Findings Of Fact Northwest Utilities of Broward County, Inc. and WPC Utilities are the two investor-owned utilities primarily involved in these proceedings. The stock of Northwest is wholly-owned by Ralph Bates and Marlene Bates, his wife. The stock of WPC is owned by Northwest. The Bateses were involved in land development plans in the early 1970's in the subject area of North Broward County lying west of the Florida Turnpike. No utility service was available at that time to serve that area; so the Bateses applied to the Commission in 1973 for water and sewer certificates. After appropriate proceedings territory lying west of the Turnpike, entirely in Broward County, was granted and certificated to Northwest. Within this territory, the Bateses had plans approved for development of a high-density planned unit development (PUD), (depicted on Exhibit 3, as numbers 1 and 2). At the instance of the Bateses', this land was annexed into the City of Coconut Creek. The advent of the 1973-1975 economic recession, coupled with a refusal to fund a loan commitment and the inability to obtain debt financing elsewhere, resulted in an inability to develop this PUD. The Bateses had, however, initiated steps to provide service to the development. In 1973 they purchased a one million gallon-per-day (mgd) sewage treatment plant at a cost of $192,879, of which there is now a current balance due of $75,000. No development occurred during 1974 or 1975, when the economic climate in the construction and real estate industry was depressed and the utility received no request for service. A fifteen-acre tract of land for the plant site had been acquired, but that land was relinquished when the need for service failed to materialize. In 1976 the Bateses bought the Coral Lakes Mobile Home Park (Parcel #4 on Exhibit 3). This park lies in Broward County and is surrounded by the City of Coconut Creek. In 1978 the Bateses sold the mobile home park, but the Northwest Corporation retained ownership of the water and sewer treatment plants and service to the area has since been provided by Northwest by means of these on-site "package' treatment plants. In 1977 the prospects for development improved and the Bateses entered into a phased purchase agreement for 175 acres of land (Parcel 3 on Exhibit 3). The intent was to develop this property for single family residences. Service was to be provided to the area through the water and sewer treatment plant located in the WPC utility territory and consequently the certificate transfer application in PSC Docket No. 770625-WE was filed. Northwest also constructed 2500 feet respectively of water and sewer transmission and collection lines in the territory west of the Turnpike (Exhibit 9) at a cost of $90,000. Development of this property was frustrated, however, due to the refusal of the City of Coconut Creek to grant favorable zoning for the property. In conjunction with the development of this parcel, Northwest received a request for service from WOK, Inc. ,a subsidiary of ATICO Mortgage Investors, for an 8.5 acre parcel which was part of the original Bates PUD. This developer, however, never executed the proffered development agreement with Northwest. Northwest demonstrated a willingness to contractually commit itself to provide service if needed and initiated acquisition and construction of a plant and other facilities to provide that service. The need for water and sewer service actually arose only in the area east of the Turnpike (Parcel "b" on Exhibit 3) and necessitated use of the existing WPC treatment plants to provide service to the area. York Development Company was the first entity actually requiring service in any area reflected on Exhibit 3. York acquired land in the City of Deerfield Beach (parcel #5 in area "b" on Exhibit 3) in December, 1977. York sought service from Deerfield Beach and prepared plans which were approved by the City. After determining that Northwest was certificated to serve the area, the City refused to provide service, and York entered into a developers agreement with Northwest on October 16, 1978. The agreement reserved water and sewer plant capacity for the 239 residential units of York's first phase of development. A second agreement entered into March 30, 1979 reserved capacity for an additional 270 units. Approximately 7 months prior to Northwest's execution of the first agreement with York, the proceedings in the certificate transfer case described above were concluded with the issuance of Order No. 8821 on March 27, 1978. The application filed had sought the transfer of the certificates from WPC Utilities to Northwest Utilities. After negotiations with the Commission (Exhibit 64), Northwest elected to maintain its application as one to transfer the certificates of WPC to Northwest rather than convert it to an application for a stock transfer. The only active developer in the pertinent territory besides York, FDV- Westport Properties (FDV), began development of a tract of 110 acres in the area identified as Parcel 10 in "b" on Exhibit 3 in October, 1979. A concomitant agreement was signed with Northwest on January 15, 1980. Development is proposed to be in phases, and the provisions of the agreement are similar to those of the York agreement submitted to the Public Service Commission in October, 1978. The first phase of development provides for 80 single family residential units. The only other customers of Northwest presently receiving service besides those customers in Coral Lakes Mobile Home Park and the York Development (Gates of Hillsborough) are customers in a small mobile home park known as El Rancho Seven, also identified as Parcel 7 in area "a" on Exhibit 3. Service to that development is provided from on-site package treatment plants, and the customers are individually metered. Rates, Charges and Guaranteed Revenues (Docket No. 800230-WS) The issuance of Order 8821 providing for a stock transfer rather than a transfer of WPC's certificate to Northwest, coupled with the inauguration of these developments, set the stage for the issuance of Show Cause Order No. 9324 in Commission Docket No. 800230-WS raising the issue of whether the rates, charges and guaranteed revenues charged to these developers should be those approved for Northwest Utilities or WPC Utilities. The essence of the issue has been stated above. The action by Northwest in Commission Docket No. 770625-WS, the transfer application, is significant in the context of this rates and charges problem. Northwest and WPC, as determined above, applied for a transfer of certificates and not for a transfer of stock from the latter to the former. It was the intent of the parties in that proceeding that Northwest was to be the only remaining operating entity serving the areas identified as "a" and "b" on Exhibit 3 lying both east and west of the Turnpike. Since the issuance of Order 8821, Northwest has been the only operating utility entity in those areas. Northwest has been the entity entering into all developer agreements regardless of the location of development, and has submitted these agreements to the Commission. The York agreement was submitted to the Commission by the utility in October, 1978, which revealed to the Commission that Northwest was operating east of the Turnpike in the original WPC territory. WPC has filed a final corporate return with the IRS, and its annual report for the year ending December 31,1978 filed with the Commission indicated that the stock and assets of WPC had been transferred to Northwest. The application and other documents in Docket No. 770625-WS bear the caption "Application for Transfer of Certificate" but the final Order No. 8821 bears the caption "Application for Transfer of the Outstanding Stock of WPC Utilities Services, Inc. to Northwest Utilities of Broward County, Inc., Broward County, Florida, Pursuant to Section 367.071, Florida Statutes". That order then authorizes the transfer of only the stock. Northwest operated under the belief that the certificates had been transferred as requested. Although a technical construction of the order could imply a denial of the application, such an interpretation would only naturally follow if the commission had complied with Section 120.59(2), Florida Statutes which states in pertinent part: If, in accordance with agency rules, a party submitted proposed findings of fact, or filed any written application or other requests in connection with the proceeding, the order shall include a ruling upon each proposed finding and a brief statement of the grounds for denying the application or request. Nowhere in that order is there any statement indicating an intention to deny the application as filed. Therefore, it must be inferred that the commission actually intended the certificates to be transferred to Northwest. At the time the transfer application was filed there were no customers in either the territory of Northwest or WPC. Therefore, there could be no adverse affect to any existing customer by granting the application as filed. Northwest has treated the action of the Commission as amounting to a merger of the two utility companies. If the Commission had acted in accordance with the application as filed as, inferentially, it must have intended, then no question would have arisen regarding Northwest's assessment of these charges. York Development executed a developer's agreement with Northwest on October 16, 1978 and is the first developer executing such an agreement and actually obtaining service from Northwest. Section 367.081(1), Florida Statutes states as follows: Rates and charges being charged and collected by utilities shall be changed only by approval of the commission. When Northwest signed the development agreement on October 16, 1978 no rates or charges were being charged or collected by either utility. Therefore, neither WPC nor Northwest required Commission approval to alter rates and charges prior to October 16, 1978. Thus, at that point in time, the rates and charges which York agreed to pay in that agreement were not improper. Indeed WPC could have increased its rates to the same level as Northwest and signed such an agreement with York and York would be in the same posture regarding the propriety of the rates as it presently is. Therefore, the rates contracted for with York are proper. Thus, all the parties, including the Commission, originally intended that the two utility operations should merge or that Northwest should remain the only utility entity providing service to the subject territories. The language in Order 8821 transferring stock only was in error. The only questions then remaining regarding this subject matter involve the charging of guaranteed revenues to York and FDV. The level of guaranteed revenue to be charged was determined by adding together Northwest's minimum charge for water and sewer, which coincidentally, is the same method of computing then employed by South Palm Beach Utilities (SPB), and is a method approved by the Commission in past decisions when confronted with a dearth of data required by Rule 25-10.121(12), Florida Administrative Code. The level of guaranteed revenues is thus appropriate. Northwest was required to charge guaranteed revenues in order to recover costs of operation so as to make the agreement to provide service to York and FDV financially feasible. Both those developers agreed in writing to pay guaranteed revenues as defined in the above rule and, inasmuch as they are a device to place the risk of development on a developer instead of on a utility, the agreements between Northwest and those developers accomplished that end. See Rule 25-10.138, Florida Administrative Code. There is no rule extant that requires a utility to have an approved service availability policy as a condition precedent to charging guaranteed revenues. In fact, of the more than 500 utilities regulated by the Public Service Commission, less than ten percent have approved service availability policies. And, indeed, Rule 25-10.138 contemplates the filing of "special contracts" with the Commission. That portion of the above developers agreements dealing with guaranteed revenues renders those agreements to be "special contracts" within the meaning of the Rule, and since the Rule provides that the Commission shall approve such contracts, the fact of such approval has become an issue in this proceeding. The Commission has alleged that the York contract was never-approved since no document approving it was ever transmitted to the utility. Nor was any timely disapproval ever served on the utility. The Commission never responded to the filing of the contract between October, 1978 and the issuance of Show Cause Order 9324 in April, 1980. In 1979 York inquired regarding the filed agreement and received no response. Thus, under the facts of this case, the Commission's silent acquiescence must be found to constitute tacit approval of the contract. Northwest should not be penalized for failure of the Commission to act. It is not unreasonable for Northwest and York, after so much passage of time, to have assumed that the contracts were appropriate. Indeed, York and Northwest, as well as FDV, entered further similar agreements in reliance on the lack of objection by the Commission. There is then no justification for cancellation of Northwest's certificates to serve the subject territory (area "b" on Exhibit B). Further, the evidence submitted by the City of Deerfield Beach is deemed irrelevant to any matters under consideration in this docket, since that City is not authorized to serve in Northwest's certificated territory. Even assuming arguendo that Northwest's certificates (or WPC's) were cancelled, serious legal impediments must be overcome before Deerfield Beach could serve the York development. For instance, all the lines through which service would be provided are owned by Northwest Utilities, and the public interest would certainly not be served by duplication of those lines or by duplicate payments of contributions in aid of construction to Deerfield Beach, or by the rendering useless of a new water treatment plant which is presently approximately 50 percent completed and represents a substantial investment. The Certificate Application (Docket #780902-WF) Section 367.041(1), Florida Statutes, provides as follows: Application.