The Issue The issue in this case is whether Respondent's decision to reject the galvanized pipe replacement bid of Petitioner as non- responsive was erroneous, an abuse of discretion, arbitrary or capricious.
Findings Of Fact Petitioner, Expertech Network Installation, Inc., is a division of Bell Canada. Petitioner is a construction and engineering division of the parent company. It was set up to expand the parent's operations into the United States about nine years ago. Petitioner has steadily replaced its Canadian employees with U.S. employees over those years. The City is a governmental entity established under the laws of the State of Florida. By contract with the DOAH, the City has agreed to utilize Administrative Law Judges to hear, inter alia, bid protests involving the City. On May 7, 2007, the City issued Invitation to Bid No. ITB-PW060607-88. The Invitation to Bid sought bids for replacement of approximately 38,000 linear feet of two-inch galvanized pipe and associated appurtenances with 38,000 feet of four and six-inch DR18 PVC piping and associated appurtenances. The replacement would include approximately 385 service connections with Sch-80 PVC piping, all within the area known as Section 4 of the City. In addition, the scope of work included relocation of approximately 460 linear feet of eight-inch PVC water main pipe and associated appurtenances with 600 linear feet of eight-inch DR18 PVC piping and appurtenances along State Road 78. A total specification package and complete set of drawings for the aforementioned work was prepared by the City's consulting engineer, TetraTech-HAI (hereinafter "Ttech"). The specifications and drawings by Ttech were made a part of the Invitation to Bid. A pre-bid conference was held on May 16, 2007. At that conference, several issues were discussed, resulting in issuance of an Addendum to the Invitation to Bid. The Addendum was issued the same day as the conference and included the following paragraph: Will the City allow directional drilling on the galvanized pipe replacement project? No. All references to directional drillingon the galvanized pipe replacement projectare to be modified to jack & bore. All water main piping proposed to cross driveways shall be installed via jack & bore or open cut methods. Water main piping proposed to cross roadways, including long side services, shall be installed by jack & bore methods. Directional drilling is acceptable for the roadway crossings on the SR 78 Water Main Replacement portions only. Please see the enclosed revised Measurement and Payment section of the specifications (01025) and revised bid schedule. (Emphasis in original document.) The Addendum also extended the due dates for bids by one week, to June 13, 2007. No protest was filed with the City with respect to the terms, conditions or specifications contained in the Invitation to Bid and the Addendum. On Wednesday, June 13, 2007, the City opened the bids. Petitioner's bid was the low bid for the project. Its bid included a price of $1,816,224, as compared to the second lowest bidder, Guymann (whose bid came in at $1,987,561).1 The bids were then reviewed by Ttech for conformity to the Invitation to Bid. On July 31, 2007, Ttech notified the City that it was recommending approval of the Guymann bid despite Petitioner being the low bidder. The justification for that recommendation was as follows: The lowest apparent bidder on the project was Expertech Network Installation, Inc. (Expertech) with a total bid of $1,816,224.00. [Ttech] reviewed Expertech's bid package and found that the required list of at least five completed projects of the type as the Galvanized Water Main Replacement project was not included in the package. [Ttech] contacted Expertech concerning the incomplete bid package and requested that Expertech provided the required list of at least five projects completed by Expertech of similar type as the Galvanized Water Main Replacement project. The list provided by Expertech did not include any completed projects of the type as the Galvanized Water Main Replacement. On August 7, 2007, the City issued its Notice of Intent to Award, stating that the procurement division of the City would recommend award of the bid to Guymann as the most responsive, responsible bidder meeting the terms, conditions, and specifications set forth in the Invitation to Bid. Petitioner timely filed a Notice of Intent to Protest; its Formal Written Protest was timely filed on August 24, 2007, along with the required bond. There are three methods of drilling utilized for laying pipe in the ground: directional drilling, open cut drilling, and jack & bore drilling. A brief discussion of each is necessary in order to understand the dispute in this matter. Directional drilling is done utilizing a machine that is guided underground using steel rods. A person above ground with a sounding device directs the steel rods from one point to another. Directional boring is used when trenching or excavating is not practical. Directional boring minimizes environmental disruption. Jack & bore drilling (or auger drilling) is similar to directional drilling in that it has an entrance pit, and then the pipe is manually jacked along the desired path while simultaneously excavating the soil. It is often used in projects that have to go under existing roads or driveways. Open cut drilling is the old, traditional method of digging a trench in the ground and laying the pipe in the open cut. The Invitation to Bid, at page 10 of 53, included a request for each bidder to provide evidence of its experience with similar projects. Paragraph 5 asked for a list "of the last five projects of this type your organization has completed."2 Paragraph 6 asked for a list "of projects of this type that your organization is currently engaged in." The lists of projects were to be completed as set forth in a table attached to the Invitation to Bid. The table is recreated below: PROJECT YOUR CONTRACTOR REQUIRED ACTUAL NAME, TITLE CONTRACT OR SUB COMPLETION COMPLETION ADDRESS & AMOUNT DATE DATE & LOCATION PHONE # In its Bid, Petitioner provided a document entitled "Bidders Qualifications" in response to paragraph 5. The document was not on the table provided and was not entirely responsive to the information requested (i.e., it did not indicate whether Petitioner was contractor or subcontractor; there were no completion dates, and there were no contact persons). Nonetheless, the list contained eight completed projects. Those projects included two water main projects; the other six completed projects were telecommunication projects. While both types of projects would include drilling, there are distinct differences between the two. For example, water and wastewater projects require pressure testing, bacterial testing, and permitting that telecommunication projects do not. Petitioner's list also included projects that involved directional drilling. Since directional drilling was specifically prohibited in the galvanized pipe replacement project, those projects would not be deemed substantially similar in type.3 During the initial review of the bids, Ttech had specifically asked Petitioner to provide the required list of five completed projects of a similar type. In response, Petitioner submitted a list of four projects, which were listed as "Currently in Progress." Again, the projects were submitted on a form other than the table provided in the Invitation to Bid. When Ttech followed up with the project contacts, it found that there had been no open cut drilling on two of them; the other two had not yet begun. However, by the date of final hearing the projects were substantially complete. After Petitioner had submitted its list of projects, a meeting was called at the City. Petitioner was represented at the meeting along with City personnel and a representative from Ttech. Notes from that meeting, though inconclusive, seem to indicate that the requirement for five completed jobs of a similar nature was discussed. It is unclear whether Petitioner's representative was still at the meeting when this was discussed. However, it does not appear that anyone from the City or Ttech sent Petitioner a written request to provide evidence of additional work performed. Nor is there any evidence that the City or Ttech had an obligation to do so. At any rate, Petitioner did not submit any evidence of similar projects other than those discussed above. There were notes made by attendees of the meeting. None of the notes submitted into evidence was conclusive as to all issues that were discussed at that time. However, in notes relating to a telephone conversation five days later, Ttech's representative noted discussing with Petitioner the need to provide evidence of five similar projects, which means that at the time of the June 9, 2007, meeting, Ttech was still attempting to get the required list of projects from Petitioner. The projects submitted by Petitioner include directional drill excavation projects, which involved at least some open cuts (i.e., to make tie-ins at each end of the directional drill section). None of those projects was substantially similar in type to the proposed project, but did include some open cut work.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the City of Cape Coral upholding its rejection of Petitioner's bid for the galvanized pipe replacement project. DONE AND ENTERED this 9th day of November, 2007, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of November, 2007.
The Issue Whether the Petitioner is entitled to an extension of time of 565 days for the completion of the project which is the subject of this proceeding, as opposed to the 367 days time extension which was granted for completion, and thereby is free from liquidated damages in the amount of $31,680.
