The Issue The issue presented for decision herein is whether or not the Respondent, Department of Environmental Regulation (DER), should issue a permit to Respondent, Robert Peterson, to construct a 0.007 MGD wastewater treatment facility with effluent disposal to Dual Class V injection wells in Key Largo, Monroe County, Florida.
Findings Of Fact On January 17, 1986, Robert Peterson, doing business as Peterson's Condominiums, submitted an application to the Florida Department of Environmental Regulation (DER) to construct a 0.007 MGD wastewater treatment plant with effluent disposal to Dual Class V injection wells into G-III groundwater. The proposed site is located at Mile Marker 95.6, U.S. Highway 1, Key Largo, Florida. The sewage treatment plant is to serve a ten unit condominium with provisions for four future units. The designed population to be served is 62. (Permit Application) The Plant is designed to treat the sewage so that after treatment and disinfection, the effluent will, on average contain no more than 20 parts per million biological oxygen demand (BOD-5 day) and 20 parts per million of total suspended solids (TSS). There will be 90 percent removal of these pollutants after treatment. The effluent will be disinfected in a chlorine contact chamber, with chlorine tablets used as the disinfectant. Sludge will be removed by a licensed scavenger truck to Monroe County approved disposal sites. Noise from the plant will be controlled by a blower filter, silencers, and a weather proof hood. (Permit Application). No control is contemplated for odor or aerosol drift other than proper plant operation. No lighting will be provided at the plant. Emergency power `from a rental portable generator will be used if there is an extended power failure. Along with the sewage treatment application, Respondent Peterson also submitted two permit applications for injection of the treated effluent into 2 Class V injection wells. The total volume of treated effluent that would enter into both wells combined is 6500 gallons per day. The 6 inch diameter wells would be 65 feet deep with casing and grout down to a depth of 30 feet. Upon receipt of the permit applications, DER reviewed the application and requested an additional application including groundwater samples measuring total dissolved solids. Peterson submitted two samples, both indicating total dissolved solids significantly greater than 10,000 milligrams per liter. (DER's Exhibits 2, 3 and 4). The samples (TDS) were taken approximately 1 and 6 miles from the proposed site. Based on DER's staff review of hundreds of groundwater quality analyses from the Keys, DER's staff determined that the samples submitted were consistent with other groundwater TDS levels throughout the Keys. (Testimony of Barrone and Me1e). Use of the samples by DER was reasonable and proper. Groundwater in which the TDS is greater than 10,000 milligrams per liter (parts per millions) is classified as G-III groundwater. Such water is considered non-potable. (Testimony of Barrone and Mele; Florida Administrative Code, Rule 17-3.403(1)). After review of the application, DER issued an "intent to issue" Peterson the permits requested on March 5, 1986. (DER's Exhibit 7). The "intent to issue" as drafted by DER established certain conditions to monitor water quality and to test treated effluent before it is discharged to Class V wells. As an example, flow, pH, and chlorine residuals are to be sampled daily; BOD and total suspended solids are to be sampled monthly and fecal coliform is to be sampled once per quarter. Test results are to be submitted to DER on a monthly basis and the analysis program is conditioned to demonstrate substantial compliance with water quality standards as set forth in pertinent sections of the Florida Administrative Code. Provided the monthly reports reveal violation of DER's standards, the permittee will be required to rectify the problems. (DER's Exhibit 7, testimony of Barrone and Mele). Additionally, DER has conditioned its intent to issue on a trial or experimental basis and this project will again be subjected to review in one year. (DER's Exhibit 7, condition 12). Should the permittee fails to bring the facility into full compliance within the one year period, an operational permit will not be issued. DER imposed this condition on the subject wastewater treatment plant, based on the fact that it is a new model and DER does not have extensive experience with the monitoring of this type plant. (Testimony of Barrone and Mele). Evidence introduced reveals that the plant manufacturer, Smith and Loveless, is the largest manufacturer of factory built water and wastewater pump stations and treatment plants. The manufacturer pioneered prefabricated treatment plants with over 30 years experience. Evidence reveals that there are at least three plants in operation in Florida without any operational problems. Upon "issuing the intent to issue", DER directed the permit applicant (Peterson) to publish notice in the Key West Citizen (Peterson's Exhibit 1). Notice of this proposed agency action was published in the Key West Citizen on March 17, 1986, giving any substantially affected party 14 days from that date to file a petition for administrative proceedings with DER's Office of General Counsel. (Petitioner's Exhibit 2). On March 26, 1986, DER received a letter from Petitioner McInerny, Popp and other local citizens (C.C. Waggle) protesting the proposed project. The Objectors indicated that they had heard that the proposed agency action was advertised in the Key West Citizen but that the Key West Citizen was not available in their area. 1/ Based on these protest letters, DER afforded Objectors, including Petitioners, a new point of entry into these proceedings. Petitioners Ohi, Popp and McInery timely petitioned for an administrative hearing challenging the proposed agency action. The challenges by Petitioners, based on DER's second point of entry, were timely filed. When the proposed facility becomes operational, it will not cause foul odors or create a nuisance due to aerosol drift based on the design features. (Testimony of Barrone, Mele and Sikorski. The extended aeration facility, as proposed, is the most reliable type of sewage treatment plant for this type operation. (Testimony of Mele). The expected pollutants produced from domestic sewage are BOD, dissolved solids and to a lesser extent heavy metals, nitrates, phosphorus and bacteria. (Testimony of Mele). After treatment, the effluent from this facility is not expected to be either toxic or carcinogenic. (Testimony of Mele). The Class V wells into which the treated effluent would be placed are approximately 500 feet from the nearest shoreline, the Atlantic Ocean. This is the closest distance to any Outstanding Florida Water. As such, the treated effluent will be diluted prior to its discharge into the Atlantic Ocean. (Permit Application, Testimony of Mele). Respondent Peterson has provided Respondent DER reasonable assurances that the proposed facility, upon operation, will not violate the Department's rules relating to air, noise and water quality standards.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent, Department of Environmental Regulation enter a Final Order issuing Respondent, Robert Peterson, doing business as Peterson's Condominiums, a permit to construct a 0.007 MGD wastewater treatment plant with effluent disposal to Dual Class V injection wells with the conditions as set forth in the DER's "intent to issue" dated March 5, 1986. RECOMMENDED this 1st day of December 1986 in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of December 1986.
