The Issue The administrative complaint, as limited by the abandonment of certain charges at the final hearing, raises four issues about the operation of the respondent's business. These include whether at the time of inspections on August 11 and September 3, 1986, the respondent was a food service establishment which had on its premises food which was not from an approved source; whether it failed to provide dishwashing facilities; whether it failed to provide hot and cold running water under pressure; and whether it failed to provide adequate toilet facilities.
Findings Of Fact France To You Coconut Grove, Inc., operates at 3199 Commodore Plaza, Miami, Florida, in the area known as Coconut Grove. At that location the corporation sells magazines, newspapers, post cards, greeting cards, cigarettes and, at one end of the store, has freezers containing food for sale. The entire facility is comprised of about 900 square feet, and has a single restroom. There is no space for a second restroom. The existing restroom is generally not made available to the public because to reach it, it is necessary to go through a storeroom containing the facility's merchandise. Non-employees therefore are not permitted to use the restroom. Prior to August, 1986, patrons could purchase food in sealed microwaveable packages from the freezer. It would then be heated and made available to the customer on paper plates with plastic, single-use utensils to be consumed outside the premises on a deck containing tables and chairs which France To You had made available. As the result of an article which appeared in the Miami Herald in early August, 1986, which indicated that gourmet food was sold at France To You, the health department sent an inspector, Mr. Hoffman, to the establishment. Hoffman saw people eating on the deck outside France To You. He met with the manager of the facility, Mr. Taylor. Mr. Taylor became distressed when the health department asserted that France To You fell under its jurisdiction. Mr. Hoffman asked Mr. Taylor to come to the health department offices for a planned review. Mr. Taylor did so and after initially meeting with a planned review officer, Mr. Taylor demanded to see someone more senior. During the meeting Mr. Taylor explained he planned to heat for patrons food purchased at France To You, which would be consumed on the deck outside. It was arranged that the administrator of the Dade County Public Health Department, Mr. Livingstone, would come to the Taylor establishment, which is something the administrator ordinarily leaves to regular inspectors. On August 11, 1986, Mr. Livingstone came to France To You with Mr. Ros, the Assistant Director, and Mr. Diaz of the State Department of Business Regulation, Division of Hotels and Restaurants. At that meeting Mr. Livingstone found that the freezers contained prepackaged food, which people were eating on the deck outside the establishment. There was also a Mr. Coffee machine on the premises, but it was used only for employees, not to sell coffee to customers. When Mr. Livingstone attempted to explain the requirement of the sanitation code to Mr. Taylor, Mr. Taylor became abusive and the conversation ended. There were no dishwashing facilities or three- compartment sink at France To You on August 11, 1986, and no hot water in the restroom or hot and cold water under pressure in the food preparation area, i.e. the area where the food was heated and transferred to paper plates for consumption. The prepackaged containers of food came from another France To You store on Mills Drive near the Town and Country Mall in south Dade County. That store has a market license which permits it to sell food, but it does not hold a processing license; the Mills Drive facility has not been approved by the Dade County Health Department to process food that would be packaged for sale at another location. It would have been possible for the food portions sold in Coconut Grove to have been prepared by a food processing plant inspected and approved by the Department of Agriculture or the Food and Drug Administration. There was no evidence presented that the food processing plant which was the source of the food portions at France To You was unapproved by the Department of Agriculture or the Food and Drug Administration. The premises were then reinspected by Mr. Hoffman of the Dade County Department of Public Health, and the supervisor for the area, Mr. Petty, on September 3, 1986. That inspection revealed that food was still being prepared and served on the deck outside where people consumed it. There were no dishwashing facilities or three compartment sink to wash and sanitize any food service equipment. Hot and cold running water under pressure was not available where the food was prepared, which is required to minimize the possibility of hand- to-mouth contamination of food. There was not a second restroom available for patrons. While the inspection report and the testimony of Mr. Hoffman would indicate there were some other violations found that day, such as smoking in the food preparation area and the absence of a thermometer in the freezer cases, those matters are not charged in the administrative complaint and therefore not relevant in this proceeding. A reinspection, following up on that done by Mr. Hoffman and Mr. Petty on September 3, 1986, was performed by Mr.Louis Ron of the Dade County Public Health Department on September 9, 1986. Mr. Ron was accompanied again by Mr. Petty. At the time of the reinspection the violations which had been filed by Mr. Hoffman had not been corrected, i.e. there was still no three-compartment sink, there was only one restroom, and there was no hot water in the handwashing sink in the food preparation area. Mr. Ron inspected the premises again on January 16, 1987. At that time Mr. Ron observed microwave ovens which were dirty and had not been cleaned, that there was no facility for sanitizing utensils being used by the establishment, in that there was no dipper well for the ice cream service operation which then had been installed on the deck, but there was a handwashing sink for that ice cream service. While a three- compartment sink had been installed, there was no running water yet connected to it. Finally, another inspection of the premises took place by Mr. Hoffman on April 2, 1987. At that time, the food service operation had expanded to include grills and stoves installed on the deck for the preparation of food items such as hamburgers, hotdogs, chili, eggs and bacon, as well as ice cream being served at the deck. Photographs of these food service activities taken by Mr. Hoffman were admitted into evidence. There may be other food service establishments in the general Coconut Grove area which do not provide two public restrooms, such as the Subway Sandwich Shop.
