Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made. At all pertinent times, Respondent, Eileen Jenzano, was a licensed cosmetologist in the State of Florida having been issued License No. CL0158955 in accordance with Chapter 477, Florida Statutes. At all pertinent times, Respondent was employed at Today's Hair and Nails, a cosmetology salon located at 3936 West Hillsboro Boulevard, Deerfield Beach, Florida (the "Salon"). A Department of Professional Regulation inspector visited the Salon on July 27, 1990. During that visit he noticed certain problems which he discussed with the Salon's manager. Among the items discussed were the ventilation in the Salon and certain sanitary problems in the Salon. The evidence was inconclusive as to the specific sanitary problems that were found during that inspection. The investigator indicated that he would return to follow-up on those matters at a later date. The Department's inspector returned to the Salon on August 6, 1990. Respondent was not working on that day. During this second visit, the Department's investigator noted that many of the problems discussed during the first visit had been corrected. For example, the ventilation had been improved and wet sanitizers were being utilized. However, some of the work stations, including Respondent's work station, were not clean. The countertop at Respondent's work station was cluttered and dirty and there were brushes with hair still in them. In addition, the drawer at Respondent's work station was not dry sanitized. Respondent argues that, since she was not working on the day of the second inspection, she should not be charged with any sanitary violations on that day. Respondent contends that she would have cleaned up her work station and sanitized all equipment before beginning work on customers the next day when she returned. However, no adequate explanation was given for the uncleanliness of her work station over the weekend. There is no evidence that any unsanitized equipment was used by Respondent on customers. The evidence does not clearly and convincingly support a conclusion that Respondent was not utilizing proper sanitation procedures before the combs and brushes were used on a customer. Without evidence of such use, Respondent cannot be guilty of a violation of the Board's rule on the provision of wet sanitizers and the sanitation of combs or brushes before their use. However, the evidence did establish that Respondent did not cleanse, sanitize and store her implements in a clean closed cabinet until used as required by the Board's Rule.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board enter a final order reprimanding Respondent for violation of Chapter 477, Florida Statutes and imposing a $50 fine. RECOMMENDED in Tallahassee, Leon County, Florida, this 10th day of July, 1991. 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 10th day of July, 1991. COPIES FURNISHED: Mark E. Harris Qualified Representative Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Eileen Jenanzo 1630 SE 5th Court Deerfield Beach, Florida 33441 Eileen Jenanzo c/o Today's Hair & Nails 3936 West Hillsboro Boulevard Deerfield Beach, Florida 33442 Myrtle Aase Executive Director Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
The Issue The issue presented is whether the Respondent is guilty of the allegations contained in the Administrative Complaint and therefore, in violation of Sections 489.127(1)(d) and 489.129(1)(j), Florida Statutes. Both parties submitted posthearing findings of fact, which were read and considered. Those findings not incorporated herein are found to be subordinate, cumulative, immaterial, unnecessary, or not supported by the evidence.
Findings Of Fact The Respondent, Byron K. Godwin, Jr., is a certified plumbing contractor and a certified air conditioning contractor, having been issued license numbers CF C019153 and CA C020205. On July 6, 1978, the County Court Civil Division of Hillsborough County, Florida, entered a final judgment for Gorman Company of Tampa Inc., against the Respondent and Robert ,L. Hatfield in the amount of $2,252.36, including costs. On September 25, 1978, the Circuit Court, of the Tenth Judicial Circuit of Polk County, Florida, entered a final judgment for Peninsular Supply Company, Inc., against the Respondent, and Hatfield in the amount of $12,164.60, including costs. These judgments were based upon unpaid past-due bills resulting from the operation of Godwin and Hatfield, a construction company jointly owned by the Respondent and Hatfield. As of December 30, 1980, these judgments had not been satisfied by the Respondent, by Hatfield, or by anyone else. On March 11, 1980, a federal tax lien was filed with the Clerk of the Circuit Court of Hillsborough County, Florida, against the Respondent and Hatfield in the amount of 73,712.19. On May 8, 1980, the Respondent and Hatfield entered into an installment agreement with the Internal Revenue Service for the purpose of repaying the tax lien. Although both the Respondent and Hatfield knew about their tax deficiency, neither the Respondent nor Hatfield knew that the tax lien had been filed. Both men were advised by a representative of the IRS that a tax lien would not be filed if they agreed to pay the taxes due in installments. The Respondent attached a letter of explanation regarding the tax deficiency to his application. As of December 30, 1980, the tax lien had not been satisfied by the Respondent or Hatfield. On December 26, 1980, the Respondent made application to the Construction Industry Licensing Board to become a certified plumbing contractor. On his application, the Respondent answered in the negative the following question, 7(c): Are there now any liens, suits, or judgments of record or pending as a result of the construction operations of any person named in "(i) below" or any organization in which -- such person was a member of the personnel? On his application, the Respondent also answered in the negative the following question, 7(d): Are there now any unpaid past-due bills or claims for labor, materials or services as a result of the construction operations of any person named in "(i) below" or any organization in which any such person was a member of the personnel? The Respondent admitted that he was aware of the outstanding judgments, and, from the, application, it, is clear the outstanding judgments related to him as the applicant. In the space following question 7(i), the Respondent signed as applicant and then as corporate president and noted there was no vice president.
Recommendation Having found the Respondent guilty of violating Section 489.127(1)(d), Florida Statutes, by knowingly filing an application Containing false information, and thereby being guilty of violating Section 489.129(1)(j) , Florida Statutes, and in consideration of the facts in mitigation, it is recommended that the Board take no action against the Respondent's air conditioning contractor's license, which was not related to the application in question in this case. It is further recommended that the Board administratively revoke the Respondent's plumbing contractor's license with leave to file a complete and correct application for the Board's consideration. DONE and RECOMMENDED this 22nd day of December, 1983, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 1983. COPIES FURNISHED: Michael E. Egan, Esquire 217 South Adams Street Post Office Box 1386 Tallahassee, Florida 32301 Mary Ann Stiles, Esquire One Mack Center, Suite 1604 501 East Kennedy Boulevard Tampa, Florida 33602 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202
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 The issue to be resolved in this proceeding concerns whether the Petitioner was discriminated against based upon his age, in the manner addressed by Section 760.10, Florida Statutes.