Findings Of Fact Respondent is a well-drilling contractor, holding WWC License #7015. Ridge Properties, Inc., which is the developer of Sundance Ridge, hired Respondent to construct private water wells on lots as they were developed in preparation for the construction of residences. On December 5, 1991, Respondent prepared a completion report for a well that he constructed at lot 64 of Sundance Ridge. The report indicates that Respondent installed well casing to a depth of 63 feet, which was two feet into "hard brown rock," as described on the report. The report discloses that the static water table was encountered 78 feet below the top of the well casing. As indicated in the report, Respondent sent no cuttings to Petitioner for this well-drilling job. On April 24, 1992, Respondent prepared a completion report for a well that he constructed at lot 51 of Sundance Ridge. The report indicates that Respondent installed well casing to a depth of 67 feet, which was 12 feet into "bedrock," as described on the report. The report discloses that the static water level was encountered 76 feet below the top of the well casing. As indicated in the report, Respondent sent no cuttings to Petitioner for this well-drilling job. There is no completion report for the well that Respondent constructed at lot 62 of Sundance Ridge. However, based on information from the well tag, Respondent constructed this well on December 5, 1991, and its casing depth does not reach the static water level. There is no completion report for another well on Marshal Road that Respondent constructed for Shamrock Construction. However, Petitioner admits that Respondent has corrected any problems that may have existed regarding this well. The three wells that Respondent drilled for Ridge Properties, Inc. produced water with a substantial amount of particulate matter. The presence of particulate matter, which was largely sand, was attributable to the fact that Respondent failed to drive the well casings below the static water level in these three wells. Contrary to his claims, Respondent did not encounter chert in drilling these three wells or driving the casings for them. Chert is a dense consolidated mass of rock, often silica. It is more typically found in Alachua and Marion Counties than it is in the Sorrento area of Lake County, which is the location of these three wells. Respondent never repaired the three wells in question. Repair would have required driving the casing deeper until it extends below the static water table. Respondent never obtained a variance for driving the casings to a depth shallower than the depth of the static water level. On April 1, 1993, Petitioner issued warning notices for the three Sundance Ridge wells, plus the Shamrock Construction well. When Respondent failed to make the necessary repairs within the time allowed by the warning notices, Petitioner issued a Notice of Violation on August 13, 1993. The Notice of Violation alleges that the casings do not extend to or below the static water level in the four wells and that Respondent has received four warning notices over the "recommended repetitive total." The Notice of Violation seeks an administrative penalty of $2000, costs and attorneys' fees of $186.40, and correction of the violations within 30 days of entry of a final order and filing of completion reports within 15 additional days. Paragraph 15 of the Notice of Violation explains: This Notice of Violation (NOV) will become a Final Order of [Petitioner] and may be used in further disciplinary actions against your water well contractor's license if you do not comply with it, or do not timely request a hearing pursuant to Section 373.333, F.S., and Rule 17-531.400, F.A.C., as explained in this Notice of Rights. The Notice of Violation warns: [Petitioner] is not barred by the issuance of this NOV from maintaining an independent action in circuit court with respect to the alleged violations. Ten days after issuing the Notice of Violation, Petitioner issued a Technical Staff Report, which states that Respondent's water well contractor's license had been placed on six months' probation in 1991 and again in 1992. After Respondent completed repairs, the probationary status was removed in October 1992. The Technical Staff Report states that, since October 1992, Petitioner has cited Respondent for six additional violations of Chapter 40C-3. Two violations were reportedly "resolved." According to the report, Respondent "has attempted to correct the violations at the other four sites, but has been unable to drive the well casing any deeper.. The Technical Staff Report acknowledges that a Notice of Violation was mailed Respondent on August 13, 1993, due to noncompliance with the four warning notices. The Technical Staff Report mentions that Respondent has been issued 23 citations for violations of Chapter 40C-3, including 13 for not extending the casing to or below the static water level. The Technical Staff Report recommends that Respondent be placed on six months' suspension, during which time Respondent shall correct the deficient wells. If repaired by the end of the six months' suspension, then Respondent's license would be placed on six months' probation. During the term of probation, Respondent would be required to notify Petitioner's staff 48 hours in advance of beginning construction of any well so that staff could be present to ensure that the wells were lawfully constructed. The Technical Staff Report, which was mailed to Respondent on or about August 23, 1993, gives him an opportunity to request a formal hearing. On September 10, 1993, Respondent demanded a hearing by letter, which Petitioner received September 13. The demand references a "request for a formal hearing on notice of violation and order for corrective action," which is a reference to the Notice of Violation. The demand states that Respondent received notice of Petitioner's action by certified letter on "August 13, 1993." The demand adds: [Petitioner's] determination in the above matter can destroy [Respondent's] ability to earn a living in his profession, cause [Respondent] to lose his current employment, cause to continue extensive physical and emotional stress exerted on the above [Respondent] by [Petitioner], and cause the unjust ruination of his reputation in the community that he resides. Treating the demand for hearing as applicable to the Notice of Violation, but not the Technical Staff Report, Petitioner referred only the Notice of Violation to the Division of Administrative Hearings and immediately proceeded to suspend Respondent's license, based on his failure to file a separate demand for a hearing on the Technical Staff Report.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the St. Johns River Water Management District enter a final order suspending Respondent's license commencing from the effective date of the suspension imposed pursuant to the Technical Staff Report and ending six months thereafter, without regard to whether Respondent has repaired the three Sundance Ridge wells or ever repairs them. ENTERED on April 20, 1994, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on April 20, 1994. COPIES FURNISHED: Henry Dean Executive Director St. Johns River Water Management District Post Office Box 1429 Palatka, FL 32178-1429 Attorney Clare E. Gray St. Johns River Water Management District P.O. Box 1429 Palatka, FL 32178-1429 C. L. Hicks 1935 CR 470 W. Okahumpka, FL 34762
The Issue Whether, on January 14, 1997, the Department of Health (Department or DOH), approved an alternative drainfield system for Plastic Tubing Industries, Inc. (PTI), consisting of a 9- pipe system on an equivalency of one linear foot of PTI's system to two square feet of mineral aggregate or one linear foot of PTI's system to three square feet of mineral aggregate.
