Findings Of Fact The State of Florida Department of Environmental Regulation is the administrative agency of the State of Florida charged with the duty to protect the water resources of the State and to administer and enforce the Florida Water Resources Act of 1972, embodied in Chapters 373, Florida Statutes, as well as the rules promulgated thereunder. The St. Johns River Water Management District is a unit of government established by Chapter 373, Florida Statutes, also charged with the duty to administer and enforce that chapter and related rules. The Department of Environmental Regulation, pursuant to Section 373.103, Florida Statutes, and Section 317.104(8), Florida Administrative Code, has delegated to the District the power and authority to administer and enforce Part III of Chapter 373, Florida Statutes, and the rules and regulations adopted pursuant to that part which implement it. Those rules are embodied in Chapter 40C-3, Florida Administrative Code. Stanley U. Monds is a licensed water well contractor licensed by St. Johns River Water Management District. He has been issued license number 2257. Mr. Monds is also registered by the District as a "water well driller." That registration bears the number 2257. The Respondent on various dates in 1984-1986 contracted to construct and constructed water wells from which water was to be drawn for drinking or other domestic purposes, within the geographical boundaries of the District, for the following named individuals: WELL OWNER COUNTY YEAR CONSTRUCTED Ray Howell Clay 1986 Clayton McCumbers Clay 1986 Joe Eddy Nassau 1986 Joe Eddy Nassau 1986 Kevin Brooks Clay 1984 Nancy Harris Duval 1985 Marcus Rhoden Baker 1985 Cecil Hagen Baker 1985 Ken Tenson Baker 1985 Jim Griffis Baker 1985 Tom Scott Baker 1985 Tom Ott Baker 1985 J. Ray Gatlin Baker 1984 J. Ray Gatlin Baker 1984 The Respondent never filed "well completion reports" with the District for these wells, as required by District rules. The Respondent also contracted to construct and constructed wells for domestic water use, including drinking, located within the geographical boundaries of the District for the following named individuals and thereafter filed well completion reports, however, the reports were actually filed more than 30 days after the wells were completed and thus in violation of District rules: WELL OWNER COUNTY DATE COMPLETED COMPLETION REPORT FILED James Hall Clay 3/10/86 5/06/86 Dennis Bennett Duval 6/16/83 5/04/85 Bennett's Hardware Duval 6/17/83 5/23/85 Don Tenbush Clay 1/08/86 10/1/86 In March 1986, the Respondent installed a water well for a Mr. Joe Eddy in Nassau County, Florida. This well was abandoned by the Respondent and a second well was drilled nearby in June 1986. The Respondent failed to properly abandon the first well by filling it from top to bottom with grout. The Respondent was warned of this condition and reminded to correct it by certified letter sent him by District personnel concerning his improper abandonment of the first well. He acknowledged receiving that letter in a conversation with witness J. C. Varnes, a District field representative. The Respondent, however, refused or failed to later properly abandon the first well by filling it with grout from bottom to top. In June 1986, the Respondent contracted to construct and did construct a second water well for the same Mr. Eddy on his property in Nassau County. That well penetrated multiple aquifers, but the Respondent refused or failed to complete the well so as to prevent cross-contamination of different aquifers or water-bearing strata by water of significantly different quality. This should have been prevented by proper casing of the well which Respondent failed to do. Further, the Respondent used PVC (polyvinylchlride) plastic casing instead of metallic casing in constructing the well and seated the casing by driving it into the ground which resulted in the plastic casing being cracked. The Respondent also failed to grout and seal the annular space between the well casing and the naturally occurring geological formations through which the well bore passed. Another certified letter was sent him by District personnel advising him of these violations of District rules which he acknowledged. He refused or failed to correct the well construction violations, however. Failing to case a well to the bottom of a well or having cracks in the casing allows water and/or other materials from one geological strata to enter the casing, migrate upward or downward and enter aquifers or water-bearing strata at other levels, thus posing a potential of cross-contamination of different aquifers or water-bearing strata due to improper "short casing" or due to cracked casing. In 1984, the Respondent constructed a water well for Kevin Brooks on his property in Clay County, Florida. The well was constructed into an "unconsolidated aquifer," but the Respondent failed to attach a well screen to the bottom of the casing as a filtering device, in violation of well construction standards promulgated by the District. In June 1983, the Respondent contracted to construct and did construct a well for Bennett's Hardware on its property in Duval County. He failed to grout and seal the annular space between the well casing and the naturally occurring geological formations from the bottom to the top of the well in violation of District well construction standards. In 1984, the Respondent constructed two four-inch water wells for J. Ray Gatlin on his property in Baker County, Florida. The Respondent failed to grout and seal the upper three feet of annular space in each of these two wells. He was sent a certified letter on July 14, 1986, advising him of the deficiencies in the well construction. He acknowledged receiving that letter in a conversation with witness J. C. Varnes, but failed to grout the well properly anyway. Also in 1984, he constructed an eight-inch water well for J. Ray Gatlin on property in Baker County, Florida. He failed to grout and seal the annular space between this well's casing and the surrounding geological formations from the bottom to the top of the casing. He also failed to install a water tight seal at the top of the well casing. After being sent a certified letter advising of these violations by District personnel, he acknowledged to Mr. Varnes once again that he had received that letter. He still failed to properly grout or seal the well after being so warned. On September 16, 1986, he was sent a second certified letter which he acknowledged receiving which instructed him to properly abandon the well. He refused to follow that instruction. In January 1986, the Respondent constructed a water well for Don Tenbush on his property in Clay County. He failed to grout and seal the annular space between the well casing and the geological formation surrounding the casing in this well from top to bottom. This well penetrated multiple aquifers or water-bearing zones and yet the Respondent failed to complete the well so as to prevent potential cross-contamination of different zones or aquifers by water of significantly different quality. He did not case the well all the way down to the producing aquifer at the bottom of the well. Here, again, he acknowledged receiving a certified letter advising him of these violations and requiring correction and yet failed to correct the violations. The Respondent began construction of a second well for Mr. Tenbush on the same parcel of property in January 1986 after abandoning the first well described above. He failed to properly abandon the first well by filling it from bottom to top with grout. He was notified of that deficiency or failure, but refused to correct that condition. In constructing the second well for Mr. Tenbush, he refused to or failed to extend the well casing from the land surface all the way down to the producing aquifer and to seat it. After being sent a certified letter advising him of this violation, receipt of which he acknowledged to Mr. Varnes, he again refused or failed to correct the violation. Both wells drilled by Respondent for Mr. Tenbush subsequently had to be abandoned by another water well contractor.
The Issue The ultimate issue to be resolved in this proceeding is whether the Department should issue a permit allowing the construction of a wastewater treatment and disposal system as requested in the modified application filed by Thomas E. Wasdin. The applicant and the Department contend that reasonable assurances have been given that the proposed facility will not result in violations of any of the Department's rules or regulations. The Petitioner contends that the proposed facility is located too near to existing shallow water drinking wells and that the facility otherwise fails to comport with the Department's rules and regulations.
Findings Of Fact Petitioner is the president of Beach Woods of Brevard County, Inc. The corporation is the developer of "Beach Woods," a 376-unit planned unit development located in Melbourne Beach, Brevard County, Florida. One hundred eighty of the units have already been developed. Existing regional sewage treatment facilities operated by Brevard County are not adequate to accommodate the total number of units that the applicant proposes to develop. It appears that 24 more hookups are all that the existing facilities will tolerate. Beyond that number, a sewer moratorium is in effect, and unless the applicant can make some other arrangement for disposing of sewage, the development cannot be completed. The county has approved the planned unit development. In order to meet sewage treatment needs of the proposed development, the applicant is proposing to construct a "package sewage treatment plant" to accommodate waste that exceeds quantities that can be handled by existing regional facilities. Once the regional facilities are upgraded so that the development's sewage treatment needs can be accommodated, the applicant proposes to disassemble the package plant and utilize the regional facilities. The proposed plant would be a 50,000 gallons per day contact stabilization sewage treatment plant. Initially, it would be operated as a 5,000 to 15,000 gallons per day aeration plant. Once loads reach 18,000 gallons per day, it would become a contact stabilization plant. The Present collection and transmission system for sewage that exists at Beach Woods includes an 8-Inch collection station from which sewage flows to an existing lift station that pumps effluent via 6-inch pipes to the regional plant. When the proposed plant is completed, a computerized system would be set up to send effluent to the new plants when the limits that the regional plant can accommodate are met. Once the regional plant is upgraded to sufficient capacity, the bypass to the proposed plant would be eliminated, and all units would then be connected to the original collection system. The proposed treatment plant is based upon proven technology that has been in existence for more than 50 years. The plant should operate reliably, and proper consideration has been given to odor, noise, lighting, and aerosol drift. In close proximity to the plant, it is likely that there would occasionally be a "earthy smell" that would be noticeable, but not objectionable. Outside of the immediate proximity, no odor would be noticeable. Large fans would be operated in connection with the plant, and some noise would result. It does not, however, appear that the noise would be excessive or bothersome, even in the immediate vicinity of the plant. The plant would be lighted by street lights and would not result in any more excessive lights than normal street lights. The plant is not of the sort that aerosol drift is a likely problem. Adequate considerations have been given to providing emergency power to the plant in the event of a power outage. The plant could sit for at least 20 hours without power before any emergency would exist. If there was a power outage in excess of that period, emergency power sources are available. Consideration has been given to the 100-year flood plain. The plant has been placed at an elevation that keeps it outside of the 100-year flood plain. The land application system proposed by the applicant would utilize drain fields that would be alternately rested. Groundwater flows from the area of the proposed drain fields are in a southwesterly direction toward the Indian River. The Indian River in the location of the proposed facility is a "Class III surface water." Groundwater in the area of the proposed facility might be classified as either "G-I" or "G-II." Reasonable assurance has been given that the proposed sewage treatment plant would not operate in such a manner as to degrade surface or ground waters to the extent that any of the Department's specific water quality parameters set out in Chapter 17, Florida Administrative Code, would be violated. The proposed sewage treatment plant comports with local requirements and has been approved by Brevard County. The Allans Subdivision is a residential development that is located directly to the north of the Beach Woods development. Petitioner utilizes a shallow water well as a source of drinking water. The proposed land application site of the sewage treatment plant is located within 500 feet of the Petitioner's well. There are at least two other shallow water wells that serve as drinking water sources located within 500 feet of the proposed land application site. The applicant indicated a willingness to move the proposed facility so that no part of it would be located within 500 feet of the shallow drinking water wells. The evidence establishes that the plant could be moved to accomplish that. No specific plan, however was presented. Potential factual issues could exist respecting appropriate buffer zones for any relocation of the facility, even a minor relocation. The applicant is proposing to develop areas within 100 feet of the proposed facility. The applicant does not, however, propose to locate any public eating, drinking, or bathing facilities within 100 feet of the proposed plant or land application area. No map was presented during the course of proceedings before the Department of Environmental Regulation that preceded the formal administrative hearing or during the hearing itself to establish present and anticipated land uses within one mile of the boundaries of the proposed facility. The facility of such a size that it could not inhibit any conceivable present or proposed future land uses except within 500 feet of the proposed facility. Evidence was offered at the hearing from which it could be concluded that the Department has, in the past, issued permits for sewage treatment plants located within 500 feet of existing shallow drinking water wells. The testimony was that this has occurred despite a requirement in the Department's rules that there be a 500-foot buffer zone between any such plant and a shallow drinking water supply. No specific evidence was presented as to why the Department has allowed such a breach of its rules or why it should be allowed in this proceeding.
The Issue The issue in this case is whether the South Florida Water Management District (SFWMD) should issue an Environmental Resource Permit (ERP) for the redevelopment of property owned by G5 Properties, LLC (G5).