Findings Of Fact On February 21, 1973, a contract was entered into between the Petitioner and Respondent for the construction of Phase II, University of North Florida, at Jacksonville, Florida, State Project No. BR-6504/7801-D. The Form of Agreement Between Contractor and Owner For Construction of Buildings, through its Article 4.2 identifies the conditions of liquidated damages. Article 8.5 states the conditions for settlement of claims and disputes. Contained as part of the contract, was standard form AlA Document, A201, American Institute of Architects, General Conditions of the Contract for Construction. Within the document A201, was Article 4.5, warranty of the work by the contractor; Article 8.3.1 discussing the matter of delays and extensions and Article 13.2.1 discussing uncovering and correcting. All these contract conditions are found in Petitioner's Exhibit "A" which was admitted into evidence. In pursuit of the contract obligations, the Petitioner entered into a contract with W. W. Gay, Mechanical Contractor, Inc., 523 Estelle Lane, Jacksonville, Florida. This contract with W. W. Gay as subcontractor contemplated the installation of mechanical parts of the contract work, and the agreement between the Petitioner and W. W. Gay is Petitioner's Exhibit "B", admitted into evidence. Part of the work to be performed by W. W. Gay involved the installation of a hot water piping system. According to Mr. W. W. Gay, President of W. W. Gay, Mechanical Contractor, Inc., 95 percent of the pipe to be used in the Phase II project was already available, having been left over from Phase I of the University of North Florida Project. This pipe had been stored for as long as 16 months, exposed to the weather. The storage itself was in accordance with the conditions of modification to contract document prepared by Reynolds, Smith and Hills, Architects, Engineers and Planners of Jacksonville, Florida. Petitioner's Exhibit "C" sets out the requirements for storing the aforementioned pipe. In addition, Mr. Gay testified that some of the type resin epoxy utilized in the Phase I project was left over and was stored in a facility whose temperatures reached 90 degrees Fahrenheit, although the recommended storage temperature for the substance was 70 degrees Fahrenheit. The piping spoken of was a type manufactured by Ric-wil Manufacturing known as FRP, Dual Gard 250. The pipe was identified in the course of the hearing by Carl Bowles, General Superintendent for W. W. Gay, as being a fiberglass type pipe. This pipe had been selected in lieu of the job specification pipe which is a form of asbestos pipe manufactured by Johns Manville, due to the fact that the Johns Manville pipe had not been approved for release by Johns Manville's quality control department. The substitution of the Ric-wil pipe was approved by the project architect, John Brickert, who was also the project manager and an employee of Reynolds, Smith and Hills. The approval for substitution was on the basis that the Ric-wil pipe was acceptable because it was a non-metallic pipe and the Johns Manville pipe was a non-metallic pipe. Approval for the substitution had been granted in Phase I and carried over into Phase II. In addition to the hot water piping system in Phase II, W. W. Gay installed a chill water system using a PVC type pipe identified as Ric-wil Chil Gard. Prior to the installation of the Ric-wil Dual Gard pipe in Phase I, W. W. Gay had never installed that type piping system. In the course of the installation of the piping system in Phase I, some problems were experienced with the installation which were not similar to the problems that would be experienced in the construction of the Phase II University of North Florida project. Phase I was completed utilizing the Ric-wil Dual Gard pipe. In the beginning of Phase II, W. W. Gay ran the cold water system and hot water system in a common area underground from valve pit one to valve pit six, in order to put into operation buildings 008 and 009 of the University of North Florida. These locations are shown on the engineering drawing which is Petitioner's Exhibit "K", entered into evidence. Installation of the two piping systems commenced in October of 1973. Sometime in the middle part of November, 1973, a test was conducted on the hot and chilled water systems between valve pits one and six. The hot water system passed the test. The chilled water system failed. Later in November, the chilled water system also passed. This successful test opened up the hot and chilled water systems to buildings 008, 009 and 011. Further tests were conducted in early January, 1974 and again the hot and chilled water lines passed. In January, 1974, W. W. Gay began to run the hot water piping system from valve pit six to valve pit seven and in the area of building 010 found that the line would not hold pressure. A decision was made to retest between valve pit one and six, a leek as found in the area of valve pit one. This leak was discovered in late January, 1974. A subsequent test of the hot water piping system was run in early February, 1974, between valve pit one and valve pit six and into the buildings 008, 009 and 011. This test failed. In the middle of February, 1974, a further test was made from valve pit one to the end of the line, to the northwest corner of building 011, and this test failed. For the balance of February, 1974, time was spent trying to repair the leaks in the hot water piping system. These continued failures in the system brought about two meetings to discuss the solution of the problem. These meetings will be discussed subsequently. At the time the subcontractor was experiencing problems with the installation of the hot water system, problems were also being experienced with the chill water system. Throughout March, the chill water system was continuing to be installed and in late March a leak was discovered opposite building 010. This leak was repaired. In mid April a leak was found in the chill water system in the area of valve pit six and an attempt to repair it was unsuccessful. Problems continued until June, 1974, at which time replacement of the water pipe and fittings was begun between valve pit one and six. Further testing showed a failure in the chill water piping. Finally in September, 1974, the chill water system passed. One of the problems with the chill water piping system concerned the couplings for that system which were found to be defective. An example of the problems associated with the couplings in the chill water system is demonstrated through Exhibit "N", by the Petitioner, which is a cross section of one of the couplings which was removed after being installed in the Phase II University of North Florida Project. This cross section shows numerous surface irregularities, which promote leaks. On February 28, 1974, a meeting was held in the offices of Reynolds, Smith and Hills which was attended by the project manager, John Brickert; representatives of the Petitioner; representatives of Ric-wil, Incorporated; representatives of the University of North Florida; representatives of the subcontractor W. W. Gay, and other representatives of Reynolds, Smith and Hills associated with the project. Varying theories were advanced in trying to explain the problems associated with the hot water piping system. From the subcontractor's point of view, expressed by W. W. Gay, this difficulty was not obvious because it was his contention that the pipe was being installed according to the directions of the manufacturer's representative who was on the job site for some 90 percent of the installation. Jack Green, the mechanical construction specialist for Reynolds, Smith and Hills, testified that from his on site observations, which occurred about the general time frame of the meeting of February 28, 1974, that he had seen water in the trenches around the building 010. Furthermore, according to Green, the subcontractor had undercut the ditches and had attempted to install the hot water piping system while the ditch was too wet, using loose soil which was not compacted. In addition Mr. Green stated that he felt that the joints were dirty and moist and had not been sanded properly. Finally, Mr. Green stated that he had stopped the installation of the pipe because of the conditions mentioned. The deposition upon written questions of C. G. Schoor, Service Manager with Ric-wil, said that he had been at the job site on February 11, 1974, and had noticed water leaks in the fringes and couplings of the hot water pipes. He felt that in the area of the flanges there was improper sanding because when the pipe was pulled out, the surface was clean and resin remained in the flange. He also commented in his deposition that there was improper surface sanding and a large area of entrapped air on one of the 10" couplings pulled out between points two and three on the second joint north of two and this occurred during an initial 150 lb. hydro test. In one joint the resin epoxy had not hardened and was still in a plastic state, according to Ben Schoor. In speculating about the plasticity, Schoor said that it could have been promoted by long storage of the material, or contamination of the material which constitutes the resin epoxy or improper mixture of the two components of the epoxy resin on the part of the subcontractor. He felt that this plasticity would probably promote leaks but he observed no such leaks where the resin epoxy was plastic. The deposition on written questions of Ben Schoor was entered into evidence as Respondent's Exhibit "B". Discussion at the February 28, 1974, meeting considered two alternatives: First, to allow for the further installation of the Ric-wil Dual Gard System using the expertise of the Ric-wil employees; second, to substitute the Ric-wil Dual Gard pipe with Ric-wil Hi-Gard Pipe, which is steel. A further meeting on March 4, 1974, was held with representatives of the Petitioner; the subcontractor, W. W. Gay; Reynolds, Smith and Hills, by John Brickert, and other representatives of that firm. It was decided at that meeting, that due to the effect of oil shortages causing the unavailability of the Ric-wil Dual Gard pipe and fittings, the Ric-wil Company would design a pipe system to utilize steel pipes, and the subcontractor would determine the necessary adjustments to use the steel pipe. At this meeting the subcontractor, W. W. Gay, requested some relief from possible liquidated damages, and the minutes of that meeting indicate that consideration of that request was deferred. According to notes from time sheets of Reynolds, Smith and Hills, which was admitted as Respondent's Exhibit "A", installation of the steel piping system was commenced on July 1, 1974, and completed August 21, 1974. Minutes of the meetings of February 28, 1974, and March 4, 1974, are found as Petitioner's Exhibits "E" and "F" respectively, admitted into evidence. After the March 4, 1974, meeting, discussion was continued on the question of liquidated damages in view of the substitution of the type of piping, and conjecture was made about the problems with the piping system. In correspondence of March 22, 1974, Neil A. Porter, Vice President of the Petitioner, makes reference to the liquidated damages question in this letter to John Brickert, and suggests holding the matter in abeyance. This letter enclosed a letter from W. W. Gay dated March 21, 1974, directed to the Petitioner, which sets out the approximate time to complete the system will be 105 days. The Gay letter also states opinions by Mr. Gay as to what was determined in the course of the February 28, 1974, meeting on the subject of the cause of the problems with the Ric-wil Dual Gard piping. Mr. Gay made further comments that he felt that the change in temperature, from 70 degrees to 90 degrees as stored, adversely effects the resin epoxy and that the ultra violet rays of the sun also effected the pipe which was stored outside. Mr. Gay's letter of March 21, 1974 and Mr. Brickert's letter of March 22, 1974 are Petitioner's composite Exhibit "G", which was admitted into evidence. Mr. Brickert responded to Mr. Porter by letter of March 29, 1974, in which he suggests the question of liquidated damages cannot be addressed at present because the amount of delay is unknown, and Reynolds, Smith and Hills is not a part of the contract and cannot accept a stipulation for extension. This letter is Petitioner's Exhibit "H", which was admitted into evidence. On April 19, 1974, a change order was entered by Mr. Brickert which allowed for the substitution of Ric-wil Hi-Gard steel pre-insulated pipe for the Ric-wil Dual Gard 250 plastic pre-insulated pipe. Page three of that change order indicates the rationale for accepting such a substitute and alludes to the possibility of a time extension which is not subject to identification at the moment of the change order, but which will be requested. This change order is Petitioner's Exhibit "I", which was admitted. A further statement on the Chil Gard pipe and the problems with the couplings is found in Petitioner's composite Exhibit "J", a letter of May 29, 1974, with attachments from John T. Brickert to Neil A. Porter. By Change Order #19 and the accompanying letter of explanation from John T. Brickert, addressed to Jack C. Koons, Administrator, Department of General Services; the project manager has denied, and the Respondent has agreed to such denial, of any time extension conditioned upon problems with the piping systems. This denial by the letter of September 8, 1975, is premised on the conclusion that any failure on the system was due to faulty installation or failure of material which was subject to the control of the Petitioner. As a result of Change Order #19, 198 days of time overrun at $160.00 a day have been assessed as liquidated damages, totaling $31,680.00. These items of Change Order #19 and the correspondence alluded to are found in composite Exhibit "D" by the Petitioner, which was admitted into evidence. A review of the evidence offered on the question of the cause of the problems in the hot water system which was being installed as Ric-wil Dual Gard indicates a possible problem associated with the manufacture of Ric-wil Dual Gard pipe; a possible problem with the storage of the Ric-wil Dual Gard pipe at the job site for a period of up to 16 months prior to its installation; possible problems associated with the storage of the resin epoxy at temperatures which would damage the compound; possible contamination of the resin epoxy; possible improper mixture of the resin epoxy and possible improper application of the resin epoxy on the surface of the piping; possible improper sanding of the surfaces of the pipe where it was joined; possible improper preparation of the ditch in which the pipe was being placed, and possible improper installation of the pipe itself. From an examination of the testimony and the evidence offered in support of that testimony, the cause of the problems with the pipe would appear to be a combination of all the factors mentioned above, but it cannot be discerned with reasonable exactness what the percentage of responsibility is in determining the factors which lead to the rejection of the Ric-wil Dual Gard System in favor of the Ric-wil Hi-Gard System. From the testimony and the exhibits offered on the question of the problems associated with the Chil Water System, the testimony points to defective couplings as the responsible agent for the problems associated with that installation. These defective couplings are found to be the primary cause of the problems associated with the Chill Water System. On the question of liquidated damages penalties to be associated with a substitution of the Ric-wil Hi-Gard System for the Ric-wil Dual Gard System testimony was offered, as described before, by W. W. Gay who was under the impression that he was receiving relief from any liquidated damages and thought that relief would be afforded. This testimony is supported by the testimony of Neil Porter, the Vice President of the Petitioner who likewise had such an understanding. It is also supported by the testimony of John Daniel Cheatwood, the President of Petitioner, who was in attendance at the March 4, 1974 meeting at the offices of Reynolds Smith and Hills. In addition, Jack Green, Field Representative Mechanical, for Reynolds, Smith and Hills recalled that W. W. Gay requested relief from any possible liquidated damages for substitution of the pipe and the appearance was given that some consideration would be made of the necessity for extension of time. Mr. Brickert, as spokesman for the owner, felt that the meeting of March 4, 1974, did not commit the owner to grant an extension, and upon ultimate assessment an extension of time associated with the substitution of the pipe was denied. It is found as a matter of fact that the owner through negotiations with the contractor and/or his subcontractor, W. W. Gay, and through the Petitioner's Exhibit "I" agreed to an extension of time for the installation of the Ric-wil Hi-Gard Pipe in substitution for the Ric-wil Dual Gard pipe.
