Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Several years prior to1978, petitioner General Development Corporation (GDC) applied to the DER for a dredge and fill permit to remove a plug of land between the Ocean Breeze Waterway and the North Fork of the St. Lucie River. During the course of negotiations for this permit, it was discovered that the North Port St. Lucie Sewage Treatment Plant, owned and operated by General Development Utilities, Inc., a wholly-owned subsidiary of the petitioner, was operating without a permit from the DER and discharging effluent into a ditch which flowed into the Ocean Breeze Waterway. In March of 1978, a temporary operating permit was issued for the sewage treatment plant. In July of 1978, petitioner received from the DER Permit No. 253.123- 1031 to dredge an area approximately 800 feet in length, 90 feet in width and 6 feet in depth in order to connect the Ocean Breeze/Sagamore Waterways to the dead end oxbow of the North Fork of the St. Lucie River. The permit application was given special consideration pursuant to Rule 17-4.28(7), Florida Administrative Code. The purpose for obtaining the permit was to create direct navigable access to the North Fork of the St. Lucie River from thee Ocean Breeze Waterway. The Ocean Breeze Waterway was and is currently connected to the North Fork of the St. Lucie River by a narrow, shallow, meandering creek and lake system. However, there is not a large enough opening to allow the type of navigable access desired by the petitioner for the benefit of 118 lots plotted along the Ocean Breeze and Sagamore Waterways. Among the seven particular or special conditions attached to the dredge and fill permit issued to petitioner was that the earthen plug not be removed until such time as a permanent operational permit was issued for the sewage treatment plant owned and operated by General Development Utilities, Inc. More specifically, petitioner agreed to the following special conditions to the issuance of the dredge and fill permit: "(7) The applicant is aware that the GDC Utilities' sewage plant is providing an unknown quantity of discharge into Ocean Breeze Waterway and that this discharge may be a source of pollution to the receiving body of water unless affirmative steps are taken by the Utilities. The sewage treatment plant is currently operating under a Temporary Operating Permit (TP56-4601). In no case shall the plug at Cove Waterway be removed before an Operation Permit for the STP has been issued by the Department of Environmental Regulation." At time of issuance of the dredge and fill permit, DER personnel considered the quoted special condition number 7 to an integral part of the permit in terms of water quality assurances. General Development Utilities, Inc. has not been able to obtain a permanent operational permit from the DER for its sewage treatment plant which discharges into a ditch that flows into the Ocean Breeze Waterway. Therefore, particular condition number 7 has not been satisfied and petitioner has been unable to proceed with the dredging or removing of the plug under the permit. As a result of the delays in removal of the plug, petitioner has had to repurchase some 41 of the 118 plotted lots. The sewage treatment plant was and is still operating under a temporary permit. General Development Utilities, Inc. has requested a permanent operational permit for the sewage treatment plant and DER has issued a letter of intent to deny such a permit. As a result, General Development Utilities has petitioned DER for site specific alternative criteria pursuant to Rule 17-3.031, Florida Administrative Code. This matter is the subject of a separate proceeding currently being held in abeyance pending a determination of alternative criteria. General Development Utilities, Inc. v. Department of Environmental Regulation, DOAH Case No. 81-177. In September of 1980, petitioner sent a letter to DER requesting that special condition number seven be removed from its dredge and fill Permit No. 253.123-1031. It was intended that this request be considered as a minor modification to the dredge and fill permit. In response, DER's Chief of the Bureau of Permitting, Suzanne P. Walker, informed petitioner by letter dated October 15, 1980, that it was the staff's initial reaction, after a review of the original dredge and fill permit file, that the requirement that the sewage treatment plant obtain a permanent operational permit prior to dredging remain as a condition of the dredge and fill permit. Petitioner was informed that if it wished to pursue the matter further, the project must be reevaluated as a major modification to the dredge and fill permit. A major modification to a permit requires a new permit application and fee and is treated and processed as an initial application for a permit, with the applicant being required to provide reasonable assurances that the water quality standards will not be violated. Upon request for a minor modification, DER simply reviews the file and determines whether the request is obviously environmentally insignificant. After receipt of the letter from Mrs. Walker, petitioner supplied DER with additional water quality data. Based upon this additional data, discussions with DER staff who had been involved with the initial dredge and fill permit and the sewage treatment plant permit, and two days of sampling data collected by DER, DER determined that particular condition number seven was an integral part of the affirmative reasonable water quality assurance provided and should remain a condition of the permit. This determination was communicated to petitioner by letter dated January 7, 1981. The sewage treatment plant discharges treated effluent into a drainage ditch known as C-108. Effluent from the plant first goes into holding or retention ponds. Under its current flow, it takes about forty days for the effluent to be discharged from the plant to C-108 and the Ocean Breeze Waterway. C-108 flows into the Ocean Breeze Waterway, an artificial waterway which is presently connected to the North Fork of the St. Lucie River by a narrow, shallow meandering creek and lake system. The sewage treatment plant currently operates at 300,000 gallons per day but has an authorized capacity to operate at two million gallons per day. It currently contributes approximately two percent of the total daily flow to C-108. The Ocean Breeze Waterway and C-108, independent of the sewage treatment plant, drain approximately 4,000 