Findings Of Fact Respondent, Lois Green, is a resident of Florida and owns the property known as the Nichols Post Office located on Highway 676 in Nichols, Polk County, Florida. There is one employee stationed at the post office and members of the public use the post office for U.S. mail purposes. On October 11, 1990, Petitioner advised Respondent that the source of water that she used to supply the post office building did not comply with the requirements of the Florida Administrative Code. Thereafter, on September 23, 1991, Petitioner issued an Administrative Complaint to Respondent, advising of Petitioner's notice of intent to assess a fine of $100.00 per day until the corrections were made or for 30 days, whichever occurred first. At the hearing, Petitioner orally amended paragraph 4 of the Administrative Complaint to change the reference "December 22, 1989" to "October 4, 1990." Following service of the Administrative Complaint on Respondent and for 30 days thereafter, the water source for the post office building was a well located behind the post office on Respondent's property. In approximately December of 1991, Respondent disconnected the well which was presently serving the post office and connected to another well located adjacent to the property which supplied a residential home. The well which provided water to the post office was originally drilled as an irrigation well. The well head was located approximately 50 ft. to the closest septic tank and restroom pipe outlets. That well had no raw sample taps or a pressure tank with an inlet or outlet. Additionally, there was no surface protection pad nor were quarterly bacteriological samples taken to measure the water quality samples. Finally, the well was not approved by Petitioner prior to placing it into use by Respondent. Sometime subsequent to 30 days after Petitioner issued the Administrative Complaint to Respondent, Respondent abandoned the well without notifying the Petitioner and connected to a residential well which also contravenes the setback requirements contained in Chapter 17, Florida Administrative Code. Specifically, that well is approximately 30 ft. from the on-site sewage disposal system (septic tank) and is in violation of Rule 17- 555.302, Florida Administrative Code, formerly Rule 17-22.615(2), Florida Administrative Code. Petitioner's agent, Mark Fallah, during times material, was employed in Petitioner's Code Enforcement Section and was charged with investigating the problems surrounding Respondent's supply of water to the Nichols Post Office. Throughout the course of employee Fallah's involvement with the investigation of this matter, there have been several proposals and counter-proposals which have been exchanged by and between Petitioner and Respondent. Petitioner's agent Fallah attempted to see if a variance could be obtained whereby Respondent could continue to use the then existing well despite the fact, however, that it was in violation of the setback requirements. Additionally, Fallah attempted to get Respondent to make certain minor changes and modifications to the existing well which were not successful. Throughout the course of the parties negotiations in an effort to resolve this matter, there has been certain concessions made by both sides; however, the well which supplies the post office is a water system which is noncompliant with applicable statutory and rule requirements. Petitioner, through its employee Fallah, checked with a local well drilling company, Dunham Well Drilling Company, to obtain an estimate for a well. That company gave an estimate of approximately $2,000.00 to $3,500.00 to install a water supply system to the post office which would comply with Petitioner's requirements.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner enter a Final Order imposing an administrative fine against Respondent in the total amount of $3,000.00 of which amount $2,500.00 shall be suspended pending Respondent's initiation of a plan to construct and install a water well system to provide the Nichols Post Office which complies with Petitioner's requirements enunciated in Chapters 403 and 381, Florida Statutes and Rule Chapter 17, Florida Administrative Code. In the event that Respondent fails to initiate a plan of correction and complete the installation of the well within sixty (60) days of the date of Petitioner's entry of its Final Order, then Petitioner shall be authorized to impose the full administrative penalty of $3,000.00 without further administrative proceedings. Respondent shall submit to Petitioner the five hundred dollar ($500.00) administrative fine within thirty (30) days from the entry of Petitioner's Final Order. DONE and ENTERED this 22 day of April, 1992, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 day of April, 1992. COPIES FURNISHED: Raymond R. Deckert, Esquire Asst District Legal Counsel HRS District VI Legal Office 4000 W Dr Martin Luther King Jr Blvd Tampa, Fl 33614 Mygnon Evans, Esquire 5600 US Highway 98 N Lakeland, Fl 33809 Richard S. Power Agency Clerk Dept of Health and Rehabilitative Services 1323 Winewood Blvd Tallahassee, Fl 32399 0700 John Slye, Esquire General Counsel Dept of Health and Rehabilitative Services 1323 Winewood Blvd Tallahassee, Fl 32399 0700
Recommendation Based on the forgoing Findings and Conclusions of Law it is hereby Recommended that the Respondent, DER, issue a permit to Respondent, Fano Holding Corporation, to construct a 200 foot long by 5 foot wide pier with a 100 foot long by 5 foot wide "T" at the waterward end, as set forth hereinabove. RECOMMENDED this 10th day of October, 1978, in Tallahassee Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Segundo Fernandez, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Twin Towers Office Building Tallahassee, Florida 32301 Diane S. Guthrie, Esquire Spielvogel & Goldman, P.A. P.O. Box 1366 Merritt Island, Florida 3252 Edward M. Jackson, Esquire P.O. Box 127 Cocoa, Florida 32922 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION T. OSBORNE, et al., Petitioner, vs. DOAH Case NO.: 78-753 DER FILE NO.: 05-30-0543-4E FANO HOLDING CORPORATION and (6826) STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION, Respondent. /
