Findings Of Fact Since 1984, the Department has been the state agency charged with the responsibility to establish rules and regulate underground pollutant storage facilities in Florida. In 1988, the Legislature added the administration of the newly enacted Florida Petroleum Liability and Restoration Program to the Department's duties. The program was to be established on or before January 1, 1989. The Applicant is the owner of a petroleum storage system in Jacksonville, Florida. Since 1984, it has been subject to the rules regarding underground pollutant storage facilities promulgated by the Department. On September 18, 1989, an odor indicative of possible petroleum contamination was discovered at the site during the installation of monitoring wells. A Discharge Notification Form was sent to the Department by the Applicant on October 23, 1989. The form advised that there were no leaks in the system. It was suggested that the odor may have resulted from surface spill at the site over a number of years. In response to the notification, an inspection of the site was completed by the Department on December 5, 1989. The inspection revealed the following on-site violations: Registration requirements were not being met. The forms had not been updated to include the presence of monitoring wells and overfill protection at the facility. Two underground tanks had not been properly abandoned. Inventory and reconciliation records had not been properly maintained, as required by rule since 1987. This violation was reviewed, and discussed in detail with on-site representatives of the Applicant. The monitoring wells were not installed by the time deadlines set forth in the Department's rules regarding stationary tanks. Since the wells were installed in September 1989, samples had not been taken for visual signs of petroleum contamination. The purpose of the system is to allow the owner of the storage tanks to learn if there is a leak in the tanks that can be quickly controlled to limit contamination. The day after the inspection, the Applicant applied for a determination of eligibility for participation in the restoration coverage portion of the new Florida Petroleum Liability Insurance and Liability Program. An affidavit was signed stating that all of the Department's rules regarding stationary tanks were being complied with by the Applicant. Six days after the inspection, the Department sent the Applicant written notice of the results of the inspection. The Applicant was given time frames and instructions for correcting the listed violations that could be corrected. A contamination assessment and clean up were also required in the letter. This letter did not address the issue of eligibility for the restoration funding program because that was a matter unrelated to the inspection results. On March 7, 1990, the Department determined the facility was ineligible for participation in the restoration funding provided by the Florida Petroleum Liability and Coverage Program. The following reasons were given: Failure to properly abandon underground storage tanks, pursuant to Section 17-61.050(3)(c), Florida Administrative Code. Failure to maintain inventory records, reconciliations, and significant loss/gain investigation as per Section 17-61.050(4)(c), Florida Administrative Code. Failure to install monitoring system and overfill protection by the dates set forth in Section 17-61.06(2)(c)2, Florida Administrative Code. Failure to properly monitor leak detection system, pursuant to Section 17-61.050(5)(c), Florida Administrative Code. The 10,000 gallon fuel oil tank and the 3,000 gallon waste oil tank present at the facility were abandoned in March 1990. The notice issued by the Department after its inspection in December 1989, gave the Applicant sixty days after receipt of the notice to properly abandon the tanks. The Applicant substantially complied with this requirement after the written notice was received. Although the Applicant failed to maintain the inventory records, reconciliations, and significant loss/gain investigations required by the Department rules, some of these violations had been corrected prior to the Department's inspection in December 1989. Correct inventory recordkeeping was discussed during the inspection, and the need to immediately implement the proper recordkeeping practices was emphasized in the post-inspection notice of violations. All of the recordkeeping violations were not cured until August 1990. The records kept by the Applicant during the noncompliance period from 1984 to August 1990, did not provide a substantially equivalent degree of information regarding possible leak detection or prohibited discharges as the required recordkeeping procedures. Two underground stationary storage tanks on the site have been part of the Applicant's petroleum storage system since 1970 and 1975, respectively. The monitoring wells and overfill protection for these tanks should have been in place by December 31, 1987. Neither monitoring system was installed until September 1989. The Applicant began the contract negotiations for installation in September 1988. The Applicant did not demonstrate that the facility contained an alternative procedure between December 31, 1987 and September 1989, that provided a substantially equivalent degree of protection for the lands, surface waters, or groundwaters of the state as the established requirement for monitoring wells and overfill protection. In December 1989, the Department's notice advised the Applicant that the monitoring wells should be sampled monthly for visual signs of petroleum contamination. Since April 1990, the Applicant has been completing the monthly sampling in the monitoring wells as part of its leak detection system, as required by the Department's rule regarding underground stationary tanks.
Recommendation Accordingly, it is RECOMMENDED: That the Department enter a Final Order denying Petitioner's application for restoration coverage in the Florida Petroleum Liability and Restoration Program at the Jacksonville location. DONE and ENTERED this 28 day of December, 1990, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this _28_ day of December, 1990. APPENDIX TO RECOMMENDED ORDER The proposed findings of fact submitted by Petitioner are addressed as follows: Rejected. Improper interpretation of law. As for the facts in the first sentence, they are accepted. See HO #8. Rejected. Irrelevant. See HO #9. Rejected. Contrary to fact. See HO #9 and #11. Rejected. Contract to fact. See HO #11. Rejected. Contrary to fact. See HO #12 and #13. Rejected. Contrary to fact. Improper shifting of duty ad legal responsibility. Rejected . Improper application of law. The Respondent's proposed findings of fact are addressed as follows: Accepted. Accepted. Accepted. Accepted. See HO #8. Accepted. See HO #8. Accepted. See HO #3. Accepted. See HO #3. Accepted. See HO #3. Accepted. See HO #5. Accepted. Accepted. See HO #4. Accepted. See HO #4. Accepted. Accepted. See HO #6. Accepted. See HO #4 and #6. Accepted. See HO #4 and #6. Accepted. Accepted. Accepted. See HO #4 and #9. Accepted. Accepted. See HO #4 and #9. Accepted. Accepted. See HO #9. Accepted. See HO #4 and #10. Accepted. Rejected. Contrary to fact. See HO #10. Accepted. Accepted. Accepted. See HO #10. Accepted. See HO #3 and #12. Accepted. Accepted. See HO #13. Accepted. Accepted. See HO #6. Accepted. See HO #4 and #6. Accepted. See HO #6. Accepted. Rejected. Not established by evidence. See HO #6. Accepted. Accepted. Accepted. Accepted. See HO #7. Accepted. Accepted. COPIES FURNISHED: William Chadeayne, Qualified Representative 8933 Western Way, Suite 16 Jacksonville, Florida 32256 Janet E. Bowman, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32399-2400 Dale H. Twachtmann, Secretary Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, Esquire General Counsel Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32399-2400
The Issue The issue for consideration in this matter is whether the School Board of Broward County properly awarded Bid 92-143T for the procurement of propane gas for the school system for three years.