square acres and produce about 35 percent of the water that will flow into the North Fork. The North Fork is tidal, with four one foot tides per day. The tidal action comprises almost 63 percent of the moving water. At a two million gallons per day discharge, the wastewater plant would be contributing about 12 percent of the water that would be going into the North Fork from the Ocean Breeze Waterway system. In comparison with two adjacent drainage systems, the Ocean Breeze system contributes only about three percent of the fresh water which flows into the North Fork. The dissolved oxygen levels of C-108 are chacteristically below the state standard of five milligrams per liter, primarily due to the seepage of ground water into the canal. Due to man-made alterations and to natural phenomena, the North Fork's dissolved oxygen levels also characteristically fall below state standards. The dissolved oxygen level of the Ocean Breeze Waterway is characteristically above state standards. Higher levels of dissolved oxygen coming from the sewage treatment plant improves the dissolved oxygen levels of the existing system. High levels of nitrogen, phosphate and chlorophyll have been found near the point of discharge. The quality of water in the North Fork is better than in the Ocean Breeze Waterway. It was the opinion of petitioner's experts that no change in dissolved oxygen levels would occur in the Ocean Breeze Waterway or the North Fork if the plug of land between these water bodies were removed. Petitioner's witnesses also opined that the Ocean Breeze/C-108 system was not a source of nutrient enrichment to the North Fork, and that the present creek system provided no water quality benefits in the form of nutrient uptake for the North Fork. It was estimated that, if the plug of land were removed pursuant to the permit, a pollutant placed at the upper end of the Ocean Breeze Waterway would be diluted by 98 percent in 26 hours in lieu of the present 39 hours due to increased flushing. These opinions were based upon analyses by petitioner's witnesses of various samplings and data regarding dissolved oxygen, nutrients and phytoplankton. The respondent's witnesses felt that the poor water quality in the Ocean Breeze Waterway was attributable in large part to the sewage treatment plant discharge and, if the plug of land were removed, the water quality problems would be moved to the North Fork and the St. Lucie River. It was felt that the present creek and lake system -- the narrow circuitous connection presently existing between the canal and the river -- reduces the nutrients which otherwise would flow into the river. These conclusions were based upon DER's own survey, a review of the dredge and fill permit file and a review of the additional data supplied by the petitioner General Development Corporation. No data regarding the water quality of the effluent from the sewage treatment plant was submitted by the petitioner at the time of DER's review of the original application for the dredge and fill permit.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the request of General Development Corporation to modify Permit Number 253.123-1031 by removing particular condition number seven be DENIED. Respectfully submitted and entered this 14th day of October, 1981, in Tallahassee, Florida. DIANE D. TREMOR, 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 14th day of October, 1981. COPIES FURNISHED: Valerie Fravel Corporate Counsel General Development Corp. 1111 South Bayshore Drive Miami Florida 33131 Alfred J. Malefatto Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Honorable Victoria Tschinkel Secretary, Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue The ultimate issue is whether Celebrity Resorts, Inc., (Celebrity) is entitled to a permit to construct a wastewater treatment and reuse/disposal facility in Marion County, Florida.
Findings Of Fact Proposed Project Celebrity is seeking a DER permit to construct a 0.065 million gallon per day wastewater treatment and reuse/disposal facility to serve a proposed recreation vehicle (RV) park. The facility is to be located in northern Marion County on the southern border of Orange Lake, an Outstanding Florida Water. The RV park is to be located on 75 acres of land, and is to contain 372 RV and "park model" sites, four bath houses, a clubhouse, and an expanded boathouse. The sewage treatment plant (STP) and effluent disposal system, consisting of a spray irrigation system, are to be located on the southern end of the site, away from Orange Lake. There is a "break" in the watersheds of the Celebrity property caused by a ridge across the approximate center of the project site. The effect of this "break" is that approximately one-half of the property drains toward the lake while the approximate southerly half of the property drains into an independent depression creating a watershed separate from the lake. Some underground pipes for a sewage collection system were installed at the site without an appropriate DER permit. Celebrity stopped the installation upon notice from DER that a permit was required for such installation. The permit needed for the installation of the collection system pipes was not the permit for the sewage treatment project which is being considered in this proceeding. Celebrity was penalized for its collection system violation, which was resolved with a consent order. Sewage Treatment Plant (STP) The STP is an extended aeration plant. It is designed to meet secondary treatment standards (90% removal of BOD and suspended solids from raw sewage) and basic disinfection. This type of treatment plant is very reliable. All mechanical components have a 100% backup so if a pump or blower fails, another is available to operate. The STP is designed to be capable of treating the flow from this RV park. Additionally, the facility has a holding pond for treated sewage effluent that can store five days of flow. Furthermore, because the RV park is a transient facility, it is possible in an emergency to shut down the entire plant and have people leave. By its nature, this is much more convenient in an RV park that in a residential or commercial neighborhood. The holding pond is to be lined with a 60 millimeter high density polyethylene liner, so there should be no leakage to the ground or groundwater even if there is an accident in the STP causing release of untreated sewage into the holding pond. The STP is to be maintained five days a week and must be attended