Findings Of Fact At all times material to this proceeding, Sandra B. Frazier was a licensed real estate broker-salesman in the State of Florida, License No. 0185565, as an associate with Property Associates, Inc., Tallahassee, Florida. On July 1, 1989, Howard M. Burkholz, Leslie Burkholz, and Jacob H. Schiff entered into an Exclusive Right of Sale Agreement with Property Associates, through its agent, Frazier, for the sale of a house located in Forest Green Subdivision, at 2062 Pepperidge Way, Tallahassee, Florida. The Exclusive Right of Sale Agreement states in part: Seller further certifies and represents that the property has no latent defects except the following: septic tank is pumped monthly at Sellers request. [sic] Mr. and Mrs. Burkholz both told Frazier that the septic tank was not a problem, but Frazier had previous knowledge of septic tank problems in the vicinity and of the significance of needing septic tank pumping. Frazier sold the house across from the Burkholz's house. That house, at 2061 Pepperidge Way, was bought by Marcie Doolittle in December of 1988. The listing information and Notice to Prospective Buyers showed that, due to the composition of the soil and heavy rains, it was necessary to have the septic tank pumped. The seller offered an offset to the buyer for the cost of additional drainfield. Only after Doolittle bought the house did Frazier learn of the severity of the problems and the necessity for pump outs every two weeks. In a letter written by Frazier to Doolittle on February 9, 1989, Frazier indicated that "once a septic tank fails it does not correct itself. It then requires regular pumping." Frazier suggested that the only resolution was more drainfield or regular pumping. After Frazier listed the Burkholz house, she mentioned to Mrs. Doolittle that she could not show the Burkholz house during wet weather because the backyard, in which the septic tank and drainfield was located, was too boggy. Further, Frazier discussed with Mrs. Doolittle that the city was going to install sewer in the area because of the septic tank failures. In conformance with the Exclusive Right of Sale agreement with the Burkholzs, Frazier listed the house through the Multiple Listing Service. The data on the house was input on an input sheet. If there are defects, they can be listed on lines RE1-RE4 on the input form. Despite her knowledge about the Burkholz's septic tank and the Doolittle's septic tank, Frazier did not list this as a defect. Mary Wheatley, a sales associate with Bob Wolfe Real Estate, worked with Jesse and Susan Day to locate a house to purchase. She showed the Days the Burkholz house. Her only knowledge of that house came from the MLS listing, the brochure entitled Highlights of this Home prepared by Frazier, and from information verbally given by Frazier. Wheatley had no knowledge of the septic tank problems and Frazier did not tell her anything about the septic tank or the potential hook up to city sewer. After various offers and counteroffers, the Days and the Burkholtzs signed a contract for the sale and purchase of the house on November 24, 1989. The Contract states in paragraph 14: CONDITION OF PROPERTY: BUYER ACKNOWLEDGES THAT HE HAS NOT RELIED UPON ANY REPRESENTA- TIONS MADE BY A REALTOR(S) AS TO THE CONDI- TION OF THE PREMISES. . . .SELLER warrants that the . . . septic tank . . . shall be in working order on the date of closing. SELLER agrees to repair any of the preceding items not in working order. BUYER agrees to inspect the property prior to closing to determine condition of said items; . . . If BUYER fails to make inspections as required, BUYER agrees to accept property in "as is" condition. BUYER and SELLER will diligently learn and disclose to each other prior to closing all facts affecting the value of the property. On December 26, 1989, the night before the closing, the Days, the Burkholzs, Frazier, and Wheatley did the final walk through. While Wheatley and Susan Day were in another room measuring for curtains, Mr. Day flushed a toilet and noted that it went down very slowly. He asked if there were septic tank problems. Mr. Burkholz indicated that there were, but that sewer hookup was coming and the septic tank was pumped out monthly by the city at no cost. Mr. Day asked about the costs and was told that the pumpouts were free and the sewer would cost several hundred dollars. There is a clear conflict in the testimony of the various witnesses about the sewer cost estimate given to Mr. Day, but the exact figure is of no consequence to the ultimate outcome of the case. Therefore the conflict is not resolved. The Days discussed the septic tank and sewer hookup and decided to go through with the closing. After the walk through, they signed an inspection sheet in which they accepted the premises as inspected, without any noted exceptions, and they relieved the sellers and the realtor from further warranty or responsibility for the condition of the property. According to Thomas Bryant, an engineer with the City of Tallahassee, in December, 1989, no one knew whether there would be sewer installed in Forest Green or the potential cost of sewer hookup. No one knew that even on the date of hearing. The city did enter into an agreement to charge $650 for sewer hookup in Forest Green, but there are additional charges and costs to the homeowner which are as yet undetermined. The septic tank problems constitute a latent defect which should have been disclosed to the buyers before a contract was agreed upon. The failure to disclose is not egregious since the regular pumping of the septic tank is done at no cost to the homeowner and results in no liability to the homeowner. The projected sewer hook up was too uncertain to have required such disclosure.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Real Estate Commission enter a Final Order and therein: Find Sandra B. Frazier guilty of one Count of concealment in violation of Section 475.25(1)(b), Florida Statutes. Based on the mitigating factors set forth above and on the relatively minor nature of the offense, impose a fine of $100.00 on Sandra B. Frazier. Issue a written reprimand to Sandra B. Frazier. RECOMMENDED this 27th day of March, 1991, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of March, 1991. APPENDIX TO THE RECOMMENDED ORDER, CASE NO. 90-6189 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted in this case. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Sandra B. Frazier Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1). Proposed findings of fact 2-9 are subordinate to the facts actually found in this Recommended Order. COPIES FURNISHED: Janine B. Myrick Senior Attorney Department of Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32801-1772 William J. Haley Attorney at Law Post Office Box 1029 Lake City, FL 32056-1029 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Darlene F. Keller Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32801