Recommendation It is recommended that the relief requested from the imposition of liquidated damages due to the delays associated with the installation of the hot water system and chill water system, which were assessed as 198 days at a $160.00 per day, for a total of $31,860, be reduced in an amount which would equate to the time necessary to install the substituted hot water system, and be upheld in the amount which would equate to the time necessary to install the chill water system. DONE and ENTERED this 23rd day of June, 1976, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of June, 1976. COPIES FURNISHED: William S. Stevens, III, Esquire For the Executive Director Department of General Services State of Florida 725 South Calhoun Street Tallahassee, Florida 32304 S. Gordon Blalock, Esquire Suite 2301 Independent Square Building Jacksonville, Florida 32202 ================================================================= AGENCY FINAL ORDER =================================================================
Findings Of Fact Respondent is a registered septic tank contractor. He is licensed locally to install septic tanks in Lee and Collier counties, where he has installed 250-450 septic tank systems in the past 15 years. He has been a septic-tank contractor for 25 years. He has a good record for performing septic-tank services. In November 1995, Respondent performed work for Charles Allen on Marco Island. The work consisted of drainfield repairs and a septic-tank pumpout. Respondent performed the drainfield repairs and pumped out the liquids from the tank, but failed to pump out the solids from the bottom of the tank. Unaware that the solids had not been removed, Mr. Allen paid Respondent the $1500 price on which they had agreed for all of the work. Three months later, Mr. Allen's septic tank backed up, dumping sewage in his home. This happened late at night, and Respondent was unable to come right over to repair the system. Mr. Allen thus contacted another contractor, who, for $205, pumped out at least eight inches of solids, which were causing the sewage to back up into the house. Since the repairs, Mr. Allen has had no other problems with his system. It is evident that Respondent failed to remove the solids in November, as three months are insufficient time for this kind of build-up and Mr. Allen's system has worked fine since the failure in February. In March 1996, Respondent performed repair work to a drainfield in Bonita Springs. Petitioner rejected the work for final approval on March 27, 1996. The grounds for rejection were that the drainfield was installed 4.8 inches too low, a large amount of the drainfield aggregate was sinking into the drainfield replacement material, and Respondent had added an extension onto the existing drainfield, rather than replace the entire drainfield, as the repair permit had required. Petitioner's inspector informed Respondent of the rejection on March On April 3, the inspector drove by the site and found that Respondent had covered the repaired system without having first called for a reinspection. Circumstances unknown to Respondent, the homeowner, and Petitioner at the time of initial permit rendered almost the entire plan for this repair job unfeasible. Among other factors was the fact that the drainfield was planned for a front yard, sandwiched between a driveway and a landscaped area. Also, Respondent discovered deficiencies in the original drainfield once he uncovered it. However, Respondent was not justified failing to call for a reinspection before covering the system. Respondent was irritated with Petitioner's representative for failing to come immediately to inspect the work, but this is no excuse for covering the repaired system with dirt prior to obtaining a reinspection. Shortly before the final hearing, Respondent dug up the system, installed an entirely new drainfield, and completed the repairs in a satisfactory fashion.
Recommendation It is RECOMMENDED that the Department of Health and Rehabilitative Service enter a final order imposing an administrative fine of $1000 against Respondent for a false payment statement and failure to call for reinspection prior to covering a system. ENTERED on October 10, 1996, in Tallahassee, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings on October 10, 1996. COPIES FURNISHED: Susan Mastin Scott Senior Attorney Department of Health and Rehabilitative Services Post Office Box 60085 Fort Myers, Florida 33906 Attorney Michael F. Kayusa Post Office Box 6096 Fort Myers, Florida 33911 Richard Doran, General Counsel Department of Health and Rehabilitative Services 1317 Winewood Boulevard, Room 204 Tallahassee, Florida 32399-0700 Gregory D. Venz, Agency Clerk Department of Health and Rehabilitative Services 1317 Winewood Boulevard Building 2, Room 204X Tallahassee, Florida 32399-0700
Findings Of Fact On October 15, 1982, Hal Thomas Reid Associates applied for a septic tank permit to serve a 16-room motel. On February 2, 1983, this application was amended to a 5,800 gallon septic tank to serve a 32-unit condominium and office. The lot on which this drain field is to be located is 70 feet by 100 feet. When the application was filed, the lot was inspected by the Citrus County Health Department. The elevation of the land averaged 2.5 to 2.9 feet above mean sea level. The 10-year flood plane in this area is 4.9 feet. Occasional high tides inundate this area; however, the water drains off rapidly and no one testified that water ever remained standing as long as seven consecutive days. Usually the water drains off in less than 24 hours. On March 1, 1983, an extremely high tide flooded this area and roads in the vicinity to a depth of approximately one foot. This water remained on the site less than 24 hours. The site is not located adjacent to state waters, is not an area designated as wetlands, and is without the dredge and fill permitting jurisdiction of the United States Army Corps of Engineers and the Florida Department of Environmental Regulation (Exhibits 20 and 21). By adding five feet of fill to the site, the bottom of the gravel below the drain pipes will be above the 10-year flood plane. The drain field capacity is adequate to handle the flow from 33 bathrooms of residential units. In approving this permit, the Citrus County Health Department used the 150 gallons per day discharge for residential units rather than the 100 gallons per day discharge from a motel unit. The water table at this location is two feet above mean sea level. This is determined by the elevation reached at high tides for 14 consecutive days. As a condition to Citrus County withdrawing as an intervenor in these proceedings, Applicant agrees: To revegetate and restore any alleged wetlands affected by the permit to a like or similar condition; To install three shallow draft monitor wells around the drain field towards the wetlands area adjacent to the site and towards Woods 'n Waters subdivision, establish an existing level of bacteria count prior to the activation of the septic tank, and to monitor said wells through the Citrus County Health Department on a quarterly basis; and In the event any monitor wells shall test at an unsatisfactory level, Applicant will forthwith correct this condition to the satis- faction of the Citrus County Health Department. This application meets all of the code requirements of Chapter 10D-6, Florida Administrative Code.
The Issue The issue presented is whether Respondent Seanic Corporation's application for an operating permit for a domestic wastewater treatment facility should be granted.