Findings Of Fact The property owned by G5 east of U.S. 41 and south of Sunrise Boulevard in Fort Myers was developed as separate parcels by different owners in the 1970’s and 1980’s under the stormwater management regulations in effect at that time. Similarly, the Duke’s property to the south was developed in that era under the same stormwater management regulations. The properties do not meet current ERP regulations. G5 acquired the two parcels comprising its property with the intention of redeveloping it, primarily by constructing a two-story medical office building on what was the southern parcel. G5 applied to upgrade the surface water management system on the property, primarily by installing a detention pond on the southern parcel and directing surface water flow from a designated sub-basin on the southern parcel into the detention pond. The detention pond was to serve the dual purposes of storage and water quality treatment. It was properly sized to store and treat the runoff from the sub-basin in a 25-year/3-day (the proper design) storm. Discharge from the detention pond was to be into the existing stormwater conveyance (an underground pipe) in the road right-of-way along the eastern property line (west of Austin Street). From there, water flows south into a drainage ditch to the south of the Duke’s property. From there, water flows west to Whiskey Creek and eventually into the Caloosahatchee River. (The River is impaired; neither the Creek nor the River are designated as Outstanding Florida Water). Although most of the redevelopment of G5’s medical office building is on what was the southern parcel, and most of the stormwater falling on the southern parcel is directed into the detention pond, there is a covered portico entrance on the north side of the medical office building with a driveway that ramps up to the entrance from the west and ramps down away from the entrance to the east. The covered portico and ramped driveway extend onto what was the northern parcel. Some of the surface water runoff from the driveway flows to the west into the Florida Department of Transportation (DOT) swale in the U.S. 41 right-of-way, as it did before redevelopment; some of the surface water runoff from the driveway flows to the east and north, onto what was the northern parcel of G5’s property. Except for this runoff flow from the driveway, the drainage patterns on the northern parcel remain practically the same, the only differences being the replacement of a small amount of impervious surface with new impervious surface (pavement) and a small amount of impervious surface with pervious surface. G5’s redevelopment of its medical office building includes a driveway along the south side of the building, just north of the Duke’s property, leading to parking on the south and east side of the building. Some of the surface water runoff from the entrance to the driveway flows to the west into the DOT swale in the U.S. 41 right-of-way, as it did before redevelopment. G5’s ERP does not provide for any storage or water quality treatment for runoff from the northern parcel, except for the addition of removable (for cleaning) filter inserts for the storm drains in that part of the property. During the application process, G5 modified its proposal to deepen the detention pond. This was done to allow the redeveloper of the Taco Bell half a mile to the south of the Duke’s property to take credit for additional storage and water quality treatment in order to get a Lee County permit for its project. The Taco Bell also was developed under the old stormwater management regulations, but its redevelopment was able to use a SFWMD “No Notice General Permit” because it impacted no wetlands, was less than ten acres, and had less than two acres of impervious surface. However, it needed a Lee County stormwater permit, which it could not get without additional water quality storage and treatment. Lee County allowed the Taco Bell redevelopment project to take credit for an increase in the depth of the detention pond at the G5 site and issued its permit. Although Taco Bell got credit for water quality storage and treatment at the G5 property, no surface water runoff from the Taco Bell site actually reaches G5’s detention pond, or even the Duke’s property. It flows north through the pipe along Austin Street to the drainage ditch to the south of the Duke’s property, and from there to Whiskey Creek and the Caloosahatchee River. However, the deeper detention pond would provide additional storage and water quality treatment for the G5 site for storms bigger than the design storm. Petitioner’s surveyor testified that there are up to four places along the property line between the G5 property and the Duke’s property where topography indicates that some surface water runoff can flow from the G5 property across the property line to the Duke’s property, post-redevelopment. His testimony was based on a comparison of spot elevations he took in the vicinity of the property line with elevations taken by other surveyors. In addition, the surveyor could not say how much flow would occur in a 25-year, 3-day storm. There was persuasive testimony from G5’s engineer that the flow from one of the four locations identified by Petitioner’s surveyor (in the southeast corner of the southern parcel of G5’s property) existed pre-redevelopment. Contrary to Petitioner’s argument, this testimony actually did not contradict other testimony of the engineer that all runoff from the new pavement on the southern parcel of the G5 property was intended to flow into the new detention pond. In that location in the southeast corner, G5’s redevelopment project removed pavement, added 4-inch high curbing along the edge of the new pavement, and added grass between the curb and the property line (which would tend to reduce runoff onto the Duke’s property). Another location identified by Petitioner’s surveyor was between the new office building and the property line. The surveyor related a water stain on the pavement and an exposed tree root ball to significant standing water and high flow conditions. Petitioner contends that this occurs because an asphalt overlay, four-tenths of a foot thick, was placed on top of the existing pavement in that area. To the contrary, G5’s engineer testified that the surface water management system functions as it should and that the overlay did not change the grade but was “just to benefit the existing asphalt from deteriorating any more.” The water stain could be attributable at least in part to landscape irrigation, and the tree root may have been exposed mechanically. Even if the surveyor’s testimony proved that there is some water flow in that area, he could not testify as to the quantity of flow. Based on a preponderance of the evidence, G5 provided reasonable assurances that its surface water management system functions properly and that post-redevelopment runoff from the G5 property onto the Duke’s property does not exceed pre- redevelopment conditions. Petitioner cites significant standing water on the Duke’s property after a heavy rain on January 26, 2011, as proof that the G5 redevelopment has caused flooding of the Duke’s property. However, there was no standing water on the G5 property, and hardly any water in the detention pond. The standing water on Petitioner’s property was above two storm drains on the western part of the Duke’s property, which drain into the same pipe as the storm drains on the western side of the G5 property and the outfall structure discharging from the detention pond on the G5 property. The standing water on the Duke’s property probably was caused by clogs in the drains in the Duke’s stormwater management system, not by G5’s redevelopment. Mr. Harrow claimed that the Duke’s property was inspected when purchased, its stormwater management system was functioning properly, and it was properly maintained. But he also testified that maintenance ceased at some point and that it would require an engineer to correct what is wrong with it now, which Mr. Harrow believed to be cost-prohibitive and the responsibility of G5, not Petitioner. Petitioner contends that no ERP should issue for G5’s redevelopment project without the participation of Taco Bell in the operation and maintenance of the G5 detention pond. To the contrary, the Taco Bell permit might be deficient if Taco Bell has no control over the operation and maintenance of G5’s detention pond, but there is no reason why Taco Bell has to participate in the operation and maintenance of G5’s detention pond. By a preponderance of the evidence, G5 provided reasonable assurances that it has the legal and financial ability to operate and maintain its system, including the detention pond. If a new development, G5’s redevelopment project (which includes all 3.41 acres in the northern and southern parcels of the G5 property) would not meet the criteria for issuance of an ERP because there was no demonstration that there is enough water quality storage and treatment. However, because of the addition of water quality storage and treatment for the southern parcel and the addition of filters for the drains on the property, the redevelopment of the site resulted in a net improvement in water quality storage and treatment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that SFWMD deny G5 an ERP for its redevelopment for failure to meet BOR requirements as to water quality storage and treatment. DONE AND ENTERED this 25th day of May, 2011, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 25th day of May, 2011. COPIES FURNISHED: Margaret M. Craig, Esquire Bricklemyer Smolker & Bolves, P.A. 500 East Kennedy Boulevard, 2nd Floor Tampa, Florida 33602-4936 Matthew D. Uhle, Esquire Law Office of Matthew D. Uhle, LLC 1617 Hendry Street, Suite 411 Fort Myers, Florida 33901-2926 Douglas H. MacLaughlin, Sr., Esquire South Florida Water Management District 3301 Gun Club Road, Mail Stop Code 1410 West Palm Beach, Florida 33406-3007 Tommy B. Strowd, Interim Executive Director South Florida Water Management District 3301 Gun Club Road, Mail Stop Code 1410 West Palm Beach, Florida 33406-3007
Findings Of Fact At all times material to this proceeding, Respondent, James A. Tipton ("Tipton"), has been a registered professional engineer in the State of Florida, having been issued license number PE 0018147, which expires on January 31, 1987. Tipton employed the services of Robert Corno as a field man for taking samples to establish soil profiles, site characteristics and existing water tables for septic tank applications prepared and filed by Tipton. Corno had actual authority from Tipton to conduct tests, site examinations and evaluations and to submit his findings to Tipton. Sometime before April 8, 1985, Tipton was retained to perform professional engineering services in connection with the preparation and filing of an application for a septic tank on lot 168, block 3, Charlotte Ranchettes Subdivision in Charlotte County ("lot 168"), owned by Joseph Duseo. Tipton sent Corno to lot 168 on April 13, 1985, to examine and evaluate the site, take soil samples and make other observations that would have to be reported to Tipton in connection with Tipton's work. Corno completed his work and reported to Tipton. Corno did not bring Tipton the actual soil samples. On April 8, 1985, Duseo's general contractor told Corno about a well on lot 168. When Corno visited the site, he observed the well. The well is an artesian well, about 3 feet high and six inches in diameter. The well is an irrigation-type well and is non-potable. The well was within fifty feet of the drain field of the septic system Tipton proposed for lot 168. The well also is approximately 5 to 10 feet from the north property line. Corno knew at the time of his visit to the site that the well was not plugged. However, Corno understood that Duseo was in the process of arranging with the Southwest Florida Water Management District to have the well plugged. Corno did not tell Tipton about the well before Tipton prepared and filed the application for the proposed septic tank. Therefore, Tipton did not know there was a well on lot 168 when he was preparing the application for the septic tank permit. Tipton did not ask Corno any questions calculated to reveal whether there was a well on lot 168. Corno held the belief that non-potable wells, especially those that were to be plugged, did not have to be shown on septic tank permit applications. There was evidence about a survey of lot 168 certified by a land surveyor employed by a firm of professional engineers which did not show any well on lot 168. However, Tipton did not have access to the survey before he prepared the septic tank permit application on lot 168. (The survey bears two dates, April 17 and April 18, and was not signed until April 25, 1985.) On or about April 15, 1985, Tipton signed and certified the septic tank permit application for lot 168. The application was filed at the Charlotte County Public Health Unit (Health Department) on April 16, 1985. The application indicates "none" in the space provided to indicate the "location of wells within 75 feet of property lines." The well on lot 168 is an important consideration which should have been depicted on the application. Septic tank drain fields could pollute a well. Even if Tipton had known that the well was supposed to be plugged, it was not plugged until July 1985. Failure to show the well was a serious omission. Tipton was negligent for relying on Corno without having an understanding whether Corno would report to him the existence of non-potable wells within 50 feet of the drain field of a septic system or within 75 feet of a property line if the well was likely to be plugged. If he had used due care, Tipton would have either made explicit inquiry of Corno sufficient to reveal the existence of the well or ascertained from Corno in advance that he would report to Tipton the existence of any well within 50 feet of the drain field of a proposed septic system or within 75 feet of property lines. Having failed to exercise due care, Tipton did not realize that Corno would not be reporting to him the existence of a non-potable well which was supposed to be plugged in the future. A few days after he filed the application, Tipton learned about the well on lot 168. But at about the same time, Duseo and his contractor began discussing construction alternatives that would change the septic system and require a new septic tank application. Therefore, Tipton did not immediately amend the April 15 application to show the well. In mid-May, Tipton filed a new application for the different septic system. The new application, not in issue in this case, showed the well. The application also contained a soil profile which probably is not accurate. However, Tipton's soil profile simply reflects the information reported to him by Corno. While Tipton's soil profile does not correspond with soil profiles from other test holes dug in the area of the proposed drain field by the Health Department and an expert witness, the information Corno reported to Tipton was well within the realm of possibilities for soil in the area of lot 168. Corno generally seemed to be a qualified and experienced field man who used proper tools to do his job. There was nothing suspicious about Corno's information, and there was no reason for Tipton to suspect that it was false or fraudulent. While it is the better practice for a professional engineer to require his field man to deliver the actual soil sample to support a soil profile report, this is not required of professional engineers if there is no reason to suspect that a field man's soil profile report is false or fraudulent. On the application, Tipton estimated the high water table on lot 168 at 2.2 feet below existing grade. While other expert witnesses estimated a higher high water table, the evidence did not prove that Tipton was negligent in his estimate. Some of the conflicting estimates were Health Department estimates which, the evidence indicates, tend to be high to be on the safe side. Others were estimates on permit applications which may have been influenced by the Health Department's desires and which may not reflect the engineers' actual estimates. Of all the estimates, only Tipton's was supported by testimony how the estimate was derived. (Tipton used what he called Darcy's Law.) Finally, Petitioner's own expert witness testified that Tipton's high water table estimate could not be called negligent.