Findings Of Fact In August, 1991, the School Board of Broward County issued ITB's to various potential suppliers to supply it with liquid propane gas, (LP gas), for the next three years, under ITB number 92-143T. The current supplier under the contract let in 1989 is the Petitioner herein, Synergy. Synergy was one of the potential suppliers to receive a copy of the Board's new ITB. Paragraph 12 of the Special Bid Conditions required any protest of the specifications or conditions of the ITB to be filed within 72 hours of its receipt. Paragraph 15 of the Special Conditions allowed prospective bidders to address questions concerning the ITB to the Board's purchasing department. That agency's activity was limited to referring the inquirer to bid provisions which they could read and interpret for themselves. No Board employee was authorized to interpret any portion of the ITB or to release any information regarding requirements other than was contained in the written bid document. That Special Condition also notified prospective bidders that any official interpretations of the bid documents or its requirements, if necessary, would be communicated to the bidders in writing. The ITB was mailed on August 19, 1991 and bid opening was noticed therein to be at 2:00 pm on October 2, 1991 at the Board's purchasing department. The ITB was mailed to Synergy's Hollywood, Florida office and was, from there sent to the head office in New York. Mr. Garey, the responsible individual in Synergy's marketing department believes he received it on or about August 25, 1991. The general and special conditions and specifications of this ITB were, for the most part and as pertinent here, identical to those set forth in the 1989 ITB except that the current bid calls for delivery of the gas to the Board at specified locations which was not required in the prior contract. Shortly after receiving the ITB, Joel Garey, a long time employee of Synergy, who has prepared thousands of bids for government procurements, because gas prices were widely fluctuating, began to collect data on the price of LP gas preparatory to formulating Synergy's bid. Shortly before the bid was due, based on the latest available price information, Mr. Garey prepared Synergy's bid for the signature of Jeffrey Vogel, Synergy's vice president. The first bid prepared by Mr. Garey contained an error on the bid summary sheets. When, on October 1, 1991, one day before the bid was due, he noted what to him was an inconsistency in the bid specifications which, at paragraph 13, called for the bidder to deliver "full 100# tanks [of LP gas]," and to price invoice tickets, "with the conversion rate of 22 gallons per cylinder shown." The Board also wanted the filling of several 40# tanks for which delivery tickets and invoices, "will be in gallons based on the standard of 4.24 pounds per gallon." The parties agree that the accepted weight of a gallon of liquid propane gas weighs 4.24 pounds. Extrapolating from that point, Mr. Garey reasoned that if the Board wanted its tanks "filled to capacity", the 100# tanks would take 23.5 gallons of LP gas, (100 divided by 4.24), and the 40# tanks would take 9.43 gallons, (40 divided by 4.24). As a result, and being somewhat confused, Mr. Garey telephonically contacted the Board's contact point, Mr. Toman, who referred him to Mr. Combs, another Board official. Mr. Combs, notwithstanding the weight of 4.24 lbs/gal for LP gas listed in the Board's specifications, would not accept that figure from Mr. Garey without independent proof. Mr. Combs gave Mr. Garey his fax number so the proof could be sent when available and, in the meantime, said to fill the tanks to capacity. When he hung up from talking with Mr. Combs, Mr. Garey called his local manager and determined that under the 1989 contract which Synergy had with the Board, it had been filling the Board's tanks to capacity. When he called Mr. Tomans back at 4:00 PM that same day, Garey was told that Tomans had not heard from Combs about the problem, but that Garey should submit his bid timely or be out. Tomans also wanted to know why the issue had not been raised during the existing contract. Mr. Garey had no answer to that question. Based on the information he then had, Mr. Garey changed Synergy's bid and submitted one based on full tanks rather than the 22 and 6 gallons, respectively, mentioned in the bid specifications. Coincidentally, the bid as submitted was still in error in that Item C of the bid specs misstated the price per gallon delivered and this error was reflected in Items D, E, and G, and, ultimately, the total. This error was corrected, however, and did not play in the Board's decision to reject the Petitioner's bid. In arriving at Petitioner's bid based upon the "totally full" basis, Mr. Garey computed using the 23.5 and 9.43 gallon capacity cost divided by the 22 and 6 gallon conversion figures dictated by the Board. Mr. Garey was subsequently advised that Synergy was not the successful bidder. He also determined, from a telephone conversation with Mr. Tomans on October 3, 1991, that had the Petitioner's bid price not been raised to accommodate the larger volume, it's bid price would have been lower than that submitted by the successful bidder, Peoples Gas. During that conversation, Mr. Tomans advised Mr. Garey that ordinarily a bidder had 72 hours from receipt of the ITB to protest the specifications, but since there was some merit to Petitioner's contentions of an inconsistency regarding volume, he, Tomans, felt there should be an exception. However, Special Condition 15 specifically cautions prospective bidders it could not rely on any information given orally by Respondent and must submit any questions as to the bid consistent with the terms of General Condition 7. Mr. Garey admits he was remiss in not reading the fine print of paragraph 7 of the ITB and the protest provisions but on the afternoon of October 1, 1991, when he discovered the discrepancy, he immediately called the school board. If at that time they had told him he was too late to protest the specifications, this would have satisfied him and he would not have filed an appeal or protest. Instead, he was told that due to the merit of his argument he could protest, and he did so. His letter of protest was accepted even though not timely and the matter was brought to a hearing before the school board which ruled against Synergy on grounds other than time. He contends that the executive summary prepared for the school bard misled it into rejecting his protest. Mr. Garey also asserts that the bids were so close, if the margin had been greater than the discrepancy in the number of gallons to go into the cylinders he would have accepted the loss. Here, however, the total discrepancy is accounted for by the 3,770 gallons difference out of over 300,000 gallons. Mr. Arthur Hanby is the Director of Purchasing for the Broward County School Board and is familiar with this procurement and Synergy's bid. The provision in the ITB which provides for questioning of specifications was designed to comply with the requirements of Florida Statutes and the school board's policy. It is put in to equalize the opportunity for all prospective bidders to protest on an equal basis. It has been used by others in the past and when invoked, the bid solicitation process has been suspended until resolution of the matter in question. Mr. Hanby was also employed by the school board when the prior contract for propane was let with essentially the same specifications as are in issue here. The conversion rate was changed this year to more accurately reflect the market place. Even then no challenge was filed to the bid specifications. No written inquiry was received as to how to interpret them either, and at no time since Synergy, the winner then, has had the contract has it shown any confusion at to what it was to provide. Penny Good, General Manager for Peoples Gas, and the individual who prepared that company's bid read the bid solicitation thoroughly before preparing her company's bid. She was also employed with Peoples Gas when the prior contract was bid but had nothing to do with the bid at that time. She claims to have had no confusion as to what the school board wanted on this solicitation. She asked no questions of the school board because it was clear to her and she was satisfied the board wanted 22 gallons in a 100 # tank and 6 gallons in a 40 # tank, less than a tank filled to capacity. As she understands the business, there is no such thing as a "legal limit" on a tank. Admitting that an empty 100# tank would hold 23.5 gallons, which, practically, would be the maximum amount it could hold, it is easy to put less than 22 gallons in a 100# tank and less than 6 gallons in a 40 # tank. Under the terms of the agreement, tanks would not be filled on site. Empty tanks would be picked up and replaced with other tanks filled with either 22 gallons or 6 gallons as pertinent. From a review of all the evidence, it is clear that Synergy and Peoples Gas were not bidding the same thing. The quantity's to be provided were different and this accounts for the difference in bid price.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered denying Petitioner's protest of the Board's award of Bid No. 92-143T to Peoples Gas Company, and denying Peoples Gas Company's request for an award of costs and attorney's fees. RECOMMENDED in Tallahassee, Florida this 24th day of January, 1992. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of January, 1992. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 91-7494-BID The following constitutes my specific rulings on all Proposed Findings of Fact submitted by the parties to this proceeding under Section 120.59(2), Florida Statutes. FOR THE PETITIONER: & 2. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. & 6. Accepted and incorporated herein. & 8. Accepted and incorporated herein. Accepted but more a comment on the state of the evidence. Accepted. Not a proper Finding of Fact. & 13. Accepted. & 15. Rejected as not Findings of Fact but more Conclusions of Law. Accepted but Synergy's bid is not responsive to the Bid specifications. Rejected. Not a Finding of Fact. FOR THE RESPONDENT AND INTERVENOR: 1. & 2. Accepted and incorporated herein. 3. & 4. Accepted and incorporated herein. 5. - 8. Accepted and incorporated herein. & 10. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. - 15. Accepted and incorporated herein. Not a Finding of Fact but a restatement of the evidence. Accepted. Accepted and incorporated herein. & 20. Not Findings of Fact pertinent to the issues herein. COPIES FURNISHED: Joel Garey Marketing Department Synergy Gas Corporation 23102 Sandalfoot Plaza Drive Boca Raton, Florida 33428 Joel Garey Synergy Gas Corporation 175 Price Parkway Farmingdale, N.Y. 11735 Edward J. Marko, Esquire Suite 201 Victoria Park Centre 1401 East Broward Blvd. Post Office Box 4369 Fort Lauderdale, Florida 33338 Arthur S. Hamby, Jr. Director Purchasing and Warehousing Broward County School Board 1320 Southwest Fourth Street Fort Lauderdale, Florida 33312-7535 James L. Brady Director Business Affairs Broward County School Board 1320 Southwest Fourth Street Fort Lauderdale, Florida 33312-7535 Peoples Gas Company 2700 Southwest Second Avenue Fort Lauderdale, Florida 33315 Jeffrey R. Sonn, Esquire Mishan, Sloto, Hoffman & Greenberg Suite 2350 Southeast Financial Center 200 South Biscayne Boulevard Miami, Florida 33131 Virgil L. Morgan, Superintendnet School Board of Broward County 1320 Southwest Fourth Street Fort Lauderdale, Florida 33312-7535 Sydney H. McKenzie, General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
The Issue The issue to be determined in this case is whether CJC Properties, Ltd. (CJC), is eligible for state restoration funding assistance under the Petroleum Contamination Participation Program or the Florida Petroleum Liability and Restoration Insurance Program for one or more discharges of gasoline at DEP Facility No. 378943938 (“the facility”).