for three nonconsecutive visits a week by a Class D certified plant operator. The amount of dissolved/undissolved heavy metals in the effluent is typically not a problem in domestic sewage effluent such as from the proposed RV park. To the extent that trace amounts of metals will exist, the STP will remove some heavy metals from the effluent during the treatment process and entrain them in the sludge (which will be taken to appropriately licensed landfill). There is no possibility of effluent leaking or discharging from the plant to directly discharge to Orange Lake, even if the STP completely malfunctions. Although the proposed STP is not a highly sophisticated plant, reasonable assurances have been provided that the STP will comply with DER's requirements for secondary treatment and basic disinfection and proper operation. Effluent Disposal System (Spray Irrigation System) Phase I of the effluent disposal system (spray irrigation system) is 3.66 acres in size, with an additional 1.7 acres designated if Phase II is implemented. Approval under this permit authorizes only the 3.66 acres on Phase I. Numerous separate sprinkler heads will spray the treated effluent on the field. The heads can be separately controlled and shut down. The sprayfield is sited on the southwestern corner of the 75-acre site and is separated hydrologically from the Orange Lake drainage basin by the "break" referred to in Paragraph 4 above. Therefore, surface water drainage in the area of the sprayfield drains away from the lake and does not connect back to the lake. The permitted loading rate is 1.7 inches per week, or approximately 24,000 gallons per day at full capacity. This amount corresponds to only approximately 170% of natural rainfall, but is more evenly distributed and controlled. After uptake of nutrients by green plants and evaporation (evapo- transpiration), the average amount of treated effluent that will percolate below the "uptake zone" to the surficial aquifer (to the extent that such exists on the site) is 0.3 to 0.4 inches per week. The surficial water table in the area of the sprayfield generally flows to the north toward the lake, although the flow is not immediately direct toward the lake. The Floridan Aquifer (which is beneath the intermittent surficial water table) in the area of the sprayfield generally flows away from the lake to the south and southeast. There are four sinkholes on the 75-acre site, although none of these four sinkholes have been identified on the 3.66-acre sprayfield. The four sinkholes on the 75-acre site and the majority of sinkholes in the area are "subsidence sinkholes." These sinkholes do not result in an open void down to the limerock after the collapse forming the sinkhole, but instead continue to have unconsolidated material above the limerock, even though a depression forms on the surface. One of the sinkholes has standing water within it and could possibly represent a connection with the lake water table or the Floridan Aquifer, but that sinkhole is separated hydrologically from the sprayfield site by the "break" across the property. There will generally be a slight increase in hydrologic conductivity through a subsidence sinkhole, since the unconsolidated material on the surface remains and is loosened. In some cases there may be even less hydrologic transmissivity due to a "jamming up" of the unconsolidated material, and in some cases there may be an increase in transmissivity when the unconsolidated material falls into an even less consolidated state. A "lineament" may exist on the 75-acre site. A lineament is a fracture zone, which indicates an increase in ground water transmissivity, resulting in an increase in solution of limestone and therefore indicating a more likely location for sinkhole formation. If a sinkhole develops within the sprayfield and if the sinkhole results in an increased area of ground water transmissivity, it could be a conduit for treated effluent to reach the surficial aquifer or Floridan Aquifer. Sinkholes which may form on the site are subject to being repaired with impervious material which prevents their becoming routes of contamination to the aquifer. In addition, the loading rate of any single sinkhole that forms within the spray irrigation field is so light and so easily shut down that there is a high confidence rate that no new sinkhole will act as a conduit for even the small immediate discharge over the area of the new sink to reach the Floridan Aquifer. A spray irrigation effluent disposal system is appropriate for this area which is subject to sinkhole formation. Spray irrigation allows dispersal of the effluent over a large area as opposed to a percolation pond which concentrates in the percolation area and therefore increases the chance of sinkhole formation and the chance of larger amounts of effluent reaching the Floridan Aquifer if all the intervening safeguards should fail simultaneously. In addition, the repair of any sinkhole forming within the sprayfield is simplified by the ability to simply shut off the sprinkler head or heads affecting that sinkhole while repair is being effected. Permit conditions further limit excessive effluent application rates by limiting the amount of flow, prohibiting application during storm events, and requiring monitoring of the flow. Spray irrigation is a common method of effluent disposal which generally has fewer problems than use of percolation ponds. No evidence has been presented that discharge from the sprayfield will cause violations of groundwater quality standards or violations of surface water quality standards, including the Outstanding Florida Water requirements in Orange Lake. Reasonable assurance has been provided that the proposed effluent disposal system will not violate DER water quality standards or other applicable DER rules. Standing Petitioner Suto could be substantially affected by this proposed facility if it causes pollution to Orange Lake since she uses the lake for nature photography. Additionally, she resides to the southeast of the proposed sprayfield and has concerns over contaminated ground water reaching her property and affecting her drinking water. Petitioner Riley could be substantially affected by this proposed facility if there is pollution to the Floridan Aquifer since she lives southeast of the proposed facility and has two drinking water wells on this property. Additionally, Petitioner Riley is a user of Orange Lake and therefore could be substantially affected by the proposed facility if it impacts the lake. Petitioner Solomon could be substantially affected by the proposed project if the project impacts Orange Lake since Mr. Solomon earns his living on the lake as a commercial fisherman and bass fishing guide.