The Issue Whether Petitioner has just cause to terminate Respondent.
Findings Of Fact The City is a municipality located in Pinellas County, Florida. Alexander was hired by the City on October 7, 2002, as a Service Worker in the Sanitation Division of the Public Works Department. He was a backup sanitation driver, working on residential collection routes. Grover Smith (Smith), the City's Sanitation Supervisor, supervises 17 employees, including Alexander. He is responsible for the daily operations of the collection of solid waste by the City's Sanitation Division. Smith has worked for the City as a sanitation supervisor for five years and was employed in the City's Sanitation Department for 17 years prior to becoming a supervisor. His work experience includes driving a sanitation truck and being a crew leader in the Sanitation Division. As an employee of the City, Alexander was subject to the City's Code of Conduct, which lists different groups of offenses for which City employees may be disciplined. The City's Code of conduct lists the following offense as a Group I offense: Tardiness, as defined as reporting late for work, overextending breaks or meal periods within one year of the first occurrence. Occurrences of tardiness shall only be considered for a year in applying progressive discipline. When determining the proper discipline go back only one year from the most recent occurrence and follow the progression of discipline as indicated. (Guide for determining tardiness: three times in any thirty (30) calendar day period, or six (6) times in any ninety (90) calendar day period or a continuous pattern of tardiness. From May 12, 2003, through June 6, 2003, Alexander was tardy to work four times. On June 10, 2003, Smith issued a verbal warning to Alexander for his tardiness. During November 2003, Alexander was tardy ten times. Smith issued Alexander a written warning on November 26, 2003, for his tardiness. Alexander was warned that any further violations would result in progressive disciplinary action up to and including termination. The City's Code of Conduct provides that "[f]ailure to immediately report an accident or injury in which the employee is involved in while on the job" is a Group II offense for which a City employee may be disciplined. On December 9, 2003, Alexander struck a pine tree in a trailer park while driving a sanitation truck. Alexander did not immediately report the accident. Smith learned of the accident from another employee on December 9, 2003. Smith questioned Alexander the same day about the accident, and Alexander denied hitting the tree. The next day Smith investigated the incident and found evidence that a pine tree in the trailer park had been struck and that there were remnants of the pine tree on the bumper of the right side of the sanitation truck that Alexander had been driving. Smith again questioned Alexander, who continued to deny that he hit the tree. Only after two other employees who had been working with Alexander on the day of the accident admitted that the truck had struck the tree did Alexander admit that he had hit the pine tree. On December 16, 2003, Smith issued Alexander a written warning for failing to immediately report the accident. From February 27, 2004, through March 22, 2004, Alexander was tardy four times. Alexander received a two-day suspension for this offense, which was in accordance with the guidelines of the City's Code of Conduct which provides for a one to three-day suspension for a third Group I offense. The City's Code of Conduct provides that "[n]eglect or carelessness which results in a preventable accident" is a Group I offense for which a City employee may be disciplined. On May 20, 2004, Alexander, while driving a City sanitation truck, made a left turn and failed to swing wide enough, striking a series of mailboxes. The following day Alexander had another accident when he was backing a City sanitation truck down the street in a mobile home park and struck an awning on a mobile home. Both of these accidents occurred on the driver's side of the vehicle and could have been avoided if Alexander had been paying attention. The City's Code of Conduct provides that a City employee may be discharged for a Group IV offense, which includes the following: Chronic offender of the Code of Conduct. (Guide: four (4) violations of any departmental or City rule or regulation in an eighteen (18) month period which results in a Verbal Warning or other disciplinary action (effective upon adoption of the revised Personnel Rules). Smith recommended to Kurt Peters (Peters), the Director of Public Works for the City, that Alexander be suspended for five days. Peters consulted the City's Personnel Director, Bill Cropsey (Cropsey). Cropsey determined that Alexander was a chronic offender and could be discharged. On June 9, 2004, Cropsey sent Alexander a letter advising him that he was in violation of the City's Code of Conduct as a chronic offender of the Code of Conduct and that a pre-disciplinary hearing was scheduled for June 14, 2004. Alexander was placed on administrative leave with pay, pending the pre-disciplinary hearing. The pre-disciplinary hearing was held on June 14, 2004, at which time Cropsey and Peters determined that Alexander should be discharged as a chronic offender. By letter dated June 14, 2004, Cropsey advised Alexander that he was terminated from his employment with the City.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered terminating Christopher Alexander's employment with the City. DONE AND ENTERED this 5th day of November, 2004, in Tallahassee, Leon County, Florida. S SUSAN B. KIRKLAND 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 5th day of November, 2004. COPIES FURNISHED: Christopher T. Alexander 6324 150th Avenue, North Clearwater, Florida 33760 Alan S. Zimmet, Esquire Zimmet, Unice, Salzman, Heyman & Jardine, P.A. Post Office Box 15309 Clearwater, Florida 33766 Jeff Bronson, Chairman Personnel Review Board City of Safety Harbor 750 Main Street Safety Harbor, Florida 34695
The Issue Whether Respondents' Division of Hotel and Restaurants' license should be suspended or revoked, or a civil penalty assessed for alleged violation of Division Rule 7C-4.01(5)(c) and Florida Statute s. 509.221, as set forth in Notice to Show Cause issued by the Petitioner.
Findings Of Fact On April 19, 1977, Johnny Bell, inspector for petitioner's Division of Hotels and Restaurants, received notification from the Health Department of Sarasota County that respondents' place of business, Port-of-Call, resort apartments located at Longboat Key, Florida, was not connected to the sewerage system of Longboat Key. Bell inspected respondents' premises and discovered that a septic tank system was in use at the Port-of-Call. He informed respondents that they must connect to an "approved" sewerage system within sixty (60) days. On June 20, 1977, Bell returned to the premises and found that no action had been taken to connect to the Longboat Key system. Respondent Edward W. Henderson informed him that he should not have to go on such a system because his septic tanks were adequate and functioning properly. Bell did not examine the septic tanks or ascertain if they were, in fact, in proper condition and operating satisfactorily. He proceeded to issue a Notice to Show Cause as to why respondents' license No. 68-606H should not have a civil penalty assessed against it or be suspended or revoked. The stated cause for such intended action was as follows: "Division Rule 7C-4.01(5)(c) ; Florida Statutes 509.221 -- Failure to have sewage system hooked into public sewerage system." The Notice to Show Cause also informed respondents of their right to an Administrative Hearing under Chapter 120, Florida Statutes. Respondents thereafter requested such a hearing. There is no food operation at the Port-of- Call. (Testimony of Bell, Exhibit 1)
Recommendation That the charges against respondents be dismissed. Done and Entered this 10th day of October, 1977, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Lawrence C. Winson, Esquire Department of Business Regulation The Johns Building, Suite 210 725 South Bronough Street Tallahassee, Florida 32304 John W. Meshad, Esquire 100 South Washington Boulevard Sarasota, Florida 33577
Findings Of Fact Northwest Utilities of Broward County, Inc. and WPC Utilities are the two investor-owned utilities primarily involved in these proceedings. The stock of Northwest is wholly-owned by Ralph Bates and Marlene Bates, his wife. The stock of WPC is owned by Northwest. The Bateses were involved in land development plans in the early 1970's in the subject area of North Broward County lying west of the Florida Turnpike. No utility service was available at that time to serve that area; so the Bateses applied to the Commission in 1973 for water and sewer certificates. After appropriate proceedings territory lying west of the Turnpike, entirely in Broward County, was granted and certificated to Northwest. Within this territory, the Bateses had plans approved for development of a high-density planned unit development (PUD), (depicted on Exhibit 3, as numbers 1 and 2). At the instance of the Bateses', this land was annexed into the City of Coconut Creek. The advent of the 1973-1975 economic recession, coupled with a refusal to fund a loan commitment and the inability to obtain debt financing elsewhere, resulted in an inability to develop this PUD. The Bateses had, however, initiated steps to provide service to the development. In 1973 they purchased a one million gallon-per-day (mgd) sewage treatment plant at a cost of $192,879, of which there is now a current balance due of $75,000. No development occurred during 1974 or 1975, when the economic climate in the construction and real estate industry was depressed and the utility received no request for service. A fifteen-acre tract of land for the plant site had been acquired, but that land was relinquished when the need for service failed to materialize. In 1976 the Bateses bought the Coral Lakes Mobile Home Park (Parcel #4 on Exhibit 3). This park lies in Broward County and is surrounded by the City of Coconut Creek. In 1978 the Bateses sold the mobile home park, but the Northwest Corporation retained ownership of the water and sewer treatment plants and service to the area has since been provided by Northwest by means of these on-site "package' treatment plants. In 1977 the prospects for development improved and the Bateses entered into a phased purchase agreement for 175 acres of land (Parcel 3 on Exhibit 3). The intent was to develop this property for single family residences. Service was to be provided to the area through the water and sewer treatment plant located in the WPC utility territory and consequently the certificate transfer application in PSC Docket No. 770625-WE was filed. Northwest also constructed 2500 feet respectively of water and sewer transmission and collection lines in the territory west of the Turnpike (Exhibit 9) at a cost of $90,000. Development of this property was frustrated, however, due to the refusal of the City of Coconut Creek to grant favorable zoning for the property. In conjunction with the development of this parcel, Northwest received a request for service from WOK, Inc. ,a subsidiary of ATICO Mortgage Investors, for an 8.5 acre parcel which was part of the original Bates PUD. This developer, however, never executed the proffered development agreement with Northwest. Northwest demonstrated a willingness to contractually commit itself to provide service if needed and initiated acquisition and construction of a plant and other facilities to provide that service. The need for water and sewer service actually arose only in the area east of the Turnpike (Parcel "b" on Exhibit 3) and necessitated use of the existing WPC treatment plants to provide service to the area. York Development Company was the first entity actually requiring service in any area reflected on Exhibit 3. York acquired land in the City of Deerfield Beach (parcel #5 in area "b" on Exhibit 3) in December, 1977. York sought service from Deerfield Beach and prepared plans which were approved by the City. After determining that Northwest was certificated to serve the area, the City refused to provide service, and York entered into a developers agreement with Northwest on October 16, 1978. The agreement reserved water and sewer plant capacity for the 239 residential units of York's first phase of development. A second agreement entered into March 30, 1979 reserved capacity for