Recommendation Based upon the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Board of Professional Engineers enter a final order holding Respondent, James A. Tipton, guilty of negligence in the practice of engineering under Count I of the Amended Administrative Complaint (but dismissing Count II of the Amended Administrative Complaint) and imposing an administrative fine in the amount of five hundred dollars ($500.00). RECOMMENDED this 19th day of May, 1986, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of May, 1986. COPIES FURNISHED: Ms. Sarah Logan Executive Director Board of Professional Engineers 130 North Monroe Street Tallahassee, FL 32301 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 Salvatore A. Carpino, Esq. General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 Wings Slocum Benton, Esq. Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 John Charles Heekin, Esq. C-1 Ocean Plaza 21202 Ocean Blvd. Port Charlotte, FL 33952 APPENDIX The following are specific rulings on all the parties' proposed Findings of Fact as required by Section 120.59(2), Florida Statutes (1985). Rulings on Petitioner's Proposed Findings of Fact Petitioner's Proposed Findings of Fact 1 through 3, 9, 10, 13 through 16, 19, 21 and 22 are accepted as substantially factually accurate and are incorporated in the Findings Of Fact in the same or similar format to the extent necessary. Petitioner's Proposed Finding Of Fact 4 would have been included in paragraph 1 above except that the last sentence is unnecessary. Petitioner's Proposed Finding Of Fact 5 would have been included in paragraph 1 above except that the third sentence is unnecessary. Petitioner's Proposed Findings Of Fact 17, 18 and 27 would have been included in paragraph 1 above except that they are unnecessary. Petitioner's Proposed Finding Of Fact 26 would have been included in paragraph 1 above except that whether Alligator Creek is a "significant" drainage feature would depend on the definition of "significant" which was not established by the evidence. In addition, Petitioner's Proposed Finding Of Fact 26 is unnecessary. Petitioner's Proposed Findings Of Fact 6 through 8 are rejected as conclusions of law and because the last sentence of Proposed Finding Of Fact 6 is cumulative. Petitioner's Proposed Finding Of Fact 11 is rejected because the first sentence is contrary to the greater weight of the evidence and Findings Of Fact and the second sentence is, subordinate to Findings Of Fact. Petitioner's Proposed Findings Of Fact 12, 20, 23 and 24 are rejected as subordinate to Findings Of Fact. Petitioner's Proposed Finding Of Fact 25 is rejected because the first sentence is subordinate to Findings Of Fact and the second sentence is contrary to the greater weight of the evidence. Rulings on Respondent's Proposed Findings of Fact. Respondent's Proposed Findings Of Fact 1 through 3, 5 and 12 are accepted as substantially factually accurate and are incorporated in the Findings Of Fact in the same or similar format to the extent necessary. Respondent's Proposed Finding Of Fact 4 would have been included in paragraph 1 above except that the second sentence is unnecessary. Respondent's Proposed Finding Of Fact 8 would have been included in paragraph 1 above except that it is unnecessary. Respondent's Proposed Finding Of Fact 9 would have been included in paragraph 1 above except that it is in part unnecessary. Respondent's Proposed Finding Of Fact 11 would have been included in paragraph 1 above except that it is contrary to the greater weight of the evidence and Findings Of Fact that there is "no way" for an engineer to avoid relying on a field man's error such as Corno's error in omitting to report the existence of the well. Respondent's Proposed Finding Of Fact 14 would have been included in paragraph 1 above except that it is irrelevant. Respondent's Proposed Finding Of Fact 6 is rejected because it is subordinate to Findings Of Fact and is unnecessary. Respondent's Proposed Finding Of Fact 7 is rejected because it is simply a recitation of conflicting evidence, some of which is accepted but some of which is rejected as contrary to the greater weight of the evidence and Findings Of Fact. Specifically, it was found that Corno did not tell Tipton about the well and that Tipton did not have the survey in his possession at the time the application was filed. Respondent's Proposed Finding Of Fact 10 is rejected as contrary to the greater weight of the evidence and Findings Of Fact. Specifically, the evidence supported a finding of negligence on the part of Tipton for failure to utilize due care and to have due regard for acceptable standards of engineering principles whether or not practicing in Charlotte County. In addition, Mr. Murray's expert testimony must be disregarded because it was given upon a hypothetical assumption that an engineer had possession of a sealed survey showing no improvements on the property as the time of the application, a fact not proved by the evidence. Respondent's Proposed Finding Of Fact 13 is rejected as contrary to the greater weight of the evidence and Findings Of Fact. Specifically, personnel in the Health Department, part of the "general public," were misled. (The general public also reasonably could have been led to a fallacious conclusion, but there was no "misconduct" on Tipton's part. See Conclusions of Law.) ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF PROFESSIONAL ENGINEERS DEPARTMENT OF PROFESSIONAL REGULATION, FLORIDA BOARD OF PROFESSIONAL ENGINEERS Petitioner, vs. DOAH CASE NO. 85-2684 DPR CASE NO.0058289 JAMES A. TIPTON, Respondent. /
The Issue The issue is whether Petitioner's application to sit for the water well contractor examination should be approved.
Findings Of Fact Based on the evidence presented by the parties, the following findings of fact are made: On January 9, 2004, Petitioner, who resides in Baker County, Florida, filed his application with the District requesting that he be allowed to sit for the water well contractor examination. The requirements for qualification to take the examination are set forth in Florida Administrative Code Rule 62-531.300. Relevant to this controversy is the requirement that an applicant present "satisfactory proof of two years experience in the water well construction business." This requirement is normally met by the applicant providing a list of at least ten water well jobs he has completed during a consecutive 24-month period (together with their locations, major use, and approximate depth and diameter), the name and address of the owner of the well, and the approximate date the activity took place. See Fla. Admin. Code R. 62-531.300(6)(a). If the work has been completed in Florida, the applicant is also required to submit copies of completion reports for each of the ten wells. Id. Completion reports are filed by the contractor with the District within thirty days after the work is completed. See Fla. Admin. Code R. 40C-3.411. Finally, the applicant must submit letters from three persons attesting to the length of time the applicant has been working in the water well construction business as a major activity. See Fla. Admin. Code R. 62-531.600(6)(a). Alternatively, an applicant may present "satisfactory proof of equivalent experience," which may be accepted by the District "on a individual basis." See Fla. Admin. Code R. 62- 531.300(6)(b). While this option has rarely, if ever, been used by any applicant, at hearing the District suggested that this provision would allow an applicant to submit other credible documentary evidence, such as affidavits, attesting to the applicant's equivalent experience. Mr. Julian C. Varnes, Jr., a District water resource representative III, is in charge of reviewing water well contractor applications in four northeast Florida counties, including Baker County. Mr. Varnes reviewed Petitioner's application and concluded that he had failed to submit proof of two years' experience in the water well contracting business or satisfactory proof of equivalent experience, as required by the rule. In this case, Petitioner submitted ten completion reports with his application, but none of the reports indicated that he had been involved on those projects, and Petitioner acknowledged at hearing that he could not recall if he was even present on the job site. This is probably because the reports related to jobs performed between November 10, 1982, and July 31, 1985, by his father, a licensed water well contractor, when Petitioner was less than fifteen years old. In addition, the reports submitted by Petitioner covered work performed over a 32-month period, rather than over a 24-month period, as required by the rule, and some of the reports did not have the complete address of the location of the well. By letter dated February 4, 2004, the District advised Petitioner that his application was deficient because he had failed to submit the information required in Florida Administrative Code Rule 62-531.300(1)(b) and (6) relative to experience. The letter advised Petitioner that he must submit an "acceptable list of ten wells together with their completion reports, for wells that [he had] constructed, repaired, or abandoned, with completion dates distributed over a consecutive 24-month time period." Further telephonic discussions between Petitioner and District personnel concerning the request for additional information occurred on March 25 and 29, 2004, but they did not resolve the District's concerns. On June 15, 2004, the District staff again notified Petitioner in writing that he must submit the requested information within 30 days or his application would be denied. When no response was received from Petitioner, on July 27, 2004, the staff issued a Technical Staff Report recommending that the application be denied because of Petitioner's failure to comply with the requirements of Florida Administrative Code Rule 62- 531.300(1)(b) and (6). On August 23, 2004, a Notice of Staff Intent to Recommend Denial of Water Well Contractor Application No. 7300 and Notice of Rights was issued by the District. Petitioner's request for a hearing was then filed. After his first request for a hearing was dismissed, on November 18, 2004, Petitioner filed an amended request for a hearing. In that request, he alleged that the District was "not capable of locating completion reports filed by [Petitioner] and/or his father"; that the experience of he and his father was well known to two District staffers; that he had purchased a well drilling company from another individual and operated under the seller's license for over a year; that he is entitled to licensure because he has satisfactory equivalent experience; and that his father has paid all outstanding fines previously imposed by the District. As relief, Petitioner has requested that he be allowed to take the contractor's examination. At hearing, Petitioner explained that his father was in the water well contracting business for twenty years, and that beginning in 1983, when he was thirteen years old, he had helped his father on "hundreds of jobs" until his father's retirement in 1994. However, Petitioner cannot recall the names and addresses of customers who were serviced by his father's business, which is necessary in order for the District to retrieve completion reports presumably filed by his father. Because of the large number of completion reports filed by contractors throughout its multi-county jurisdiction, in order to retrieve one, the District must have the following information: the year the job was completed, the county in which the job was performed, and the address (township and range) of the well's owner. Petitioner is unable to provide this information.1 In addition, Petitioner stated that he had purchased a water well contractor's business (from Tim Johnson) shortly after his father retired in 1994 and that he operated the business under Mr. Johnson's license for a little more than a year. Although Petitioner produced no documentation concerning jobs he may have performed under Mr. Johnson's license, even if he had, that work would still constitute less than 24 consecutive months of experience, as required by the rule. Petitioner further asserted that Mr. Varnes, who oversees the water well contractors in Baker County, personally "knows" that he is an experienced well driller (having gained such experience through working for his father for many years) and that he possesses the skills necessary to take the examination. However, Mr. Varnes did not agree with this assertion. Finally, Petitioner asked that he be allowed to take the examination, which would be the best indicator of whether he possesses the necessary knowledge to be a contractor. He also pointed out that each completed project must be inspected by a District employee, and that such inspections would verify and ensure that his work is satisfactory. However, the rules require that before the examination can be taken, certain requirements must be met. Petitioner has not satisfied those requirements.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the St. Johns River Water Management District enter a final order denying Petitioner's application to sit for the water well contractor examination. DONE AND ENTERED this 25th day of January, 2005, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of January, 2005.