Recommendation It is recommended that a Final Order be entered finding the facility to have violated Rules 10D-13.027(1) and 10D-13.027(5), Florida Administrative Code, and imposing an administrative fine of Four Thousand Five Hundred ($4,500) Dollars, pursuant to Section 381.112, Florida Statutes (1985). DONE AND ORDERED this 17th day of December, 1987, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. 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 17th day of December, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4500M The following are my rulings on the proposed findings of fact submitted by the parties pursuant to Section 120.59(2), Florida Statutes (1985). Rulings on Petitioner's Proposed Findings: France To You is a food service establishment as covered in the conclusions of law. Covered in finding of facts. Sentence 1 rejected because there is inadequate proof concerning whether the food source was approved by governmental entities other than the Dade County Health Department. Sentences 2 and 3 covered in findings of fact 2 and 7. Covered in finding of fact 4. Covered in findings of fact 5, 6 and 7. Rejected as unnecessary. Covered in finding of fact 4, except as to the coffee service, which is covered in finding of fact 6. Rejected due to the inadequate evidence concerning the licensure status of the food processor. Covered in findings of fact 10 and 11. Rejected as unnecessary, and because there is inadequate proof that the respondent sold any coffee to patrons. Covered in finding of fact 14. Covered in finding of fact 12. Covered in finding of fact 13. Covered in finding of fact 3. Covered in finding of fact 14, but relates only to assessment of penalty not to a violation. Rejected as unnecessary. Rejected as unnecessary. Rejected as unnecessary. Rejected as unnecessary. Not adopted because Mr. Taylor's testimony concerning the availability of restrooms at other establishments is not relevant to determining whether the operation of France To You is one which requires two restrooms. Covered in finding of `fact 2. Covered in finding of fact 2. Rejected as unnecessary. Covered in finding of fact 13. Rulings on Respondent's Proposed Findings: Covered in findings of fact 5 through 7. That no inspector actually saw food being prepared, as opposed to food being consumed by patrons of France To You, is not significant. The evidence supports the inference that France To You was serving food. Rejected because inspectors observed patrons eating food at the establishment in August and September of 1986. Generally adopted in finding of fact 6. Although there is inadequate proof that the source of the food sold had received FDA approval, that is not the issue presented. To impose sanctions, the Department of Health and Rehabilitative Services had to prove that the source of the food had not received FDA approval, which it failed to prove. The burden of this finding is adopted in finding of fact 6. Rejected for the reasons given in ruling on proposal 1. Covered in finding of fact 9. Rejected because the inspection performed on January 16 indicated that there was no running water connected to the three-compartment sink. To the extent that the finding includes a proposal that there was a handwash sink with hot water is covered in finding of fact 13. Rejected because the evidence gives rise to the inference, which the Hearing Officer makes, that food was being served prior to January 1, 1987. Rejected as inconsistent with the testimony of the health department inspectors which has been credited. No findings have been made with respect to advertisements because it is unnecessary to do so. Omitted. Rejected because the type of licensure which France To You Food Service Corporation had for the facility on Mills Drive was not a license to process food to be sold elsewhere. Rejected as irrelevant. Whether other establishments may be violating the law does not excuse any violations by France To You. COPIES FURNISHED: Morton Laitner, Esquire Department of Health and Rehabilitative Services 1350 North West. 14th Street Miami, Florida 33125 Michael A. Vandetty, Esquire DIENER & SHAPIRO, P.A. 1790 West 49th Street Suite 312 Hialeah, Florida 33012 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700 John Miller, Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700
Findings Of Fact The following findings are based on the stipulation of the parties: Thomas P. Cimaglia is the owner and operator of the Oasis Truck-N-Tel located at 5750 South State Road 7, Fort Lauderdale, Florida. On October 14, 1985, underground storage tanks at the facility were closed, i.e., they were excavated and removed. At the time the tanks were removed, diesel fuel contamination was discovered from fuel which had escaped from the tanks. The removal was observed by representatives of the Broward County Environmental Quality Control Board (County Board). At the County Board's request, monitoring wells were installed around the excavated area. The monitoring wells contained free petroleum product (diesel fuel). On or about January 21, 1986, Richard Valentine, Inc., submitted a proposal to Mr. Cimaglia for a scavenger system designed to recover the free product. On February 24, 1986, the County Board issued a "conceptual approval to construct and operate the recovery system." The system was subsequently installed. Much of the upkeep of the system was performed by Andy Greene and Mr. Cimaglia. Mr. Greene was a salaried employee of Petitioner involved in the day to day operations at the Oasis Truck-N-Tel. On July 15, 1986, Mr. Cimaglia advised the Department in Tallahassee, in writing, of his intent to file for reimbursement of cleanup costs. On September 18, 1986, Mr. Cimaglia was notified by the Department that the site would be inspected to determine eligibility for reimbursement. The inspection was performed during the week of September 22, 1986. On January 29, 1987, Mr. Cimaglia submitted to the Department a "proposal to recover diesel fuel from groundwater and clean up contaminated soil." The proposal indicated that the scavenger system had proven ineffective, for only 50 to 60 gallons of free product had been recovered. The new proposal suggested that the contamination area be excavated, the soil treated and diesel fuel on the water surface of the excavation be removed by a pump truck and soaking rags. On March 16, 1987, the County Board approved the "Remedial Action Plan." On May 19, 1987, Mr. Cimaglia was advised by the Department in writing that his facility had been found eligible for reimbursement of allowable costs of cleanup pursuant to Section 376.3071(12), Florida Statutes. Mr. Cimaglia submitted his reimbursement application to the Department before September 1, 1988. On September 17, and October 24, 1988, he submitted further information and supporting documentation as requested by the Department. On December 20, 1988, the Department issued its notice of agency action which denied reimbursement of cleanup costs. The bases for denial of reimbursement were (1)the scavenger product recovery system was not effective ($18,757.13), (2)no supporting documentation was provided for the personnel costs of Mr. Cimaglia and Mr. Green ($3,745.00) and (3)areas of clean fill and paving were not delineated ($8,661.70). On December 29, 1988, Mr. Cimaglia informed the Department by letter that the area of asphalt and paving consisted of a 75 foot by 75 foot area of 1 inch thick asphalt, underlain by 6 to 8 inches of hard rock base. On January 6, 1989, he filed a petition for a determination of his right to reimbursement of the costs the Department had denied. After the information about the paving was received, reimbursement for the repaving was approved and paid. In August 1989, the parties met in the offices of the County Board to review the County Board's files in this matter. It was determined that the County Board had specifically approved the original scavenger recovery system, which later had proven ineffective. Based upon Mr. Cimaglia's receipt of approval from that unit of local government, the Department agreed to reimburse Mr. Cimaglia for the costs of that system. It was also agreed that the Department would review further documentation, if submitted by Mr. Cimaglia, concerning the denial of reimbursement of personnel costs. On September 11, 1989, Mr. Cimaglia filed an affidavit attesting to the time that Mr. Greene spent working on the treatment system rather than his normal tasks at the facility. The affidavit was accompanied by a summary of Mr. Cimaglia records which documented the hours expended by Mr. Greene on the cleanup. The summary was submitted in lieu of the actual records, submission of which was impracticable due to their volume. On December 1, 1989, the parties entered the Joint Stipulation which settled the underlying case and determined all of the disputed costs to be reimbursable. The Final Order was entered on March 1, 1990. The following facts are based on the evidence at the final hearing: At the hearing, Mr. Cimaglia withdrew the request for reimbursement of the attorneys fees he paid to Richard A. Herald, in the amount of $1,280. The amount at issue still exceeds $15,000. The Department's denial of rehabilitation costs focused on three items: The recovery system installed and operated in 1986, personnel costs, and paving costs. The Department should have known that the initial treatment system, which ultimately did not prove to be effective, had been given conceptual approval by the County Board on February 24, 1986. While the Department believed, when reviewing the Cimaglia reimbursement application, that the County Board had only given tentative approval to the general idea, that was not true. The Department now lays the blame for its misapprehension at the feet of Mr. Cimaglia, because the Department had received no engineering drawings, installation reports or technical data regarding the treatment system, and the absence of any specific order from the County Board authorizing the treatment system. At the time the first treatment system was approved by the County Board, the county was operating under a local ordinance which gave it independent authority to enforce county pollution control laws, and to direct cleanups. It is significant, however, that after 1986 the Department had contracted with the County Board to supervise petroleum contamination cleanups and to supervise and administer reimbursement. This matter was not handled by the County Board, even though Mr. Cimaglia's application was filed in 1988; it was handled by the Department directly. The Department failed to communicate effectively with the County Board when it contacted the County Board to determine whether that agency had approved the initial cleanup plan. Where a system for cleanup has been specifically approved by a local government agency as an appropriate technology, the Department will pay the costs for using that system, even if it ultimately proves ineffective. It was only in August 1989, after the initial denial of the reimbursement application that a meeting was held with Mr. Cimaglia, representatives of the County Board, and the Department, during which the Department finally came to understand that the initial cleanup method had been approved by the County Board. It is unreasonable for the Department to blame Mr. Cimaglia for the Department's failure to have communicated effectively with the County Board earlier. This is one of the first reimbursement applications which the Department processed. Its procedure for handling applications, and its standards for judging whether a reimbursement applications would be granted, was just developing. The Department had not promulgated rules which would have told an applicant, such as Mr. Cimaglia, precisely what sort of information should have been submitted with an application so that the Department would have known that the County Board had approved the initial treatment system. That information was readily available to the Department, and there is no satisfactory explanation in this record of why the Department did not know it, for a Department employee did telephone the County Board, and should have been told that the treatment system had been approved. This inadequate investigation of the application by the Department caused Mr. Cimaglia to incur attorneys fees in attempting to process his application, and is an appropriate item to be reimbursed under the Equal Access to Justice Act in these circumstances. The Department justifies its failure to have initially approved personnel costs on the basis that the Department believed Mr. Cimaglia had provided all supporting documentation before it made its initial decision on December 20, 1988, on the reimbursement application. While the application had copies of many invoices, bills, receipts, or cancelled checks to show direct costs, the Department received no specific documentation of personnel costs until after its initial denial of personnel costs on December 20, 1988. No rule of the Department stated the manner in which these applications would be handled, and there was no way for Mr. Cimaglia to know what to send. Because he had to incur attorneys fees to make the matter more specific, those fees should be reimbursable under the Equal Access to Justice Act. Mr. Cimaglia could not have known to send with his application information of the type the Department ultimately accepted. Paving costs should be treated similarly. Mr. Cimaglia did submit a map which showed an area from which the diesel fuel tanks had been removed and where remedial activities occurred. That area had to be repaved with asphalt. He had submitted a paver's invoice for $3,700. Information about the size of the excavated area and the thickness of the pavement had been available in the files of the County Board since that work had been performed. The fact that the Department had, at the time it was processing early applications, little experience in determining the reasonableness of paving costs is not an adequate reason to have denied the costs here. A paver's invoice had been submitted. The Department had no reasonable basis to reject it, and indeed ultimately accepted those costs. The Department's actions required Mr. Cimaglia to incur attorneys fees, and these fees ought to be reimbursable under the Equal Access to Justice Act.
The Issue Whether Permit No. DO19-101251 issued to Mr. Vail on July 11, 1985 to construct and operate an on-site wastewater treatment and disposal system should be revoked?