Findings Of Fact On January 20, 1994, Respondent Seanic Corporation submitted to Respondent Department of Environmental Protection an application to construct a wastewater treatment and disposal facility. The application requested approval to construct a facility with a design capacity of 15,000 gallons per day and to discharge its treated effluent to G-III groundwater through two Class V injection wells. Although the Department had no rules with specific depth requirements for such wells, the plans that accompanied the application contemplated wells with a total depth of 90 feet below land surface, which would be cased down to a depth of 60 feet below land surface. On February 23, 1994, the Department gave notice of its intent to issue the requested construction permit. Petitioners did not challenge the issuance of the construction permit, and the Department issued the permit on April 22, 1994, with an expiration date of five years after the issuance of the permit. On February 17, 1999, Seanic began construction of the permitted facility, including the construction of the two Class V injection wells. At the time the wells were first drilled, there were no statutes or rules regarding the appropriate depth of underground injection wells at a facility like Seanic's. Construction of the Seanic facility was completed before April 12, 1999, as reflected by the Certificate of Completion of Construction for the permitted facility. On April 21, 1999, Seanic filed with the Department its application to operate the facility. Chapter 99-395, Laws of Florida, became effective on June 18, 1999, approximately two months after the facility was constructed and the operating permit application was submitted. Section 5 of Chapter 99-395 defines the term "existing" to mean "permitted by the Department of Environmental Protection or the Department of Health as of the effective date of this act." Chapter 99-395 imposes different effluent limitations for "existing sewage facilities" than those that are applied to new facilities. For facilities that have a design capacity of less than 100,000 gallons per day, new facilities must provide treatment that will produce an effluent that contains no more, on a permitted annual basis, than the following concentrations: Biochemical Oxygen Demand (CBOD5) of 10 mg/L Suspended Solids of 10 mg/L Total Nitrogen of 10 mg/L Total Phosphorus of 1 mg/L These standards are frequently referred to as the "10-10-10-1 Standard." In accordance with Section 6(4) of Chapter 99-395, "existing sewage facilities" have until July 1, 2010, to comply with the 10-10-10-1 standard. Prior to that date, "existing sewage facilities" must meet effluent limitations of 20 mg/L for both CBOD5 and suspended solids and must monitor their effluent for concentrations of total nitrogen and total phosphorus. The Seanic facility is an "existing" facility, as that term is defined in Chapter 99-395, and, therefore, has until July 1, 2010, to comply with the 10-10-10-1 standard. Section 6(7)(a) of Chapter 99-395 requires Class V injection wells for facilities like Seanic's to be "at least 90 feet deep and cased to a minimum depth of 60 feet or to such greater cased depth and total well depth as may be required by Department of Environmental Protection rule." The Department has not promulgated any rules requiring Class V injection wells to be deeper than the depth prescribed in Chapter 99-395, Laws of Florida. As of January 26, 2000, the total depth of Seanic's injection wells measured 92 and 94.5 feet, respectively. On November 24, 1999, the Department entered its notice of intent to issue the operating permit applied for by Seanic and attached to the notice a "draft permit" with the conditions and effluent limitations that would be applied to the facility. In issuing the notice, the Department determined that Seanic had provided reasonable assurance that the facility will not discharge, emit, or cause pollution in contravention of applicable statutes or the Department's standards or rules. The draft permit included effluent limitations of 20 mg/L for both CBOD5 and suspended solids and required Seanic to monitor its effluent for total nitrogen and total phosphorus, in accordance with Chapter 99-395, Laws of Florida, and the Department's rules for existing sewage facilities. The draft permit notes that Seanic must comply with the 10-10-10-1 standard by July 1, 2010. Because Seanic's condominium development has not been completed and the wastewater treatment facility is not expected to go into operation for approximately one year, the draft permit also requires that the facility be re-inspected and re-certified immediately prior to going into operation. The Seanic facility was designed to create an effluent that is several times cleaner than required by Department rules. The facility uses an extended aeration process that is expected to reduce levels of both biological oxygen demand ("BOD") and total suspended solids ("TSS") to lower than 5 mg/L, concentrations that are 75 percent lower than the effluent limitations in the draft permit. Similar facilities in the Florida Keys have shown that they can achieve BOD and TSS concentrations of less than 5 mg/L. The Seanic facility has also been designed to provide a greater level of disinfection than required by law. While the draft permit requires only that the facility maintain a chlorine residual of 0.5 mg/L after fifteen minutes' contact time, the facility has been designed with larger chlorine contact tanks to provide a chlorine contact time of approximately one hour at anticipated flow rates. The facility operator can also increase residual chlorine concentrations. These facts, along with the reduced TSS levels at this facility, will provide considerably greater levels of disinfection than the law requires. Although the draft permit does not contain effluent limitations for total nitrogen or total phosphorus, the levels of these nutrients expected to be present in the Seanic facility's effluent are approximately 5 mg/L and 2-3 mg/L, respectively. Studies conducted on the rate of movement of phosphorus in the subsurface indicate that some of the phosphorus is rapidly immobilized through chemical reactions with the subsurface soil matrix. Specifically, studies conducted on injection wells in the Florida Keys report that 95 percent of the phosphorus is immobilized within a short time after entering the injection well. Studies conducted on the rate of movement of nitrates in the subsurface indicate that some nitrate migration is also retarded through chemical reactions with the subsurface soil matrix. More specifically, studies conducted with injection wells in the Florida Keys report that denitrification removes approximately 65 percent of the nitrates within a short time after the effluent enters the injection well. In addition to the chemical reduction of phosphorus and nitrogen levels in the groundwater, studies conducted on injection wells in the Florida Keys with a total depth of 90 feet and a cased depth of 60 feet have reported extremely high dilution rates by the time effluent injected into such wells would appear in surrounding surface waters. More specifically, studies using chemical and radioactive tracers have reported dilution rates on the range of seven orders of magnitude, i.e., 10 million times. After undergoing chemical reduction in the groundwater as well as extremely high dilution rates, the levels of nitrogen and phosphorus that would be expected to enter Captain's Cove and the adjacent canals will be infinitesimal, i.e., less than one part per trillion. Such levels would be several orders of magnitude below detection limits of currently available analytical methods. The surface waters in the artificial canals and in Captain's Cove surrounding the homes of Petitioners' members are classified by the Department as Class III waters that are predominantly marine. The permitted levels of fecal coliform bacteria in the facility's effluent (as restricted in the draft permit) are identical to the discharge limits for fecal coliform bacteria in Class III waters that are predominantly marine. The operation of Seanic's facility will not result in discharges of fecal coliform bacteria in excess of the applicable effluent limitations. Petitioners' expert witnesses agree that the facility, as designed, will comply with all of the conditions and effluent limitations in the draft permit. No Department rule or standard will be violated by this facility. The Department has not promulgated any effluent limitations or standards for viruses to be discharged to G-III groundwater or Class III surface waters that are predominantly marine. Petitioners' members use and enjoy the clear waters in their canals and in Captain's Cove. They have had the water quality tested four times a year since 1988. Captain's Cove, along with the adjacent canals, has remained a clear, oligotrophic water body with minimal algae growth. Petitioners' members fear that the introduction of viruses and other microorganisms through the facility's effluent will cause swimming in Captain's Cove and the adjacent canals to be harmful to their health. Their fear has been heightened by newspaper stories about viruses and a publicized study which erroneously claimed that Captain's Cove had high levels of harmful bacteria. Petitioner Port Antigua Property Owners Association ("PAPOA") received notice of the Department's intent to issue an operating permit to Seanic. The president discussed the permit with another resident, a microbiologist, who in turn discussed the facility with geologists and reviewed studies performed in the Florida Keys. Their serious concern over the depth of the injection wells and the possible release of viruses and bacteria harmful to the marine environment and to the public health was expressed throughout PAPOA's petition, and a copy of one of the tracer studies upon which they relied was attached to the petition. The president of Petitioner Port Antigua Townhouse Association, Inc. ("PATA"), who is also a member of PAPOA, discussed the Department's notice of intent with the president of PAPOA and the microbiologist. He also discussed the project with a member of PATA who oversees Broward County's wastewater treatment facility, which has the same effluent limitations as the Seanic facility. PATA members believed they should join with PAPOA and the Lower Matecumbe Key Association in requesting a hearing on Seanic's operating permit. PATA and others have also filed litigation in the Circuit Court against Seanic Corporation and others. That litigation is still pending. Petitioners were not able to cite any statute or rule that would be violated by the Seanic facility's discharge. They believe that since the facility is not yet operating, it should be required to adhere to the stricter effluent standards required for new facilities. They also believe that the Department should consider the harmful effects of viruses and bacteria on the marine environment and on the public health. Petitioners did not file their petitions for any improper purpose. They did not file their petitions for any frivolous purpose or to harass or to cause unnecessary delay or to increase Seanic's costs in obtaining an operating permit for its facility. They believed the language in the Department's notice of intent to issue the permit which advises substantially affected persons that they have a right to an administrative hearing and that the Department could change its preliminary agency action as an result of the administrative hearing process. They believe they are simply exercising a right that they have under the law.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered granting Seanic's application for an operating permit for its domestic wastewater treatment facility but denying Seanic's Motion for Attorney's Fees and Costs. DONE AND ENTERED this 13th day of November, 2000, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 November, 2000. COPIES FURNISHED: Francine Ffolkes, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Evan Goldenberg, Esquire White & Case, LLP First Union Financial Center 200 South Biscayne Boulevard Miami, Florida 33131-5309 Lee R. Rohe, Esquire Post Office Box 500252 Marathon, Florida 33050 Kathy C. Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-0300 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-0300
The Issue The issue in this case is whether a variance for a reduced setback from Petitioner's well to Respondent Allen C.D. Scott, II's (Scott) septic system should be granted by the Department of Health.