Findings Of Fact The Parties Petitioner, Plastic Tubing Industries, Inc. (PTI), formerly Plastic Tubing, Inc., was originally formed in Florida in 1974. PTI manufactures plastic drain pipe and the fittings that accompany such pipe. Many of its products and processes are patented. In conjunction with its business, PTI has developed several alternative drainfield systems that utilize plastic tubing or corrugated pipe in lieu of a standard subsurface system made with mineral aggregate for septic tank drainfields. An alternative drainfield system substitutes pipe, or other materials, for aggregate (gravel or rock) used in traditional systems. Before installation in the State of Florida, PTI was required to obtain approval for its alternative drainfield system from the Department. See Fla. Admin. Code R. 10D-6.049, effective January 3, 1995, amended November 19, 1997, and February 3, 1999; and replaced with Fla. Admin. Code R. 64E- 6.009. The Department was, at all times relevant to this administrative proceeding, the state agency authorized to approve the use of alternative systems (to standard subsurface systems) in the State of Florida. Approvals of alternative systems were based on the Department's analysis of, in part, plans prepared by an engineer registered in the State of Florida and submitted by applicants. See Rule 10D-6.049.1 Septic Tanks and Drainfields "Alternative system" means "any approved onsite sewage treatment and disposal system used in lieu of, including modifications to, a standard subsurface system." Rule 10D- 6.042(3). "Standard subsurface drain field system" means "an onsite sewage system and disposal system drain field consisting of a distribution box or header pipe in a drain trench or absorption bed with all portions of the drain field side walls installed below the elevation of undisturbed native soil (see Figure 3)." Rule 10D-6.042(45). The primary purpose of any on-site septic tank system, and ultimately, the septic tank drainfield, is the storage and dispersal of wastewater until the soil can accept it. In other words, a drainfield is a transmission device that takes water and other liquids from a septic tank to the ground. Liquids leave the septic tank into the drainfield which is designed to store the liquid before letting it flow into the ground or soil. Mineral aggregate provides a conducive medium to spread and temporarily store the effluent. Storage capacity refers to the amount of effluent coming out of a septic tank that will be stored in the aggregate or aggregate alternative, here the pipes, until the ground will accept the effluent. Filtrative surface area refers to the openings (in the pipe or aggregate) that allow the water/effluent to leave the storage area and enter the soil. In the case of mineral aggregate, the openings between the aggregate provide an exit for the water/effluent into the soil. With respect to PTI's pipe product, the water leaves the holes in the pipes and travels through voids created from the ridges and valleys of the pipes and enters the soil. An alternative system is evaluated by how the alternative system compares in function (storage capacity and filtrative surface area) to mineral aggregate. In November 1998, the Department defined "reduction" for the first time to mean any change in the actual bottom area size of the drainfield or a change in the footprint of a drainfield. For example, if a product system is 33-inches wide, it would have a reduction because it is less than 36 inches wide. Prior to November 1998, reduction referred to a reduction in linear feet, rather than total trench area or footprint. Thus, if 80 feet of an alternative product could function as well as a 100-foot trench of aggregate, a reduction of 20 feet would occur. PTI did not ask for a reduction in drainfield linear footage, and in particular, regarding the 9-pipe system. The Approval Process On or about April 21, 1995, PTI submitted a letter to the Department which apparently requested approval "to utilize both the 9-pipe and 13-pipe configurations in lieu of mineral aggregate material in septic tank drainfield systems." (Petitioner Exhibit 2.) This letter is not part of the final hearing record, but is reflected in the Department's May 24, 1995 letter from Paul Booher, P.E., to Fred Atchley, on behalf of PTI.2 (The quoted language is from the May 24, 1995 letter.) In the May 24, 1995, letter, the Department requested PTI to provide additional information to assist the Department in its evaluation of PTI's request. In part, the Department stated that there are three mechanisms that affect the performance of the infiltrative surface, i.e., chemical, biological, and physical, and that "[b]iological, and perhaps other physical (soil size) considerations, affect the performance of drainfield systems." By letter dated July 7, 1995, PTI's engineer, John E. Garlanger, Ph.D., P.E., a principal with Ardaman & Associates, Inc., provided PTI, to the attention of Mr. Atchley, a letter/report which responded to the Department letter of May 24, 1995. Dr. Garlanger stated in part: "As requested, Ardaman & Associates, Inc. has prepared cross-sectional drawings showing the dimensions associated with the installation of a 9- pipe and 13-pipe Rockless Drain Field System (PTI System) in both mound trench and subsurface trench drain field system." In addition to the letter/report, Dr. Garlanger provided a drawing labeled "Installation Guidelines Multi-Pipe Rockless Drain Field System Plastic Tubing Industries, Inc.," File No. 95-104. (Joint Exhibit 1.) The July 7, 1995, drawing depicts the 9-pipe system and 13-pipe system. The 9-pipe system consists of nine four- inch diameter corrugated polyethylene pipes. Four pipes are placed on top of five pipes and one of the four pipes is a distribution pipe. The nine pipes are bundled together, are 8.63 inches in height and 23.25 inches in width, and depicted within a two-foot wide trench. Note 4 of 6 on the drawing indicated that the "ACTUAL WIDTH OF BOTH 9-PIPE AND 13-PIPE SYSTEMS AFTER PLACEMENT IN THE TRENCH IS GREATER THAN SHOWN BY UP TO 10 % DUE TO SPREADING OF THE PIPES WITHIN THE BUNDLES." (The same drawing also illustrates the 13-pipe system with six pipes placed on top of seven pipes and bundled. The 13-pipe system is 8.63 inches in height and 32.375 inches in width and depicted within a three-foot wide trench. Note 4 is also referenced. (Joint Exhibit 1.)) Dr. Garlanger provided six notes to the July 7, 1995 drawing, as follows: 1.) STORAGE VOLUME BENEATH BOTTOM OF 0.75- INCH DIAMETER PERFORATIONS IN DISTRIBUTION PIPE FOR 9-PIPE SYSTEM IS GREATER THAN 1180 in3/ft (5.1 gal/ft) [1190 in3/ft (5.2 gal/ft)] AND FOR 13-PIPE SYSTEM IS GREATER THAN 1690 in3/ft (7.3 gal/ft) [1710 in3/ft (7.4 gal/ft)]. THIS COMPARES WITH A STORAGE VOLUME OF 660 in3/ft (2.8 gal/FT) FOR CONVENTIONAL 2-FOOT WIDE AGGREGATE-FILLED TRENCH AND 1000 in3/ft (4.3 gal/ft) FOR A CONVENTIONAL 3-FOOT WIDE AGGREGATE-FILLED TRENCH. 2.) TOTAL AVAILABLE STORAGE VOLUME WITHIN 9-PIPE SYSTEM IS 1985 in3/ft (8.6 gal/ft) [2070 in3/ft (8.9 gal/ft)] AND WITHIN 13-PIPE SYSTEM IS 2910 in3/ft (12.6 gal/ft) [2980 in3/ft (12.9 gal/ft)]. THIS COMPARES WITH A TOTAL STORAGE VOLUME OF 1185 in3/ft (5.13 gal/ft) [1200 in3/ft (5.2 gal/ft)] FOR 2-FOOT WIDE, 12-INCH DEEP AGGREGATE SYSTEM AND 1790 in3/ft (7.75 gal/ft) [1800 in3/ft (7.8 gal/ft)] FOR A 3-FOOT WIDE, 12-INCH DEEP AGGREGATE SYSTEM. 3.) THE BOTTOM AREA AVAILABLE FOR FILTRATION IS GREATER THAN 160 in2/ft FOR THE 9-PIPE SYSTEM AND GREATER THAN 220 in2/ft FOR THE 13-PIPE SYSTEM. COMPARABLE BOTTOM AREAS FOR AGGREGATE SYSTEMS ARE 100 in2/ft FOR A 2- FOOT TRENCH AND 150 in2/ft FOR A 3-FOOT TRENCH. 4.) ACTUAL WIDTH OF BOTH 9-PIPE AND 13-PIPE SYSTEMS AFTER PLACEMENT IN THE TRENCH IS GREATER THAN SHOWN BY UP TO 10% DUE TO SPREADING OF THE PIPES WITHIN THE BUNDLES. 