an additional 270 units. Approximately 7 months prior to Northwest's execution of the first agreement with York, the proceedings in the certificate transfer case described above were concluded with the issuance of Order No. 8821 on March 27, 1978. The application filed had sought the transfer of the certificates from WPC Utilities to Northwest Utilities. After negotiations with the Commission (Exhibit 64), Northwest elected to maintain its application as one to transfer the certificates of WPC to Northwest rather than convert it to an application for a stock transfer. The only active developer in the pertinent territory besides York, FDV- Westport Properties (FDV), began development of a tract of 110 acres in the area identified as Parcel 10 in "b" on Exhibit 3 in October, 1979. A concomitant agreement was signed with Northwest on January 15, 1980. Development is proposed to be in phases, and the provisions of the agreement are similar to those of the York agreement submitted to the Public Service Commission in October, 1978. The first phase of development provides for 80 single family residential units. The only other customers of Northwest presently receiving service besides those customers in Coral Lakes Mobile Home Park and the York Development (Gates of Hillsborough) are customers in a small mobile home park known as El Rancho Seven, also identified as Parcel 7 in area "a" on Exhibit 3. Service to that development is provided from on-site package treatment plants, and the customers are individually metered. Rates, Charges and Guaranteed Revenues (Docket No. 800230-WS) The issuance of Order 8821 providing for a stock transfer rather than a transfer of WPC's certificate to Northwest, coupled with the inauguration of these developments, set the stage for the issuance of Show Cause Order No. 9324 in Commission Docket No. 800230-WS raising the issue of whether the rates, charges and guaranteed revenues charged to these developers should be those approved for Northwest Utilities or WPC Utilities. The essence of the issue has been stated above. The action by Northwest in Commission Docket No. 770625-WS, the transfer application, is significant in the context of this rates and charges problem. Northwest and WPC, as determined above, applied for a transfer of certificates and not for a transfer of stock from the latter to the former. It was the intent of the parties in that proceeding that Northwest was to be the only remaining operating entity serving the areas identified as "a" and "b" on Exhibit 3 lying both east and west of the Turnpike. Since the issuance of Order 8821, Northwest has been the only operating utility entity in those areas. Northwest has been the entity entering into all developer agreements regardless of the location of development, and has submitted these agreements to the Commission. The York agreement was submitted to the Commission by the utility in October, 1978, which revealed to the Commission that Northwest was operating east of the Turnpike in the original WPC territory. WPC has filed a final corporate return with the IRS, and its annual report for the year ending December 31,1978 filed with the Commission indicated that the stock and assets of WPC had been transferred to Northwest. The application and other documents in Docket No. 770625-WS bear the caption "Application for Transfer of Certificate" but the final Order No. 8821 bears the caption "Application for Transfer of the Outstanding Stock of WPC Utilities Services, Inc. to Northwest Utilities of Broward County, Inc., Broward County, Florida, Pursuant to Section 367.071, Florida Statutes". That order then authorizes the transfer of only the stock. Northwest operated under the belief that the certificates had been transferred as requested. Although a technical construction of the order could imply a denial of the application, such an interpretation would only naturally follow if the commission had complied with Section 120.59(2), Florida Statutes which states in pertinent part: If, in accordance with agency rules, a party submitted proposed findings of fact, or filed any written application or other requests in connection with the proceeding, the order shall include a ruling upon each proposed finding and a brief statement of the grounds for denying the application or request. Nowhere in that order is there any statement indicating an intention to deny the application as filed. Therefore, it must be inferred that the commission actually intended the certificates to be transferred to Northwest. At the time the transfer application was filed there were no customers in either the territory of Northwest or WPC. Therefore, there could be no adverse affect to any existing customer by granting the application as filed. Northwest has treated the action of the Commission as amounting to a merger of the two utility companies. If the Commission had acted in accordance with the application as filed as, inferentially, it must have intended, then no question would have arisen regarding Northwest's assessment of these charges. York Development executed a developer's agreement with Northwest on October 16, 1978 and is the first developer executing such an agreement and actually obtaining service from Northwest. Section 367.081(1), Florida Statutes states as follows: Rates and charges being charged and collected by utilities shall be changed only by approval of the commission. When Northwest signed the development agreement on October 16, 1978 no rates or charges were being charged or collected by either utility. Therefore, neither WPC nor Northwest required Commission approval to alter rates and charges prior to October 16, 1978. Thus, at that point in time, the rates and charges which York agreed to pay in that agreement were not improper. Indeed WPC could have increased its rates to the same level as Northwest and signed such an agreement with York and York would be in the same posture regarding the propriety of the rates as it presently is. Therefore, the rates contracted for with York are proper. Thus, all the parties, including the Commission, originally intended that the two utility operations should merge or that Northwest should remain the only utility entity providing service to the subject territories. The language in Order 8821 transferring stock only was in error. The only questions then remaining regarding this subject matter involve the charging of guaranteed revenues to York and FDV. The level of guaranteed revenue to be charged was determined by adding together Northwest's minimum charge for water and sewer, which coincidentally, is the same method of computing then employed by South Palm Beach Utilities (SPB), and is a method approved by the Commission in past decisions when confronted with a dearth of data required by Rule 25-10.121(12), Florida Administrative Code. The level of guaranteed revenues is thus appropriate. Northwest was required to charge guaranteed revenues in order to recover costs of operation so as to make the agreement to provide service to York and FDV financially feasible. Both those developers agreed in writing to pay guaranteed revenues as defined in the above rule and, inasmuch as they are a device to place the risk of development on a developer instead of on a utility, the agreements between Northwest and those developers accomplished that end. See Rule 25-10.138, Florida Administrative Code. There is no rule extant that requires a utility to have an approved service availability policy as a condition precedent to charging guaranteed revenues. In fact, of the more than 500 utilities regulated by the Public Service Commission, less than ten percent have approved service availability policies. And, indeed, Rule 25-10.138 contemplates the filing of "special contracts" with the Commission. That portion of the above developers agreements dealing with guaranteed revenues renders those agreements to be "special contracts" within the meaning of the Rule, and since the Rule provides that the Commission shall approve such contracts, the fact of such approval has become an issue in this proceeding. The Commission has alleged that the York contract was never-approved since no document approving it was ever transmitted to the utility. Nor was any timely disapproval ever served on the utility. The Commission never responded to the filing of the contract between October, 1978 and the issuance of Show Cause Order 9324 in April, 1980. In 1979 York inquired regarding the filed agreement and received no response. Thus, under the facts of this case, the Commission's silent acquiescence must be found to constitute tacit approval of the contract. Northwest should not be penalized for failure of the Commission to act. It is not unreasonable for Northwest and York, after so much passage of time, to have assumed that the contracts were appropriate. Indeed, York and Northwest, as well as FDV, entered further similar agreements in reliance on the lack of objection by the Commission. There is then no justification for cancellation of Northwest's certificates to serve the subject territory (area "b" on Exhibit B). Further, the evidence submitted by the City of Deerfield Beach is deemed irrelevant to any matters under consideration in this docket, since that City is not authorized to serve in Northwest's certificated territory. Even assuming arguendo that Northwest's certificates (or WPC's) were cancelled, serious legal impediments must be overcome before Deerfield Beach could serve the York development. For instance, all the lines through which service would be provided are owned by Northwest Utilities, and the public interest would certainly not be served by duplication of those lines or by duplicate payments of contributions in aid of construction to Deerfield Beach, or by the rendering useless of a new water treatment plant which is presently approximately 50 percent completed and represents a substantial investment. The Certificate Application (Docket #780902-WF) Section 367.041(1), Florida Statutes, provides as follows: Application.-- Each applicant for certificate shall: Provide information required by the commission which may include a detailed inquiry into the ability of the applicant to provide service, the territory and facilities involved, and the existence or non-existence of service from other sources within geographical proximity to the territory applied for; Section 367.051(3), Florida Statutes, provides in pertinent part as follows: (3) In either event, the commission may grant a certificate, in whole or in part or with modifications in the public interest, or, after notice and hearing, deny a certificate. Resolution of the certification issue requires consideration of the capability of Northwest to provide the proposed service, a consideration of the quality of the service to be provided and the feasibility of the proposed extension of service from a financial, economic and technical point of view. Markborough Properties has a substantial need for water and sewer service to be provided its development which will ultimately consist of approximately 5,000 homes as previously described. Northwest presently has a sewage treatment plant with a capacity of 260,000 gallons per day, although the present capacity is limited to 100,000 gallons per day (GPD) until the percolation ponds are approved for additional flow. The 260,000 GPD plant will be utilized to full capacity in the immediate future. Northwest also has facilities to provide water to the York and Coquina Lake Developments which is chlorinated, but not otherwise treated. The Broward County Health Department has mandated fully treated water for these developments in the very near future, and water supplied residents of the York Development at Gates of Hillsborough should be likewise improved even though all water produced presently meets state regulatory standards. There is no question that if Boca del Mar II is to be served by the applicant, additional facilities for water and sewage treatment must be developed. In order to provide service to Boca Del Mar II as well as to existing or potential users in the area east of the Florida Turnpike (area "b" on Exhibit 3), a 1.5 MGD sewage treatment plant will be added to the existing 260,000 GPD sewage plant with the result that Northwest will be capable of treating sewage in the amount of at least 1.76 million gallons per day. Thereupon, the plant would have the capability to treat all sewage produced by Boca Del Mar II as well as the other developments named. The sewage from Boca Del Mar II would be collected