Findings Of Fact The Facility CJC is a Florida Limited Partnership. It is the current owner of property located at 5691 U.S. Highway 27 North, in Tallahassee. Prior to CJC’s acquisition of the property, the property was owned by Carolyn J. Chapman, John W. Chapman, Jane Chapman Latina, and Carolyn Chapman Landrum (“the Chapmans”). The property was leased to various entities and operated as a gas station. The tanks and dispensers remained in service until November, 1995. The last operator of the facility was Lake Jackson 76, Inc. There were five underground petroleum storage tanks at the facility. Before 1991, one of the tanks at the facility was used for regular, leaded, gasoline. When leaded gasoline was phased out, the tank was used for unleaded gasoline. Site Assessments and Sampling Data On November 30, 1995, the Chapmans employed Petroleum Contractors, Inc., to remove the five storage tanks. During the tank removal, Environmental and Geotechnical Specialists, Inc. (“EGS”) performed an assessment to determine whether the facility was contaminated with petroleum or petroleum products. The Underground Storage Tank Removal Report prepared by EGS noted that all five tanks appeared to be intact. Soils in the tank pit wall and bottom were not discolored. No significant contamination was observed directly below the tanks. Soil from the tank pit was stockpiled on the site. EGS observed no significant signs of contamination of this soil. The soil stockpile was also screened with a Flame Ionization Detector Organic Vapor Analyzer (OVA). No organic vapors were detected. An OVA detects any organic vapor, but is used as a screening tool to find petroleum vapors. Department rules require that an OVA reading be performed both unfiltered and filtered. The filtered reading screens out everything but methane and is “subtracted” from the unfiltered reading to determine the presence of petroleum vapors. Twenty-four soil samples were taken from various depths at nine locations in the tank pit. These samples were tested using an OVA. Nine of the soil samples, taken from four locations, had corrected OVA readings indicative of petroleum contamination. EGS concluded that “soil contamination detected in the tank pit is likely the result of a leak in the piping” between the dispensers and the tanks. Soil samples were also taken from three borings in the vicinity of the dispenser island and OVA-tested. In boring D-2, organic vapors were detected from the surface to a depth of approximately seven feet. The OVA readings from D-2 declined with depth. EGS reported that “some contamination was detected beneath a dispenser; however, it does not ‘appear’ to significantly extend below six (6) feet.” EGS did not report both filtered and unfiltered OVA readings for the soil samples taken from the dispenser area, as it had done for soil samples taken from the tank pit and the stockpile. For the dispenser area soil samples, EGS reported a single OVA reading for each sample, without indicating whether the reading was “corrected” after filtering. For this reason, the Department contends that these data are unreliable. CJC points out that EGS stated in the text of its report that the soil samples were filtered. CJC also argues that, because the filtered OVA readings for soil samples taken from the tank pit area were not different from their unfiltered readings, the OVA readings for the soil samples from the dispenser area would not have changed after filtering. The preponderance of the evidence is that the contamination in the dispenser area was petroleum. Based on EGS’ findings during the tank removal in November 1995, Petroleum Contractors, Inc., filed a Discharge Reporting Form on December 1, 1995, stating that there had been a discharge of unleaded gasoline at the facility. In January 1996, the Chapmans applied to participate in FPLRIP based on the discharge reported on December 1, 1995. By order dated January 26, 1996, the Department determined that the reported discharge was eligible for state-funded remediation assistance under FPLRIP. In 1997, another consultant, Levine Fricke Recon (LFR) conducted a site assessment at the facility and submitted its Interim Site Assessment Report to the Department. As part of its own soil sampling at the site, LFR collected a “direct push” soil boring in the dispenser island area, near the place where EGS had reported organic vapors. The boring data showed no petroleum vapors until the interval 16-to-20 feet below ground surface. LFR also collected and analyzed groundwater samples from the site. It reported that a sample taken from beneath the former diesel dispenser contained lead. Because lead occurs naturally in soils, its presence in a water sample does not confirm that a discharge of leaded gasoline occurred. In 1998, LFR conducted a second assessment of the facility site. It installed and sampled four shallow monitoring wells, designated MW-1S through MW-4S, and three deep monitoring wells, designated MW-2D through MW-4D. Groundwater samples from MW-3S and MW-3D were analyzed for lead, ethylene dibromide (EDB), and 1,2-Dichloroethane. All three substances are usually detected in a groundwater sample contaminated with leaded gasoline. On August 28, 1998, LFR submitted its Interim Site Assessment II to the Department, which shows lead and EDB were found in a sample taken from MW-3S, but not 1,2-Dichloroethane. LFR did not conclude or express a suspicion in either of its two assessment reports that leaded gasoline had been discharged at the facility. The deadline for submitting a Discharge Reporting Form or written report of contamination was December 31, 1998. A site assessment report received by the Department before January 1, 1999, which contained evidence of a petroleum discharge, was accepted by the Department as a “report of contamination.” The petroleum discharge information received by the Department before January 1, 1999, consisted of the Underground Storage Tank Removal Report, the FPLRIP claim, the Interim Site Assessment Report, and the Interim Site Assessment Report II. Post Deadline Site Assessment Data After the statutory deadline, LFR submitted its Interim Site Assessment III. This report includes January 1999 groundwater sampling data from four monitoring wells which show the presence of low levels of EDB. When EDB is found in a groundwater sample, it is a common practice to re-sample the well from which the sample was taken. Of the wells that showed the presence of EDB, only MW- 10D was re-sampled, after January 1, 1999. There was no EDB present in the groundwater when MS-10D was re-sampled. In June 2000, as part of the remediation of the contamination at the facility, an area of contaminated soil was removed to a depth of 14 feet. The area of soil removed included the former dispenser area. In January 2003, the Department notified CJC that the $300,000 FPLRIP funding cap would soon be reached. In March 2003, CJC signed a Funding Cap Transition Agreement, acknowledging that “At no time will the DEP be obligated to pay for cleanup of this discharge any amount that exceeds the funding cap.” CJC further acknowledged that it “is responsible for completing the remediation of the discharge in accordance with Chapter 62-770, F.A.C.” In 2005, CJC re-sampled one of the monitoring wells for lead and EDB. Neither substance was present. The site is not currently being actively remediated. Periodic groundwater sampling indicates that concentrations of contaminants are dropping. No further active remediation has been proposed. The cost to complete remediation is a matter of speculation. The record evidence is insufficient to make a finding about future remediation costs. Eligibility Determinations On September 2, 2003, CJC submitted a PCPP Affidavit to the Department, seeking state funding under PCPP. On October 30, 2003, the Department denied CJC eligibility for PCPP funding on the basis that the contamination was covered under FPLRIP and, therefore, was excluded from funding under PCPP. The Department has never granted PCPP eligibility for the cleanup of a discharge previously being funded under FPLRIP. Apparently, in 2005, CJC hired Glenn R. MacGraw, an expert in the assessment of petroleum-contaminated sites, to review the EGS and LFR assessments. In a letter to CJC’s attorney dated August 19, 2005, MacGraw expressed the opinion that “at least 2 discharges have occurred on this site, one in the former tank area, and one in the former dispenser area.” MacGraw’s opinion that there had been a discharge of leaded gasoline was based on the detection of EDB and lead in the groundwater. He also thought the presence of methyl tetra-butyl ether (MTBE) in groundwater samples taken from the tank pit area showed a tank leak of unleaded gasoline. CJC requested FPLRIP funding for the other alleged discharges at the facility. On March 23, 2006, the Department issued a letter formally stating its disagreement that there were other reported discharges and denying eligibility for FPLRIP funding. On March 