5.) PERFORATIONS [IN DISTRIBUTION PIPE] ARE SPACED 4" ON CENTER. PERFORATION AREA IS 2.65 in2/LINEAL FOOT. 6.) EITHER OF THE UPPER PIPES IN THE DISTRIBUTION PIPE BUNDLE MAY BE USED FOR THE DISTRIBUTION PIPE. THE LOWER PIPE SHALL NOT BE USED FOR THE DISTRIBUTION PIPE. [THE DISTRIBUTION PIPE SHALL BE MARKED WITH A REFERENCE LINE TO ORIENT THE PERFORATIONS. THE DISTRIBUTION PIPE SHALL BE COUPLED BETWEEN EACH BUNDLE TO PROVIDE A CONTINUOUS LENGTH OF PIPE.] (The language appearing in brackets appears in the revised drawing, Joint Exhibit 2, submitted by PTI with Dr. Garlanger's December 8, 1996, letter, DOH Exhibit 4.) In his July 7, 1995 letter to PTI, Dr. Garlanger, in responding to Mr. Booher's letter of May 24, 1995, stated in part: Explain how the pipe bundles fulfill the requirement for a 12-inch deep drain field? Paragraph 10D-6.056(3)(e) requires the mineral aggregate material have a total depth of at least 12 inches and that the distribution pipe have a minimum of six inches of aggregate under the pipe. The purpose of the aggregate is to provide a highly conductive medium to spread and temporarily store the wastewater above the infiltrative surface between loading cycles. Twelve inches of mineral aggregate in a 2- foot wide trench can store approximately 5.25 gallons of wastewater per foot. Deducting the dead storage below the perforations in the distribution pipe, the total available storage in a conventional 2- foot wide trench drain is 5.13 gallons per foot and in a conventional 3-foot wide trench is 7.75 gallons per foot. The height of the 9-pipe and 13-pipe systems is 8.360 inches. The distance from the bottom of the trench to the bottom of the perforations in the distribution pipe is 4.836 inches. The total available water storage in a 9-pipe system after deducting the dead storage is 8.60 gallons per foot and in a 13-pipe system after making the same deduction is 12.58 gallons per foot. In both cases, the total available storage is greater for the PTI system. [See Note 2 above.] Note that the total available water storage capacity below the bottom of the perforations in the distribution pipe is also greater for the PTI System than for the aggregate system: 5.1 gal/ft for the 9-pipe system compared to 2.8 gal/ft for a conventional 2-foot wide trench and 7.3 gal/ft for the 13-pipe system compared to 4.3 gal/ft for the conventional 3-foot wide trench. [See Note 1 above.] Because the thickness of aggregate below the pipe is less than the minimum requirement of 6 inches, we are concerned about the distribution of the effluent over the infiltrative surface, especially since the sidewalls are such an integral part of the operation of the system. The hydraulic conductivity of both the aggregate system and the bundled pipe system is several orders of magnitude higher than that of the in situ sand that underlies the drain field. In both cases, but certainly for the PTI System, water flowing out of the perforations in the distribution pipe can spread out evenly across the infiltrative surface. The depth to which the water rises above the infiltrative surface depends primarily on the inflow rate and the hydraulic conductivity of the organic mat that forms on the bottom of the trench. Because of the differences in porosity between the two systems, the water increases in depth faster in the aggregate system than in the PIT System. However, the ultimate depth of water for a given inflow rate will be roughly the same for both systems, i.e., when inflow equals outflow. The only difference between the two systems is in the volume of water that is stored in the trench during each loading period; the PTI System stores more. There should be no significant difference in the effect of the sidewalls on the infiltrative capacity of the two systems. The effect of increasing sidewall seepage on the overall hydraulic performance of a drain field system is not large. For a 2-foot wide trench, increasing the sidewall seepage by raising the water depth from 5 to 6 inches increases the peak infiltration rate by less than 7 percent. The corresponding increase for a 3-foot wide trench is less than 5 percent. State the area per lineal foot of bundle that constitutes the infiltrative surface. The surface area at the bottom of the trench that is available for filtration of suspended solids in the effluent is greater than 160 in2/lineal foot for the 9-pipe system and greater than 220 in2/lineal foot for the 13-pipe system. This compares with 100 in2/lineal foot for a 2-foot wide aggregate-filled trench and 150 in2/lineal foot for a 3-foot wide aggregate-filled trench. [See Note 3 above.] (The underlined portions are inquiries made by Mr. Booher. The language in brackets refers to the "Notes" mentioned above.) DOH Exhibit 3 is a copy of Dr. Garlanger's July 7, 1995, letter, which also contains Mr. Booher's comments of August 14, 1995. It is noted that Dr. Garlanger discusses the calculations which appear in Notes 1, 2, and 3, in that portion of Dr. Garlanger's letter/report recited above. Mr. Booher also made notations on the July 7, 1995, drawing, with respect to, among other things, the Notes. Material here, beside Note 3, Mr. Booher wrote "Gravel Shadow? @ .35% open." (Joint Exhibit 1.) Mr. Booher also noted on Dr. Garlanger's July 7, 1995, letter/report "disagree" and other notations with respect to Dr. Garlanger's explanation under the subject discussed in Note 3 above, and under the heading "State the area per lineal foot of bundle that constitutes the infiltrative surface." (Emphasis in original.) (See Finding of Fact 16, p. 13.) On October 15, 1996, Mr. Booher requested additional information from Mr. Atchley, as follows: Per our conference call yesterday please provide the following for approval of the rockless pipe drainfield: A written request. Drawings showing the distribution and void pipe locations. Indicate the pipe bundle configurations. If you intend to use the notes on drawing 95-104 titled "Installation guidelines-Multi-pipe rockless drainfield system" please fully include and explain the calculations, including drawings with the areas calculated shown by shading. Explain comparison calculations. For example, gravel percent voids used, effective gravel depth, percent assumed for gravel shadowing and how determined, percent used for pipe shadowing and how determined. If the distribution pipes are of different material than the void pipe please so indicate. Reference the applicable ASTM standard for all materials. Below item 6, the following handwritten note (by Mr. Booher) appears: "Fred-Don't get optomistic [sic]-we are attempting to define 'gravel equivalent.'" (Joint Exhibit 5.) In response to Mr. Booher's October 15, 1996, request for additional information, on December 8, 1996, Dr. Garlanger provided a two-page letter, and Attachment 1 to Mr. Atchley. Attachment 1 provided "Calculations for Storage Volumes and Infiltration Areas for Multi-Pipe Rockless System and Conventional Gravel Drain." Material here, Attachment 1 contained a summary of Dr. Garlanger's conclusions (and the actual calculations) comparing PTI's multi-pipe system, 9-pipe and 13-pipe, to 24 and 36-inch wide gravel-filled trenches, regarding three parameters: storage volume below holes in the distribution pipe; filtration area; and total storage volume in the system. The specific calculations and illustrations are provided, including "area and volume calculations," in Attachment 1 on pages 1-10. (DOH Exhibit 4 and Joint Exhibit 4.) Dr. Garlanger also provided comparison calculations responding to item 4 in Mr. Booher's October 15, 1996 letter (see Finding of Fact 18) as follows: Explain comparison calculations. For example, gravel percent voids used, effective gravel depth, percent assumed for gravel shadowing and how determined. The comparison calculations are presented in Attachment 1. The gravel porosity was calculated based on a typical dry density for loosely placed FDOT No. 57 stone of 110 pcf and a specific gravity for limestone of 2.8, resulting in a calculated porosity of approximately 35 percent. For a conventional gravel-filled trench, the area available for filtration was calculated