-- Each applicant for certificate shall: Provide information required by the commission which may include a detailed inquiry into the ability of the applicant to provide service, the territory and facilities involved, and the existence or non-existence of service from other sources within geographical proximity to the territory applied for; Section 367.051(3), Florida Statutes, provides in pertinent part as follows: (3) In either event, the commission may grant a certificate, in whole or in part or with modifications in the public interest, or, after notice and hearing, deny a certificate. Resolution of the certification issue requires consideration of the capability of Northwest to provide the proposed service, a consideration of the quality of the service to be provided and the feasibility of the proposed extension of service from a financial, economic and technical point of view. Markborough Properties has a substantial need for water and sewer service to be provided its development which will ultimately consist of approximately 5,000 homes as previously described. Northwest presently has a sewage treatment plant with a capacity of 260,000 gallons per day, although the present capacity is limited to 100,000 gallons per day (GPD) until the percolation ponds are approved for additional flow. The 260,000 GPD plant will be utilized to full capacity in the immediate future. Northwest also has facilities to provide water to the York and Coquina Lake Developments which is chlorinated, but not otherwise treated. The Broward County Health Department has mandated fully treated water for these developments in the very near future, and water supplied residents of the York Development at Gates of Hillsborough should be likewise improved even though all water produced presently meets state regulatory standards. There is no question that if Boca del Mar II is to be served by the applicant, additional facilities for water and sewage treatment must be developed. In order to provide service to Boca Del Mar II as well as to existing or potential users in the area east of the Florida Turnpike (area "b" on Exhibit 3), a 1.5 MGD sewage treatment plant will be added to the existing 260,000 GPD sewage plant with the result that Northwest will be capable of treating sewage in the amount of at least 1.76 million gallons per day. Thereupon, the plant would have the capability to treat all sewage produced by Boca Del Mar II as well as the other developments named. The sewage from Boca Del Mar II would be collected in that development then pumped to the treatment facility located at the present plant site south of the Hillsborough Canal. The sewage would be given secondary treatment there, with the effluent stored in percolation ponds on the treatment plant site until the treated effluent is pumped to a golf course within the Boca Del Mar II development for disposal by spray irrigation. All sewage generated in the developments served by Northwest in Broward County would eventually be pumped south to the North Broward County regional sewage treatment facility. In order to implement this concept Northwest has entered into a "large user's agreement" with the Broward County Utilities Department. The sewage generated in Broward County would be treated initially in the sewage treatment plant constructed on Northwest's site. When that sewage treatment plant is used to 50 percent of its capacity, Northwest would be contractually obligated with Markborough Properties to start procedures that would permit the Broward County generated sewage to be treated elsewhere (the North Broward Regional Sewage Treatment Facility), leaving the Northwest Sewage treatment plant dedicated for the use of Markborough alone. Northwest has entered into a contract with Davco, Inc. to purchase and construct 1.5 MGD sewage treatment plant, conditioned upon favorable action by the Commission on this certificate application. The plant can be constructed and in full operation within nine months. Northwest has prepared detailed engineering plans for a two MGD water treatment facility to provide fully-treated water to Boca Del Mar II as well as the existing developments of York and Coquina Lakes. This facility has been permitted for construction by the Department of Environmental Regulation, and a permit has been obtained from the South Florida Water Management District (SFWMD) authorizing withdrawal of 315 million gallons of ground water per year. SFWMD does not object to Northwest's crossing the Hillsborough Canal with the necessary water main. Construction is approximately 50 percent complete on the water treatment plant, and the plant can be operational in approximately four months. The water treatment concept espoused by Northwest is feasible and practical. (The legislature has mandated removal of any consideration of political or property boundaries in the allocation and use of water in the state. See Section 373.223, Florida Statutes.) Similarly, with the sewage treatment concept proposed by the utility, there is no statutory impediment to crossing political boundaries in the process of sewage collection and treatment. Both the Broward County Environmental Quality Control Board and the Department of Environmental Regulation are agreeable to the proposed concept of sewage treatment and are willing to resolve any problems occasioned by the crossing of the county boundary with collection lines in favor of the utility's proposal. Northwest has developed detailed cost analyses regarding construction of the water and sewage treatment facilities to serve Boca Del Mar II. Northwest has also developed engineering cost estimates to provide transmission facilities to enable connection to the Broward County Regional Sewage Treatment Facility. The costs of construction were developed in accordance with sound engineering principles and current market prices for materials, equipment and labor and are reasonable. Several factors contribute to the reasonableness of the construction costs. Ralph Bates, a contractor experienced in this type construction, will perform a substantial part of the plant construction and can accomplish this work for substantially less than a third party contractor. Additionally, Northwest has obtained a loan commitment at an extremely favorable interest rate considering the cost of money in today's market. When these facilities are constructed Northwest will be capable of providing water and sewage collection and treatment service to Boca Del Mar II and to the territory east the Florida Turnpike (area "b" of Exhibit 3). Northwest will be able to provide good quality service with the facilities to be constructed, and the proposed financing arrangement discussed hereinafter will render the extent and type of service proposed by Northwest financially and economically feasible. The remaining issue to be addressed in this certificate proceeding, having determined the capability of the applicant, concerns the question of the availability of adequate service from other sources. Section 367.051(3), Florida Statutes, states in pertinent part: . . .The commission shall not grant a certificate for a proposed system, or for the extension of an existing system, which will be in competition with, or duplication of, any other system or portion of a system, unless it shall first determine that such other system or portion thereof is inadequate to meet the reasonable needs of the public or that the person operating the system is unable or refuses or neglects, after hearing on reasonable notice, to provide reasonably adequate service. Section 367.041(1) states in pertinent part as follows: . . . Provide information required by the commission, which may include a detailed inquiry into the ability of the applicant to provide service, the territory and facilities involved, and the existence or non-existence of service from other sources within geographical proximity to the territory applied for . . . The potential sources of service within a reasonable, feasible geographical proximity to Boca Del Mar II are the City of Boca Raton and South Palm Beach Utilities (SPB). The City of Boca Raton raised no objection to a grant of the certificate and authority sought by Northwest. The city previously refused to serve the Boca Del Mar area, and if Markborough were to attempt to obtain service from the city inordinate delays would result. Markborough is experiencing a cost of capital of $100,000 per week in interest and other charges for each week that its development is delayed. The consistent ability of the City of Boca Raton to provide adequate water service to the development has not been adequately demonstrated. The city has a sporadic water shortage problem and is in the process of constructing new water treatment facilities that may partially alleviate the problem, but that relief is 18 months away. The city is contemplating embarking on what is known as a "201 plan" to construct and operate a regional sewage treatment facility pursuant to the Federal Water Pollution Control Act as amended in 1972. 33 USCS Section 1281. This plan is only in its initial stages, and it will be several years before the study and any resulting construction is completed and sewage treated. Markborough has no desire to have service provided by South Palm Beach Utilities. It is also questionable whether SPB is seriously interested in providing service. No application for a certificate for this territory has ever been filed by SPB, and the protest to the Northwest application has been withdrawn by SPB. If service were provided by SPB to Boca Del Mar II, it would disrupt the provision of service to York and FDV from an operational and financial standpoint. Such an eventuality would not serve the public interest and since the same application process undertaken by Northwest would also be a prerequisite to the provision of service by SPB, there would be an unacceptable delay attendant to any provision of service by SPB, even assuming no engineering or financial impediments arose. Further, a minimum of seven months would be necessary for completion of necessary expansion to provide service even if it already had authority to do so. Nearly all of SPB's present water and sewage plant capacity is already committed. Thus, the present and future customers would be most clearly satisfied and served by a grant of a certificate to Northwest. That entity is the most capable from an an engineering and operational standpoint of constructing and providing required adequate service in the shortest time and, as will be seen, will have adequate financial resources available to underwrite this effort. Application for Approval of Debt Financing (Docket #800299-WS) In order to have the financial resources available to expand facilities to provide service to Boca Del Mar II and to upgrade quality of service to other customers, Northwest must obtain capital from outside sources. These funds are most readily available from Markborough Properties in the form of a loan. Markborough is keenly interested in a resolution of these and other delays to Boca del Mar II's development, particularly due to the fact that it is experiencing interest and opportunity costs of $100,000 per week for every week of delay in implementing its development plans. Consequently, Markborough has signed a loan commitment to Northwest for an aggregate principal sum of $2,610,000. A loan agreement to accompany this commitment has been proposed which contains the requirements of the lender and the terms of the arrangement. The loan up to the above aggregate amount will be evidenced by a promissory note with interest at a less-than-market rate of 10 percent per annum. The agreement provides for various advances under the terms of the note for specific items of construction of the water and sewage facilities. Interest would be paid monthly upon the outstanding principal balance of the note commencing one month after its execution, and interest only will be paid for two years or until the note is fully advanced. At that point, called the advance date, the entire principal and interest will be set up on a 30-year amortization schedule, with level principal and interest payments, with those payments to be made over a period of five years. After