30, 2006, the Department issued an Amended Order of Ineligibility under PCPP. The amended order added a second ground for denial, that the reported discharge was not shown to have occurred before January 1, 1995. Whether There Was A Second Discharge Eligible for Funding CJC argues that the presence of lead and EDB in the groundwater sample taken from MW-3S shows that there was a discharge of leaded gasoline at the facility. However, LFR reported that the well screen for MW-3S had probably been damaged during installation, because a significant amount of filter sand was observed in the purge water. The Department contends, therefore, that the source of the lead detected in the groundwater sample from MW-3S could have been (naturally) in the soil that entered the well. The Department also discounts the detection of EDB in the groundwater sample because EDB is an ingredient of some pesticides and can show up in groundwater when pesticide has been applied to the overlying land. Furthermore, EDB was not detected in the groundwater sample taken from MW-3D, a deeper well located near MW-3S. MacGraw does not think the EDB came from a pesticide application, because the EDB contamination at the site occurs in an elongated “plume,” in the former dispenser area, whereas one would expect to see EDB distributed evenly over the site if the source was a pesticide application. MacGraw mapped the plume of EDB by using data obtained after the discharge reporting deadline. Michael J. Bland, a Department employee and expert in geology and petroleum site assessment, believes the data from the facility are insufficient to confirm the presence of EDB or its distribution. LFR reported in its Interim Site Assessment that no significant soil contamination was found near the dispenser island. Groundwater samples from MW-3D, a deep monitoring well near MW-S3, showed no EDB, lead, or 1,2-dichlorothane. Bland opined that, if the detection of EDB in the shallow well was reliable, EDB would have been detected in the deep well, too, because EDB is a “sinker.” EDB is persistent in groundwater, so when it is not detected when a well is re-sampled, reasonable doubt arises about the detection in the first sample. Of all the wells sampled in 1999 that showed EDB, only MW-10D was re-sampled in 2003. When the well was re-sampled, there was no EDB. CJC contends that EDB was not found in the re-sampling of MW-10D because of the soil removal in 2000, but the Department contends that the soil removal would not have affected the presence of EDB in MW-10D, because the well is significantly down-gradient of the area of soil removal. It was undisputed that the presence of 1,2- dichoroethane in MW-S3 was not reliably determined. There is insufficient evidence in the record to establish that the contamination reported in the dispenser area is the source of contamination which persists at the facility. The reported contamination only affected the top six feet of soil. The soil removal to a depth of 14 feet in that area in 2000 should have fully remediated the reported contamination. The data upon which CJC relies in claiming eligibility under FPLRIP or PCPP for a second discharge are, at best, incomplete and ambiguous. CJC failed to prove by a preponderance of the evidence that a discharge of leaded gasoline occurred. CJC also failed to prove that the reported contamination in the dispenser is associated with a discharge that still exists to be remediated with state assistance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Environmental Protection enter a final order determining that CJC is ineligible to participate in the Petroleum Cleanup Participation Program for the discharge reported to the Department on December 1, 1995, and that CJC has not demonstrated eligibility to participate in the Petroleum Cleanup Participation Program or the Florida Petroleum Liability and Restoration Program for any other discharges. DONE AND ENTERED this 9th day of July, 2008, in Tallahassee, Leon County, Florida. BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 2008.
The Issue Whether Petitioner's service station site known as Siesta Key Exxon Village, at 5201 Ocean Boulevard, Sarasota, Florida, is eligible for state administered cleanup pursuant to Section 376.3071(9), Florida Statutes.
Findings Of Fact Weeks Oil Company, Inc., owns and operates a service station, Siesta Key Exxon, located at 5201 Ocean Boulevard, Sarasota, Florida. On December 21, 1988, Petitioner applied, pursuant to the Early Detection Incentive Program (EDI), for state assistance due to a suspected discharge of gasoline at the facility. The application indicated that a manual test of a monitoring well, conducted on December 16, 1988, detected contamination. After free product was discovered in the monitoring wells in December, 1988, subsequent monitoring well reports for the months of January - May, 1989, indicated the presence of free petroleum product. The January, 1989, monitoring report indicates six inches of free product; the February, 1989, monitoring report indicates twelve inches of free product; the March, 1989, report failed to indicate the presence of free product; and both the April and May, 1989, monitoring reports indicate the presence of sixteen inches of free product. Purity Well Company, the monitoring well contractor retained by Weeks Oil, bailed free product out of the monitoring wells once a month during the period January through May, 1989. On May 23, 1989, Richard Steele of the Sarasota County Pollution Control Division conducted an Early Detection Incentive Program Inspection at Siesta Key Exxon, 5201 Ocean Boulevard, Sarasota, Florida, DER Facility #588521170. During the inspection, Mr. Steele examined the monitoring well reports for Siesta Key Exxon for the months of January through May, 1989. Evidence of contamination was indicated by each month's monitoring well report, and the amount of free product indicated by the monitoring well reports increased over time. During the May 22, 1989, inspection, Mr. Steele observed a minimum of two feet of free product in monitoring well number three. As part of the Early Detection Incentive Program inspection, Mr. Steele requested inventory records for Siesta Key Exxon, which records were provided on June 7, 1989. Inventory records for January, February, March and April, 1989, indicated a total shortage of 441 gallons of gasoline. Mr. Steele's inspection report of May 22, 1989, indicates that no initial remedial action other than the bailing of monitoring wells occurred subsequent to the December, 1988, EDI application. During the May 22, 1989, inspection, Mr. Steele was neither provided with any evidence of repairs to the petroleum storage system made for the purpose of acting upon monitoring well reports, nor did he visually observe any evidence of repair. By letter dated May 24, 1989, from Richard Steele to Weeks Oil Company, Mr. Weeks was informed of the presence of two feet of free product in monitoring well number three and specifically requested a tank tightness test. The May 24, 1987, letter requested Mr. Weeks to send the results of the tank tightness test to the Sarasota County Pollution Control Office or the Department of Environmental Regulation district office. Mr. Weeks discussed with Steele the fact that the contaminants appeared to come from tanks no longer in service, which tanks were scheduled for relining. Mr. Weeks did not consider it practicable to test tanks scheduled for relining and thought Steele agreed that he could delay the testing until the tanks were refitted. Mr. Steele never made such a commitment, and the tank test was never conducted. On October 20, 1989, the tanks at Siesta Key Exxon were excavated and fiberglass coated. The August 22, 1989 ineligibility determination cites as the reason for denial, the failure of Weeks Oil to conduct a tank tightness test as requested by Sarasota County or otherwise immediately investigate and repair the contamination source as required by Chapter 17-61, Florida Administrative Code, The ineligibility letter concludes that failure to immediately investigate and repair the contamination source as required by Chapter 17-61, Florida Administrative Code, shall be construed as gross negligence in the maintenance of a petroleum storage system, which precludes participation in the Early Detection Incentive Program. A tank tightness test should be performed by the owner or operator of a petroleum storage system where there are any discrepancies in inventory records or monthly monitoring system checks. Rule 17-61.050(4)(c) 3., Florida Administrative Code, requires upon discovery of an inventory discrepancy that investigation of the system "shall not stop until the source of the discrepancy has been found, the tank has been tested, repaired, or replaced, or the entire procedure has been completed." Pursuant to Rule 17-61.050(6), Florida Administrative Code, the owner or operator of a storage system shall test the entire storage system whenever the Department has ordered that such a test is necessary to protect the lands, ground waters, or surface waters of the state. Specifically, the Department may order a tank test where a discharge detection device or monitoring well indicates that pollutant has been or is being discharged. Given the inventory record discrepancy and the amount of free product continually observed in the monitoring wells at Siesta Key Exxon, it was appropriate for Mr. Steele to request a tank tightness test. The bailing of a contaminated monitoring well is not an appropriate method of determining the source of petroleum contamination. The failure of Weeks Oil Company, Inc., to timely conduct a tank test as requested by Sarasota County, acting on behalf of the Department, creates a risk of or the potential for greater damage to the environment because a continual unchecked discharge leads to the release of more petroleum product into the environment.