as the total area of the gravel times porosity, i.e., the percent assumed for gravel shadowing was 100-35=65 percent. For the multi- pipe rockless drain, the contact between the bottom of each pipe and the ground surface was taken as 2 inches per lineal inch of pipe which provides sufficient bearing area to support the overburden pressure. Computation of equivalent storage in the gravel assumed a minimum of 6 inches of No. 57 stone beneath the invert of the pipe and a distance of 0.83 inches from the invert of the pipe to the bottom of the drain holes. (Emphasis added.) (Mr. Booher's request is underlined before Dr. Garlanger's response.) Dr. Garlanger also provided a drawing labeled "Installation Guidelines Multi-Pipe Rockless Drain Field System Plastic Tubing Industries, Inc.," File No. 95-104. This drawing reflects general revisions of October 11, 1995, and December 6, 1996, to the original drawing dated July 7, 1995, which accompanied Dr. Garlanger's July 7, 1995, letter to Mr. Atchley. See Findings of Fact 14-15. Six "Notes" were presented in the December 6, 1996, drawing revisions, with some changes made to Notes 1, 2, 5, and 6 which do not appear to be material. See Finding of Fact 15. No changes are made to Notes 3 and 4. Material here, Note 3 pertains to "the bottom area available for filtration" and Dr. Garlanger's calculations showing the 9-pipe system comparing more favorably (equal to or greater) to a 24 and 36-inch (two and three feet wide, respectively) wide aggregate (gravel) trench without any changes in response to Mr. Booher's August 14, 1995, comments and October 15, 1996, request for additional "comparison calculation" and explanation regarding "gravel shadowing." (Notes 1-3 are derived from the calculations appearing in Attachment 1, pages 1-9.) Dr. Garlanger's submissions indicated that one linear foot of the 9-pipe system is equal to or greater than three square feet of gravel. Also, the representation that the 9-pipe system fits within a 24-inch trench does not relate to equivalency. See Finding of Fact 36. Dr. Garlanger's December 8, 1996, letter, with Attachment 1, and the revised drawing, were forwarded to Mr. Booher with a cover letter from Mr. Atchley, dated December 11, 1996. Mr. Atchley stated in his letter: Enclosed are the drawings and calculations you requested. The "numbers" add up favorably. I look forward to your response and anticipated approval based on this information. Please notice the difference in volume (total capacity), porosity and filtrative surface area. Based on these calculations we could justify a reduction of up to 40%. However, we do not wish to apply for any reduction at this time. We do ask that the bed installation constraint be removed from our acceptance letter. There seems to be more and more bed type installations even though the FAC 10D-6 clearly states that a trench system is the preferred method. Consequently, we will be requiring that certified installers of our systems employ a method of back filling that will insure against collapse of any part of the system. This method would also have to provide within reason, a guaranty against operating any equipment onto the drain field area until sufficient cover has been established. After 10 to 12 inches of cover has been established we ask them to mark the bed area with stakes and flagging to serve as a warning to other sub-contractors such as the sod installers and the finished grade tractor operator. If there are any questions please call me at (407) 298-5121. (On January 13, 1997, Mr. Atchley also sent Mr. Booher a similar letter, but also included some additional data regarding 1996 sales, including but not limited to average system size per square foot, the number of active installers, installations per month.) On January 14, 1997, Mr. Booher issued the following approval letter to Mr. Atchley: Dear Mr. Atchley: We have reviewed the engineering drawings dated 07/07/95 with revision 2 dated 12/06/96 and data prepared and sealed by Ardaman & Associates dated December 8, 1996, and received in this office on December 16, 1996. Your request for alternative drainfield system approval letters dated December 11, 1996, and January 13, 1997, have also been reviewed. The PTI nine pipe bundle and PTI thirteen pipe bundle Multi-Pipe Rockless Drainfield Systems are hereby approved for use in the State of Florida. We have concerns about the total effective sidewall contact surface area, especially when systems are installed with no fall. We also have concerns regarding the structural integrity of the pipe bundle systems when used in large bed applications. Nevertheless, approval is granted based on the design and recommendations submitted by your professional engineer for which he is solely responsible; the comparative data versus a standard drainfield system; and the satisfactory performance in Florida of similar PTI Multi-Pipe Rockless Drainfield System installations. Except as herein noted, all systems shall be installed in accordance with sections 381.0065-381.0067 Florida Statutes, and all rules in Chapter 10D-6, Florida Administrative Code (FAC). All installations shall be sized and installed meeting all rules in Rule 10D-6, FAC and shall also meet the following conditions: All licensed septic tank contractors who are going to install these systems shall be field instructed by certified employees of PTI on the proper installation and backfilling requirements of the systems prior to installation. Prior to the first installation in each county, contact the local Health Department to provide hands on training for the county health department staff. Both the 9 and 13 pipe bundle systems can be installed in subsurface, filled, or mound trench or bed systems. In bed systems the maximum centerline to centerline spacing of the distribution pipe shall be 36 inches. The distribution piping may be used to house low pressure distribution networks. A copy of the applicable limited warranty shall be provided to each homeowner/builder. Department approval of any alternative system application or any other type system does not guarantee or imply that any individual system installation will perform satisfactorily for a specific period of time. The individual system design engineer or the registered septic tank contractor if an engineer didn't design the system is primarily responsible for determining the best system design to meet specific wastewater treatment and disposal needs and to address the specific property site conditions and limitations. If you have any questions please call us at (904) 488-4070. (Emphasis added.) This letter was accompanied by a facsimile sheet which indicated, in part, that the Department intended to "notify the 67 counties within the week." On January 29, 1997, Mr. Booher authored an Interoffice Memorandum which was issued from John Heber, Chief, On-Site Sewage Program, Mr. Booher's supervisor at the time, to the County Health Department Director/Administrator. (Joint Exhibit 11.) This Interoffice Memorandum provided in part: The PTI 9 pipe and 13 pipe "Multi- Purpose Rockless Drainfield Systems" have both been given alternative systems approval for use in Florida. The systems are to be installed in accordance with drawing file number 95- 104 dated 07/07/95, revision 2 dated 12/06/96, copy attached. Except as hereby noted, systems shall be installed in accordance with sections 381.0065 - 381.0067, Florida Statutes, and all rules in Chapter 10D- 6, Florida Administrative Code (FAC). The following conditions apply: The 9 pipe system shall be rated at 1 linear foot equals 2 square feet of drainfield area. The 13 pipe system shall be rated at 1 linear foot equals 3 square feet of drainfield area. The 9 pipe and 13 pipe bundle systems may be installed in subsurface, filled or mounded trench or bed applications. Dosing will be acceptable when used to overcome a gravity situation. Pressurized systems shall be designed and installed in accordance with Chapter 10D-6, Florida