Findings Of Fact The Petitioner was an employee of the City of Leesburg at times pertinent hereto. He was employed as a waste water operator trainee, commencing employment on or about June 5, 2000. The Respondent is a city government and unit of local government which operates two waste water plants. At times material to this proceeding the Respondent was employed and assigned to the "Canal Street Plant." The Petitioner was required to perform several job functions in his capacity as a waste water operator (trainee). Respondent's Exhibit Nine, in evidence, provides a job description for the Petitioner's employment positions which include the following: Record all flows; constantly survey charts and meter readings; repair leaking waste water pipes; perform building maintenance chores; maintain vigilance over all the department facilities and log or report any unusual situations; take oral and written instructions and carry them out in a quick and responsible manner; load and unload lawn cutting equipment, and cut and trim grass at utility plant sites; make repairs and/or replace parts on plant equipment; and repair leaks and other operations as directed. That job description also required a trainee to have knowledge of the functions and mechanics of pumps and other waste water plant equipment, knowledge of the occupational hazards and safety measures required in plant operations; to have an ability to detect faulty operating characteristics in equipment and to institute remedial action. The trainee is also required to be able to read meters, chart accurately and to adjust procedures to meet plant volume requirements. He must have an ability to understand and follow oral and written instructions. The Respondent's personnel policies and procedures manual (manual), in evidence as Respondent's Exhibit Eight, states at Policy No. 600.2(13) that "poor performance" is a violation of policy sufficient to initiate discipline. Poor performance is described in that section as a failure to perform assigned duties according to prescribed dimensions and standards on the individualized performance plan. Policy No. 600.2 provides for progressive discipline ranging from a verbal warning, to a written warning, a one-to-three day suspension, a four-to-five day suspension, or termination. Thus the discipline for violation of that policy is a range of appropriate actions from verbal warning to termination. On or about July 11, 2001, the Petitioner was the subject of a corrective action performance evaluation by his supervisor, Bob Mirabella. Mr. Mirabella, the Respondent's Operations Supervisor, accorded the Petitioner a grade of zero in several categories of work performance. Those are deficiencies indicating the Petitioner's lack of understanding of basic concepts related to his job position, including failure to following instructions, difficulty making simple decisions, difficulty or failure in following standard procedures, and a poor attitude. Overall his evaluation shows a rating of the Petitioner's performance as "unacceptable." That corrective action evaluation also contains a section that the Petitioner and his supervisor must initial, indicating that the Petitioner had reviewed the evaluation and that the performance deficiencies had been communicated to him. Mr. Mirabella advised the Petitioner of corrective measures to take and that any continued failure to meet expectations might result in termination. Mr. Mirabella created a type-written plan of improvement for the Petitioner with remedial activities, objectives, and developmental activities. Under the Respondent's consistent policy, the action plan would have been reviewed in 60 days, September 11, 2001, in order to determine that the Petitioner was meeting those expectations. On August 13, 2001, the Petitioner received a written reprimand for failure to perform duties assigned to him on July 23, 25, and August 9, 2001. These were duties that were in accordance with the prescribed dimensions and standards of the individual performance plan for the Petitioner. The written reprimand, in evidence as Respondent's Exhibit Two, included a description of the Petitioner's failure to perform duties including lawn maintenance, and again cited his argumentative attitude. On August 29, 2001, the Petitioner received a three-day suspension from duties for failure to perform assigned duties according to prescribed dimensions and standards as set forth in the individual performance plan. The disciplinary action form, in evidence as Respondent's Exhibit Three, specifically referred to the Petitioner's failure to perform lawn maintenance duties, failure to follow established rules and policies, and failure to take appropriate action to correct a leaking pump. It was also noted that the Petitioner was making coffee and watching television instead of performing assigned duties. Mr. Mirabella created a performance evaluation summary in preparation for the Petitioner's September 11, 2001, 60-day review of the initial, unsatisfactory evaluation of July 11, 2001. The summary showed a continuation of the Petitioner's difficulties and problems both in understanding his job and in dealing with other people in the course of his duties. The summary cited an incident where the Petitioner was abrasive, including swearing, toward other employees. It was Mr. Mirabella's intention to give the Petitioner a written reprimand regarding the swearing incident. However, due to the emergency nature of the events occurring on September 12, 2001, at the waste water plant, the written reprimand was not completed prior to the beginning of the investigation that ultimately led to the Petitioner's termination. The Petitioner made no major progress in correcting any of the problems outlined in the action plan that constituted part of the July 11, 2001, evaluation. On or about September 12, 2001, it was determined that there was a near overflow of sewage at the Canal Street Plant. Scott Moss, the employee who worked on the morning shift on September 13, 2001, discovered the problem and took corrective action immediately. Mr. Mirabella learned of the problem and reported it to the Respondent's Director of Environmental Services, Susanna Littell. Upon learning of the potential overflow occurrence, Ms. Littell began an investigation to determine when the overflow problem occurred. She gathered plant flow information and took measurements of the tanks. Employing engineering calculations, based upon the flow rates at the plant, Ms. Littell was able to determine that the problem had occurred on the Petitioner's shift. The Petitioner was the only employee on duty at the time the problem occurred. Ms. Littell consulted two outside engineers (non-city employees) to review her calculations. Those engineers found that her calculations were accurate. According to Ms. Littell, the waste water employees on duty at the plant should have observed the valve positions or otherwise noticed a problem in the plant that needed remediation. This was a regular part of their assigned duties, including the Petitioner. Mr. Mirabella determined a number of valves had been changed, which had caused the "aereation bay" to begin to fill with waste water. The aereation bay almost overflowed, which would have caused a serious environmental hazard and damage. It would have caused irreparable harm to the credibility of the waste water department, and could have engendered a minimum of $10,000.00 dollars in fines imposed by the Department of Environmental Protection. The importance of preventing these types of situations has been emphasized to employees who worked at the waste water plant, including the Petitioner. Because of the Petitioner's failure to notice the obvious serious problem occurring at the plant on his shift, and his failure to take corrective action, he was cited for negligence in