The Issue The issue is whether Respondent committed the violations alleged in the Administrative Complaint dated January 4, 2006, and if so, what penalty should be imposed.
Findings Of Fact Based on the evidence and the testimony of witnesses presented, and the entire record in this proceeding, the following findings of fact are made: At all relevant times, the Division is the state agency responsible for licensing, regulating, and inspecting public food service establishments. With particular relevance to this case, it is the Division's responsibility to establish and enforce rules pertaining to sanitation and public health and safety in accordance with relevant provisions of the Florida Statutes; to ensure compliance with its rules; and to impose discipline in appropriate circumstances. At all relevant times, Pepe's was licensed by the Division as a public food service establishment under license number 1616814; was located at 41 Northeast 44th Street in Ft. Lauderdale, Florida 33060; and was operated and owned by Joseph Trujillo. At all relevant times, Michele Lynn Schneider (Ms. Schneider) was employed by the Division as a sanitation and safety inspector. Ms. Schneider's duties include conducting inspections of Division licensees, including Pepe's. On or about November 16, 2005, Ms. Schneider conducted a routine inspection of Pepe's. Based upon her inspection she documented various sanitation and safety violations and issued a written warning to Pepe's which directed that the violations be remedied within 30 days. On December 22, 2005, Ms. Schneider returned to Pepe's to conduct a re-inspection. Her re-inspection revealed that violations documented at the time of the re-inspection had not been remedied. Violations observed by Ms. Schneider at both the inspection and the re-inspection were "critical" in that they are more likely than other violations to pose an immediate threat to public health or safety. The violations observed and documented by Ms. Schneider at the inspection and again at the re-inspection were: Violation 08A-28-1, based upon Ms. Schneider's observation that food was stored five inches above the floor. Food stored less than six inches above the floor is at risk of contamination. Violation 10-8-1, based upon Ms. Schneider's observation of an ice scoop handle in contact with ice in an ice storage container. Utensil handles such as scoop handles which come in contact with employees' hands and are then placed in food or other consumables pose a risk of cross- contamination. Violation 12A-03, based upon Ms. Schneider's observation that employees failed to wash their hands in between changing food preparation tasks and/or between handling food and handling money or other non-sanitary items. Failure to wash hands between such tasks poses a risk of cross-contamination. Violation 31-07-1, based upon Ms. Schneider's observation that there was no dedicated hand washing sink in the dishwashing area. To avoid risk of cross- contamination, handwashing sinks must be located in the dishwashing area and must be used strictly for handwashing. Sinks used for multiple purposes pose a risk of cross- contamination. Violation 31-08-1, based upon Ms. Schneider's observation that there was no hand washing sink in the food preparation area. To avoid risk of cross-contamination, handwashing sinks must be located in the immediate vicinity of the food preparation area. Violation 12B-03, based upon Ms. Schneider's observation of an employee drinking from an open beverage container in a food preparation area. Ms. Schneider later observed the same beverage container next to kitchen utensils. Should the drink spill and the contents come in contact with food or utensils, cross-contamination may occur. Ms. Schneider was the only witness at the hearing. Her testimony with regard to the material allegations of the Administrative Complaint was credible, and was unrebutted by Pepe's.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that Petitioner enter a final order finding the violations described and imposing an administrative fine on Pepe's in the amount of $5,500, due and payable on terms prescribed by the Division; and requiring the owner and/or manager of Pepe's to attend, at the licensee's expense, an educational program sponsored by the Hospitality Education Program or other educational program approved by the Division, within 60 days of the date of the final order, and to provide proof thereof to the Division. DONE AND ENTERED this 22nd day of September, 2006, in Tallahassee, Leon County, Florida. S FLORENCE SNYDER RIVAS 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 22nd day of September, 2006.
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: At all times material to the instant case, Respondent operated Adelita's Cafe (Restaurant), an eating establishment located in Fort Lauderdale, Florida. Respondent is now, and has been since December 21, 2006, the holder of a license issued by Petitioner (license number 1619606) authorizing it to operate the Restaurant as a public food service establishment. On October 4, 2007, Sajjad Karim, a Sanitation and Safety Specialist with Petitioner, conducted an "unscheduled inspection" of the premises of the Restaurant. His inspection revealed, among other things, the following (which hereinafter will be referred to, collectively, as the "Conditions"): refrigerated, ready–to-eat food items prepared in the Restaurant (including soups and cold cuts), subject to contamination from bacteria over time, that were being stored in the walk-in cooler for subsequent use were not in containers having date markings on them; these food items were not properly "covered" and therefore were exposed to splash, dust, or other contamination; undercooked animal products (including meat, poultry, eggs, and fish) were available for consumption, but there was no written notice in the Restaurant to consumers of the health risks associated with the consumption of such products; a sign instructing employees to wash their hands was not posted in a restroom used by employees; a cutting board surface used in the kitchen was stained and had "cracks in it," with "food debris . . . in between the cracks"; exit signs were not illuminated; "ceiling tiles [were] missing in the men's [rest]room"; and Respondent did not possess a license from Petitioner authorizing it to operate the Restaurant as a public food service establishment. Before leaving the establishment, Ms. Karim advised Respondent that these Conditions had to be corrected within 30 days. Mr. Karim conducted a "callback" inspection of the premises of the Restaurant on November 28, 2006. His inspection revealed that each of the Conditions described in Finding of Fact 3 still existed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner issue a final order finding that Respondent committed the violations alleged in the Administrative Complaint and disciplining Respondent therefor by imposing a fine in the total amount of $3,600.00. DONE AND ENTERED this 19th day of June, 2007, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 19th day of June, 2007.
The Issue Whether Robert Piechocki is entitled to a permit as governed by Section 403.087 F.S. and Chapter 62 F.A.C. (formerly Chapter 17 F.A.C.) to construct and operate a rotational grazing dairy, with an accompanying dairy waste management system.
