually and later by mechanically hoeing, but these activities disturb the sandy soil and contribute to rutting when trucks enter the groves during harvesting. There are other herbicides available, although they are less favored among growers due to considerations of cost and efficacy. Some are contact herbicides, rather than the longer- lasting residual herbicides. Bromacil is a pre-emergent herbicide, but other such herbicides are available. Bromacil is a Group C carcinogen, which means that it is a possible human carcinogen. Bromacil has caused tumors in male mice, but not male rats. Sometime in 1988 or later, the U.S. Environmental Protection Agency published a health advisory concerning bromacil. Health Advisories describe nonregulatory concentrations of drinking water contaminants at which adverse health effects would not be anticipated to occur over specific exposure durations. Health Advisories contain a margin of safety to protect sensitive members of the population. Health Advisory Levels (HALs) are typically set for one- day, ten-day, seven-year, and lifetime (70-year) exposures. Group A and B carcinogens, which are known or probable human carcinogens, do not carry recommended HALs for lifetime exposures. The bromacil ten-day HAL for a child is 5000 parts per billion (PPB). The bromacil seven-year HAL for an adult is 9000 PPB. The bromacil lifetime HAL is 90 PPB. In 1986, bromacil had become due for reregistration by the U.S. Environmental Protection Agency. In need of data to support reregistration, Dupont, Respondent, and the then- Department of Environmental Regulation (DER) embarked on a data- collection project to assess the presence of bromacil in the groundwater. By 1987, growers, Dupont, and Florida state agencies were aware that bromacil was entering the groundwater. By this time, the Department of Health and Rehabilitative Services had received reports of bromacil killing oak trees adjacent to citrus groves, although the record is unclear as to the means of exposure. By the end of 1987, Respondent had detected bromacil in a drinking- water well. Bromacil has a typical soil half-life of 120 days. But it degrades more slowly in groundwater, so its primary means of dissipation in groundwater is through dispersal. Little if anything is known of the duration of bromacil in surface water, such as lakes and rivers. To initiate the groundwater monitoring study, DER, Respondent, and Dupont identified the three major types of citrus-growing areas: the flatwoods typical of south-central and southwest Florida citrus land; the coastal region of Indian River; and the central ridge running down the central portion of the state. Due to its predominant well-drained soils, the central ridge is the area that is effectively subject to the prohibition contained in proposed Rule 5E- 2.038. The study site eventually selected in the central ridge site is in the Waverly grove east of Waverly in Polk County. The soil on the 5.7-acre site, which is in the Candler soil series, is typically sandy to a depth of 12.5 feet with low organic matter. The state agencies and Dupont determined that the application history of bromacil was not uncharacteristic for the area. 2/ However, the manner of application was different from prevailing practices to the extent that it was in a banded treatment, which covers only about 60 percent of the grove acre, rather than the trunk-to-trunk treatment, which covers nearly the entire grove acre. The Waverly grove owner decreased treatment rates by 33 percent between 1987 and 1988, and by another 33 percent between 1989 and 1990. Between 1990 and 1991, the grove owner decreased the treatment rate by 20 percent, and by another 33 percent between 1992 and 1993. Between 1987 and 1993, the total decrease in application rate was 77 percent. Ten monitoring wells (MW- ) were installed on the Waverly site during the fall of 1986. 3/ Readings were generally taken on a quarterly basis. As was the case with the sites selected in the flatwoods and coastal region, the state agencies and Dupont chose the Waverly site as a "reasonable 'worst-case'" scenario based on soil, climate, and agronomic conditions. Sampling of the well water at all three sites began in September 1987. Due to the infrequency of detections in the coastal region and flatwoods, sampling of these sites was discontinued in December 1989, and the soils described by the rule are not those typically found in these areas. At about the time that the study was terminated at the flatwoods and coastal region sites, Dupont relabelled its products containing bromacil to reduce the rate of application in the central ridge. 4/ The relabelling was Dupont's response to early indications of the extent to which bromacil was entering the groundwater in the central ridge. At the Waverly site, Dupont and the state agencies determined the direction of groundwater flow, the time required for bromacil to travel through the unsaturated zones to the water table, and the linear velocity of the groundwater. 