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Environmental Regulation enter a Final Order denying the application of Petitioner to participate in the Early Detection Incentive Program. ENTERED this 3rd day of May, 1990, in Tallahassee, Florida. K. N. AYERS, Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of May, 1990. COPIES FURNISHED: Janet D. Bowman, Esquire Department of Environmental Regulation Twin Towers Office Building 2400 Blair Stone Road Tallahassee, FL 32399-2400 James B. Weeks, Jr. Weeks Oil Company Post Office Box 100 Sarasota, FL 34230 Dale H. Twachtmann Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue The issue in this case is whether Petitioner's site, Circle K General, Inc., Store #2375, located at U.S. #1 and Pennekamp Park, is eligible for restoration pursuant to the Florida Petroleum Liability and Restoration Program (FPLIRP) set forth in Section 376.3072, Florida Statutes.
Findings Of Fact Petitioner, Circle K General, Inc., Store #2375 owns and operates a petroleum storage site located at U.S. #1 and John Pennekamp Park, Key Largo, Florida. The DER Facility ID Number for the site is 448624728. Circle K operates at the site three 10,000 gallon fiberglass tanks which contain gasoline. The tanks currently operated at the site were installed in 1987. Four monitoring wells for the site were installed at the same time as the Circle K tanks were installed in 1987. Monthly monitoring well reports were completed each month beginning on December 12, 1987, and ending on July 30, 1989, by Professional Services Industries on behalf of Circle K. Steve Belin is the individual at Circle K responsible for reviewing or supervising the review of the monitoring well reports for Store #2375. The November 26, 1988, monthly monitoring well report indicated the presence of petroleum odor in all four of the monitoring wells at the site. After receipt of the November 26, 1988, monthly monitoring report, neither Steve Belin nor any employee of Circle K filed a Discharge Notification Form with the Department. After receipt of the November 26, 1988, monthly monitoring report, neither Steve Belin nor any employee of Circle K undertook steps to investigate the source or cause of the petroleum odor. The monthly monitoring report dated March 20, 1989, indicates the presence of a petroleum odor in one of the four monitoring wells. After receipt of the March 20, 1989, monitoring well report, neither Steve Belin nor any employee of Circle K filed a Discharge Notification Form with the Department. After receipt of the March 20, 1989, monthly monitoring report, neither Steve Belin nor any employee of Circle K undertook steps to investigate the source or cause of the petroleum odor. The July 30, 1989, monthly monitoring well report indicates the presence of petroleum product in all four monitoring wells. The July 30, 1989, monthly monitoring well report was not received by Steve Belin until September, 1989. On July 31 and August 1, 1989, Combustion Engineering installed a set of four new compliance monitoring wells. Circle K contracted for the installation of new monitoring wells because the four existing monitoring wells were only 15 feet deep and were dry. By letter dated August 17, 1989, Combustion Engineering notified Steve Belin that a petroleum odor was detected in the soils retrieved while drilling one of the new monitoring wells and that a petroleum odor was also detected in one of the old monitoring wells. On August 21, 1989, Steve Belin filed a Discharge Notification Form with the Department for Circle K Store #2375. After the discharge notification was filed on August 21, 1989, none of the tanks were taken out of service. After the filing of the August 21, 1989 Discharge Notification Form, Circle K inspected the inventory records for the site beginning in October, 1988, through September, 1989, and detected no significant loss of petroleum product. On October 6, 1989, an inspection of Circle K Store #2375 was conducted by Leslie Rueth of the South District Office of the Department of Environmental Regulation. At the time of the October 6, 1989, DER inspection, free product was noted in two of the four new monitoring wells, and all of the wells contained a petroleum odor. On October 19, 1989, the South District Office of Department of Environmental Regulation notified Steve Belin of the October 6, 1989, inspection results and requested (1) that a tank and line tightness test be performed to determine if there was a leak in the petroleum storage system and (2), if free product was present, that an initial remedial action (IRA) be implemented as defined in F.A.C. Rule 17-70.006. An Initial Remedial Action consists of the removal of free product through the bailing or pumping of free product off the water table and may include the removal of excessively contaminated soil. On October 30, 1989, Steve Belin submitted tank tightness test results for the three 10,000 gallon tanks located at Circle K Store #2375. All three tanks passed the tank and line tests. By letter of October 17, 1989, Steve Belin requested ATEC Associates, Inc. to have all of the monitoring wells of Store #2375 bailed of free product once a week for one month. The free product present at Store #2375 resulted from old tanks and piping installed by Circle K's predecessor, U Under Florida Administrative Code Rule 17 presence of a layer or odor, or the positive report of a laboratory that the monitoring well sample contains pollutant, shall be treated as a discharge. A properly installed monitoring well should have at least one foot of water in the well in order to be able to take a water sample from the well. If a foot or less of water is present in a monitoring well, a vapor monitoring device should be used to test the wells. From December, 1987, until July, 1989, the Circle K monitoring wells were usually dry. Under Florida Administrative Code Rule 17 wells must be constructed such that the bottom of the casing is at least five feet below the water level at the time of drilling but no deeper than 25 feet. The monitoring wells constructed at Circle K Store #2375 did not meet the construction specifications set forth in Chapter 17-61, Florida Administrative Code. Florida Administrative Code Rule 17-61.050(b)(6) requires discharges to be reported to the Department within three working days of discovery. DER was not notified of a discharge subsequent to either the November 26, 1988, or the March 20, 1989, monitoring well reports, nor did Circle K contain the leak.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Regulation enter a Final Order denying the Petitioner's application for site restoration pursuant to the Florida Petroleum Liability and Insurance Program (FPLIRP). DONE and ENTERED this 27th day of August, 1990, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-2065 To comply with the requirements of Section 120.59(2), Florida Statutes (1989), the following rulings are made on the Respondent's proposed findings of fact (the Petitioner not having filed any): 1.-27. Accepted and incorporated. Cumulative. Accepted; subordinate to facts found. 30.-33. Accepted but subordinate and unnecessary. 34.-38. Accepted and incorporated. 39. Cumulative. 40.-41. Accepted and incorporated. 42. Accepted but subordinate to facts found and unnecessary. 43.-44. Accepted but subordinate and unnecessary. Conclusion of law. Accepted but unnecessary. 47.-48. Accepted but subordinate and unnecessary. 49. Cumulative and unnecessary. COPIES FURNISHED: Steve Belin The Circle K Corporation Regional Environmental Director 500 South Faulkenburg Road Tampa, FL 33619 Janet E. Bowman, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Dale H. Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue The issues to be determined are whether: (1) a violation of section 556.107(1)(a), Florida Statutes, occurred; (2) relating to a “high-priority subsurface installation” under section 556.116(1)(b); (3) which proximately caused an “incident” under section 556.116(1)(c); (4) for which a fine may be imposed against the violator in an amount not to exceed $50,000.00.