in that development then pumped to the treatment facility located at the present plant site south of the Hillsborough Canal. The sewage would be given secondary treatment there, with the effluent stored in percolation ponds on the treatment plant site until the treated effluent is pumped to a golf course within the Boca Del Mar II development for disposal by spray irrigation. All sewage generated in the developments served by Northwest in Broward County would eventually be pumped south to the North Broward County regional sewage treatment facility. In order to implement this concept Northwest has entered into a "large user's agreement" with the Broward County Utilities Department. The sewage generated in Broward County would be treated initially in the sewage treatment plant constructed on Northwest's site. When that sewage treatment plant is used to 50 percent of its capacity, Northwest would be contractually obligated with Markborough Properties to start procedures that would permit the Broward County generated sewage to be treated elsewhere (the North Broward Regional Sewage Treatment Facility), leaving the Northwest Sewage treatment plant dedicated for the use of Markborough alone. Northwest has entered into a contract with Davco, Inc. to purchase and construct 1.5 MGD sewage treatment plant, conditioned upon favorable action by the Commission on this certificate application. The plant can be constructed and in full operation within nine months. Northwest has prepared detailed engineering plans for a two MGD water treatment facility to provide fully-treated water to Boca Del Mar II as well as the existing developments of York and Coquina Lakes. This facility has been permitted for construction by the Department of Environmental Regulation, and a permit has been obtained from the South Florida Water Management District (SFWMD) authorizing withdrawal of 315 million gallons of ground water per year. SFWMD does not object to Northwest's crossing the Hillsborough Canal with the necessary water main. Construction is approximately 50 percent complete on the water treatment plant, and the plant can be operational in approximately four months. The water treatment concept espoused by Northwest is feasible and practical. (The legislature has mandated removal of any consideration of political or property boundaries in the allocation and use of water in the state. See Section 373.223, Florida Statutes.) Similarly, with the sewage treatment concept proposed by the utility, there is no statutory impediment to crossing political boundaries in the process of sewage collection and treatment. Both the Broward County Environmental Quality Control Board and the Department of Environmental Regulation are agreeable to the proposed concept of sewage treatment and are willing to resolve any problems occasioned by the crossing of the county boundary with collection lines in favor of the utility's proposal. Northwest has developed detailed cost analyses regarding construction of the water and sewage treatment facilities to serve Boca Del Mar II. Northwest has also developed engineering cost estimates to provide transmission facilities to enable connection to the Broward County Regional Sewage Treatment Facility. The costs of construction were developed in accordance with sound engineering principles and current market prices for materials, equipment and labor and are reasonable. Several factors contribute to the reasonableness of the construction costs. Ralph Bates, a contractor experienced in this type construction, will perform a substantial part of the plant construction and can accomplish this work for substantially less than a third party contractor. Additionally, Northwest has obtained a loan commitment at an extremely favorable interest rate considering the cost of money in today's market. When these facilities are constructed Northwest will be capable of providing water and sewage collection and treatment service to Boca Del Mar II and to the territory east the Florida Turnpike (area "b" of Exhibit 3). Northwest will be able to provide good quality service with the facilities to be constructed, and the proposed financing arrangement discussed hereinafter will render the extent and type of service proposed by Northwest financially and economically feasible. The remaining issue to be addressed in this certificate proceeding, having determined the capability of the applicant, concerns the question of the availability of adequate service from other sources. Section 367.051(3), Florida Statutes, states in pertinent part: . . .The commission shall not grant a certificate for a proposed system, or for the extension of an existing system, which will be in competition with, or duplication of, any other system or portion of a system, unless it shall first determine that such other system or portion thereof is inadequate to meet the reasonable needs of the public or that the person operating the system is unable or refuses or neglects, after hearing on reasonable notice, to provide reasonably adequate service. Section 367.041(1) states in pertinent part as follows: . . . Provide information required by the commission, which may include a detailed inquiry into the ability of the applicant to provide service, the territory and facilities involved, and the existence or non-existence of service from other sources within geographical proximity to the territory applied for . . . The potential sources of service within a reasonable, feasible geographical proximity to Boca Del Mar II are the City of Boca Raton and South Palm Beach Utilities (SPB). The City of Boca Raton raised no objection to a grant of the certificate and authority sought by Northwest. The city previously refused to serve the Boca Del Mar area, and if Markborough were to attempt to obtain service from the city inordinate delays would result. Markborough is experiencing a cost of capital of $100,000 per week in interest and other charges for each week that its development is delayed. The consistent ability of the City of Boca Raton to provide adequate water service to the development has not been adequately demonstrated. The city has a sporadic water shortage problem and is in the process of constructing new water treatment facilities that may partially alleviate the problem, but that relief is 18 months away. The city is contemplating embarking on what is known as a "201 plan" to construct and operate a regional sewage treatment facility pursuant to the Federal Water Pollution Control Act as amended in 1972. 33 USCS Section 1281. This plan is only in its initial stages, and it will be several years before the study and any resulting construction is completed and sewage treated. Markborough has no desire to have service provided by South Palm Beach Utilities. It is also questionable whether SPB is seriously interested in providing service. No application for a certificate for this territory has ever been filed by SPB, and the protest to the Northwest application has been withdrawn by SPB. If service were provided by SPB to Boca Del Mar II, it would disrupt the provision of service to York and FDV from an operational and financial standpoint. Such an eventuality would not serve the public interest and since the same application process undertaken by Northwest would also be a prerequisite to the provision of service by SPB, there would be an unacceptable delay attendant to any provision of service by SPB, even assuming no engineering or financial impediments arose. Further, a minimum of seven months would be necessary for completion of necessary expansion to provide service even if it already had authority to do so. Nearly all of SPB's present water and sewage plant capacity is already committed. Thus, the present and future customers would be most clearly satisfied and served by a grant of a certificate to Northwest. That entity is the most capable from an an engineering and operational standpoint of constructing and providing required adequate service in the shortest time and, as will be seen, will have adequate financial resources available to underwrite this effort. Application for Approval of Debt Financing (Docket #800299-WS) In order to have the financial resources available to expand facilities to provide service to Boca Del Mar II and to upgrade quality of service to other customers, Northwest must obtain capital from outside sources. These funds are most readily available from Markborough Properties in the form of a loan. Markborough is keenly interested in a resolution of these and other delays to Boca del Mar II's development, particularly due to the fact that it is experiencing interest and opportunity costs of $100,000 per week for every week of delay in implementing its development plans. Consequently, Markborough has signed a loan commitment to Northwest for an aggregate principal sum of $2,610,000. A loan agreement to accompany this commitment has been proposed which contains the requirements of the lender and the terms of the arrangement. The loan up to the above aggregate amount will be evidenced by a promissory note with interest at a less-than-market rate of 10 percent per annum. The agreement provides for various advances under the terms of the note for specific items of construction of the water and sewage facilities. Interest would be paid monthly upon the outstanding principal balance of the note commencing one month after its execution, and interest only will be paid for two years or until the note is fully advanced. At that point, called the advance date, the entire principal and interest will be set up on a 30-year amortization schedule, with level principal and interest payments, with those payments to be made over a period of five years. After five years, the existing balance on the note would be fully due and payable as a "balloon" payment. There are provisions for pre-payment of principal and interest out of various developer contributions-in-aid-of construction (CIAC) that would be attributed to the interest and then principal outstanding on the note. The note would be secured in a customary manner. There would be a first mortgage lien on the real property, which is basically the water and sewer plant site and improvements. Security interests in the present and future personal property, equipment and inventory on the two plant sites would also be given the lender. The entire agreement would be personally guaranteed by the stockholders, Ralph and Marlene Bates, and in conjunction with that they would also pledge all the capital stock which they own in Northwest, as well as the stock which that company owns in WPC. There further is an assignment of present and future developer contributions-in-aid-of construction that would be attributed to the reduction of principal and interest by a stated formula. All CIAC payments would be directed to Markborough to be applied as called for by Paragraph 9.2 of the loan agreement. The allocation of those payments would be as follows: 75 percent of the CIAC from developers within the Boca Del Mar II development would be retained by Markborough, specifically to reduce the principal and interest on the loan. The remaining 25 percent of those CIAC payments would be disbursed to the borrower, Northwest. Twenty-five percent of the CIAC from developers not within the Boca del Mar II area would be similarly retained and used for reduction of the loan. Fifty percent would be retained by Markborough in an interest-bearing escrow account for use by Northwest to facilitate either the expansion of its plant facilities, to assist it in rendering service to other developers or to make the necessary capital payments to enter into a bulk sewage treatment contract with Broward County. The remaining 25 percent of non Boca Del Mar II CIAC payments would go to Northwest. Because of the low interest rate, Markborough and Northwest have agreed to what is commonly referred to in the construction and financing industry as an "equity kicker". This equity incentive or right of the lender is an amount equal to 40 percent of such portion of the net proceeds of the sale or disposition of assets or stock, (after debts securing such assets or stock and sales expenses, but prior to income taxes) as the number of units under service by Northwest (and number of units to be built upon land then under contract to be sold to a subdeveloper) in Boca del Mar II bears to the total number of units under service by Northwest, including units under contract, but not yet in service. This provision is customary in such financing arrangements