five years, the existing balance on the note would be fully due and payable as a "balloon" payment. There are provisions for pre-payment of principal and interest out of various developer contributions-in-aid-of construction (CIAC) that would be attributed to the interest and then principal outstanding on the note. The note would be secured in a customary manner. There would be a first mortgage lien on the real property, which is basically the water and sewer plant site and improvements. Security interests in the present and future personal property, equipment and inventory on the two plant sites would also be given the lender. The entire agreement would be personally guaranteed by the stockholders, Ralph and Marlene Bates, and in conjunction with that they would also pledge all the capital stock which they own in Northwest, as well as the stock which that company owns in WPC. There further is an assignment of present and future developer contributions-in-aid-of construction that would be attributed to the reduction of principal and interest by a stated formula. All CIAC payments would be directed to Markborough to be applied as called for by Paragraph 9.2 of the loan agreement. The allocation of those payments would be as follows: 75 percent of the CIAC from developers within the Boca Del Mar II development would be retained by Markborough, specifically to reduce the principal and interest on the loan. The remaining 25 percent of those CIAC payments would be disbursed to the borrower, Northwest. Twenty-five percent of the CIAC from developers not within the Boca del Mar II area would be similarly retained and used for reduction of the loan. Fifty percent would be retained by Markborough in an interest-bearing escrow account for use by Northwest to facilitate either the expansion of its plant facilities, to assist it in rendering service to other developers or to make the necessary capital payments to enter into a bulk sewage treatment contract with Broward County. The remaining 25 percent of non Boca Del Mar II CIAC payments would go to Northwest. Because of the low interest rate, Markborough and Northwest have agreed to what is commonly referred to in the construction and financing industry as an "equity kicker". This equity incentive or right of the lender is an amount equal to 40 percent of such portion of the net proceeds of the sale or disposition of assets or stock, (after debts securing such assets or stock and sales expenses, but prior to income taxes) as the number of units under service by Northwest (and number of units to be built upon land then under contract to be sold to a subdeveloper) in Boca del Mar II bears to the total number of units under service by Northwest, including units under contract, but not yet in service. This provision is customary in such financing arrangements and is allowed by Section 687.03(4), Florida Statutes. This "equity kicker" in effect provides an additional incentive to the lender to offset the below-market interest rate, and it survives the satisfaction of the mortgage debt and loan if there is ever a sale of all or a portion of the stock or assets of the utility. This "equity kicker" provision would inure to the benefit of customers of the utility by providing lower utility rates through the effect of the lower interest cost provision. Northwest would provide this "additional interest" out of any profits from a sale, and therefore only the principals of Northwest would ever feel any impact from this arrangement. The safeguards to the lender are numerous, but they are safeguards similar to conditions normally imposed for construction loans of this type and magnitude. The principal disadvantage of this loan proposal and agreement is that Markborough would have great control over virtually all the operations of the utility. It would have representation on its board of directors, would participate in all major decisions and possibly even in the day-to-day operations of the utility, which control could potentially extend to other developments and not just Boca Del Mar II. In fact, the agreement ultimately calls for the utility's capacity to be largely dedicated to the sole use of Markborough. The major advantage of the loan agreement is that the utility would be able to obtain financing at a low rate of interest in order to construct the facilities necessary to serve Boca Del Mar II. Through this construction, the utility will be able to serve a much larger customer base and will be able to obtain a more viable financial position. York Development and other creditors of the utility would be paid off, capital available for future use would be accumulated under the terms of this agreement, and finally management expertise would be available from Markborough which could greatly enhance the effectiveness of the utility's operation. In order to hasten construction of improved water treatment facilities, York has made various short-term loans to Northwest. Both York and Northwest contemplate that the indebtedness would be discharged upon securing of long-term financing. Under the terms of the Markborough loan, Northwest would draw down a substantial portion of the loan at closing. The monies obtained on the first "draw" would satisfy substantially all the current indebtedness of Northwest. All existing mortgages, some of which are in default, would be satisfied, and Markborough would become the first lien holder. The Markborough loan is thus designed to achieve the objectives of providing the utility with funds to construct a plant to serve Boca Del Mar II; to help Northwest become a financially viable utility able to provide quality service to customers; to enable Northwest to repay current creditors, including York Development to whom it owes some $185,000; to accumulate enough CIAC to aid in retiring the debt; and to provide Markborough with an equity interest and sufficient control over the operations of the utility to ensure continuous quality service to its development. The Markborough loan, then, is part of a comprehensive plan by this utility to ensure financial viability and continuous quality water and sewer service to York and other customers in an expanding territory in the future. The Markborough loan proposal achieves all the above objectives and represents the only viable means offered to achieve them. The remaining issue concerning this financing arrangement is whether the utility has the ability to repay the debt. If only the known developments in the area east of the Florida Turnpike are considered, with only the minimum rates chargeable to them used to forecast operating revenues, Northwest will have the capability of repaying the money borrowed from Markborough. However, there are two occasions in the projections of available cash flow to service debt (to 1985) when a cash deficit might occur. At the end of 1980 there is a relatively immaterial predicted deficit. There will be a deficit at the end of 1983, when it will be necessary to construct the transmission line to the Broward County sewage treatment facility. That deficit at the end of 1983 has been provided for, however, in that York Development has agreed to advance money to cover that deficit if it should prove necessary. In effect, the worst conceivable situation that could occur should Northwest be unable to service the debt would be foreclosure and ultimate ownership by a financially sound development company, Markborough, which has a high degree of management expertise as well as a keen interest in having quality water and sewer service provided its development in order to successfully market it. Thus, should Markborough ever become the operator of the utility, there is no conceivable way that such an event would not inure to the benefit of all customers served. Show Cause Order No. 9305 (Docket #800181-WS) Certificates 170-W and 121-S were granted to Northwest after application made in 1973. The area encompassed by these certificates is identified as "a" on Exhibit 3. The certificates were ultimately granted to the utility in April, 1974, and the above-referenced Show Cause Order contains allegations proposing that the Commission cancel these certificates. The allegations in the Show Cause Order are essentially that the certificates were issued on the premise that service was needed in this service area, but that no service has been provided, and therefore the premises upon which the certificates were issued no longer exist and they should be cancelled. The certificates were issued on the premise that service was needed in the territory, and service was initially needed at that time for the high density Bates PUD discussed above. The need for service ultimately failed to materialize because of economic conditions, but since economic conditions change, the need for service can and has arisen once again. Thus, consideration of this issue must take into consideration current developments and economic realities, including the steps recently taken by Northwest to expand its service. Northwest has built or acquired plant facilities for the purpose of providing service in this territory. It purchased in 1973 a one-MGD-sewage- treatment plant, which is now stored on the Bates's, property and available for use if an appropriate development should require it in this territory. Further, to provide service where needed, Northwest has invested in the on-site package plants to serve Carol Lakes Mobile Home Park. A need for service arose in the park in 1976, and Northwest provided it. Another apparent need arose in 1977 in the area identified as Parcel 3 on Exhibit 3, and Northwest took steps to provide that service. Mains were installed at a cost of $9,000, and the acquisition of the WPC plants was undertaken at a cost of $300.,000. The actual need for service did not materialize, but there is no question that Northwest stood ready and held itself out to provide service upon request. Its investment of substantial amounts of money, and its demonstrated willingness to provide service when requested, indicates that Northwest has taken the obligation imposed by those certificates seriously, and any actual cancellation would, in effect, deprive Northwest of effective use of a substantial investment in property without just compensation. Given that the rate-making criteria in Section 367.081, Florida Statutes, provides that a return through rates can only be allowed a utility on property or investment which is "used and useful" in the public service, the Commission has uniformly insisted, for rate-making purposes, that investments be prudent and in accordance with this statutory standard. Therefore, Northwest should not be required to run the risk imposed by this Show Cause Order of losing its territory merely because it has not built a plant and laid down mains and lines throughout the territory in question, since no service in that territory has heretofore been needed. There is no requirement in the above- cited statute nor in decisional law which would provide that a utility should place lines and/or plants throughout a territory where no service is yet required and for which no request has been received; and indeed the Commission has uniformly discouraged and penalized that practice in numerous past decisions. The only possible alternative source of service to this territory is the City of Coconut Creek. The city has no sewage or water treatment facilities and would serve the area by having sewage treated at the Broward County facility which Northwest would probably use in the future. There is no showing that the public would gain any cost advantage by obtaining service from the City of Coconut Creek as opposed to Northwest. The city's argument that it should serve the territory since it lies within its city limits is unpersuasive. Many cities or portions of cities are served by privately-owned facilities in this state. Further, only certain portions of Northwest's territory lie within the city limits of Coconut Creek. Those are the areas where the highest density development is probable, such that if it were given the right to serve those areas, only Coconut Creek would obtain the bulk of the revenue, leaving Northwest to serve low density areas with only marginal practicality due to the low resultant revenues. The provision of service to the area outside the city limits of Coconut Creek is only feasible if the utility serving the area also retains the right to serve those within the city limits. An additional problem would occur if this certificated territory were cancelled. Coral Lakes Mobile Home Park lies surrounded by the City of Coconut Creek, so if the area within the city limits of Coconut Creek was deleted from the Northwest certificates, the mobile home park would become isolated, rendering it extremely difficult to upgrade and maintain quality service to the park by Northwest, which would remain obligated to serve it. Thus, deletion of the territory within the city limits of Coconut Creek from the certificates of Northwest would render service to those areas and contiguous areas operationally and financially unfeasible. Northwest has not failed to provide service to any person reasonably entitled thereto or requesting it. It has thus far offered service to every person or entity making a request.