performing his assigned duties in violation of the Respondent's policy. The employee who worked as his counter- part on the shift immediately after the Petitioner's, Elmer Wagner, was also cited for negligence in performing his duties because of his failure to notice the problem and to take corrective action. Mr. Wagner at the time in question was 67 years of age. The information obtained during Ms. Littell's investigation was forwarded to Ms. Jakki Cunningham-Perry, the Respondent's Director of Human Resources, in order for her to determine the appropriate disciplinary action to take. Ms. Cunningham-Perry performed an investigation of the September 12, 2001, incident. She spoke to several individuals, including, but not limited to, Mr. Mirabella, Ms. Littell, Jim Richards, who was one of the engineers consulted by Ms. Littell, as well as the Petitioner. She thereafter deliberated and prepared a written memorandum setting forth her investigative findings. Ms. Cunningham-Perry concluded that the closing of the valves occurred during the Petitioner's shift. She also concluded that Mr. Wagner should have noticed the change in the pump flow and valves during his shift. Both the Petitioner and Mr. Wagner were cited for failure to perform assigned duties in violation of city policy 600.0(13), as a result of the investigation performed by Ms. Cummingham-Perry. She reviewed the personnel history of both the Petitioner and Mr. Wagner in order to determine the appropriate levels of discipline. The Petitioner's prior history included the special corrective action evaluation of July 11, 2001, indicating unacceptable performance; the August 13, 2001, written reprimand for violation of policy 600.2(13); and the suspension for violation of that same policy. In light of the past performance of the Petitioner, as well as the September 12, 2001, incident, Ms. Cunningham-Perry recommended that he be terminated. On November 30, 2001, the Petitioner was terminated from his employment with the Respondent. The Petitioner's last day on the payroll with the Respondent was December 6, 2001. Mr. Wagner is older than the Petitioner and has had an exemplary performance record with the Respondent City. He never had any disciplinary problems on his record for 15 years of his employment with the Respondent. Because of his theretofore spotless employment disciplinary record, he was given a written reprimand as a result of his negligent performance of job duties on September 12, 2001. No evidence was adduced indicating that the Respondent treated any employees over the age of 40, including the Petitioner, any differently than employees under the age of 40. During the relevant time period the Respondent had approximately 22 employees in the waste water department. Fifteen of those 22 employees were over the age of 40. The Petitioner actually produced no evidence in his case establishing his date of birth or age. There is no evidence that the Petitioner's age was considered or was a factor in his termination decision. The decision to terminate him was based solely on his failure to perform assigned duties and his prior performance record. Moreover, the Petitioner adduced no evidence to show that he was replaced or otherwise lost his position to a younger individual. The individual who became a waste water trainee after the Petitioner's termination was Scott Moss. Mr. Moss is currently employed as Waste Water Operator with the Respondent. There is no doubt that Mr. Moss is a significantly younger individual, purported to have been in his late 20's when the incident in question occurred. The Petitioner, however, produced no evidence regarding Mr. Moss' date of birth or his age in relationship to the Petitioner's. He also produced no evidence to show that he was actually replaced by Mr. Moss. Mr. Moss had been hired on or about January 29, 2001, nearly one year prior to the date of the Petitioner's termination. Both the Petitioner and Mr. Moss were working at the Canal Street Plant in similar capacities and duties, at the time the Petitioner was terminated. Mr. Moss, therefore, just continued to work there and ultimately was elevated, through his adequate performance, to the position of Waste Water Operator. It was not established that he was hired simply to replace the Petitioner when the Petitioner was terminated. Further, the Petitioner did not adduce sufficient, persuasive evidence to show that he was actually qualified to perform the job. His prior performance had been unacceptable since at least July 11, 2001, and likely before that time. The Petitioner repeatedly failed to comprehend and perform assigned duties of a Waste Water Operator Trainee on multiple occasions. This was despite efforts by the Respondent to help the Petitioner correct his deficiencies. Accordingly, it has not been established that the Petitioner was "qualified" for the position of Waste Water Operator Trainee.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition in its entirety. DONE AND ENTERED this 3rd day of May, 2004, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 Clerk of the Division of Administrative Hearings this 3rd day of May, 2004. COPIES FURNISHED: Michael George 25131 Southeast 167th Place Umatilla, Florida 32784 Steven W. Johnson, Esquire McLin & Burnsed, P.A. Post Office Box 491357 Leesburg, Florida 34749-1357 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether the Respondent, the Department of Environmental Regulation (DER), should deny the Petitioner's application for a Class C drinking water treatment plant operator certificate based on the Petitioner's alleged cheating on the examination.
Findings Of Fact The Respondent, the Department of Environmental Regulation (DER), previously determined that the Petitioner, Ralph Sanchious (Sanchious), was eligible for certification as a Class C Water Treatment Operator, subject only to successful completion of DER's examination. Sanchious sat for the November 2, 1989, examination administered at the Polk Correctional Institution (PCI) in Polk City, Florida. Although the examination notice that had been mailed to Sanchious, as well as to the other examinees, stated that examinees were not allowed to have "[a]ny other papers or notes . . . in the examination room," Sanchious brought his examination notice itself and the envelope it came in. At least one other examinee did the same. During the examination, which was multiple choice, Sanchious copied the question numbers on the envelope and marked next to each question number the letter signifying the choice he had made as his answer. He did not try to hide what he was doing. He did it openly right in front of the examination proctor, Henry P. Ziegler, Jr. Sanchious intended to take the record of his exam answers with him when he left the examination to help him pass a reexamination, if he did not pass the November 2, 1989 exam. Since examinees must give the examination booklet containing the multiple choice questions to the proctor at the end of the examination, it is not clear how a record of his answers would help him pass a reexamination unless Sanchious knew or believed he could learn when the same examination would be re-administered. It must be inferred that Sanchious knew or believed he could learn when the same examination would be re-administered, although it is not clear how he knew or why he believed he could learn this. Ralph Nichols, the instructor who taught the course that prepared Sanchious to take the examination, did not know or believe he could learn when the same examination would be repeated unchanged, and he did not think any of the examinees knew or could learn this. Neither the DER rules, the written examination notice, nor the oral instructions of the examination proctor advised Sanchious or the other examinees that he was not permitted to record his answers or take the record of