Findings Of Fact Respondent is Fraternal Order of Eagles #4033, whose address is 615 Ridgewood Ave., Holly Hill, Fl. 32117 and holds license number 74-01574, Series 11C from the Division. The Division of Alcoholic Beverages and Tobacco had adopted rules which allow licensees to submit monthly surcharge reports based on either a "sales method" or a "purchase method," both of which are defined in Rule 61A-4.063(4), F.A.C. The purchase method is described as taxing the alcoholic beverages as they come in the door, and the sales method as taxing them as they go out the door. The only significant difference between the two is that current inventory is not subject to tax under the sales method until it is actually sold. Otherwise, the sales depletion method of auditing is applied similarly under either method of reporting. On or about January, 1994, the Division conducted an audit of Respondent's records to determine alcoholic beverage surcharge payment compliance during the period July 1, 1990 through October 31, 1993. The audit method used is commonly referred to a "inventory depletion," or "sales depletion." Respondent selected the sales method of reporting surcharges due, and timely submitted a surcharge report and payment during each month of the audit period. Respondent's reports are based on cash register records which indicate the number of units of each type of beverage sold, i.e., mixed drink, beer or wine by the glass. Respondent's surcharge reports calculated gallonage of liquor based upon a factor of one ounce per drink. Respondent did not maintain records of any "complimentary" drinks served. Respondent did not file any police or casualty reports regarding alcoholic beverages which it contends are attributable to theft during the audit period. The Eagles' well ordered weekly sales records understate the amount of alcoholic beverages sold, due primarily to the existence of overpouring, wherein the actual amount of liquor sold exceeds the one ounce per drink estimate relied upon by Respondent in compiling its monthly reports. Respondent did not conduct an internal audit to determine whether its sales records were accurate, or take some other significant action over the 39 months of the audit period to attempt to determine whether its primary assumption of one ounce per drink was accurately reflecting actual sales. Respondent's cash register tapes comprise an estimate of the amount of gallonage actually sold. The Division made no representations to Respondent which it might reasonably have relied in expecting that the accuracy of its monthly estimates of gallonage used, based on a one ounce per drink assumption, would not be subject to confirmation by audit. Respondent presented only anecdotal evidence to attempt to explain the admitted discrepancy between the actual gallonage used and the estimates contained in its sales tapes. The contention that some portion of the gallonage deficiency was attributable to pilferage by Eagles members or others, and an unspecified quantity of complimentary drinks for members or others, was not supported by any competent records or other evidence. The deficiency for Respondent Holly Hill Eagles represents thirty nine and eight tenths percent (39.8 percent) of the total surcharge paid during the audit period, which was $36,861.97. Since the completion of this audit and filing of the administrative action, Respondent has adjusted its assumption to reflect an administrative sale of one and a quarter (1.25) ounces per drink served. Respondent did not, however, present any evidence as to whether that assumption is any more accurate than the previous assumption. Based on this audit methodology, a surcharge liability of $14,691.83 exists. Respondent was aware of the Division's rule providing that surcharges are calculated based upon gallonage of alcoholic beverages sold, which states: If the vendor chooses the sales method, the vendor will bear the burden of proof that the method used accurately reflects actual sales. The surcharge deficiency determined by the Division to be owed in this case includes consideration of all applicable allowances, including spillage allowance of ten percent (10 percent) for draft beer and liquor, and five percent (5 percent) for all other alcoholic beverage products, which was applied and credited at the time of audit prior to stating the amounts owed. Based on this surcharge liability, the applicable penalty is $3,672.96.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent Holly Hill Eagles be ordered to pay overdue surcharges in the amount of $14,691.83 and a penalty of $3,672.96, and a civil penalty of $250.00 suspended upon payment of the surcharge and penalty within 90 days of the entry of a Final Order in this matter. DONE AND ENTERED this 31th day of January, 1995, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 31th day of January, 1995. APPENDIX Petitioner's Proposed findings of facts. Accepted in substance: paragraphs 1-20 Respondent did not submit proposed findings of fact. COPIES FURNISHED: John F. Gilroy, Esquire Assistant General Counsel Department of Business and Professional Regulation 1940 N. Monroe Street Tallahassee, Florida 32399-1007 Michael Dukeshier P. O. Box 821 Holly Hill, Florida 32117 Jack McRay, Acting General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 John J. Harris, Acting Director Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues are (1) whether Respondent violated Chapters 381, 386, and 489, Florida Statutes; and if so, (2) whether Respondent is subject to an administrative fine; and if so, (3) what penalty should be imposed.