Findings Of Fact Mr. Vail is the owner and operator of a business called the St. George Inn and Restaurant (hereinafter referred to as the "Inn"). The Inn is located at the southeast corner of the intersection of Franklin Boulevard and Pine Avenue on St. George Island, Florida. In May of 1984 Mr. Vail spoke with an employee of the Department of Health and Rehabilitative Services about obtaining a permit to construct a septic tank on his property for use by the Inn for the treatment and disposal of wastewater. Mr. Vail was instructed to submit a design of the septic tank for approval. Mr. Vail contracted with McNeill Septic Tank Company for the design and construction of the septic tank. The evidence failed to prove when Mr. Vail applied with the Department of Health and Rehabilitative Services for a permit. As of March, 1985, however, Mr. Vail had not received approval or disapproval of his application from the Department of Health and Rehabilitative Services. Mr. Vail, therefore, went to the Governor's office to seek help in getting a response. Shortly after contacting the Governor's office, the Department of Health and Rehabilitative Services informed Mr. Vail that he needed to obtain a permit from the Department and not from the Department of Health and Rehabilitative Services. On or about March 18, 1985, Mr. Vail filed an Application to Operate/Construct Industrial Wastewater Treatment and Disposal Systems (hereinafter referred to as the "Application"), with the Department. The Application was prepared by Brown and Associates Civil Engineers and Land Surveyors, Inc., Mr. Vail's engineering consultant. The Application was certified by Benjamin E. Brown, Professional Engineer. Mr. Vail signed the Application as "owner" and indicated that he was aware of the contents of the Application. In the Application, "St. George Inn Restaurant" is listed as the "Source Name." Under Part II, A of the Application, the applicant is asked to "[d]escribe the nature and extent of the project." In response to this request, the following answer was given: This project will provide a sewage disposal system for a one hundred and fifty (150) seat restaurant on St. George Island. Sizing of the septic tank system is based on 50 GPD/seat and secondary treatment will be provided by the design proposed. Under Part III, A of the Application, the applicant is asked to provide the following information and the following answers were given: Type of Industry Restaurant . . . . 3. Raw Materials and Chemicals Used Food preparation only. Normal Operation 12 hrs/day 7 days/week . . . . If operation is seasonal, explain This restaurant will be used the most during the summer months which corresponds with ocean/beach recreation & the tourist trade. Nowhere in the Application is it indicated that the permit applied for involved anything other than a restaurant. The Application gives no information from which the Department could have known that the proposed wastewater treatment and disposal system would handle waste from guest rooms or an apartment. In the Application Mr. Vail sought approval of a permit to construct and operate a wastewater treatment and disposal system to serve a 150 seat restaurant. In the Application Mr. Vail sought a permit for a system which was to have a design flow of 7,500 gallons per day based on 50 gallons, per seat, per day water usage. An employee of the Department wrote a memorandum dated May 5, 1985, recommending approval of the Application. The Department determined, however, that the size of the property on which the Inn was to be located was not large enough for the drain field necessary to accommodate a 150 seat restaurant. Therefore, Mr. Brown modified the proposed system and resubmitted application data indicating that a 108 seat restaurant would be constructed. The design flow of the new proposal was 2,160 gallons per day based on 20 gallons per seat per day. Mr. Brown had requested that the Department approve a system based upon the newly submitted design flow. The Department and Mr. Brown both agreed that this design flow was adequate; that it was reasonable to anticipate and provide for the treatment and disposal of a maximum of 2,160 gallons per day design flow. The effect of reducing the design flow and the number of seats was to allow a shortened drain field which could be accommodated by the size of the property the Inn was to be located on. On June 27, 1985, Mr. Vail arranged for a notice to be published in the Apalachicola Times. That notice provided, in pertinent part, the following: State of Florida Department of Environmental Regulation Notice of Proposed Agency Action on Permit Application The department gives notice of its intent to issue a permit to Jack Vail to construct a restaurant and on-site wastewater treatment and disposal system [sic] at Franklin Boulevard and Pine Avenue, St. George Island. The treatment consists of grease trap, septic tank, and sand filter followed by disposal into a drainfield. The project meets applicable standards and will not impair the designated use of the underlying ground water. There is no anticipated impact on surface waters or air quality. . . . . This notice was sent to Mr. Vail by the Department and he made arrangements for it to be published. Nowhere in the notice is it indicated that the system to be approved by the Department is for anything other than a restaurant. On July 11, 1985, less than four months after the Application was filed with the Department, the Department issued Permit Number DO19-101251 (hereinafter referred to as the "Permit"). In the cover letter sent with the Permit the Department indicated that the Permit allowed Mr. Vail "to construct and operate a 2,160 gallon per day, on-site wastewater treatment and disposal system serving St. George Inn Restaurant. . . ." The Department also indicates in the Permit that it is for the "St. George Inn Restaurant." The Permit also provides, in pertinent part, the following with regard to the purpose of the Permit: The above named applicant, hereinafter called Permittee, is hereby authorized to perform the work or operate the facility shown on the application and approved drawing(s), plans, and other documents attached hereto or on file with the department and made a part hereof and specifically described as follows: Construct and operate a 108 seat restaurant with an on-site wastewater treatment and disposal system. Wastewater flows shall be a maximum of 2,160 gallons per day generated by domestic facilities and kitchen wastes . . . Construction shall be in accordance with application dated March 18, 1985 and additional information submitted April 29, 1985, specifications and other supporting documents prepared by Brown and Associates and certified by Benjamin E. Brown, P.E. and submitted to the Department on June 5, June 17, and June 20, 1985. The Permit also contains the following "General Condition" number 2 and "Specific Condition" number 15: . . . . 