The Issue The issue is whether Respondent should take corrective action by opening and removing a drain gate and dewatering an impoundment known as Lake Susan in Okaloosa County, Florida.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: a. Background On an undisclosed date, but at least several decades ago, a series of recreational earth dams and impoundments were built by a Mr. Kennedy, who developed an area now known as the Kennedy Lake Subdivision (Subdivision), which lies around five miles northwest of downtown Crestview. The small lakes created by the dams are known as the Kennedy Lake Chain, one of which is Lake Susan, which lies on Respondent's property. At least three or four of the upper lakes drain into Lake Susan through a series of large outflow pipes, which have been authorized by the District. The level of Lake Susan is regulated by a drain gate. The drain gate allows water to flow from Lake Susan through an approximate 100-foot drain pipe underlying a dam and roadway into another lake and wetlands area. The evidence shows that the dam which impounds Lake Susan is more than ten feet but less than twenty-five feet in height. See Petitioner's Exhibit 33. Thus, any work or alterations to the dam and impoundment are subject to the District's jurisdiction. See Fla. Admin. Code R. 40A-4.041(1)(a). According to Mr. Marcotte, the original drain pipe, or barrel, under the roadway was first installed by the County around 1939. The dam and impoundment were apparently built many years later when the Subdivision was developed. Because the evidence shows that barrels generally have a life of twenty years or so at most, it is likely that the pipe has been replaced at least one time since 1939, most likely when the dam was built. A small portion of the drain pipe under the dam (around thirty feet in length) is situated on Respondent's property while the remainder is located on County right-of- way. The parties agree that Respondent has the responsibility for maintaining the impoundment. (Documents submitted into evidence also suggest that the Lake Susan Homeowner's Association (Association), of whom Respondent is apparently a member, assumed this responsibility at one time.) Finally, at least a part of the dam which impounds the water is located on Respondent's property. A two-lane paved road known as Old Bethel Road runs over the crest of the dam and serves as an important connector road between State Highway 85 and U.S. Highway 90 just west of Crestview. On either February 22, 1973 or 1978, Associated Developers of Florida, Inc., whose relationship to Mr. Kennedy, if any, is unknown, quit-claimed its interest in the road to the County. See Respondent's Exhibit 3. (Because the copy of the deed provided by Respondent is partially illegible, there is some confusion over the exact date.) Since that time, the County has owned and maintained Old Bethel Road. Despite the quit claim deed, for several years after this dispute first arose in 1999 or 2000, the County denied responsibility for maintaining anything except the actual roadway above the dam. Thus, it denied responsibility for repairing the 70-foot portion of the drain pipe which lies on its right-of-way. At the hearing, however, a County representative acknowledged that it has the responsibility to maintain and repair that portion of the drain pipe which runs underneath the dam and lies in the County right-of-way. In 1996, Respondent, who is an engineer and professional helicopter pilot, purchased a residence on Lake Susan located at 1033 Tallokas Road (Section 1, Township 3 North, Range 24 West), Crestview. Tallokas Road is a local road which runs in a northeastern direction from Old Bethel Road (starting approximately 1.1 miles north of U.S. Highway 90) into the Subdivision. Lake Susan lies just north of the intersection of, and between, Tallokas Road and Old Bethel Road; Respondent's property faces Lake Susan to the southwest. In 1998, the Association performed certain repair work on the dam (apparently without authorization from the District), but Hurricane Georges struck the Florida Panhandle later that year causing at least three of the dams in the Kennedy Lake Chain to fail. When the upper dams failed, trees from those impoundments were swept into the deepest part of Lake Susan "knocking [the] standpipe off of its base." Except for a "rusted pipe," however, the dam did not otherwise fail. On August 5, 1999, Respondent (on behalf of himself and the Association), through his engineer, Mr. Dunn, filed an application with the District to perform certain repairs and alterations on the dam caused by Hurricane Georges. In the application, Mr. Dunn recited that Respondent would be responsible for all maintenance of the dam and associated appurtenances. On December 1, 1999, the District issued Surface Water Management Permit No. 4-99-021 (Permit) to the "Lake Susan Homeowners Association c/o Francis Marcotte" for the "Repair of Non-Agricultural Impoundment." The Permit provided that all construction should be completed by November 30, 2002. Under District protocol, once the construction work is successfully completed and approved, the District issues an Operation and Maintenance letter (O & M letter), which allows the permittee to impound water. Until an O & M letter is issued, however, a permittee cannot legally impound water. The District is authorized by rule to "to impose on any permit granted . . . such reasonable conditions as are necessary to assure that the permitted [activity] will be consistent with the overall objective of the District." Fla. Admin. Code R. 40A-4.041(3). Pursuant to this authority, the District imposed eighteen conditions in the Permit, two of which are described below. First, Condition No. 11 of the Permit required that the old spillway system in the dam be excavated and replaced unless the old piping system was determined to be serviceable. It also required that "[i]f the old piping system is determined to be serviceable, the District shall be notified by the project engineer." The District interprets this provision to mean that after the work authorized under the Permit has been completed, the project engineer (Mr. Dunn) must provide the District with a statement as to whether or not the entire piping system under the dam is serviceable. Mr. Dunn, however, construed the provision as only requiring him to certify that portion of the pipe which he found to be serviceable; no other statement was required. The District's interpretation is reasonable and is hereby accepted. Next, Condition No. 15 states that the authorized facility will not be considered complete until an As-Built Certification and Completion Report is filed by the project engineer, and the District determines that the project is in accordance with the approved design and any permit conditions stipulated in the construction authorization. The District interprets this provision to mean that unless all portions of the drain pipe which are not serviceable are replaced, including that portion which lies within the County right-of- way, the project will not be considered complete and no impoundment of waters will be allowed. This construction of the provision is a reasonable one and has been accepted. (The District has not involved itself in the dispute between Respondent and the County over who has the responsibility for replacing that portion of the pipe which lies in the County's right-of-way.) As required by Condition No. 5, on June 28, 2000, a pre-construction meeting was held. The meeting was attended by a County engineer, Respondent's wife, Mr. Dunn, the project contractor (B & H Moving Contractors, Inc.), and District personnel, including Mr. Laird, a District engineer. The discussions that occurred at the meeting are memorialized in a memorandum drafted by Mr. Dunn. See Petitioner's Exhibit 7. During preliminary excavation work performed by B & H Moving Contractors, Inc., it uncovered that portion of the outlet (drain) pipe lying on Respondent's property and found "two holes . . . in the second joint from the old riser" caused by corrosion. Based on this observation, which was disclosed at the pre-construction meeting, Mr. Dunn noted in his memorandum that the "entire pipe may have problems that could result in undermining Old Bethel Road." At the meeting, however, the County declined to agree that it would repair that portion of the pipe on its right-of-way until it could be established "that the pipe under the road was the responsibility of the County." On September 20, 2000, Mr. Laird received a telephone call from Respondent who said that the County had refused to replace the pipe and the parties were at an impasse. Respondent also told Mr. Laird that until the pipe was replaced, he would not shut the gate. Mr. Laird advised Respondent not to allow Lake Susan "to stage up" until the pipe was replaced. A summary of the telephone conversation is found in Petitioner's Exhibit 10, which was prepared by Mr. Laird immediately after the call. On September 26, 2000, Mr. Dunn advised Respondent by letter that B and H Moving Contractors, Inc. had completed the work on the dam in accordance with the plans and specifications. This included replacement of the drain pipe which lay on Respondent's property. The letter confirmed Mr. Dunn's understanding that Respondent had agreed to "not close the gate until Okaloosa County completes the replacement of their pipe under Old Bethel Road." See Petitioner's Exhibit 11. Over the following months, Respondent engaged in negotiations with the County in an effort to get the County to assume responsibility for its pipe. On August 17, 2000, the County advised Respondent that it would not replace the pipe. However, its engineer agreed to recommend to the Board of County Commissioners that the County would "cover the material cost of the pipe and the installation of the base and paving of the roadway." The actual work, however, would be performed by Respondent "[s]ince Lake Susan is a private lake and the pipe is part of the control structure for the lake." See Petitioner's Exhibit 12. Respondent was understandably reluctant to perform any work on County property since that would expose him to liability if a subsequent unforeseen event should occur. Although the work was probably completed much earlier, Mr. Dunn filed an "As-Built Certification and Completion Report by Project Engineer (Report) on April 1, 2002, as required by Condition No. 15. See Petitioner's Exhibit 13. That Report indicated as follows: The project was constructed in substantial conformance with the plans and specifications prepared by me. All hydraulic, structural, and environmental considerations appear to have been adequately addressed. The County still has not replaced their pipe under Old Bethel Road. The permittee has completed all work permitted to be done by him and, in my opinion, the project is completed. As noted above, Condition No. 11 required that "[i]f the old piping system is serviceable, the District shall be notified by the project engineer." According to Mr. Dunn, he did not include a certification on the County's drain pipe because he "highly suspected" that the drain pipe lying within the County right-of-way was unserviceable and in the same condition as the pipe found on Respondent's property. Therefore, he limited his certification to the thirty feet of pipe that was replaced. After the Report was filed, a lengthy series of correspondence between the parties ensued. On April 5, 2002, Mr. Laird wrote Respondent acknowledging receipt of the project engineer's Report. He stated that he was not in agreement with Mr. Dunn's certification that the project was complete because the parties had previously concluded at the pre-construction meeting that the entire pipe was unserviceable. He advised Respondent that the "impoundment must be dewatered and maintained in a dewatered condition until such time as this issue is resolved." See Petitioner's Exhibit 14. As a consequence, an O & M letter was never issued by the District. On May 7, 2002, Respondent responded to Mr. Laird's letter and stated that he was "continuing . . . to lower the lake to that of the adjoining one." He also stated that because he had done everything required under his Permit, he hoped that the matter would be considered complete. See Petitioner's Exhibit 15. On May 15, 2002, Mr. Laird responded to the above letter and reiterated that given the questionable condition of the pipe (which lay on County right-of-way), pursuant to Condition 15 the repairs to the impoundment would not be considered complete and the impoundment of water would not be authorized until the entire pipe had been replaced. He requested that Respondent "maintain the water in the lake at a lower level until such time as this issue is resolved." Finally, he reminded Respondent that the District's position on the on-going dispute with the County was that it did not matter who replaced the pipe, so long as it was "replaced and done in a legal manner." See Petitioner's Exhibit 16. By letter dated August 9, 2002, a District regulatory administrator, Mr. Morgan, advised Respondent that District staff had observed that Lake Susan was once again impounding water and that he must notify the District within fourteen days that the impoundment has been dewatered, together with his plans for the replacement of the pipe under Old Bethel Road. See Petitioner's Exhibit 17. On August 26, 2002, Respondent answered the above letter and advised in part that the outlet valve had been stolen by vandals which caused the lake to fill up but that "the valve is now open and the water level is falling." He also asked that his current permit be extended until the County agreed to perform the work. See Petitioner's Exhibit 18. In response to this request, by letter dated September 3, 2002, the District extended the deadline for completion of the project until March 1, 2003. See Petitioner's Exhibit 19. On November 21, 2002, Mr. Morgan again advised Respondent by letter that the District staff had observed that Lake Susan remained "at or near normal pool." The letter went on to say that while the District recognized Respondent's "difficulties in resolving [the issue with the County]," he was not allowed to impound water until the matter was resolved. See Petitioner's Exhibit 20. On March 3, 2003, a District field representative, Jerry Sheppard, met with Respondent concerning the level of water in the impoundment. He memorialized the conversation in a memorandum prepared the same date. See Petitioner's Exhibit According to the memorandum, the pond was "full due to excessive rains," and even though the gate was open, it had only "partial flow through the outlet pipe but [was] not opened adequately to pass storm water accumulated in the upper pond." The memorandum further stated that Respondent had assured him that "he will open the gate an additional round or two to allow further dewatering to take place while he is away on his