Findings Of Fact At all times material to this proceeding, Petitioner was registered with Respondent as a septic tank contractor, under the authorized name of LA Ford Septic Tank. As of March 1, 1995, single compartment septic tanks must be used in series or in conjunction with a outlet filter which has been approved by Respondent. An outlet filter is designed to prevent solid wastes from reaching the drainfield of a septic system. Removal of an outlet filter will cause the premature failure of a drainfield system and create a potential sanitary nuisance. In September of 1996, Rita Haynes contracted with Petitioner for the installation of a septic system for her mobile home. The system received construction approval from the Suwannee County Health Department on September 5, 1996. At that time, the outlet filter was attached to the system. On September 12, 1996, the Suwannee County Health Department re- inspected the system. The inspector discovered that the filter was missing. Ms. Haynes did not remove the filter or authorize anyone else to do so. Removal of the outlet filter constituted theft of Ms. Haynes' property. Allegations concerning the removal of the outlet filter on Ms. Haynes' property are included in the Administrative Complaint at issue here. In September of 1996, Tracy Fernandez contracted with Petitioner to install a septic system for her mobile home. The system received construction approval from the Suwannee County Health Department on September 4, 1996. At that time, the outlet filter was present. The filter was missing when the Suwannee County Health Department re-inspected the system on September 10, 1996. Ms. Fernandez did not remove the filter or authorize anyone else to do so. Removal of the outlet filter constituted theft of Ms. Fernandez's property. Allegations concerning the removal of the outlet filter on the property of Ms. Fernandez are included in the Administrative Complaint at issue here. In July of 1996, Laura Landen contracted with Ford to install a septic system for her mobile home. Petitioner told Ms. Landen that he would save her some money by removing the outlet filter after the initial inspection. The system received construction approval from the Suwannee County Health Department on July 24, 1996. At that time, the outlet filter was attached to the septic tank. The filter was missing when the Suwannee County Health Department re-inspected the system on September 11, 1996. Ms. Landen did not remove the filter or authorize anyone else to do so. Removal of the outlet filter constituted theft of Ms. Landen's property. Allegations concerning the removal of the outlet filter on Ms. Landen's property are included in the Administrative Complaint at issue here. In October of 1996, John and Mary Phillips contracted with Petitioner to install a septic system for their home. The system received construction approval from the Columbia County Health Department on October 23, 1996. At that time, the outlet tee filter was present. Subsequently, the Phillips' daughter saw Petitioner take something out of the septic tank. The filter was missing when the Columbia County Health Department re-inspected the system on October 25, 1996. Mr. and Mrs. Phillips did not remove the filter or authorize anyone else to do so. Removal of the outlet filter constituted theft of the Phillips' property. Allegations concerning the removal of the outlet filter on the Phillips' property are included in the Administrative Complaint at issue here. In April of 1996, Marshall and Karen Merriman contracted with Petitioner to install a septic tank system on their property. The outlet filter was attached to the septic tank at the time of an initial inspection by the Suwannee County Health Department on April 22, 1996. Subsequently, Mr. Merriman saw Petitioner drive up and remove the outlet filter from the septic tank. Petitioner's removal of the outlet filter constituted theft of the Merrimans' property. A re-inspection by the Suwannee County Health Department on April 23, 1996, revealed that the outlet filter was missing. The inspector also discovered that Petitioner had not placed enough rock in the Merrimans' drainfield. Accordingly, the system did not pass final inspection. Mr. Merriman stopped payment on his check made payable to Petitioner in the amount of $909.50. Another septic tank contractor was hired to properly install the septic system on the Merrimans' property. Mr. Merriman's complaint to the Suwannee County Health Department resulted in a citation for a $1,500 fine against Petitioner for violating the following rules: (1) Rule 10D-6.0751(1)(k), Florida Administrative Code, practicing fraud or deceit; (2) Rule 10D-6.0751(1)(l)2, Florida Administrative Code, misconduct causing harm to customer; and (3) Rule 10D-6.055(3)(a), Florida Administrative Code, removal of outlet filter. Petitioner acknowledged receipt of the citation on September 24, 1996. That same day he requested an informal administrative hearing to contest the citation. The Suwannee County Health Department referred Petitioner's request for an informal hearing concerning the above-referenced citation to Respondent on September 27, 1996. Respondent then requested its District 3 Administrator to conduct the necessary proceedings and submit a Recommended Order to Respondent. The record does not reveal the disposition of Petitioner's request for an informal hearing regarding the citation. The Administrative Complaint at issue here does not contain any allegations relative to Mr. Merriman's complaint. However, since Petitioner did not dispute the material allegations contained in the citation, they may be considered as true in aggravation of any penalty imposed in the instant proceeding. In addition to the missing filters referenced above, the Columbia County Health Department found filters missing from Petitioner's installations on property owned by Richard Johnson and David Timmerman in September of 1996. The filters had been present during prior inspections of Petitioner's installations on the Johnson and Timmerman properties. The removal of the outlet filters from the Johnson and Timmerman properties constituted theft of their property. The Administrative Complaint at issue here contains allegations concerning Petitioner's removal of these outlet filters. The Suwannee County Health Department and the Columbia County Health Department had many citizen complaints about Petitioner's work. They performed a random check of all recent septic tank installations in their respective counties. They re- inspected the septic tank installations of other registered septic tank contractors as well as Petitioner's installations. They found missing outlet filters only in Petitioner's installations. The two health departments began spray painting a spot on filters during initial inspections to stop anyone from using the filters at multiple installations and inspections. Petitioner habitually, and as a routine business practice, removed the outlet filter from the septic tanks he installed after the initial inspection but before he covered the tank with dirt. He was responsible for stealing the required outlet filters on the property of Rita Haynes, Tracy Fernandez, Laura Landen, John and Mary Phillips, David Timmerman, and Richard Johnson. In each of these instances, Petitioner acted fraudulently and deceitfully. His gross misconduct created a potential sanitary nuisance and caused his customers monetary harm. An outlet tee filter costs approximately $50. Petitioner was able to underbid his competitors by removing the filter from an inspected system and using the same filter on another installation. From time to time, septic tanks need to be pumped out to prevent the flow of sludge and solids from the tank into the drainfield. Sludge and solids will clog the drainfield causing the system to fail. A failed system is expensive to repair or replace. A failed system also creates a public health hazard. When a septic tank is pumped out, all of the sludge should be removed. After the tank is empty, it should be washed down with a hose and inspected for cracks. If the tank is in good condition, a septic tank contractor is supposed to sign an inspection slip. In September of 1996, Allen