and is allowed by Section 687.03(4), Florida Statutes. This "equity kicker" in effect provides an additional incentive to the lender to offset the below-market interest rate, and it survives the satisfaction of the mortgage debt and loan if there is ever a sale of all or a portion of the stock or assets of the utility. This "equity kicker" provision would inure to the benefit of customers of the utility by providing lower utility rates through the effect of the lower interest cost provision. Northwest would provide this "additional interest" out of any profits from a sale, and therefore only the principals of Northwest would ever feel any impact from this arrangement. The safeguards to the lender are numerous, but they are safeguards similar to conditions normally imposed for construction loans of this type and magnitude. The principal disadvantage of this loan proposal and agreement is that Markborough would have great control over virtually all the operations of the utility. It would have representation on its board of directors, would participate in all major decisions and possibly even in the day-to-day operations of the utility, which control could potentially extend to other developments and not just Boca Del Mar II. In fact, the agreement ultimately calls for the utility's capacity to be largely dedicated to the sole use of Markborough. The major advantage of the loan agreement is that the utility would be able to obtain financing at a low rate of interest in order to construct the facilities necessary to serve Boca Del Mar II. Through this construction, the utility will be able to serve a much larger customer base and will be able to obtain a more viable financial position. York Development and other creditors of the utility would be paid off, capital available for future use would be accumulated under the terms of this agreement, and finally management expertise would be available from Markborough which could greatly enhance the effectiveness of the utility's operation. In order to hasten construction of improved water treatment facilities, York has made various short-term loans to Northwest. Both York and Northwest contemplate that the indebtedness would be discharged upon securing of long-term financing. Under the terms of the Markborough loan, Northwest would draw down a substantial portion of the loan at closing. The monies obtained on the first "draw" would satisfy substantially all the current indebtedness of Northwest. All existing mortgages, some of which are in default, would be satisfied, and Markborough would become the first lien holder. The Markborough loan is thus designed to achieve the objectives of providing the utility with funds to construct a plant to serve Boca Del Mar II; to help Northwest become a financially viable utility able to provide quality service to customers; to enable Northwest to repay current creditors, including York Development to whom it owes some $185,000; to accumulate enough CIAC to aid in retiring the debt; and to provide Markborough with an equity interest and sufficient control over the operations of the utility to ensure continuous quality service to its development. The Markborough loan, then, is part of a comprehensive plan by this utility to ensure financial viability and continuous quality water and sewer service to York and other customers in an expanding territory in the future. The Markborough loan proposal achieves all the above objectives and represents the only viable means offered to achieve them. The remaining issue concerning this financing arrangement is whether the utility has the ability to repay the debt. If only the known developments in the area east of the Florida Turnpike are considered, with only the minimum rates chargeable to them used to forecast operating revenues, Northwest will have the capability of repaying the money borrowed from Markborough. However, there are two occasions in the projections of available cash flow to service debt (to 1985) when a cash deficit might occur. At the end of 1980 there is a relatively immaterial predicted deficit. There will be a deficit at the end of 1983, when it will be necessary to construct the transmission line to the Broward County sewage treatment facility. That deficit at the end of 1983 has been provided for, however, in that York Development has agreed to advance money to cover that deficit if it should prove necessary. In effect, the worst conceivable situation that could occur should Northwest be unable to service the debt would be foreclosure and ultimate ownership by a financially sound development company, Markborough, which has a high degree of management expertise as well as a keen interest in having quality water and sewer service provided its development in order to successfully market it. Thus, should Markborough ever become the operator of the utility, there is no conceivable way that such an event would not inure to the benefit of all customers served. Show Cause Order No. 9305 (Docket #800181-WS) Certificates 170-W and 121-S were granted to Northwest after application made in 1973. The area encompassed by these certificates is identified as "a" on Exhibit 3. The certificates were ultimately granted to the utility in April, 1974, and the above-referenced Show Cause Order contains allegations proposing that the Commission cancel these certificates. The allegations in the Show Cause Order are essentially that the certificates were issued on the premise that service was needed in this service area, but that no service has been provided, and therefore the premises upon which the certificates were issued no longer exist and they should be cancelled. The certificates were issued on the premise that service was needed in the territory, and service was initially needed at that time for the high density Bates PUD discussed above. The need for service ultimately failed to materialize because of economic conditions, but since economic conditions change, the need for service can and has arisen once again. Thus, consideration of this issue must take into consideration current developments and economic realities, including the steps recently taken by Northwest to expand its service. Northwest has built or acquired plant facilities for the purpose of providing service in this territory. It purchased in 1973 a one-MGD-sewage- treatment plant, which is now stored on the Bates's, property and available for use if an appropriate development should require it in this territory. Further, to provide service where needed, Northwest has invested in the on-site package plants to serve Carol Lakes Mobile Home Park. A need for service arose in the park in 1976, and Northwest provided it. Another apparent need arose in 1977 in the area identified as Parcel 3 on Exhibit 3, and Northwest took steps to provide that service. Mains were installed at a cost of $9,000, and the acquisition of the WPC plants was undertaken at a cost of $300.,000. The actual need for service did not materialize, but there is no question that Northwest stood ready and held itself out to provide service upon request. Its investment of substantial amounts of money, and its demonstrated willingness to provide service when requested, indicates that Northwest has taken the obligation imposed by those certificates seriously, and any actual cancellation would, in effect, deprive Northwest of effective use of a substantial investment in property without just compensation. Given that the rate-making criteria in Section 367.081, Florida Statutes, provides that a return through rates can only be allowed a utility on property or investment which is "used and useful" in the public service, the Commission has uniformly insisted, for rate-making purposes, that investments be prudent and in accordance with this statutory standard. Therefore, Northwest should not be required to run the risk imposed by this Show Cause Order of losing its territory merely because it has not built a plant and laid down mains and lines throughout the territory in question, since no service in that territory has heretofore been needed. There is no requirement in the above- cited statute nor in decisional law which would provide that a utility should place lines and/or plants throughout a territory where no service is yet required and for which no request has been received; and indeed the Commission has uniformly discouraged and penalized that practice in numerous past decisions. The only possible alternative source of service to this territory is the City of Coconut Creek. The city has no sewage or water treatment facilities and would serve the area by having sewage treated at the Broward County facility which Northwest would probably use in the future. There is no showing that the public would gain any cost advantage by obtaining service from the City of Coconut Creek as opposed to Northwest. The city's argument that it should serve the territory since it lies within its city limits is unpersuasive. Many cities or portions of cities are served by privately-owned facilities in this state. Further, only certain portions of Northwest's territory lie within the city limits of Coconut Creek. Those are the areas where the highest density development is probable, such that if it were given the right to serve those areas, only Coconut Creek would obtain the bulk of the revenue, leaving Northwest to serve low density areas with only marginal practicality due to the low resultant revenues. The provision of service to the area outside the city limits of Coconut Creek is only feasible if the utility serving the area also retains the right to serve those within the city limits. An additional problem would occur if this certificated territory were cancelled. Coral Lakes Mobile Home Park lies surrounded by the City of Coconut Creek, so if the area within the city limits of Coconut Creek was deleted from the Northwest certificates, the mobile home park would become isolated, rendering it extremely difficult to upgrade and maintain quality service to the park by Northwest, which would remain obligated to serve it. Thus, deletion of the territory within the city limits of Coconut Creek from the certificates of Northwest would render service to those areas and contiguous areas operationally and financially unfeasible. Northwest has not failed to provide service to any person reasonably entitled thereto or requesting it. It has thus far offered service to every person or entity making a request.
Recommendation Having considered the substantial, competent evidence in the record, the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the application of Northwest Utilities of Broward County, Inc. to extend water and sewer service to the territory known as Boca Del Mar II, be granted. It is further, RECOMMENDED that the application of Northwest Utilities of Broward County, Inc. for authority to borrow the principal amount of $2,610,000 from Markborough Properties Ltd. be granted. It is further, RECOMMENDED that Public Service Commission Show Cause Orders Nos. 9324 and 9305 be dismissed. It is further RECOMMENDED that the Motion for a Corrective Order addressed to Order No. 8821 in Public Service Commission Docket No 770625-WS filed by Northwest Utilities of Broward County, Inc. be granted. DONE and ENTERED this 21st day of August, 1980, in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: David B. Erwin, Esquire Johnston and Erwin 1030 E. Lafayette Street Suite 112 Suite 601 Tallahassee, Florida 32301 Marta Crowley, Esquire James O. Collier, Class B. Practitioner Public Service Commission 101 E. Gaines Street Tallahassee, Florida 32301 Peter A. Knocke, Esquire Carlton, Fields, Ward, Emmanuel, Smith and Cutler, P.A. Post Office Drawer 190 Tallahassee, Florida 32302 William E. Sundstrom, Esquire 1020 E. Lafayette St. Suite 103 Tallahassee, Florida 32301 Betty Lynn Lee, Esquire Prominski and Lee 800 E. Broward Boulevard Ft. Lauderdale, Florida 33301 Andrew S. Maurodis, Esquire 4540 N. Federal Highway Fort Lauderdale, Florida 33308 Burton Harrison, Esquire Bretan and Marks 7200 Bird Road Miami, Florida 33130 Milton A. Galbraith, Jr. City Attorney 201 W. Palmetto Park Road Boca Raton, Florida 33432
The Issue The issues to be resolved in this proceeding concern whether the Respondent violated Chapters 381 and 386, Florida Statutes, specifically Sections 386.041, 381.0061, 381.065, and 386.03, and Rules 10D-6.043(2) and 10D-6.0571. If the Respondent committed the charged violations, it must be determined whether a fine should be imposed and the amount of any such fine.