job for the next two weeks." At the end of the meeting, Mr. Sheppard "strongly urged that the pond remain dewatered." On March 12, 2003, Mr. Laird advised Respondent by letter that his Permit had expired on March 1, 2003. This meant that Respondent could not undertake any work on the facility without District approval and that he must maintain the facility in a dewatered condition. See Petitioner's Exhibit 22. On January 21, 2004, Mr. Morgan sent Respondent a letter advising that the District staff had observed "that Lake Susan was once again impounding water to within 1.5 inches of the designed water level." He added that "the facility must be completely dewatered, and maintained dewatered, until such time as the issue has been resolved." The letter warned that if Lake Susan was not dewatered, a formal enforcement action would be initiated. Finally, the letter requested that Respondent contact the District within fourteen days "noticing [the District] that the impoundment has been dewatered and [that Respondent] plan[ned] to replace the old pipe under Old Bethel Road, or [Respondent] will remove the head gate from the riser base." See Petitioner's Exhibit 23. On March 3, 2004, Respondent, Mr. Laird, and various County representatives met in Crestview in an effort to resolve the issue of who would replace the remaining portion of the drain pipe. The discussions at the meeting are recorded by Mr. Laird in a memorandum dated March 4, 2004. See Petitioner's Exhibit 24. The memorandum states in part that "all [participants] agreed that the pipe is not serviceable as a spillway pipe." At the meeting, the County refused to accept responsibility for fixing the drain pipe. Its Public Works Director (Director) also stated that even if a quit claim deed showed that the pipe was on their right-of- way, the County would not repair the pipe; instead, the Director asserted that the County would prevent Respondent from impounding water. Finally, contingent upon the Board of County Commissioners approving her recommendation, the Director agreed to purchase the seventy feet of pipe if Respondent would perform all excavation work and install the pipe at his own expense. See Petitioner's Exhibit 24. By letter dated March 5, 2004, the Director confirmed in writing her previous offer to Respondent that she would request authorization from the County to purchase seventy feet of pipe, reconstruct Old Bethel Road after the pipe was replaced, and close the road during the construction process. However, the Director expected Respondent to provide all other necessary material and work effort associated with the pipe replacement. See Petitioner's Exhibit 25. On March 8, 2005, Respondent agreed to accept the County's offer. See Petitioner's Exhibit 26. Presumably based on this understanding, on March 8, 2004, Mr. Morgan advised Respondent that he would "allow up to 90 days for [Respondent] to be able to make the necessary replacement." This was followed by a letter from Mr. Laird on April 12, 2004, requesting that Respondent provide a proposed work schedule so that the District could generate an order extending the time for the work to be completed. See Petitioner's Exhibit 27. On April 27, 2004, Respondent (who was off-shore in the Gulf of Mexico on flight duty) sent a "rapid memo" to Mr. Laird advising that he had just received a verbal bid offer and would forward a work schedule as soon as a formal contract was signed. See Petitioner's Exhibit 29. He also sent Mr. Laird a memorandum on this subject on May 13, 2004, but that document was not made a part of this record. By letter dated May 19, 2005, Mr. Laird answered Respondent's two memoranda and indicated that two technical issues needed to be resolved. He also enclosed for Respondent's review a copy of a draft permit which authorized the work to be performed. See Petitioner's Exhibit 30. Sometime during this time period, and perhaps after he received the bid, Respondent decided that he would not assume the responsibility (and liability) for working on County property and offered instead to pay the County for one- half of the project's cost (which totaled around $25,000.00) so long as the County would do the work. Apparently, the County refused this offer, and the project was never undertaken. On August 12, 2004, a District administrator (Norman Velazquez) advised Respondent's counsel by letter and facsimile that District staff had inspected Lake Susan that morning and observed that "the impoundment was operating at full capacity contrary to previous District communications ordering the dewatering of it." The letter noted that the matter had been discussed by telephone the same day and that counsel had agreed that the information in the letter would be shared with Respondent in a timely manner. See Petitioner's Exhibit 31. By letter dated September 13, 2004, Mr. Velezquez again advised Respondent's counsel that a follow-up inspection that day revealed that "the impoundment was operating at full capacity." The letter also stated that Respondent "is required to dewater the unauthorized impoundment of water by Monday, September 21, 2004." Finally, Respondent was warned that if he did not dewater Lake Susan, it would "leave [the District] no choice but to issue an Administrative Complaint Order against Mr. Marcotte." See Petitioner's Exhibit 32. On February 1, 2005, the District issued its Administrative Complaint. Between April 2003 and December 2004, a District field representative (Mr. Sheppard) visited the site on a number of occasions. On each occasion, he observed that the impoundment was full and that dewatering had not occurred. In July 2005, the County reversed its position and agreed that it had the responsibility to replace the pipe if it was not serviceable. The County also agreed to hire a vendor who would place a special video camera in the pipe to detect any holes, rust, or other deterioration. The County further agreed that if defects were found, it would replace the pipe at its own expense. This was confirmed at hearing by the County's Risk Management Director. On August 25, 2005, the County advised Respondent by letter that the inspection had taken place, that the County was working on a solution and probably intended to "insert a sleeve inside the existing pipe" to correct the problem, and that the project had been assigned to the Public Works Director with "a high priority." The current status of the project is unknown. Although Respondent argues in his Proposed Recommended Order that the District has never established that the County's portion of the drain pipe is unserviceable, the greater weight of evidence shows the opposite to be true. Indeed, all of the experts who testified at hearing agreed that the drain pipe should be replaced due to its age and the defects observed when the dam was excavated and a portion of the pipe exposed for inspection in 2000. In addition, a part of the earthen dam is saturated with moisture, and voids have developed in the interior of the structure. Collectively, these conditions have led the District to properly conclude that the impoundment of the water constitutes a danger to the public since Old Bethel Road might collapse at any time. Because of this, no impoundment of waters should occur until the pipe is replaced.
Findings Of Fact Respondent is a well-drilling contractor, holding WWC License #7015. Ridge Properties, Inc., which is the developer of Sundance Ridge, hired Respondent to construct private water wells on lots as they were developed in preparation for the construction of residences. On December 5, 1991, Respondent prepared a completion report for a well that he constructed at lot 64 of Sundance Ridge. The report indicates that Respondent installed well casing to a depth of 63 feet, which was two feet into "hard brown rock," as described on the report. The report discloses that the static water table was encountered 78 feet below the top of the well casing. As indicated in the report, Respondent sent no cuttings to Petitioner for this well-drilling job. On April 24, 1992, Respondent prepared a completion report for a well that he constructed at lot 51 of Sundance Ridge. The report indicates that Respondent installed well casing to a depth of 67 feet, which was 12 feet into "bedrock," as described on the report. The report discloses that the static water level was encountered 76 feet below the top of the well casing. As indicated in the report, Respondent sent no cuttings to Petitioner for this well-drilling job. There is no completion report for the well that Respondent constructed at lot 62 of Sundance Ridge. However, based on information from the well tag, Respondent constructed this well on December 5, 1991, and its casing depth does not reach the static water level. There is no completion report for another well on Marshal Road that Respondent constructed for Shamrock Construction. However, Petitioner admits that Respondent has corrected any problems that may have existed regarding this well. The three wells that Respondent drilled for Ridge Properties, Inc. produced water with a substantial amount of particulate matter. The presence of particulate matter, which was largely sand, was attributable to the fact that Respondent failed to drive the well casings below the static water level in these three wells. Contrary to his claims, Respondent did not encounter chert in drilling these three wells or driving the casings for them. Chert is a dense consolidated mass of rock, often silica. It is more typically found in Alachua and Marion Counties than it is in the Sorrento area of Lake County, which is the location of these three wells. Respondent never repaired the three wells in question. Repair would have required driving the casing deeper until it extends below the static water table. Respondent never obtained a variance for driving the casings to a depth shallower than the depth of the static water level. On April 1, 1993, Petitioner issued warning notices for the three Sundance Ridge wells, plus the Shamrock Construction well. When Respondent failed to make the necessary repairs within the time allowed by the warning notices, Petitioner issued a Notice of Violation on August 13, 1993. The Notice of Violation alleges that the casings do not extend to or below the static water level in the four wells and that Respondent has received four warning notices over the "recommended repetitive total." The Notice of Violation seeks an administrative penalty of $2000, costs and attorneys' fees of $186.40, and correction of the violations within 30 days of entry of a final order and filing of completion reports within 15 additional days. Paragraph 15 of the Notice of Violation explains: This Notice of Violation (NOV) will become a Final Order of [Petitioner] and may be used in further disciplinary actions against your water well contractor's license if you do not comply with it, or do not timely request a hearing pursuant to Section 373.333, F.S., and Rule 17-531.400, F.A.C., as explained in this Notice of Rights. The Notice of Violation warns: [Petitioner] is not barred by the issuance of this NOV from maintaining an independent action in circuit court with respect to the alleged violations. Ten days after issuing the Notice of Violation, Petitioner issued a Technical Staff Report, which states that Respondent's water well contractor's license had been placed on six months' probation in 1991 and again in 1992. After Respondent completed repairs, the probationary status was removed in October 1992. The Technical Staff Report states that, since October 1992, Petitioner has cited Respondent for six additional violations of Chapter 40C-3. Two violations were reportedly "resolved." According to the report, Respondent "has attempted to correct the violations at the other four sites, but has been unable to drive the well casing any deeper.. The Technical Staff Report acknowledges that a Notice of Violation was mailed Respondent on August 13, 1993, due to noncompliance with the four warning notices. The Technical Staff Report mentions that Respondent has been issued 23 citations for violations of Chapter 40C-3, including 13 for not extending the casing to or below the static water level. The Technical Staff Report recommends that Respondent be placed on six months' suspension, during which time Respondent shall correct the deficient wells. If repaired by the end of the six months' suspension, then Respondent's license would be placed on six months' probation. During the term of probation, Respondent would be required to notify Petitioner's staff 48 hours in advance of beginning construction of any well so that staff could be present to ensure that the wells were lawfully constructed. The Technical Staff Report, which was mailed to Respondent on or about August 23, 1993, gives him an opportunity to request a formal hearing. On September 10, 1993, Respondent demanded a hearing by letter, which Petitioner received September 13. The demand references a "request for a formal hearing on notice of violation and order for corrective action," which is a reference to the Notice of Violation. The demand states that Respondent received notice of Petitioner's action by certified letter on "August 13, 1993." The demand adds: [Petitioner's] determination in the above matter can destroy [Respondent's] ability to earn a living in his profession, cause [Respondent] to lose his current employment, cause to continue extensive physical and emotional stress exerted on the above [Respondent] by [Petitioner], and cause the unjust ruination of his reputation in the community that he resides. Treating the demand for hearing as applicable to the Notice of Violation, but not the Technical Staff Report, Petitioner referred only the Notice of Violation to the Division of Administrative Hearings and immediately proceeded to suspend Respondent's license, based on his failure to file a separate demand for a hearing on the Technical Staff Report.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the St. Johns River Water Management District enter a final order suspending Respondent's license commencing from the effective date of the suspension imposed pursuant to the Technical Staff Report and ending six months thereafter, without regard to whether Respondent has repaired the three Sundance Ridge wells or ever repairs them. ENTERED on April 20, 1994, in Tallahassee, Florida. ROBERT E. MEALE 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 on April 20, 1994. COPIES FURNISHED: Henry Dean Executive Director St. Johns River Water Management District Post Office Box 1429 Palatka, FL 32178-1429 Attorney Clare E. Gray St. Johns River Water Management District P.O. Box 1429 Palatka, FL 32178-1429 C. L. Hicks 1935 CR 470 W. Okahumpka, FL 34762
The Issue The issues determined in this proceeding are whether Respondent engaged in construction contracting without a license as alleged in the Amended Administrative Complaint; and, if so, the appropriate penalty.