5/ For MW-1 through MW-10, levels of bromacil over 90 PPB were detected in 14 of 204 samples taken, for a rate of 7 percent. 6/ No readings over 90 PPB were found in MW-1, MW-2, MW-5, MW-6, or MW- 10. However, each shallow well on the Waverly site suffered bromacil contamination in excess of 90 PPB. The northernmost well, which is at the highest elevation (MW-3), four times had readings over 90 PPB, with the highest of 119 PPB. The central well, which is at a mid-elevation (MW-4), eight times had readings over 90 PPB, with the highest of 156 PPB. The southernmost well, which is at the lowest elevation (MW-7), six times had readings over 90 PPB, with the highest of 149 PPB. MW-7, as well as MW-8 and MW-9, are the only wells outside the treated grove area. They are about 90 feet from the grove edge. MW-8 and MW-9 are the only other wells whose readings exceeded 90 PPB. The intermediate well, MW-8, had four readings over 90 PPB with the highest of 103 PPB. The deep well, MW-9, had one reading of 150 PPB, which was the only reading over 90 PPB for this well. Analysis of these data must consider numerous factors, including the timing and amount of bromacil applied in the Waverly grove, the time it takes for peak concentrations of bromacil to reach the water table, and the time it takes for bromacil to be carried with the groundwater to sites outside the treated grove. As noted in footnote 5, peak concentrations of bromacil pass through the unsaturated zone at a rate of 8-9 feet per year. Given the varying thicknesses of the unsaturated zones around MW- 10, MW-1 through MW-3, MW-4 through MW-6, and MW-7 through MW-9, as noted in footnote 3, peak concentrations of bromacil would reach the water table for each of these wells or well clusters, following application, at about 4 years for MW-10, 3 years for MW-1 through MW-3, 2 years for MW-4 through MW-6, and 1 1/2 years for MW-7 through MW-9. Once in the surficial aquifer, bromacil evidently travels at the rate of the groundwater itself, whose linear velocity in the area is 1-2 feet per day. 7/ Based on the factors set forth in the preceding paragraph, Dupont concluded in its analysis that the 1992 readings of bromacil in the groundwater at MW-10 and MW-1 through MW-6 were due to applications made between 1988-1990 and the 1992 readings of bromacil in the groundwater at MW-7 through MW-9 were due to applications made between 1987-1990. The Dupont analysis of MW-10 and MW-1 through MW-6 fails to explain all of the variability of the readings during 1992. Although MW-1 and MW-3 remained constant during 1992, MW- 2, which is the intermediate well in this cluster, experienced its highest reading in September 1992--exceeding its next highest reading by almost 15 PPB. However, the application rate of bromacil decreased by 33 percent during the three years in question and the season of the application remained constant for the first two years. In 1990, the rainy- season applications were discontinued, 8/ so the abnormally high reading was presumably not due to the accelerated transport of bromacil, with excessive rainwater, through the unsaturated zone. The discrepancies persist even if one assumes that the peak levels of bromacil penetrated the unsaturated zone about three years following their application on the surface. About three years earlier, as noted in footnote 2 concerning rates of bromacil application in the Waverly grove, about 1.6 pounds of active ingredient per acre was applied during the rainy season. However, one year earlier the same amount was applied, and two years earlier 2.4 pounds of active ingredient per acre was applied; and the September 1991 and 1990 readings were a relatively modest 21.8 PPB and 33.1 PPB, respectively. 9/ Dupont concluded in its analysis that the 1992 readings of bromacil in the groundwater at MW-7 through MW-9 were due to applications made between 1987 and 1990. Therefore, these three wells, which are downgradient from the grove area and the rest of the monitoring wells, span four years of bromacil applications. During this time, the amount of bromacil applied decreased by 58 percent. Meaningful analysis of the extent of variability between 1992 bromacil levels in MW-7 through MW-9 is impaired by the absence of data regarding pre- 1987 bromacil application amounts. In any event, the Waverly data clearly demonstrate that bromacil persists a long time in groundwater, especially when compared to the relatively short period required for degradation in soil. The Waverly data also shows that bromacil travels in groundwater beyond the area in which bromacil was applied. The Waverly data suggest that the bromacil accumulates at