Findings Of Fact Respondent Piechocki applied for the presently disputed DEP industrial wastewater permit on August 18, 1994. After submittal of additional information, the application was deemed complete. On July 7, 1995, DEP issued an intent to issue permit, including groundwater monitoring requirements and specific and general permit conditions. Petitioners challenged the intent to issue. SOS was stipulated to have standing to bring its petition. At formal hearing, Robert and Beverly Hawkins withdrew their petition in DOAH Case No. 95- 3900. The permit application seeks approval of a proposed dairy farm to be located on approximately 267 acres of property of which 255 acres will be utilized as rotational grazing paddocks. The herd will be 699 cows. The dairy will be located at a site in the extreme northeast corner of Dixie County. The site is less than one mile from the Suwannee River. At low water conditions, gravity dictates groundwater will flow from the proposed dairy site to the Suwannee River, which is the bottom level of the groundwater aquifer. Petitioners' environmental concern is that nitrogen, phosphorous, and pathogens from the dairy may reach the Suwannee River via surface water and groundwater runoff, through sinkholes or from leaching through the soil. The proposed dairy will have a waste management collection system consisting of collection, storage, treatment lagoon, and application system components. The waste management system is intended to collect the wastewater deposited upon the high use surfaces of the milking parlor, the collection system, and the cow transit area leading to the collection system. Wastewater deposited upon the high intensity or impervious surfaces of the milking parlor, the collection system and the cow transit leading to the collection system will be flushed six times daily by a 2500 gallon flushing tank. The cows are only on that area 15 percent of the time, so only 15 percent of their waste must be processed this way. That water and any stormwater that falls into the collection system will drain to the anearobic wastewater lagoon. The adequacy of the design of the lagoon system was not refuted for a 25 year-24 hour storm (flood event). The wastewater will be used to irrigate the 255 acres of rotational grazing patterns by a spray irrigation system. There will be no direct discharge of effluent to waters of the state. DEP inspections showed no ponding, but conditions of the permit provide that wastewater effluent may not be applied to ponded areas and that there be no surface water runoff from the dairy site. The only impact on the Suwannee River will be from the groundwater flowing from the site. Groundwater concerns are part of this wastewater permitting process. Six groundwater monitoring wells are to be installed as part of the proposed project. One of the wells will be located in the barn vicinity; one will be placed up gradient of the barn; and four will be located along the farm perimeter on the down gradient side of the dairy, specifically to provide extra security to the Suwannee River. The wells have been adapted to optimize monitoring within the expected flow pattern. The draft permit allows for a change in the number of wells should either analytical data or water flow data be other than as expected. The proposed dairy farm is designed to contain nutrients in the upper zones of soil, in the root zone or in the argillic layer. Mr. Piechocki plans to use a rotational grazing system. Fifty-seven paddocks would be utilized and 699 cows would be moved from paddock to paddock. This permits even grazing over the entire paddock area. If the contingency of thinning plant cover occurs in part of any paddock, electric tape can be used to seal that area off from the cows. Cows would be prohibited from congregating in a bare area or from grazing in one area until it became bare. Presumably, the same measures can keep cows out of any areas which subsequently pond or develop a sinkhole. Rotational dairy farming is relatively new to Florida, but has been practiced in other parts of the country for some time. Rotational dairy farming is designed to reduce the amount of nitrogen being imported as compared to a non-rotational dairy. Rotational dairy farming is a concept which essentially relies on the pasture production and grazing of grasses to meet most of the nutritional requirements of the dairy cows. This compares to other types of dairy farming where cows are generally brought together in a feed lot and fed with hay and grains. Rotational grazing means rotational loading of nitrogen. Rotational grazing prevents higher loads at any one spot caused by the natural congregational proclivities of cows in conventional confinement or free roam dairies. Rotational grazing means there will be no "manure pack" created in the feed lot, as was usual in older free roaming dairy systems which have created groundwater degradation in South Florida through nutrients leaching from the "manure pack" into the groundwater and surface runoff. The 699 cows intended for this dairy herd would not produce enough nitrogen in their manure to even produce a vigorous crop of grass, so the dairy will have to add fertilizer to the soil in order to be economically profitable. The fertilizer will contain phosphorous and nitrogen, but it is to the dairy's economic interest to use the resident cow manure to greatest advantage since the more vigorous a crop is produced naturally, the less imported fertilizer must be purchased. Fertilizer will be applied only when testing shows it is necessary. No environmental danger from phosphorous was demonstrated. Each paddock area will be free of all cows and all irrigation spraying for nine days at a time, thus "resting" from any nitrogenous deposit during that period of time unless fertilizer is applied. By rule, there is no requirement that each dairy have a DEP permit. By policy established in 1990, DEP has required every new dairy in the Suwannee River Water Management District to obtain an industrial waste management permit. Contrary to opposing experts' assumption that all or part of the dairy site was within the 100 year blood plain, Mr. Piechocki's experts were clear in their finding that the site is not within the 100 year flood plain. Regardless thereof, DEP has no requirement excluding utilization of sites which lie below the 100 year flood plain. For dairies of under 700 cows, DEP requires that there be no discharge through a man-made flushing device to surface waters of the state. This project has no such device. In this case, the proximity of the Suwannee River and the presence of a karst region made DEP personnel particularly cautious. Several on-site inspections were made by DEP personnel. Also, DEP applied its higher standards for dairies of over 700 cows. DEP's rule and/or policy creates a threshold of 700 cows to which more stringent rules apply for discharge to surface water, i.e., applicants must prove the project will not degrade water quality even under the 25 year-24 hour storm event criteria. This applicant ultimately demonstrated the dairy could meet that standard. DEP's concerns in this permitting process focus on nitrogen and nutrient loading of nitrogen into the soil and in this case, the Suwannee River, which has been designated an Outstanding Florida Water (OFW). This designation entitles the Suwannee River to the highest level of environmental protection. Nitrogen is necessary in limited quantities to grow the plants cows eat so that they can produce milk. Some nitrogen from the plants goes into the milk which, upon leaving the cow is transported off-site. Some nitrogen is found in the waste produced by the cows, mostly manure. A portion of the deposited manure then volatilizes approximately 70 percent of the nitrogen in the manure into the air. The nitrogen remaining in the manure becomes part of the soil