Donaway contracted with Petitioner to pump out his septic tank and install a new drainfield. Petitioner's employees arrived at Mr. Donaway's residence on or about September 18, 1996, to pump out the tank. They claimed they had completed the job even though they left 12 or more inches of sludge at the bottom of the tank. Despite Mr. Dunaway's demands, Petitioner's employees refused to pump any more septage from the tank. When Mr. Donaway contacted Petitioner to complain that his employees had only partially pumped the tank, Petitioner demanded immediate payment. Mr. Donaway gave Petitioner a check for $135 which Petitioner cashed immediately. Mr. Donaway had to pay another registered septic tank contractor to pump the rest of the sludge from the tank and to install the new drainfield. Allegations concerning Petitioner's failure to completely pump out the sludge from Mr. Donaway's septic tank are contained in the Administrative Complaint at issue here. In a Letter of Warning dated July 15, 1996, the Columbia County Health Department informed Petitioner that Debbie Gregory had filed a complaint against him for an unsatisfactory septic pump-out. This letter requested a response to an allegation that Petitioner, without good cause, had abandoned a project which he was under a contractual obligation to perform in violation of Rule 10D-6.0751(1)(g), Florida Administrative Code. Petitioner was advised that he could avoid the imposition of a $500 fine or a disciplinary action against his contractor's license by correcting the problem within five working days. As of August 6, 1996, Petitioner had not responded to the health department's inquiry. He made no attempt to correct the problem by completely removing the solids and greases from Ms. Gregory's septic tank. Petitioner was advised by letter that Respondent intended to initiate enforcement procedures. Allegations concerning the unsatisfactory septic pump-out on Debbie Gregory's property were included in the Administrative Complaint at issue here. Petitioner's failure to completely pump out all of the sludge from the septic tanks of Allan Donaway and Debbie Gregory created a potential health hazard. Additionally, his gross misconduct caused these customers monetary harm. They had to pay another septic tank contractor to complete Petitioner's work so that they could avoid the expense of prematurely replacing their drainfields. In August of 1996, Petitioner installed an onsite sewage treatment and disposal system on the property of Johnny Howard, Jr. The Suwannee County Health Department subsequently determined that Petitioner had installed the septic system on the wrong side of the Howard residence with the drainfield extending across the property line of the adjoining property. The inspector also discovered that the septic tank was installed next to a dryer vent opening in the Howard residence. When Petitioner refused to correct the problems at the Howard residence, the county health unit paid another septic tank contractor to correct the septic system. Respondent then filed an Administrative Complaint seeking revocation of Petitioner's septic tank contractor's registration and imposition of an administrative fine. On July 22, 1997, Respondent entered a Final Order in Department of Health Case Number 97-154 which revoked Petitioner's septic system contractor's registration and imposed a fine in the amount of $1000 due to the improper installation of the septic system at the Howard residence. This Final Order approved and adopted a Recommended Order in DOAH Case Number 96-5543, finding that Respondent was guilty of violating Rule 10D-6.0751(1)(b)2, Florida Administrative Code, for completing contracted work at the Howard residence without a permit and Rule 10D-6.0751(1)(l)2, Florida Administrative Code, gross misconduct causing monetary harm. Allegations concerning Petitioner's improper installation of the septic system on Mr. Howard's property were not contained in the instant Administrative Complaint. However, they may be considered in aggravation of any administrative fine imposed in the instant case. In the course of investigating citizen complaints against Petitioner, Respondent learned that Petitioner was advertising his business using the name of Ford Septic Tank and/or Ford Septic Tank Service(s) on his trucks and in the Yellow Pages. Petitioner's authorized business name is LA Ford Septic Tank. Respondent sent Petitioner a Letter of Warning dated August 27, 1996, advising him that advertising his services in a form other than his authorized business name violated part III of Chapter 489, Florida Statutes, and Rule 10D-6.0751(1)(a), Florida Administrative Code. The letter informed Petitioner that continued violations could result in an administrative fine of $500 per day. The letter stated that the violations might be cited in a future complaint based on repeat violations. Petitioner did not exercise his option to request an administrative hearing to contest the allegations contained in the Letter of Warning. On November 20, 1996, employees of the Suwannee County Health Department took photographs of Petitioner's business sign using an unauthorized name on a county road in Suwannee County. On November 22, the same employees took photographs of Petitioner's trucks bearing an unauthorized name. Petitioner's persistence in using an unauthorized business name was especially egregious because other septic tank contractors with the last name of Ford, who were not affiliated with Petitioner, worked in the same commercial and residential areas. For example, Mr. Merriman contracted with Wilbur Ford to correct the septic system that Petitioner improperly installed. North Florida Septic Tank was owned by Robert and Donna Ford. Their Yellow Page advertisement specifically disclaimed any affiliation with Petitioner. The instant Administrative Complaint contains allegations concerning Petitioner's use of an unauthorized name to advertise his business. Petitioner filed an application to become a registered septic tank contractor on August 6, 1991. Petitioner was convicted of grand theft and stopping payment on a check with intent to defraud on October 28, 1991, in the circuit court of Hernando County, Florida. Petitioner was convicted of these two felonies before he took the septic tank contractor's examination in November of 1991. Petitioner did not inform Respondent about the two convictions. Petitioner obtained his septic tank registration through fraud or misrepresentation by failing to disclose his felony convictions. The instant Administrative Complaint contains allegations concerning Petitioner's failure to disclose the two felony convictions. Respondent's efforts to persuade Petitioner to correct his improper installations and/or unsatisfactory pump-outs were not successful. He made no attempt to replace the filters he removed. He did not heed Respondent's warnings regarding his use of an unauthorized business name. He has failed to make any effort to rehabilitate himself or to mitigate the effects of his behavior despite the following: (1) the severity of his offenses; (2) the danger to the public that he created; (3) the number of times that he repeated the offenses; (4) the number of complaints filed against him; and (5) the monetary harm he caused his customers.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent enter a Final Order imposing an administrative fine in the amount of $7,000 against Petitioner. DONE AND ENTERED this 5th day of September, 1997, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 5th day of September, 1997. COPIES FURNISHED: Thomas D. Koch, Esquire Department of Health Building 6, Room 133 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Larry A. Ford 25295 CR 137 O'Brien, Florida 32071 Angela T. Hall, Agency Clerk Department of Health Building 6 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Pete Peterson, Esquire Department of Health Building 6, Room 102-E Tallahassee, Florida 32399-0700 James Howell, Secretary Department of Health Building 6, Room 306 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Respondent committed the violations alleged in the Administrative Action, and, if so, what disciplinary action should be taken.