his answers with him when he left the exam. Sanchious did not think what he was doing was wrong, was cheating or was in violation of any rules or regulations of either the DER, PCI or any test-taking "conventions." If he did, he would have tried to hide what he was doing from the proctor. At the end of the examination, Ziegler, the proctor, collected the examination answer sheets, test booklets and scratch paper, if any, from all examinees. Normally, Ziegler would return the answer sheet and exam booklet to the testing agency and destroy the scratch papers to maintain test security. But he confiscated Sanchious' answer sheet, examination booklet and materials, including the record of his answers that he had made on the envelope, and asked Sanchious what was on the envelope. Sanchious answered truthfully and told Ziegler what he planned to do with his record of the answers. Ziegler, an accepted expert in proctoring examinations, understood from examination "conventions" he had learned as an examination proctor that it is a breach of examination security, and therefore forbidden for proctors to allow, an examinee to record examination answers and leave the examination site with them. Ziegler conferred with Barbara Jacobs, PCI Educational Program Manager, to ask her what she thought should be done. Jacobs then told Sanchious he would not be permitted to remove the envelope on which he had recorded his answers. Sanchious replied with words to effect "fine, I already finished the examination, and all my answers are on the answer sheets." Ziegler, Jacobs and Nichols conferred further to decide whether what Sanchious had done was "cheating." They decided it was and declined to forward Sanchious' answer sheet to DER. Ziegler's letter to DER explained that he and Jacobs "deem taking out answers to these tests to be a serious breach of test security, since it is possible that Sanchious might have wanted to sell the answers to other inmates on his compound. We are both sure that you would not want Sanchious to do this, so we have withdrawn his answer sheets from the rest of the test takers' sheets and are not forwarding Sanchious' answer sheet to you for scoring. We trust you agree with our decision to not allow this inmate's test to be scored due to what we firmly believe was an unacceptable breach of security of your tests on the part of Sanchious." Although the DER did not respond to Ziegler's letter, it denied his application certification because it did not consider Sanchious to have passed the exam. Sanchious' answer sheets remain in the possession of Barbara Jacobs at PCI. DER authorizes the use of scratch paper in their certification examinations. DER has no rules or written notification of any kind that examinees may not record their answers on scratch paper during the examination. In fact, DER now encourages examinees to keep track of where they are on the examination by marking the examination booklet; and marking the answers on the booklet, as well as the answer sheet, would be one acceptable way of keeping track. It is understood that the examination proctor will collect the exam booklets and all scratch paper. DER always has allowed examinees other than prison inmates, and now allows all examinees, to review their scored examination answer sheets and the examination booklet to verify any incorrect answers. Persons choosing such a review are not permitted to take notes of the correct answers with them after the review. On two occasions, DER has discovered that an examinee smuggled "crib sheets" (summary notes of substantive information that probably would assist an examinee) into the exam site. Once, the proctor caught the examinee; the other time, it could not be determined who had smuggled the "crib sheets." Once DER received anonymous information that an individual in Orlando regularly was obtaining a list of what purported to be the actual answers to questions and was furnishing the list to certain examinees as a favor. This information has not resulted in any findings, and it is not clear how the individual would have obtained a written list of correct answers to the questions on a particular examination. On the most recent examination in Jacksonville, DER caught an examinee smuggling into the examination a list of the actual answers to the questions. Again, it is not clear how the answers were obtained. None of these incidents involved an examination at PCI, and none involved an examinee recording his own answers to exam questions on a separate piece of paper with intent to leave with the record of the answers after the examination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Respondent, the Department of Environmental Regulation, enter a final order that the Petitioner's answers to the November 2, 1989, Class C Water Treatment examination be scored and, if the Petitioner scored a passing grade, that the Petitioner be certified as a Class C Water Treatment Plant Operator. RECOMMENDED this 7th day of March, 1990, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 7th day of March, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-7002 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.-3. Accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven by the evidence. Ziegler first conferred with Nichols before deciding that Sanchious had "cheated." Otherwise, accepted and incorporated. Rejected as not proven by the evidence. It was not proven whether Sanchious knew or could learn when the same examination would be re- administered, knowledge that would be indispensable to the use of Sanchious' exam answers to cheat on a subsequent examination. Otherwise, accepted and incorporated. 6.-10. Accepted and incorporated to the extent not subordinate or unnecessary. 11. First sentence, accepted and incorporated to the extent not subordinate or unnecessary; second sentence, see 5., above. 12.-13. Accepted and incorporated to the extent not subordinate or unnecessary. 14. Rejected as not proven by the evidence. First, Setchfield agreed that whether Sanchious or someone else knew or could learn when the same examination would be re-administered would be indispensable to the future use of his exam answers to improve one's odds of choosing or guessing correct answers. Second, she testified that she could not answer the "philosophical" question whether the "cheating" she described would have occurred when Sanchious recorded and removed the answers with the intent to try to use them to improve his odds of choosing or guessing correct answers on a future exam or when he actually used the information on a future examination. COPIES FURNISHED: Ralph Sanchious (W-44) Polk Correctional Institution 3876 Evans Road, Box 50 Polk City, Florida 33868 Cynthia K. Christen, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 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 =================================================================
Findings Of Fact The City has brought this action pursuant to Section 120.56, Florida Statutes, challenging Rules 17-50.015(2)(f) and 17-50.016(2)(f), Florida Administrative Code. Section 120.56(1), Florida Statutes, authorizes any person substantially affected by a rule to seek an administrative determination of the invalidity of the rule on the ground that the rule is an invalid exercise of delegated legislative authority. The Department has stipulated to the City's standing to maintain this action. 4. Rules 17-50.015(2)(f) and 17-50.016(2)(f) were adopted by the Department pursuant to Sections 403.061, 403.101, 403.1823, 403.1832, 403.1838 and 403.804, Florida Statutes. No disputed issues of material fact exist between the parties.
The Issue Whether Respondent violated provisions of Petitioner’s Human Resources Manual and Employee Handbook (Manual) on February 28, 2019, as charged in the agency action letter dated March 18, 2019.