Findings Of Fact The Petitioner is an agency of the State of Florida charged with regulating the installation and continued maintenance of OSDS's, within the guidelines of the statutes and rules cited below. In the event violations of the rules regarding the safe operation and maintenance of OSDS's are detected, HRS has the authority to require correction of the unsafe, human-health conditions involving such systems and to impose penalties for the failure to adequately correct such unsafe health situations. In order to secure enforcement of the statutes and rules concerning the installation and operation of OSDS's, HRS has the authority to issue Administrative Complaints initiating formal enforcement proceedings such as the one at bar. The Respondent is a citizen of the State of Florida and owns the property located at 835 N.W. 109th Drive in Gainesville, Alachua County, Florida. The Respondent owns and operates an OSDS on that property which serves her personal residence for the on-site containment, disposal and treatment of sewage generated by that residence. In the spring of 1992, the Respondent detected problems with the OSDS on her property. The problems were noticed because of a difficulty in flushing the toilets in her home and the unusual greening of the grass in a pattern of rows above the septic tank's drain field. The abnormal greening of grass in this pattern indicates that the OSDS is malfunctioning by allowing incompletely treated sewage effluent (waste water) to escape upward towards the surface of the ground instead of percolating in a downward direction into the underlying soil, for appropriate filtration and treatment, which is the pattern of effluent disposal if such a system is operating correctly. Mr. Ron Meyers of Meyers Septic Tank Company was contacted for correction of the problem by the Respondent. On April 15, 1992, he applied for an OSDS repair permit to the Alachua County Public Health Unit of HRS on behalf of the Respondent. The permit application described that the repairs for which authority was requested would be to the existing system which was a below-ground-level septic tank and drain-field system (conventional system) in the Respondent's front yard. Mr. Dennis Chesky is an environmental specialist with the HRS Health Unit for Alachua County. He conducted a site inspection of the OSDS site on April 16, 1992 and determined that a repair of the existing system would not result in compliance with the applicable standards of Chapter 10D-6, Florida Administrative Code cited below. He made a determination that a mounded drain- field system would be required in order to comply with HRS rules. HRS rules require that when repairs are made to an existing OSDS and inspection reveals that proper percolation and other indicia of soil-borne treatment of the effluent will not be adequately performed in accordance with HRS rules, then alterations to the OSDS, including the requirement of a mounded drain-field system, so as to acquire a sufficient treatment zone of appropriate fill soil, can be imposed. Mr. Chesky had noted that a sanitary nuisance existed due to insufficiently treated effluent escaping to the ground surface and pooling on the surface of the ground, rather than percolating downward below the drain field, as a properly operating system would perform. In accordance with the permit application and the results of Mr. Chesky's inspection, a repair permit with specifications requiring a mounded septic tank and drain-field system was issued by Mr. Chesky on April 16, 1992. The permit required the system to be installed in the Respondent's front yard. Because such a mound in the Respondent's front yard would destroy the aesthetic character of the Respondent's property and landscaping, Mr. Meyers requested, on the Respondent's behalf, that the permit be modified to allow installation of the mounded system in the backyard of the Respondent's property. On April 22, 1992, this request was granted by Terry Shipley, Mr. Chesky's supervisor, and the relocation was duly noted on the permit. The permit issued was valid for a period of ninety (90) days. The letter transmitting the permit to the Respondent informed the Respondent, as permittee, that she had ninety (90) days to correct the problem which caused the need for the repair permit. The letter also advised the Respondent that if a sanitary nuisance was present on the property, the problem should be rectified as expeditiously as possible. The permit expired without the repairs having been performed. Mr. Shipley, therefore, directed that a member of his staff visit the Respondent's home to inspect the situation. Mr. Paul Meyers visited the Respondent's home on July 22, 1992 and noted that raw sewage was still existing on the surface of the ground in the form of waste water from the septic tank. Mr. Meyers took photographs of that condition. The photographs were introduced into evidence. One photograph depicted that an area of the ground at the end of the drain field had collapsed or subsided, leaving a hole through which waste water was seeping to the ground surface. Mr. Meyers thereupon issued a notice to abate a sanitary nuisance on July 23, 1992. It was received by the Respondent on August 1, 1992. On August 3, 1992, the problem still existed with effluent being observed on the surface of the site by Mr. Chesky. On August 25, 1992, he returned to the site and observed evidence that a large area of the front yard, over the drain-field location, had been disturbed. He determined that the ground and the grass had been disturbed in such a way that repairs had obviously been made to the existing drain field. This was contrary to the permit that had been issued, which had required that a mounded system be installed as a means of effecting necessary repairs. The repaired area had been covered without notification of the repair to HRS. A notice of intended action was issued on September 16, 1992 and received by the Respondent on September 19, 1992. This notice gave the Respondent three (3) days to take action toward correcting the problem. The Respondent was thus advised that if the problems and violations were not corrected, then an Administrative Complaint seeking imposition of a fine would be issued. Within several days of receipt of that notice, the Respondent's husband called Mr. Shipley and Ms. Wilson of HRS to advise them that repairs had been delayed by the necessity of removing some trees in the backyard of his property where the mounded system would have to be placed. The Petersons were also having difficulty securing the necessary financing to pay for the installation of the mounded system required by HRS during the summer and early fall of 1992. Although Mr. Peterson advised HRS of the delay caused by the necessity to remove some trees with attendant expense, apparently HRS was not advised of the financing problem at that time, although the Respondent's testimony shows it to be the case. During this period of time, on September 22, October 1, and October 22, 1992, inspections by HRS revealed that the problem of effluent escaping on the surface of the ground had not yet been corrected. Since repairs had not been visibly commenced by the time of the last inspection on October 22, 1992, HRS elected to seek imposition of a fine and issued an Administrative Complaint to the Respondent, which was received by the Respondent on November 5, 1992. The Complaint sought a fine in the amount of $200.00 per day dating from the receipt of the Administrative Complaint until the date the violation was corrected. The Respondent obtained a second contractor to begin construction of the required mounded system which was completed on November 10, 1992. The contractor on that day called for an inspection by HRS. The inspection was conducted on November 12, 1992, but final approval could not be issued although all essential work was completed because the required sodding and stabilization measures had not yet been completed on the surface of the mound. Final approval was granted on November 17, 1992 by HRS. Installation of a new below-ground, drain-field system, as originally requested, similar to the one which was already installed and malfunctioning, would have cost approximately $1,000.00. The mounded system required by HRS' permit, pursuant to the relevant rules cited below, cost approximately $5,000.00. In addition to the approximate $5,000.00 expended for the installation of the mounded system, the Respondent had to expend approximately $7,000.00 related to tree removal and re-landscaping of their yard to repair damage caused by installation and the requirement to install a facility to pump sewage from the front yard outlet to the mounded system in the backyard. The Respondent apparently attempted to repair the existing below-ground system after receiving the notice regarding sanitary nuisance in August of 1992 in order to avoid the high costs related to the mounded system. The effluent pooling on the ground surface, as it was on the Respondent's property at times pertinent hereto, can pose a threat to public health. In order to adequately treat sewage effluent, it must filter in a downward direction through at least 24 inches of suitable soil medium in order to be sufficiently decontaminated. Improperly treated effluent on the surface of the ground can cause the transmission of human pathogens to persons who come into contact with the effluent in and near the area of the discharge. There is no evidence to indicate that any such harm came to any specific persons or to the public's health generally, in the subject situation. Ms. Wilson, the supervisor responsible for issuance of the Administrative Complaint, decided to seek a fine of $200.00 per day after considering both the aggravating and mitigating factors set forth in the statutory authority cited herein, contained in Chapter 381, Florida Statutes. HRS has fining authority in the amount of up to $500.00 per day for each of the claimed violations. The unrefuted evidence establishes that the violations occurred and persisted over the period time described in the above Findings of Fact. In fairness to the Respondent, however, it should be pointed out that the Respondent and her husband were not in Florida for most of the summer of 1992 because their work required them to be in Dallas, Texas. Even so, they had secured the services of an OSDS contractor to attempt to alleviate the problem. Due no doubt to the high cost and their reluctance to be encumbered by it, they delayed actual installation of the mounded system, however. It is also true that they had difficulties obtaining financing for such a costly system but ultimately did so and satisfactorily completed the work. They ultimately expended approximately $14,000.00 for all phases of the work involved, including site preparation, re-landscaping and related expenses. They have thus have undergone a severe cost burden to alleviate the inoperable condition of the previous OSDS.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is RECOMMENDED that a Final Order be entered by HRS imposing a fine in the amount of $500.00 against the Respondent. DONE AND ENTERED this 3rd day of September, 1993, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of September, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-7376 Petitioner's Proposed Findings of Fact 1-15. Accepted. 16. Rejected, as immaterial in this de novo proceeding. 17-25. Accepted. Respondent's Proposed Findings of Fact Accepted, although the evidence does not reveal the bank's posture with regard to ownership of the property. Rejected, as contrary to the preponderant weight of the evidence. Rejected, as to its material import because the repairs and installation were not effected until after the issuance of the Administrative Complaint. Accepted, but not dispositive of the material issues presented other than as consideration for mitigation of the fine imposed. Accepted, but not dispositive of the material issues presented other than as consideration for mitigation of the fine imposed. Accepted, but not materially dispositive of the issues presented. Accepted. COPIES FURNISHED: Robert L. Powell, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Slye, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Ralph J. McMurphy, Esquire Department of Health and Rehabilitative Services 1000 Northeast 16th Avenue Gainesville, Florida 32609 Robert Peterson 835 Northwest 109th Drive Gainesville, Florida 32606
The Issue Whether Permit No. DO19-101251 issued to Mr. Vail on July 11, 1985 to construct and operate an on-site wastewater treatment and disposal system should be revoked?
