The Issue The issues to be resolved in the proceeding concern whether the Respondent, a licensed septic tank contractor, installed twelve septic tank systems at eleven locations in Bay and Walton Counties in which the required filters were removed, allegedly violating the various provisions of Chapter 381, Florida Statutes, and Chapter 64E-6, Florida Administrative Code, cited and discussed herein below and, if that is the case whether an administrative fine should be imposed.
Findings Of Fact The Petitioner is an Agency of the State of Florida charged, in pertinent part, with regulating the licensure and compliance of septic tank contractors with the statutory and regulatory authorities cited herein. That authority includes the inspection and approval of the installation of septic tank and drainfield waste disposal systems in Bay and Walton Counties, Florida. It includes the authority to prosecute alleged violations of the statutes and rules regarding appropriate and legal installation of septic tanks and drainfield systems as are involved in this case. The Respondent, John E. McDaniel, is a licensed septic tank contractor subject to the Department's jurisdiction and regulation. His firm installed twelve septic tank systems at eleven locations in Bay County, Walton County and one in Fountain, Florida. Final inspections were conducted on those systems from May 7, 1998 through January 11, 1999. Thereafter, acting on information and belief, the Department inspected those systems again and found that after final inspections that eleven legally required filters from eleven septic tank systems had been removed after the previous "final inspection." The removal of those filters was without authorization and contrary to the portions of the Florida Administrative Code cited below. The petitioner agency took the position that the Respondent and his company were responsible for the illegal removal of the septic tank filters and took initial Agency action assessing a fine in the proposed amount of $3,300.00, $300.00 per violation. The Respondent contested that initial agency action bringing about the subject formal proceeding and evidentiary hearing. Mike Guyne is the Environmental Health Director of the Bay County Health Department. He is familiar with three incidents of prior discipline where the Respondent was subjected to fines for two citations issued by the Department in 1996. Septic tank filters are required on all septic tanks. Although homeowners or persons other than the septic tank contractor could remove the filters, it would be difficult because the lids covering the filter weigh fifty to seventy-five pounds and are sealed with cement mortar and then covered with a layer of dirt. Thus if any person were to remove the subject septic tank filters it would be most easily accomplished before the system is sealed with mortar and before it is covered with dirt (i.e., after the final inspection of the system was made but before it was covered up). On February 16, 1999, Joseph W. Miner, an Environmental Health Specialist for Washington County, went to a site in Washington County to inspect a septic tank system installed by Superior Septic Tank Company (Respondent). The filter in that system had been painted orange on the top but the installers had already moved to another job and so Mr. Miner was unable to question them regarding the origin of that filter. Mr. Miner went to the next site to inspect a septic tank system also installed by Superior Septic Tank Company, and the filter in that septic tank system had also been painted orange on its top. Some counties mark filters by spray painting them when they are put into service to keep them from being removed and used in another system. Mr. Miner engaged in a conversation with an employee of the Superior Septic Tank Company whose name is unknown (gray- haired gentleman with a ponytail) at the second location. This employee was in the company of co-employee Mike Parker who testified in this case. He was questioned by Mr. Miner. This employee told Mr. Miner that Walton County had marked those filters and once the inspections were complete and the inspector left those Walton County job sites that, if the homeowner did not want a filter on the system, employees of Superior Septic Tank Company removed the filters before sealing the tank and system. This same employee also told Mr. Miner that they could not re-use the orange painted filter in Walton County because they would be detected as having already been painted (for identification reasons by Department personnel) and therefore, if they were installed in a different system later the inspector would know that they had been removed from a previous system. Consequently, this employee told Mr. Miner that the painted filters from Walton County were thereafter used in Washington County system installations. When Mr. Miner questioned this employee about the authority for removing the filters he was told that Mr. McDaniel, the Respondent and the owner of Superior Septic Tank Company, had indicated that he had authorization "from Tallahassee" authorizing the filter removal. Mr. McDaniel himself stated in a phone conversation with Mr. Miner that he had a verbal agreement to remove filters from septic tanks with the Director of Environmental Health for Bay County. In any event, in Washington County no septic tank systems are approved for final inspection unless filters are installed according to Mr. Miner. Amanda Brown had septic tank systems installed by the Respondent at two sites. These systems later began failing and at that point an employee of the Respondent, who happened to be Brown's brother, Charles Eldridge, told Ms. Brown that the filters in her systems had been removed after final inspection. Environmental Health staff personnel later opened those three systems installed by the Respondent company in Ms. Brown's presence. Two of the three systems had no filters installed. Ms. Brown had not authorized removal of those filters. Ken Manley is a contractor who builds residential homes including those at the addresses depicted in Exhibits three and four. Mr. Manley did not authorize the removal of the filters from the septic tank systems referenced in Exhibits three and four, although someone removed them. George Stanley Pitts is a land developer who contracted with Superior Septic Tank Company and Mr. McDaniel to install septic tank systems. The systems were installed at the locations referenced in Exhibits five, six, seven and eight in evidence. Mr. Pitts had a conversation with personnel of the Superior Septic Tank Company who told him that the Health Department had authorized leaving filters out of the systems if the owner did not object. Mr. Pitts maintains that he did not remove nor authorize removal of the filters referenced in those exhibits and yet they were removed. James Buchanan owns property that is referenced in Exhibit nine in evidence. He had a septic tank system installed by the Respondent on Angie Road as referenced in Exhibit nine. He did not authorize removal of the filter from the septic tank system at that location although they were removed after the final inspection. Thomas Owen as well had a septic tank system installed at 12034 Oak Avenue, in Fountain, Florida, as depicted in Exhibit ten. It was installed by Superior Septic Tank Company. After the final inspection was done on the system, the filter was removed although Owen states that he did not authorize removal of the filter from his septic tank system. Charles Eldridge was employed by Superior Septic Tank Company and John McDaniel. He was employed at four different times during a five-year period including 1998. When he was employed in 1998, the installation of filters in septic tank systems was a relatively new requirement. Mr. Eldridge performed work on his sister's septic tank systems which are described in Exhibits one and two in evidence. He removed the filters from those systems. Mr. Eldridge maintains that Mr. McDaniel told employees and frequently reminded them to remove filters from septic tank systems after final inspections were performed by Health Department officials. Mr. McDaniel, according to Eldridge, told his employees that the filters cost from $28.00 to $38.00 and could be used again in a later system (implicitly for reasons of saving money). Kevin Cobb is a Environmental Health Specialist for the Walton County Health Department. He is an inspector of septic tank systems. He did a final construction inspection and a final inspection of the septic tank system installed by Mr. McDaniel's Superior Septic Tank Company which is described in Exhibit eleven. When he performed the final inspection he spray-painted the top of the filter with orange paint, which is the practice and policy in Walton County as a means to show that that filter had been used; therefore if it appears in a later-constructed and installed system it will show the inspector at that later time that the filter had previously been used and illegally removed from another system. Mr. Cobb was accompanied by another Health Department employee and re-inspected the septic tank system described in Exhibit eleven. After removing the lid over the filter location he found that there was no filter in the outlet "T" fitting, although orange paint remained on top of the "T" fitting as shown in the photographs, in evidence as Exhibits sixteen and seventeen. Mr. Cobb discovered the filters were missing in two of the three systems installed by Superior Septic Tank Company which he inspected. Ralph McDonald is an Environmental Health Inspector for the Bay County Health Department. He inspected the septic tank systems depicted in Exhibits one, two, six, nine and ten, which were installed by the Superior Septic Tank Company. When he made the construction inspection of those systems he found filters to be in place in those systems. He did not authorize removal of the filters. Brian Hughes is also an Environmental Health Inspector for the Bay County Health Department. He made the construction inspection on septic tank systems referenced in Exhibits three, four, and eight in evidence, which were also installed by the Superior Septic Tank Company. When he made that inspection he found the filters to be properly in place. He also would not authorize removal of filters from septic tank systems nor approve permitting systems which did not have filters. After final approval of the septic tank systems referenced in Exhibits two, five, six, seven, eight, nine and ten, the Bay County Health Department re-inspected those systems and found according to Mr. Hughes and