Findings Of Fact Chapter 2001-324, Laws of Florida, declared the Escambia County Utilities Authority an independent special district with transferred assets and enumerated powers. Chapter 2004-398, Laws of Florida, changed the Escambia County Utilities Authority’s name to ECUA. By law, ECUA provides utility services throughout Escambia County, Florida, and has the power to appoint, remove, and suspend its employees, and fix their compensation. ECUA’s mission statement specifies that the Board and employees of ECUA “are committed to providing the highest quality service” and that “ECUA will always provide cost- effective services.” ECUA has adopted standards set forth in the Manual in order to govern employee conduct. Mr. Packer acknowledged on April 14, 2009, that a copy of the Manual was available to him. During all times relevant to the instant case, Mr. Packer was employed as a sanitation equipment operator assigned to one of ECUA’s commercial sanitation routes. Although Mr. Packer had been employed for several years as a residential sanitation worker (crane operator), he had been assigned to a commercial route for only two weeks and was still in training at the time the mishap occurred. The events giving rise to the proposed disciplinary action are not in dispute. As described by Mr. Packer in his written statement of March 5, 2019, in the pre-dawn hours of February 28, 2019, he “drove into establishment (to) pick up a can. Attempted to back up-slightly turned my wheel to the left. The ground gave way due to the weight of the vehicle. The ground was saturated due to rain.” According to Kenneth Vinson, the sanitation equipment operator who was accompanying Mr. Packer on the morning of the mishap, conditions at the site were “early morning dark, some fog, time about 5:15 a.m.” Mr. Vinson accompanied Mr. Packer on the morning of February 28, 2019, in order to familiarize Mr. Packer with the route. This was only the second time that Mr. Packer had been to the Custom Specialties (Custom) location, and the first occasion on which he was the driver of the sanitation truck. On the first occasion, Mr. Packer opened the entrance gate (and remained there) and observed the process while Mr. Vinson drove straight in, dumped the container, and backed out through the gate. When the mishap occurred, Mr. Packer had “no knowledge of a soft spot in the ground that could cause a problem.” Photographs were taken of the sanitation truck and the surrounding environs at the time it was stuck at the Custom location. Several of the photographs show an indentation in the ground, surrounded by three landscape timbers in a “U” formation. There are no signs indicating that a septic tank was buried at this location, or that soft ground presented a driving hazard. ECUA vehicles are only permitted to access dumpsters on commercial properties on routes authorized by the business owners. However, nobody told Mr. Vinson (or Mr. Packer) that the sanitation truck was not authorized to take the route of egress attempted by Mr. Packer at the time of the incident; nor did the owner notify Mr. Vinson or Mr. Packer that the landscape timbers surrounded a septic tank which must be avoided. While training Mr. Packer on the commercial route, Mr. Vinson never told Mr. Packer that he must enter and leave all properties in the same manner that Mr. Vinson had. Indeed, when Mr. Vinson was first assigned to the route, he taught himself how to drive it and was not trained on the route by another driver. The daily route that Mr. Packer was being trained to service consisted of 120 stops, which took between eight to ten hours to complete. When asked why he tried to turn the truck around to leave, rather than back out, Mr. Packer testified that the route to back out of the property was at least 70 feet, and with the fog and darkness it would have been difficult to successfully back out of the property. Rather, in Mr. Packer’s judgment, it would have been much safer to turn around and drive the truck forward off the property. Mr. Packer believed there was adequate space to turn the truck around on the property in order to drive straight out. Some of the commercial properties serviced by ECUA sanitation trucks do involve turning the truck around after servicing the dumpster, and then driving straight out. Mr. Packer further testified that his goal is to drive the ECUA trucks as safely as possible, and that he felt he was using due care when attempting to leave the Custom site. Following the mishap, Mr. Packer later returned to the Custom location and met with the boss, Roy Reyes. Mr. Reyes informed Mr. Packer that the landscape timbers were not surrounding a septic tank, but rather sunken ground due to rain. Mr. Reyes advised that the septic tank was located elsewhere on the property. ECUA sanitation truck drivers are awarded quarterly bonuses when they are accident/incident-free during the quarter, and therefore deemed to be “safe drivers.” In addition to the one-day suspension without pay, Mr. Packer was also denied his quarterly bonus, of approximately $600.00, as a result of the mishap on February 28, 2019. The preponderance of the evidence demonstrates that Mr. Packer is not guilty of the offenses he has been charged with. Although it is unfortunate that Truck 32G got stuck in a mud bog on the morning of February 28, 2019, the mishap did not occur due to the negligence of Mr. Packer, or due to violation of safety practices or applicable rules or law. Rather, a series of unfortunate events led to the mishap, including: the property owner not adequately marking the hazard and informing ECUA that the hazard existed; poor visibility; Mr. Packer not being advised that he was not authorized to deviate from the route shown him by Mr. Vinson; and this being the first time Mr. Packer had actually driven the truck onto the property.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Executive Director of the Emerald Coast Utilities Authority find that Robert L. Packer did not commit any of the violations set forth in ECUA’s discipline letter of March 18, 2019. DONE AND ENTERED this 19th day of July, 2019, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS 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 19th day of July, 2019.
The Issue The issues to be resolved in this proceeding concern whether the Respondent violated Chapters 381 and 386, Florida Statutes, specifically Sections 386.041, 381.0061, 381.065, and 386.03, and Rules 10D-6.043(2) and 10D-6.0571. If the Respondent committed the charged violations, it must be determined whether a fine should be imposed and the amount of any such fine.