relatively shallow depths in the surficial aquifer, although the relatively higher readings for the down-gradient, deep monitoring wells suggest that, over time, bromacil may penetrate deeper, as well as travel laterally. The Waverly data are also significant for their omissions. The rate of degradation of bromacil in water obviously is quite slow. But the data offer little insight into the two most likely means by which bromacil concentrations are reduced over time--i.e., discharge into surface waters and dissipation of these relatively minuscule amounts of herbicide through dispersal in large volumes of groundwater. There are no data from the intermediate or Floridan aquifers in the vicinity of the Waverly site. There are no data tracking the bromacil in the groundwater once it leaves the Waverly site or after it is discharged from the groundwater into surface water, such as the lake that is located a short distance and downgradient from the Waverly study site. The data offer no basis for determining when and how bromacil is eliminated from the groundwater. In 1987, Respondent found bromacil in existing wells in the Kahn grove two miles southeast of Sebring in Highlands County. Evidently for this reason, the Kahn groves formed part of another groundwater monitoring site involving bromacil. Like the Waverly site study, the study of the Kahn grove, which became known as the DeSoto City site, also began in 1987. Dupont participated in the data collection from this 90-acre test site, which is in the "highly vulnerable" southern end of the central ridge. 10/ The DeSoto City site, whose predominant soils are yellow fine sand, initially involved four installed sand point wells (SP- ) and four existing drinking and/or water supply wells. Readings were generally done on a quarterly basis. After several months, seven more monitoring sand point wells were installed for a total of 11 sand point wells. 11/ Four of the new sand point wells were in the grove in which the four original sand point wells were installed. The other three new sand point wells were placed in the grove immediately east of the location of the other eight sand point wells and immediately north of an existing residential area. Eventually, 89 individual drinking water wells in the residential area were added to the DeSoto City study. The individual drinking water wells, which are typically sunk in the surficial aquifer, are downgradient from a portion of the Kahn groves immediately to the north. As was done in the Waverly grove study, Respondent or Dupont determined the application history of bromacil in terms of amount and timing of applications. 12/ As is the case at the Waverly grove site, all applications were banded rather than trunk to trunk. The DeSoto City grove owner increased treatment rates for the western portion of the grove between 1986 and 1987 by over threefold, then decreased the rate by over 80 percent between 1987 and 1988. Skipping any application in 1989, the grove owner increased the rate by 2.5 times between 1988 and 1990. The only difference in the application on the eastern portion of the grove is that the fairly light application of 1988 was omitted. All applications were during the dry season except for the heaviest single application of 3.18 pounds of active ingredient per acre applied in July 1987. The DeSoto City site has comparable soils to the predominant soils of the Waverly site. With a slope of only about 17 feet over 2400 linear feet, the DeSoto City site is more level than the Waverly site. The water table is considerably higher at the DeSoto City site than at the Waverly site. With an average of 9-10 feet of unsaturated zone beneath the western portion of the groves, this area of the DeSoto City site has a thinner unsaturated zone than any location tested at the Waverly site, where the thinnest unsaturated zone was about 12 1/2 feet at MW-7 through MW-9. Peak concentrations of bromacil penetrate eight feet of unsaturated zone in 9-10 months. The eastern portion of the groves, where SP-8 through SP-10 are located, sit over thicker unsaturated zones--22-24 feet for SP-8 and SP-9 and 14 feet for SP-10. Peak concentrations of bromacil would take two to three years to reach the surficial aquifer in the areas of SP-8 and SP-9. Typical depths to groundwater estimated for the residential area, for which well- drilling data are unavailable, range from 9 to 11 feet. The direction of the groundwater flow in the DeSoto City grove areas is generally to the south-southwest, although groundwater flows in a more southerly direction in the residential area. The average linear velocity of groundwater in the surficial aquifer in the area is estimated to be 1-2 feet per day. The northernmost wells in the western portion of the grove, as well as two wells north of the grove, disclose that the shallow surficial aquifer has generally eliminated most of the bromacil, but the intermediate surficial aquifer remains heavily contaminated. 