and plant system over time. Any volatilized nitrogen that might be returned to the soil by rainwater is considered lost as pure elemental nitrogen. The unfavorable side effect of nitrogen with which DEP is concerned in this case is when it affects groundwater and surface water runoff, and then only if the nitrogen is in a concentration which violates drinking water standards. The groundwater quality standard to be applied by DEP is the drinking water standard for nitrogen content. The applicant ultimately demonstrated the dairy will meet this standard. The geology underneath the proposed dairy farm site is characterized as karst geology but most of Florida is highly underlaid with karst. This type of geology can be described as being cavernous with many connected conduits allowing for rapid movement of groundwater. The site is classified by the Suwannee River Water Management District Aquifer Vulnerability Map as being highly vulnerable to groundwater contamination. The karst geology means that sometime in the past, limestone rose up and cracked, creating fissures, which ultimately resulted in sinkhole formation. Over time, sinkhole or collapse features tend to plug up with sands or clays. The feature becomes less steep- sided and more difficult to find, although a conduit between the surface and groundwater aquifer may still exist. Surface depressions can be indicators of subsurface solution features. Surface depressions can result in surface ponding. If there is a direct conduit, surface waters can more rapidly reach the groundwater aquifer as compared to other parts of the surface. Also, because of the limestone fractures and the porosity of the limestone, water can flow through the interconnected pore features. Normally, karst is only a problem as regards nitrogen loading if a particular conduit (or sinkhole) is subject to nutrient loading. If a sinkhole is active, that is, extending to the surface, it creates a direct link to the groundwater with no opportunity for treatment of contaminants through the soil. Barring the presence of active sinkholes, if there is a sufficient overlaying soil layer over any subterranean solution feature, the soil layer with crops growing on it will provide the necessary safeguards to protect surface and groundwater. However, the permit DEP intends to issue has conditions relevant to that issue to the effect that if any sinkholes should form on the dairy property, the cows must be fenced away from them or berms erected to prevent runoff or the sinkholes capped with clay to prevent water moving downward. Mr. Robert Hawkins, who owns the property directly north of the dairy site, but on the opposite side of the county road, demonstrated that his property is riddled with sinkholes, some as deep as seven feet, through which he can watch deep water often run rapidly to the Suwannee River. He theorized that this phenomenon occurs whenever both the Steinhatchee Refuge (basically a swamp) on the west side of his property and the Suwannee River to the east of both his property and the proposed dairy site rapidly fill from heavy rains. Then the water bubbles up through the sinkholes. Eight years ago, Mr. and Mrs. Hawkins and a friend paddled a canoe the length of his woods to the Suwannee River. He also claimed the water flows through the porous karst environment under all surrounding properties as well as his own, but he has not observed the phenomenon occurring on the dairy site. He has no recognized area of expertise and did not know the geology of the dairy site in particular. He has been on the site only one time, briefly, and then had observed some depressions but no sinkholes. He had allowed cattle to roam freely on his own property for fourteen years some years ago. Mr. Hawkins' theory had limited support in the testimony of Dennis J. Price, an expert in geology and hydrology, but Mr. Price seemed to believe one additional monitoring well on the southern border of the dairy site would provide sufficient security. Mr. Malcolm Howell owned the proposed dairy site property from 1956 until Mr. Piechocki bought it. Mr. Howell also owns parcels of real property scattered throughout the area. He confirmed other testimony to the effect that 30 years ago, a hurricane caused water to stand for several days on the county road north of the dairy property and on the parcel immediately southeast of the dairy site property. It is logical that flooding is likely to occur again under the same conditions. However, Mr. Howell has never seen a sinkhole on the dairy property. Although there are some depressions at various locations on the dairy property, no witness could say unequivocally that they were former sinkholes. The theory most damaging to the applicant is that these depressions are solution holes that developed on top of limerock and filled in, resulting in a gentler grade than an active sinkhole, but no witness could unequivocally say that these areas are over open karst fissures. There is limerock on the site which could indicate a conduit. Limerock also is highly porous. Ground penetrating radar was done. Ground penetrating radar is very site specific. Ground penetrating radar detected no active sinkholes on the dairy site. A fracture trace analysis may or may not have been more accurate for showing fracture resolution conduits, but such an analysis was not required and was not performed. The applicant has made adequate arrangements to prevent cows being in the depressed areas should a ponding effect or sinkhole occur. Ponding is more a nuisance (flies and odor) concern than a problem affecting groundwater. The Natural Resources Conservation Service (NRCS) sets standards and assists farmers in developing dairy designs and other soil related designs pertaining to agriculture. Under its criteria, there must be at least a three inch thick layer of soil with at least five per cent silt plus clay content. DEP uses this criteria as a guideline. The applicant meets this guideline. In order to analyze the soil at the dairy site, the applicant had qualified engineers make 47 borings eight feet deep over a 600 foot grid. Except for one boring, all borings met NRCS standards. Only one sample was shown by professional soil testers to be 2 percent clay and 2 percent silt. In an abundance of caution, DEP required additional borings. Cal-Tech, a consulting firm retained by the applicant, made about a dozen soil borings at the proposed dairy farm site. Eight of the borings identified sand only as being encountered to depths of 10 to 12 feet. The clay and organic content of the soils is not uniform across the proposed dairy farm site, but it may be assumed the 59 borings are representational. DEP was then satisfied that reasonable assurances based on soil content had been provided. DEP reviewers consulted with field representatives of the NRCS and reached the independent conclusion that the dairy would have a negligible impact on all Florida waters and an immeasurably small impact on the Suwannee River. In assessing this application, DEP accepted figures and calculations produced by the applicant's experts, but the draft permit provides safeguards in case the data is other than as represented. The experts used standard and accepted formulas, even down to measuring the estimated averages of cow manure as collected and standardized by the American Society of Agricultural Engineers. In designing the dairy, a critical decision formula was utilized by the applicant's engineer, Mr. Tremwel. Mass-loading and mass balance equations were made for the proposed dairy farm operation to determine "worst case" loading of nitrogen and phosphorous to the Suwannee River. These calculations of the dairy farm's impact to the Suwannee River were made using low flow conditions for the river. Mr. Tremwel used low flow per the United States Geologic Survey standards to predict a higher concentration of