Mr. Darsey's testimony, as well as Mr. Ellis', that the filters were then missing from those same systems. Thus they had been removed after the final construction and inspection had been performed. Carl Darsey is a Supervisor in Environmental Health for the Bay County Health Department. The septic tank systems installed by the Superior Septic Tank Company described in Exhibits five and seven also had filters at the time the construction approval inspection was performed. Mr. Darsey never authorized removal of those filters nor would he approve systems without the filters in place. Leroy Ellis is employed in the Disease Intervention section of the Bay County Health Department and accompanied the other named employees of the Bay County Health Department on the re-inspections of the above-referenced septic tank systems. His testimony corroborates that of Hughes and Darsey. After final approval of the septic tank systems referenced in Exhibits three and four, Mr. Guyne, with other environmental health staff of the Bay County Health Department, re-inspected those systems installed by the Superior Septic Tank Company and found that the filters were missing from those systems as well. Septic tank system filters are designed to clean the effluent and add longevity to the septic tank systems, to help prevent clogging of the drainfields. Filters have been installed in all septic tanks according to Department rules and policies for approximately the last two years and, according to Mr. Guyne, no complaints on system failures have been brought to the Bay County Health Department's attention related to filters. Mike Parker is an installation supervisor employed by the Superior Septic Tank Company. He had a conversation with Mr. Miner in Washington County and informed him of customer problems with maintenance of the filters. Mr. Guyne established, however, that homeowners are responsible for problems with their septic tank filters after the final inspection. It was not established, however, that any of the homeowners or customers of the Superior Septic Tank Company and Mr. McDaniel removed the filters themselves. Initially, in approximately early 1998, Mr. McDaniel took the position that he had some informal authority from Health Department Personnel to remove filters and so informed Mr. Eldridge and Mr. Miner. Later, however, when the dispute arose concerning the removal of the filters and who might have removed them, he took the position that he did not remove any filters. In a one-year period Mr. McDaniel's installation personnel typically installed about two hundred and fifty septic tank systems. In Walton County two filters were missing out of three tanks checked, and in Bay County ten filters were missing out of fourteen tanks checked. Mr. Eldridge testified that if an inspector remained on a site during the time that the system was being back-filled or covered up then the filter would be left in the system. Thus two employees of the Respondent stated that they were instructed to remove the filters after the final inspection. Moreover, a random sampling of septic tank systems installed by the Respondent established that a great majority of them had had the filters removed. The explanation that vandals may have taken the twelve filters does not make sense. It strains belief to think that twelve of seventeen septic tanks would be vandalized and then only vandalized as to the removal of filters with no other damage done to the systems. Further, the two employees testifying on behalf of the Respondent have testimony deficient in materiality or weight. Mike Parker was not employed by the Respondent when the installations of the majority of these systems occurred. He had no knowledge of doing the installation on the eleven systems involved and was not working for McDaniel during the relevant period in 1998. He was not aware that filters in Walton County are painted with orange paint to try to prevent their removal and re-use, and does not remember any orange paint on filters installed in Washington County, which was clearly established to be the case on the filters that Mr. McDaniel was installing. Additionally, Mr. Halstead's memory is deficient because upon being questioned about annual installations performed, his testimony varied about how many weekly or annual installations are performed. Mr. Halstead stated that he had never seen any filters in Walton County painted with orange paint when the testimony of Mr. Cobb, corroborated by the photographs in evidence, show that they clearly were painted with orange paint in Walton County. Thus both Mr. Halstead and Mr. Parker's testimony is entitled to little weight. Mr. McDaniel submitted a report in evidence showing that Charles Eldridge had apparently used marijuana at one point and had gotten into an altercation resulting in a trespass warning from the Sheriff's Department. This was supposedly related to a dispute over payment of wages, in conjunction with Mr. Eldridge apparently quitting his job with Mr. McDaniel in anger. This evidence was intended to show that Mr. Eldridge was a disgruntled former employee who might therefore have a motive to lie in his testimony to retaliate against Mr. McDaniel for perceived past grievances. The evidence shows clearly, however, that after this report was entered concerning Mr. Eldridge and after their verbal altercation, that, according to Mr. McDaniel's own testimony, he had hired Mr. Eldridge several more times. Thus there is an insufficient demonstration in the evidence of a motive on the part of Mr. Eldridge to actually lie in retaliation against Mr. McDaniel. Mr. Eldridge had apparently become upset when he worked for Mr. McDaniel because of a shortage of pay due him and Mr. McDaniel testified that he admittedly had caused that problem with Mr. Eldridge, but this does not warrant a finding that Mr. Eldridge's testimony was fabricated. This is because the statement made to Mr. Miner by the "gray-haired employee with the ponytail," who made the incriminating statement about instructions from Mr. McDaniel to remove filters, was not refuted, which fact corroborates Mr. Eldridge's testimony. That employee clearly stated that the fluorescent painted filters came from Walton County and were removed from Walton County septic tank systems and then re-used in Washington County. The reason given for the removal was that Mr. McDaniel had instructed his personnel to remove them. That is consistent with the testimony given by Mr. Eldridge. Mr. Miner phoned Mr. McDaniel back at the time the question first arose concerning the Walton and Washington County systems, and Mr. McDaniel told him that he had authorization from the Environmental Health Director in Bay County to remove filters. That authorization was shown never to have existed even if relevant. Later, at hearing, Mr. McDaniel denied making that statement and said that he never removed any filters at all. That assertion renders his testimony inconsistent and thus it cannot be credited.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, recommended that a final order be issued by the Department of Health finding that the Respondent committed the violations charged and assessing a $3,300.00 fine against the Respondent. DONE AND ENTERED this 23rd day of March, 2000, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of March, 1999. COPIES FURNISHED: Rodney M. Johnson, Esquire Chief Legal Counsel Department of Health Northwest Law Office 1295 West Fairfield Drive Pensacola, Florida 32501 Gary W. Tennyson, Esquire 3235 Lisenby Avenue Panama City, Florida 32405 Angela T. Hall, Clerk Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1703 Amy M. Jones, Acting General Counsel Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1703
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 Whether Petitioner is entitled to a passing grade on the Self Contained Breathing Apparatus section (the SCBA section) of the Firefighter Minimum Standards Examination (the Examination) administered September 25, 2003.
Findings Of Fact Petitioner applied to Respondent for certification as a firefighter. Pursuant to Section 633.35, Florida Statutes, Petitioner was required to take and pass the written portion and all four sections of the practical portion of the Examination to achieve this certification. The practical portion of the Examination consists of four sections: the SCBA section; the Hose and Nozzle Operation section; the Ladder Operation section; and the Fireground Skills section. On May 29, 2003, Petitioner took both the written and practical portions of the Examination. She passed the written portion and three sections of the practical portion. Petitioner failed the SCBA section. Petitioner was not required to retake the written portion of the examination or the three sections of the practical examination she passed. Petitioner thereafter retook the SCBA section on September 25, 2003. As implied by the name of the section, the SCBA section involves the use of equipment that enables a firefighter to breathe in a hostile environment, such as a burning building. The candidate must check the equipment, properly don the equipment, activate the equipment, and properly doff the equipment. Mr. Chase was responsible for administering and grading Petitioner’s retake of the SCBA section on September 25, 2003. To pass each section of the practical examination, including the SCBA section, a candidate has to achieve a score of at least 70 points.2 The candidate’s performance on the SCBA section is graded in ten categories, with each category being worth ten points. The greater weight of the credible evidence established that Petitioner's performance on the SCBA section of the practical examination was appropriately and fairly graded. Petitioner earned a score of 40 points on her retake the SCBA portion of the practical examination. Petitioner was awarded no points for six of ten categories for which points could be awarded.3 Petitioner failed to establish that she was entitled to additional credit for her performance on the SCBA section. Respondent established that Mr. Chase appropriately administered and graded the subject SCBA section pursuant to the applicable provisions of Chapter 69A-37, Florida Administrative Code, which set forth guidelines for the practical examination.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding that Petitioner failed the SCBA section of the practical portion of the Firefighter Minimum Standard Examination administered September 25, 2003. DONE AND ENTERED this 25th day of June, 2004, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 June, 2004.