13/ Some of the data for the northernmost wells do not correlate with bromacil applications in the grove immediately above the well. For instance, SP-3 reached 180 PPB in September 1989, dropped dramatically for 6-9 months, and then remained over 100 PPB from September 1990 through February 1991. However, the most recent bromacil application before September 1989 was March 1988--about double the estimated time that it takes peak bromacil concentrations to penetrate the unsaturated zone in the area. SP-4, which is about 600 feet east of SP-3, behaved more predictably in response to surface applications of bromacil. The same is true of SP-7, which is about 500 feet southwest of SP-3. SP-6I and SP-6II, which are the only clustered wells on the DeSoto City site, are equidistant between SP-3 and SP-4, about 300 feet to the south. SP-6I never had a reading over 90 PPB. However, SP-6I was installed at the very top of the surficial aquifer. SP-6II, which was installed roughly 13-14 feet deeper in the surficial aquifer, never had any readings less than 90 PPB and had readings over 200 PPB. SP-6II was the only well drawing water from intermediate depths of the surficial aquifer. Even after the use of bromacil was discontinued in the Kahn grove after the October 1990 application, readings at SP- 6II remained quite high. A year after the final application, by which time peak concentrations should have reached at least the top of the surficial aquifer, SP-6II had bromacil levels of 467 PPB. Consistent with vertical travel time estimates, the readings went down after that, but, despite the absence of additional applications, bromacil levels were 188, 237, 179 and 164 PPB for the next four quarters. The Dupont study notes that SP-6II is about 1700 downgradient from a residential well at 5107 DeSoto Road. It is impossible to verify this assertion from the groundwater data presented in the report. Very high bromacil concentrations in this residential well, which was the site of a parked spray rig that likely discharged bromacil spray, were detected in July 1988. Peak concentrations at SP-6II of 1221 to 1463 PPB were detected between December 1990 and February 1991, which would translate to a travel rate of two feet per day. If SP-6II is in fact downgradient from the well at 5107 DeSoto Road, the Dupont study has accounted for the two extremely high bromacil readings at SP-6II, although not the remaining high readings unless one assumes that the well at 5107 DeSoto Road is an ongoing point source of bromacil contamination. The Dupont study observes ominously that the sand point wells lacked locks, so the possibility of sabotage cannot be discounted. 14/ The data from the two wells in the central part of the western portion of the grove reveal little more. The well at the barn had substantial readings, but these may have involved point source pollution from the barn. The other well, SP-2, approached 90 PPB one time, but has been below 2.0 PPB since December 1989. 15/ One sand point and one existing well are at the southern end of the grove west of the residential area. An additional existing well is just across a road from the southern end of this area of the grove. 16/ The readings at SP- 1, whose most recent reading is 8 PPB, correlates with at least the last bromacil applications; four readings over 90 PPB took place five, eight, four, and eight months after the relevant applications. However, the only 90+ PPB readings after the highest application of bromacil in July 1987 were 3 and 15 months following the date of application. The only 90+ PPB readings of the existing well north of the road are December 1991, March 1992, June 1992, and September 1992. This well is identified as the "shop" or "mixing/loading" area. Again, the possibility of point source contamination exists at this site. However, the pattern of higher recent readings is repeated at a site perhaps less likely to be an isolated source of pollution. The existing well across the street from the grove, which is known as the "office" well, has had its three highest readings in March, June, and September 1992, although none of these readings was over 68.17 PPB. The Dupont study concludes that bromacil would require 3.3-6.6 years to travel in the groundwater from SP-3 at the north end of the western portion of the grove to the road. There thus are insufficient data to determine if any correlation exists between readings at SP- 3 and the office well. There are three sand point wells in the eastern portion of the grove. 