Findings Of Fact Parties Petitioner is the state agency responsible for regulating the practice of construction contracting pursuant to section 20.165 and chapters 455 and 489, Florida Statutes. Petitioner has jurisdiction over the unlicensed practice of construction contracting pursuant to sections 455.227, 455.228, and 489.13. At all times material to this matter, Respondent was the owner of Advanced Connections, LLC. Neither he nor his company is licensed, registered, or certified to perform construction contracting services in Florida. Respondent holds only certification to perform backflow preventer testing. At the heart of this case is whether Respondent may perform backflow preventer repair without a license, certification, or registration. Facts Related to Work Performed It is undisputed that Respondent performed repair of backflow preventers for customers in Tallahassee, Florida. On July 25, 2014, Respondent performed a backflow prevention assembly test on two existing backflow preventers at Old Enrichment Center located at 2344 Lake Bradford Road, Tallahassee, Florida 32301. Respondent provided an invoice to Old Enrichment Center following the backflow test, which described the work performed as follows: “I was able to repair both units and they are Functioning [sic] properly. I had to replace one additional part on, AS #10896, the #2 check cage was cracked. Thank you For [sic] your business. Don’t forget to cover the backflows.” The invoice reflected that Respondent was compensated $343.00 for the worked performed and materials. On August 20, 2014, Respondent performed a backflow test on an existing backflow preventer for Li-Ping Zhang at a property located at 2765 West Hannon Hill Drive, Tallahassee, Florida 32309. Respondent provided an invoice to the customer describing the outcome of the test, and he provided an estimate for repair as follows: Invoice: Thank For this opportunity to serve you. The unit is failing. The #1 check valve is leaking across it. That means it is not holding pressure. The Manufacture of flowmatic no longer makes parts for your unit. But my supplier does have a repair kit available. Due to the Fact are no longer made for your device it may be better to have the unit replaced with a Wilkins 975-XL. Please See Quote * * * Quote for repair: Part: Complete Rubber Kit-$30.00 Labor: This unit may not be repairable due to the fact that there is a limited supply of parts. If there is damage to the #1 Check. I will not be able to repair the unit. If that happens I can return the parts but a labor charge would still remain. Please call with any questions. Thank you. (Quoted text from invoice without correction of grammar.) Respondent ultimately performed the repair on August 25, 2014. The invoice issued to Li-Ping Zhang reflected service provided as “[t]he repair was a success. The unit is Passing [sic]. Paid Cash $115.00 8.25.14 — signed Ian.” Both invoices include the Respondent’s company name, Advanced Connections, LLC. There was no evidence presented of financial or property harm caused by Respondent’s actions. On or about February 2, 2015, Petitioner received a complaint from City of Tallahassee filed against Respondent for his repair of backflow preventers in Tallahassee, Florida. Petitioner commenced an investigation into Respondent’s actions through its unlicensed activity investigation unit. At the conclusion of the investigation, Petitioner filed an Administrative Complaint alleging Respondent engaged in construction contracting without a license. Respondent disagrees with Petitioner and argues that he is eligible for an exemption under section 489.103(9), commonly known as the “handyman” exemption. Life-Safety Matter Respondent’s eligibility for the exemption hinges upon whether repair of a backflow preventer is considered a life- safety matter. The Florida Building Code provides minimum standards for building construction to “safeguard the public health, safety and general welfare.” See § 101.3, Florida Building Code, Building. The Florida Building Code, Plumbing, applies to “the installation, alteration, repair and replacement of plumbing systems, including fixtures, fittings and appurtenances where connected to a water or sewage system . . . .” See § 101.4.3, Florida Building Code, Building. The plumbing chapter of the Florida Building Code defines a backflow preventer as a device or means to prevent backflow of water from flowing from one system into the potable water system.2/ A potable water supply system shall be maintained in such a manner so as to prevent contamination from non-potable liquids, solids, or gases being introduced into the potable water supply through cross-connections or any other piping connections to the system. § 608.1 Building Code, Plumbing. To further explain the purpose of backflow preventers, Petitioner offered Frank Hagen as a plumbing expert. Mr. Hagen, who has 42 years of plumbing experience, has been licensed in Florida since 1981 and is also licensed in Georgia. He holds a certification in backflow preventer testing (issued by the University of Florida TREEO Center) and backflow preventer repair. Mr. Hagen has regularly conducted on-the-job plumbing training for 36 years. Mr. Hagen was accepted as a plumbing expert. Mr. Hagen testified that a backflow preventer is a life-safety device. He explained that this reference is accepted throughout the plumbing industry because the backflow preventer protects water systems by preventing chemicals and poisons from entering the public water system. Mr. Hagen provided examples of potential outcomes if a backflow preventer fails (e.g., three children died as a result of drinking water from a water hose where poison in the sprinkler system contaminated the water). Mr. Hagen also testified that only a licensed plumber is authorized to perform backflow repairs. Mr. Hagen’s testimony is credible. John Sowerby, P.E., a licensed professional engineer for 35 years, who previously worked in the Department of Environmental Protection’s (DEP) Source of Drinking and Water Program, also testified regarding the nature of backflow preventers. He testified that backflow preventers protect public health because they prevent contamination of potable water systems (i.e., water that is satisfactory for human consumption). Mr. Sowerby’s testimony is also found to be credible. Respondent’s testimony that a backflow preventer is not a life-safety fixture, is not supported by the evidence. Respondent testified that backflow preventers are “plumbing fixtures” that are installed between the public water supply line and the private water supply line. Respondent also testified that if a backflow preventer fails, it could cause contamination of the public water supply and public health would be at risk. More importantly, the applicable building codes and the testimony of Mr. Hagen and Mr. Sowerby establish that backflow preventers prevent contamination of public water supply and protect public health. Given that backflow preventers safeguard public health by protecting the public water supply, they involve life-safety matters. The Department has incurred investigative costs in the amount of $415.95 related to this matter. Ultimate Findings of Fact Respondent’s repair of a backflow preventer on a water service line is a life-safety matter and as a result, Respondent is not eligible for an exemption under section 489.103(9). The evidence is clear and convincing that Respondent’s repair of a backflow preventer at the two properties referenced herein constituted the practice of construction contracting without a license. As a result, Respondent is guilty of unlicensed contracting, as charged in Counts I and II of the Amended Administrative Complaint.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation issue a final order that: Finds Respondent guilty of unlicensed contracting in violation of section 489.13(1), as alleged in Counts I and II of the Amended Administrative Complaint; Imposes an administrative fine of $6,000 ($3,000 for each count); and Requires Mr. Tuttle to pay the Department’s investigative costs of $415.95. DONE AND ENTERED this 26th day of October, 2016, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN 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 26th day of October, 2016.
Findings Of Fact At all times pertinent to the issues herein, the Southwest Florida Water Management District had permitting authority for the issuance of consumptive use permits in the area in which Respondent, El Jobean, proposes to sink its irrigation well. On December 12, 1988, El Jobean submitted a consumptive use permit application to sink a new well for the purpose of irrigation of a golf course to be developed on the property it owns in Sarasota County. The well is to be located in the NE 1/4 of the NE 1/4 of Section 32, Township 365, Range 20R, in Sarasota County, Florida near the southern boundary of an irregularly shaped piece of property consisting of approximately 855 acres, owned by the applicant, which extends over Sections 28, 29, 32 and 33, Township 365, Range 20E. Respondent proposed to sink a 10 inch diameter well to a total depth of approximately 900 feet with casing in the well now to extend down to 300 feet, with a pump capacity of 1,000 GPM. The golf course to be irrigated is to encompass approximately 190 acres. The applicant requested authority to withdraw an average of 600,000 GPD with a limitation of a maximum of 1,440,000 GPD. The application was properly staffed by the District. In the staff report on the application, the average daily use limitation was expanded to 707,000 GPD; consumptive use was raised from 0 to 139,000 GPD; and maximum daily consumption was reduced from 1,440,000 GPD to 1,240,000 GPD. These changes were due to correction of arithmetic errors in the application and were accepted by the applicant. The ultimate recommendation of the staff was for approval of a 6 year permit, subject to certain conditions outlined in subparagraph I of the staff report. These special conditions require the provision and use of flow measuring devices to maintain an accurate record of the water withdrawn; the maintenance of flow records and the providing of periodic reports to the District; the collection and analyzing of water quality of samples taken from the well to measure the appropriate parameters for chlorides, sulfates, and total dissolved solids; the reporting of the results of these samplings and a description of the sampling and analytical methodologies employed; and a requirement that the permittee investigate the feasibility of supplementing and/or substituting drawn water with treated sewage affluent. After the staff report was submitted, proper notice of the District's intent to issue the permit was published. Based on that notice, protests were filed both by Miakka and Mr. Bishop. The area in question is located within the Manasota Basin which, itself, is located within the Southern West-Central Florida Ground Water Basin, (SWCFGWB), which encompasses all of Pasco, Hillsborough, Manatee, Sarasota, Polk, Hardee, and DeSoto Counties, and parts of Lee, Glades, Charlotte and Highlands Counties. The SWCFGWB sits atop several aquifers which include the Floridian Aquifer, two Intermediate aquifers, and the Surficial Aquifer. The Floridian Aquifer is the deepest and the Surficial Aquifer is on the top. The Miakka Community Club is a Florida corporation made up of residents of the pertinent area whose primary function is to preserve and conserve the rural nature and spirit of the Northeast section of Sarasota County. The club performs this function through educational programs, community activities, and participation in the legislative process. Miakka urges denial of the permit sought by El Jobean based on its membership's belief that the property owners whose property is in the immediate vicinity of the proposed well will be adversely affected if El Jobean is permitted to sink its well and withdraw water from it. The club membership believes that approval of El Jobean's well will result in contamination of existing personal water wells due to excessive use by El Jobean; potential contamination of Sarasota County's future drinking water sources which include the capital Ringling,/MacArthur tract and the Myakka River; reduction of property values; and destruction of personal resources. Petitioner also urges that since the proposed golf course will be a part of a private club for the use of members only, in which membership will be limited, there is no public benefit derived from the approval of and sinking of the well in question. Petitioner also contends that during the periods of severe water shortage as are being currently experienced, permission to sink a well of this size to draw water in of the magnitude expressed in the application, would be counterproductive and detrimental to the interests of the other property owners in the area. In support of its claim, Petitioner presented the testimony of two homeowners from the area, Mr. Richardson and Ms. Mustico. Mr. Richardson, whose well is 183 feet deep, has had several problems with his well even without the instant drilling. In 1974, and subsequent thereto, he has had to go deeper with a suction pipe because the water has dropped below the level of the tail pipe. Ms. Mustico's 160 foot deep well, with 80 feet of casing, is used to supply water for the home. She also has other wells for watering her lawn and for livestock, one of which goes down 500 feet. She is concerned that the well proposed by El Jobean will adversely impact her ability to draw water from her wells because, she believes, the water level from which her water is drawn will drop. In the past, her primary well has gone dry and the wells of several neighbors have gone dry as well. Through maps and other documentation taken from the Ground Water Resource Availability Inventory for Sarasota County, Florida, prepared by the District in March 1988, Petitioner has established that areas of significant groundwater withdrawal within the SWCFGWB occur in Hillsborough, Manatee, Polk, Hardee, DeSoto and Highlands Counties. With the exception of an extremely small portion of Sarasota County located contiguous to Manatee County, there appear to be no areas of major ground water withdrawal currently existing in Sarasota County. The majority of the major municipal well fields within the pertinent basin that are located within Sarasota County, extend down to the Intermediate and Surficial Aquifers with only 3 extending through the lower Intermediate into the Floridan Aquifer. These include the Verna well field located in the northeast corner of