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Regulation enter a Final Order granting to Celebrity Resorts, Inc., a permit to construct a wastewater treatment facility and spray irrigation disposal system subject to the conditions set forth in the Intent to Issue. RECOMMENDED this 15th day of July, 1991, in Tallahassee, Florida. DIANE K. KIESLING, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of July, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-2722 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Celebrity Resorts, Inc. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 4(1); 5(2); 6(4); 7(5&6); 8- 12(7-11); 13(12); 14(13); 15(14); 16(15&16); 17(17); 18(18); 19-21(20-22); and 22-27(26-31). Proposed findings of fact 1-3 are unnecessary. Proposed finding of fact 28 is subordinate to the facts actually found in this Recommended Order. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Environmental Regulation Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 4-6(1-3); 7-13(5-11); 14(12); 15-17(13-15); 18(17); 19(18); 20-26(19-25); 27-32(26-31); and 33-35(32- 34). Proposed findings of fact 1-3 are unnecessary. COPIES FURNISHED: Delcie J. Suto, Pro Se 2400 N.W. 165th Street Citra, FL 32113 Carol B. Riley, Pro Se 2250 N.W. 165th Street Citra, FL 32113 Crawford Solomon, Pro Se 1303 N.W. 186th Place Citra, FL 32113 Karen English 3680 West Highway 318 Citra, FL 32113 Marilyn Nehring P. O. Box 481 Orange Lake, FL 32112 John Monsees 2400 NW 165 Street Citra, FL 32113 William L. Townsend, Jr. Attorney at Law Post Office Box 250 Palatka, FL 32178-0250 Douglas H. MacLaughlin Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Carol Browner, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue Is Petitioner entitled to enough points so as to be considered to have passed the October 31, 1997, Principles and Practice Chemical Engineering Examination?
Findings Of Fact On October 31, 1997, Petitioner took the Principles and Practice Chemical Engineering Examination. Petitioner received a score of 68 on the examination. A score of 70 is required to pass. A score of 70 is a converted raw score of 48. Petitioner's score of 68 is a converted raw score of 46. Therefore, Petitioner needs two raw-score points to achieve a passing score. Petitioner challenged the scoring of Questions 28, 62, 114, and 119. Petitioner's examination was returned to the National Council of Examiners for Engineering and Surveying (NCEES) to be re-scored. The re-score resulted in no additional points being added to Petitioner's score. No significant evidence was presented with regard to Questions 28 and 62, and Petitioner's expert agreed that they had been scored correctly with zero points awarded. Question 114 is an essay question. Petitioner received a raw score of 4 on this question, (40 percent of a possible 10 points). Question 119 is an essay question. Petitioner received a raw score of 2 on this question, (20 percent of a possible 10 points). Neither Petitioner's nor Respondent's expert was pleased with the scoring method established by NCEES, but both experts agreed that applicants are bound by the scoring plan established by whatever entity devised the test and scoring system, in this case NCEES. The NCEES scoring system is called the Solution and Scoring Plan. It contemplates that if an examinee's answer meets some criteria specified by NCEES for 4 points (but not all the criteria for 4 points) and also meets some criteria specified by NCEES for 2 points (but not all the criteria for 2 points), the examinee is to be awarded only 2 points, not 1 point or 3 points. Petitioner received a score of 4 on Question 114, a gas absorption problem. Petitioner got the correct answer but did not do much to justify the assumptions he made. He wrote his assumption in the body of his calculations instead of at the beginning, where he must have actually made the assumption in order to work the problem. According to Dr. Narayanan, Petitioner merely made an assumption of diluteness. Dr. Peters explained that Petitioner had assumed that the percent removal would be identical for the two cases contained in the problem. Petitioner had assumed that the percent removal of ammonia in condition one, which is 85 percent, is exactly the same as condition two. However, in Dr. Peters' view, there is no justification for that assumption. The Petitioner had calculated the new Yout based solely on the ratio of the two cases, without proving that the approach is valid. Therefore, although Dr. Narayanan would have scored Petitioner with 5 or 6 points, instead of 4 points on this problem, Dr. Peters' view was that achieving the correct answer from an incorrect procedure did not demonstrate more than 4 points on the established scoring system. Upon all the evidence, I find that Petitioner's answer to Question 114 meets the criteria set forth for a score of 4 under the NCEES Solution and Scoring Plan. Accordingly, Petitioner was entitled only to a score of 4 for that problem. Petitioner received a score of only 2 points on Question 119. Overall, Petitioner selected the proper equations and demonstrated the solution procedure correctly with the correct mass balances, but the scoring plan required that for a score of 4 on Question 119, examinees had to at least attempt to sketch the heat release curve, which Petitioner did not do. Petitioner admitted that he did not even attempt to draw the curve because he ran out of time. More specifically, Part A of Question 119 required Petitioner to determine the temperature at which the flash cooler must be operated and the composition, in mole percent, of the liquid stream removed. Petitioner did not demonstrate the calculation for the mole fractions in the liquid phase composition. Instead, he calculated the vapor phase composition. Although there is no way he could calculate the correct temperature, which he did, without somehow calculating the liquid phase compositions coming out of the process, Petitioner still did not fulfill all of the requirements of Part A of Question 119, as that question was posed on the examination. Petitioner's expert, Dr. Narayanan, partially agreed with the official scoring of Question 119. However, he stated that Petitioner's