Findings Of Fact Allen C.D. Scott, II, owns property designated as Lot 13, Block 11, Vilano Beach Subdivision, 40 Viejo Street in St. Johns County, Florida. Mr. Scott's property is undeveloped, except for a drinking water well located in the northwest quadrant of his property. The well was installed within the past year. There are residential homes on the north, south, and west sides of the property. The beach is on the east of the property. The property is 50 feet wide and 125 feet deep. The property is not served by a public or private utility; thus, Mr. Scott must provide his own drinking water well and septic system. Mr. Scott purchased the property from Alexander A. Morese, Jr. Mr. Scott was Morese's attorney of record for issues concerning this property and the proposed septic tank system. The neighboring property to the north of Mr. Scott's property is owned by Petitioner, May Bobbitt. Petitioner has two wells on her property. A fairly recently-installed drinking water well and an irrigation well. The irrigation well, is located 30 feet from a site on Mr. Scott's property proposed for an on-site septic system. The location of the proposed septic tank is less than the required setback from a septic system to an irrigation well of 50 feet. The potable drinking water well is 225 feet deep, pit- cased and terminates in the Floridan aquifer. It is within 65 feet of Ms. Bobbitt's septic tank system and is located 50 feet from the proposed site of Mr. Scott's septic system. The location of the proposed septic tank is less than the required setback from a potable drinking water well to a septic system of 75 feet. The initial permit for Ms. Bobbitt's drinking water well was denied based on its proximity to her septic tank. Ms. Bobbitt challenged the denial in an informal proceeding before DOH (DOH case number 97-023H). Mr. Morese played some role in that proceeding. In the meantime, the initial septic tank permit application filed by Mr. Morese was denied by DOH based on the location of Ms. Bobbitt's drinking water well. Mr. Morese appealed the denial to the DOAH Case No. 98-3283. Sometime in late 1997, DOH granted Ms. Bobbitt a variance for a 65-foot setback distance from her drinking water well to her septic system. The variance resulted after settlement of the administrative actions involving May Bobbitt and Mr. Morese's permitting her well and Mr. Morese's septic tank. The variance was granted because the construction of the well prevents contamination of the well from the septic system. Both cases were separately terminated. On November 5, 1997, Mr. Morese applied to DOH for a variance to reduce the setback distances from Petitioner's two wells to Mr. Morese's proposed septic system. Since Mr. Morese's property was 50 feet wide and Mr. Morese desired to build a two-bedroom home on the property, there was limited area available to construct the septic system. The proposed septic system is located in the only area available for such a system and is the same location proposed by Respondent Scott. A sign was posted on Mr. Morese's property notifying Ms. Bobbitt of Mr. Morese's variance request. The variance committee recommended approval of the Morese variance with specific provisos at their December 1997, meeting. Dr. Richard Hunter, Department of Health Deputy State Health Officer, approved the variance with provisos by letter to Mr. Morese on December 17, 1997. The letter stated the approval as follows: The onsite sewage treatment and disposal system shall be set back from the irrigation well on lot 14 by the maximum distance attainable but not less than 30 feet when installed. The onsite sewage treatment and disposal system shall be set back from the drinking water supply well on lot 14 by the maximum distance attainable but not less than 50 feet when installed. The onsite sewage treatment and disposal system drainfield elevation shall be based on a seasonal high water table no lower than 12 inches below existing grade based on William G. Harb's report of November 13, 1997. The variance approval was not challenged by Petitioner or any other neighbor. The variance was granted for a period of one year from the date of Dr. Hunter's letter. As indicated, Allen C.D. Scott, II, purchased the property from Mr. Morese. When Mr. Scott purchased the property from Mr. Morese, the variance was transferred to Mr. Scott. After Mr. Scott purchased the property, he hired an engineer to assist him in securing a Department of Environmental Protection (DEP) coastal construction control permit. The permit was finally issued on May 13, 1999. The variance granted Mr. Morese and subsequently transferred to Mr. Scott expired December 18, 1998. Thus, by the time Mr. Scott obtained his DEP permit to put fill on his property in order to construct his septic system, the variance for reduced setbacks from Petitioner's wells had expired. On June 14, 1999, Mr. Scott applied to DOH for a variance to reduce the required setbacks from Petitioner's irrigation and drinking water wells to his proposed septic system. Mr. Scott's variance application requested the exact same setbacks that Mr. Morese had been granted in December 1997. For the same reasons the variance review committee recommended approval of the Morese the committee recommended approval of the Scott variance. Dr. Sharon Heber, Director of Environmental Health, DOH, granted the variance by letter on July 2, 1999. The letter contained the same provisions as Mr. Morese received in December 1997. The evidence demonstrated that the requested variance would not adversely impact anyone's health or degrade ground or surface waters. Moreover, the evidence showed that the variance met all other Department criteria for an onsite sewage disposal system. Don Hallman, professional engineer, testified that the pit casing of Ms. Bobbitt's well provides an additional layer of protection from contamination sources. He further explained that Petitioner's deep well was cased in a consolidated formation which furnished protection from surface and lateral contaminants. Mike Turner testified that he has permitted and/or had experience with two thousand or more wells in his job with the St. Johns Water Management District. He stated unequivocally that Ms. Bobbitt's deep, pit-cased well was in no more danger from contamination from Scott's septic system, 50 feet away, than it is from the 65-foot reduced setback distance to her own septic system. Given these facts, Respondent is entitled to a variance for his proposed septic tank system.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the variance should be granted by the Department of Health and Petitioner's challenge dismissed. DONE AND ENTERED this 8th day of June, 2000, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 8th day of June, 2000. COPIES FURNISHED: Charlene J. Petersen, Esquire Department of Health 420 Fentress Boulevard Daytona Beach, Florida 32114 May Bobbitt 41 Zamora Street St. Augustine, Florida 32095 Allen C. D. Scott, II, Esquire 101 Orange Street St. Augustine, Florida 32084 Angela T. Hall, Agency Clerk Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1703 William Langue, General Counsel Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701 Dr. Robert G. Brooks, Secretary Department of Health Bin A00 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701
The Issue The issue is whether Palm Beach County's application for a permit to construct a domestic wastewater collection/transmission system in Palm Beach County should be approved.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Parties The County is a political subdivision of the State of Florida and is the permittee in this matter. The County Water Utilities Department currently serves approximately 425,000 persons, making it the largest utility provider in Palm Beach County and the third largest in the State of Florida. ITID is an independent water control special district created by special act of the legislature in 1957 and whose boundaries lie within the County. Portions of the transmission line to be constructed by the County will cross easements and roads, and pass under canals, owned by ITID. Petitioners Joseph Acqualotta, Michael D'Ordine, Ann Hawkins, and Lisa Lander all live in areas in close proximity to the proposed transmission line. Lander lives adjacent to the proposed route of the line along 40th Street North, while Acqualotta, D'Ordine, and Hawkins live adjacent to the proposed route along 140th Avenue North. Acqualotta, Hawkins (but not D'Ordine, who resides with Hawkins), and Lander own the property where they reside. Petitioners Troy and Tracey Lee (Case No. 05-2979), Lisa Gabler (Case No. 05- 2980), and Anthony and Veronica Daly (Case No. 05-2982) did not appear at the final hearing. The Department is an agency of the State of Florida authorized to administer the provisions of Part I of Chapter 403, Florida Statutes, and is the state agency charged with the responsibility of issuing domestic wastewater collection/ transmission permits under Section 403.087, Florida Statutes (2004).1 Background On December 15, 2004, the County filed its application with the Department for an individual permit to construct a domestic wastewater collection/transmission system (Transmission Line). The Transmission Line is one element of the County's Northern Region Utilities Improvement Project (Project) and will be approximately 41,050 feet long and comprised of approximately 32,350 linear feet of 20-inch force main and 18,700 linear feet of 30-inch force main (or nearly ten miles in length). A primary purpose of the Project is to provide water and wastewater service to the Village, a 1,900 acre parcel located in the unincorporated part of the County several miles west of the Florida Turnpike, south of State Road 710, and north of the Villages of Wellington and Royal Palm Beach. The Village will be the home of the Scripps Project and Campus. The Transmission Line will run from the southeastern corner of the Village south to Northlake Boulevard, then east to 140th Avenue North, then south along that roadway to 40th Street North, where it turns east until it interconnects with existing facilities. The wastewater will be collected in a regional pump station on the Scripps Project site, where it will be pumped through the Transmission Line to the East Central Plant, which will be the primary treatment facility. The East Central Plant is owned and operated by the City of West Palm Beach (City), but the County owns between forty and forty-five percent of the treatment capacity. Because the wastewater system is interconnected, the wastewater could also be treated at the County's Southern Regional Plant. Ultimately, the flow from the Scripps Project will be one or two million gallons per day. The Transmission Line is the only way that wastewater can be handled at the Scripps Project. A preliminary analysis by the Department and the South Florida Water Management District determined that on-site treatment was not feasible because of the environmentally sensitive nature of the area. The Scripps Project will include residential units, commercial entities, and institutional uses, such as medical clinics. Besides serving these customers, the Transmission Line will also serve other customers in the area. The County has already signed agreements with the Beeline Community Development District (which lies a few miles northwest of the Village) and the Village of Royal Palm Beach (which lies several miles south-southeast of the Village). At the time of the hearing, the County anticipated that it would also sign an agreement with Seacoast Utility Authority (whose service area is located just southeast of the Village) to transport wastewater through the Transmission Line. All of the treatment facilities have sufficient existing capacity to treat the estimated amount of domestic wastewater that will be generated by the Scripps Project and the other users that will discharge to the Line. The County commenced construction of the Transmission Line in May 2005 when the Department issued the Permit. On August 2, 2005, the County published the Department's Notice to issue the Permit, and once the Petitions were filed, the County stopped construction pending the outcome of this hearing. Approximately seventy percent of the Transmission Line is now completed. The Permit does not allow the Transmission Line to be used until it is pressure tested and certified complete. Upon completion, the County must receive an Approval to Place a Domestic Wastewater Collection/Transmission System into Operation from the Department. Such approval is given only after the County has given reasonable assurance that adequate transmission, treatment, and disposal is available in accordance with Department standards. See Fla. Admin. Code