2. This permit is valid only for the specific processes and operations applied for and indicated in the approved drawings and exhibits. Any unauthorized deviation from the approved drawings, exhibits, specifications, or conditions of this permit may constitute grounds for revocation and enforcement action by the department. . . . . 15. The Department shall be notified and prior approval shall be obtained of any changes or revisions made during construction. . . . . The Permit provides the following with regard to the effect of the conditions of the Permit: The terms, conditions, requirements, limitations, and restrictions set forth herein are "Permit Conditions", and as such are binding upon the permittee and enforceable pursuant to the authority of sections 403.161, 403.727, or 403.859 through 403.861, Florida Statutes. The permittee is hereby placed on notice that the Department will review this permit periodically and may initiate enforcement action for any violation of the "Permit Conditions" by the permittee . . . . During the week after the Permit was issued, Mr. Vail obtained a building permit from Franklin County for the construction of the "inn." In February, 1986, after construction of the Inn had begun, Department inspectors went to the construction site of the Inn. The Permit authorized this inspection and other inspections carried out by the Department. The Department determined that the Inn being constructed by Mr. Vail included a restaurant, an apartment on the third floor of the Inn with two bathrooms, and eight guest rooms on the second floor, each containing a bathroom. This was the first time that the Department knew that Mr. Vail's facility was to include guest rooms and living quarters in addition to containing a 108 seat restaurant. In March of 1986, the Department sent a warning letter to Mr. Vail notifying him of the violation of the General Conditions of his Permit: the use of the approved system for the treatment and disposal of wastewater from the ten bathrooms in the guest rooms and the two bathrooms in the apartment in addition to the 108 seat restaurant. On April 1, 1986, Department personnel met with Mr. Vail and Mr. Brown. The Department reminded Mr. Vail and Mr. Brown that the Permit requested and approved by the Department was for a 108 seat restaurant only. The Department had not authorized a system which was to be used for a 108 seat restaurant and ten additional bathrooms. Pursuant to General Condition 14, the Department informed Mr. Vail that it needed an engineer's evaluation of the ability of the system which had been approved to handle the additional flow which could be expected from the additional ten bathrooms. By letter dated April 1, 1986, the Department memorialized the meeting and indicated that Mr. Vail could operate a 100 seat restaurant and the apartment during the interim. By letter dated May 8, 1986, Mr. Brown asked for additional time to submit the evaluation requested by the Department. The Department approved this request by letter dated May 14, 1986. By letter dated May 16, 1986, Mr. Brown submitted an engineering evaluation which proposed modifications to the approved system to handle the additional ten bathrooms. By letter dated June 13, 1986, the Department indicated that the evaluation was generally acceptable" but requested additional information. In January, 1987, before the additional information was submitted, Mr. Brown died in an airplane accident. No evidence was presented to explain why the information requested by the Department in June of 1986 had not been submitted before January, 1987. In March, 1987, the Department inspected Mr. Vail's facility again. In April, 1987, the Department informed Mr. Vail that the Department would take action to revoke the Permit. Before the Administrative Complaint was issued, the Department requested that certain information be provided on behalf of Mr. Vail by an engineer in an effort to resolve the dispute. Mr. Vail did not, however, obtain the services of an engineer. Instead, Mr. Vail sent the Department information purporting to show the amount of water which had been used at the Inn. That information failed to prove the ability of the system that the Department had approved to handle the maximum wastewater which could be expected from maximum use of the 108 seat restaurant and ten additional bathrooms. At best, the information submitted by Mr. Vail is partial proof that the system is capable of handling the wastewater that has been generated at the Inn for the period of time for which the information relates. No competent substantial proof has been submitted to indicate that the system is capable of handling the maximum wastewater flows which may be experienced or even that the system is adequately handling the current flow. All that has been proved is that there is no apparent problem with the system in handling the current flow. In September, 1987, the Department issued the Administrative Complaint. Pursuant to this Complaint, the Department has sought the revocation of the Permit and prescribed certain orders for corrective action. No application has been submitted by or on behalf of Mr. Vail to the Department to construct and operate a wastewater treatment facility designed to accommodate the sewage flows which may be generated by the Inn as it has been constructed. Although the Department of Health and Rehabilitative Services and other agencies were aware that the Inn includes a restaurant and guest rooms, the Department was never so informed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a Final Order requiring that Mr. Vail comply with all of the corrective orders, except Paragraph 18, contained in the Administrative Complaint. DONE and ORDERED this 11th day of March, 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 11th day of March, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NUMBER 87-4242 The parties have submitted proposed findings of fact. It has been noted below which 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 proposed findings of fact 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 of Acceptance or Reason for Rejection 1 Conclusion of law. 2 1. 3 6. 4 10. 5 12 and 13. 6 14. 7 15. 8 18. 9 19. 10 20. 11-12 16. 13 21. 14 23. 15 24. 16 25. 17 26. 18-19 27. 20 28. 21 29 22 Hereby accepted. Mr. Vail's Proposed Findings of Fact 1A 15. Not supported by the weight of the evidence and irrelevant. Hearsay and irrelevant. Although technically true, this is not the issue in this case. The evidence did not prove that the system "can in actuality handle three times the amount permitted." Not supported by the weight of the evidence and irrelevant. 2A Not supported be the weight of the evidence. Exhibit 6 indicates that the Department was aware that the Inn included "hotel rooms" but not the number. Irrelevant. The evidence did not prove that the Department was aware of the scope of the project. Not supported by the weight of the evidence. 