failure to report the liquid phase compositions, rather than the gas phase compositions, was merely an oversight. Petitioner calculated something correctly that was not required, but he did not calculate at all one element which was required. More specifically, Part B of Question 119 required Petitioner to sketch the heat release curve. Petitioner determined enough raw data for plotting the curve, but did not plot the curve due to the time factor. Completing all requirements of each problem posed was part of the testing procedure. Petitioner made no reasonable attempt to sketch the heat release curve, and therefore, Petitioner did not get any part of Part B of Question 119 correct. Upon the foregoing findings of fact, I accept as persuasive the testimony of Respondent's expert, Dr. Peters, that the scorer applied the NCEES scoring plan correctly, without a subjective component, and that Petitioner is not entitled to any more points on the October 31, 1997, Principles and Practice Chemical Engineering Examination than those which were originally awarded to him.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board of Professional Engineers enter a final order confirming Petitioner's score of 46 on the October 31, 1997, Principles and Practice Chemical Engineering Examination. DONE AND ENTERED this 31st day of March, 1999, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 1999. COPIES FURNISHED: Ashok Raichoudhury 9917 Northwest 6th Court Plantation, Florida 33324 Natalie A. Lowe, Esquire Vice President for Legal Affairs Florida Engineers Management Corporation 1208 Hays Street Tallahassee, Florida 32301 Dennis Barton, Executive Director Florida Board of Professional Engineers 1208 Hays Street Tallahassee, Florida 32301 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Respondent committed the offenses set forth in the Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact At the times pertinent to this proceeding, Respondent was an owner and operator of Myrliflore Hair and Nail Design, which is a beauty salon. Her first location of this establishment was at 2471 Pembroke Road, Hollywood, Florida. She later closed the shop on Pembroke Road and reopened her shop at 730 N.E. Hallandale Beach Boulevard, Hallandale, Florida. At the time of the formal hearing, Respondent was operating her beauty salon at the Hallandale location. On September 8, 1990, and on February 13, 1991, Leonard Baldwin, an inspector for the Department of Professional Regulation inspected Respondent's shop at 2471 Pembroke Road, Hollywood. Respondent's shop was open for business and was doing business at the time of Mr. Baldwin's visits. Respondent had failed to obtain a license for her beauty salon from Petitioner prior to engaging in business. Respondent does not dispute that she operated her beauty salon in Hollywood without a license for the shop. Respondent testified that she had not secured a salon license for her location in Hollywood because she had only recently come to the United States from Haiti and she had not known that a license was required. Between February 13, 1991, and March 22, 1991, Respondent closed her beauty salon located at 2471 Pembroke Road, Hollywood, and reopened her beauty salon at 730 N.E. Hallandale Beach Boulevard, Hallandale, Florida. On March 22, 1991, Mr. Baldwin inspected Respondent's beauty salon at the Hallandale address and found several violations of sanitation standards that had been established by rule. At the time of Mr. Baldwin's inspection, the implements for the nail station did not appear to have been sanitized, the equipment on the hair dresser's station was not clean and sanitized, instruments stored in a closed cabinet were not clean and sanitized, and the sanitation rules were not displayed. Respondent denied that her shop failed to meet sanitation standards as related by Mr. Baldwin. The conflict in the testimony is resolved by finding that the greater weight of the evidence establishes the sanitation violations to which Mr. Baldwin testified. It is found that on March 22, 1991, the implements for the nail station had not been sanitized, the equipment on the hair dresser's station was not clean or sanitized, instruments stored in a closed cabinet were not clean or sanitized, and the sanitation rules were not displayed. Respondent promptly corrected all sanitation deficiencies noted by Mr. Baldwin following the inspection of March 22, 1991.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered a Final Order be entered that finds the Respondent guilty of the violations alleged in Counts I and II of the Administrative Complaint and which assesses against Respondent an administrative fine in the amount of $750.00. DONE AND ORDERED this 29th day of July, 1992, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 29th day of July, 1992. Copies furnished: Jack McRay, General Counsel Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kaye Howerton, Executive Director Board of Cosmetology Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Roberta L. Fenner, Esquire Department of Professional Regulation Northwood Centre, Suite 60 Suite 60 1940 N. Monroe St. Tallahassee, Florida 32399-0792 Myrliflore DeJean, pro se 730 N.E. Hallandale Beach Boulevard Hallandale, Florida 33009
The Issue Whether respondent should admit petitioner to the examination for Class B Wastewater Treatment Plant Operator certification or deny admission for failure to comply with Rule 17-602.300(3), Florida Administrative Code?
Findings Of Fact At the time and place set for final hearing, neither petitioner nor respondent presented any evidence on which findings of fact could be based.
Recommendation It is, accordingly recommended that respondent deny petitioner's application for certification as a Class B Wastewater Treatment Plant Operator, without prejudice to the filing of a subsequent application. RECOMMENDED this 13th day of March, 1991, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 1991. COPIES FURNISHED: Charles H. Colvin 2140 Bay Road Neptune Beach, FL 32233 William H. Congdon, Esquire Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Carol Browner, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue Whether Petitioner should receive a passing score on the retake of the Minimum Standards Certification Examination for a firefighter, and whether Petitioner should be required to retake the Minimum Standards Certification Examination for a firefighter without repeating the Minimum Standards Course.