Recommendation Having considered the substantial, competent evidence in the record, the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the application of Northwest Utilities of Broward County, Inc. to extend water and sewer service to the territory known as Boca Del Mar II, be granted. It is further, RECOMMENDED that the application of Northwest Utilities of Broward County, Inc. for authority to borrow the principal amount of $2,610,000 from Markborough Properties Ltd. be granted. It is further, RECOMMENDED that Public Service Commission Show Cause Orders Nos. 9324 and 9305 be dismissed. It is further RECOMMENDED that the Motion for a Corrective Order addressed to Order No. 8821 in Public Service Commission Docket No 770625-WS filed by Northwest Utilities of Broward County, Inc. be granted. DONE and ENTERED this 21st day of August, 1980, in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: David B. Erwin, Esquire Johnston and Erwin 1030 E. Lafayette Street Suite 112 Suite 601 Tallahassee, Florida 32301 Marta Crowley, Esquire James O. Collier, Class B. Practitioner Public Service Commission 101 E. Gaines Street Tallahassee, Florida 32301 Peter A. Knocke, Esquire Carlton, Fields, Ward, Emmanuel, Smith and Cutler, P.A. Post Office Drawer 190 Tallahassee, Florida 32302 William E. Sundstrom, Esquire 1020 E. Lafayette St. Suite 103 Tallahassee, Florida 32301 Betty Lynn Lee, Esquire Prominski and Lee 800 E. Broward Boulevard Ft. Lauderdale, Florida 33301 Andrew S. Maurodis, Esquire 4540 N. Federal Highway Fort Lauderdale, Florida 33308 Burton Harrison, Esquire Bretan and Marks 7200 Bird Road Miami, Florida 33130 Milton A. Galbraith, Jr. City Attorney 201 W. Palmetto Park Road Boca Raton, Florida 33432
Findings Of Fact Petitioner began employment with Respondent in November 1983. He was assigned to the Water and Sewer Department as a laborer. In 1986, Petitioner was transferred by the Respondent to the Water and Sewer Department water meter shop to be a water meter repairman. Petitioner continued his employment in that section until the spring of 1993. At that time, Petitioner accepted status under the Respondent's Disability Income Replacement policy. This arrangement is for an employee who is absent due to disability for more than 60 days. He then becomes eligible to receive payment of 60 percent of the employee's regular earnings. From the years 1986 into 1990, Petitioner enjoyed good health. During that period his employee work evaluations ranged from satisfactory to above satisfactory. In 1990, Petitioner developed psoriasis. In the beginning, the condition was controlled through medical treatment. However, in 1991, Petitioner was diagnosed with bladder cancer. As a result, while being treated for the bladder cancer in 1991 and 1992, to include two surgeries, Petitioner was unable to receive medical treatment for his psoriasis. Consequently the psoriasis became more severe. There was a change in supervisory personnel on April 4, 1991, which affected Petitioner's employment status together with that of other employees within the Water and Sewer Department. The change came about when Richard Davis, who headed the Water and Sewer Department was replaced by Henry Hicks. Respondent had found it necessary to replace Davis, because in Respondent's view Davis was not satisfactorily addressing the personnel issues within the Water and Sewer Department. When hired, one of the issues which Hicks felt he needed to address was a morale problem caused by employee perceptions that the Department of Water and Sewer employee rules were not being enforced in a consistent manner. Hicks was of the opinion that this perception existed, in part, because supervisors maintained a casual approach to employee counseling and discipline. Hicks, in his tenure, reminded the supervisors to formalize their procedures in dealing with employee counseling and disciplining. He required the supervisor provide documentation of any disciplinary action whether verbally given or by a written reprimand. This change in direction tended to increase the number of documented incidences of imposition of employee discipline within the Water and Sewer Department. The first employee evaluation which Petitioner received after Hicks' assumption of his position of director of the Water and Sewer Department was in 1991. The 1991 evaluation which Petitioner was given contained positive and negative remarks about Petitioner's work performance. In the spring of 1991, the Water and Sewer Department held a picnic, an activity in which the employees were encouraged to participate. As in prior years the Petitioner volunteered to be a member of the food committee for the picnic and was appointed to that committee. Members of the food committee would serve food at the picnic. At that time, the Petitioner's psoriasis was such that he was noticeably peeling and flaking. Howard Johnson, a supervisor with Respondent approached Hicks and told Hicks that several employees had stated that they, the employees, would not go to the picnic if Petitioner served food because they were afraid that Petitioner's skin would flake into the food. Having been apprised of this situation, upon a date prior to the picnic, Hicks met with Petitioner and told Petitioner what had been reported to Hicks and asked Petitioner to serve the needs of the picnic activity in some other manner than food service. Specifically, the Petitioner was offered the opportunity to help "set up" the picnic area. Petitioner did not accept the alternative offer to assist in the outing. Instead, Petitioner was offended and felt that he was unreasonably singled out due to his psoriasis. Nonetheless, the reaction by other employees to having Petitioner serve food and the response by Hicks to offer an alternative opportunity to assist in the activity did not constitute harassment or unreasonable conduct toward Petitioner. In association with the picnic for the spring of 1991, Bobby Thigpen, a supervisor with Respondent, made a comment to Petitioner about Petitioner's psoriasis and Petitioner's participation on the food committee at the picnic. Although Petitioner was mindful of Thigpen's candor about the subject, Thigpen's remarks contributed to Petitioner's hurt feelings concerning other employees not wishing Petitioner to serve food at the picnic. The remarks by Thigpen were not designed to harass Petitioner based upon Petitioner's physical condition. In addition, Petitioner did not report Thigpen's remarks to his supervisor pursuant to Respondent's "No times relevant to the inquiry, prohibited harassment on the basis of handicap status as well as other protected categories. The policy instructed the employee who believed that he had been harassed to bring the matter to the supervisor or to the Human Resource Department within the organization if the employee did not feel that he could discuss the matter with his supervisor. Respondent's employees are required to attend an annual meeting to review this policy. Petitioner did not complain to the Human Resource Department that he had been harassed by Thigpen through Thigpen's remarks regarding Petitioner's service on the food committee. No other competent proof was offered to the effect that Respondent's employees had made derogatory comments about Petitioner's physical disabilities. Because Petitioner's psoriasis was in a more severe condition, Petitioner would leave flakes of skin on chairs in the Water and Sewer Department break-room. When the Petitioner's co residue they would switch chairs rather than sit in the chair on which Petitioner had left flakes of skin. Although Petitioner found out that the other employees were switching chairs due to the flakes of Petitioner's skin being found on the initial chair, there is no competent proof that any employee ever commented to the Petitioner that the employee would be opposed to the Petitioner eating in the break-room due to his physical condition. Petitioner, together with other employees who were supervised by Dan Miller, had been harassed by Miller at times relevant to the inquiry. In Petitioner's instance, Miller's harassment was not directed to Petitioner's physical disabilities. Some of the remarks made by Miller to Petitioner were that Petitioner was short and fat and further derogatory comments about Petitioner's haircut and clothes. Miller had also called the Petitioner dumb or stupid because Petitioner asked Miller to repeat instructions over the radio that was used for communicating between the supervisor and his respective employees. Notwithstanding Petitioner's contention that he had told Miller that he was having trouble hearing because of psoriasis that had spread to Petitioner's ears, Miller denies that Petitioner had told Miller that psoriasis was affecting Petitioner's hearing, and Miller's testimony is credited. On the contrary, without knowledge of any physical disability concerning hearing which Petitioner had, and without regard for the reaction any other employees which Miller supervised might have, Miller made insulting comments to employees which he supervised when talking to them on the radio. Employees other than Petitioner to whom the insulting comments were directed had no known physical disabilities. James Scarberry, a co-employee who worked for Miller, overheard Miller yell at Petitioner on occasion having to do with Petitioner's job performance, not Petitioner's physical disability related to hearing. Petitioner asked Miller and a co-worker not to smoke in his presence because he had recently had bladder cancer surgery. Petitioner contends that this request was met with laughter and jokes. Miller testified that the request was not met with jokes or laughter. Instead, Miller recalls, and his testimony is credited, that Petitioner complained that Al Nichols, a co-worker, had smoked excessively in Petitioner's presence. The subject of Nichols' and Miller's smoking in Petitioner's presence was discussed among Miller, Nichols and Respondent, and it was agreed that Nichols and Miller would try not to smoke excessively in Petitioner's presence. No medical evidence was presented which tended to identify the necessity for Petitioner to be afforded a smoke environment due to his medical condition or that Petitioner had ever made requests other than that directed to Miller and Nichols regarding not smoking in his presence at work. Petitioner had made requests that he be provided light duty because of the problems he experienced with his knees due to psoriasis. These requests were directed to Miller, Petitioner's immediate supervisor. The requests were not always granted. When Petitioner was turned down for light duty it was based upon the fact that light duty was generally not available in the Water and Sewer Department for any employee. Moreover, at that time, employees in Petitioner's work assignment usually worked alone and it would adversely affect the production of the unit if two repairmen were dispatched to do a job which would ordinarily take only one repairman to complete. Petitioner presented no proof concerning denial of light duty at a time when a physician