Sarasota County where it abuts Manatee County; the Sarasota County well field located in northwest Sarasota County near the Manatee County line; and the Sorrento Utility, Inc., well field which is located near the Gulf Coast, approximately two-fifths of the way down between the Manatee and Charlotte County lines. With the exception of the Verna well field, all the municipal well fields in Sarasota County appear to be reverse osmosis systems and as of 1987, there were 28 reverse osmosis systems located within Sarasota County. Most are relatively small in their output measured in millions of gallons per day. With the exception of 3 public supply wells, 2 of which are permitted an average annual pumpage greater than 100,000 GPD and 1 of which is permitted less, all of the permitted public supply well fields in Sarasota County are located west and south of 1-75 as it extends from the Manatee County line in the north to the Charlotte County line in the south. The El Jobean well would be located east of the line, in that area occupied by the 3 public supply wells. Generalized recharge areas for the upper Floridan Aquifer in the groundwater basin in issue here have been categorized from "high", with a rate of more than 10 inches per year, to "Generally none", with a recharge rate at 0. In 1980, the high recharge rates existed in the north-central part of Pasco, the eastern part of Polk County, and the northeastern part of Highlands County. Sarasota County is in an area wherein the recharge rate was either very low or generally none. In September 1986, the high recharge rate was found in a very small area of northeastern Pasco County, and small areas in both Polk and Highlands Counties. Sarasota County, for the most part, was classified as having no recharge. In May 1987, the high recharge rates were, again, a small area in eastern Pasco County, a small area in northeastern Hillsborough County, a small area in southeastern Polk and northwestern Highlands Counties, and a minuscule area in central Pinellas County. Again, Sarasota County had a recharge rate of 0. Generalized estimated, calibrated, model-derived recharge and discharge values for the upper Floridan Aquifer in the ground water basin in issue here, as they pertain to Sarasota County, reflect positive 2 recharge to negative 1 discharge inches per year. Historically, however, the northeast portion of Sarasota County, where the El Jobean well in question would be located, evaluated by various individuals or agencies periodically from 1980 through 1988, reflects a recharge of anywhere from 0 to 2 inches per year. None of this documentation was supplemented, however, by direct testimony by an individual knowledgeable in this area, and Petitioner's main thrust appears to be an unsubstantiated fear that the sinking of El Jobean's well will have a negative impact on its membership's wells. Admittedly, the residents in the area in question all rely on private wells for the majority of their water supply, other than through the catchment of rainwater, which is insignificant. It was also established that the area has been undergoing a severe water shortage and that conservation measures have been mandated. On the other hand, El Jobean presented the testimony of a hydrogeologist, Mr. Moresi, who has extensive experience with the modeling process used to determine water consumption and recharge in southwest Florida and Sarasota County. The aquifer system in Florida is made up of water bearing limestone layers below the surficial sand base. This aquifer system underlays the various zones throughout the state and reflects a surficial aquifer extending from ground level down approximately 70 feet to a confining bed which separates it from the lower strata. This top confining bed is approximately 20 feet thick, and below it is the Tamiami-Upper Hawthorn Aquifer, which is between 100 and 200 feet deep and which rests on another confining bed somewhat thicker than the upper one. Below the second confining bed is the Lower Hawthorn-Upper Tampa Aquifer which extends approximately from the 250 foot to the 450 foot level at the Manatee County line, and between the 320 foot and the 710 foot level at the Charlotte County line. Another confining bed lays between this aquifer and the Floridan Aquifer which starts at the 500 foot level and goes down well below the 900 foot level in the north and extends from the 730 foot level down in the south. The confining bed below the surficial aquifer is made up of a clay material which retards the movement of water from one aquifer to another. The surficial aquifer is porous and saturated with water from the water table down. Since the confining beds are far less porous than the aquifers they separate, water moves much more slowly through them. The lower aquifers are made up of limestone and are also porous and contain water. The Tamiami-Upper Hawthorn formation consists of limestone and clay, but is water bearing. The Lower Hawthorn-Upper Tampa formation is similar and both make up the intermediate aquifer below which is the lower confining bed followed by the Floridan aquifer. Respondent's well would be cased in steel down to an area approximately 100 feet into the Floridan Aquifer, through the Lower Hawthorn- Upper Tampa Aquifer and through the lower confining bed. Since the well would be cased to well below the lower confining bed, water existing in the upper aquifers, would be prevented from being drawn down by operation, of the Respondent's well either directly or by settling down to replace the water drawn out. Generally, the deeper a well is drilled, the worse the quality of the water, and it becomes less potable. The Floridan Aquifer produces far more copious quantities of water than do the intermediate aquifers. However, since it is cheaper to drill to the intermediate zones as the wells need not be so deep, and since the water there is better, most domestic wells go no deeper than these aquifers. They go down approximately 150 to 180 feet. The pressure in each level is separate from and different from that in the other aquifers. The upper intermediate system generally has a lower pressure than the lower intermediate system. As a result, water from the lower intermediate system tends to leak upward toward the upper intermediate aquifer, rather than the reverse. In addition, a recent survey tends to show that the Floridan aquifer also tends to leak upward into the lower intermediate level. It also shows that leakage through the confining beds amounts to .002 GPD per cubic foot of aquifer. Petitioner claims that since the lower water is of lesser quality, and since withdrawal of water from the upper layers would promote leakage upward, thereby adding lower grade water to the better grade upper water, there could be a diminishment in upper level water quality as a result of water being drawn from the upper levels. However, according to Mr. Moresi, the .002 figure is so small it would result in an infinitesimally small drawdown of water level from the upper intermediate level aquifer and the potential for compromise of the water quality therein is remote. Clearly, this is not the result of drawing water from the Floridan Aquifer as the well in question would do but more the result of the residential wells extending into the upper levels. The District ran a model for the proposed El Jobean well (a Jacob- Hantush model) which showed that drawdown at the wellhead would be just over 2 feet. This means that use of the Respondent's well would reduce the water level in the Floridan Aquifer at the well head by 2 feet. However, this drawdown is shown to decrease rapidly out to where, at distance, it is almost immeasurable. In fact, drawdown of the Floridan Aquifer at 24,000 feet from the well head (approximately 4.5 miles) would be .1 feet, slightly or 1 inch. The .1 foot drawdown relates to the lowest (Floridan) aquifer and the resultant drawdown in the upper intermediate aquifer, into which the majority of residential wells are sunk, would be relatively undetectable. Since the Petitioner's wells, at their deepest, go only into the upper intermediate level, and would be separated by 2 confining beds from the Floridan Aquifer, the impact on the domestic wells at 2 miles from the El Jobean wellhead would be immeasurable. Even at 1 mile, there would be minimal drawdown in the Floridan Aquifer and almost none in the upper intermediate aquifer. The potentiometric surface of the intermediate layer would not be adversely affected, nor would that of the surface water. Recognizing the potential for saltwater intrusion which occurs all along the coast, based on his studies, Mr. Moresi concluded that the well in question here would not induce significant saltwater intrusion. He concluded as well that the permit is consistent with the requirements of the District rule; that the amount permitted for the use of irrigation of the golf course is reasonable, assuming a golf course is a reasonable and appropriate use of water; that the withdrawal by the well in issue would not have an adverse impact on users outside the property on which the well was located; that it would not impact existing users; that there is no other water available for the purpose intended; that the water taken from the Floridan Aquifer under this permit may be potable but is of poor quality; and that the applicant met rule standards. Mr. Moresi also discussed the possible cumulative impact of the proposed well when operated along with the currently existing wells. If there are other drawdowns from the same cone into which El Jobean's well would be sunk, the withdrawals would be cumulative. However, as best he can determine, the only other significant drawdown from the cone pertinent here is that of the Verna well field. In his opinion, that well field's drawdown, which is from the northeast, would not be significant even when considered with the El Jobean well. Mr. Moresi was also satisfied that while the confining bed separating the surficial aquifer from the next lower level might be disturbed, the deeper one goes, the less likely there is to be mixing of aquifers. The only instance where water could move from one level to another as a result of the well is where there is no casing on the bore hole. In the instant case, plans call for, and permit conditions require, the well to be cased to below the lowest confining bed. Consequently, there should be no upward or downward flow of water as a result of the bore. Mr. Tyson, who worked on the evaluation of El Jobean's application for permit, was of the opinion that the amount of water requested by El Jobean in its application was appropriate for a golf course. This does not mean that a golf course is an appropriate use of the property. The special conditions imposed on the granting of the permit by the District are designed to reduce any impact possibly caused by the permitted activity. The Jacob-Hantush model used in analysis of the instant application is considered to be a conservative tool and showed minimal drawdown at all property boundaries. The use of other models in this case was considered neither necessary nor appropriate. Mr. Tyson considers the proposed permit a reasonable beneficial use as defined in the Florida Administrative Code and statutes because it proposes use of reasonable amounts of water and the models indicate no unfavorable impact. Based on the past practice of permitting golf courses with subdivisions, he feels the proposed use is reasonable. He concludes, therefore, that it is in the public interest to grant this permit. In his opinion, the permit will not interfere with legal existing uses and meets all statute and rule requirements. Considering the evidence as a whole, it is found that petitioner has presented insufficient evidence to support its claim that approval and operation of El Jobean's well as proposed would have an adverse impact on the property owners. It's concerns are no doubt sincere, but these concerns are not sufficiently confirmed by evidence of record. At the hearing, the parties stipulated that if the permit were granted, it would be modified by the addition of two conditions: The proposed well shall be constructed with a minimum of 600 feet of casing so as to prevent the unauthorized interchange of water between water bearing zones in order to prevent the deterioration of water quality in the shallower zones. If the well cannot be properly completed to prevent such an unauthorized interchange of water, the well shall be abandoned and plugged in accordance with Rule 17-21.10(2)(c), F.A.C.. Upon completion of the well, a copy of the well construction completion report shall be sent to the District. The permittee shall line the bottom of the pond that will be used as the irrigation source, with clay to a thickness equal to 1.5 feet.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Southwest Florida Water Management District enter a Final Order issuing Consumptive Use Permit Number 209458, as modified by the conditions stipulated to at the hearing held herein on June 7, 1989, and outlined in Finding of Fact Number 27 herein, to El Jobean Philharmonic Group, Inc. RECOMMENDED this 9th day of August, 1989 at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of Division of Administrative Hearings this 9th day of August, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-1176 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. For the Petitioner: Not a Finding of Fact but a statement of the ultimate issue of fact. Accepted and incorporated herein. 3-6. Accepted and incorporated herein. 7-12. Accepted and incorporated herein. Accepted as indicating original conditions. The parties stipulated to additional conditions at the hearing. Accepted. 15 & 16. Accepted and incorporated herein. 17-33. Accepted and incorporated herein as pertinent. 34 & 35. Accepted. 36 & 37. Accepted. 38 & 39. Redundant. 40-43. Accepted. 44. Accepted. 45-51. Accepted. 52 & 53. Accepted. 54-56. Accepted. 57 & 58. Accepted and incorporated herein. 59-66. Accepted. 67-75. Accepted and incorporated herein. 76 & 77. Accepted and incorporated herein. 78. Accepted. 79-84. Accepted. Accepted and incorporated herein. Rejected. 87 & 88. Accepted. 89-93. Accepted and incorporated herein. Accepted. Accepted in the natural source sense suggested by Petitioner. 96-99. Accepted and incorporated herein. 100 & 101. Accepted and incorporated herein. 102-105. Accepted and incorporated herein. 106. Accepted. 107 & 108. Accepted. 109 & 110. Accepted. For the Respondents: 1 & 2. Stipulation between the parties accepted and incorporated herein. 3-6. Accepted and incorporated herein. Not a Finding of Fact but a comment on the evidence except for the second sentence which is incorporated herein as a Finding of Fact. Not a Finding of Fact but a comment on the evidence. 9-11. Accepted and incorporated herein. 12. Accepted. 13-16. Accepted and incorporated herein. 17. Accepted and incorporated herein. 18 & 19. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. 22-26. Accepted and incorporated herein. 27 & 28. Accepted and incorporated herein. 29. Accepted. 30-32. Accepted and incorporated herein. 33-40. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Not a Finding of Fact but a Conclusion of Law. COPIES FURNISHED: Becky Ayech Personal Representative Miakka Community Club 421 Verna Rd. Sarasota, Florida 34240 Douglas Manson, Esquire Blain & Cone, P.A. 202 Madison Street Tampa, Florida 33602 Edward B. Helvenston, Esquire Assistant General Counsel Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Peter G. Hubbell Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609 6899