Administrative Code. Please be reminded that certain pressurized dosing systems must be designed by engineers registered in the State of Florida. For designs requiring the use of smaller diameter pipe (either screw joint or glue joint), the 9 pipe and 13 pipe systems distribution pipe shall house the pressurized pipe system. All licensed septic tank contactors who are going to install these systems shall be field instructed by certified employees of PTI on the proper installation and backfilling requirements of the systems prior to installation. Prior to the first installation in each county, contact the local Health Department to provide hands on training for the county health department staff. A copy of the applicable limited warranty shall be provided to each homeowner/builder. Department approval of any alternative system application or an other type system does not guarantee or imply that any individual system installation will perform satisfactorily for a specific period of time. The individual system design engineer (or the registered septic tank contractor if an engineer does not design the system) is primarily responsible for determining the best system design to meet specific wastewater treatment and disposal needs and to address the specific property site conditions and limitations. If you have any questions, please call me or Paul Booher, P.E., at (904) 488-4070, or SC 278-4070. (Emphasis in original.) On March 13, 1998, the Department issued a document entitled "Onsite Sewage Treatment and Disposal Systems Alternative Drainfield Products." This document describes several product names including PTI's product as follows: "PTI 'NPRDS' 9 ea.- 2-tier 13 ea.-2-tier." The engineer of record is listed as Ardaman and Associates, and the type of permit issued is referred to as "Alternative Status" along the same line as "PTI 'MPRDS"" and "No reduction in area" along the line "9 ea.-2 tier." Mr. Everson may have seen this chart prior to seeing the November 27, 2000, chart mentioned below. But, the mention of no reduction would have been consistent with his understanding that reduction referred to a reduction in linear feet and PTI did not request a reduction in linear feet. On November 27, 2000, an employee of the Department prepared a similar chart which included a description of product names and included the same PTI product. However, under the heading "Type of Permit Issued and Sizing Criteria," the following language appears: PRODUCT NAME DESCRIPTION SUBMISSION DATE APPROVAL DATE CPHU NOTIFICATION DATE ENGINEER OF RECORD TYPE OF PERMIT ISSUED and SIZING CRITERIA *** *** *** *** *** *** PTI "MPRDS" 9 ea.-2 tier 12/06/96 12/14/96 01/15/97 Ardaman and Associates 1 linear foot of product = 2 sq ft of mineral aggregate 13 ea.-2 tier 1 linear foot of product = 3 sq ft of mineral aggregate On February 26, 2001, the Department issued a similar chart which contained the same information regarding PTI as the November 27, 2000, chart, which appears above. All of the charts were designed to provide guidance to the local health departments regarding the alternative drainfield systems approved in the State of Florida and the ratings, e.g., equivalency, assigned to each. See Findings of Fact 26-28. The November 27, 2000, and February 26, 2001, charts described PTI's 9-pipe system approved by the Department on a one-to-two square foot equivalency to mineral aggregate. In late 2000, while working with a Department representative on an industry presentation, Mr. Everson, vice president of PTI, discovered the November 27, 2000, chart mentioned above. Mr. Everson believed this representation to be incorrect and reported it to Michael Maroschak, the president of PTI. Discussions transpired between representatives of PTI and the Department. Ultimately, the Department implicitly decided that the Department had approved PTI's 9-pipe system, consistent with these charts. On March 18, 2003, the Department advised PTI in writing that it "stands by its previous decisions on the matter." PTI then filed its Petition challenging this agency action. Resolution of the Controversy PTI has developed various pipe configurations to serve as alternative drainfield systems. PTI requested the Department to approve its 9-pipe and 13-pipe bundle Multi-Pipe Rockless Drainfield Systems in or around April of 1995. The 9-pipe system is the subject of this proceeding. As early as May 1995, the Department understood that PTI requested approval to utilize both PTI's 9-pipe and 13-pipe configurations in lieu of mineral aggregate material in septic tank drainfield systems. Over the course of over a year and a half, in support of its approval request and in response to questions posed by the Department, PTI, by and through Dr. Garlanger, PTI's registered Professional Engineer, submitted an engineering drawing (signed and sealed), as revised, and specific specifications and calculations to indicate that one linear foot of the 9-pipe system compared favorably, on paper, with a conventional three-foot wide, 12-inch deep (three square feet) aggregate system. The Department raised questions regarding PTI's proposal to which PTI, and specifically Dr. Garlanger, responded. During the approval process, the Department raised issues related to "gravel shadowing" and Dr. Garlanger's calculations regarding the "bottom area available for filtration." See, e.g., (DOH Exhibit 3, p. 2; Joint Exhibit 1.) Dr. Garlanger responded to these inquiries. See, e.g., (DOH Exhibits 3 and 4; Joint Exhibits 1 and 2.) Dr. Garlanger has been a registered Professional Engineer in the State of Florida since 1974 and has served as vice-president for Ardaman & Associates and chief engineer since 1975. He was accepted as an expert in the areas of hydrology, hydro-geology, and geotechnical engineering. Dr. Garlanger prepared and signed and sealed the engineering drawings and all comparative data submitted by PTI with its approval request. Dr. Garlanger's engineering drawings, including the "Notes" as revised, and calculations indicated favorable (equal to or greater than) comparisons of one linear foot of PTI's 9- pipe system with two and three square feet of aggregate (gravel). The fact that the 9-pipe system fits within a 24-inch or two-foot wide trench does not affect its equivalency to three square feet of aggregate (gravel) with respect to the three parameters in Notes 1-3 and in the calculations referred to in Attachment 1. See Finding of Fact 22. During the final hearing, the Department, consistent with written comments made during the approval process, suggested that the "gravel shadowing" or "a shadowing technique" that occurs with alternative systems to compare their infiltrative surface area (bottom area available for filtration) to aggregate, has never been used by the Department "as an evaluator." Mr. Booher3 explained that this technique "reduces the size of the actual area, the length times the width of the drain field [sic], by a cross sectional area of interrupting gravel, saying the actual absorption area is reduced as a result of the gravel that is sitting on the infiltrative surface and reduces the total area, absorptive area, to about one-third of the actual total area. And that's what [he] disagree[s] with." Mr. Booher also stated that he would not approve a 9- pipe system at a three square-foot equivalent because of biological loading. He explained his position in some detail. In the May 24, 1995, letter to PTI, the Department stated that it was "interested in verifying that the drainfield environment will support aerobic treatment over the long term." This question expressed the Department's concern regarding "biological loading and problems that can develop. Dr. Garlanger responded to this inquiry and his explanation was accepted by Mr. Booher "because everyone claims it." See (DOH Exhibit 3; Petitioner Exhibit 2, p. 3.) The Department also contended that it did not approve PTI's request because PTI did not ask for a "reduction." Mr. Booher explained during the final hearing that Dr. Garlanger's drawings (Joint Exhibits 1 and 2) referred to "the 9-inch pipe and the 24-inch trench and the 13-inch pipe and the 36-inch trench because that note 4 says that if you put them in accordance with this document, then you will be a full 24-inch, 9-inch, 24-inch equivalent and 36-inch, 13-pipe equivalent" and that he "needed to restrict [his] review to no reduction in area." Mr. Booher also commented on Note 3, for which he disagreed during the approval process. It did not matter to Mr. Booher that Dr. Garlanger used "the shadow masking technique because [PTI] was not asking for any reduction." He considered Note 3 as "just more information, as opposed to an evaluation for determination of the sizing." In other words, according to Mr. Booher, the Department's approval letter of January 14, 1997, did not address the idea of using the 9-pipe system in a 36-inch trench" because PTI "asked for no reduction." 