may have specifically recommended light duty for Petitioner. Concerning discipline directed to the Petitioner, on March 18, 1982, Petitioner stopped at a job site to which he had not been assigned. There he engaged David Lipps, an employee of Respondent, in a conversation. Lipps was a supervisor at the site and the conversation had to do with the meal policy which had been applied at the site. Eventually the conversation became an argument, at which point Lipps told Petitioner that he did not belong at the job site and asked him to leave. Lipps then reported the incident to his supervisor, Rodney Thompson and the matter eventually came to the attention of Hicks. Hicks discussed the matter with the Petitioner and Lipps and concluded that Petitioner had no business purpose for being at the Lipps' job site and that Petitioner was responsible for causing the argument with Lipps. Petitioner was issued a written warning on March 26, 1992. The disciplinary reprimand was not related to Petitioner's physical disabilities. On May 18, 1992, Petitioner received a written reprimand. The reprimand was based upon the Petitioner's conduct while on weekend standby duty. This assignment was in keeping with the periodic requirement to serve on weekend standby. On May 16, 1992, Petitioner was on a standby status with Lipps. Lipps was referred to as the "A" worker and Petitioner was the "B" worker. The "A" worker was in charge of the work team. Petitioner arrived at the first job site 34 minutes before Lipps. When Lipps arrived, Petitioner complained that Lipps was an hour late. Petitioner then told Lipps that he had somewhere else to go that day. Lipps and Petitioner went to a second job and by that time Lipps told Petitioner that he was tired of Petitioner's complaining about having to work that day and concluded that Lipps did not have Petitioner's full cooperation. As a result, Lipps determined to leave the completion of the second job until the following Monday. Lipps reported the incident to his supervisor, Rodney Thompson. Petitioner had been previously counseled about his attitude concerning standby duty. Hicks reviewed the facts surrounding Lipps' complaint and decided to issue a written reprimand to Petitioner for making negative verbal remarks about Petitioner's duties and for failing to cooperate with his supervisor on standby duty. The disciplinary action was not for purposes of discriminating against Petitioner because of Petitioner's physical disabilities. Moreover, Hicks had reprimanded two other employees, Ed Swift and Bob Buckley for making negative verbal comments about job duties. Hicks did not know these other individuals to be suffering from any form of physical disability. In June of 1992, Petitioner applied for and was granted a leave of absence for an unspecified period. By June 2, 1992, Petitioner knew that he would need to go on extended leave beginning June 8, 1992. He failed to inform any of his supervisors that he was going on this medical leave. He did not show up for work on June 8, 1992. Hicks inquired of Petitioner on June 8, 1992, about not telling his supervisor that he was going to be on medical leave. Petitioner responded to the inquiry by indicating that he had told Scarberry, Petitioner's co-worker, of his intention to go on medical leave and that he had told a city clinic nurse that he was going on leave of absence. Hicks pointed out, correctly, that telling the nurse and Scarberry of Petitioner's intentions to take medical leave did not relieve Petitioner of the duty to directly inform a supervisor of that intention. Moreover, Scarberry had told the Petitioner that he, Scarberry, would not be at work the first day of Petitioner's medical leave, making it questionable that Scarberry would have advised a supervisor that Petitioner was hoping to be absent from work that day. Scarberry made Hicks aware that Scarberry had pointed out to Petitioner that he would not be at work on June 8, 1992. Petitioner's assertion that he wrote a note to his immediate supervisor, Miller, regarding the plan to be out on June 8, 1992, if true, is of no utility because the note was not given directly to Miller and was never indirectly received by Miller. Miller had not been at work June 5, 1992, the friday before Petitioner was missing from his job duty on June 8, 1992. Petitioner knew that Miller was not at work on June 5, 1992. As a consequence of not informing a supervisor that he was going to be on extended medical leave, Petitioner was disciplined. The action by Respondent on which Petitioner was given a written reprimand for failure to inform a supervisor that Petitioner was going to take extended medical leave did not constitute discrimination against Petitioner based upon his physical disabilities. Petitioner was allowed to take the extended medical leave. Noel Werner, a secretary in the Water and Sewer Department had also been reprimanded by Hicks for failing to follow proper procedures for obtaining authorization to take medical leave. Hicks is unaware of any physical disability that Ms. Werner may have. When Petitioner took leave in June of 1992, he believed that he would be eligible for Disability Income Replacement. However, in August 1992, Petitioner was informed that the Respondent's Risk Management Department had determined that he was ineligible because he was under the care of a licensed health counselor as opposed to an M.D. or a Ph.D. Carol Ingham, Respondent's Human Resource Director, learned of this circumstance and contacted the Assistant City Manager, Dick Lewis, and requested that Petitioner be granted an exception to the policy of not being eligible for Disability Income Replacement when using a licensed health counselor. As a result, Petitioner's request was reevaluated and he was ruled eligible for Disability Income Replacement through the policy pertaining to that status for the period August 4 through 30, 1992. Concerning his physical condition, in the spring of 1992, Petitioner was diagnosed with osteoarthritis in his knees. This meant he was disabled to do any persistent bending or kneeling, which was a requirement of his employment in the Water and Sewer Department. His condition also disabled him from doing his assigned work because his work as a water meter repairman involved walking distances of a 100 feet or more on a persistent basis and standing all day. Concerning the medical leave of absence which Petitioner took in the summer of 1992, this subject was discussed by Ingham in conversation with the city clinic nurse, Holly McLaughlin. They talked about the stress which Petitioner seemed to be experiencing and the failure to follow the policy of informing his supervisor of his intention to take medical leave. On June 15, 1992, Ms. Ingham met with Petitioner and his wife to discuss Petitioner's stress. At that time, Petitioner reported to Ms. Ingham that Petitioner's supervisor Miller had treated him badly and that Miller had also treated other employees badly. Petitioner told Ingham that Miller had called Petitioner stupid and had been abusive in conversation over the radio. No claim was made by Petitioner that Miller had made comments directed to Petitioner's physical disabilities. As a follow Ingham discussed Petitioner's remarks about Miller's conduct with a number of the Petitioner's co-workers. Ingham decided that Miller had, in fact, yelled and cursed at a number of employees he supervised, to include Petitioner. No other employee reported to Ingham that Miller had made derogatory comments in their presence concerning Petitioner's physical disabilities. Based upon Ingham's findings, Hicks determined to discipline Miller for his conduct directed toward employees whom Miller supervised. Miller received a written reprimand and was given the option of being demoted or seeking counseling through an employee assistance program. Miller opted to go to the employee assistance program. Moreover, Miller was told that if conduct toward subordinates continued that he would be subject to more severe discipline to include discharge. Miller's treatment of the employees he supervises has improved since the imposition of discipline. Petitioner returned to work in August 1992, following his leave of absence for medical purposes. At that time, he was issued a service truck which another employee had been using. Petitioner felt that he should have been issued a new truck which the Water and Sewer Department operated. The truck that Petitioner had been issued was dirty and smelly. Miller told Petitioner that the newer truck was assigned to an employee who needed the larger truck because that employee would be performing heavier work than Petitioner would be called upon to perform. Miller offered to have the truck which Petitioner had been issued cleaned up or detailed. Petitioner declined that offer. Petitioner complained about the truck that he had been assigned to a co-worker, Fred Sauls. He told Sauls that he was going to take the truck he was issued and drive it to city hall to show Ingham, the Human Resource Director. In fact, Petitioner reported the incident to Ms. Ingham. The Petitioner received a letter of reprimand on September 4, 1992, for complaining to a co-worker and Ms. Ingham about an everyday work related problem rather than following the chain of command. Prior to receiving that written reprimand, Petitioner had been specifically counseled by Hicks concerning handling everyday work related problems through Petitioner's supervisor. Those specific instructions on everyday work related problems were not countermanded by the general opportunity which Hicks had described for employees to go outside the chain of command when they did not feel that they would get satisfaction from an immediate supervisor, and the open door opportunity to consult with the Human Resource Director. In this instance, the response from Miller was adequate to meet Petitioner's needs in confronting an everyday work related problem and Petitioner had no reason to complain to Sauls or to complain to Ingham. The written reprimand given to Petitioner was not designed to discriminate against Petitioner based upon his physical disabilities. Hicks and Ingham became aware of the Petitioner's inability to perform his assigned job duties due to his physical disabilities and they looked for other duties that the Respondent might be able to perform in view of his physical disabilities. The only positions that were found for which Petitioner was otherwise qualified and physically able to perform were part-time positions that did not offer medical benefits. Upon further reflection, Ingham and Hicks offered to combine these two positions in the Respondent's Recreation Department into a single job which would allow Petitioner to continue working and to receive benefits. The combined position was at a lesser pay than the present position which he held. Petitioner decided that he would prefer to be placed in the status of Disability Income Replacement in lieu of the combined jobs. In April 1993, Petitioner accepted the status of Disability Income Replacement and has not returned to work.