The Issue The issue is whether Respondent violated Sections 455.227(1)(a) and 471.033(1)(g), Florida Statutes.
Findings Of Fact Mr. Maples is a licensed professional engineer in the State of Florida. He holds license no. PE 10214, and he practices engineering in the Panama City, Florida, area. During all times pertinent Mr. Maples held an active license and practiced pursuant to it. FEMC is charged with providing administrative, investigative, and prosecutorial services to the Board pursuant to Section 471.038, Florida Statutes. The Board exists pursuant to Section 471.007, Florida Statutes, and is authorized to discipline engineers under its authority by Section 455.225, Florida Statutes. Mr. Maples signed and sealed three pages of sprinkler system plans for the Wellness Center at Gulf Coast Community College (Wellness Center), located in Panama City, Florida. These plans were admitted as Petitioner's Exhibit No. 2. No date can be observed on the seal on Petitioner's Exhibit No. 2. It either is illegible or a date was never placed upon it. Hydraulic calculations, which use drawings as a source document, and which appear to coincide with Petitioner's Exhibit No. 2, were dated November 15, 2001. It is deduced, therefore, that Petitioner's Exhibit No. 2 was drawn on or about November 15, 2001. Petitioner filed an Administrative Complaint against Respondent on April 1, 2005. The Administrative Complaint alleged that the plans and calculations for the Wellness Center demonstrated negligence in the practice of engineering. That charge resulted in an final hearing conducted by Administrative Law Judge Stephen Dean on August 11, 2005. That case number was DOAH Case No. 05-2049PL. On October 13, 2005, Judge Dean recommended that the Complaint be dismissed. One of the allegations of negligence in 05-2049PL, related to a charge that inadequate water would be supplied to the hydraulically most demanding (HMD) area in the event of a fire. It was alleged, and proof was elicited, that a single 1 and 1/4-inch pipe traveling from a riser, across the men's shower area to the women's shower area, would be insufficient. This pipe is identified on Petitioner's Exhibit No. 2 as a line between Node 45 and Node 25. This pipe leads to a "T" intersection and further piping carries water, when activated, to the women's shower area. The matter of whether adequate water would be supplied to the HMD devolved into whether the plans called for one 61- foot long, 1 and 1/4-inch diameter pipe, or two 61-foot long, 1 and 1/4-inch diameter pipes. Because there was no pump provided on the drawings, and in fact there was no plan to install a pump, two 61-foot long, 1 and 1/4-inch diameter pipes were necessary to provide sufficient water in case of fire. As was illuminated in Case No. 05-2049PL, calculations were made, based on the drawings, in order to ensure that the HMD area will receive 1500 square feet of coverage per sprinkler head required by the contractor. The coverage required by the contractor exceeds that required by National Fire Protection Association-13 standards. HMD calculations are made at a point most remote from the source of water. The hydraulic calculations are produced through the use of a commercially produced computer program. Calculations from Case No. 05-2049PL became Petitioner's Exhibit No. 3 in this case. At the hearing in Case No. 05-2049PL, the allegation that the fire sprinkler plans signed and sealed by Mr. Maples would not provide adequate water pressure to the HMD area was rejected by Judge Dean. This is because Mr. Maples claimed that the plans, when viewed in light of the calculations, actually depicted two 61-foot long pipes, 1 and 1/4-inch and Judge Dean, while determining that the depiction was inadequate for that purpose, found in essence that adequate water would be provided to the HMD. Mr. Maples works closely with Chris Thomas, a sprinkler contractor whose license does not permit him to design a fire suppression system that consists of more than 49 heads. Their working arrangement is such that it would be expected that Mr. Thomas would understand Mr. Maples' drawings even if they were not as complete as they would be if the drawings were made for a contractor other than Mr. Thomas. In fact, Mr. Thomas participated in the production of the drawings signed and sealed by Mr. Maples. More than one set of drawings were used for the Wellness Center project. The project came under the jurisdiction of the Florida Department of Education. That agency approved the plans and the Florida State Fire Marshal approved the plans, although it is not certain that the plans those agencies approved were Petitioner's Exhibit No. 2. There were errors in the data entry on the hydraulic calculations. The building was completed prior to the time Case No. 05-2049PL was heard on August 11, 2005. Using the plans drawn by Mr. Maples, Mr. Thomas's foremen for the Wellness Center installed a single pipe between Node 45 and Node 25. On a weekend subsequent to the hearing in Case No. 05-2049PL, Mr. Thomas went to the Wellness Center and discovered that only one 61-foot long, 1 and 1/4-inch diameter pipe had been installed in the area represented to be between Node 45 and Node 25. Mr. Thomas immediately installed a second 61-foot long, 1 and 1/4-inch diameter pipe. Mr. Maples never went to the site and, accordingly, was unaware at the time he testified in Case No. 05-2049PL, that only one pipe had been installed. The Administrative Complaint lists five statements made by Mr. Maples in Case No. 05-2049PL that are alleged to express "an opinion publicly on an engineering subject without being informed as to the facts relating thereto." The five statements are further alleged to describe testimony that was, "untruthful, deceptive, or misleading in any professional statement or testimony." As noted above, the statements do not cite with particularity to the Transcript in Case No. 05-2049PL. The five statements read as follows: Respondent testified at the hearing that the line on the plans appearing as a single pipe, in fact, represented two pipes, 61 feet long with 1 1/4 inch diameters, running over the men's showers. Respondent testified at the hearing that the intent to install the sprinkler system with two pipes over the men's showers was obvious to anyone with experience in fire sprinkler systems. Respondent testified that he had signed and sealed revised plans showing a second parallel line over the men's showers. Respondent testified that the second 61 foot long 1 1/4 inch diameter pipe was represented in his calculations by a 3 foot length of pipe. Respondent testified that he used pipe lengths in the supporting calculations that match the pipe lengths shown in the plans. The actual testimony of Mr. Maples that addresses the pipes follows below. The initial questions were posed by Mr. Maples' attorney, Mr. Peters at page 260, line 13, of the Transcript in Case No. 05-2049PL. . Q. Okay. Now, the bulk of this allegation was that the hydraulically demanding design area did not have sufficient water pressure. Let's talk about that. Does the most hydraulically demanding area in this project show that it was receiving sufficient water pressure and distribution? A. Yes, the calculations show that specifically. Q. Do you have any concern that the most hydraulically demanding area is being under served? A. I do not. Q. Do the plans -- while they may not be perfect -- do they reasonably and competently show sufficient water pressure getting to the most hydraulically demanding area? A. Yes. (At this point there was a recess. Subsequently, the interrogation continued.) * * * Q. So do the plans and do the calculations show that there's sufficient water getting to the most challenging -- A. Yes, it does. Q. Okay. And let's take a minute to just make sure we review our nodal system. (At this point the Court interjected and moved the questioning away from the nodal system. The nodal system had been reviewed earlier in the hearing.) * * * Q. How is that? Okay. There is a segment called 20 to 25, which is an inch-and-a-quarter, 61 feet long. A. Correct. Q. And is there a parallel pipe in the same plane that runs along that same segment? A. Yes. Q. How can you tell that from this drawing and this set of calculations? A. I can tell on the calculations, because it tells me from 25 to 30, there's a connection. It tells me that 30 is connected to a three-inch main. Q. All right. Can you show these calculations and -- go over them with us and show us how you see that from these documents? A. Where is my set? Q. Right there. That's yours. THE COURT: Let me ask you this, sir. I see where it says that it's connected to that. But by [sic] my question is, it says that it's only 3-feet long. THE WITNESS: Three feet. Yes, sir. Let me -- can I address that? THE COURT: Surely. THE WITNESS: That is -- I will say an input error on it. But I want to tell you that it doesn't make any difference into the function of the system. BY MR. PETERS: Q. Tell us why not. A. It says 25 to 30 tells me there's a line, a connection to a 3-inch -- to node 30. What that tells me is that 3-inch line is feeding this row of sprinklers right here. Even though it says 3 feet, what it does, it has a short segment of line that just gushes water through there and makes those sprinklers flow a whole lot more than it needed. All right. When you put the right length, you put 61 feet in there, it comes back to just about what this line does, and it cuts the sprinkler flow down in those three areas. But it doesn't effect [sic] the function of the system because it doesn't effect [sic] the head loss in