R. 62-604.700. On August 15, 2005, Petitions challenging the issuance of the Permit were filed by ITID and the individual Petitioners. ITID contends that the Transmission Line will convey not only domestic wastewater, but also industrial waste; that the County did not comply with all applicable technical standards and criteria required under the Department's rules; that the Project will be located on ITID's right-of-way, on which the County has no right to occupy; that the Project will be located within seventy-five feet from private drinking wells and does not provide an equivalent level of reliability and public health protection; and that the pipe material and pressure design is inappropriate for the Transmission Line's requirements. The individual Petitioners (who filed identical Petitions) are mainly concerned about the location of the Transmission Line in relation to their private drinking wells and property, the possibility of the pipe bursting or leaking once it becomes operational, and the restoration of their property to its original condition after construction is completed. As to the property claims by all Petitioners, the County plans to place the Transmission Line in property that it either owns or has an easement, in property that it is in the process of condemning, or in a public right of way. While the County acknowledges that it has already placed, and intends to place other portions of, the Transmission Line in easements that ITID says it has the exclusive right to use and for which a permit from ITID is required, the County alleges that it also has the right to use those easements without an ITID permit. The dispute between the County and ITID is the subject of a circuit court proceeding in Palm Beach County, and neither the Department nor DOAH has the authority to decide property interests. Petitioners' Objections Domestic wastewater and pretreatment The wastewater that will be generated by the Scripps Project is considered domestic wastewater; it will not include industrial wastewater. Waste that is industrial or non- domestic must be pretreated to protect the wastewater plant, collection system, and the health of system workers and the general public. The Department administers a pretreatment program through which it requires a public wastewater utility to police the entities that discharge to their wastewater plants. A central part of the pretreatment program is the local ordinance that gives legal authority to the utility to permit, inspect, and take enforcement action against industrial users who are part of the pretreatment program. The utility files an annual report with an industrial user survey, and the Department periodically inspects and audits local pretreatment programs to ensure they are being operated as intended. The system is not failsafe but is designed to ensure that potentially harmful wastes are rendered harmless before discharge. For example, the utility has the authority to immediately shut water off if a harmful discharge is occurring. Both the County and the City have pretreatment programs approved by the Department. The City has an ordinance that allows it to enforce the pretreatment standards for all entities that discharge to its wastewater system. The County Water Utilities Department has a written pretreatment manual, and the County has zoning restrictions on the discharge of harmful material to the wastewater system. It has also entered into an interlocal agreement under which it agrees to enforce the City ordinance. The County provides wastewater treatment to industrial, educational, and medical facilities, and it has never experienced a discharge from any of these facilities that has caused adverse health or environmental impacts. The County pretreatment program for the Southern Regional Facility was approved in 1997. The City pretreatment program for the East Central Regional Facility was approved in 1980. The Scripps Project must apply for a permit from the County and provide a baseline monitoring report, data on its flow, and information on the flow frequency and raw materials. Medical waste from the Scripps Project will be pretreated to render it safe before it is discharged into the Transmission Line. Transmission Line Design The Transmission Line was designed in accordance with the technical standards and criteria for wastewater transmission lines in Florida Administrative Code Rule 62- 604.300(5). That rule incorporates by reference a set of standards commonly known as the Ten State Standards, which contain several of the standards used in the design of this project. These standards are recommended, but are not mandatory, and a professional engineer should exercise his or her professional judgment in applying them in any particular case. The Transmission Line also meets the design standards promulgated by the America Water Works Association (AWWA). Specifically, the County used the AWWA C-905 design standard for sizing the polyvinyl chloride, or PVC, pipe used in the project. The County has received written certification from the manufacturer that the PVC pipe meets the standards in AWWA C-905. The Transmission Line is designed with stub-outs, which will allow for future connections without an interruption of service, and inline isolation valves, which allow the line to be shut down for maintenance. The Use of PVC Pipe There is no standard regulating the selection of PVC pipe material in the Department's rules. Instead, the Department relies on the certification of the applicant and the engineer's seal that the force main will be constructed to accepted engineering standards. The only specification applicable to the Transmission Line is the Ten State Standard, adopted and incorporated by reference in Florida Administrative Code Rule 62-604.300(5)(g). That document contains a general requirement that the material selected have a pressure rating sufficient to handle anticipated pressures in wastewater transmission lines. The Transmission Line will be constructed with PVC piping with a thickness of Dimension Ratio (DR) 32.5, which is the ratio of the outside diameter of the pipe to its thickness. Higher ratios mean thinner-walled pipes. This is not the first time the County has used 32.5 PVC piping for one of its projects, and other local governments in the State have used 32.5 or thinner pipe. The County is typically conservative in requiring thicker-walled pipe, because most transmission lines are built by developers, and the County is unable to design the entire line or control or inspect its installation. The specifications for wastewater transmission lines built in the County call for the use of DR 25 pipe. On this project, however, the County determined that thicker- walled pipe would have been an over-design of the system because the County controls the pump stations and oversees the installation; therefore, the Director of the Water Utilities Department has waived that requirement. The County considers the use of DR 32.5 PVC to be conservative. Although this pipe will be thinner than what is typically used in the County, it satisfies the Department's requirements. The Department has permitted many miles of similar PVC force mains in South Florida, and none have failed. PVC has benefits over other transmission line material, such as ductile iron. For example, PVC is more corrosion resistant. Wastewater generates hydrogen sulfide as it decomposes, which can form highly corrosive sulfuric acid. Some of the older transmission lines in the County that were made of ductile iron have corroded. PVC also has a superior ability to absorb surges, such as cyclical surges, than ductile iron. It is easier to install, and its interior flow characteristics are smoother than ductile iron or pre-stressed concrete pipe. Mr. Farabee, a professional engineer who testified on behalf of ITID, recommended a DR 14 pipe, which is thicker- walled than the DR 32.5 pipe used by the County. While he opined that the DR 32.5 pipe was too thin for the project, he could not definitively state that it would not pass the 150 per square inch (psi) pressure test. He also opined that the pipe is undersized because it will be unable to withstand the surge pressures during cleaning. The witness further testified that the pipe would be subject to much higher pressures than 150 psi, and therefore it was impossible to know whether the pipe would fail. In his opinion, this means the Department did not have reasonable assurance for the project. The County consulted with the Unibell PVC Pipe Association (Unibell) in the planning of this project. Unibell is a trade association that provides technical support for PVC pipe manufacturers. Robert Walker, a registered professional engineer and Unibell's executive director who testified on behalf of the County, disagreed with Mr. Farabee's conclusions concerning the adequacy of the PVC pipe in this project. The AWWA C-905 standard uses a safety factor of two, which means the pipes are tested at pressures that are at least twice their stated design strength. Mr. Walker explained the different standards that apply to PVC pipe. DR 32.5 pipe, which is used in this project, has a minimum interior pressure rating of 125 pounds per square psi. Each pipe section is tested before it is shipped at 250 psi, and the minimum burst pressure for the material is in excess of 400 psi. The pipe also meets a 1000- hour test at 270 psi. In light of these standards and testing, the pipe will pass the two-hour 150 psi test required by the Department. Mr. Farabee expressed some concern that the PVC pipe would be more prone to breakage than ductile iron or thicker PVC. However, the PVC pipe standards provide that the pipe can be flattened at sixty percent without splitting, cracking, or breaking. At shallow depths on dirt roads, ovalation, which occurs when PVC is flattened through pressure, will initially occur, but over time the soil around the pipe will become compacted and result in re-rounding of the pipe. The joints are three times stiffer than the body of the pipe, which will protect the joint from excessive ovalation and leaking, and the use of mechanical restrained joints will further strengthen the joints. There has been no joint leakage in Florida due to deflection of the joints. Finally, there have been no failures of PVC pipe caused by three-feet of fill, which is the depth to which the Transmission Line pipe will be buried. To further protect the pipe, the County optimized its pumping system to avoid cyclical surges by using variable frequency drive pumps that gradually increase and decrease speed rather than just turning on or off. In addition, the pump stations are fed by two power lines that come from different directions and emergency generators, which should lessen the chances of harmful surging. Testing the Installation The anticipated pressures in the Transmission Line will likely be about 50 psi. After installation, the Line will be pressure tested at 150 psi for two hours, which is sufficient to provide the Department with reasonable assurance that the Line will hold pressure and will not leak. Also, the County contract inspectors are on the construction site daily. If problems with the installation arise later, the County has committed to promptly fix the problem, even if it means digging up the line. During the hearing, ITID asserted that the Uniform Policies and Procedure Manual standards, which the County has adopted for use by developers when constructing wastewater transmission lines, should be applied to the County as well. This standard, which requires pressure testing to 200 psi for PVC pipes larger than 24 inches, has not been adopted by the Department and is not an applicable Department permitting standard. Even if it did apply, the Transmission Line would meet this criterion because it is designed to withstand 270 psi for at least 1,000 hours. Mr. Farabee believed that the entire Transmission Line would be pressure tested after the construction was complete, which would require digging up sections of the pipe to install bulkheads. However, this assessment of the County's testing program is incorrect. Leisha Pica, Deputy Director of the Water Utilities Department, developed the schedule for the project, helped develop the phasing of the work and budget, and oversaw the technical aspects. She stated that the County has successfully tested approximately fifty percent of the line that was already installed at 150 psi for two hours and not a single section of the line failed the test. Compaction The County has stringent backfilling and compaction requirements, which are sufficient to ensure the pipe will be properly installed and that there will be adequate compaction of the fill material. The County plans and specifications provide that compaction must be to