Findings Of Fact Mr. Vail is the owner and operator of a business called the St. George Inn and Restaurant (hereinafter referred to as the "Inn"). The Inn is located at the southeast corner of the intersection of Franklin Boulevard and Pine Avenue on St. George Island, Florida. In May of 1984 Mr. Vail spoke with an employee of the Department of Health and Rehabilitative Services about obtaining a permit to construct a septic tank on his property for use by the Inn for the treatment and disposal of wastewater. Mr. Vail was instructed to submit a design of the septic tank for approval. Mr. Vail contracted with McNeill Septic Tank Company for the design and construction of the septic tank. The evidence failed to prove when Mr. Vail applied with the Department of Health and Rehabilitative Services for a permit. As of March, 1985, however, Mr. Vail had not received approval or disapproval of his application from the Department of Health and Rehabilitative Services. Mr. Vail, therefore, went to the Governor's office to seek help in getting a response. Shortly after contacting the Governor's office, the Department of Health and Rehabilitative Services informed Mr. Vail that he needed to obtain a permit from the Department and not from the Department of Health and Rehabilitative Services. On or about March 18, 1985, Mr. Vail filed an Application to Operate/Construct Industrial Wastewater Treatment and Disposal Systems (hereinafter referred to as the "Application"), with the Department. The Application was prepared by Brown and Associates Civil Engineers and Land Surveyors, Inc., Mr. Vail's engineering consultant. The Application was certified by Benjamin E. Brown, Professional Engineer. Mr. Vail signed the Application as "owner" and indicated that he was aware of the contents of the Application. In the Application, "St. George Inn Restaurant" is listed as the "Source Name." Under Part II, A of the Application, the applicant is asked to "[d]escribe the nature and extent of the project." In response to this request, the following answer was given: This project will provide a sewage disposal system for a one hundred and fifty (150) seat restaurant on St. George Island. Sizing of the septic tank system is based on 50 GPD/seat and secondary treatment will be provided by the design proposed. Under Part III, A of the Application, the applicant is asked to provide the following information and the following answers were given: Type of Industry Restaurant . . . . 3. Raw Materials and Chemicals Used Food preparation only. Normal Operation 12 hrs/day 7 days/week . . . . If operation is seasonal, explain This restaurant will be used the most during the summer months which corresponds with ocean/beach recreation & the tourist trade. Nowhere in the Application is it indicated that the permit applied for involved anything other than a restaurant. The Application gives no information from which the Department could have known that the proposed wastewater treatment and disposal system would handle waste from guest rooms or an apartment. In the Application Mr. Vail sought approval of a permit to construct and operate a wastewater treatment and disposal system to serve a 150 seat restaurant. In the Application Mr. Vail sought a permit for a system which was to have a design flow of 7,500 gallons per day based on 50 gallons, per seat, per day water usage. An employee of the Department wrote a memorandum dated May 5, 1985, recommending approval of the Application. The Department determined, however, that the size of the property on which the Inn was to be located was not large enough for the drain field necessary to accommodate a 150 seat restaurant. Therefore, Mr. Brown modified the proposed system and resubmitted application data indicating that a 108 seat restaurant would be constructed. The design flow of the new proposal was 2,160 gallons per day based on 20 gallons per seat per day. Mr. Brown had requested that the Department approve a system based upon the newly submitted design flow. The Department and Mr. Brown both agreed that this design flow was adequate; that it was reasonable to anticipate and provide for the treatment and disposal of a maximum of 2,160 gallons per day design flow. The effect of reducing the design flow and the number of seats was to allow a shortened drain field which could be accommodated by the size of the property the Inn was to be located on. On June 27, 1985, Mr. Vail arranged for a notice to be published in the Apalachicola Times. That notice provided, in pertinent part, the following: State of Florida Department of Environmental Regulation Notice of Proposed Agency Action on Permit Application The department gives notice of its intent to issue a permit to Jack Vail to construct a restaurant and on-site wastewater treatment and disposal system [sic] at Franklin Boulevard and Pine Avenue, St. George Island. The treatment consists of grease trap, septic tank, and sand filter followed by disposal into a drainfield. The project meets applicable standards and will not impair the designated use of the underlying ground water. There is no anticipated impact on surface waters or air quality. . . . . This notice was sent to Mr. Vail by the Department and he made arrangements for it to be published. Nowhere in the notice is it indicated that the system to be approved by the Department is for anything other than a restaurant. On July 11, 1985, less than four months after the Application was filed with the Department, the Department issued Permit Number DO19-101251 (hereinafter referred to as the "Permit"). In the cover letter sent with the Permit the Department indicated that the Permit allowed Mr. Vail "to construct and operate a 2,160 gallon per day, on-site wastewater treatment and disposal system serving St. George Inn Restaurant. . . ." The Department also indicates in the Permit that it is for the "St. George Inn Restaurant." The Permit also provides, in pertinent part, the following with regard to the purpose of the Permit: The above named applicant, hereinafter called Permittee, is hereby authorized to perform the work or operate the facility shown on the application and approved drawing(s), plans, and other documents attached hereto or on file with the department and made a part hereof and specifically described as follows: Construct and operate a 108 seat restaurant with an on-site wastewater treatment and disposal system. Wastewater flows shall be a maximum of 2,160 gallons per day generated by domestic facilities and kitchen wastes . . . Construction shall be in accordance with application dated March 18, 1985 and additional information submitted April 29, 1985, specifications and other supporting documents prepared by Brown and Associates and certified by Benjamin E. Brown, P.E. and submitted to the Department on June 5, June 17, and June 20, 1985. The Permit also contains the following "General Condition" number 2 and "Specific Condition" number 15: . . . . 2. This permit is valid only for the specific processes and operations applied for and indicated in the approved drawings and exhibits. Any unauthorized deviation from the approved drawings, exhibits, specifications, or conditions of this permit may constitute grounds for revocation and enforcement action by the department. . . . . 15. The Department shall be notified and prior approval shall be obtained of any changes or revisions made during construction. . . . . The Permit provides the following with regard to the effect of the conditions of the Permit: The terms, conditions, requirements, limitations, and restrictions set forth herein are "Permit Conditions", and as such are binding upon the permittee and enforceable pursuant to the authority of sections 403.161, 403.727, or 403.859 through 403.861, Florida Statutes. The permittee is hereby placed on notice that the Department will review this permit periodically and may initiate enforcement action for any violation of the "Permit Conditions" by the permittee . . . . During the week after the Permit was issued, Mr. Vail obtained a building permit from Franklin County for the construction of the "inn." In February, 1986, after construction of the Inn had begun, Department inspectors went to the construction site of the Inn. The Permit authorized this inspection and other inspections carried out by the Department. The Department determined that the Inn being constructed by Mr. Vail included a restaurant, an apartment on the third floor of the Inn with two bathrooms, and eight guest rooms on the second floor, each containing a bathroom. This was the first time that the Department knew that Mr. Vail's facility was to include guest rooms and living quarters in addition to containing a 108 seat restaurant. In March of 1986, the Department sent a warning letter to Mr. Vail notifying him of the violation of the General Conditions of his Permit: the use of the approved system for the treatment and disposal of wastewater from the ten bathrooms in the guest rooms and the two bathrooms in the apartment in addition to the 108 seat restaurant. On April 1, 1986, Department personnel met with Mr. Vail and Mr. Brown. The Department reminded Mr. Vail and Mr. Brown that the Permit requested and approved by the Department was for a 108 seat restaurant only. The Department had not authorized a system which was to be used for a 108 seat restaurant and ten additional bathrooms. Pursuant to General Condition 14, the Department informed Mr. Vail that it needed an engineer's evaluation of the ability of the system which had been approved to handle the additional flow which could be expected from the additional ten bathrooms. By letter dated April 1, 1986, the Department memorialized the meeting and indicated that Mr. Vail could operate a 100 seat restaurant and the apartment during the interim. By letter dated May 8, 1986, Mr. Brown asked for additional time to submit the evaluation requested by the Department. The Department approved this request by letter dated May 14, 1986. By letter dated May 16, 1986, Mr. Brown submitted an engineering evaluation which proposed modifications to the approved system to handle the additional ten bathrooms. By letter dated June 13, 1986, the Department indicated that the evaluation was generally acceptable" but requested additional information. In January, 1987, before the additional information was submitted, Mr. Brown died in an airplane accident. No evidence was presented to explain why the information requested by the Department in June of 1986 had not been submitted before January, 1987. In March, 1987, the Department inspected Mr. Vail's facility again. In April, 1987, the Department informed Mr. Vail that the Department would take action to revoke the Permit. Before the Administrative Complaint was issued, the Department requested that certain information be provided on behalf of Mr. Vail by an engineer in an effort to resolve the dispute. Mr. Vail did not, however, obtain the services of an engineer. Instead, Mr. Vail sent the Department information purporting to show the amount of water which had been used at the Inn. That information failed to prove the ability of the system that the Department had approved to handle the maximum wastewater which could be expected from maximum use of the 108 seat restaurant and ten additional bathrooms. At best, the information submitted by Mr. Vail is partial proof that the system is capable of handling the wastewater that has been generated at the Inn for the period of time for which the information relates. No competent substantial proof has been submitted to indicate that the system is capable of handling the maximum wastewater flows which may be experienced or even that the system is adequately handling the current flow. All that has been proved is that there is no apparent problem with the system in handling the current flow. In September, 1987, the Department issued the Administrative Complaint. Pursuant to this Complaint, the Department has sought the revocation of the Permit and prescribed certain orders for corrective action. No application has been submitted by or on behalf of Mr. Vail to the Department to construct and operate a wastewater treatment facility designed to accommodate the sewage flows which may be generated by the Inn as it has been constructed. Although the Department of Health and Rehabilitative Services and other agencies were aware that the Inn includes a restaurant and guest rooms, the Department was never so informed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a Final Order requiring that Mr. Vail comply with all of the corrective orders, except Paragraph 18, contained in the Administrative Complaint. DONE and ORDERED this 11th day of March, 1988, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of March, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NUMBER 87-4242 The parties have submitted proposed findings of fact. It has been noted below which Proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Department's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact of Acceptance or Reason for Rejection 1 Conclusion of law. 2 1. 