Findings Of Fact Stipulated Facts Sunshine 811 is the free-access notification system established under the Underground Facility Damage Prevention and Safety Act (the Act). See §§ 556.101 – 556.116, Fla. Stat. (2017). Section 556.105(1)(a) requires an excavator before beginning any excavation or demolition to provide Sunshine 811 with certain information that will allow a utility company to mark the location of underground facilities in the area of the proposed excavation. On January 8, 2018, Francisco Plascencia, an employee and agent of Medalist, was operating a trackhoe excavator on the property located at or around 1380 SE Cove Road, Stuart, Florida. While Medalist was digging to uproot a tree, the trackhoe excavator ruptured a six-inch underground gas- distribution main owned and operated by Peoples Gas. Before beginning the excavation, Medalist did not “call 811” or otherwise notify Sunshine 811 about the excavation. Accordingly, the excavation site did not contain “locate marks” identifying on the surface of the earth the location of the six-inch underground gas main. The Parties Medalist is owned by Jeremy LeMaster who is a licensed building contractor. Since 2007, Medalist has built over 500 homes in Martin County. Peoples Gas is the utility company that owns and operates the underground gas-distribution main that is the subject of this proceeding. Peoples Gas is a member operator of Sunshine 811 and submitted the High Priority Subsurface Installation Incident Report and Commitment regarding the incident at 1380 SE Cove Road, Stuart, Florida. The Incident Joshua Turpie is the senior utility technician with Peoples Gas who performs line locates when Peoples Gas gets tickets from Sunshine 811. Mr. Turpie testified that if a contractor or homeowner calls Sunshine 811 before digging, it comes to him and he has a 48-hour window in which to mark the location of any underground gas line. This is done by placing flags, painting the ground and taking pictures. On the morning of January 8, 2018, Mr. Turpie responded to a location on Cove Road at the request of his supervisor, Scott Tinney. Mr. Tinney informed him that a drastic drop in gas pressure was occurring, and it seemed to be in the area of Mr. Turpie’s location. At the location, Mr. Turpie found fire trucks and police cars, and saw that a gas-distribution main was ruptured. After assessing the situation and further discussing it with his supervisor, who was now on-site, he assisted Peoples Gas contractor with the “make safe” operation. This entailed fully exposing the gas main and using a “squeeze off tool” to clamp the main at a location upstream of the rupture to stop the flow of gas. Mr. Turpie arrived on scene at 9:40 a.m. and the gas flow was stopped at 11:15 a.m. At the scene, Mr. Turpie also checked on his computer and saw that this particular gas- distribution main was designated as a high priority main because “it feeds basically everything in Stuart.” An outage at this type of main would have a high customer impact. This particular gas main serviced 50 percent residential and 50 percent commercial customers. For excavation work in the area of a high-priority gas main, Mr. Turpie would not only have flagged and marked the location, but also would have called the excavator and explained the high-priority nature of the gas main. In addition, a notification letter would also be sent to the excavator regarding the high-priority gas main and providing the contact information of relevant Peoples Gas employees. Peoples Gas would also have the opportunity to determine if it needed to place an employee on-site during excavation. A contractor for Peoples Gas repaired the gas main. Peoples Gas employees also “locked off” every customer’s meter. Four hundred and nine individual meters had to be physically locked off before restoration efforts could begin. Restoration involved re-introducing gas to the system, purging the lines of air, and physically turning on each meter, checking gas appliances, and checking for leaks. This process was labor intensive and involved deploying 36 Peoples Gas employees from around the state and two contractors from Miami. Peoples Gas set up a command center to which the employees from around the state reported. There, the teams were provided with outage lists of the metered customers in order to conduct the process of restoring service. Service restoration continued through the evening of January 9. On the morning of January 10, the deployed employees were sent back home and the local teams completed restoring service to residences. Community Impact At the location of the gas main rupture, first responders (i.e., fire rescue and police) set up a command center, redirected traffic away from that part of Cove Road, and evacuated nearby residences and a nearby school. The customers without service during the outage included two hospitals, four nursing homes, a fire station, schools, a correctional facility, a church, businesses, and residences. Property Damage and Service-Restoration Costs Ruth Weintraub is the Peoples Gas supervisor for Damage Prevention & Public Awareness. Ms. Weintraub testified that she did an accounting of the expenses incurred as a result of the gas line rupture. Ms. Weintraub calculated the amount based on: (i) lost gas in the line; (ii) labor; (iii) equipment; (iv) lodging and meals; (v) charges from the third•party contractors; and (vi) administrative costs. The amount was no less than $127,000.00, which would increase as Peoples Gas finalized its accounting. Medalist’s Actions Mr. LeMaster testified that he was alerted to the incident by a text from a field supervisor who had called 911 to report the event. Mr. LeMaster arrived at the scene within approximately 30 minutes after getting the text, and remained at the site until there was complete clearance. Mr. LeMaster testified that his employees are trained in Sunshine 811 procedures. “[T]hey don’t dig without having locates.” He surmised that Mr. Plascencia thought he was doing a good thing by using the trackhoe to remove a tree which was in the center of a staked driveway at the job site. Mr. Plascencia was not instructed to remove the tree. In fact, the only work to be done that day was the placement of silt fences. Prior to this incident, Medalist had never hit any underground lines and always contacted Sunshine 811 before digging. Mr. LeMaster testified that Mr. Plascencia was immediately terminated for not following company policy and procedures. Sunshine 811 Lance Horton is the manager for Pipeline Safety & Occupational Services at Peoples Gas. Mr. Horton also served on the Board of Directors of Sunshine 811. He explained that the Sunshine 811 call and locate procedure is “a damage prevention program in the effort . . . to protect underground facilities, not just gas but also electric, communication facilities, water, [and] sewer.” It is important to prevent “incidents such as this,” which put utility employees, first responders, and members of the public in peril.