Findings Of Fact The Petitioner is an agency of the State of Florida charged with regulating the installation and continued maintenance of OSDS's, within the guidelines of the statutes and rules cited below. In the event violations of the rules regarding the safe operation and maintenance of OSDS's are detected, HRS has the authority to require correction of the unsafe, human-health conditions involving such systems and to impose penalties for the failure to adequately correct such unsafe health situations. In order to secure enforcement of the statutes and rules concerning the installation and operation of OSDS's, HRS has the authority to issue Administrative Complaints initiating formal enforcement proceedings such as the one at bar. The Respondent is a citizen of the State of Florida and owns the property located at 835 N.W. 109th Drive in Gainesville, Alachua County, Florida. The Respondent owns and operates an OSDS on that property which serves her personal residence for the on-site containment, disposal and treatment of sewage generated by that residence. In the spring of 1992, the Respondent detected problems with the OSDS on her property. The problems were noticed because of a difficulty in flushing the toilets in her home and the unusual greening of the grass in a pattern of rows above the septic tank's drain field. The abnormal greening of grass in this pattern indicates that the OSDS is malfunctioning by allowing incompletely treated sewage effluent (waste water) to escape upward towards the surface of the ground instead of percolating in a downward direction into the underlying soil, for appropriate filtration and treatment, which is the pattern of effluent disposal if such a system is operating correctly. Mr. Ron Meyers of Meyers Septic Tank Company was contacted for correction of the problem by the Respondent. On April 15, 1992, he applied for an OSDS repair permit to the Alachua County Public Health Unit of HRS on behalf of the Respondent. The permit application described that the repairs for which authority was requested would be to the existing system which was a below-ground-level septic tank and drain-field system (conventional system) in the Respondent's front yard. Mr. Dennis Chesky is an environmental specialist with the HRS Health Unit for Alachua County. He conducted a site inspection of the OSDS site on April 16, 1992 and determined that a repair of the existing system would not result in compliance with the applicable standards of Chapter 10D-6, Florida Administrative Code cited below. He made a determination that a mounded drain- field system would be required in order to comply with HRS rules. HRS rules require that when repairs are made to an existing OSDS and inspection reveals that proper percolation and other indicia of soil-borne treatment of the effluent will not be adequately performed in accordance with HRS rules, then alterations to the OSDS, including the requirement of a mounded drain-field system, so as to acquire a sufficient treatment zone of appropriate fill soil, can be imposed. Mr. Chesky had noted that a sanitary nuisance existed due to insufficiently treated effluent escaping to the ground surface and pooling on the surface of the ground, rather than percolating downward below the drain field, as a properly operating system would perform. In accordance with the permit application and the results of Mr. Chesky's inspection, a repair permit with specifications requiring a mounded septic tank and drain-field system was issued by Mr. Chesky on April 16, 1992. The permit required the system to be installed in the Respondent's front yard. Because such a mound in the Respondent's front yard would destroy the aesthetic character of the Respondent's property and landscaping, Mr. Meyers requested, on the Respondent's behalf, that the permit be modified to allow installation of the mounded system in the backyard of the Respondent's property. On April 22, 1992, this request was granted by Terry Shipley, Mr. Chesky's supervisor, and the relocation was duly noted on the permit. The permit issued was valid for a period of ninety (90) days. The letter transmitting the permit to the Respondent informed the Respondent, as permittee, that she had ninety (90) days to correct the problem which caused the need for the repair permit. The letter also advised the Respondent that if a sanitary nuisance was present on the property, the problem should be rectified as expeditiously as possible. The permit expired without the repairs having been performed. Mr. Shipley, therefore, directed that a member of his staff visit the Respondent's home to inspect the situation. Mr. Paul Meyers visited the Respondent's home on July 22, 1992 and noted that raw sewage was still existing on the surface of the ground in the form of waste water from the septic tank. Mr. Meyers took photographs of that condition. The photographs were introduced into evidence. One photograph depicted that an area of the ground at the end of the drain field had collapsed or subsided, leaving a hole through which waste water was seeping to the ground surface. Mr. Meyers thereupon issued a notice to abate a sanitary nuisance on July 23, 1992. It was received by the Respondent on August 1, 1992. On August 3, 1992, the problem still existed with effluent being observed on the surface of the site by Mr. Chesky. On August 25, 1992, he returned to the site and observed evidence that a large area of the front yard, over the drain-field location, had been disturbed. He determined that the ground and the grass had been disturbed in such a way that repairs had obviously been made to the existing drain field. This was contrary to the permit that had been issued, which had required that a mounded system be installed as a means of effecting necessary repairs. The repaired area had been covered without notification of the repair to HRS. A notice of intended action was issued on September 16, 1992 and received by the Respondent on September 19, 1992. This notice gave the Respondent three (3) days to take action toward correcting the problem. The Respondent was thus advised that if the problems and violations were not corrected, then an Administrative Complaint seeking imposition of a fine would be issued. Within several days of receipt of that notice, the Respondent's husband called Mr. Shipley and Ms. Wilson of HRS to advise them that repairs had been delayed by the necessity of removing some trees in the backyard of his property where the mounded system would have to be placed. The Petersons were also having difficulty securing the necessary financing to pay for the installation of the mounded system required by HRS during the summer and early fall of 1992. Although Mr. Peterson advised HRS of the delay caused by the necessity to remove some trees with attendant expense, apparently HRS was not advised of the financing problem at that time, although the Respondent's testimony shows it to be the case. During this period of time, on September 22, October 1, and October 22, 1992, inspections by HRS revealed that the problem of effluent escaping on the surface of the ground had not yet been corrected. Since repairs had not been visibly commenced by the time of the last inspection on October 22, 1992, HRS elected to seek imposition of a fine and issued an Administrative Complaint to the Respondent, which was received by the Respondent on November 5, 1992. The Complaint sought a fine in the amount of $200.00 per day dating from the receipt of the Administrative Complaint until the date the violation was corrected. The Respondent obtained a second contractor to begin construction of the required mounded system which was completed on November 10, 1992. The contractor on that day called for an inspection by HRS. The inspection was conducted on November 12, 1992, but final approval could not be issued although all essential work was completed because the required sodding and stabilization measures had not yet been completed on the surface of the mound. Final approval was granted on November 17, 1992 by HRS. Installation of a new below-ground, drain-field system, as originally requested, similar to the one which was already installed and malfunctioning, would have cost approximately $1,000.00. The mounded system required by HRS' permit, pursuant to the relevant rules cited below, cost approximately $5,000.00. In addition to the approximate $5,000.00 expended for the installation of the mounded system, the Respondent had to expend approximately $7,000.00 related to tree removal and re-landscaping of their yard to repair damage caused by installation and the requirement to install a facility to pump sewage from the front yard outlet to the