3 6. 4 10. 5 12 and 13. 6 14. 7 15. 8 18. 9 19. 10 20. 11-12 16. 13 21. 14 23. 15 24. 16 25. 17 26. 18-19 27. 20 28. 21 29 22 Hereby accepted. Mr. Vail's Proposed Findings of Fact 1A 15. Not supported by the weight of the evidence and irrelevant. Hearsay and irrelevant. Although technically true, this is not the issue in this case. The evidence did not prove that the system "can in actuality handle three times the amount permitted." Not supported by the weight of the evidence and irrelevant. 2A Not supported be the weight of the evidence. Exhibit 6 indicates that the Department was aware that the Inn included "hotel rooms" but not the number. Irrelevant. The evidence did not prove that the Department was aware of the scope of the project. Not supported by the weight of the evidence. 3A Irrelevant. Not supported by the weight of the evidence and irrelevant. Even if this were true, the fact remains that the Department was unaware that the Inn included guest rooms or an apartment. Irrelevant. 4A-B Irrelevant. 5A-B Irrelevant. 6A 2-4. B 5. 6 and 11. Not supported by the weight of the evidence. See 12. 13 and 15. Not supported by the weight of the evidence and irrelevant. Not supported by the weight of the evidence. 7A-C Not supported by the weight of the evidence and irrelevant. 8A-D Not supported by the weight of the evidence and irrelevant. 9A-B Not supported by the weight of the evidence and irrelevant. 10-12 Not supported by the weight of the evidence and irrelevant. COPIES FURNISHED: Richard L. Windsor, Esquire State of Florida Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Mr. John Vail St. George Inn Post Office Box 222 St. George Island, Florida 32328 Dale Twachtmann, Secretary State of Florida Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, Esquire General Counsel State of Florida Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Findings Of Fact Petitioner, George H. Hopper, submitted an application for a license to operate a Class "C" wastewater treatment plant to the Respondent on or about April 8, 1977. On November 28, 1977, the Respondent issued a letter of intent to deny the license. This letter of intent was subsequently modified by a letter to petitioner from Respondent dated January 4, 1978. The Respondent, in the above-referenced correspondence, based its letters of intent to deny the Petitioner a Class "C" wastewater treatment plant operator's license based upon two primary grounds. Those grounds are as follows: "This Department has concluded that you have not fulfilled the actual experience requirement of section 17-16.03(2)(b), Florida Administrative Code (F.A.C.), as defined by section 17-16.02(8) F.A.C." (See letter dated November 28, 1977.) "In addition to the above referenced deficiency in actual work experience, it has been noted that you have not completed an approved course related to wastewater treatment plant operation as required by Section 17-16.03(2)(c), Florida Administrative Code." (See letter dated January 4, 1978.) Respecting the second allegation, Petitioner presented testimony during the course of the hearing which, in fact, indicates that he did complete an approved coarse related to wastewater treatment plant operation as required by Section 17-16.03(2)(c), Florida Administrative Code. Additionally, Petitioner presented a diploma supporting this contention. This certificate reflects the fact that the Petitioner satisfactorily completed the course on "Operation of Wastewater Treatment Plants" on or about May 2, 1977. Based thereon, and the testimony of Respondent's certification officer, Robert W. Hall, to the effect that the Respondent did comply with the Code requirement which mandates completion of an approved course related to wastewater treatment plant operation, that ground is no longer a basis for the denial of Petitioner's certification. Petitioner testified, and the other documentary evidence introduced during the coarse of the hearing indicates, that Petitioner was employed from January, 1975, through December 25, 1975, as administrator of the Margate Utility Authority. From December 25, 1975, through February 15, 1976, the Petitioner was employed in a position other than as administrator, his resignation being effective on February 15, 1976. Accordingly, the Petitioner was employed at the Authority for a period in excess of one year. What is at issue, is the Respondent's contention that the Petitioner was not actually performing duties tantamount to fulfillment of the actual experience requirement of Section 17-16.03(2)(b), Florida Administrative Cede, inasmuch as his duties as an administrator were more in the nature of being in charge of the facility, with little practical experience as the term "experience" is meant in Chapter 17 of the Florida Administrative Code. Additionally, it was noted that the Petitioner was re-employed by the City of Margate as a supervisor. During the hearing, the Petitioner outlined his duties as an administrator which included being in charge off the overall operation of the wastewater treatment plant. Petitioner testified that when he was first employed at the Margate Utility Authority, the wastewater treatment plants were not operational. He testified that a water-sewer moratorium had been placed by the Board of Health, citing approximately five violations. Petitioner testified that he instituted numerous changes in the operations of the wastewater treatment facilities which included hiring a contractor to supervise deficiencies in the wastewater treatment plant and its injector systems which were over-pressurized. He testified that within approximately two months of his employment with the Authority, he was able to correct approximately 80 percent of the problems and was able to again make the treatment plant operational. Petitioner testified that he normally worked a five day week; however, he was on duty in excess of forty hours weekly for the resolution of all daily operational problems. Evidence introduced during the course of the hearing reveals that the wastewater treatment facility here involved is fully automated and that the operators have very little to do in terms of manual tasks. In this regard, the Petitioner testified that he was on duty at the facility throughout his employment during the period January, 1975, through December, 1975, to operate the wastewater treatment plant. Additionally, the Petitioner testified that his office, as an administrator, was located in close proximity to the wastewater treatment facilities and he was available to in fact operate the wastewater treatment plant, as needed. Finally, Respondent's certification officer, Robert W. Hall, testified that in his opinion, being available to operate as opposed to actual operation is what is required by the actual experience requirements of the Florida Administrative Code. Based thereon, I shall recommend that the Respondent withdraw its notice of intent to deny Petitioner's application for a Class "C" wastewater treatment plant operator's license.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby, RECOMMENDED: That Petitioner's application for a Class "C" wastewater treatment operator's license be GRANTED. RECOMMENDED this 8th day of May, 1979, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Russell L. Forkey, Esquire 3081 East Commercial Boulevard Fort Lauderdale, Florida 33308 Randall E. Denker, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue At issue in this proceeding is whether a citation and imposition of a $1,500.00 fine for installing a septic tank without a permit was properly imposed on Respondent, Paul Ware, a/k/a Paul Montgomery-Ware, by Petitioner, the Department of Health, Polk County Health Department (the "Department").
Findings Of Fact Respondent is the owner of three contiguous lots in Polk County (Bevington Manor, PB 20 PG 47, Lots 100 through 102), purchased via tax deed recorded on October 21, 2003. Respondent's lots are surrounded by property owned by Irma Walker, whose son, William Walker, testified at the hearing. Respondent apparently intended to develop his lots as a commercial enterprise and had erected a Quonset-type structure on the property. From his mother's adjoining property, Mr. Walker regularly observed Respondent's activities. Mr. Walker testified that Respondent was using his property to operate a motorcycle repair shop. On June 4, 2004, Mr. Walker observed Respondent using a backhoe on his property. Mr. Walker testified that Respondent was installing a septic tank. Mr. Walker told his mother, who then initiated inquiries as to whether Respondent had a permit to install a septic tank. When her inquiries met with a negative response, Ms. Walker called in a complaint to the Department. On June 7, 2004, the Department sent environmental specialist Susan Patlyek to the site. Ms. Patlyek observed infiltrator chambers on the site. Infiltrator chambers are used only in connection with OSTD systems. Ms. Patlyek also observed a recently excavated area and a rented backhoe, commonly used to dig out areas for septic tank installation. It was obvious to Ms. Patlyek that a septic tank and drainfield had been installed on Respondent's property, though no permit had been issued by the Department allowing installation of an OSTD system. Installation of an OSTD system without a permit constitutes a sanitary nuisance. The Department sent a letter to Respondent dated June 8, 2004, advising him of the need to abate the nuisance by obtaining a permit. With the letter, the Department enclosed a blank application form that Respondent could have completed and returned to the Department's permitting office. Respondent replied by contending that the Department lacked jurisdiction over activities on his land and suggested that the Department initiate court action. Respondent also returned the application form in its original blank form. The Department then issued Respondent a citation for violations of Subsection 381.0065(4), Florida Statutes (2003), and Florida Administrative Code Rule 64E-6.003(1), constructing an OSTD system without a permit; and for a violation of Subsection 386.041(1)(b), Florida Statutes (2003), maintaining a sanitary nuisance. The citation provides for a $1,500.00 fine. The Department's citation also informed Respondent of his right to a hearing pursuant to Chapter 120, Florida Statutes (2003). Respondent contends that the relegation of this matter to an administrative forum is unconstitutional.