ninety-five percent of the American Association of State Highway and Transportation Officials (AASHTO) standards for non-paved surfaces and one hundred percent of AASHTO standards for paved surfaces. Even ITID's expert agreed that the compaction specifications are sufficient. Mr. Farabee contended, however, that even though the standards are stringent, the County cannot properly test the installation for compliance with the standards. Mr. Farabee believed that testing of the backfill would be done after all of the construction was complete. In that case, he did not see how the testing could be done without digging many holes to check for the density of the backfill. These assumptions, however, are incorrect. The evidence shows that a total of two hundred sixty-four compaction tests have already been done on the portion of the Transmission Line that was completed. No part of the installation failed the tests. The County has an inspector who observes the installation and pressure tests. The compaction was tested at every driveway and major roadway, as well as every five hundred feet along the route. While Lander and D'Ordine pointed out at hearing that no compaction tests have been performed on the dirt roads which run adjacent to their property and on which construction has taken place, the Department requires that, before the work is certified as complete, non-paved roads must be compacted in accordance with AASHTO standards in order to assure that there is adequate compaction of the fill material. The Sufficiency of the Application When an application for an individual transmission/ collection line permit is filed with the Department, the applicant certifies that the design of the pipeline complies with the Department's standards. However, not all of the details of the construction will be included in the permit application. The Department relies on the design engineer to certify that the materials used are appropriate. The application form is also signed and sealed by a professional engineer registered in the State of Florida. All plans submitted by the County, including the original, modifications, and final version, were certified by professional engineers registered in the State of Florida. After receiving the application, the Department requested additional information before issuing the permit, and the County provided all requested information. The original construction plans that were submitted with the application were changed in response to the Department's requests for additional information. The Permit issued by the Department indicates the Transmission Line would be constructed with ductile iron pipe, but this was a typographical error. ITID maintains that all of the technical specifications for the project must be included in the application, and because no separate engineering report was prepared by the County with the application, the County did not meet that standard. While the County did not submit an engineering report, it did submit sufficient data to provide reasonable assurance that the project will comply will all applicable rules of the Department. As a part of its application package, the County submitted construction plans, which contain the specifications required by the Department. Also, the general notes included in the construction drawings specify the use of restrained joints where appropriate, the selection of pipe material, the pressure testing of the Transmission Line, and other engineering requirements. In addition, the plans contain numerous other conditions, which are also specifications sufficient to fulfill the Department's requirements. Finally, further explanation and clarification of the technical aspects of the application was given by the County at the final hearing. At the same time, the Department engineer who oversaw the permitting of this project, testified that a detailed engineering report was not necessary. This engineer has extensive experience in permitting transmission lines for the Department and has worked on over five hundred permits for wastewater transmission and collection systems. The undersigned has accepted his testimony that in a relatively straightforward permit such as this, the application and attachments themselves can function as a sufficient engineering evaluation. This is especially true here since the County is seeking only approval of a pipeline project, which would not authorize the receipt of wastewater flow unless other wastewater facilities are permitted. Impacts on Public and Private Drinking Water Wells As part of the design of the Transmission Line, the County located public and private drinking water wells in the area of the line. County personnel walked the route of the Transmission Line and looked for private wells and researched the site plans for all of the properties along the route. No public wells were found within one-hundred feet of the Transmission Line route, but they did find seventeen private wells that are within seventy-five feet of the line. None of the Petitioners have private wells that are within seventy- five feet of the line. While Petitioners D'Ordine and Hawkins initially contended that the well on Hawkins' property was within seventy-five feet of the Transmission Line, at hearing Mr. D'Ordine admitted that he "misread the plans and referred to the wrong property." In order to protect the private drinking water wells, Florida Administrative Code Rule 62-604.400(1)(b) requires that the County provide an extra level of protection for the wells that are within seventy-five feet of the Transmission Line. The County will provide that extra level of protection by installing restrained joints that will restrain the joints between the pipe sections. The restrained joints are epoxy-coated mechanical devices that reduce the tendency for the pipes to separate under pressure. The County has used these restrained joints on its potable water and wastewater lines in other areas of the County and has never experienced problems with the devices. The restrained joints will provide reliable protection of the private wells within seventy-five feet of the Transmission Line. The Department is unaware of any instances where restrained joints have failed in South Florida. If more wells are discovered that are within seventy-five feet of the Transmission Line, then the County will excavate the Line and install restrained joints. Minimum Separation Distances The County has complied with all applicable pipe separation requirements in the installation of the Transmission Line. More specifically, it is not closer than six feet horizontally from any water main and does not intersect or cross any reclaimed water lines. See Fla. Admin. Code R. 62-555.314(1)(a). It will be at least twelve inches below any water main or culvert that it crosses. See Fla. Admin. Code R. 62-555.314(2)(a). Finally, it will be a minimum of twelve inches below any culverts that it crosses. (However, the Department has no separation requirement for culverts crossed by the Transmission Line.) h. The M-Canal Crossing The Transmission Line must cross the M-canal, which runs in an east-west direction approximately midway between 40th Street North and Northlake Boulevard. The original design called for the Transmission Line to cross above the water, but the City and the Department suggested that it be located below the canal to eliminate the chance that the pipe could leak wastewater into the canal. In response to that suggestion, the County redesigned the crossing so that a 24- inch high density polyethylene pipe in a 48-inch casing will be installed fifteen feet below the design bottom of the canal. The polyethylene is fusion-welded, which eliminates joints, and is isolated with a valve on either side of the canal. Appropriate warning signs will be installed. See Fla. Admin. Code R. 62-604.400(2)(k)2.-5. The depth of the subaqueous line and the use of the slip line, or casing, exceeds the Department's minimum standards. See Fla. Admin. Code R. 62-604.400(2)(k)1. i. Flushing Protocol Section 48.1 of the Ten State Standard recommends that wastewater transmission lines maintain a velocity of two feet per second. When the Transmission Line becomes operational, it will not have sufficient flow to flush (or clean) accumulated solids from the lines at the recommended two feet per second velocities. (Sufficient flow will not occur until other customers connect to the Transmission Line during the first one to three years of operation.) Accumulated solids produce gases and odors that could create a problem at the treatment plant and might leak out of the manhole covers. To address this potential problem, Specific Condition 9 of the Permit requires the County to flush the lines periodically. Pursuant to that Condition, the County plans to flush the Transmission Line with additional water which will raise the velocity to three or four feet per second, so that the accumulated solids will be flushed. The water will be supplied by large portable tanks that will be temporarily set up at several locations along the Line. During the purging of the Line, sewage will collect in the pump stations until the purge is finished. There is sufficient capacity in the pump stations to contain the wastewater. In addition, the County will use a cleansing tool known as a pig, which is like a foam bullet that scrapes the sides of the pipe as it is pushed through the line. This protocol will be sufficient to keep the Line clean. ITID asserts that the County's plan for flushing is inadequate, because it does not provide enough water for long enough to flush both the 20-inch and 30-inch lines. Mr. Farabee calculated that the County would need almost twice the proposed volume, or almost six million gallons, to adequately flush the lines. ITID's analysis of the flushing protocol is flawed, however, because it assumes a constant flow in all segments of the pipe, which is not practical. In order to maintain the flushing velocity of three feet per second, the County will introduce water into the Transmission Line at three separate locations, resulting in a more constant flow velocity throughout the Transmission Line. In this way, it can maintain the proper velocity as the lines transition from a 20-inch to 30-inch to 36-inch pipe. The County has flushed other lines in the past using this protocol and has had no problems. This flushing protocol would only be in effect from one to three years. The County estimates that the necessary volumes to maintain a two-feet-per-second velocity in the 20- inch line would be reached in about one year. The 30-inch line should have sufficient flows sometime in 2008. These estimates are based on the signed agreements the County has with other utilities in the area to take their flows into the Transmission Line. Because of these safeguards, the Transmission Line will not accumulate solids that will cause undesirable impacts while flow is less than two feet per second. Other Requirements The construction and operation of the Transmission Line will not result in the release or disposal of sewage or residuals without providing proper treatment. It will not violate the odor prohibition in Florida Administrative Code Rule 62-600.400(2)(a). It will not result in a cross- connection as defined in Florida Administrative Code Rule 62- 550.200. The construction or operation of the Transmission Line will not result in the introduction of stormwater into the Line, and its operation will not result in the acceptance of non-domestic wastewater that has not been properly pretreated. If constructed and permitted, the Transmission Line will be operated so as to provide uninterrupted service and will be maintained so as to function as intended. The record drawings will be available at the Department's district office and to the County operation and maintenance personnel. Finally, concerns by the individual Petitioners that the County may not restore their property to its original condition after construction is completed are beyond the scope of this proceeding. At the hearing, however, the Deputy Director of the Water Utilities Department represented that the County would cooperate with the individual property owners to assure that these concerns are fully addressed. Reasonable Assurance The County has provided the Department with reasonable assurance, based on plans, test results, installation of equipment, and other information that the construction and installation of the Transmission Line will not discharge, emit, or cause pollution in contravention of the Department's standards.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order denying all Petitions and issuing Permit No. 0048923-017-DWC. DONE AND ENTERED this 18th day of October, 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 18th day of October, 2005.