mounded system in the backyard. The Respondent apparently attempted to repair the existing below-ground system after receiving the notice regarding sanitary nuisance in August of 1992 in order to avoid the high costs related to the mounded system. The effluent pooling on the ground surface, as it was on the Respondent's property at times pertinent hereto, can pose a threat to public health. In order to adequately treat sewage effluent, it must filter in a downward direction through at least 24 inches of suitable soil medium in order to be sufficiently decontaminated. Improperly treated effluent on the surface of the ground can cause the transmission of human pathogens to persons who come into contact with the effluent in and near the area of the discharge. There is no evidence to indicate that any such harm came to any specific persons or to the public's health generally, in the subject situation. Ms. Wilson, the supervisor responsible for issuance of the Administrative Complaint, decided to seek a fine of $200.00 per day after considering both the aggravating and mitigating factors set forth in the statutory authority cited herein, contained in Chapter 381, Florida Statutes. HRS has fining authority in the amount of up to $500.00 per day for each of the claimed violations. The unrefuted evidence establishes that the violations occurred and persisted over the period time described in the above Findings of Fact. In fairness to the Respondent, however, it should be pointed out that the Respondent and her husband were not in Florida for most of the summer of 1992 because their work required them to be in Dallas, Texas. Even so, they had secured the services of an OSDS contractor to attempt to alleviate the problem. Due no doubt to the high cost and their reluctance to be encumbered by it, they delayed actual installation of the mounded system, however. It is also true that they had difficulties obtaining financing for such a costly system but ultimately did so and satisfactorily completed the work. They ultimately expended approximately $14,000.00 for all phases of the work involved, including site preparation, re-landscaping and related expenses. They have thus have undergone a severe cost burden to alleviate the inoperable condition of the previous OSDS.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is RECOMMENDED that a Final Order be entered by HRS imposing a fine in the amount of $500.00 against the Respondent. DONE AND ENTERED this 3rd day of September, 1993, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of September, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-7376 Petitioner's Proposed Findings of Fact 1-15. Accepted. 16. Rejected, as immaterial in this de novo proceeding. 17-25. Accepted. Respondent's Proposed Findings of Fact Accepted, although the evidence does not reveal the bank's posture with regard to ownership of the property. Rejected, as contrary to the preponderant weight of the evidence. Rejected, as to its material import because the repairs and installation were not effected until after the issuance of the Administrative Complaint. Accepted, but not dispositive of the material issues presented other than as consideration for mitigation of the fine imposed. Accepted, but not dispositive of the material issues presented other than as consideration for mitigation of the fine imposed. Accepted, but not materially dispositive of the issues presented. Accepted. COPIES FURNISHED: Robert L. Powell, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Slye, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Ralph J. McMurphy, Esquire Department of Health and Rehabilitative Services 1000 Northeast 16th Avenue Gainesville, Florida 32609 Robert Peterson 835 Northwest 109th Drive Gainesville, Florida 32606
Findings Of Fact On September 19, 1979, Lester Nelson, Hospital Consultant for the Petitioner, conducted a survey of Monticello Manor and discovered certain Class III deficiencies, one of which was roach infestation in the cabinets beneath the kitchen sink. Ms. Rhoades was present on that date and was aware of the deficiencies to be cited. The facility was notified by letter dated October 22, 1979, that the deficiencies cited were to be corrected by November 1, 1979. A revisit of the nursing home was made by Mr. Nelson on November 27, 1979, by which time all deficiencies had been corrected with the exception of the roach infestation. On that date, roaches were observed in three of the five cabinets inspected. At the time of the September 19 survey, Monticello Manor had in effect a Service Agreement with Truly Nolen for pest control services. In addition, a maintenance man was spraying the premises twice a week. On December 1, 1979, Respondent entered into a contract with a different exterminating company after cancelling its contract with Truly Nolen.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED THAT: The Department of Health and Rehabilitative Services enter its final order imposing a civil penalty in the amount of one hundred dollars against the Respondent. RECOMMENDED this 3rd day of June, 1980, in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings Department of Administration Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the clerk of the Division of Administrative Hearings this 3rd day of June, 1980. COPIES FURNISHED: Harold L. Braynon, Esquire District X Legal Counsel Department of Health and Rehabilitative Services 91 West Broward Boulevard Fort Lauderdale, Florida 33301 Ms. Carolyn Rhoades Administrator Monticello Manor 1701 North Federal Highway Fort Lauderdale, Florida 33308 Steven W. Huss, Esquire Staff Attorney Central Operations Services Department of Health and Rehabilitative Services 1317 Winewood Boulevard Tallahassee, Florida 32301 Mr. David H. Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner is entitled to the grant of a variance for the installation of an onsite sewage disposal system ("OSDS") for his property on the Santa Fe River in Gilchrist County, Florida, in accordance with Section 381.272, Florida Statutes, and Chapter 10D-6, Florida Administrative Code.
Findings Of Fact The Petitioner is the owner of certain real property located in Gilchrist County, Florida, more particularly described as Lot 4, Unit 4, Ira Bea's Oasis, a subdivision. The evidence is not clear concerning whether the plat of the subdivision was actually recorded, although the evidence and the Petitioner's testimony indicates that the lots in the subject subdivision were subdivided in 1965. The evidence does not clearly reflect whether the subdivision was ever platted, however. On April 2, 1990, the Petitioner filed an application for an OSDS permit regarding the subject property. The application was for a new OSDS on the above-described property; and the system was intended to serve a single- family residence, which the Petitioner desires to construct on the subject property for a vacation and retirement home. The proposed residence would contain three bedrooms and a heated or cooled area of approximately 1,100 square feet. In the permit application process, at the Respondent's behest, the Petitioner had a survey performed by Herbert G. Parrish, registered land surveyor. That survey, in evidence as the Respondent's Exhibit 1, reveals a benchmark elevation of 21.65 feet above mean sea level ("MSL"). The proposed installation site is at an elevation of 22.5 feet above MSL. A report by the Suwannee River Water Management District, which is admitted into evidence and was submitted to the Respondent by the Petitioner with the application for the OSDS permit, shows a ten-year flood elevation for the subject property, and River Mile 10 of the Santa Fe River, at 31 feet above MSL. Thus, the subject property is located beneath the ten-year flood elevation. The property is also located within the regulatory floodway of the Santa Fe River, as that relates to required engineering certification and calculations being furnished which will assure that if OSDS's are constructed employing mounding or sand filters, and like constructions, that such related fill deposited on the property within the regulatory floodway will not raise the level of the "base flood" for purposes of the rules cited hereinbelow. No evidence of such certification by an appropriately-registered engineer was offered in this proceeding concerning the installation of a mounded system and its effect on the base flood level. The surface grade level of the subject property at the installation site is 9.5 feet below the ten-year flood elevation. The grade elevation of the subject property is also .5 feet below the "two-year flood elevation", and the property has been flooded once in the past three years