the main system where the pressure goes in the 3-inch line. Q. Head loss. Take a minute to try to explain that. A. The water -- it doesn't effect [sic] the pressure that the sprinklers are getting. What it does, when you put 61 feet in there, those three sprinklers that where it shows a 3-feet [sic] connection, it cuts them down from sprinkling a whole lot more water that's needed back to what's required. But as you go along this -- as you go along this line, go along this line where the 3-inch line is up here, at each place on the 3-inch line, there's a branch that goes towards the sprinklers. And each branch line is calculated separately. And the most demanding branch line is what puts the pressure that's required -- the flow -- required a 3-inch line. So what the 3-foot did, it made these three sprinklers right here flow considerably more, because it was just a little short piece of pipe and didn't have any friction loss going down through there. But it didn't effect [sic] -- it didn't effect [sic] the system head. Because that had less head loss than this one did. So when you put -- BY THE COURT: Q. Head loss is effected [sic] by, what? A. The length of pipe. Flow -- the length of pipe and size of pipe. Q. So will a longer piece of pipe -- assuming all the pipes are the same diameter -- does the pipe -- does the head loss on a short piece, is it greater than a long piece? A. Oh, no. Head loss on short pieces are considerably less than a long piece loss. The further it travels, the more pressure it loses. Q. Okay. And the pressure loss is transmitted, if you will, back to the 3-inch main? It effects [sic] the -- A. It effects [sic] what the flow comes from a 3-inch main. The 3-inch main effects [sic] it, because the three-inch main has the water supply, and has the pressure that's pushing it. Q. So the calculation for this system -- A. Yeah. Q.-- even though there's an error, the error is not a critical error? A. No, sir, it does not effect [sic] the function of the system. Q. It doesn't effect [sic] the function of the system. Thank you. A. What it does, it shows a little more water flow. THE COURT: Okay. DIRECT EXAMINATION (RESUMED) BY MR. PETERS: Q. So do the plans -- does it need a pump to get water to this area? A. No, sir. THE COURT: Now, let me ask you a follow up on that. THE WITNESS: All right. THE COURT: After Mr. Schmidt put his input in, and he was basically engaged to do exactly what he did, and that was, to go through the plans, catch any things that he was concerned about, and turn that back to the general contractor so the general contractor could go back to the people he needed to go back to? THE WITNESS: Yes. THE COURT: The general contractor came back to you, and you did whatever was necessary to generate the second set of plans that you-all put in, which is your Respondent's 1? MR. PETERS: Well, although Respondent's -- can I ask him a couple of questions? THE COURT: Sure. BY MR. PETERS: Q. Respondent's 1, this is the one that shows the second line, the parallel lines, right? A. Yes, if this is the plan we're looking at, it shows the second -- physically shows -- separated it so anybody could see. THE COURT: It also shows the point of service. THE WITNESS: Yes, it also shows a different point of service. It shows --bring it back up to the 5. BY MR. PETERS: Q. But these don't bear your signature. A. This particular set doesn't. We signed some, but I don't know where they are. That came from Gulf Coast College there. Q. All right. All right. In terms of what this case is directly about, then, do the plans provide pipes with adequate diameters for water pressure to provide protection for the area most remote from the main riser? A. Absolutely. Q. Do the plans provide -- do the plans need to show a pump to increase water pressure for the pipe design use? A. No. Q. And did you use pipe lengths in the supporting calculations that match the pipe lengths shown in the plans? A. Yes. (At this point Mr. Peters addresses another matter. Thereafter, Mr. Campbell proceeded with his cross-examination on Page 268, line 25.) * * * BY MR. CAMPBELL Q. Mr. Maples, there was no testimony about phantom pipes in that previous case, was there? A. No. Q. And you would admit that if there was no pipe underneath this Node 25 pipe, that this fork of six sprinkler heads would not adequately be served by 1-and-a-quarter inch diameter pipe; isn't that correct? A. That's correct, with a caveat. The NFPA 13 has a section that says on the density .1 in a 1500 square feet [sic] area, if it is - - if it says ceiling heights less than 20 feet, and this is 10, that you can reduce the area of sprinkling by 40 percent. So that means, if we did that, we would do 900 square feet, and that would be adequate. Now, if you went strictly by NFPA 13 -- Q. But that's not what you drew here. You drew or attempted to draw 1500 square feet. A. That's what we were told to do. But that's not in accordance with NFPA 13. NFPA 13 is less. And we agree NFPA 13 rules. Q. Now, you initially said this was your initial set of plans before you got any input such as being told to do 1500 square feet; is that correct? A. No, no, I was told to do that to start with. Q. All right. Was that part of the specifications on this job? A. I didn't see it. That was --according to the contractor, that was the specifications from Schmidt or whoever they were. Q. All right. Now, looking at the Respondent's 1 you did not sign. A. That one is not signed, but I know there were some that were signed. Q. Doesn't it appear that in these entries for pressures and static pressures, at some point, there was a whiteout and a reentry on the first page of the sheet? A. I can't tell you that. It may have been. Q. All right. Now, in fact, you have got two separate entries of written information where some of those are different. For instance, the required pressure is different -- A. Yes, because it's a different system. This is one that's not in contention right here. This was the gym. It's got the same static pressures and flows, but this is a different set of calculations of the gym. This has not been -- that was for the gymnasium, just to see if there was enough water. They asked us to do that. Q. Now, is the gymnasium a part of the Wellness Center? I thought that was what the Wellness Center was. A. Well, it's part of the Wellness, yes. But it's a separate part. But this has never been in contention. Q. Well, now, on the set of plans, your initial set of plans, there were no such double entries? A. No, they didn't ask for it then. Q. And this separate set of entries here for the gym -- well, this -– yeah -- is still used by the same riser and the same -- A. Yes, sir. Q. -- point of service. A. Yes, sir. Q. So there would be a separate set of calculations somewhere for the gym; is that what you're saying? A. My understanding, they asked Chris to do a set of calculations just so they would have plenty of water at the gym. That's never been in contention. Because one thing, it's located right at the riser. Q. Now, isn't it a fact, if someone never looked at the calculations but only looked at page 2 of Exhibit P-1, that where the node 25 seems to go up to node 45, there is only one line indicating one pipe? A. Depending on who looks at it. Anybody familiar with the calculations and sprinkler systems would know. Q. If they saw no calculations whatsoever, they just looked at this sheet -- A. I would assume so. If it was Joe Blow out there that knew nothing, he would have probably been, you know -- Q. He would think there's one pipe there. A. Who would do that? Q. So the basis of your statement that anyone that knew that there had to be more than one pipe is -- anyone with experience in fire protection systems would know you could not feed -- A. That's correct. Q. -- 6 heads 60 feet down from the 3-inch pipe on a one -- A. An inexperienced person, probably, correct. Q. Well, now, an experienced person would know automatically you couldn't feed it that way, right? You would have to have a second pipe; that's what you're saying? A. Well, you would have to go by the calculations. I didn't say that. Q. But if you didn't go by the calculations, if you didn't know anything about the calculations, would it be obvious to anyone with experience in fire protection sprinkler systems that at the end of 60 feet of a one-and-a-one-quarter-inch pipe you could not support 50 pounds pressure -- support 6 heads on 1 inch pipe? A. I wouldn't say that. Because if I was an experienced person in fire protection and installation, I would look at that, and I would look for something else to see if there was something else. Q. So that sheet of plans by itself is insufficient even with someone with experience in fire protection? A. No, I didn't say that. I said I would be looking for something else. Q. You said you would be looking for something else. A. He would know that there was something supporting it. And especially a licensed contractor that's licensed to design sprinklers, too. He would obviously know. The statement set forth in paragraph 7, of the Administrative Complaint does not appear in the Transcript in Case No. 05-2049PL. Mr. Maples said nothing about showers. He did not say that the single pipe represented two pipes each of which was 61 feet long. What he said was that the calculations told him that there is a parallel pipe in the same plan as the pipe shown on the drawings. He said he could tell that because the calculations showed from Node 25 to 30 a connection to a 3- inch main. Mr. Maples' testimony in this regard was confusing and difficult to follow but not untruthful, deceptive, or