nitrogen would affect the Suwannee River than probably would ever actually reach it. He assumed that once nitrogen got below the argillic layer of the earth, there would be no further adsorption to the soil. The foregoing assumption is very unrealistic because even subsoil and limerock can absorb some nitrogen, but the assumption was made to maximize the estimated nitrogen or phosphorus (primarily from phosphate fertilizers) that could be transported to the Suwannee River as a result of this dairy. Even using this "worst case" scenario, any change at all would be undetectable at low flow and have no negative offsite effects. Assuming arguendo there were some occasional cumulative impact not accounted for by these calculations, the dynamic flow of the Suwannee River would flush most nutrients quickly. In parts of the application process, DEP consults with Suwannee River Water Management District (SRWMD) personnel. In this case, SRWMD personnel had reviewed the initial application and presented some groundwater and wastewater concerns primarily related to the vulnerability of the aquifer in a karst/sinkhole region. Among those who testified, there were still some concerns, but the witnesses were either basing their assumptions on 100 year storm event criteria and/or had not reviewed all the supplemental material such as additional boring data on soil content which the applicant submitted in response to DEP's requests for further information, and/or had never been to the site. The SRWMD witnesses deferred to experts in other fields. They expressed no clear opinion as to the adequacy of the agricultural engineering or dairy waste management system proposed for this dairy. The SRWMD had issued an Environmental Resource Permit for a road at the diary site, but deferred to DEP on ground and wastewater issues. Pathogens are related to viral and bacterial agents which cause disease syndromes. A number of pathogens are found in the manure and urine of cows. DEP permitting rules only consider the potential for pollution from one bacteriological pathogen: e.coli. Petitioners did not demonstrate any threat by the dairy from e.coli. Experts for Mr. Piechocki and DEP in the fields of agricultural engineering, dairy waste management, geology, hydro-geology, and soil science testified credibly that within reasonable professional certainty, the dairy will abate and prevent water pollution to the extent required by the applicable statute and rules. Petitioner has provided reasonable assurances to that effect. Terry Tremwel, Mark Bardolph, Edward Cordova and John J. Davis each gave their expert opinion that all existing applicable environmental permit criteria had been met. Petitioners presented no expert in dairy waste management. The applicant has provided reasonable assurances any discharges will be "free from" named nutrient concentrations covered by rule. The Suwannee River collects groundwater from a tremendously large area. This area contains numerous towns, private homes with septic tank systems, commercial farms and timberland, recreational areas, and other uses which all have some impact on groundwater quality. Further, most of these other uses do not require environmental permits nor do they provide for any specific safeguards to the quality of the groundwater. The potential impact of the proposed dairy is negligible and insignificant when compared with all of these other uses which may impact groundwater quality. Witnesses agreed that virtually all human or animal activity within the Suwannee River drainage area could potentially have an adverse impact on the quality of the groundwater flowing into the Suwannee River. It was not established that the proposed dairy would significantly degrade, either alone or in combination with other stationary installations, the Suwannee River, or that the proposed dairy would violate any applicable regulations protecting the Suwannee River.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: The Department of Environmental Protection enter a final order dismissing the Petition in DOAH Case No. 95-3900 as withdrawn ,and The Department of Environmental Protection enter a final order granting Respondent Piechocki permission to construct his dairy waste management system in accord with the draft permit's general and special conditions as modified to include one additional monitoring well on the southern border, and dismissing the Petition in DOAH Case NO. 95-3899 on the merits. RECOMMENDED this 22nd day of December, 1995, in Tallahassee, Florida. ELLA JANE P. DAVIS, 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 22nd day of December, 1995. APPENDIX TO RECOMMENDED ORDER 95-3899 and 95-3900 The following constitute specific rulings, pursuant to S120.59(2), F.S., upon the parties' respective proposed findings of fact (PFOF). Save Our Suwannee's PFOF: 1-10, 15-16, 19-20, 22-28, 30-33, 35-39, 41-45, 47-50, 60-61, 64-83, 85-93, 95- 102 Accepted, except that unnecessary, subordinate and/or cumulative material has not been adopted. Legal argumentation and proposed conclusions of law have also been excluded or relegated to the conclusions of the recommended order. 11-12, 17-18, 29, 34, 40 and 46 Rejected because as stated, or in context with other proposals, they are not supported by the greater weight of the credible evidence. However, the issues are covered within the recommended order to the degree they are material. Many of these proposals may be generally true as related by Mr. Ceryk and other of Petitioners witnesses, but are not site-specific and therefore not accepted. Many are opinions of experts who ultimately deferred to other experts. Legal argumentation on accepted opinions was excluded. 13, 56-59 Rejected as immaterial and as legal argumentation 14 The proposal is accepted. The footnote is not precisely supported by the transcript citation and is immaterial. 21 Accepted, except for the last sentence which is contrary to the facts as found upon the greater weight of the credible evidence. 51-55 Rejected as largely legal argumentation, but the 10 parts per million and cumulative discharge issues are covered in the recommended order and the weight and credibility of the testimony cited is likewise discussed therein. Accepted, except for the last conclusory sentence which is legal argumentation contrary to the facts as found. First sentence cumulative; second sentence immaterial. 84 Irrelevant under the facts of this rotational grazing system. 94 Rejected as immaterial, cumulative, and as legal argumentation. Mr. Piechocki's and DEP's Joint PFOF: 1-5, 8, 14 Accepted. 6 Accepted, except that "pollutants" in the generic sense are not the subject of permit but only as defined by statute and rule. 7, 9 Accepted, except that conclusions of law are assigned to that portion of the recommended order. 10-12, 15-29 Accepted, except for unnecessary, subordinate, and/or cumulative material. Also, legal argumentation has been excluded. Conclusions of law are assigned to that portion of the recommended order 13 The significance of the 100 year flood plain is covered in Finding of Fact 17. COPIES FURNISHED: Marty Smith, Esquire 125 N.E. 1st Avenue, Suite 1 Ocala, FL 34478-3319 Christine C. Stretesky, Esq. Dept. of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Robert Piechocki P. O. Box 2267 Chiefland, Florida 32626 Robert & Beverly Hawkins HC 4 Box 180 Old Town, Florida 32680 Peter B. Belmont, Esquire 511 31st Avenue North St. Petersburg, Florida 33704 Virginia B. Wetherell, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevrd Tallahassee, Florida 32399-3000 Kenneth Plante, General Counsel Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevrd Tallahassee, Florida 32399-3000
The Issue The issue is whether Petitioner created a sanitary nuisance in violation of Florida Administrative Code Rules 64E- 6.022(1)(l) and 64E-6.022(1)(q) and, if so, the proper penalty.