Recommendation Based upon the findings of fact and conclusions of law reached, it is, RECOMMENDED: That a final order be entered by the Florida Commission on Human Relations which dismisses the Petitioner's claims. DONE and ENTERED this 13th day of June, 1994, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of June, 1994. APPENDIX The following discussion is given concerning the Proposed Findings of Fact of the parties: Petitioner's Facts: Paragraphs 1 through 6 are subordinate to facts found. Paragraphs 7 through 14 are contrary to facts found. Respondent's Facts: Paragraphs 1 through 26 are subordinate to facts found. COPIES FURNISHED: William A. Ramputi, Esquire Scott, Gleason & Pope, P.A. 409 Southeast Fourteenth Street Ocala, Florida 34471 David H. Spalter, Esquire Fisher & Phillips 2310 One Financial Plaza Fort Lauderdale, Florida 33394 Sharon Moultry, Clerk Human Relations Commission Building F Suite 240 325 John Knox Road Tallahassee FL 32303-4149 Dana Baird, General Counsel Human Relations Commission Building F Suite 240 325 John Knox Road Tallahassee FL 32303-4149
The Issue Whether Respondent illegally and without permit removed a drain field and now has an unapproved septic system on a structure intended for human occupancy, and if so, what is the appropriate correction and fine.
Findings Of Fact On June 17, 2009, Department of Health employee Stephanie Daughtery was driving down Lake Erie Road in Groveland, Florida, past Respondent’s residence located at 6345 Lake Erie Road, when she noticed the sand mound that had held the septic system drain field for Respondent’s home was no longer there. Ms. Daughtery was familiar with the mound that had been located on Respondent’s land because, in her capacity as Petitioner’s employee, she had previously conducted a stabilization check on the mound. A sand mound for Respondent’s drain field was required under applicable law and regulations because, during the rainy season, the water table in the area of Respondent’s home was ten inches “below grade,” which means that the water level was just ten inches below ground level during the rainy season. Therefore, a sand mound was necessary for proper filtration of the raw sewage (effluent) entering the septic system. A septic system without a proper drain field will allow effluent to escape and constitute a public health risk. Upon returning to her office at the Lake County Health Department that same afternoon, Ms. Daughtery told her supervisor, Elias Christ, of her observation. One of Respondent’s neighbors had already reported the situation involving the removal of Respondent’s drain field to Mr. Christ. The next day, one of Petitioner’s inspectors, Daniel McColley, went out to Respondent’s property and met with Respondent. Respondent told the inspector that the mound which had been removed was just a pile of dirt. Contrary to Respondent’s assertion, the mound that was removed had been part of the drain field for Respondent’s septic system. Respondent was responsible for the removal of the mound and drain field. On June 22, 2009, Petitioner sent, by certified mail to Respondent, an Official Notice to Abate a Sanitary Nuisance, which advised: On 06/18/2009 an onsite investigation disclosed that an approved drain field had been removed and either not replaced or replaced without a permit, which violates Chapter 386.041(1)(a)(b)(e)(f) of Florida Statutes. You are hereby directed to contact this Department within 24 hours of this notice to discuss corrective action. A repair permit must be applied for and a system installed with Department approval. Approximately a week to ten business days later, after Respondent had failed to apply for a permit, Petitioner again sent an inspector to inspect Respondent’s septic system and found it to be still in nuisance condition, with no drain field. In addition to being in an area with water just ten inches below grade during rainy season, Respondent’s property is adjacent to a lake. Since the sand mound was removed, there is no proper drain field and Respondent’s septic system is a sanitary nuisance. As explained by Mr. Christ at the administrative hearing, Respondent’s septic system without a drain field is a threat to public health: Because we have untreated sewage that we have no idea where its going to. He has - - he also has a lake behind his property, so we don’t know if he’s somehow plumbed it into dumping into the lake or if it’s just dumping out on the ground. Respondent told one or more of Petitioner’s employees that he had connected his septic system to an old septic tank in an adjacent house on the property. He did not, however, obtain a permit to do so, and the old system was inadequate, without renovation, to handle the additional effluent. In addition, although Respondent further claimed that a septic contractor had pumped out his old system, Respondent would not give the name of the alleged contractor. On July 6, 2009, Petitioner sent, by certified and regular mail, a “Notice of Intended Action” to Respondent which advised: You have not yet come to apply for a permit to replace this system you removed. Failure to do so will result in legal action and possible revocation of your CO and further Lake County Code Enforcement Action. Please contact this office within 24 hours of receipt of this notice to discuss a corrective action plan at (352) 253-6130 or FAX (352) 253-6133. If this sanitary nuisance is not abated and a proper septic tank repair permit applied for and work is completed in a satisfactory manor, inspected by this department, you may be subject to fines up to $500.00 per day authorized therein accordance with the authority outlined in Section 381.0065(5) Florida Statutes(F.S.). If you have further questions please call Elias Christ or Russ Melling at 352-253-6130. Respondent came into the Lake County Health Department on July 22, 2009, and was given an application and a checklist for permitting the repair of his septic system. During that visit, Respondent told Mr. Christ that the cows had destroyed the mound. He also told Mr. Christ that he had been trying to sell his house and that the mound had been an eye-sore that was interfering with the sale. Later, in a telephone conversation with Mr. Christ, Respondent advised that he really did not have the money to replace the drain field, but he would be happy to have it replaced if the county would pay for it. By September 25, 2009, Respondent still had not applied for a permit or repaired his septic system. On September 25, 2009, Petitioner issued a Citation for Violation Onsite Sewage Program/Sanitary Nuisance to Respondent (Citation). Part 1 of the Citation alleges that Respondent is in violation of Section 386.041(a), (e), and (f), Florida Statutes, and Florida Administrative Code Rules 64E- 6.001(2) and 64E-6003(1), on the grounds that Respondent “[h]as illegally and without any permits removed his drain field and now [has] an unapproved system on a structure intended for human occupancy.” The Citation further provides: The person named in this citation is hereby ordered to correct the violation(s) listed in Part 1 within 10 days [from] the service of this citation. The person identified in this citation is hereby directed to pay a fine in the amount of $500 plus $100 per [day] additionally from receipt of this citation until the drain field is repaired legally for the violations listed in Part 1. Payment must be made to the LAKE County Health Department within 21 days of the receipt of this citation, or you may choose the option listed on Part 9. Part 9 of the Citation provides for a request for an administrative hearing and warned Respondent that if he requested a hearing and then failed to appear to contest the citation, he would waive the right to contest the citation. By his signature dated October 1, 2009, in Part 9 of the Citation, Respondent requested an administrative hearing. This administrative hearing followed. Respondent failed to attend or present any evidence at the final hearing. Prior to the hearing, Respondent indicated to Petitioner’s counsel that he was not financially able to put the drain field back the way it was and that he did not see the point in appearing at the administrative hearing. On the other hand, the evidence presented by Petitioner at the administrative hearing, as outlined in the findings above, clearly and convincingly demonstrated that Respondent removed a mound and drain field required by applicable law and regulations for his septic system, and that Respondent’s septic system has not been repaired as required to comply with the law.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a Final Order finding that Respondent illegally and without permit removed a drain field and now has an unapproved septic system on a structure intended for human occupancy, and ordering Respondent to pay a fine in the amount of $500.00 for deposit into the county health department trust fund, obtain a septic system repair permit, and effect repairs on his septic system to correct the violations of Section 386.041(a)(e)(f), Florida Statutes, and Florida Administrative Code Rules 64E-6.001(2) and 64E-6.003(1), within forty-five (45) days from the Final Order. DONE AND ENTERED this 2nd day of April, 2010, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 2010.