misleading. He was not giving fact testimony but was expressing an opinion. The statement set forth in paragraph 8, of the Administrative Complaint does not appear in the Transcript in Case No. 05-2049PL. Mr. Maples never said that the "intent to install the sprinkler system with two pipes over the men's showers was obvious to anyone with experience in fire sprinkler systems." What he said was, that, "Anybody familiar with the calculations and sprinkler systems would know." He further said that if someone familiar with sprinkler systems would know that two pipes were necessary looked at the plans without the calculations that he "assumed" they would know there should be two pipes. With regard to the statement set forth in paragraph 8, when offered to agree with the statement, ". . . an experienced person would know automatically you couldn't feed it that way, right? You would have to have a second pipe; that's what you are saying?" Mr. Maples declined. In response to the question he said, "Well, you would have to go by the calculations. I didn't say that." Mr. Maples' testimony in this regard was not untruthful, deceptive, or misleading. He was not giving fact testimony but was expressing an opinion. The statement alleged as paragraph 9 does not appear in the Transcript. With regard to other plans, he said in response to a question about Respondent's Exhibit No. 1 that, ". . . it shows the second--physically shows--separated so any body could see." He noted that Respondent's Exhibit No. 1 did not bear his signature but said that he had signed some similar plans. There is no proof in the record that his testimony in this regard was untruthful, deceptive, or misleading. The allegation in paragraph 10 of the Administrative Complaint was that Mr. Maples said that the second 61-foot long, 1 and 1/4-inch diameter pipe "was represented in his calculations by a 3 foot length of pipe." Mr. Maples never uttered that statement. In response to a question from Judge Dean, with regard to the 3-foot long pipe, Mr. Maples said, "That is--I will say an input error on it." Mr. Maples' testimony in this regard was confusing and difficult to follow but not untruthful, deceptive, or misleading. The allegation in paragraph 11 of the Administrative Complaint was that Mr. Maples said that, "he used pipe lengths in the supporting calculations that match the pipe lengths shown in the plans." This allegation approximates a verbatim statement made by Mr. Maples. However, he had earlier noted, and thus qualified the statement when he stated that there was input error. Mr. Maples' testimony in this regard was not untruthful, deceptive, or misleading. The allegations contained in the Administrative Complaint at paragraphs 7 and 8, were fairly alleged as the opinions of Mr. Maples. The opinions alleged are in essence that a person with experience in the fire suppression business could determine from the plans and calculations that a second 61-foot long, 1 and 1/4-inch pipe would run parallel to the pipe shown from Node 25 to 45. After an exhaustive study of the plans and calculations in this case, the Administrative Law Judge has not been able to conclude that the testimony as to the second pipe is borne out by Petitioner's Exhibit 2 or the calculations that are Petitioner's Exhibit 3. Moreover, Judge Dean found that the intent to have two pipes, "was not adequately shown in the original drawings." The foremen sent by Mr. Thomas to install the system did not conclude that two parallel pipes were required. They installed only one. An expert called by FEMC, Larry Simmons, an expert in professional engineering, stated unequivocally in this case that using Mr. Maples' drawings and calculations, he could not determine that a second 61-foot long, 1 and 1/4-inch pipe was called for by the plans. Judge Dean was not misled by Mr. Maples' testimony in Case No. 05-2049PL, with regard to the pipe. This was indicated by his acknowledgement in Finding of Fact 8 in his Recommended Order that the intent to have two pipes, "was not adequately shown in the original drawings." Judge Dean was not called as a witness so that he could reveal if he was misled based on the information that became available after the hearing in Case No. 05-2049PL. It was not proven by clear and convincing evidence that Mr. Maples was "untruthful, deceptive, or misleading in any professional statement or testimony." As will be discussed in detail below, Mr. Maples engaged in misconduct in the practice of engineering by expressing an opinion publicly on an engineering subject without being informed as to the facts relating thereto.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board find that Respondent Lester M. Maples did not violate Section 455.227(1)(a), Florida Statutes, but that he offered an opinion publicly on an engineering subject without being informed as to the facts relating thereto in violation of the prohibitions contained in Section 471.033(1)(g), Florida Statutes. It is further recommended that he be reprimanded, placed on two years' probation, and ordered to pay an administrative fine of $1,000. DONE AND ENTERED this 28th day of April, 2006, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of April, 2006. COPIES FURNISHED: Bruce Campbell, Esquire Florida Engineers Management Corporation 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267 Alvin L. Peters, Esquire Peters & Scoon 25 East 8th Street Panama City, Florida 32401 Paul J. Martin, Executive Director Board of Professional Engineers Department of Business and Professional Regulation 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267 Doug Sunshine, Esquire Vice President for Legal Affairs Florida Engineers Management Corporation 2507 Callaway Road Tallahassee, Florida 32303-5267 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue The issue is whether Petitioner is entitled to a passing grade on the Hose and Nozzle Operations part of the Minimum Standards Examination for firefighter certification.
Findings Of Fact Certification as a firefighter requires, among other things, that an applicant successfully complete a Minimum Standards Course and then pass the Minimum Standards Examination. The Minimum Standards Examination comprises a written test and a practice test, each of which an applicant must pass. The practical test comprises four parts, including Hose and Nozzle Operations. An applicant must pass each of the four parts, and a passing score is 70. On October 3, 2003, Petitioner first took the Minimum Standards Examination. She passed three parts, but failed the Hose and Nozzle Operations part. She was entitled to one retest, without having to retake the Minimum Standards Course, which she has already passed. On November 20, 2003, Petitioner retook the Hose and Nozzle Operations part of the Minimum Standards Examination. Petitioner received a score of 60 on the retest, and she challenges this score in the present case. Petitioner lost points for four reasons: she failed to have all of her protective gear donned and properly secured, she opened the hose nozzle too quickly, she closed the hose nozzle too quickly, and she ran with the hose. The Hose and Nozzle Operations part of the test is timed, and Petitioner previously had failed it because she had taken too long to complete the tasks within this part. Petitioner was a candid witness. At the end of the hearing, she essentially withdrew her challenge to the points that she had lost for operating the nozzle improperly. She instead focused on running with the hose and leaving her face shield up during part of the examination. In fact, the examiner testified without doubt that Petitioner had misoperated the nozzle during two tasks. Clearly, Petitioner failed to prove that the examiner's scoring of these two tasks was incorrect. As for running, Petitioner testified that she ran, but, consistent with the test rules, received a shouted warning from the examiner and did not run again. If so, she should not have lost points for running. However, the examiner again is clear that Petitioner ran after the warning. Aware that she had failed the same test previously for not completing this part of the test within the allotted time, Petitioner probably felt a sense of urgency to complete this part of the test. Petitioner's testimony about running is vague at times and even contradictory. Much of Petitioner's early testimony on this point disputes the clarity of the shouted warning not to run, suggesting that she may have run through a large portion of this part of the test. Later, though, Petitioner concedes that the shout was probably a warning not to run. On balance, Petitioner has failed to prove that the examiner improperly deducted points for running. The last issue in dispute is whether Petitioner performed part of the test with her face shield improperly raised. Petitioner testified that her face shield was always in the proper position, and, on this issue, Petitioner produced a fellow student who testified that he saw Petitioner's face shield in the proper position. However, the other student did not see the whole test and presumably was not observing Petitioner as closely as was the examiner. The examiner was most definite in his testimony on the issue of the face shield. He saw Petitioner engage in the awkward task of unloading the heavy hose, and he saw that a section of hose bumped the face shield from its down position into a partial up position. The examiner watched to see if Petitioner would immediately lower the face shield, but she did not. At that point, the examiner properly deducted points for failing to keep the gear properly secured.