Findings Of Fact Based upon the evidence adduced at the final hearing and the record as a whole, the following findings of fact are made: At all times material to the instant case, Respondent operated a restaurant, Dinosaur's Café and Sports Bar, located in Boynton Beach, Florida. Respondent is now, and has been at all times material to the instant case, the holder of a Special Restaurant License (license number 60-11570 4COP SRX) authorizing it to sell alcoholic beverages on the premises of Dinosaur's Café and Sports Bar. On September 28, 1999, DABT Special Agent Jennifer DeGidio conducted an inspection of the premises of Dinosaur's Café and Sports Bar. Her inspection revealed that the premises had available seating for less than 150 patrons and that there were no records on the premises regarding the purchase and sale of food, alcoholic beverages, and non-alcoholic beverages. At no time had DABT given Respondent written approval to maintain these records at a designated off-premises location. During her September 28, 1999, inspection, Special Agent DeGidio issued and served on Respondent notices advising Respondent that its failure to have seating for at least 150 patrons and to maintain food and beverage records on the premises for a minimum of three years from the date of sale was in violation of the law and that, if these violations were not remedied within 14 days, administrative charges would be brought against Respondent. Special Agent DiGidio returned to the premises of Dinosaur's Café and Sports Bar on October 12, 1999, to find that the noticed violations had not been corrected. There were still fewer than 150 seats for patrons, and Respondent was again unable to produce the required records on the premises. The Administrative Action that is the subject of the instant controversy was issued on November 16, 1999. As of that date, Respondent had failed to timely remit to DABT $16.75 in surcharge monies that Respondent owed DABT for alcoholic beverages it had sold at retail for on-premises consumption at Dinosaur's Café and Sports Bar.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that DABT enter a final order finding Respondent committed the violations alleged in the Administrative Action, and disciplining Respondent therefor by revoking its license "without prejudice to obtain any other type of license, but with prejudice to obtain the same type of special license for 5 years"; fining Respondent $1,000.00; and requiring Respondent to pay the $16.75 in surcharge monies it owes DABT, plus applicable penalties and interest. DONE AND ENTERED this 21st day of August, 2001, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of August, 2001.
The Issue The issue in the case is whether the Petitioner's employment position was properly reclassified from Career Service to Selected Exempt Service pursuant to Section 110.205(2)(x), Florida Statutes (2001).
Findings Of Fact Beginning on April 23, 2001, and at all times material to this case, the Petitioner was employed by the Hillsborough County Health Department as a Professional Engineer III, a position requiring state registration in accordance with Chapter 471, Florida Statutes (2001). The job announcement related to the Petitioner's employment states that the position "oversees" the drinking water program and engineering-related activities. The position was responsible for management of "Safe Drinking Water" permitting and compliance enforcement program entailing a variety of duties, including planning, organizing, and coordinating work assignments. According to organizational charts before and after the date of the reclassification of the position, the Professional Engineer III position had direct supervision of four employment positions, and indirect supervision of eight additional positions that reported to one of the Petitioner's direct employees. The position of Professional Engineer III includes a substantial amount of engineering review responsibilities, and is charged with direct supervision of the Safe Drinking Water Act program staff and Limited Use Drinking Water program staff. The position description categorized the job responsibilities as "regulatory," "supervising/training," "enforcement," "policies and procedures," "record keeping," "education," and "committees/other duties." Review of the specific duties indicates that the Petitioner's supervisory responsibilities were included within several of the categories. Included within the "regulatory" category was "[e]nsures staff conduct field inspections of public water systems. . . . Supervisor is responsible and accountable for field staff." Included within the "supervising/training" category were the following duties: Supervises Engineers to ensure all programs in the Safe Drinking Water Program are completed according to the agreement with DEP and the policies and procedures of the Department of Health. Supervises an Environmental Supervisor II to ensure that all programs in the Limited Use Drinking Water Program and Private Drinking Water Program are completed according to the F.S., F.A.C. and county regulations. Supervises staff review of engineer's plans. Supervises and reviews the preparation of non-compliance letters written by staff regarding enforcement actions. Provide training to new Health Department staff in all aspects of EHS at least once a year (standardized presentation). Perform field inspections (documented) with personnel on a quarterly basis to evaluate staff performance and for Quality Improvement (QI) in accordance with office policy. Telephone regulated facilities each quarter to determine customer satisfaction . . . in accordance with office policy. Develop training modules for specific program areas (public drinking water systems) and maintain them accurate and current. Provide those training modules to new EH staff and twice a year to existing EH staff. Assign staff to special work areas as necessary and perform field inspections (staff shortages, vacation/leave time, and natural disaster). Evaluate personnel's work, plan work load, special tasks to include efficiency. Included within the "enforcement" category were the following duties: Reviews appropriate enforcement activities generated by staff and assure timely progress of formal enforcement from compliance to enforcement. Ensures the time progress of enforcement cases by working closely with the compliance section of the Public Drinking Water Program in bringing non-compliant clients into enforcement. Follow up on violations of FAC and/or FS and ensure compliance is achieved or enforcement action is taken. Included within the "policies and procedures" category was the responsibility to "[r]eview daily activity reports and corresponding paperwork each day." The Petitioner was responsible for managing the daily workflow of the office. He planned, directed, and reviewed the work performed by his employees. The Petitioner was responsible for the evaluation of all employees under his direct supervision, including newly hired probationary employees. The Petitioner was responsible for review of the evaluations for employees for whom he had indirect supervisory duties, and he also provided his own independent evaluation of their performance. The Petitioner was responsible for the discipline of employees. At one point he had to counsel an employee