The Issue The issue is whether Petitioner created a sanitary nuisance in violation of Florida Administrative Code Rule 64E- 6.022(1)(d)(l) and (q) and, if so, the proper penalty.
Findings Of Fact The Department of Health, Duval County Health Department (Department), is the 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 Chapter 64E-6. Mr. Smith is a qualified contractor employed by All Florida Septic Tank Service, Inc. (All Florida). The citation issued on April 15, 2004, identifies Mr. Smith's registration number as SR0011389 and All Florida's registration number as SA0000956. The citation describes the alleged violations as follows: On March 8, 2004, a repair application was submitted to the Duval County Health Department (DCHD) for 8817 & 8821 Bellrose Avenue, Jacksonville, FL 32244. All Florida Septic Tank Service, Inc. was indicated as the agent for the applicant/property owner, Ben Lewis. On April 8, 2004, Robert Hoag, qualifying contractor for Plumbing and Contracting by Hoag, disconnected the stub out line running from the house to the existing septic tank prior to installation of new septic tanks thus creating a sanitary nuisance. The existing septic tanks were abandoned at said property by All Florida Septic Tank Service, Inc.; DCHD was not notified of tank abandonment as required for inspection. Water supply was not turned off during he time of construction. On April 9, 2004, Colleen Bierbach, DCHD inspector, observed and photographed prima facie evidence of untreated human waste discharge onto ground surface at 8817 & 8821 Bellrose Avenue. Mr. Smith accepted the citation on April 15, 2004. On the same date, Mr. Smith wrote a letter to Scott Turner of the Department of Health, in response to the citation. His letter reads as follows: Mr Scott Turner, On April 8, 2004 All Florida Septic Tank Service Inc. started a job at 8817 and 8821 Bellrose Avenue in which new tanks and drainfields were required. In order for the new drainfield to be installed the existing tank had to be abandon [sic] prior to any work being done. The two existing referenced tanks were properly pumped out an abandoned on April 8, 2004. The new septic tanks were scheduled to be installed that same day. Due to mechanical problems with the crane truck, the tanks were unable to be set that day, causing the contracted plumber, Robert Hoag, to be unable to tie in the new sewer line. On the following day April 9, 2004 tanks (1500 gallon septic tank) and (750 gallon dosing tank) were installed with a different truck. At that time the contracted plumber was onsite to immediately tie in the sewer line. In the mean time the Duval County Health Department came to do the required inspection of the new system, at which time Colleen Bierback of the Health Department observed a small amount of sewage on the ground and photographed the site. Mr. Hoag immediately tied the sewer in at the same time, fixing the sanitary nuisance within one hour after inspection. According to Mr. Smith, sanitary problems existed at this work site for months. That is, raw sewage had been coming out of the old septic system for a long time. In Mr. Smith's words, "I was there to fix the sanitary nuisance, not create it." The owner of the property in question engaged Mr. Hoag, of Plumbing and Contracting by Hoag, to accomplish the plumbing portion of the operation. While Mr. Smith's letter stated that the new septic tanks were actually installed on April 9, 2004, Mr. Smith testified at hearing that he performed excavation services, installed a new drainfield and set the new septic tanks on April 8, 2004. The sand and new drainfield had to be put in first and the new tanks installed last. The plumber, Mr. Hoag, would be responsible to make the necessary pipe connection on the new tanks. However, Mr. Hoag did not make the necessary pipe connection and the occupants of the residences used the facilities between April 8, 2004, and April 9, 2004. Mr. Smith did not call anyone to inspect the old septic tank upon abandonment. According to Mr. Smith, it is common practice in the Jacksonville area to not call for an "abandonment" inspection when the contractor has a permit to install a new tank. The Department's inspector, Colleen Bierbach, acknowledged that All Florida called for an installation inspection of newly installed tanks on April 8, 2004. On the morning of April 9, 2004, after the new tanks had been installed, Ms. Bierbach went to 8817 and 8821 Bellrose Avenue. She observed raw sewage on the ground flowing toward the septic tanks. She took photographs of what she observed, but the copies of the photographs received in evidence are too blurry to show the extent of what she saw. Mr. Smith arrived at the work site just after Ms. Bierbach arrived on April 9, 2004. The description of the violation in the citation states that Mr. Hoag, the plumber, "disconnected the stub out line running from the house to the existing septic tank prior to the installation of the new septic tanks thus creating a sanitary nuisance." The evidence is insufficient to prove that Mr. Smith's actions, as opposed to the actions of Mr. Hoag, caused the unsanitary conditions.
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. Smith on April 15, 2004. DONE AND ENTERED this 26th day of April, 2006, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 26th day of April, 2006. COPIES FURNISHED: Catherine R. Berry, Esquire Department of Health 515 West Sixth Street Jacksonville, Florida 32206-4311 James L. Smith All Florida Septic Tank Service, Inc. 8300 W. Beaver Street Jacksonville, Florida 32220 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. M. Rony Francois, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701
Findings Of Fact V.M.P. Corporation operates a facility known as Stud's Pub in Jacksonville, Florida. Vincent M. Paul owns the facility and the corporation. The facility is on lots that were platted prior to 1972. Respondent is the statutory entity with authority for granting variances for onsite sewage disposal systems regulated by Respondent pursuant to provisions of Chapter 381, Florida Statutes. Section 381.0065(8)(a), Florida Statutes (1991) specifically provides: The department may grant variances in hardship cases which may be less restrictive than the provisions specified in this section. A variance may not be granted pursuant to this section until the department is satisfied that: The hardship was not caused intentionally by the action of the applicant; No reasonable alternative exists for the treatment of the sewage; and The discharge from the individual sewage disposal system will not adversely affect the health of the applicant or other members of the public or significantly degrade the ground or surface waters. Where soil conditions, water table elevation, and setback provisions are determined by the department to be satisfactory, special consideration shall be given to those lots platted prior to 1972. Rule 10D-6.045(3), Florida Administrative Code, is the portion of the rule which is the subject of this proceeding and, in pertinent part, reads as follows: Upon consideration of the merits of each application and the recommendations of the review board, the Deputy Secretary for Health or his designee has discretionary authority to either grant a variance as requested, grant a provisional variance or deny the variance request. A variance may be granted to relieve or prevent excessive hardship only in cases involving minor deviation from established standards when it is clearly shown that the hardship was not caused intentionally by the action of the applicant, where no reasonable alternative exists for the treatment of sewage and where proper use of the onsite sewage disposal system will not adversely affect the health of the applicant, any persons using or living on the property, or other members of the public. An applicant must also show that the granting of a variance will not significantly degrade ground or surface waters. Variances shall only be granted to the permit applicant and are not transferable to other persons unless specifically authorized by the department as a stipulation of the variance approval. . . . (emphasis added). The rule also tracks the language of Section 381.0065(8)(a), Florida Statutes (1991), and requires that "special consideration" be given to those lots platted prior to 1972 in those instances where soil conditions, water table elevation and setback provisions are deemed by Respondent to be "satisfactory." While minor amendments to the rule were made March 17, 1992, the substantive content of Rule 10D-6.045(3), Florida Administrative Code, has remained virtually unchanged since February 5, 1985. Two adjective modifiers in the rule, the terms "minor" and "excessive" which respectively modify the terms "deviation" and "hardship", have not been formally defined by Respondent in the rule. Respondent's rationale for this failure, as professed in the testimony of Respondent's policy representative at the final hearing, was to permit Respondent's review board maximum freedom to evaluate and consider the merit of each application for variance on an individual basis within the statutory authority of Section 385.0065(8)(a), Florida Statutes, i.e., variances may be recommended by the board where the hardship is not intentionally caused by the applicant, where no reasonable alternatives exist and where no evidence of adverse effect upon public health or ground and surface waters is demonstrated.