Recommendation It is RECOMMENDED that the Department of Financial Services enter a final order dismissing Petitioner's challenge to the scoring of the Hose and Nozzle Operations part of the Minimum Standards Examination that took place on November 20, 2003. DONE AND ENTERED this 30th day of June, 2004, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 30th day of June, 2004. COPIES FURNISHED: Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Ruth Gutierrez 1585 Northeast 110th Terrace Miami, Florida 33161 Casio R. Sinco Assistant General Counsel Division of Legal Services Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0333
The Issue The issue addressed in this proceeding is whether Respondent should be fined for violating provisions of Chapters 381, 386 and 489, Florida Statutes, governing septic tank installation and licensure.
Findings Of Fact On August 3, 1989, and again in March, 1992, Respondent was hired by Janet Thompson to perform septic tank work on her septic tank system located at her home at 3168 Pins Lane, Gulf Breeze, Santa Rosa County, Florida. Her system was backing up into her house. Ms. Thompson contacted Mr. Burkett through his advertisement for Working Man Septic Tank in the Southern Bell Yellow Pages. Mr. Burkett recommended that a new drainline or finger be added to her septic system. Mr. Burkett did put in a new finger. However, the new finger was incorrectly installed, in that the drainline exceeded the maximum allowable width and did not have the minimum depth of aggregate in violation of the Rules of the Department regarding the installation of drainlines for septic tank systems. Mr. Burkett's work seemed to solve Ms. Thompson's backup problem. However, a few months later her septic tank system began backing up again. Ms. Thompson again called Mr. Burkett to come and fix the problem. Mr. Burkett recommended another drainline in an "L" shaped configuration. Mr. Burkett installed the new finger. However, he again installed the line incorrectly and violated the Department's Rules, in that the drainline exceeded the maximum allowable width and did not have the minimum depth of aggregate. Ms. Thompson's septic tank problem was corrected for a few months and then began backing up once more. Ms. Thompson called another contractor who finally solved the problem by properly installing an extensive drainline system by building the low area of the drainfield and utilizing three truckloads of aggregate. In May, 1990, William Davenport hired Respondent to do some preventive installation of a new drainfield to the septic tank system located at his home at 6220 East Bay Boulevard, Gulf Breeze, Santa Rosa County, Florida. Mr. Burkett only performed part of the work for which he was hired. The work Respondent did perform was incorrect and violated the Department's Rules regarding the installation of drainfields and lines for septic tank systems. Specifically, the work performed by Respondent was incorrect in that the drainfield exceeded the maximum allowable width, no barrier of building paper or other suitable material was installed to protect the infiltration bed and the aggregate did not meet the minimum depth required. Rules 10D-6.056(4)(a), (d) and (e), Florida Administrative Code. Finally, throughout the time period of the repair work on the Thompson and Davenport properties Respondent was not registered or licensed by the Department to perform such services and was advertising to provide such services under the name "Working Man Septic Tank Co." in the Southern Bell Yellow Pages. Both the lack of a registration and the advertisement of an unlicensed business violate the Rules of the Department. Rule 10D-6.075(4)(a), Florida Administrative Code.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is, accordingly, RECOMMENDED, that the Department impose on Respondent a fine of $2,000.00. DONE and ORDERED this 9th day of November, 1994, in Tallahassee, Florida. COPIES FURNISHED: Frank C. Bozeman, III Asst. District Legal Counsel D H R S 160 Governmental Center Pensacola, FL 32501 Kenneth P. Walsh Attorney at Law P. O. Box 1208 Shalimar, FL 32505 Robert L. Powell, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, FL 32399-0700 Kim Tucker General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, FL 32399-0700 DIANNE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of November, 1994.
The Issue Did the Respondent violate the provisions of Chapter 471, Florida Statutes, as alleged in the Administrative Complaint?
Findings Of Fact The Respondent is a licensed professional engineer. The Respondent holds license number PE 10214. The Respondent signed and sealed on or about November 15, 2001, a set of plans for the water fire sprinkler system for the new student gymnasium at Gulf Coast Community College consisting of three pages, and a set of calculations consisting of 14 pages for said sprinkler system. All discussions herein of sprinkler systems and the statutes related to such systems is limited to water-based systems. The calculations are intended to show that the performance of the sprinklers is sufficient in the area defined by the National Fire Protection Association (NFPA) standards as the hydraulically most demanding. The hydraulically most demanding area is the 1500 square feet fartherest away and highest from the "fire riser" or the source of water to feed to the system. The area defined as the hydraulically most demanding was identified on the plans as being in the southwest corner of the building, taking the top of the plan as pointing due north, or that portion of the building on the bottom, left corner of the building consisting of the women's showers and women's toilets. The calculations were generated by a computer based upon data provided on the size, height, length, and diameter of the pipes servicing the system and the number of sprinkler heads required in the hydraulically most demanding area. These calculations assume all the sprinkler heads in the hydraulically most demanding area will be activated, but no other sprinkler heads in the system will be activated. The calculations, Joint Exhibit 1, contained an error regarding the nodes and their length. See page 3 of Joint Exhibit 1, Nodes 20 and 25 at the bottom of the page. The best demonstrative evidence of the nature of the error is contained in Petitioner's Exhibit 3 in the diagram marked Piping Isometric. In sum, there should have been another node in the calculation of 61 feet. Testimony was received regarding the plans, their modification and actual construction of the system. The best presentation of the ultimate construction is represented in Respondent's Exhibit 1, which clearly shows two service pipes into the women's shower area. According to the uncontroverted testimony of the contractor, the intent was always to have two pipes servicing this area, one suspended under the other on the same set of supports, each pipe servicing the same number of heads in the area of the women's shower room. This was not adequately shown in the original drawings, and a second drawing clearly showing the two pipes was prepared to satisfy the general contractor. The calculations for the second pipe would be essentially the same as the first pipe because they are the same length and both have the same "load." There was testimony regarding new calculations supporting the plans, R-1, these calculations were introduced as R-2. They also show the pressure was adequate. The plans were approved by the State Fire Marshall's Office, by the Department of Education, and the Petitioner's expert witness opined that two pipes would supply sufficient water to service the area. Credible testimony was received that the quality and performance standards for valves, alarm checks, and switches were contained in the specifications provided to the bidders by the general contractor. These were not necessary in the Respondent's plan. Credible testimony was received that the entire project had one classification of hazard occupancy, as stated on the calculations, Joint Exhibit 1. No credible evidence was received that electrical or mechanical rooms have a different hazard occupancy and should have been treated any differently. The Board's witness testified that one of the design approaches is hydraulic calculation, See Tx 75-75. It is clear from the calculations, Joint Exhibit 1, that this was the method used. The installation of the backflow preventer was the responsibility of the general contractor and not part of the Respondent's responsibility. Further, pipes, valves, etc., were contained in the general contractor's specifications. Lastly, there is a four-inch check valve shown in the detail for the fire riser, which is a four-inch pipe and is the responsibility of the Respondent. The source of water is city water, which is treated. There would be no microbial corrosion concerns. The first page of the plans marked Petitioner's Exhibit 1, shows the fire riser as being located in the northwest corner of the building. The second and third pages show the fire riser as being located in the northeast corner of the building. Testimony was received concerning the modification of the plans to conform to the location of the fire main. Except for computation of the hydraulically most demanding area, location of the riser is not particularly important. The location of the fire riser was in fact, on the northeast corner, and this was the location used for calculation of the hydraulically most demanding area. The "as built" drawings, Petitioner's Exhibit 2, clearly show the riser in its proper location. To the extent that page one fails to reflect the same location as pages two and three, it is of no real significance. Under the contract for the sprinkler system, the general contractor was responsible for providing water to the fire riser and the sprinkler contractor was responsible for the system from that point. In sum, the plans incorporated those specifications given. Section 633.021(18), Florida Statutes, defines the "point of service" as the point at which the underground piping for a sprinkler system using water as the extinguishing agent becomes used exclusively for the sprinkler system. The statute provides that the point of service is designated by the engineer who sealed the plans for a system of more than 50 heads. The Respondent was not responsible for designing or presenting plans for the underground water service "mainward" of the fire