3A Irrelevant. Not supported by the weight of the evidence and irrelevant. Even if this were true, the fact remains that the Department was unaware that the Inn included guest rooms or an apartment. Irrelevant. 4A-B Irrelevant. 5A-B Irrelevant. 6A 2-4. B 5. 6 and 11. Not supported by the weight of the evidence. See 12. 13 and 15. Not supported by the weight of the evidence and irrelevant. Not supported by the weight of the evidence. 7A-C Not supported by the weight of the evidence and irrelevant. 8A-D Not supported by the weight of the evidence and irrelevant. 9A-B Not supported by the weight of the evidence and irrelevant. 10-12 Not supported by the weight of the evidence and irrelevant. COPIES FURNISHED: Richard L. Windsor, Esquire State of Florida Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Mr. John Vail St. George Inn Post Office Box 222 St. George Island, Florida 32328 Dale Twachtmann, Secretary State of Florida Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, Esquire General Counsel State of Florida Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Findings Of Fact On February 20, 1985, Demaris Hughes, a registered dietician for the office of licensure and certification of the Petitioner, conducted the annual license survey of the Respondent, A. D. Virice and Associates, Inc., d/b/a Hilcrest Retirement Residence. During this inspection, Ms. Hughes observed that milk used for serving for drinking purposes was not from original individual containers in which it was packaged at the milk plant or from an approved bulk milk dispenser of sanitary design, construction, and operation. This was admitted by Maurice Duff and Virginia Duff, who manage and operate the Hilcrest Retirement Residence. On February 20, 1985, Ms. Hughes told Ms. Duff that the containers then being used were in violation of state regulations, and that a period of 30 days was allowed for the Respondent to correct this violation by either serving milk in one-half pint cartons or in an approved bulk dispenser. The Respondent's Retirement Residence has a license for 13 or more residents. The survey conducted on February 20, 1985, noted other deficiencies, all of which were corrected by the time of the resurvey on April 3, 1985. On April 3, 1985, Ms. Hughes again visited Hilcrest Retirement Residence and milk used for serving was still not served from original individual containers in which it was packaged at the milk plant or from an approved bulk milk dispenser. The Respondent had some difficulty arranging for the purchase of milk in one-half pint individual serving containers, and asserted at the hearing that sometime in early April 1985 it finally had an arrangement with a dairy to obtain milk in individual containers. Agents of the Respondent, nonetheless, knew that they had thirty days from February 20, 1985, to correct this violation, and there is no evidence that they sought any extension of time from Ms. Hughes or from the Petitioner. Additionally, although there was testimony as to the fact that the violation was corrected by early April 1985, there was no independent corroborative evidence, such as a written contract with a milk supplier, cancelled checks, or written invoices for purchase of milk in one-half pint containers.
The Issue The issue for consideration in this case is whether Respondent should be disciplined, to include a three day suspension without pay, because of the misconduct alleged in the Notification of Suspension issued herein.
Findings Of Fact At all times pertinent to the issues herein, Respondent, William T. Mooney, worked as a laboratory technician for the City of Clearwater's Public Works/Water Pollution Control Division. On April 15, 1993, Doreen Spano, the City's utility lab supervisor, held a meeting of her division personnel at which she identified Iracema Drysdale as the lead worker and, in order to clarify any misconceptions among lab workers as to work deadlines, presented a policy letter for the lab, entitled "New Work Schedule". The schedule set guidelines and deadlines for the daily workload. The memorandum contains inconsistent statements, however. For example, while Ms. Spano indicated both in the memo and at hearing that the instructions therein are merely guidelines, she also used such imperatives as "must" and "will" in the memo. Specifically, the memorandum indicates the daily plant BOD must be in the incubator by 12:00 PM, and the daily plant bacteria must be in the incubator by 12:30 PM. Respondent has worked in this City laboratory for approximately 14 years. During this time he has developed a method of accomplishing his tasks which is described by Ms. Drysdale as less than efficient. She indicates he frequently misses his time deadlines and works at his own pace. Respondent, on the other hand, claims he has always completed his tasks according to the Standard Methods Manual, but, due to the time the samples are received in the lab, could not accomplish both the BOD and the bacteria procedures within the guidelines set in that manual and the Environmental Protection Agency standards manual. Either one or both would be late. This controversy, much of which was made by both sides, is, in reality, only peripherally related to the issue in controversy here which is whether Respondent was insubordinate or not on September 9, 1993. Both Ms. Drysdale and the Respondent signed the memorandum in question here indicating their receipt and understanding of the directions contained therein. Thereafter, on September 9, 1993, Ms. Drysdale entered the lab shortly before the lunch period to find the bacteria procedure not done and Respondent working on the BOD procedure. It appears that the bacteria sample was taken at 6:00 AM on this day and, under EPA guidelines, had to be preserved in the incubator within six hours or the results of the procedure would be invalid and not eligible for reporting to the EPA. When Ms. Drysdale asked Respondent why he was doing the BOD when the bacteria procedure had not been accomplished, he indicated that Ms. Spano's memorandum required the BOD to be done by 12:00 noon and the bacteria not until 12:30 PM. He considered this a directive and indicated he would complete his work consistent therewith. Again, there is a contradiction in the testimony as to the nature of the conversation between Ms. Drysdale and the Respondent. Ms. Drysdale asserts that about noon on the day in question, she suggested to Respondent that he start the bacteria procedure first and then do the BOD procedure. Respondent refused because he believed he had to follow the new work schedule prepared by Ms. Spano. Ms. Drysdale then told him to do the bacteria procedure first and she would assume the responsibility. Respondent still refused and, raising his voice to her, completed the BOD procedure. When he finished that, he did the bacteria procedure but by that time, the sample was too old and had to be discarded. Respondent's recounting of the incident is somewhat different. He claims he was approached by Ms. Drysdale