4 The Department's position is also based, in part, on Mr. Atchley's cover letters of December 11, 1996, and January 13, 1997, in which Mr. Atchley, referring to Dr. Garlanger's drawings and calculations, that "[b]ased on these calculations we could justify a reduction of up to 40%. However, we do not wish to apply for any reduction at this time." The weight of the evidence indicates that the reference to the "40%" pertains to the 13-pipe system, which would have been a large reduction, and not the 9-pipe system. The 9-pipe system qualified for only a minimal reduction which was not requested. Also, PTI did not request a reduction in linear feet. There is a conflict in the evidence regarding what PTI requested. Mr. Atchley opines that PTI did not request approval of the 9-pipe system such that one linear foot of product is equivalent to three square feet of aggregate. Mr. Booher agrees and also opines that the Department did not approve this configuration. Mr. Everson takes the opposite view as does Dr. Garlanger. The conflict is resolved in PTI's favor. While Mr. Booher's comments appearing of record, regarding PTI's request for approval and the Department's approval, and which were explained more fully during the final hearing, are credible, the fact remains that the Department granted approval "based on the design and recommendations submitted by [PTI's] professional engineer for which he is solely responsible; the comparative data versus a standard drainfield system; and the satisfactory performance in Florida of similar PTI Multi-Pipe Rockless Drainfield System installations." (Joint Exhibit 6.) The Department did not take exception in its approval letter, as it did during the final hearing, to PTI's submissions by Dr. Garlanger, PTI's professional engineer.5 Dr. Garlanger's submissions and his explanation of his submissions are credible. The weight of the evidence indicates that PTI requested approval for and the Department approved PTI's 9-pipe system on an equivalency of one linear foot of product to three square feet of mineral aggregate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final order concluding that Plastic Tubing Industries, Inc.'s 9-pipe bundle Multi-Pipe Rockless Drainfield System, such that one linear foot of PTI's 9-pipe system is equivalent to three square feet of mineral aggregate, is approved for use in the State of Florida. DONE AND ENTERED this 11th day of December, 2003, in Tallahassee, Leon County, Florida. S CHARLES A. STAMPELOS 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 11th day of December, 2003.
The Issue The issue in this case is whether Petitioner's Class "D" Watchman, Guard or Patrolman's License and Class "G" statewide gun permit should be revoked based upon the allegations contained in the Administrative Complaint.
Findings Of Fact At all times material hereto, Respondent has been the holder of license numbers Dal-06l98 and GOO-25l67 issued by the Division of Licensing, Department of State. During the summer of 1988, Respondent was employed by Wells Fargo as a security guard. He had been working for Wells Fargo for approximately four years. Part of his duties included serving as a "messenger guard" on armored trucks. On June 10, 1988, Respondent was serving as a "messenger guard" on a Wells Fargo armored truck in Dade County, Florida. In that role, he was required to deliver and pick up money from various customers. Carlos Diaz was the driver of the truck that day. Respondent had been assigned to this route for approximately one year and he was more familiar with the route than Carlos Diaz was. During a stop at a Western Union Check Cashing Service, Respondent was robbed of approximately two hundred thousand dollars. The robbery took place as Respondent exited the - truck. A car approached him and the occupant pulled a gun on Respondent and forced him to turn over the money. There are indications that there was some internal complicity at Wells Fargo with the robbery. On the day of the incident, the keys to the armored truck typically used for this route were not in the truck where they were usually kept. In addition, the spare key that was supposed to be kept in the office could not be located. As a result, Respondent and his driver, Diaz, were required to take an older truck which did not have a radio. Therefore, they were not in contact with the police or the Wells Fargo office at the time the robbery took place. While Wells Fargo has a fleet of approximately thirty trucks, all but two of them have radios. The truck used on the day of the robbery was one of the two without a radio and was the only truck available for use as a substitute. Several of the usual procedures required by Wells Fargo for deliveries were not followed at the stop where the robbery occurred. Wells Fargo procedures require the trucks to be parked so that the door to the cargo area opens towards the building to which deliveries are made and away from the street and traffic. This procedure was not followed and Respondent, as the messenger guard, was required to exit the truck into the parking lot on the side of the truck oppositite the delivery point entrance. In addition, Wells Fargo policies require a guard to pull his gun from the holster when exiting the truck with money. In this case, the evidence established that the Respondent's gun was either in his holster or in his waistband when the robbery took place. Subsequent to the robbery, the driver of the armored truck, Carlos Diaz, confessed to being a conspirator in the robbery. He also implicated Respondent. Diaz had initially denied any involvement in the robbery. However, he subsequently signed a statement confessing his role and accusing Respondent of coordinating the crime. Diaz was apparently never arrested for his role in the robbery. However, as noted below, no evidence was presented to explain why Diaz was not charged. Carlos Diaz did not testify at the hearing. Several sworn statements given by Diaz and a deposition of him were introduced into evidence. As noted above, Diaz originally denied any involvement with the robbery. However, he subsequently claimed that Respondent approached him about participating in the crime. Diaz said that he was instructed by Respondent to provide a misleading description of the getaway car and otherwise deny any knowledge of the event. In return, he was to receive a portion of the proceeds of the robbery. Diaz originally informed investigators that the robbers were driving a dark, late- model sedan with dark, tinted windows. Later, after he admitted his involvement, he told investigators that the robbers were driving a light colored, older car. This later description is consistent with the description of the getaway car provided by at least one other eyewitness. Respondent advised the investigators that the robbers were driving a relatively new, dark colored car. This description was consistent with the initial description provided by Diaz, but inconsistent with Diaz' later description provided after he confessed