Findings Of Fact Petitioner, Tamara Lynn Rose (Rose), applied for certification as a firefighter on January 21, 1997. She completed a training course at the Broward Fire Academy. Rose took the initial Minimum Standards Examination for Firefighters in August 1997. She passed the written part of the examination, but failed the practical portion. On October 13, 1997, she retook the practical portion of the examination. The only portion of the examination results which Rose contests is the score received for the 1 3/4" Hose and Nozzle Operation of Part I of the examination. The hose and nozzle operation is a timed event. The hose advance exercise should be completed within two minutes. If the applicant takes over five minutes to finish the operation, 40 points are deducted from the applicant's score. In order to pass the practical examination, the applicant must score 70 percent or better on the examination. Rose took five minutes and thirty-six seconds to complete the hose and nozzle operation portion of the examination, resulting in a forty-point deduction and an automatic failure of the examination. The hose and nozzle portion of the examination consists of the applicant shouldering the hose load, advancing to the rear of the fire truck, making a u-turn and looping the hose, advancing to the front of the fire truck, bleeding the lines, advancing 100 feet, and knocking down three cones with the water coming from the nozzle. Rose had difficulty in getting the load out of the bed of the truck. The hose became tangled, and she had to stop and straighten out the hose. She walked to the front of the truck and began her hose drag, but the drag was slow and hard because the hose had caught on one of the truck's tires. She pulled the hose free. Because of the tangling of the hose and the hose catching on the tire, Rose lost too much time to be able to complete the hose and nozzle operation in a timely manner. The hose is loaded on the truck by students who are taking the examination. The loading is supervised by instructors who are certified firefighters. It is the responsibility of these instructors to correct any improper loading. The field representative from the State Fire Marshall's Office at the retest was Phillip Bagley. After retiring with 24 years with the Tampa Fire Department, Mr. Bagley began working for the State Fire Marshall in 1996. He has administered between 900 and 1,000 tests. He did not see any problem with the way that the hose was loaded on the truck. In his experience it is not uncommon for the hoses to become tangled, usually resulting from a failure of the applicant to get enough of the hose on the his shoulder causing the load to pull loose when the applicant steps down from the truck. The applicants are given an opportunity to inspect the hoses prior to beginning the examination. Prior to the examination being administered, the applicants are given an orientation and are advised that they should report immediately to the examiners any malfunction. At the time of the examination, Rose did not report to Mr. Bagley that the hose was improperly loaded. Rose also received a five-point deduction because she failed to form a loop during the hose advance portion of the examination. Rose is not contesting the five points that were deducted for failing to tie the safety knot during the 24-foot ladder extension portion of the examination or the five points that were deducted for not having her chin strap under her chin during the donning of the protective gear portion of the examination. Her total score for the retest was 50.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Rose's application for certification as a firefighter and requiring her to repeat the Minimum Standards Course prior to retaking the Minimum Standards Certification Examination. DONE AND ENTERED this 4th day of August, 1998, 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 Filed with the Clerk of the Division of Administrative Hearings this 4th day of August, 1998. COPIES FURNISHED: Bill Nelson State Treasurer and Insurance Commissioner Department of Insurance and Treasurer The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Daniel Y. Sumner General Counsel Department of Insurance and Treasurer The Capitol, Lower Level 26 Tallahassee, Florida 32399-0300 Karuna P. Rao, Esquire Division of Legal Services 612 Larson Building 200 East Gaines Street Tallahassee, Florida 33314 Tamara Lynn Rose, pro se 4051 Southwest 72 Terrace Davie, Florida 33314
The Issue The issue is whether Petitioner's request for a variance from agency rules governing daily domestic sewage flow so as to authorize an increase in the number of seats for his restaurant located in Howey in the Hills, Florida, should be approved.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Petitioner, Fletcher C. Bishop, Jr., is the owner of a parcel of property located at Lot 22, Block C-2, Lakeshore Heights Subdivision, 102 South Palm Avenue, Howey in the Hills, Florida. The property consists of .0946 acre, or approximately one-tenth of an acre, and is one of several parcels located in Block C-2. Since January 1997, the property has been leased to Robert P. Jencic, who now operates a pizza restaurant on the premises known as Hungry Howies Pizza Shop. According to Jencic, he has a contract to purchase the property from Bishop at the end of his lease, or on March 1, 1998. Whether the property was actually purchased by Jencic on that date is not of record. Lakeshore Heights Subdivision is not served by a central wastewater treatment system; rather, each lot is served by a septic tank and drainfield system. Lot 22 adjoins several other commercial or business establishments situated on Lots 20, 21, 23, and 23A in the western half of Block C-2, and all share a common drainfield easement located to the rear of the lots. Except for Lot 20, all lots have tied into the drainfield and now use the easement for waste disposal purposes. Because they share a common easement, each lot has been allocated a portion of the easement for its respective septic tank and drainfield. In Petitioner's case, he has been allocated approximately 990 square feet. After Jencic signed a commitment in January 1997 to lease and purchase the property, he made extensive renovations in order to convert the property to a restaurant. On or about February 20, 1997, Jencic met with a representative of the Lake County Health Department, an agency under the direction and control of Respondent, Department of Health (Department). At that time, Jencic filed an application for a site evaluation concerning the replacement of the existing onsite sewage disposal system. The application noted that he intended to operate a pizza restaurant with 56 proposed seats. On February 21, 1997, a site evaluation was conducted by Robin Gutting, a Lake County Department of Health environmental supervisor. According to her report [t]he property size of 4120 square feet with available central water will allow a maximum 236 gallons of sewage flow per day . . . This will allow a 12 seat restaurant using single service articles and operating less than 16 hours per day. . . The size of the Onsite Sewage Treatment and Disposal System would be a minimum 900 gallon tank with 197 square feet of drainfield trench configuration. (emphasis added) Jancic received a copy of the report on or about March 12, 1997, and it clearly conveyed to him the