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint issued against him and, if so, what disciplinary action should be taken against him.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent is now, and has been at all times material to the instant matter, registered as a septic tank contractor with the Department. In July 2002, Respondent entered into a contract with Pro Gold Investments Corp. (Pro Gold), whose president and sole owner is Emerico Kemeny Fuller. The contract provided that Respondent would install a "new septic system" for Pro Gold at 453 Blue Road in Coral Gables, Florida (Blue Road Property) for $4,600.00, a job that should have taken only a "few days" to complete. Pro Gold gave Respondent a "job deposit" of $2,300.00. In July 2003, Pro Gold, by Warranty Deed, conveyed title to the Blue Road Property to Maurits de Blank's company, Mortgage Lending Company LLC (MLC), and it also executed a Bill of Sale, Absolute and Assignments of Contracts, which read as follows: PRO GOLD INVESTMENTS CORP, as Seller, in consideration of Ten Dollars ($10.00) and other valuable consideration paid to it by MORTGAGE LENDING COMPANY, LLC, as Buyer, the receipt of which is acknowledged hereby sells, assigns, grants, transfers, and conveys to Buyer all of Seller's right, title, and interest in the following described goods, contracts and personal property: SEE ATTACHED EXHIBIT "A- PROPERTY" AND EXHIBIT "B- CONTRACTS ASSIGNED" Seller covenants and agrees that it is the lawful owner of goods, contracts, rights or interests transferred hereby; that they are free from all encumbrances, except for outstanding amounts due, if any, to those parties set forth on Exhibit "B," and that it has the right to sell, transfer and assign the goods, properties and rights set forth in the attached Exhibit "A," and the right to transfer and assign the contracts, rights or interests shown on Exhibit "B," and will warrant and defend same against the lawful claims and demands or all persons. The "attached Exhibit 'A- Property'" read, in pertinent part, as follows: (Regarding transfer of 453 Blue Road, Coral Gables, Florida, "the Real Property") (Mortgage currently in favor of Mortgage Lending Company, LLC "the Mortgage") All property rights of any kind whatsoever, whether in property that is real, fixed, personal, mixed or otherwise and whether in property that is tangible or intangible, including, without limitation, all property rights in all property of any kind whatsoever that is owned or hereafter acquired by the Company and that is associated with, appurtenant to or used in the operation of the Real Property or is located on, at or upon the Real Property and is associated with or used in connection with or in operation of any business activity conducted on, at or upon the Real Property, and including, without limitation, the following: * * * All right, title, and interest in those certain contracts and agreements [set] forth in the attached Exhibit "B," which are hereby transferred and assigned to Mortgage Lending Company LLC. Among the "contracts and agreements [set] forth in the attached Exhibit 'B,'" was the aforementioned July 2002, contract wherein Respondent agreed to install a "new septic system" for Pro Gold on the Blue Road Property (Septic System Contract). This contract was still executory. Respondent had not done any work on the site in the year that had passed since the contract had been signed. In the beginning of August 2003, Mr. de Blank met with Respondent and advised him that MLC was the new owner of the Blue Road Property and that MLC had also received an assignment of the Septic System Contract from Pro Gold. In response to this advisement, Respondent stated "he did not do assignments." Following this meeting, Mr. de Blank sent Respondent documentation supporting the assertions he had made regarding MLC's ownership of the Blue Road Property and its having been assigned the Septic System Contract. Mr. de Blank then attempted, unsuccessfully, to make contact with Respondent by telephone. He "left messages," but his telephone calls were not returned. These efforts to telephonically communicate with Respondent having failed, Mr. de Blank "decided that it may make some sense to start a letter writing program." As part of that "program," on September 8, 2003, Mr. de Blank sent Respondent the following letter: Re: 453 Blue Road, Coral Gables As background, and in chronological order: Pro Gold Investments purchased the above cited property and obtained a construction loan from our firm. One of the conditions was that all construction contracts would be assignable to our firm in the event of default. Pro Gold Investments entered into contract with your firm to install a new septic tank and drainfield at 453 Blue Road. Pro Gold Investments defaults and forfeits title in lieu of foreclosure. The deed was recorded on August 4, 2003, at Bk/Pg: 21484/4283. Not recorded but attached for your reference is an assignment of contracts to include the contract Pro Gold Investments entered into with your firm. See further attachment. The original can be inspected in my office. At this point, I request you proceed with the work as soon as practical and under identical conditions as originally agreed with Pro Gold Investments. Please call me at . . . to confirm a start date. Mr. de Blank did not receive any response to his letter. He finally was able, however, to reach Respondent on the telephone. During this telephone conversation, Mr. de Blank made arrangements to meet Respondent at the Blue Road Property to discuss Respondent's doing the work Respondent had agreed to do in the Septic System Contract. This meeting between Mr. de Blank and Respondent took place on September 11, 2003. During the meeting, Mr. de Blank went over with Respondent "what the job [was] going to be." Although Respondent indicated that he was "going to put in th[e] septic tank" per the Septic System Contract, Mr. de Blank had his doubts that Respondent would be true to his word. Following the meeting, Mr. de Blank sent Respondent the following letter: Re: 453 Blue Road, Coral Gables We met today to discuss the above referenced job. My understanding is: You will start the job no later than the first week of October and will complete the job no later th[a]n the last week of October. I will obtain a copy of the approved permit. You indicated you will not need a survey.[1] Should you change you[r] mind, you can always refer to a survey I keep on site. You will have your insurance agent mail to my address a certificate of insurance. Though not discussed: I would like a partial release of payments made to date for the job. See further the attachment. Assuming you concur, then please send a signed and notarized copy to Maurits de Blank, Mortgage Lending Company, Post Office Box 430336, Miami, Florida 33143. Note that I prefer for various legal reasons that you use the release form as provided. Once the job has been started, I would like a list of firms supplying materials to the job. Notwithstanding that he had promised Mr. de Blank that he would "start the job no later than the first week of October," by the middle of October Respondent had yet to even "pull a septic tank construction permit from the City of Coral Gables" (that was needed before any on-site work could begin).2 In an attempt to find out from Respondent what was the cause of the delay, Mr. de Blank started a "calling campaign," but Respondent neither answered the telephone when Mr. de Blank called nor returned Mr. de Blank's calls. On October 19, 2003, Mr. de Blank sent the following letter to Respondent (by certified United States Mail, return receipt requested): Re: 453 Blue Road, Coral Gables I need a firm commitment when you will start and finish septic tank at above address. If you cannot perform the work, then I will need a refund of the deposit given to your firm. Please call to discuss. The end of the month was fast approaching, and Respondent had neither contacted Mr. de Blank nor begun the Septic System Contract on-site work. After paying a visit to Coral Gables City Hall and learning that Respondent had still not even "pull[ed] a septic tank construction permit from the City of Coral Gables," Mr. De Blank found another septic tank contractor, Westland Septic Tank Corp., to do the installation work for MLC that Respondent was contractually obligated to perform. MLC paid Westland $4,400.00 to do the work. Westland completed the job some time prior to November 4, 2003. The work passed all of the necessary inspections. Upon learning that MLC had contracted with Westland, Respondent sent Mr. de Blank a letter complaining that Mr. de Blank had not given Respondent an adequate opportunity to meet his obligations under the Septic System Contract. In the letter, Respondent offered to return only $500.00 of the $2,300 down payment he had received from Pro Gold. Mr. de Blank subsequently informed Respondent that this was not satisfactory and that he wanted the "full deposit back." He added that if he did not get it, he would "go to court." Not having received any portion of the "deposit back," Mr. de Blank, acting on behalf of MLC, in mid-November 2003, filed suit against Respondent in Miami-Dade County Court. On May 14, 2004, a Final Judgment was entered in Miami-Dade County Court Case No. 0313813 in favor of MLC and against Respondent "in the amount of $1,675.00 plus court costs in the amount of $121.00." As of the date of the final hearing in this case, Respondent had not made any payments to MLC. In view of the foregoing, it is found that Respondent abandoned for 30 consecutive days, without any apparent good cause, a project in which he was under contractual obligation to complete; and his failure to go forward with the project, combined with his failure to return any of the deposit he had received, caused monetary harm to a party to whom he was contractually obligated.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby: RECOMMENDED that the Department issue a final order finding Respondent guilty of the misconduct alleged in the Administrative Complaint and disciplining him therefor by fining him $500.00 and suspending his registration for 90 days. DONE AND ENTERED this 4th day of February, 2005, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 2005.