17/ The highest readings in the northernmost well, which may be just north of the grove, have been made in the four most recent months prior to the last reported reading in September 1992. The last reading was 96.3 PPB, which was the only time that SP-9 exceeded 90 PPB. SP-8 and SP-10 have not shown very high levels of bromacil in recent readings. Summarizing the DeSoto City site, except for the residential area, 60 of the 219 samples, or 27 percent, tested over 90 PPB for bromacil. SP-2, SP-5. SP-6I, SP-10, the office well, and the trailer well never had a sample over 90 PPB. SP-9 had one such sample, SP-4 had three such samples, the shop well and SP-7 each had four such samples, SP-3 had six such samples, SP-1 and SP-8 each had seven such samples, and SP-6II had 19 such samples. The sampling of the residential area added to the DeSoto City groves study area began as early as October 1987 and extended generally to September 1992. Out of 646 total samples, bromacil was detected 575 times, or in 89 percent of the samples. Sixteen percent of these detections, or 104, were over 90 PPB. The highest levels of bromacil so detected ran into the mid-100s PPB. No levels over 90 PPB were detected in 1987. Four such detections were made in 1988. Eighteen were detected in 1989, 20 in 1990, 31 in 1991, and 19 in the part of 1992 covered by the data. It is apparent from readings of residential wells that a plume of bromacil is moving through the surficial aquifer under the residential area. The plume is traveling at the estimated speed of the groundwater. The data from the DeSoto City study do not indicate that any substantial degradation of the bromacil in the groundwater has taken place during the time involved in the study. It is unclear whether the plume of bromacil will be tracked if and when it leaves the surficial aquifer under the residential area. Again, there are no data suggesting the manner or rate at which bromacil is eliminated from the groundwater or its fate in surface waters. But the DeSoto City study provides one piece of new information. In the Waverly study, the shallower wells were the most impacted; in the DeSoto City study, the most impacted well was the deepest well. The DeSoto City study also provides some data concerning the efficacy of bromacil-removal processes. A carbon filter practically eliminates all bromacil from drinking water. However, in one case, the carbon filter failed after nine months at one residence. 18/ With the assistance of DER, the residential area is in the process of obtaining service with municipal water as the private water source is contaminated not only with bromacil, but nitrate. A third major study is the Polk County Very Intensively Studied Area (VISA). The Polk VISA is one of a number of VISAs created by DER throughout the state to obtain data on groundwater. Unlike the Waverly and DeSoto City studies, the Polk VISA covers the surficial aquifer and the Floridan aquifer. The seven wells penetrating the Floridan aquifer have cased depths ranging from 137 to 412 feet. Seventeen wells tap the surficial aquifer. The Southwest Florida Water Management District sampled 23 of the Polk VISA wells in July 1990 and all 24 of the Polk in April 1993. All of the bromacil detections were in 1993. Readings of over 90 PPB of bromacil were detected in three of the surficial wells. Lesser amounts of bromacil were detected in 13 of the remaining 14 surficial wells. In the Floridan aquifer, bromacil was detected in four of seven wells, in amounts of 0.97 PPB, 2.8 PPB, 0.72 PPB, and 1.4 PPB. In subsequent discussions with state agencies, Dupont argued that a reduced rate of application of bromacil in the central ridge would sufficiently address the groundwater- contamination problem, largely because recent high readings were obviously from off-site sources. Concerned in part about the lack of data concerning the persistence of bromacil in the groundwater, state agency representatives sensibly rejected these arguments. Instead, Respondent proposes to adopt Rule 5E-2.038. The state agencies and Dupont are in the process of preparing a study protocol that would permit more accurate conclusions concerning the means by which bromacil enters the groundwater. It is unclear if subsequent studies will address other important issues, such as how far and in what concentrations can bromacil be transported by groundwater, how and at what rate is bromacil eliminated from groundwater, to what extent is bromacil in surface water, and how and at what rate is bromacil eliminated from various types of surface water.
The Issue Should the Petitioner be certified in Florida as a Radon Mitigation Specialist based upon his performance on the examination for certification given in April 1990? Were any of the seven items on the examination challenged by Petitioner marked incorrect when they were in fact correct answers to the questions asked?