fact that he could operate no more than 12 seats in his restaurant due to sewage flow limitations on his property. Despite being on notice that the restaurant would be limited to only 12 seats due to the lot flow restrictions, on March 19, 1997, Jencic filed an application with the Lake County Health Department for a construction permit to replace the existing septic tank with a 900 gallon septic tank, install a 900 gallon grease trap, and utilize a 197 square-foot primary drainfield and a 200 square-foot bed system. The application indicated that Jencic intended to operate a restaurant "for 12 seats, single service, open less than 16 hours per day." On May 28, 1997, Jencic's application was approved for "12 seats, single service, open less than 16 hours per day." After installing the new tank and grease trap, Jencic began restaurant operations subject to the above restrictions. After operating his pizza restaurant for a short period of time, Jencic determined that he could generate a profit only if the restaurant could be expanded to allow more seats, and he could use china and silverware (full service articles) rather than single service articles (throwaway utensils). To do this, however, he would need a larger sewage treatment system. By letter dated November 9, 1997, Jencic requested a variance from various Department standards for onsite sewage treatment and disposal systems so as to "increase the seating from 12 seats to a maximum of 36 seats and [authorize] the use of china, silverware, and dishes." Although the letter does not refer to any rules, the Department has treated the letter as seeking a variance from three of its rules found in Part I, Chapter 64E-6, Florida Administrative Code. First, Rule 64E-6.001(4)(c), Florida Administrative Code, provides that an establishment cannot exceed the lot flow allowances authorized under Rule 64E-6.005(7)(c), Florida Administrative Code. If the seating capacity in the restaurant were increased, Jencic would exceed the lot flow allowances in violation of this rule. Second, Rule 64E-6.005(7)(b), Florida Administrative Code, prescribes the manner in which a determination of lot densities shall be made. Among other things, daily sewage flow cannot exceed an average of 2,500 gallons per day per acre. The easement which Petitioner shares with other lots is far less than an acre, even counting the space allocated to the adjoining lots. Finally, Rule 64E-6.008(1), Florida Administrative Code, provides that minimum design flows for systems serving a structure shall be based on the estimated daily sewage flow as determined by Table I of the rule. That table specifies an estimated daily sewage flow of 20 gallons per seat for restaurants using single service articles only and operating less than 16 hours per day. Therefore, a 12-seat restaurant with those operating characteristics would require a system that could handle at least 240 gallons of sewage flow per day. The table further provides that a restaurant operating 16 hours or less per day with full service will generate an estimated sewage flow of 40 gallons per seat. Thus, a restaurant with up to 36 seats, as Jencic has requested, would require a system handling at least 1,440 gallons of sewage flow per day. In order to qualify for a variance, an applicant must show that (a) the hardship was not caused intentionally by the action of the applicant; (b) no reasonable alternative exists for the treatment of the sewage; and (c) the discharge from the onsite sewage treatment and disposal system will not adversely affect the health of the applicant or significantly degrade the groundwater or surface waters. In its letter denying the variance, the Department asserts that Jancic has failed to show that items (a) and (c) have been satisfied. Jencic, who recently immigrated to this country, will suffer considerable financial hardship if the request for a variance is denied. Indeed, he demonstrated at hearing that his life savings have been invested in the restaurant, and his parents have placed a substantial mortgage on their property to assist him in his endeavor. If he does not purchase the property as required by his contract, he will be forced to restore the property to its original condition at great expense. In short, given his investment in renovations and equipment, unless the restaurant is expanded, he fears he must file for bankruptcy. Both parties agree that Jancic will suffer a hardship if the variance is not approved. However, Jancic was aware of the lot flow limitations before he made application to replace the existing septic tank in March 1997, and well before he began operating the restaurant in May 1997. Unfortunately, then, it must be found that the hardship was intentionally created by Jencic's own actions. If the variance were approved, it would result in a much larger amount of sewage being discharged into the easement, which could not handle that amount of flow. This in turn could cause the system to fail, thus creating a sanitary nuisance and the leaching of sewage into the groundwater. In this respect, Jancic has failed to show that the discharge will not adversely affect the health of the applicant or significantly degrade the groundwater or surface waters. Jencic offered into evidence a summary of his water usage during a representative period in 1997. That document indicated that metered water usage was approximately 3,000 to 4,000 gallons per month, even when he temporarily (and without authority) expanded his restaurant to 24 seats during a recent two-month period to test water consumption at the higher seating capacity. However, because the sewage strength of a restaurant is far greater than that of a residence, a sewage system must be sized on estimated waste flow, and not metered water flow rates. Therefore, the fact that Jancic's monthly metered water usage is less than 4,000 gallons is not relevant to a determination of the issues. The same finding must be made with respect to Jancic's well-intentioned efforts to decrease water flow by installing high pressure toilets and timed spring systems on his hand sinks. Jencic also requested that he be allowed "spike time" during the hours of 11:30 a.m. to 1:00 p.m. and 6:00 p.m. to 7:30 p.m., which are his peak hours of the day. In other words, the undersigned assumes that he is asking that consideration be given to the fact that he has virtually no business during the other hours of the working day, and that the flow during the peak hours alone would not be excessive on a daily basis. However, the Department's rules are calculated to maximum usage, and thus a "spike" allowance is not allowed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a Final Order denying Petitioner's request for a variance. DONE AND ENTERED this 11th day of March, 1998, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 11th day of March, 1998. COPIES FURNISHED: Angela T. Hall, Agency Clerk Department of Health Building 6, Room 102 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Robert P. Jencic 102 South Palm Avenue Howey in the Hills, Florida 34737 Marya Reynolds Latson, Esquire Post Office Box 2408 Ocala, Florida 34478 James Hardin Peterson, III, Esquire Department of Health Building 6, Room 102 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue presented is whether Petitioner achieved a passing score on the April 1997 civil/sanitary engineer examination.