Findings Of Fact Tim Youngquist is a licensed water well contractor, holding Florida license #2172, and is principal of Youngquist Brothers, Inc. The South Florida Water Management District, operating pursuant to Chapter 373, Florida Statutes, and Chapter 40E, Florida Administrative Code, is responsible for the permitting and regulation of nonexempt water well drilling within the District's geographical jurisdiction. Unless specifically exempted from permitting requirements, each well must be separately permitted prior to construction. Due to the unique characteristics of wells, well construction permits are issued separately for each individual well and are not issued on a site basis. The Respondent, in the summer of 1990, contracted with the City of Fort Myers, Florida, to construct twenty public water supply wells and eight monitoring wells, all located within the existing city well field site. The Respondent was responsible for compliance with all applicable permit requirements. On December 19, 1990, the Respondent obtained the appropriate city permit for the drilling operation, but did not at that time apply for or obtain any permits as required by the Petitioner. The City of Fort Myers permits wells in compliance with the Standard Plumbing Code, but does not have a well construction ordinance. The city permit does not substitute for the Petitioner's well construction permits. On April 9, 1990, the Petitioner received an inquiry from a representative of the Lee County Health Department as to whether the Respondent had obtained well construction permits from the Petitioner. At that time, there had been no application for the permits submitted to the Petitioner by the Respondent. On April 10, 1990, Don Douglas, Youngquist Brothers manager for the Fort Myers city wells project, contacted the Petitioner and inquired as to the method for obtaining permits for the well construction. Mr. Douglas was advised to immediately cease any well construction operations at the City of Fort Myers well field pending receipt of the appropriate permits. On April 11, 1991, Petitioner's staff inspected the City of Fort Myers well field site, and observed six newly- completed public supply wells on the site. Petitioner's staff again instructed Respondent's representative to cease any further activity. There is no evidence that, subsequent to the Petitioner's directions to cease operations at said site, any additional construction activities occurred. On April 16, 1991, Petitioner's staff again inspected the City of Fort Myers well field site, and observed three additional public supply wells on the site, two of which were surface-cased with the third well appearing to be completed. On May 23, 1991, a Notice of Violation (NOV) was issued to Youngquist citing the failure to obtain well construction permits for the seven completed public water supply wells and the failure to provide notice to the Petitioner 24 hours in advance of the placement of grout in the annular spaces of the seven wells. The Petitioner's staff determined that the extent of the two surface- cased wells construction did not prohibit appropriate inspection even though the wells would also require permitting. As stated in the NOV, the Petitioner sought a fine of $5,000 for the violations. Further, because the Petitioner's staff was first informed by the Respondent's representative that there were six wells completed on site when in fact there were nine, the NOV sought the imposition of a 20% penalty applied to the $5,000, and the suspension of Respondent's well drilling license. Subsequent to the issuance of the NOV, the Petitioner's staff met with Respondent's project manager to discuss the matter. At that time, it was determined that there actually were only six fully completed public water supply wells and three additional surface-cased but incomplete public water supply wells. The Petitioner dropped the proposed 20% penalty and suspension of Youngquist's license. However, subsequent to this discussion, the parties could not resolve the dispute and an Administrative Complaint was filed. 1/ Six individual well construction permits are required for the six completed public water supply wells located at the City of Fort Myers well field. The evidence establishes that the Respondent constructed and completed the six public water supply wells without obtaining the appropriate permits from the Petitioner. The failure to obtain the six permits constitutes six separate violations. The evidence establishes that, in completing the wells, the Respondent failed to notify the Petitioner 24 hours in advance of placement of grout in the annular spaces of the six completed wells. The failure to notify the Petitioner 24 hours in advance of placement of grout in the annular spaces of the six completed wells constitutes six separate violations. There is no evidence that, prior to initiation of the well construction activities and prior to the discovery of the violations by Petitioner's staff, the Respondent made any attempt to comply with the permitting requirements of the Petitioner.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the South Florida Water Management District enter a Final Order imposing an administrative fine of $4,500.00 against Tim Youngquist. DONE and RECOMMENDED this 14th day of January, 1992, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 1992.
Findings Of Fact At all times pertinent to the allegations herein, the Petitioner, Pinellas County Construction Licensing Board, (Board), was the Pinellas County agency responsible for the certification and regulation of construction specialties. Respondent was certified by the Board as an irrigation systems specialty contractor under license C-5997 in force at the time. Respondent was the qualifying contractor for Sun City Lawn Irrigation. On or about May 17, 1994, Respondent contracted with William J. Schneider, who resided at 5661 25th Avenue North in St. Petersburg, to install a lawn irrigation system in Mr. Schneider's front lawn. The automatic system was to incorporate 2 zones and was, according to the contract and the testimony of Mr. Schneider, to be connected to Schneider's then existing 1/2 horsepower electric pump which drew water from several wells on his property. Mr. Schneider claims there are four wells. No evidence was introduced to contradict that. On the day the system was installed, Mr. Schneider was not at home. Respondent's employees performed a test of the water capacity on Mr. Schneider's property. At first, the wells produced 10 gpm, which was adequate for the system, but after a few minutes of drawdown, they found that the wells were producing only 4 gpm, along with some air. At that time Mr. Freestone, Respondent's sales manager, spoke with Mrs. Schneider about the situation, advising her there were two options open. One was to install a larger pump and the second was to connect the system to the city water supply. Mrs. Schneider returned to the house, presumably to call Mr. Schneider to get his decision on the matter. He claims she did not reach him. Respondent claims that she thereafter returned with directions to install a water line for connection to the city system. This is completely contrary to what Mr. Schneider had wanted and to what is included in the contract. Mr. Schneider claims he did not want to connect to city water because of the added expense of doing so, and he claims he made this very clear to Respondent's employees at the beginning and at all times thereafter. In any case, the system was installed and was, somehow, connected to the city water system near the place where the water line enters the house. In addition, no backflow preventer was installed to insure against contamination getting into the water system as is required by the building code. Most, if not all, the work on this project was completed by Respondent's son and employee, Scott, who was not present at the hearing. Respondent attempted to introduce an unsworn written statement by Scott Bosworth, but it was not accepted. Scott advised Mr. Schneider, when he returned from work that day, that they had been unable to use his pump and wells. Nonetheless, Mr. Schneider paid Respondent in full for the work for which he had contracted, except for a supplemental charge in the amount of $190.95 for the tie in to the city water and the valves and other items connected therewith. Mr. Schneider claims that he made several calls to Respondent's office in an effort to correct the situation but was unable to reach anyone who could give him satisfaction. However, the evidence indicates that on at least one occasion, Mr. Schneider got through and was called back by Mr. Freestone with whom he discussed the situation and the additional charges. He was subsequently advised by counsel that he did not have to pay the additional sum and did not do so. Some time thereafter, Mr. Schneider was advised by the city that he would be fined because of the illegal installation. He then contacted another irrigation company, run by Mr. Williams, who examined the system and determined that the irrigation system installed by Respondent had been connected to the city water system and that no backflow preventer had been installed. A check with the city's building department revealed that no permit had been procured for this installation. Respondent's license to install irrigation systems does not include authority to connect that system with the public water system. That procedure must be done by a licensed plumber. Respondent and Mr. Freestone, the only individuals in the company who had the authority to arrange with a plumber to make the actual hook up to the city system, both deny that any arrangement was made by them to have the system connected to the city water system. Mr. Schneider arrived home on the day in question to find only Respondent's son, Scott, at work on the project. Scott indicated it would be necessary to move two bushes near the house to facilitate connection of the system with the water supply. Mr. Schneider contracted with Scott to move the bushes and remove them from the premises. Scott moved them but failed to remove them. In light of the fact that Scott was working on the system at the time Mr. Schneider arrived home, and the system was found to be connected to the city system thereafter without anyone else touching it, it must be concluded that the connection was made him. Respondent admits he did not come to the property in question while the system was being installed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be issued by the Board suspending the license of the Respondent for a period of six months with provision for withholding execution of the suspension for a period of one year conditioned upon such criteria as may be deemed appropriate by the Board. RECOMMENDED this 31st day of March, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 1995. COPIES FURNISHED: William J. Owens Executive Director Pinellas County Construction Licensing Board 11701 Belcher Road Largo, Florida 34643-5116 Larry J. Bosworth 8901 14th Street North St. Petersburg, Florida 33716