riser. The riser by definition is not underground service. Therefore, the Respondent was not responsible for that portion of the total system at which the point of service would have been designated. No evidence was presented to establish that the definition of point of service creates a requirement for an engineer designing sprinkler design to control the system design to that point. No evidence was presented regarding the practices of the profession when this factual situation arises. No evidence was presented on the importance of the point of service in terms of a sprinkler system, and no testimony was offered regarding how an engineer would sign and seal plans that were beyond the scope of the work he was engaged to do. Special Findings Regarding the Various Sets of Plans As stated above, there were several sets of plans introduced at hearing. Petitioner's Exhibit 1 was identified as the set of plans signed and sealed by the Respondent; however, there was no evidence that these plans were used to build any portion of the project. In fact, the testimony was to the contrary, that these plans were expected to be modified and were modified prior to construction. Petitioner's Exhibit 2 was identified by Mr. Caldwell as a set of plans which he "red lined" as "as built" drawings after the construction was completed. He did not identify what iteration of the original plans he used; however, inspection and comparison show that they are virtually identical to the set, Petitioner's Exhibit 1. Mr. Caldwell qualified his additions to the plans to state that they reflected only what he could see without removal of tiles or materials. Respondent's Exhibit 1 was identified by Chris Thomas as being plans that were amended to address the concerns of Mr. Schmidt. These plans show two pipes where the original plans showed one pipe servicing the women's shower room. Because of the delay in prosecuting this case and the losses due to storms these plans are received and accepted as definitive because to do otherwise would raise due process issues the Petitioner having been aware of the alleged problems since before the plans were executed. No evidence was received regarding the customary practice in signing and sealing multiple versions of plans. There was no evidence presented regarding amended calculations in support of the drawings. In the absence of such testimony, it is concluded that only one set of calculations were prepared, and they were determined by the approving authorities to be sufficient. The Respondent admits that he did not date the calculations or the plans.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED that the Board dismiss the complaint against the Respondent. DONE AND ENTERED this 13th day of October, 2005, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of October, 2005. COPIES FURNISHED: Leon Biegalski, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Bruce A. Campbell, Esquire Florida Engineers Management Corp. 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303 Alvin L. Petters, Esquire Peters and Scoon 25 East 8th Street Panama City, Florida 32401 Doug Sunshine, Esquire V.P. for Legal Affairs Florida Engineers Management Corp. 2507 Callaway Road Tallahassee, Florida 32303-5267 Paul J. Martin, Executive Director Florida Engineers Management Corp. 2507 Callaway Road Tallahassee, Florida 32303-5267
Findings Of Fact By letter dated August 10, 1979, Indian River County (hereafter "County") submitted to the Department of Environmental Regulation (hereafter "Department" or "DER") applications for construction permits for the Gifford Area sewer treatment plant and collection improvements thereto, a domestic wastewater treatment and disposal system located in the County. (DER Exhibits Nos. 1 & 2). After receiving the permit applications submitted by the County, the Department's Orlando District Office requested additional information to determine whether reasonable assurances were provided that the facility would not discharge, emit or cause pollution in violation of Department standards. (Testimony of William Bostwick; testimony of Chancellor; DER Exhibits Nos. 3, 4, 5, 6, 7 & 8). The County, through its consulting engineers Sverdrup & Parcel and Associates, Inc., responded to the Department's requests for additional information. (DER Exhibits Nos. 3, 4, 5, 6, 7 & 8). The Department presented testimony of two professional engineers in its employ, Mr. William M. Bostwick and Mr. Gerald Chancellor, both of whom were accepted as expert witnesses in the field of sewage treatment technology and the processing and evaluation of permit applications for sewage treatment plants. Both witnesses testified that in their expert and professional opinion, based on their review of all plans, test results and other information submitted by the County, the applicant provided the Department with reasonable assurances that the proposed construction and operation of the sewage treatment facility and its collection system would not discharge, emit or cause pollution in violation of Department standards. (Testimony of Bostwick; testimony of Chancellor). The standards applicable to the subject construction permit applications involve (a) treatment level and (b) ambient standards of the receiving waters. The proposed system provides a minimum of ninety (90) percent treatment to incoming wastewaters. Because of the added features of surge tanks, gas chlorination, and dual blowers and motors, the ninety (90) percent minimum treatment was expected to be exceeded. (Testimony of Bostwick; testimony of Chancellor). The secondarily treated effluent from the proposed sewage treatment plant will be dispersed by spray irrigation. Because the effluent is expected to percolate to area groundwaters, the ambient groundwater standards of Section 17-3.101, Florida Administrative Code are applicable. The discharge from the facility will not cause any violation of the groundwater quality standards of the Florida Administrative Code. (Testimony of Bostwick; testimony of Chancellor; testimony of Aront). Although the design of the plant does not contemplate surfacewater discharge, if it did, it would meet the waste load allocation of Indian River County which permits discharge to surfacewaters. When the treated waste leaves the sprinkler head, it will meet secondary water treatment standards. (Testimony of Bostwick; testimony of Chancellor). In the course of evaluating a permit application for a wastewater treatment plant, the Department considers only Chapter 403, Florida Statutes, and its implementing rules and regulations and does not consider local issues relating to zoning, the propriety of expenditure of public funds or the like. (Testimony of Bostwick). There is presently no state standard regulating permissible levels of viruses in effluent discharged to either surface of groundwaters. Large numbers of viruses exist in the effluent discharged from spray irrigation treatment plants which operate at a ninety (90) percent treatment level. The viruses contained in the discharge remain viable as they percolate through the soil. The greatest concern exists when humans are in physical contact with such discharge. However, the present sewage treatment facility in its existing condition is a greater threat to public health than the proposed spray irrigation system. (Testimony of Dr. Welling, Petitioner's Exhibits Nos. 1, 2 & 3). Research concerning viral standards for effluent discharge is in an experimental stage. The Department is examining this question for possible future rule drafting. Neither the federal government nor any state, with the exception of Maryland, has adopted viral standards. (Testimony of Welling) The design of Use Gifford plant contemplates a series of perimeter monitoring wells through which groundwater samples can be attained and tested for compliance with groundwater standards end the presence of viruses. (Testimony of Aront) The plant will spray irrigate effluent at the rate of one (1) inch per week. Although surface run off is not expected, any that occurs due to heavy rains, etc., will be discharged into a perimeter ditch surrounding the plant. The plant design is formulated to retain effluent on site. (Testimony of Chancellor). There are four (4) different types of soil on the site with a water permeability of moderately rapid to very rapid. These soils have a percolation rate which makes the site suited for the intended purpose provided surface drainage is obtained. On a conservative basis the site could accept up to fourteen (14) inches of water per day or ninety-eight (98) inches per week. (Testimony of Connell; testimony of Eng; DER Exhibit No. 6). The parties stipulated prior to the hearing to the following: The project complies with local zoning laws; and The applicable provisions of law are Sections 403.086, 403.087, 403.088, Florida Statutes, and Rules 17-3.091, 17-4.03, 17-4.07 and 17-4.26, Florida Administrative Code.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the Department issue a construction permit to the County on condition that sample effluent from the monitoring wells on the subject facility be regularly analyzed for compliance with Department rules and the existence of infectious viruses. DONE and ENTERED this 3rd day of March, 1980, at Tallahassee, Florida 32301. SHARYN SMITH Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 COPIES FURNISHED: Sherman N. Smith, Jr., Esquire Post Office Box 1030 Vero Beach, Florida 32960 George G. Collins, Jr., Esquire Post Office Box 3686 Vero Beach, Florida 32960 Segundo J. Fernandez, Esquire Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue The petition in this matter was filed pursuant to Section 57.111, Florida Statutes, seeking fees and costs arising from an underlying proceeding (DOAH Case No. 93-5526) in which the Department of Health and Rehabilitative Services entered a Final Order adopting the hearing officer's recommendation that the administrative complaint against Wayne H. Crotty, d/b/a Crotty Septic/Roto- Rooter, be dismissed. The parties have stipulated to the reasonableness of the fees and costs, the total of which exceeds the statutory $15,000.00 maximum. Respondent, Department of Health and Rehabilitative Services, contests entitlement to the award and argues that Petitioners are not prevailing small business parties and, further, that the agency had a reasonable basis in law and fact at the time its complaint was filed.