Findings Of Fact The Office of Radiation Control within the Department of Health and Rehabilitative Services is the agency authorized to certify an individual as a radon mitigation specialist in Florida. One of the required qualifications required for certification is that the individual pass the training examination. The Petitioner, Alexander Z. Kobryn, sat for the training examination in April 1990. A comparison of Petitioner's answer sheet with the answer key used to grade the examination reveals that he marked the incorrect response on twenty-six of the examination questions. As the examination consisted of only seventy-five multiple choice questions, Petitioner's overall score was below the designated passing score of seventy percent. After Petitioner's review of the examination, his answer sheet, the Environmental Protection Agency Training Manual, and the answer key, seven examination answers designated as the only correct answers were challenged by Petitioner. These items were questions numbered 11, 34, 54, 57, 58, 60 and 64. The specific challenges were not isolated until the hearing date because Petitioner had not been granted the opportunity to review his incorrect until final hearing. At hearing, the parties agreed that if any four of the challenged items were in fact correct answers, the Petitioner's examination would be rescored to reflect he had received a passing score of seventy percent. As part of the test design, the correct answer for each question was supposed to reflect that certain training objectives were being met by the course materials for the Radon Mitigation Specialist Examination. A correct answer was supposed to reflect that the training materials had covered certain information deemed as necessary knowledge for individuals in the radon mitigation business. Individuals taking the examination were not made aware of which training objectives they were meeting when they answered individual questions. This information was reserved for the designers of the test and the Department. The test takers answered the questions based on content alone. On question 11 of the examination, applicants were asked to select the category which has the greatest influence on indoor radon and radon decay products. Four multiple choice answers were provided. Of these choices, two were eliminated by Petitioner and all other applicants. According to the information in Unit Two of the EPA Reducing Radon in Structures Manual, the keyed answer "A" was the best response. During the hearing, the Petitioner provided an article written by Dr. Ed Vitz, a recognized expert and acknowledged author of the EPA manual. This article gives greater emphasis to the radon in the water supply than the training text on which the examination was based. The Petitioner relied on the expert opinion of Dr. Ed Vitz when he exercised the judgment he was asked to use in his selection of the category with the greatest influence on indoor radon and radon decay products. The Petitioner was able to justify his judgment selection of answer "B" on question 11 and should be given full credit for his response as a correct answer. Question 34 of the examination asked applicants which remediation technique they (the individual) would consider first if the sub-slab vacuum test alters the direction of smoke at a block wall opening. The Petitioner chose sub-slab and baseboard suction (answer "C") over the keyed answer of sub-slab suction (answer "D"). The Petitioner argued that his answer to question 34 was equally as correct as the keyed answer. While he agrees that sub-slab suction should be considered, he also chose baseboard suction. This is a conservative selection that includes a more thorough attempt at remediation on the first try than the keyed answer. There was no redundancy. As the test asked for a preliminary evaluation from the applicant of the techniques to be used, the Petitioner's answer was not incorrect. Without more information, he chose a more conservative approach than the answer ultimately sought by the examination. Because the Petitioner was able to justify his answer choice, he should be given full credit for his response of "C" as a correct answer. Question 54 asks for the factor that does not directly influence the depressurization of a block stem wall. When answering the question, the Petitioner did not contemplate that more suction points would be needed in the trench if more corners existed in the wall. (See Section 5.55 of the EPA Manual.) The answer keyed by the Department is the only correct answer to the question. The Petitioner should not be given credit for a correct response of question 54. Question 57 asks for the mitigation method an applicant should use to increase the ventilation in a tightly constructed home with a 6-8 pCi/1 radon concentration. In his answer, the Petitioner chose to keep the windows open during the day (answer "D"). The keyed answer was to install a constant fresh air supply (answer "B"). The Petitioner testified that the given level of radon concentration could be mitigated by either answer. The mitigation would be caused by the intrusion of fresh air from an external source. He chose answer "D" over answer "B" as his first mitigation method because it was the most cost-effective for the client. If the question had asked for which mechanical devices should be used, answer "B" would clearly be the correct one. However, Petitioner established that his answer was not incorrect. The authority chosen by the Department to justify the keyed answer discusses ventilation caused by mechanical devices. However, the same text validates the method chosen by Petitioner. The Petitioner should be given credit for a correct answer on question 57. The next question challenged was question 58. No one taking the examination chose the keyed answer "A". Instead, an overwhelming majority of applicants chose the same answer as selected by the Petitioner, answer "B". The Petitioner explained that answer "B'1 was interpreted by him to include the duct work in the crawlspace. This is a reasonable interpretation of the selection ~~B~?. Under that interpretation, it is clearly the best answer to the question posed by the examination. The Petitioner should be given credit for a correct answer on question 58. The Petitioner's selected answer to question 60 is incorrect, even under the authority he referenced in Section 5-90 of the EPA Manual. The answer keyed by the Department is correct, as established in Section 5-89 of the manual. The Petitioner should not receive credit for a correct answer for his response to this question. Question 64 asked what course of action should be taken if post- mitigation measurements provided certain information. The keyed answer was "B", but the Petitioner gave the answer "C" as the proposed course of action. The first measurement given in the question was a long-term measurement. It is the best means for judging results. The answer selected by Petitioner was redundant as opposed to conservative. Credit for a correct answer should not be given for his response to question 64.
Recommendation Accordingly, it is RECOMMENDED: 1 . That a Final Order be entered finding that the Petitioner achieved a passing score on the Radon Mitigation Specialist Examination taken on April 19, 1990. 2. As a result of the passing score, tie Petitioner's exam status should be changed from "fail" to "pass". DONE and ENTERED this 2nd day of January, 1991, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY 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 o Administrative Hearings this 2nd day of January, 1991. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-4423 The Department's proposed findings of fact are addressed as follows: Accepted. Accepted. Accepted. Accepted. See HO #1. Accepted. See HO #2. Accepted. See HO #3. Accepted. See HO #3. Accepted. See HO #6. Accepted. See HO #4. Rejected. See HO #12, #15, #22 and #25. Rejected. See HO #12, #15, #22 and #25. COPIES FURNISHED: Alexander Z. Kobryn 163 Padgett Drive Lakeland, Florida 33805 John Rodriguez, Esquire HRS-Interprogram & Development Technical Assistance Office 1317 Winewood Boulevard Building One, Room 100 Tallahassee, Florida 32399-0700 R. S. Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Linda K. Harris, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether the Respondent's license as a registered building contractor should be disciplined for violating Section 489.129(1)(m), Florida Statutes?
Findings Of Fact At all times relevant to this proceeding, the Respondent was licensed by the State of Florida as a registered building contractor. The Respondent held license number RB 0047309. In June of 1983, the Respondent, doing business as Gamble's Construction Company, contracted with James B. Sampson, Jr., to construct an open steel shelter on Mr. Sampson's property, the Bull Frog Dairy Farm. The contract called for the payment of $42,052.00 for the construction of the shelter. The shelter measures 108 feet by 150 feet. The shelter consists generally of a tin roof sitting on columns. The sides of the shelter are open. The shelter was to be, and is, used as a feed barn for dairy cows. The Respondent purchased the shelter to be constructed on Mr. Sampson's property from Steel Concepts, a steel manufacturing company in Sparks, Georgia. The Respondent had purchased steel structures from Steel Concepts for several years prior to 1983. The Respondent had not, however, purchased or erected a steel structure of the size and design of the shelter to be erected on Mr. Sampson's property. The steel structure purchased by the Respondent for erection on Mr. Sampson's property was designed by Donald Gibbs, then President of Steel Concepts. Mr. Gibbs was not licensed or trained as an engineer, an architect