and has been flooded approximately four times in the past 15 years. It has thus not been established in this proceeding that the property is not subject to frequent flooding. On April 18, 1990, the Respondent denied the Petitioner's application for an OSDS permit by letter of that date. The Petitioner did not make a timely request for a formal administrative hearing to dispute that denial. The Petitioner maintained at hearing that this was, in essence, because the Respondent's personnel informed him that he should seek a variance instead, which is what he did. The testimony of Mr. Fross reveals, however, that, indeed, he was advised of his opportunity to seek a variance but was also advised of his right to seek a formal administrative hearing to contest the denial of the permit itself. Nevertheless, either through the Petitioner's misunderstanding of his rights or because he simply elected to choose the variance remedy instead, the fact remains that he did not timely file a petition for formal proceeding to contest the denial of the OSDS permit itself. Even had a timely petition for formal proceeding concerning the denial of the OSDS permit application been filed, the evidence of record does not establish the Petitioner's entitlement to such a permit. As found above, the property lies beneath the ten-year flood elevation and, indeed, lies below the two-year flood elevation, which subjects the property to a statistical 50% chance of being flooded each year. This and the other findings referenced above indicate that the property has not been established to be free from frequent flooding; and although appropriate "slight-limited" soils are present at the proposed installation site, those soils only extend 50 inches below the surface grade. That leaves an insufficient space beneath the bottom of the drainfield trenches where they would be located so as to have a sufficient volume and distance of appropriate treatment soil available beneath the drain field, if one should be installed. Below 50 inches at the subject site is a limerock strata which is impervious and constitutes a barrier to appropriate percolation and treatment of effluent waste water. Thus, for these reasons, especially the fact that the property clearly lies beneath the ten-year flood elevation and because adequate proof in support of a mounded system which might raise a septic tank and drainfield system above the ten-year flood elevation has not been adduced, entitlement to the OSDS permit itself has not been established. Concerning the variance application actually at issue in this proceeding, the Petitioner has proposed, in essence, two alternative systems. The Petitioner has designed, and submitted as an exhibit, a plan for a holding- tank-type- system. By this, the Petitioner proposes a 250-gallon holding tank, with a venting pipe extending approximately three feet above the level of the ten-year flood elevation, with an attendant concrete retaining wall and concrete base to which the tank would be securely attached. The Petitioner thus postulates that flood waters would not move or otherwise disturb the holding tank and that he would insure that the holding tank was pumped out at appropriate intervals and the waste there from properly deposited at a treatment facility located above the ten-year flood elevation. The precise method of such disposal and its location was not disclosed in the Petitioner's evidence, however. Moreover, the testimony of Dr. Hunter establishes that the deposition of waste water and human waste into the tank, either through pumping, or by gravity line, if the residence were located at an elevation above the inlet to the tank, might well result in a hydraulic condition which would cause the untreated sewage to overflow from the vent pipe of the tank. Moreover, such systems do not insure that public health, the health of the occupants of the site, and ground or surface waters will not be degraded since it is very costly to pump such a tank out which would have to be done on a frequent basis. This leaves the possibility that the user of such a holding-tank-facility could surreptitiously drain the tank into nearby receiving waters or otherwise improperly empty the tank. Even though the Petitioner may be entirely honorable in his intentions and efforts in this regard and not violate the law and the rules of the above-cited chapter in his manner of disposal of the holding-tank effluent, there is no practical, enforceable safeguard against such illegal activity, especially if one considers that the property may later be conveyed to a different landowner and user of the system. The Petitioner also proposes in his testimony and evidence the possibility of using a nondischarging, composting-toilet-type system to handle sewage involving human excreta. Such a system has been shown by the Petitioner's evidence to adequately treat human sewage so that public health and the ground and surface waters involved in and near the site could be adequately safeguarded. The problem with such a system, however, is that the "gray water", that is, waste water from bathtubs, showers, lavatories and kitchens, cannot be disposed of in the composting-toilet system. Such gray water, which also contains viruses, coliform bacteria and nutrients, must be disposed of, according to the rules at issue, in an appropriate sewage disposal system, be it in a septic tank and drain field or through pumping to an appropriate disposal and treatment facility located above the ten-year flood elevation. The Petitioner's proof does not establish how such gray water could be appropriately and safely disposed of in the environmental and public health context at issue herein. Thus, the proposed alternatives suggested by the Petitioner's proof do not constitute minor deviations from the minimum requirements for OSDS's specified in Chapter 10D-6, Florida Administrative Code. Ironically, the composting-toilet system, coupled with a proper disposal system for household gray water, could constitute a reasonable alternative to a conventional system. Thus, the Petitioner's proof, itself, shows that a reasonable alternative may exist, which militates against the granting of the variance, although he did not prove how it could feasibly be accomplished. In summary, therefore, the Petitioner's proof failed to establish that no reasonable alternative exists and that the proposed system would only be a minor deviation from the minimum requirements of the Respondent's rules concerning OSDS's and their installation and operation. The Petitioner established that a reasonable alternative to a conventional OSDS might exist for purposes of granting an OSDS permit itself, had that issue been formally placed before the Hearing Officer, but did not prove how it could feasibly be accomplished and operated. This proof shows, however, that such a reasonable alternative might be found operable which, thus, fails to justify the granting of a variance based upon hardship. If the Petitioner could come forward with proof to establish the feasibility of disposal and treatment of the household gray water involved in an appropriate treatment and disposal site and facility above the ten-year flood elevation, in conjunction with use of a composting- toilet system, a later permit application might be entertained in which could be justified the granting of an OSDS permit.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that a Final Order be entered by the Respondent denying the Petitioner's application for a variance from the statutory and regulatory requirements, cited above, for the issuance of permits. At such time as the Petitioner is able to show changed factual circumstances, as for instance, that a reasonable, feasible alternative system, which will adequately treat and dispose of all household waste water effluent in a manner comporting with the rules of Chapter 10D-6, Florida Administrative Code, a permit application should be entertained. DONE AND ENTERED this 27th day of February, 1991, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 February, 1991. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-4569 The Petitioner did not file proposed findings of fact. Respondent's Proposed Findings of Fact 1-16. Accepted. 17. Rejected, as not supported by the preponderant evidence of record. COPIES FURNISHED: Sam Power, Agency Clerk Department of HRS 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Linda K. Harris, Esq. General Counsel Department of HRS 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Mark Moneyhan, pro se Route 3, Box 407 Perry, FL 32347 Frances S. Childers, Esq. Department of HRS District III Legal Office 1000 Northeast 16th Avenue Gainesville, FL 32609