The Issue The issue in this case is whether Petitioner's Class "D" Watchman, Guard or Patrolman's License and Class "G" statewide gun permit should be revoked based upon the allegations contained in the Administrative Complaint.
Findings Of Fact At all times material hereto, Respondent has been the holder of license numbers Dal-06l98 and GOO-25l67 issued by the Division of Licensing, Department of State. During the summer of 1988, Respondent was employed by Wells Fargo as a security guard. He had been working for Wells Fargo for approximately four years. Part of his duties included serving as a "messenger guard" on armored trucks. On June 10, 1988, Respondent was serving as a "messenger guard" on a Wells Fargo armored truck in Dade County, Florida. In that role, he was required to deliver and pick up money from various customers. Carlos Diaz was the driver of the truck that day. Respondent had been assigned to this route for approximately one year and he was more familiar with the route than Carlos Diaz was. During a stop at a Western Union Check Cashing Service, Respondent was robbed of approximately two hundred thousand dollars. The robbery took place as Respondent exited the - truck. A car approached him and the occupant pulled a gun on Respondent and forced him to turn over the money. There are indications that there was some internal complicity at Wells Fargo with the robbery. On the day of the incident, the keys to the armored truck typically used for this route were not in the truck where they were usually kept. In addition, the spare key that was supposed to be kept in the office could not be located. As a result, Respondent and his driver, Diaz, were required to take an older truck which did not have a radio. Therefore, they were not in contact with the police or the Wells Fargo office at the time the robbery took place. While Wells Fargo has a fleet of approximately thirty trucks, all but two of them have radios. The truck used on the day of the robbery was one of the two without a radio and was the only truck available for use as a substitute. Several of the usual procedures required by Wells Fargo for deliveries were not followed at the stop where the robbery occurred. Wells Fargo procedures require the trucks to be parked so that the door to the cargo area opens towards the building to which deliveries are made and away from the street and traffic. This procedure was not followed and Respondent, as the messenger guard, was required to exit the truck into the parking lot on the side of the truck oppositite the delivery point entrance. In addition, Wells Fargo policies require a guard to pull his gun from the holster when exiting the truck with money. In this case, the evidence established that the Respondent's gun was either in his holster or in his waistband when the robbery took place. Subsequent to the robbery, the driver of the armored truck, Carlos Diaz, confessed to being a conspirator in the robbery. He also implicated Respondent. Diaz had initially denied any involvement in the robbery. However, he subsequently signed a statement confessing his role and accusing Respondent of coordinating the crime. Diaz was apparently never arrested for his role in the robbery. However, as noted below, no evidence was presented to explain why Diaz was not charged. Carlos Diaz did not testify at the hearing. Several sworn statements given by Diaz and a deposition of him were introduced into evidence. As noted above, Diaz originally denied any involvement with the robbery. However, he subsequently claimed that Respondent approached him about participating in the crime. Diaz said that he was instructed by Respondent to provide a misleading description of the getaway car and otherwise deny any knowledge of the event. In return, he was to receive a portion of the proceeds of the robbery. Diaz originally informed investigators that the robbers were driving a dark, late- model sedan with dark, tinted windows. Later, after he admitted his involvement, he told investigators that the robbers were driving a light colored, older car. This later description is consistent with the description of the getaway car provided by at least one other eyewitness. Respondent advised the investigators that the robbers were driving a relatively new, dark colored car. This description was consistent with the initial description provided by Diaz, but inconsistent with Diaz' later description provided after he confessed and the descsription provided by another eyewitness to the incident. One uninvolved eyewitness who observed the robbery from a distance of approximately 200 feet confirmed that the getaway vehicle was a lighter colored vehicle that was several years old. The witness is director of security at a local community college who is trained to be observant. His testimony is credited. The witness also commented on the rather casual nature in which the money was transferred to the getaway vehicle. At the time, he did not realize that a robbery had taken place. The F.B.I. agent who interviewed Respondent and attempted to obtain a description of the suspect noted that the Respondent provided only a general description of the alleged perpetrator. This F.B.I. agent did not feel comfortable with the composite that was produced as a result of his discussions with Respondent. Respondent was arrested on charges of conspiracy and grand theft. On January 22, 1990, Respondent entered into a plea agreement whereby he entered a plea of nolo contendere to the charges, adjudication was withheld and he was placed on probation for a period of eighteen months. While Respondent suggests that Diaz implicated him in the crime in order to obtain favorable treatment, no competent evidence was presented to establish that Diaz had an agreement with the police or state attorney. The evidence did not present sufficient explanation as to why Diaz would unjustifiably implicate Respondent.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner enter a Final Order revoking Respondent's Class "D" Security Guard license and Class "G" gun permit. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 1st day of October, 1990. J. STEPHEN MENTON 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 1st day of October, 1990. APPENDIX TO RECOMMENDED ORDER CASE NO. 90-1862 The Respondent has submitted a Proposed Recommended Order. The following constitutes my rulings on the proposed findings of fact submitted by the Respondent. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. Adopted in substance in Findings of Fact 3 and 15. Adopted in relevant part in Findings of Fact 12. Rejected as irrelevant. A related subject is addressed in Finding of Fact 9. The first two sentences are adopted in substance in Findings of Fact 9. The third sentence is rejected as constituting argument rather than a finding of fact. Adopted in relevant part in Findings of Fact 15. Adopted in substance in Findings of Fact Adopted in substance in Findings of Fact 6 and 7. Adopted in substance in Findings of Fact Adopted in relevant part in Findings of Fact 3. Rejected as hearsay that was not corroborated by competent substantial evidence. The only testimony on this issue was the deposition testimony of Carlos Diaz. Rejected as not established by competent substantial evidence. See ruling on proposed Finding of Fact 10 above. Rejected as not established by competent substantial evidence. The only specific evidence of conversations between Respondent and Carlos Diaz is the uncorroborated deposition testimony of Carlos Diaz. Rejected as irrelevant. 14.-17. Rejected as not established by competent substantial evidence. See ruling on proposed Finding of Fact 10 above. Adopted in relevant part in Findings of Fact 13. The first sentence is adopted in relevant part in Findings of Fact 10. The remainder is rejected as hearsay that it was not corroborated by competent substantial evidence. Adopted in substance in Findings of Fact 12. Rejected as irrelevant. Rejected as not established by competent substantial evidence. The only evidence of conversations between Respondent and Carlos Diaz is the uncorroborated deposition testimony of Carlos Diaz. Rejected as not established by competent substantial evidence. COPIES FURNISHED: Anthony J. Scremin, Esquire 37 N.E. 26th Street Miami, Florida 33137 Ann Cowles-Fewox, Esquire Henry Cawthon, Esquire Department of State, Division of Licensing The Capitol, MS #4 Tallahassee, Florida Honorable Jim Smith Secretary of State The Capitol 32399-0250 Tallahassee, Florida 32399-0250 Ken Rouse General Counsel Department of State The Capitol, LL-10 Tallahassee, Florida 32399-0250