or a contractor. Mr. Gibbs' design of the steel structure purchased by the Respondent for erection on Mr. Sampson's property was never reviewed by a licensed engineer. The Respondent made no effort to ensure that the design of the steel structure purchased for erection on Mr. Sampson's property had been approved by a licensed engineer. Construction of the shelter began in August, 1983, and was completed in September, 1983. The Respondent first designed and constructed the foundation for the shelter. The foundation consisted of a series of concrete-block piers. The concrete-block piers rested on concrete footers (concrete under the ground). The shelter included twenty-eight vertical columns which were each to be attached to one of the concrete block piers by four nuts and anchor bolts. The anchor bolts were embedded into the piers. The Respondent supervised and assisted several employees in constructing the foundation and erecting the steel structure. The Respondent used all the materials furnished to him by Steel Concepts for the shelter. Although cross bracing was provided for, and attached to, the roof of the shelter, no cross-bracing was provided for use in bracing the columns. Holes for the attachment of cross bracing of the vertical columns were provided in the columns. The Respondent should have known that cross-bracing of the vertical columns was necessary. Therefore, the Respondent should have questioned Steel Concepts about the lack of such bracing or the Respondent should have added cross-bracing on the columns. On January 22, 1987, a wind and rain storm struck the Bull Frog Dairy Farm. The next morning, Mr. Sampson discovered that the shelter erected by the Respondent was listing to the east. The structure was approximately twelve to twenty degrees off vertical. Mr. Sampson arranged for emergency repairs to prevent the shelter from collapsing. The Respondent did not make the emergency repairs because it was Friday and the Respondent had released his employees. The Respondent personally helped, however, with the emergency repairs. The damage caused to the shelter by the storm was caused by the lack of cross-bracing on the columns and the failure to properly tighten approximately one-half of the nuts to the anchor bolts connecting the columns to the piers. The Respondent should have insured that the nuts were properly tightened on the anchor bolts holding the columns to the piers. The Respondent's failure to properly supervise the tightening of the anchor bolts constituted a failure to meet acceptable industry standards of supervision. The Respondent's erection of the shelter was not within acceptable industry standards. The Respondent's failure to insure that cross-bracing was provided or to ask Steel Concepts why no bracing was provided, and the Respondent's failure to insure that all the nuts were properly tightened constituted incompetency. Although there had been erosion of the soil around the shelter, the erosion did not contribute to the damage to the shelter. The possibility of erosion should have been taken into account by the Respondent before constructing the footers and piers. This is the first complaint ever filed against the Respondent. The Respondent attempted to resolve the matter with Mr. Sampson.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order finding that the Respondent violated Section 489.129(1)(m), Florida Statutes. It is further RECOMMENDED that the Department impose a fine of $1,500.00 on the Respondent payable within thirty (30) days from the date of the final order in this case. DONE and ENTERED this 5th day of May, 1988, in Tallahassee, Florida. LARRY J. SARTIN 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 5th day of May, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5391 The parties have submitted proposed findings of fact. Petitioner's Motion to Strike Respondent's Proposed Recommended Order has been granted and no consideration has been given to the Respondent's proposed recommended order. It has been noted below which of the Department's proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those findings of fact proposed by the Department which have been rejected and the reason for their rejection have also been noted. The Department's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 2 2 and 4. 3 11. 4 5-8. 5 10, 12-13 and 15-16. 6 17-19. 7-10 See 16, 20 and 22-23. These proposed findings of fact are pertinent in determining the weight to be given to the testimony of various witnesses or recite opinions of those witnesses. COPIES FURNISHED: David L. Swanson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 J. Victor Africano, Esquire Post Office Box 1450 Live Oak, Florida 32060 Fred Seely Executive Director Post Office Box Jacksonville, Florida 32201 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