Findings Of Fact Petitioner took the April 1997 examination for licensure as a civil engineer. The examination was purchased by Respondent from the National Council of Examiners for Engineering and Surveying (hereinafter "NCEES"). The minimum passing score on that examination was 70. Petitioner was advised by Respondent's Bureau of Testing that he had achieved a score of 65. Petitioner challenged his score on question numbered 125 only. The maximum points that could be awarded for the answer to that question were 10. Petitioner was awarded 6 points for his answer to that question. There were three parts to question numbered 125. NCEES' scoring plan for that question provided that 10 points should be awarded where a candidate answered the question correctly in all aspects and the numerical results were within two percent, plus or minus, of the approved solution. In other words, a candidate could receive the maximum points for an answer which contained a mathematical error as long as the error resulted in an answer within two percent of the correct mathematical answer. NCEES' scoring plan also provided that a candidate could only receive eight points out of ten where the candidate answered part (a) correctly but made one or more errors in part (b) or part (c). Petitioner answered parts (a) and (c) correctly but he made a mathematical error in part (b) which caused his answer to be incorrect by 100 percent. When Petitioner's examination was initially scored, he was only awarded six points for his solution to question numbered 125 due to errors he made in both parts (b) and (c). At the final hearing in this cause Respondent's expert agreed with Petitioner that Petitioner's answer to part (c) should have been considered correct. Respondent's expert opined, therefore, that Petitioner should receive eight points rather than six. Petitioner cannot, however, be given full credit for his answers because his mathematical error caused his answer to part (b) to be incorrect by 100 percent rather than by only two percent as permitted to be able to receive full credit. Accordingly, Petitioner does not qualify to receive full credit for his answer to question numbered 125. Petitioner's raw score on the examination is now 45 due to the additional two points for question numbered 125. The scoring conversion scale converts a raw score of 45 to a scaled score of 67, less than a passing grade. The conversion scale is not a linear scale, i.e., it is not a percentage scale. The maximum raw score available on the examination is 80, with a maximum possible converted scaled score of 100. Computer calculations have established the converted scaled score based upon each possible total raw score. In other words, the conversion table converts every possible total raw score from one through 80. The conversion ratio varies along that table. For example, a total raw score on the examination of two becomes a scaled score of four, of four becomes a scaled score of eight, of 45 becomes a scaled score of 67.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Petitioner achieved a score of 67 and, therefore, failed to achieve a passing score on the April 1997 civil/sanitary engineer examination. DONE AND ENTERED this 27th day of May, 1998, in Tallahassee, Leon County, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 27th day of May, 1998. COPIES FURNISHED: R. Beth Atchison, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0750 Syed M. Safdar, pro se 1740 Northeast 125th Street, No. 1 Miami, Florida 33181 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Angel Gonzalez, Executive Director Board of Professional Engineers Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0755
Findings Of Fact In light of the aforementioned stipulations entered into by the parties, the parties agreed that the only remaining disputed issue was the quality of service being provided by Petitioner. In this connection, the record establishes that Petitioner operates nine water systems in Duval County, one of which is known as the "Milmar Plant." Water furnished through this plant has, in the past, violated applicable regulatory standards with regard to high iron levels and corrosivity, to such an extent that the system was the subject of a Corrective Order entered by the Duval County Public Health Division of the Department of Health and Rehabilitative Services in 1980. However, as a result of Petitioner's agreement to connect to the City of Jacksonville water system, these problems should be alleviated when the switch-over and connection are accomplished. Accordingly, as a condition to approval of the requested rate increase, Petitioner should be required to complete the switch-over and connection to the City of Jacksonville water system prior to the entry of a Final Order granting the requested rate increase.