who asked him why he did the bacteria procedure after the BOD procedure. When he pointed out the dictates of the memorandum, she claimed to know nothing about it even though her signature, along with that of Respondent and Mr. Olson, appears on the bottom thereof. Nonetheless, according to Respondent, Ms. Drysdale said she would check on it. After lunch, according to Respondent, Ms. Drysdale came back with the Standard Methods book. When he showed her the new work rules, he claims, she admitted she was aware that Ms. Spano had written them. When he asked her what Ms. Spano had said about the situation, she allegedly replied, "Why don't you do it the way I say and if Doreen (Ms. Spano) asks, I'll take the responsibility." Respondent was upset because, he contends, things like this always happen. Respondent, in subsequent testimony, denied ever getting a direct order from Ms. Drysdale or that she indicated she would assume responsibility. On balance, while there is little doubt in Ms. Drysdale's testimony as to what happened, Respondent tells two different stories regarding the conversation. At one point he claims she asked him why he didn't do it her way and that if he did, she'd assume responsibility. At another, he claims she merely asked why he was doing the procedures as he was and made no mention of assuming responsibility. It is clear that Ms. Drysdale wanted the bacteria procedure done first, and while she might not have couched her request in directory language, there can be little doubt she communicated her desires to Respondent, albeit in a perhaps more gentle manner. In any case, she was Respondent's supervisor and he knew it. She wanted the work done as she indicated and her request, made under the authority she had to get the work done as she desired, had the force and effect of a direct order which Respondent disobeyed at his peril. Ms. Spano indicated she discussed not only the appointment of Ms. Drysdale as lead worker at the April 15, 1993 meeting, but also the six hour requirement for specimens. Respondent denies this, but it is found he knew exactly what the requirements were. He claims he has been doing things the way the memorandum calls for ever since it was promulgated and this is not inconsistent with his current position on doing the BOD procedure first. When this incident took place, Mr. Reckenwald, the superintendent of the water and pollution control division, and the overall supervisor of the laboratory operation in question, received a recommendation for discipline, primarily because of Respondent's failure to follow orders. In addition, however, the incident created a problem for the City which has to report to the EPA and other federal agencies. Because of this report requirement, it is imperative the work be done properly. If it is not done properly, the work is worthless and may result in sanction action against the city by federal regulatory agencies. Not the least of concerns, also, is the public health consideration since effluent, the source of samples for both BOD and bacteria procedures, is discharged into the public waterways. On the basis of the above, a recommendations was made that Respondent receive a three day suspension. This is consistent with disciplinary guidelines contained in the City's Guidelines For Disciplinary Action. Respondent appealed the action to the City Manager who reviewed his submittal but nonetheless upheld the disciplinary action proposed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the City of Clearwater take final action in this matter to consist of suspension of the Respondent without pay for three days and imposition of 40 disciplinary action points. RECOMMENDED this 24th day of May, 1994, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 24th day of May, 1994. COPIES FURNISHED: Miles A. Lance, Esquire Assistant City Attorney City of Clearwater P.O. Box 4748 Clearwater, Florida 34618 William T. Mooney 1433 Laura Street Clearwater, Florida 34615 Michael J. Wright City Manager City of Clearwater P.O. Box 4748 Clearwater, Florida 34618-4748
The Issue The issues in this case are the validity of Florida Administrative Code Rules 18-14.003(4) and 18-21.004(1)(g)-(h) and (7)(i),1 and an alleged unadopted rule prohibiting fish cleaning stations over sovereign submerged land (SSL); and Petitioner's claim to an award of attorney's fees and costs under Section 120.595(3)-(4), Florida Statutes.2
Findings Of Fact Petitioner owns land on Lake Talquin. In 2003, he obtained a joint permit and SSL consent of use to build a seawall, a boat dock and a covered but not walled boathouse there. In 2005 he obtained another joint permit and SSL consent of use to build another boat dock and another covered boathouse at another location on his property there. Both joint permit/authorizations had general and special conditions. Both had a general condition that limited the permit/authorization to "the specific processes and operations applied for and indicated in the approved drawings or exhibits" and required Petitioner to operate and maintain the facilities "to achieve compliance with the conditions of this permit." Both have a specific condition prohibiting "fish cleaning stations . . . on any structure that is located over the water." The 2003 joint permit/authorization has a specific condition prohibiting any walls and doors on the boathouse and another specific condition prohibiting the installation of water and electric lines. The 2005 joint permit/authorization omits those specific conditions. DEP has issued a Notice of Violation (NOV) against Petitioner for violating the 2005 joint permit/authorization's specific condition prohibiting water and electric lines, for exceeding the dimensions of the boathouse authorized by the joint permit/authorization, for adding a second story structure of livable space (with a kitchen, bathroom, shower, furnished seating area, flat-panel television, and window air conditioning unit) above the boathouse in the space between the roof rafters and the top of the authorized first story structure. DEP has not issued an NOV as to the 2003 joint permit/authorization although it also has electric and water lines. DEP has not issued an NOV as to either joint permit/authorization for having a fish cleaning station over the water. An inspector told Petitioner that the fish cleaning station on the newer facility was a violation of the 2005 permit but that it was not an issue anymore after a change in the law. Petitioner attempted but failed to prove that DEP or BOT prohibits fish cleaning stations over water as a general rule. It is not clear what change in the law has occurred with respect to fish cleaning stations. In any event, the evidence was that these facilities are prohibited when appropriate for protection of water quality, not as a general rule. Rule 18-14.003 states in pertinent part: It shall be a violation of this rule for any person or the agent of any person to knowingly refuse to comply with