The Issue Did Petitioner violate Section 386.041 and Section 381.0065, Florida Statutes, as alleged in the Citation for Violation Onsite Sewage Program/Sanitary Nuisance?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times pertinent to this proceeding, the Department, through the Polk County Health Department, was the agency of the State of Florida charged with the responsibility of issuing permits for the construction, installation, modification, abandonment, or repair of onsite sewage treatment and disposal systems. The property in question is a duplex apartment building owned by Respondent and located at 1101-1103 Old South Drive, Lakeland, Florida. The two apartments in the duplex are serviced by a single septic tank and drainfield. In the summer of 1997, Petitioner determined that the drainfield needed repair and engaged the services of an individual who was not licensed to repair drainfields. Additionally, Petitioner did not obtain a permit for the repair to the drainfield. During the fall of 1997, Petitioner continued to experience trouble with the drainfield. Thereafter, on two separate occasions, Petitioner engaged the services of Burns Septic Tank Company (Burns) and Central Fla. Septic Tank Co. (Central) to pump-out the septic tank. Both Burns and Central indicated on their invoices for pumping out the septic tank that the drainfield was in need of repair. On December 9, 1997, after receiving a complaint from one of Petitioner’s tenants, the Department’s Environmental Specialist, Wade Schulz, made an inspection of the septic tank and drainfield at 1101-1103 Old South Drive, Lakeland, Florida. Schulz’s inspection revealed that the septic tank was backing up at the duplex apartments and that the septic tank D-box, old rock, and the drainfield pipe were exposed to the ground. Additionally, it was discovered that septage was flowing directly from the system to a wet drainage ditch. On December 9, 1997, Schulz verbally notified Petitioner that the system was in violation of: (a) Section 386.041, Florida Statutes (Nuisance injurious to health); (b) Section 381.0065, Florida Statutes (Prior approved system shall remain in operating condition); and (c) Section 381.0065, Florida Statutes (No person shall repair without permit). A written copy of the Citation for Violation Onsite Sewage Program/Sanitary Nuisance (Citation) was mailed to Petitioner but was returned as undeliverable. A copy of the Citation was personally served on Petitioner on January 23, 1998. After receiving the verbal citation from Schulz, Petitioner engaged Robby’s Septic Tank Service and had the septic tank pumped out. Other than pumping out the septic tank, Petitioner has made no other effort to correct the problem. After receiving the Citation, Petitioner met with the Department’s representative in an attempt to work out a solution. However, Petitioner contended that there was nothing wrong with the drainfield and refused to pay any fine. On July 9, 1998, the Department visited the site again and found that nothing had been done to correct the problem. Furthermore, the Department found that the system was still being improperly maintained. It was the opinion of both Schulz and Tony Warr, the Department’s Environmental Supervisor, that the only way to correct the problem was to completely repair the drainfield. It was Petitioner’s contention that the drainage ditch was clogged up resulting in a high water table around the drainfield and that if Polk County cleaned out the drainage ditch, allowing the water to flow off, it would resolve the problem of the drainfield. While the drainage ditch may be a problem, there was insufficient evidence to show that unclogging the drainage ditch would resolve the problem of the drainfield. It is clear that Petitioner’s drainfield is not operating properly and is in need of repair.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order finding the Petitioner guilty of the violations as charged and requiring Petitioner to pay a fine in the amount of $1,500.00 as set forth in the Citation for Violation Onsite Sewage Program/Sanitary Nuisance, Part 6. DONE AND ENTERED this 11th day of August, 1998, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 1998. COPIES FURNISHED: Angela T. Hall, Agency Clerk Department of Health Bin AO2 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1703 Dr. James Howell, Secretary Department of Health 1317 Winewood Boulevard Building 6 Room 306 Tallahassee, Florida 32399-0700 Glenn E. Woodard, pro se Post Office Box 2000 Eaton Park, Florida 33801 Roland Reis, Esquire Department of Health 1290 Golfview Avenue, Fourth Floor Bartow, Florida 33830
The Issue The issues in this case are whether Petitioner was responsible for maintaining a sanitary nuisance on his property by piping sewage onto the ground from the septic system and by ignoring the need to repair a failed septic system; and whether the Department of Health properly issued a citation to Petitioner for violation of Sections 386.041(1)(a) and (b).
Findings Of Fact In November, 1995, a Department of Health, Volusia County Health Department employee, Sherry Rodriguez, was performing a sanitary survey of the water system at 479 Maytown Road, Osteen, Florida, when she observed sewage on the ground. The property in questions consists of a large, two-story house which contains rental units. The house is provided water by a well on the property and sewage is handled by an onsite septic system. On November 6, 1995, Ms. Rodriguez issued a Notice of Violation for the sanitary nuisance which stated that the violation must be corrected by November 20, 1995. The septic system was not repaired by November 20, 1995. Ms. Rodriguez subsequently issued a Notice of Intended Action (NIA), giving Petitioner a deadline of December 5, 1995, to repair his system. When Ms. Rodriguez went to the property to serve the NIA, she observed PVC pipe on the ground, with one end at the septic tank and the other at the read of the property. Sewage was on the ground at the end of the pipe. Ms. Rodriguez took photographs of the pipe before she departed. Agency employee, Britt Williams, visited Petitioner's property on November 1, 1996, and observed sewage on the ground. Mr. Williams issued a follow-up NIA to Petitioner on January 30, 1997, which required Petitioner to repair the septic system by February 3, 1997. Petitioner did not obtain a repair permit to correct the violations, therefore, Mr. Williams issued a citation for the violations of sewage on the ground and having an improperly maintained septic system.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That a final order be entered affirming the civil penalty against Petitioner and requiring Petitioner to repair his septic system. DONE AND ENTERED this 8th day of April, 1998, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of April, 1998. COPIES FURNISHED: John Gee 1245 Gee Whiz Lane Osteen, Florida 32764 Charlene J. Petersen, Esquire Department of Health 420 Fentress Boulevard Daytona Beach, Florida 32114 Angela T. Hall, Agency Clerk Department of Health Building 6 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Dr. James Howell, Secretary Department of Health Building 6, Room 306 Tallahassee, Florida 32399-0700
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint. If so, what action should be taken against him.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: The Department is a state government licensing and regulatory agency. Respondent is registered with the Department as a septic tank contractor. Gayle Gibson owns and resides in a three-bedroom, two- bath single-family home located at 2425 Riverlane Terrace in Fort Lauderdale, Florida (Gibson's property). In late 1993 or early 1994, Gibson was experiencing problems with the septic system on her property (in the form of sewage backup and resultant unpleasant odors). Gibson contacted Respondent (who is the son of Gibson's former mailman) and asked him to come to her property to ascertain what was wrong and to take whatever remedial action was necessary. Respondent complied with Gibson's request and went to her property. After examining the situation, he told Gibson that she needed to have the septic tank on the property pumped and a new drainfield installed. Respondent recommended that the new drainfield be installed on the side of Gibson's home, instead of in the front yard (where the existing drainfield was located). Gibson made arrangements for Respondent to perform these services in exchange for money and art work. These arrangements between Gibson and Respondent were not reduced to writing. On or about January 20, 1994, Respondent pumped out the septic tank on Gibson's property and Gibson paid him $200.00, by check, for having performed such work. In late February of 1994, Respondent installed a new drainfield on the side of Gibson's home and Gibson paid him $500.00, by check, for having performed such work. At no time did Respondent obtain a permit to install the drainfield. The heavy equipment that Respondent used to perform the work was unloaded in Gibson's front yard. The unloading of the heavy equipment damaged the front yard. It cost Gibson a total of $175.00 to have the damage repaired. The drainfield that Respondent installed was an EEE ZZZ Lay Drain system comprised of Styrofoam material. Considering the size of Gibson's home, the drainfield was grossly undersized, as Respondent should have realized. It was approximately one-third the size it should have been. Predictably, shortly after this undersized drainfield was installed, Gibson again experienced sewage backup and related problems on her property. Gibson informed Respondent of the reoccurrence of these problems. Respondent told Gibson that he would take remedial action if Gibson paid him another $500.00. Gibson refused to make any additional payments to Respondent. Respondent never returned to Gibson's property to correct the error he had made in installing an undersized drainfield. Gibson contacted the Department and advised it of the problems she was experiencing with her septic system. Following an investigation of the matter, the Department issued the Administrative Complaint described in Preliminary Statement of this Recommended Order. Subsequently, on January 13, 1998, in an unrelated case, the Department issued and served on Respondent a citation imposing a $500.00 fine against Respondent for abandoning, without good cause, a septic system installation project he was contractually obligated to complete. The citation contained a "Notice of Appellate Rights," which indicated that "[t]his citation becomes a Final Order of the Department if you have not contested the Citation within thirty (30) days of the date which the Citation was served upon you." Respondent has neither "contested" the citation, nor paid the $500.00 fine it directed him to pay.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order finding Respondent guilty of the unlawful conduct alleged in the Administrative Complaint and disciplining him therefor by suspending his septic tank contractor's registration for 90 days and fining him in the amount of $1,000.00. DONE AND ENTERED this 29th day of June, 1998, in Tallahassee, Leon County, Florida. 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 Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 1998.