Recommendation RECOMMENDED that Petitioner, the Department of Health, Polk County Health Department, enter a final order imposing a $500.00 fine for the violations described in the above Findings of Fact and Conclusions of Law. DONE AND ENTERED this 30th day of November, 2004, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 2004. COPIES FURNISHED: Roland Reis, Esquire Polk County Health Department 1290 Golfview Avenue, Fourth Floor Bartow, Florida 33830-6740 Paul Ware 6557 Crescent Lake Drive Lakeland, Florida 33813 R.S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Quincy Page, Acting General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue Did Petitioner violate Section 386.041 and Section 381.0065, Florida Statutes, as alleged in the Citation for Violation Onsite Sewage Program/Sanitary Nuisance?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times pertinent to this proceeding, the Department, through the Polk County Health Department, was the agency of the State of Florida charged with the responsibility of issuing permits for the construction, installation, modification, abandonment, or repair of onsite sewage treatment and disposal systems. The property in question is a duplex apartment building owned by Respondent and located at 1101-1103 Old South Drive, Lakeland, Florida. The two apartments in the duplex are serviced by a single septic tank and drainfield. In the summer of 1997, Petitioner determined that the drainfield needed repair and engaged the services of an individual who was not licensed to repair drainfields. Additionally, Petitioner did not obtain a permit for the repair to the drainfield. During the fall of 1997, Petitioner continued to experience trouble with the drainfield. Thereafter, on two separate occasions, Petitioner engaged the services of Burns Septic Tank Company (Burns) and Central Fla. Septic Tank Co. (Central) to pump-out the septic tank. Both Burns and Central indicated on their invoices for pumping out the septic tank that the drainfield was in need of repair. On December 9, 1997, after receiving a complaint from one of Petitioner’s tenants, the Department’s Environmental Specialist, Wade Schulz, made an inspection of the septic tank and drainfield at 1101-1103 Old South Drive, Lakeland, Florida. Schulz’s inspection revealed that the septic tank was backing up at the duplex apartments and that the septic tank D-box, old rock, and the drainfield pipe were exposed to the ground. Additionally, it was discovered that septage was flowing directly from the system to a wet drainage ditch. On December 9, 1997, Schulz verbally notified Petitioner that the system was in violation of: (a) Section 386.041, Florida Statutes (Nuisance injurious to health); (b) Section 381.0065, Florida Statutes (Prior approved system shall remain in operating condition); and (c) Section 381.0065, Florida Statutes (No person shall repair without permit). A written copy of the Citation for Violation Onsite Sewage Program/Sanitary Nuisance (Citation) was mailed to Petitioner but was returned as undeliverable. A copy of the Citation was personally served on Petitioner on January 23, 1998. After receiving the verbal citation from Schulz, Petitioner engaged Robby’s Septic Tank Service and had the septic tank pumped out. Other than pumping out the septic tank, Petitioner has made no other effort to correct the problem. After receiving the Citation, Petitioner met with the Department’s representative in an attempt to work out a solution. However, Petitioner contended that there was nothing wrong with the drainfield and refused to pay any fine. On July 9, 1998, the Department visited the site again and found that nothing had been done to correct the problem. Furthermore, the Department found that the system was still being improperly maintained. It was the opinion of both Schulz and Tony Warr, the Department’s Environmental Supervisor, that the only way to correct the problem was to completely repair the drainfield. It was Petitioner’s contention that the drainage ditch was clogged up resulting in a high water table around the drainfield and that if Polk County cleaned out the drainage ditch, allowing the water to flow off, it would resolve the problem of the drainfield. While the drainage ditch may be a problem, there was insufficient evidence to show that unclogging the drainage ditch would resolve the problem of the drainfield. It is clear that Petitioner’s drainfield is not operating properly and is in need of repair.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order finding the Petitioner guilty of the violations as charged and requiring Petitioner to pay a fine in the amount of $1,500.00 as set forth in the Citation for Violation Onsite Sewage Program/Sanitary Nuisance, Part 6. DONE AND ENTERED this 11th day of August, 1998, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 1998. COPIES FURNISHED: Angela T. Hall, Agency Clerk Department of Health Bin AO2 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1703 Dr. James Howell, Secretary Department of Health 1317 Winewood Boulevard Building 6 Room 306 Tallahassee, Florida 32399-0700 Glenn E. Woodard, pro se Post Office Box 2000 Eaton Park, Florida 33801 Roland Reis, Esquire Department of Health 1290 Golfview Avenue, Fourth Floor Bartow, Florida 33830
The Issue The issue posed herein is whether or not the Respondent, Arthur M. Jones, Jr.'s Wastewater Treatment Plant Operator's license should be suspended or revoked based on conduct set forth hereinafter in detail based on allegations as set forth in the Petitioner's Administrative Complaint filed January 31, 1979.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel and the documentary evidence received, the following relevant facts are found. Respondent, Arthur M. Jones, Jr., is a duly certified Class C Wastewater Treatment Plant Operator, certified pursuant to Chapter 17-16, Florida Administrative Code. Respondent holds license No. 793 originally issued by the Florida Department of Health and Rehabilitative Services on May 13, 1971. The responsibility for certification of wastewater treatment plant operators was transferred to the Florida Department of Pollution Control by Executive Order 72-75. The Florida Department of Environmental Regulation is the successor agency to the Florida Department of Pollution Control by virtue of Chapter 75- 22, Laws of Florida, and is authorized by Section 403.101, Florida Statutes, to issue and revoke operators' certificates pursuant to its rules and Chapter 120, Florida Statutes. At all times material to this complaint, Respondent was employed by the Duval County School Board in Jacksonville, Florida. At all times material, Respondent was employed by the School Board as a School Sewer/Water Plant Mechanic, a position requiring certification by the Department as a Wastewater Treatment Plant Operator. In his capacity as a School Sewer/Water Plant Mechanic and Class C Operator, Respondent was responsible for the operation, supervision, maintenance and collection of influent and effluent samples from various Duval County schools. Persons responsible for the operation, supervision, maintenance and collection of influent and effluent samples must be licensed and certified by the Department as a Wastewater Treatment Plant Operator. Additionally, Respondent, in his capacity as a School Sewer/Water Plant Mechanic and Certified Class C Wastewater Treatment Plant Operator, was responsible for the proper collection of composite samples of raw sewage and the treated effluent from each such plant. According to instructions given the Respondent, a composite sample was to be taken by filling one-third of a sample bottle at two-hour intervals until the bottle was full. The composite sample of raw sewage was to be taken from the influent line and the composite sample of treated final sewage was to be taken from the effluent line. After the collection process, Respondent was responsible for properly and accurately labeling the composite samples and for depositing them in a refrigeration unit at School No. 98. The composite samples are then picked up at School No. 98 by authorized personnel for laboratory analysis to determine whether sewage is being adequately treated. The complaint, in summary fashion, alleged that the Respondent on or about February 15 and March 15, 1978, completely filled a raw sample bottle from the filter bed rather than from the influent line of the plant at School No. 94. That sample was submitted as a composite sample and placed in the refrigeration unit for pickup and analysis by laboratory personnel. Additionally, the complaint alleges that on February 15, 1978, at School No. 82, Respondent filled raw and final sample bottles for Schools Nos. 82, 64, 83 and 153, none of which were a proper composite sample. The samples, it is alleged, were all taken from School No. 82. The complaint alleges that similar acts occurred on March 15, 1978; on April 4, 1978 and April 11, 1978, all of which acts "constitute gross neglect and fraud in the performance of duties as an operator of a wastewater plant." Based thereon, the Petitioner seeks revocation of the Respondent's Class C Wastewater Treatment Plant Operator's license. L. L. Masters is Respondent's foreman and is in charge of the wastewater treatment plant facilities. Masters is Respondent's immediate supervisor. On March 15, 1978, Foreman Masters assigned Respondent the duties of taking composite samples of Schools 94, 64, 83, 82 and 159. Evidence reveals that Foreman Masters arrived at School 82 at 9:00 o'clock a.m. and departed at 2:00 p.m. Evidence also reveals that Foreman Masters had a clear view of the entire wastewater treatment plant and that it was impossible for the Respondent to enter and leave the treatment plant in a manner whereby composite samples could be collected without Foreman Masters seeing him. In this regard, Respondent's work orders reflect that he reported having arrived at School 82 at 10:40 a.m. and departed at 12:10 p.m. (Petitioner's Exhibits 5, 6, 7 and 8.) On April 4, 1978, Respondent was assigned to collect composite samples from Schools 72, 233, 76 and 208. (Petitioner's Exhibit 9.) Foreman Masters observed Respondent on April 4, 1978, with employee Carl Casey. Masters went to School 77 at 8:30 and Respondent was not there, although he had given a dispatcher a routing which would have taken him to School 76. When Foreman Masters noted that Respondent had not arrived at School 76 by 8:30 a.m., he took employee Carl Casey to School 233 and left Casey at School 233 while he returned to School 76. The Respondent was not there and Masters drove to School 208 where the Respondent arrived at approximately 9:30 a.m. It suffices to say that the Respondent then left for School 233 and arrived there at 10:30. From approximately 10:45 to 11:45, the Respondent was in the wastewater treatment area of School 233 and took three samples from the effluent line and three samples from the influent line at School 233 from the period 10:30 a.m. through 11:45 a.m. (Petitioner's Exhibits 9, 10 and 11.) Employee Pat Wilson testified that he accompanied Respondent on February 15, 1978, and that all samples were taken from the filter beds of Schools 98 and 82. Detective Jack C. Adams of the Jacksonville Police Department was assigned to the surveillance of Respondent on April 11, 1978. Detective Adams credibly testified that the Respondent did not take composite samples from the assigned schools as reflected by the work orders submitted by Respondent Respondent appeared and testified that one of the events for which he had been charged occurred as alleged; however, he testified that inasmuch as he questioned the procedures, he was of the opinion that since no harm was done, and since no school experienced problems, he is not guilty of gross neglect and fraud in the performance of his duties as an operator of a wastewater treatment plant as alleged. The evidence herein reveals that the Respondent was instructed as to the proper procedures for testing, collecting and preserving composite raw and final samples from wastewater treatment plants by his employer. He testified that he had attended a seminar wherein the instructions for such procedures were outlined to him and that he was given a manual on the methods for collecting raw and final samples. Barry McAlister, a certification officer for the Department, testified that Class C operators are instructed as to the proper procedures for collecting samples. Additionally, he testified that the submitting agencies rely heavily on the operators to properly collect samples which are submitted for analysis. Chapters 17-19.04, Florida Administrative Code, additionally set forth the sampling and testing methods for collection and preservation of composite samples. Although there was some conflicting testimony respecting the adherence to the procedures uniformly by the various wastewater treatment plant operators employed by the School Board, the undersigned is of the opinion that the Respondent was not at liberty to select and choose the manner within which he would collect composite samples for analysis by his employer in view of outstanding instructions which were in effect during his employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby, RECOMMENDED: That the Respondent, Arthur M. Jones, Jr.'s license as a Class C Wastewater Treatment Plant Operator be suspended for a period of two (2) years. RECOMMENDED this 28th day of September, 1979, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Silvia Morell Alderman, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Reed Tallahassee, Florida 32301 Joseph S. Farley, Jr., Esquire Mahon, Mahon & Farley 350 East Adams Street Jacksonville, Florida 32202