Findings Of Fact The Department of Health, Duval County Health Department (Department), is the state agency charged with enforcing the statutory and regulatory provisions pertaining to septic tank installations and repairs in Florida, pursuant to Section 381.0065, Florida Statutes, and Florida Administrative Code Sub-Chapter 64E-6. Mr. Hoag is registered as a Septic Tank Contractor pursuant to Florida Administrative Code Rule 64E-6.019. He was issued registration no. SR0911053. It was necessary to install a new septic tank at residences located at 8817 and 8821 Bellrose Avenue, in Duval County, during March 2004. The owner of the premises, Ben Lewis, contracted with Florida Septic Tank Service, Inc., to accomplish this work. A repair application was submitted to the Department on March 8, 2004, and was approved. Florida Septic Tank Service, Inc., engaged Mr. Hoag, of Plumbing and Contracting by Hoag, to accomplish the plumbing portion of the operation. Sometime on April 8, 2004, the exact time not being estimated, Mr. Hoag disconnected the stub from the residences that ran to the former septic tank. This was done so that pipes could be run to a new septic tank. He neither connected the line that he disconnected to the new septic tank nor capped the pipe. Mr. Hoag requested the occupants of the residences to refrain from using the sanitary facilities within the residences until he was able to continue his work on April 9, 2004. Despite this request, the facilities were used between April 8, 2004, and April 9, 2004. On April 9, 2004, sometime prior to 11:45 in the morning, Colleen Bierbach, an inspector with the Department, entered the premises of 8817 and 8821 Bellrose Avenue and observed household wastewater and human fecal matter on the ground at the terminus of the stub. Pictures were taken that memorialized the nature of the deposits. Inspector Scott Turner, of the Department, issued a citation to Mr. Hoag that indicated that the offense occurred at 11:45 a.m. on April 9, 2004. The citation reflected a violation of Section 386.041(1)(a), Florida Statutes, and Florida Administrative Code Rule 64E-6.022(1)(l) and (q). With regard to Florida Administrative Code Rule 64E-6.022(1)(l), the citation charged only that he committed, "Gross negligence, incompetence, or misconduct which causes no monetary harm to a customer." The citation was accepted by Mr. Hoag on April 15, 2004. Mr. Hoag's failure to either connect the line to the new septic tank or to cap the outflow line, caused an unsanitary and unsafe condition to exist at 8817 and 8821 Bellrose Avenue, Duval County, on April 9, 2004. No evidence was adduced as to the exact time that the pipe was opened on April 8, 2004, or as to the exact time that the pipe was closed and the area decontaminated on April 9, 2004.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Duval County Health Department, dismiss the citation issued to Mr. Hoag on April 9, 2004. DONE AND ENTERED this 15th day of February, 2006, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 15th day of February, 2006. COPIES FURNISHED: Catherine R. Berry, Esquire Department of Health 515 West Sixth Street Jacksonville, Florida 32206-4311 Robert J. Hoag Plumbing & Contracting by Hoag Post Office Box 7931 Jacksonville, Florida 32238 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Timothy M. Cerio, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Dr. John O. Agwunobi, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701
The Issue The issue is whether Respondents should have an administrative penalty imposed, take corrective action, and pay investigative costs for allegedly maintaining a solid waste management facility without a permit and disposing of solid waste in an area subject to periodic or frequent flooding.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background DDD is a corporation registered to do business in the State of Florida. Its president and sole director is William H. Stanton, Jr. The corporation is engaged in the business of "mobil recycling activities" (reduction recycling services for customers). Mr. Stanton owns a two-acre tract of property located in Section 26, Township 28S, Range 24B, on the northwest corner of Mustang Road and Longhorn Drive, Lakeland, Florida. The property is zoned for heavy industrial uses and was formerly used in some form of phosphate mining operations. The Department is the agency charged with the duty of administering and enforcing the provisions of Chapter 403, Florida Statutes, and rules promulgated thereunder. Based upon a complaint made by a Polk County Health Department employee, on October 8, 2001, a Department enforcement coordinator, Steven G. Morgan, inspected Mr. Stanton's property and observed that Respondents had filled and compacted an approximate 150 foot by 300 foot area of the site with 3 to 5 feet of "wallboard type material," which consisted of "both ground up and large pieces of wallboard." In the middle of the filled area was an additional pile of the same material around 20 to 25 feet high. Petitioner's Exhibits A, D, and E are photographs which provide an accurate representation of the site on the date of the inspection. Based on a visual inspection, but without having the benefit of his own laboratory analysis,2 Mr. Morgan concluded that the material was a solid waste made up of discarded industrial products. Under Department rules, the deposit of solid waste on such a site requires a waste facility management permit from the Department. A check of Department records indicated that Respondents do not hold a permit to operate a solid waste management facility. (DDD does hold a valid air pollution permit for grinding concrete.) During his inspection, Mr. Morgan also observed that the land adjacent to the filled area was wet, had a lower elevation than the compacted area, and contained small pockets of standing water. This was confirmed by photographs received in evidence as Petitioner's Exhibits D and E. A DDD employee who was present on the site during the inspection indicated that approximately 900 truck loads of the material had been transported to the site from Plant City after Mr. Stanton had "lost" a lease on the property on which the material had previously been placed. This was confirmed by Mr. Stanton who arrived at the site shortly after the inspection began, and who indicated that he intended to use the compacted wallboard as a sub-base (or foundation) for a wallboard recycling facility. A second site inspection by Mr. Morgan conducted on February 5, 2002, confirmed that the conditions (regarding the piles of fill material but not the standing water) at the site were unchanged from those found on October 8, 2001. On that visit, Mr. Morgan observed the site from his automobile but did not walk the property. Two other site visits were made, one on June 19, 2002, by other Department personnel. Except for a photograph (Petitioner's Exhibit C) dated June 19, 2002, which indicates the piles of material were still intact and had not been removed, the results of those inspections are not of record. Shortly after the initial inspection, the Department's Tampa District Office issued a warning letter to Mr. Stanton describing Mr. Morgan's observations and outlining the potential violations. The letter also invited Mr. Stanton to resolve the matter informally and to present a corrective action plan to mitigate the site. When the matter could not be resolved informally, the Department issued its Notice on October 10, 2002, alleging that Respondents had operated a solid waste facility without a permit and had deposited solid waste in an area prone to flooding. Even though the matter was not informally resolved, Mr. Stanton has cooperated with the Department in good faith throughout the regulatory process. The Material on the Site Invoices received in evidence reflect that the source of the deposited material was James Hardie Building Products in Plant City, Florida, and that the material was described on the invoices as "Dry Waste Material," Wet Waste Material," and "Foreign Material." James Hardie Building Products manufactures HardieBoard, which is a one-half to one-inch thick concrete formulated product used in the construction of homes and other buildings, and HardiePipe, which is used in road and bridge construction, culverts, storm sewers, and concrete pipes. The material being deposited was material used in the manufacture of HardieBoard. Mr. Stanton's long-range plans are to grind up, or recycle, the material (after all necessary permits, if any, are obtained) and then sell it to other persons, including cement manufacturing plants in the area, who will then use it for a variety of purposes, including subbase and base material, cement and concrete re-additive, and cement production. HardieBoard (as well as HardiePipe) is a variable mixture of Portland cement, water, fine silica sand, less than 10 percent cellulose (a non-toxic organic material commonly added to such products as ice cream, shampoo, baby diapers, and rayon clothing), and less than 10 percent of inert materials. The cellulose fibers are added to the concrete to avoid cracking and shrinkage and to reduce the weight of the product. Unlike concrete used for driveways and the like, HardiBoard does not have any large aggregate. Disposal of Solid Waste and Clean Debris Florida Administrative Code Rule 62-701.300(1)(a) prohibits the storing, processing, or disposing of solid waste except at a permitted solid waste management facility. In addition, no solid waste may be stored or disposed of "[i]n an area subject to frequent and periodic flooding unless flood protection measures are in place[,]" or "[i]n any natural or artificial body of water including ground water." Fla. Admin. Code R. 62-701.300(2)(d) and (e). These requirements form the basis for the charges in the Notice. Florida Administrative Code Rule 62-701.200(113) defines solid waste in relevant part as "discarded material, including solid, liquid, semi-solid, or contained gaseous material resulting from domestic, industrial, commercial, mining, agricultural, or governmental operations." Section 403.707(2)(f), Florida Statutes (2003), provides, however, that a permit is not required for "[t]he use of clean debris as fill material in any area." See also Fla. Admin. Code R. 62-701.220(2)(f). "Clean debris" is defined in Florida Administrative Code Rule 62-701.200(15) as: any solid waste which is virtually inert, which is not a pollution threat to ground water or surface waters, is not a fire hazard, and is likely to retain its physical and chemical structure under expected conditions of disposal or use. The term includes brick, glass, ceramics, and uncontaminated concrete including embedded pipe or steel. The term "virtually inert" is not defined by statute or rule. However, the parties agree that in order for a material to be "virtually inert," it must have no potential for leaking contaminants into the groundwater. In addition, if a deposited material releases contaminants into the groundwater thereby posing a threat to human health, it is considered a "threat to [groundwater]" within the meaning of the rule. The rule also provides that the material must not be a fire hazard. Finally, if a material decomposes over time after being used as fill, and releases contaminants into the groundwater, it is not "likely to retain its physical and chemical structure under expected conditions of disposal or use." Therefore, if a material has no potential for leaking contaminants into the groundwater, is not a threat to groundwater, is not a fire hazard, and is not likely to decompose over time, it constitutes clean debris and is exempt from the waste management facility permitting requirements. As noted above, Florida Administrative Code Rule 62- 701.200(15) identifies four materials that are considered to be clean debris: brick, glass, ceramics, and uncontaminated concrete. If a waste product is classified as uncontaminated concrete, it constitutes clean debris and may be used as fill without a permit from the Department. Further, clean debris may be deposited in an area subject to frequent or periodic flooding so long as flood protection measures are taken, or in a natural or artificial body of water so long as other appropriate permits (such as an Environmental Resource Permit) are obtained. Here, the central issue is whether the material deposited on Mr. Stanton's property is solid waste or clean debris. This issue turns on whether the material is virtually inert, is not a pollution threat to groundwater or surface waters, is not a fire hazard, and is likely to retain its physical and chemical structure under expected conditions of disposal or use. Assuming these criteria are satisfied, the material is exempt from Department permitting requirements for solid wastes. On this issue, the Department contends that the material is not virtually inert and is unlikely to retain its physical and chemical structure. Conversely, Respondents assert that the material is clean debris and falls within the category of uncontaminated concrete. Is the Deposited Material Clean Debris? In determining whether a material is virtually inert, or is a pollution threat to ground or surface waters, two extraction procedures have been sanctioned by the United States Environmental Protection Agency to assist in the measurement of the amount of contaminants that will leak from a material: the Toxicity Characteristic Leaching Procedure (TCLP) and the Synthetic Precipitation Leaching Procedure (SPLP). Under both procedures, the material being tested is ground up into small sand-size particles, mixed with an extraction fluid, and tumbled for 18 hours in a rotary agitator while the liquid solution extracts various metals that are found in the solids. The extracted liquid solution is then filtered and analyzed to determine the concentration of metals actually leached from the solids. Under state water drinking standards found in Table 1 of Florida Administrative Code Chapter 62-550, the maximum contaminant levels for chromium and barium (stated in milligrams per liter (mg/L)) are 0.1 mg/L and 2 mg/L, respectively. In reaching its conclusion that the fill material is a solid waste, the Department relied principally on certain tests of the material run by various laboratories between 1998 and 2000, which showed that the amount of chromium and barium leaking out of the product exceeded the State drinking water standards. See Petitioner's Exhibits K, L, M, and O. However, in every one of those tests, the laboratories used the TCLP, rather than the SPLC, which produced a worst case scenario. For the reasons stated below, the TCLP is not the appropriate procedure to be used for this purpose. The TCLP is the more aggressive of the two procedures, uses a much harsher solution than the SPLC, and generally leaches higher concentrations of metals. However, its principal purpose is to determine whether a material should be classified as a hazardous waste based on its leaching properties or characteristics. Using it to predict whether a material will leach into ground water is inappropriate because it will "leach things out in the laboratory that will never leach in the field." This is because it does not mimic conditions in the field and is "just not supposed to be used for this purpose." Therefore, TCLP leachate values should not be applied to drinking water standards. Conversely, the SPLC uses a less harsh solution during the preparation process, evaluates the potential for leaching metals into ground and surface waters, and is designed to provide a more realistic assessment of metal mobility under actual field conditions. In other words, the SPLC simulates what would happen if the sample were exposed to groundwater and rain to determine if under those conditions metals might leach into the water system below. Therefore, the SPLC is the more appropriate procedure to use here to determine whether the HardieBoard material will leach certain metals into the groundwater at levels that exceed State drinking water standards. Even various Department guidance documents provide that the SPLC (rather than the TCLP) should be used to determine if a material will leach metals into the ground water. See Respondents' Exhibits M, N, and O. Respondents' witness Foster collected three samples of HardieBoard deposited by Respondents at another site and submitted them to PPB Environmental Laboratories, Inc., in Gainesville, Florida, for a clinical analysis using the SPLC test. Those results, which have been accepted as being reliable,3 indicate that none of the leachate concentrations for arsenic, barium, cadmium, chromium, lead, mercury, selenium, and silver exceed (or even approach) the drinking water standards. Therefore, the material is virtually inert, and the groundwater quality will not be adversely impacted by use of this material as fill. The parties agree that the material is not a fire hazard. Prior to depositing the material, Mr. Stanton used a commercial waste reduction machine (a Smorcazy Bandit Beast 3680 Horizontal Trough Grinder) to grind or pulverize some of the material into fine particles. As noted earlier, a small amount of cellulose fibers are added to the product during the manufacturing process. The Department contends that after the grinding process occurs, these fibers will separate from the remaining fine particles and dissolve into the ground water. Because of this separation, the Department asserts that the material does not retain its physical or chemical structure after being deposited onto the