Findings Of Fact On or about October 30, 1984, Lawrence E. Bennett, a consultant engineer for Peninsula, forwarded to DER's domestic waste engineering section an application to construct/operate a domestic wastewater treatment and disposal system along with the appropriate plans and a check for the fee. The package included proposals for construction of a 300,000 gpd splitter box and addition of a 100,000 gpd contact stabilization plant. Thereafter, on May 22, 1985, Mr. Bennett submitted a revised copy of the application pertaining to the 100,000 gpd expansion initially submitted as above. The revised application reflected Peninsula's proposed outfall to the Halifax River which was applied for under separate permit. By application dated October 7, 1983, as revised on May 15, 1985, Peninsula proposed to construct an outfall discharge into the Halifax River from the secondary treatment plant. By letter dated October 29, 1984, Mr. Bennett advised DER, inter alia, that the discharge rate would be an ADF of 1.25 mgd. The application for the additional 100,000 gpd plant and splitter box also provided for a chlorination facility. This expansion was needed because 200,000 gpd capacity is already committed to serve current residents and customers of the utility. The new construction is designed to accommodate established future demand. In Mr. Bennett's opinion, the design of this facility will accommodate all DER criteria and standards. The outfall facility proposed in the second project will be a pvc forced main for a part of the distance with iron pipe for the remainder and a lift station attached to pump the effluent to a point in the river selected where the river is deep enough to meet DER water criteria. The initial permit application on this project called for discharge into a portion of the river which did not meet water quality standards. As a result; DER suggested discharge point closer to the center of the river, and this change is now planned. At this point, the outflow will meet DER standards. Intents to issue the permits, as modified, were issued in August 1985. Peninsula has also filed for permits with the Florida Public Utilities Commission, the United States EPA, and the U.S. Army Corps of Engineers for these projects. The plans are based on the estimated population expansion called for in the next few years. Peninsula is fully capable, financially, of providing and paying for the projected improvements. In the past, it has always provided sufficient funding to do that which is called for under its permits and which is necessary. The waters in question here are Class III waters of the State, mainly recreational. There is no shellfish harvesting in the area because of the pollution of the Halifax River, condition which has existed since at least 1941. Results of tests conducted by experts for Peninsula show the quality of the water presently coming out of the treatment plant is cleaner than that currently existing in the Halifax River. The outfall pipe in question will have the capability of handling approximately 1,200,000 gpd. Latest reports from the water treatment plant indicate that the current average daily flow is 150,000 gpd representing approximately 75% of capacity. The design estimated for this project was based on a 250 gpd per unit use rate multiplied by the estimated number of units presently existing and to be constructed in the period in question. It is estimated however, that within two to three years even this project will be insufficient and Peninsula will have to file an additional request for expansion. Construction will have no detrimental environmental effect on the waters of the Halifax River. Mr. Bennett recommends discharge into the river rather than pumping the effluent backup to Port Orange because the local dissipation rate into the Halifax River, which is called for under these projects, is much quicker than that at Port Orange. Studies run on siting of the outfall pipe location which is close to Daggett Island included studies relating to dilution calculation and water quality of the effluent versus water quality of the river near the outfall. The project was, therefore, sited in such a manner as to provide for the least possible detrimental effect. Those studies, however, were for the original outfall location, not the present location as proposed by DER which is approximately 150 to 200 feet away. In the experts' opinion, however, there is very little difference in the two sites. The Daggett Island site is not unique in any way. It is a mangrove swamp of approximately 3 to 4 acres with nothing on it. Once the pipe is buried, it will be difficult to know that it is there. Even during construction, there would be little detrimental effect or disruption to the river ecology. Mr. Bennett's conclusions are confirmed by Mr. Miller; a DER engineer specializing in wastewater facility permits who has reviewed the plans for expansion of the plant for completeness and adequacy and found that they were both. The approval of the outfall pipe initially was made in Tallahassee based on the original siting. He reviewed it again, however, and determined that both projects are environmentally sound and conform to the DER standards. Rule 17-6, Florida Administrative Code, requires surface water discharge to have secondary treatment activity prior to discharge and the discharge cannot exceed 20% 80D and suspended solids. According to DER studies; the secondary treatment afforded the water at this location was adequate with the caveat that the District might want to require an extension of the outfall to the main channel of the river to promote tidal flushing of the effluent. It was this change which was; in fact, made by the District office. Without the change, the incoming tide would take the wastewater up into Daggett Creek. By moving it as suggested, west of the point of Daggett Island, the tide would go up river rather than into the creek taking the effluent with it. Concern over the creek is due to its limited natural flushing as opposed to the greater natural flushing of the river. It was the intent of all parties to achieve the desired result and move the outfall point; if at all possible, at no increase in cost. Consequently, the pipeline was moved at the same length with a slight possible addition to take the outlet to the same depth and this change became a condition to the issuance of the permit. The Peninsula will also need a dredge and fill permit in order to accomplish the work in question. The outfall plans (both construction and discharge) meet the requirements set forth in the pertinent provisions of Rule 17-6, Florida Administrative Code. DER evaluated post- construction, concluding that the new point source discharge would not violate these standards. However, prior to approval of these projects, DER did not perform a biological, ecological, or hydrographic survey in the area. As a result, it cannot be said that the criteria outlined in Rule 17-4.29(6), Florida Administrative Code, will not be adversely affected by the outfall pipe. Nonetheless, these surveys were not deemed necessary here. EPA denial of the NPDES (National Pollution Discharge Elimination System) permit, would have no impact on DER's intent to issue the instant permits. NPDES permits have no bearing on the state permitting process. If the NPDES permit is denied, the utility cannot discharge its effluent into the river. The state permit merely authorizes the construction. The NPDES permit applies to the outfall portion of the project, not to the treatment plant. Only if it could be shown there was a longstanding adverse effect on the water quality so as to bring it below standards, would this construction not be permitted. The depth of the water in the proposed area of the outfall is five feet. A 12-inch pipe would extend below the soil with an upturn to exit into the bottom of the river. Short term impacts of actual construction are not relevant to the permitting process. If there are any, they would be related to and considered in the dredge and fill permitting process. This conclusion is supported by the testimony of Jan Mandrup-Poulsen, a DER water quality specialist who, in his analysis of the instant projects, first looked at the plans for the outfall just a week before the hearing. By this time, the water quality section of DER had previously considered the project and he is familiar with the suggested change in the outfall location. In November 1985, he spent several days on a boat on the Halifax River in this area collecting data. His inquiry and examination showed that in the area in question, there are no grass beds, oyster beds, or anything significant that would be adversely affected by the location of the pipe and the outlet. The pipe outlet, as suggested, is far enough out into the river to keep it under sufficient water at all times to promote adequate flushing. In his opinion, the proposed discharge will be quickly diluted and will not violate the standards or other criteria set out in Section 17-3.121, Florida Administrative Code. In contrast to the above, Mr. Richard Fernandez, a registered civil engineer with a Master's Degree in environmental engineering, who did a study of these projects for TPI, indicated that the County 201 plan relating to this area, mandated by the federal government, calls for the eventual closing of all independent wastewater treatment plants with ultimate delivery of all wastewater to the Port Orange facility. If implemented, this plan calls for the conversion of the Peninsula facility to a pump station for the transmittal of effluent to Port Orange. In his opinion, the proposed discharge standard, as evaluated here, for the secondary treatment facility, is very high for such a facility. He feels the surface water discharge content of dissolved oxygen and suspended solids should be lower. In addition, he is of the opinion that the degree of treatment of discharged water required by the facilities in question here is too low and lower than typical secondary discharge points elsewhere in the area. Nonetheless, Mr. Fernandez concludes that while the intended facility here would probably not lower the quality of river water below standards, it is not in the public interest to construct it. Having considered the expert testimony on both sides, it is found that the construction requested here would not create sufficient ecological or environmental damage to justify denial. The proposals in the 201 plan calling for the transmittal of all effluent to Port Orange would not be acceptable to DER. The cost of such a project and the ecological damage involved would be so great as to render the project not even permittable. The currently existing percolation ponds used by the facility at Port Orange are not adequate to serve current needs and leech pollutants into the surrounding waterway. While the exact transmission routes called for under the 201 plan are not yet set, there would be substantial ecological problems no matter what routing is selected. There would be substantial damage to bird habitat, mangrove, and other protected living species unless some way were found to get the pipe across the river in an environmentally sound fashion. Consequently, DER has taken the position that the current proposals by Peninsula are superior to any plan to transmit waste to Port Orange.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore RECOMMENDED THAT DER: Enter an order dismissing with prejudice Volusia County's Petition in DOAH Case No. 85-3029 and, Issue permits to Peninsula Utilities, Inc., for the construction of a 100,000 gpd expansion to its existing wastewater treatment plant and to construct a river outfall line as was called for in the amended specifications listed in the application for this project. RECOMMENDED this 25th day of April, 1986, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of April, 1986. COPIES FURNISHED: Martin S. Friedman, Esquire Myers, Kenin, Levinson & Richards 2544 Blairstone Pines Drive Tallahassee, Florida 32301. Deborah Getzoff, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Rd. Tallahassee, Florida 32301 Lester A. Lewis, Esquire Coble, McKinnon, Rothert, Barkin, Gordon, Morris and Lewis, P.A. P. O. Drawer 9670 Daytona Beach, Florida 32020 Ray W. Pennebaker, Esquire Assistant County Attorney P. O. Box 429 Deland, Florida 32720 Victoria Tschinkel Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings Of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by Petitioner, TPI 1-2. Accepted in paragraph 17. 3-4. Rejected as contra to the weight of the evidence. Rulings on Proposed Findings of Fact Submitted by Peninsula 1-13. Accepted in the Findings of Fact of the Recommended Order. Rulings on Proposed Findings of Fact Submitted by Respondent, DER 1. Accepted and incorporated in Finding of Fact 1 and 2. 2-3. Accepted and incorporated in Finding of Fact 5. 4-5. Accepted and incorporated in Finding of Fact 20 and 21. 6. 7. Accepted in Finding of Fact 19. 8. Accepted in Finding of Fact 14. 9. Accepted in Finding of Fact 9. 10. Accepted in Finding of Fact 8 and 21. 11. Accepted in Finding of Fact 14 and 17. 12-13. Accepted in Finding of Fact 14 and 17. 14-15. Rejected as a statement of evidence and not a Finding of Fact. Accepted in Finding of Fact 17. Recitation of Mr. Miller's testimony is not a Finding of Fact. The conclusions of Mr. Mandrup- Poulsen's testimony is not a Finding of Fact. Recitation of Mr. Mandrup-Poulsen's testimony testimony is not a Finding of Fact. Accepted in Finding of Fact 23. Recitation of testimony is rejected as not a Finding of Fact. Conclusions drawn from that testimony accepted in Finding of Fact 24.