Findings Of Fact The Parties Wayne H. Crotty is, and at all relevant times has been a licensed septic tank contractor in the State of Florida. Crotty Unlimited, Inc. was formed in 1987 as a holding and management company for several small, diversified corporations held by the Crotty family. One of those companies was Crotty Septic Service, Inc., which was involved in septic contracting and related businesses since 1972. In the early 1990's the other small corporations were sold, and when only Crotty Septic Service, Inc. was left, it was dissolved and was later registered as a fictitious name under which Crotty Unlimited, Inc. was doing business. From March 1992 until approximately June 1994, Crotty Septic Roto- Rooter was registered as a fictitious name owned by the corporation, Crotty Unlimited, Inc. Wayne H. Crotty is currently a director and president of Crotty Unlimited, Inc. Prior to Fall of 1994 he was vice president and secretary of the corporation. He is now, and was at all relevant times, a minority shareholder. In 1992 and 1993, Wayne H. Crotty filed applications for septic tank contracting authorization pursuant to Chapter 489, part III, Florida Statutes, for the business "Crotty Septic/Roto-Rooter." The certificates were issued by the Department of Health and Rehabilitative Services under that designated business name. Wayne Crotty never applied for or received a certificate of authorization for septic tank contracting under the name, "Crotty Unlimited, Inc." Prior to 1992 the business authorization was in the name, Crotty Septic Services, Inc. The Department of Health and Rehabilitative Services (HRS), through its state health program officer, is the state agency with statutory responsibility for licensing septic contractors, and monitoring and disciplining those contractors. The program office relies on the field staff in local county health units to conduct inspections and investigate complaints. The Underlying Proceeding In 1993 Wayne Crotty had an application pending for a permit from HRS for a septage disposal service, temporary system service and septage treatment and disposal facility. The application designates the business as "Crotty Septic/Roto-Rooter" and the owner as "Crotty Unlimited, Inc." The application describes a lime stabilization facility on Southport Road in Osceola County (the Southport facility). The purpose of the facility was to receive pumped-out sewage effluent, treat the effluent through lime stabilization and spread the treated effluent in a designated field at the facility. Michael Napier, assistant director of environmental health in Osceola County conducted a series of inspections of the Southport facility in April, May and June of 1993. Mr. Napier noted what he considered were violations of Chapter 386, Florida Statutes, relating to sanitary nuisances and rule chapter 10D-6, Florida Administrative Code, relating to the treatment and disposal of septage and the standards of practice of septic tank contracting. He spoke with Wayne Crotty and corresponded with him regarding the inspection findings and he also consulted with Gerald Briggs, an environmental manager with HRS' state health program office in Tallahassee. Gerald Briggs drafted the administrative complaint in July 1993 based on the consultations with Michael Napier, the correspondence between the Osceola County health unit and Wayne Crotty and the inspection reports, photographs, or other supporting documentation. Throughout several months' time period Briggs felt from the tone of the letters that the corrections would be made. By July when Michael Napier said that the plant was handling a large quantity of septage in a very unsanitary and sloppy manner, Briggs agreed the facility should not be permitted as he was concerned about the impact on public health and the threat to ground and surface water in the area. Once Gerald Briggs decided to pursue an administrative complaint he determined that the respondent should be Wayne Crotty as the licensed septic tank contractor. The file on Wayne Crotty's certificate of authorization indicated that Crotty Septic/Roto-Rooter was the authorized business name. Wayne Crotty had in early 1992 informed Gerald Briggs that he had purchased a Roto-Rooter franchise and wanted to be able to advertise under that name. Briggs advised that as an individual septic tank contractor he could only qualify one authorized business and the business he advertised would have to be the one that was authorized by the agency. Briggs advised that Wayne Crotty could amend his authorization to change the business name from Crotty Septic Service, Inc. to Crotty Septic/Roto-Rooter. When Gerald Briggs drafted the administrative complaint alleging violations found by Michael Napier and the Osceola County field staff, he relied on the information in his files and named Wayne Crotty as the responsible septic tank contractor and what he understood was Crotty's business: Crotty Septic/Roto-Rooter. The respondent throughout the underlying proceeding was designated as "Wayne H. Crotty, d/b/a Crotty Septic/Roto-Rooter." No corporate party appeared in that underlying case (DOAH number 93-5526) by intervention or otherwise. Richard G. Hunter, Ph.D., HRS Health Officer for Environmental Health and Statewide Services signed the administrative complaint based on his examination of the packet prepared by his program and legal staff and the information from the field. The complaint sought to impose $2,500 in administrative fines on Wayne H. Crotty for violating regulations concerning disposal of stabilized septage and for creating or maintaining a sanitary nuisance. Wayne Crotty denied the allegations and requested a formal hearing. The case was referred to the Division of Administrative Hearings, was assigned DOAH number 93-5526 and was heard on February 3-4, 1994. Included in the recommended order was this ultimate conclusion: 94. At most, the department established some intermittent sloppy practices by the Respondent -- practices that resulted primarily from the failure to have proper equipment available (the dumpster), and from untrained staff (Norm's admission about the cows). In the absence of clear advance notice of violations and an opportunity to correct the violations as provided by section 386.03, Florida Statutes, and with Respondent's evidence of reasonable attempts to cooperate and to obtain more appropriate equipment and train staff, those isolated practices should not be subject to penalty. (Recommended Order entered 6/28/94) In a Final Order entered on August 22, 1994, the Department of Health and Rehabilitative Services adopted the findings, conclusions and recommendation of the hearing officer and dismissed the administrative complaint against Wayne H. Crotty, d/b/a Crotty Septic/Roto-Rooter. The Elements Required for an Award of Fees and Costs Respondent, Wayne H. Crotty, thus prevailed in the underlying action. Wayne Crotty was an officer, minority shareholder and, according to his testimony, an employee of Crotty Unlimited, Inc. (transcript, p. 58). He was not a sole proprietor of an unincorporated business; he was not a small business party. At the time that the complaint was filed the agency had a reasonable basis to claim that violations were occurring or had occurred. However, its initiation of the proceeding was fatally flawed by its failure to provide statutory notice and an opportunity to correct the violations. When the complaint was filed the parties were still engaged in free-form discussion and correspondence regarding operations at the lime stabilization facility.