property. Although cellulose fibers are added to the product during its preparation to strengthen the material (and have been added by cement manufacturers since the 1920s), they are distributed throughout the matrix in the material. This means that the fibers become "part and parcel of the mixture" and will not deteriorate, fall out, or leach out of the material even after routine grinding processes, such as that done by Respondents. As such, the cellulose is not biodegradable, and there is no concern that the cellulose will dissolve into the groundwater. Indeed, HardiePipe, which is used in the construction of culverts, storm sewers, and drainage pipes and has essentially the same constituents as HardieBoard, was approved by the Florida Department of Transportation in 2001 for use on State road and bridge projects. Therefore, it is found that the fill material will retain its physical and chemical structure after being deposited onto the ground. Expert testimony by Dr. McClellan established that the material meets the general definition of concrete, and because it is uncontaminated, it should properly be classified as uncontaminated concrete. As such, the material is clean debris and is not subject to the Department's solid waste management permitting requirements. Finally, the Department points out that the compressive strength (measured in pounds per square inch (PSI)) is much greater for concrete used in driveways than for HardiBoard (2500 PSI versus 20 to 30 PSI), and therefore Hardiboard is not a true concrete product. While the PSI values are indeed substantially different, the load bearing ratio or compressive strength of the material does not determine whether a material falls within the generic category of concrete. Water Issues As noted above, if a material is classified as clean debris, it may be deposited into an area prone to flooding or in a natural or artificial body of water, including groundwater (subject, of course, to other unrelated requirements or safeguards). There is no evidence that the filling occurred in a "natural or artificial water body," or directly into the groundwater. In addition, the evidence demonstrates that in October 2001, the ground next to the filled area had small pockets of standing water measuring no more than a few inches deep. However, when the inspection was made, and the photographs taken, Polk County was experiencing rather heavy rainfall, presumably due to the El Nino phenomenon. Whether these conditions (pockets of standing water) exist on the property only during the rainy season is not of record. Further, prior to the filling, Mr. Stanton contacted both the Southwest Florida Water Management District and the United States Geodetic Survey and he asserted, without contradiction, that neither agency indicated that his property was prone to flooding. In any event, even assuming that the area is subject to "frequent and periodic flooding," the permit requirements or other necessary safeguards, if any, associated with filling clean debris in such an area are not the subject of this proceeding. Investigative Costs A Department representative spent 66 hours investigating this matter for the Department. At a then-hourly rate of $18.54, this totals $1,223.64 in investigative costs. The reasonableness of this amount was not disputed by Respondents.
The Issue The issue is whether Respondent should correct a health violation and have a $500.00 fine imposed for violating an agency rule and statute, as alleged in the Citation for Violation issued by Petitioner on December 22, 1999.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: This case involves an allegation that Respondent, Steve DeLuca, violated an agency regulation and statute by making repairs to a drainfield on property located at 1444 East New York Avenue, Deland, Florida, without obtaining the necessary permits from the Volusia County Department of Health (Health Department). That department is under the direction and control of Petitioner, Department of Health (Department). Respondent denies the charge and, as clarified for the first time at hearing, contends that the repairs were minor in nature and thus did not require a permit, no authorization was given to the excavation firm which performed the repairs, and the Citation was not issued to the actual owner of the property. On October 29, 1999, William N. VanderLugt (Vanderlugt), a Health Department environmental specialist, received a complaint regarding a septic tank repair being undertaken at 1430 East New York Avenue, Deland, Florida. During the course of inspecting that property, Vanderlugt observed excavation activities on the drainfield located next door at 1444 East New York Avenue. More specifically, Vanderlugt observed an area in the back yard approximately 6 feet by 20 feet in size which had been recently excavated and a large pile of sand nearby. In the excavated site, he saw a rock bed of the size commonly used in drainfields, "clean" and "newly installed" rocks, and a "black paper" covering a part of the rocks. Therefore, he concluded that the excavating firm had just installed a new rock drainfield. This type of activity constitutes a repair to an existing drainfield and requires that such work be performed by a licensed septic tank contractor. It also requires that appropriate permits be obtained from the Health Department. Although Respondent contended that the work was merely to correct a "minor structural flaw" which would not require a permit, Vanderlugt's testimony is more persuasive on this issue, and it is found that a more substantial repair to the drainfield was made. Further inquiry by Vanderlugt revealed that no permits had been obtained for the repair of a drainfield from the Health Department by the excavating company, Collier Enterprises. After a brief conversation with a Collier Enterprises employee, the substance of which is hearsay in nature and cannot be used, Vanderlugt visited the offices of Delco Oil Company and spoke with Respondent, who is employed by that firm. In doing so, Vanderlugt was under the impression that Respondent owned the property in question. During his brief conversation with Repondent, Vanderlugt pointed out that he had to issue a citation because no permit had been obtained for the work at the property in question. DeLuca responded with words to the effect that "they [Collier Enterprises] broke a pipe and they fixed what they broke." Apparently, there was no discussion as to whether Respondent or someone else actually owned the property. Vanderlugt returned to the property in question and performed a second inspection on November 3, 1999. Because no permits had been obtained by that date, and the drainfield site had been covered, a recommendation for a citation was prepared by Vanderlugt. A Citation for Violation was later issued by the Department on December 22, 1999, alleging that Respondent had failed to obtain permits before making a drainfield repair. The Citation was delivered to Respondent at Delco Oil Company. Because Collier Enterprises was not licensed to perform the work, it was given a first violation "warning" letter by the Health Department, as required by a Department rule. During later meetings with Respondent and others, Vanderlugt learned that the actual owner of the property in question was Deluca Properties, Inc., and not Steve DeLuca. For some reason, however, the Department declined to amend its citation and charge the actual owner with the alleged violation. Although Petitioner asserted at hearing and in its Proposed Recommended Order that Respondent is the owner's registered agent, there is no competent evidence of record to support this assertion. According to the general manager of Delco Oil Company, which is apparently owned by Steve Deluca and others, no permission was given to the excavating company to make any repairs. Indeed, Deluca Properties, Inc. has a licensed septic tank contractor who makes all septic tank repairs, when needed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final order dismissing the Administrative Complaint for lack of jurisdiction. DONE AND ENTERED this 14th day of June, 2000, 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of June, 2000. COPIES FURNISHED: Angela T. Hall, Agency Clerk Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1703 Charlene J. Petersen, Esquire Department of Health 420 Fentress Boulevard Daytona Beach, Florida 32114 Christopher R. Ditslear, Esquire Post Office Box 41 Deland, Florida 32721-0041 William W. Large, General Counsel Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701
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 Whether or not the Petitioner should be entitled to an extension of the shelf life on its milk and milk products from a ten day period to a twelve day period.