who was consistently late to arrive for work. The Petitioner was also responsible for seeking qualified applicants for position openings. He was responsible for initiating the employment process. He chose the panel that interviewed applicants, designed the interview questions, participated in interviews, and made the final recommendation as to the person hired. He had the authority to decline to fill an open position if he deemed that the applicants lacked sufficient qualification. The Petitioner claims that the majority of his time was spent in review of permit applications and related engineering tasks. The evidence fails to support the assertion. The Petitioner's claim appears to essentially relate to a period of time subsequent to the July 1, 2001, reclassification of the position. During the time between his initial employment and the date of the position reclassification, the Petitioner was primarily a supervisory employee and had little, if any, permit review responsibilities. The office was fully staffed with other employees who were directly responsible for review of permit applications and related field reviews. In autumn of 2001, after the position was reclassified, the office began to lose employees, resulting in an increased workload for the remaining workers. At this point, the Petitioner began to undertake a substantial role in the actual review of permit applications in addition to his supervisory duties. Nonetheless, the Petitioner remained responsible for supervision of remaining employees. The Petitioner was also responsible for filling the vacant positions.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Education enter a Final Order finding that the "Professional Engineer III" position held by Raymond Van Loon on July 1, 2001, was properly classified into the Selected Exempt Service. DONE AND ENTERED this 21st day of April, 2004, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 21st day of April, 2004. COPIES FURNISHED: Stephen W. Foxwell, Esquire Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703 Aaron J. Hilligas, Esquire AFSCME Council 79 3064 Highland Oaks Terrace Tallahassee, Florida 32301 Maria N. Sorolis, Esquire Allen, Norton & Blue, P.A. 324 South Hyde Park Boulevard Hyde Park Plaza, Suite 350 Tampa, Florida 33606 Jerry G. Traynham, Esquire Patterson & Traynham Post Office Box 4289 315 Beard Street Tallahassee, Florida 32315 William E. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue The issue to be resolved in this proceeding concerns whether Lagoon Oaks, Inc., (Petitioner) is entitled to an award of attorney's fees, pursuant to Section 57.111 Florida Statutes, by becoming a prevailing party in accordance with the final order issued by the Department of Health and Rehabilitative Services (Department) in the underlying case related to this proceeding which is Case No. 95-4394. The primary issue concerns whether the Agency's intended action was "substantially justified." Additionally it must be determined whether the Petitioner is a "small business party" in terms of its net worth.
Findings Of Fact The preponderance of the testimony and evidence of record establishes that the Petitioner, Lagoon Oaks, Inc.'s domicile and principal office is located in Panama City, Bay County, Florida. Lagoon Oaks is a de Jure Florida corporation. It has no employees and has a net worth which does not exceed $2 million. Additionally, it is established that Lagoon Oaks, Inc., is a "prevailing small business party," inasmuch as the above- referenced final order has been entered by the Department granting Lagoon Oaks' permits, which were originally denied, thereby sustaining Lagoon Oaks' position that it was entitled to the permits pursuant to applicable Florida Statutes and Rules. That order has not been reversed on appeal and the time for seeking judicial review thereof has expired. Further, this case qualifies as an "administrative proceeding pursuant to Chapter 120 initiated by a state agency." The agency herein was required by law to advise the Petitioner of a clear point of entry after some recognizable event in the investigatory or other proceeding by the agency, to wit, the denial of the sought permits. See Section 57.111(3)(b), Florida Statutes. The Petitioner has requested and the undersigned takes "judicial notice" of the original record in this proceeding including the transcript of the hearing in DOAH Case No. 95-4394, pursuant to Rule 60Q.2010, Florida Administrative Code. The Findings of Facts and Conclusions of Law in the Recommended Order entered by the undersigned in that proceeding are hereby adopted and incorporated by reference herein as well. In the final order entered, the Department found and conceded that: ". . . the Department did not follow the applicable rules in Chapter 10D-6 Florida Administrative Code, in denying the permit applications. The site evaluation forms do not identify a recognizable water body (ie. a normally wet drainage ditch), nor do they establish the presence of surface water for the requisite 72 hours following rainfall. The forms do not indicate the setback which exists from the proposed system to the disputed feature. The forms are not signed or dated. The observed water table and estimated wet season water table are not provided, nor is high water table vegetation indicated. The extensive soil sampling that was detailed at the hearing is not described. Much of the evidence tending to demonstrate the presence of a surface water apparently was not gathered until well after the permits were denied. Finally, the denial letter, as noted by the hearing officer, references a 'normally wet area' which is not a 'surface water' feature described in statute or rule that may justify denial of a septic system permit. (footnotes omitted)." The Department has thus conceded that it did not follow its own rules in denying these permits, that the documentation allegedly supportive of the denial was incomplete and did not justify the denial and that much of the evidence tending to demonstrate the presence of a surface water apparently was not gathered until well after the permits were denied. Thus, when the intended agency action was taken (the denial) by the Department's own admission, it had not gathered much of the evidence which it contended supported its position concerning presence of the surface water involved in the underlying proceeding. Attorney's fee affidavits required by Section 57.111(4)(b)1. Florida Statutes and submitted by the Petitioner demonstrate that Lagoon Oaks incurred the sum of $17,950.00 in attorney's fees and $2,281.98 in costs in the course of this proceeding. Additionally, the affidavit of R. Steve Lewis, Esquire, illustrates that Lagoon Oaks incurred an additional $2,707.50 in attorney's fees for services he performed for this proceeding (This is not inclusive of any fees or services for which Mr. Lewis might have become entitled for work done unrelated to the subject proceeding). The attorney's fees submitted and represented by affidavit (Exhibit E) by Attorney Lee Killinger, counsel of record, alone exceed the $15,000.00 limit provided for in Section 57.111(4)(d)2, Florida Statutes. Testimony and evidence adduced at hearing demonstrates that the fees and costs claimed are reasonable under the circumstances of the underlying case and this proceeding.