any provision of Chapter 253, F.S., willfully violate any provision of Chapter 253, F.S., or to willfully damage state land (the ownership or boundaries of which have been established by the state) or products thereof, by doing any of the following: * * * (4) Maintain, place or build permanent or temporary structures, including, but not limited to, additions to existing structures; all structures whose use is not water- dependent; sanitary septic systems; fences, docks and pilings; houses; oil rigs; and utility installations on or over state land without consent or authority from the Board or Department. Petitioner's rule challenge focuses on the part of the rule specifying: "structures whose use is not water-dependent; sanitary septic systems; . . . houses; . . . and utility installations on or over state land without consent or authority from the Board or Department." Rule 18-21.004 states in pertinent part: The following management policies, standards, and criteria shall be used in determining whether to approve, approve with conditions or modifications, or deny all requests for activities on sovereignty submerged lands. General Proprietary. * * * Activities on sovereignty lands shall be limited to water dependent activities only unless the board determines that it is in the public interest to allow an exception as determined by a case by case evaluation. Public projects which are primarily intended to provide access to and use of the waterfront may be permitted to contain minor uses which are not water dependent if: Located in areas along seawalls or other nonnatural shorelines; Located outside of aquatic preserves or class II waters; and The nonwater dependent uses are incidental to the basic purpose of the project, and constitute only minor nearshore encroachments on sovereign lands. Stilt house, boathouses with living quarters, or other such residential structures shall be prohibited on sovereignty lands. * * * General Conditions for Authorizations. All authorizations granted by rule or in writing under Rule 18-21.005, F.A.C., except those for aquaculture activities and geophysical testing, shall be subject to the general conditions as set forth in paragraphs through (i) below. The general conditions shall be part of all authorizations under this chapter, shall be binding upon the grantee, and shall be enforceable under Chapter 253 or 258, Part II, F.S. * * * (i) Structures or activities shall be constructed, operated, and maintained solely for water dependent purposes, or for non- water dependent activities authorized under paragraph 18-21.004(1)(g), F.A.C., or any other applicable law. Petitioner's rule challenge focuses on the parts of this rule prohibiting non-water dependent uses over SSLs, unless in the public interest as determined by a case-by-case evaluation and prohibiting stilt houses, boathouses with living quarters, and other residential structures. Petitioner contends that these rules: exceed their legislative authority; enlarge, modify, or contravene the laws they implement; are vague, lack adequate standards for BOT decisions, and vest unbridled discretion in the BOT (particularly by use of the terms "structure whose use is not water dependent," "utility installations," and "public interest by a case by case evaluation"); and are arbitrary and capricious (for essentially the same reasons they allegedly are vague). See § 120.52(8)(b)- (e), Fla. Stat. The term "structure whose use is not water dependent" is not defined by rule, but Rule 18-21.003(68) states: "'Water dependent activity' means an activity which can only be conducted on, in, over, or adjacent to water areas because the activity requires direct access to the water body or sovereign submerged lands for transportation, recreation, energy production or transmission, or source of water, and where the use of the water or sovereign submerged lands is an integral part of the activity." DEP makes determinations of water-dependency on a case- by-case review of the facts and circumstances presented in each case. DEP does not have a list of factors used in making this determination in any rule, non-rule policy, or other document. According to the evidence, DEP considers docks and boathouses to be water-dependent structures. A roof over a dock may be considered water-dependent depending on the facts and circumstances and whether the roof is an integral and required part of the water-dependent activity. The same is true with respect to benches that are part of a dock structure. Boating- related paraphernalia such as boat paddles, life vests, and similar items can be stored in empty rafters under the roof of a permitted docking facility, but not rakes and shovels cannot, because boating-related paraphernalia are associated with transportation across water, while rakes and shovels are not. Cans of gasoline are related to transportation on water, but their storage on the rafters of a boathouse is not necessarily a water-dependent activity because this is not considered to be safe. Depending on the circumstances, DEP has authorized the installation of electrical and water lines and sewage pump-out systems on boat docking facilities. The installation of electrical and water lines and sewage pump-out systems can be an integral or required part of a public or private commercial marina or docking facility, but generally not a noncommercial dock. DEP once authorized the use of golf carts in connection with a long private pier. The evidence proved that reasonable people of common intelligence can disagree on the interpretation and application of the "not water-dependent" definition. Even experienced consultants are required to check with DEP to be sure they are interpreting and applying the definition correctly. DEP employees sometimes are required to check with DEP headquarters in Tallahassee to be sure they are interpreting and applying the definition correctly. But the evidence did not prove that the definition is vague, lacks adequate standards for BOT decisions, or vests unbridled discretion in the BOT. The term "utility installations" is reasonably clear and is generally understood to mean the installation of water, sewer, and electricity. The evidence did not prove that the term is vague, lacks adequate standards for BOT decisions, or vests unbridled discretion in the BOT. The evidence did not prove that the term "public interest by a case by case evaluation" is vague, lacks adequate standards for BOT decisions, or vests unbridled discretion in the BOT. The evidence was that DEP interprets the definition in the sentence that immediately follows in Rule 18-21.004(1)(g) to limit the "public interest" exception to certain "public projects" (which BOT then broadly interprets to include privately-owned marinas that are open to the public). The evidence did not prove that the challenged parts of Rules 18-14.003 and 18-21.004 are unsupported by logic or the necessary facts, or were adopted without thought or reason or are irrational.