Findings Of Fact Testimony offered by Jay Boosinger, Director of Dairy Industry, for the Department of Agriculture and Gene Smith, Supervisor of Dairy Products Inspection Enforcement, indicated that the Respondent had investigated the request for extension of shelf life from ten days to twelve days on the milk and milk products of the Petitioner and based on the laboratory analysis of the test samples, they felt that the request should be accepted. Jay Boosinger has as his duty the direction of the program which is designed to regulate the quality of dairy products within the State of Florida. Gene Smith is, as his title indicates, charged with the function of inspection and enforcement of the laws and regulations associated with the dairy industry in the State of Florida. Testimony was offered in this hearing which indicated that certain samples of the Petitioner's milk and milk products had been collected at the Petitioner's Tampa, Florida plant and the Petitioner's trucks. These samples were collected by a dairy plant specialist of the Respondent, and then in turn were taken to a laboratory of the Respondent for analysis. The laboratory analysis was designed to ultimately determine the number of days that the samples would be acceptable beyond the code expiration date found on the container, which expiration date would have been at the ten day point. There is an exhibit, which is Respondent's Exhibit #1 that identifies the product, collection point, the established expiration date, the laboratory evaluation date and the days that the product was found to be acceptable beyond the ten day established expiration date. In addition this exhibit contains the laboratory analysis of the products together with attendant correspondence on the issue of the extension of the shelf life. The test samples in Respondent's Exhibit #1 show in the date acceptable pass column, how many days past the ten days the product would have held up without losing flavor and becoming unacceptable in terms of shelf life. The laboratory analyses and summary of those analyses showed available shelf life above the ten day life expressed in the regulation found in Chapter 5D-104 (7)(d), Florida Administrative Code.
Recommendation It is recommended that the Respondent grant a shelf life of twelve days on the milk and milk products identified in the course of the hearing held on the question of the petition. DONE and ENTERED this 25th day of May, 1976, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: R. D. Saunders, Zone Manager Sealtest Foods 109 Governors Street Tampa, Florida 33602 Jack Shoemaker, Esquire Resident Counsel 515 Mayo Building Tallahassee, Florida 32304
Findings Of Fact J. Armand Martin is the owner of a lot located in Pasco County, Florida, which includes an island surrounded by a body of water known as Sleepy Lagoon and a 15-foot strip of land on the mainland. This case arose out of Martin's efforts to develop this lot and construct a personal residence on the island. Residential dwellings surround the lagoon and Martin's island. In order to build a residence on the island, Martin had to install a septic tank. To install a septic tank Martin had to apply for a permit to install an individual sewage disposal system. It was Martin's original intent to locate the sewage treatment facility on the mainland and pipe the sewage over the bridge he planned to build to access his island. Martin made application for the required septic tank permit to the Pasco County Health Department. The inspector from the Pasco County Health Department was taken aback by the situation she encountered when she did the preliminary inspection and called in her supervisor, Donald Van Kampers, for assistance. Van Kampers eventually inspected the island and suggested that Martin put his individual sewage disposal system on the island itself, pointing out that because the island was so low the installation would probably have to include a sand filter system and possibly a chlorinating system. Van Kampers also advised Martin that he would have to seek a variance from the Staff Director of the Health Program Office pursuant to Rule 10D-6.21, Florida Administrative Code, because the island was so narrow that the system would be within 50 feet of the lagoon's waters contrary to Rule 10D-6.24(4), Florida Administrative Code. Martin received assistance from Van Kampers on his application for the variance. This application called for the filing of a site plan drawn to scale. In addition to being surrounded by Sleepy Lagoon, Martin's island circumscribes a small body of water variously referred to as a pond, lagoon and even "wetlands." Martin transmitted to Van Kampers a surveyor's drawing of his island which did not show the island's own small body of water. In an effort to assist Martin, Van Kampers filled in the proposed location of Martin's house and the individual sewage disposal system (septic tank with sand filter) on this surveyor's drawing, attached it to Martin's request for a variance and forwarded it to the Staff Director for the Health Program Office together with a recommendation of approval by the Pasco County Health Unit. This drawing did not show the body of water on the island. The Staff Director forwarded the application to the Review Committee which he appoints to review applications for variances. There is no evidence that Martin saw this drawing prior to the Review Committee's approval of the variance which, with the affirmative recommendation of the Pasco County Health Unit, was summarily granted. Subsequently, several of the residents surrounding Sleepy Lagoon and Martin's island became concerned about the potential problems which Martin's individual sewage disposal system would have on their lagoon, its environment and its ecology. Their complaints eventually came to the attention of the Staff Director of the Health Program Office, who in turn forwarded the matter to John Heber, the Department's representative to the Review Committee, for investigation. Heber conducted a personal inspection of Martin's island and compared it with the drawing filed by Van Kampers in Martin's behalf. Heber found that according to the drawing the individual sewage disposal system would be located in the middle of the water on Martin's island. Having made this discovery, Heber initiated actions which resulted in the Issuance of an Administrative Complaint to have the variance issued Martin rescinded. The Administrative Complaint alleged that Martin had "misrepresented" facts on his application for the variance by not showing the water on his island. Martin made a timely request for a formal hearing on the allegations. Martin did not fill out the drawing which accompanied his application. It was filled out by Van Kampers, who did not draw in the island's water and put the individual sewage disposal system in the middle of where the water is currently located. Van Kampers and his supervisor, both of whom visited the island, did not consider the water on the island subject to the rules which call for the reporting of lakes, streams or canals. See Rule 10D-6.23(2)(a), Florida Administrative Code. In regard to their classifications of surface waters, they are the officials charged under the regulatory scheme with determining when applicants must seek a variance. Applicants must seek a variance when, like Martin, their septic tanks are too close to certain surface waters. See Rule 10D-6.24(4), Florida Administrative Code. Clearly, they determine when a permit will be issued, when an applicant is required to seek a variance, and what waters must be reported on the scale drawing. In the instant case they classified Sleepy Lagoon as protected waters requiring Martin to seek a variance and the water on the is land as unprotected waters not requiring their inclusion on the drawing, because they determined the water was not a lake, stream or canal. The facts show that this water is not a lake, stream or canal. Under the Department's policy a sewage system can only be constructed as drawn and presented in the application for a variance. If the system in question were constructed, it would require the filling of the area where the water is located. The drawing accurately reflects the post-construction situation with the water not shown.
Recommendation The foregoing Findings of Fact and Conclusions of Law show J. Armand Martin did not misrepresent his application; therefore, the facts of the allegation are not proven, and the variance should not be revoked. DONE and ORDERED this 3rd day of April, 1981, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, 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 3rd day of April, 1981. COPIES FURNISHED: Barbara Dell McPherson, Esquire Department of HRS 2255 East Bay Drive Post Office Box 5046 Clearwater, Florida 33518 Mr. J. Armand Martin 4 Sunset Boulevard Bailey's Bluff Tarpon Springs, Florida 33589