Findings Of Fact Respondent, Studebaker's Restaurant (Respondent), owns a 50's theme bar in Clearwater which offers entertainment and dancing and serves alcoholic beverages and food. Studebaker's has a nationwide policy, also followed at the Clearwater establishment, of restricting admittance to persons aged 23 and older. In the same building housing the Clearwater Studebaker's, Respondent also owns and operates a theme bar called the Palm Beach Club which is under common management and which is operated like Studebaker's except that the theme and music is contemporary and anyone who has attained the legal drinking age is allowed admittance. Petitioner, Ronald M. McElrath, is the coordinator for the Community Relations Board established under Chapter 99 of the City of Clearwater Code. He is approximately 38 years of age. In May or June 1985, McElrath witnessed an employee of the Clearwater Studebaker's refusing admission to a female on the basis that she was not at least 23 years of age. Investigating further, McElrath verified through the manager of the Clearwater Studebaker's that Respondent did have a policy restricting admission to the Clearwater Studebaker's to persons at least 23 years of age. Based on McElrath's knowledge and information, McElrath and the Community Relations Board attempted to conciliate with Respondent the alleged conflict between Respondent's age policy at the Clearwater Studebaker's and Chapter 99 of the City of Clearwater Code. By November 13, 1985, McElrath and the Community Relations Board concluded that their attempts at conciliation would not be successful, and the Community Relations Board filed a charge of discrimination against Respondent. That charge of discrimination was referred to the Division of Administrative Hearings and assigned Case No. 85-3513. On or about February 11, 1986, Case No. 85-3513 was dismissed and the file closed based upon the Community Relations Board's report that it was withdrawing its petition in the case and that an individual other than the Community Relations Board would file a separate petition as Charging Party. Actually, on or about January 9, 1986, McElrath, in his capacity as coordinator for the Community Relations Board, had filed a Supplemental Charge Of Discrimination against Respondent on the same alleged facts that formed the basis of Case No. 85-3513. McElrath's Supplemental Charge Of Discrimination was referred to the Division of Administrative Hearings on or about February 4, 1986, resulting in this case. McElrath has never attempted to file any other complaint under Chapter 99 of the City of Clearwater Code in his capacity as coordinator for the Community Relations Board. Because no further investigation was necessary and no further attempts to conciliate were reasonably likely to succeed, McElrath made no further investigation and made no further attempts to conciliate with Respondent after filing the Supplemental Charge Of Discrimination. Before filing of the Supplemental Charge Of Discrimination in this case, McElrath did not make a formal probable cause determination and did not serve notice of determination of probable cause on the Respondent. Respondent and its management has a commendable and appropriately implemented policy of being a responsible seller of alcoholic beverages for consumption on the premises. However, contrary to Respondent's assertions in this case, the policy of allowing only persons 23 years of age and older in the Clearwater Studebaker's is not significantly motivated by a desire to reduce alcohol-related traffic accidents. The primary motivation for the age limit is to establish and maintain an economically successful theme bar. Any contribution towards reducing alcohol related traffic accidents is an after thought rationalization. This was proven by Respondent's willingness to divert patrons younger than 23 next door to its Palm Beach Club where Respondent willingly serves them alcoholic beverages for consumption on the premises.
The Issue Whether the rules promulgated by the Department of Environmental Regulation require the Respondent to employ the services of a state certified water system operator to operate the water systems at the two business locations involved in these proceedings.
Findings Of Fact At all times material to these proceedings, the Respondent was responsible for the operation of two water systems. One water system is located on Highway 92 West, Winter Haven, Polk County. The other water system is located on State Road 37 South, Mulberry, Polk County. The restaurant and bar business operated at the Winter Haven location is known as the Rainbow Club. Customers eat food and drink beverages prepared with water from the on site water system. The system serves at least twenty- five individuals daily, at least sixty days out of the year. The convenience store business operated in Mulberry serves ice tea, juices, and coffee to customers which is prepared with water from the on site water system. The system serves at least twenty-five individuals daily, at least sixty days out of the year. During the recent past, the Respondent retained a certified operator to meet the state requirements. He was not satisfied with the operator for the following reasons: (1) He had to show the man how to chlorinate the water. (2) The operator took the required chlorine samples from water that had not been chlorinated. (3) Visits were not made to the site as scheduled. (4) The pump at one of the establishments was harmed by the certified operator. (5) The expense of four hundred dollars a month for the testing of three sites operated by the Respondent was too much money. The Respondent wants to be able to chlorinate the water and maintain the systems himself. He has professional experience regulating the chemical balance of water in swimming pools. The samples he turned into the lab himself were good. The Respondent also wants to keep the old well next to the convenience store in Mulberry. He disagrees with the Department's request that he abandon the well because he needs it for an adjoining piece of property. This well is used for lawns, not for the convenience store business. The Department is amenable to the Respondent maintaining his own systems if he is certified to do so. The next examination is scheduled for November 1990.