and the descsription provided by another eyewitness to the incident. One uninvolved eyewitness who observed the robbery from a distance of approximately 200 feet confirmed that the getaway vehicle was a lighter colored vehicle that was several years old. The witness is director of security at a local community college who is trained to be observant. His testimony is credited. The witness also commented on the rather casual nature in which the money was transferred to the getaway vehicle. At the time, he did not realize that a robbery had taken place. The F.B.I. agent who interviewed Respondent and attempted to obtain a description of the suspect noted that the Respondent provided only a general description of the alleged perpetrator. This F.B.I. agent did not feel comfortable with the composite that was produced as a result of his discussions with Respondent. Respondent was arrested on charges of conspiracy and grand theft. On January 22, 1990, Respondent entered into a plea agreement whereby he entered a plea of nolo contendere to the charges, adjudication was withheld and he was placed on probation for a period of eighteen months. While Respondent suggests that Diaz implicated him in the crime in order to obtain favorable treatment, no competent evidence was presented to establish that Diaz had an agreement with the police or state attorney. The evidence did not present sufficient explanation as to why Diaz would unjustifiably implicate Respondent.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner enter a Final Order revoking Respondent's Class "D" Security Guard license and Class "G" gun permit. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 1st day of October, 1990. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of October, 1990. APPENDIX TO RECOMMENDED ORDER CASE NO. 90-1862 The Respondent has submitted a Proposed Recommended Order. The following constitutes my rulings on the proposed findings of fact submitted by the Respondent. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. Adopted in substance in Findings of Fact 3 and 15. Adopted in relevant part in Findings of Fact 12. Rejected as irrelevant. A related subject is addressed in Finding of Fact 9. The first two sentences are adopted in substance in Findings of Fact 9. The third sentence is rejected as constituting argument rather than a finding of fact. Adopted in relevant part in Findings of Fact 15. Adopted in substance in Findings of Fact Adopted in substance in Findings of Fact 6 and 7. Adopted in substance in Findings of Fact Adopted in relevant part in Findings of Fact 3. Rejected as hearsay that was not corroborated by competent substantial evidence. The only testimony on this issue was the deposition testimony of Carlos Diaz. Rejected as not established by competent substantial evidence. See ruling on proposed Finding of Fact 10 above. Rejected as not established by competent substantial evidence. The only specific evidence of conversations between Respondent and Carlos Diaz is the uncorroborated deposition testimony of Carlos Diaz. Rejected as irrelevant. 14.-17. Rejected as not established by competent substantial evidence. See ruling on proposed Finding of Fact 10 above. Adopted in relevant part in Findings of Fact 13. The first sentence is adopted in relevant part in Findings of Fact 10. The remainder is rejected as hearsay that it was not corroborated by competent substantial evidence. Adopted in substance in Findings of Fact 12. Rejected as irrelevant. Rejected as not established by competent substantial evidence. The only evidence of conversations between Respondent and Carlos Diaz is the uncorroborated deposition testimony of Carlos Diaz. Rejected as not established by competent substantial evidence. COPIES FURNISHED: Anthony J. Scremin, Esquire 37 N.E. 26th Street Miami, Florida 33137 Ann Cowles-Fewox, Esquire Henry Cawthon, Esquire Department of State, Division of Licensing The Capitol, MS #4 Tallahassee, Florida Honorable Jim Smith Secretary of State The Capitol 32399-0250 Tallahassee, Florida 32399-0250 Ken Rouse General Counsel Department of State The Capitol, LL-10 Tallahassee, Florida 32399-0250
The Issue The issue to be determined is whether Respondents, Anthony Crescenzo and Johns by John II, Inc. (collectively, Respondents), violated Florida Administrative Code Rule 64E-6.022(1)(g), (k), (l)2., and (p), and if so, what penalty should be imposed.
Findings Of Fact The Department is the state agency charged with the licensing and regulation of the standards for onsite sewage treatment and disposal systems (OSTDS), pursuant to chapters 381 and 489, Florida Statutes, and Florida Administrative Code Chapter 64E-6. Respondent Anthony Crescenzo is a resident of the State of Florida and holds DOH registration number SR0061541, to provide septic tank contracting services in Florida. Mr. Crescenzo owns and operates Johns by John II, Inc. (Johns by John), a Florida corporation located at 6252 Commercial Way, Weeki Wachee, Hernando County, Florida. Johns by John is authorized by the Department to provide septic tank services under Business Authorization number SA0041171. Johns by John provides OSTDS services pursuant to rules adopted by the Department and under the license, registration, and direction of Anthony Crescenzo. Winston and Dianne Wescott reside at 2245 Ring Road in Spring Hill, Florida, and have done so for approximately 19 years. Sometime in April 2014, Mr. Wescott noticed a depression and some saturated soil in his yard, near his septic tank. Mr. Wescott was concerned because of prior sink hole activity. After some telephone calls and an inspection by the insurance adjuster, Mr. Winston called Johns by John. On or about Saturday, June 7, 2014, a worker from Johns by John came to the residence and pumped out the drainfield. At that time, waste was coming out of the ground but was not backing up into the home. After the pump-out was complete, Mr. Wescott showed the technician the depressed area, and an exposed area that revealed that the outlet pipe to the septic system’s distribution box (D-box) was defective. The area had been exposed by either the insurance adjuster or the homeowner before the technician arrived. The technician telephoned Mr. Crescenzo, who advised that he would come out the following Monday or Tuesday to inspect the system and see what additional repairs were necessary. Mr. Wescott paid $205.72 for the pump-out of the drainfield. On Wednesday, June 11, 2014, Mr. Crescenzo met with Mr. Wescott to assess what repairs were necessary. When he arrived, the homeowner had already dug around the area, leaving the tank and the D-box at least partially exposed. Mr. Crescenzo advised that a new drainfield might be necessary, but did not state that it was absolutely required. He also explained that the repair would require a permit, and that they would do what they could to repair, as opposed to replace, the existing system. Mr. Crescenzo also explained that because of the need to obtain a permit, it might be four to six weeks before the job was completed. Mr. Crescenzo prepared, and Mr. Wescott signed, a Work Order/Proposed Drainfield Estimate form. Under “Job Description,” the following handwritten notation was provided: D-box collapsed down [illegible] point may have to replace entire system $2,500-$3,500. System will need to go in the front due to site conditions 4 bedroom house deposit required $1,000. The preprinted text on the form provided the following statements in bold-faced type: * NOT RESPONSIBLE FOR SPRINKLERS, WIRES, BROKEN PIPES, YARD, SOD OR DRIVEWAY DAMAGEDeposits are non-refundable. The form also provided for a 10-year warranty of any work performed. Although the language of the form is not clear, Mr. Crescenzo testified credibly that the warranty was applicable to repairs of the existing system as well as to replacement of the system. While the maximum the homeowner might have to pay is clearly indicated on the form, the costs of a repair short of replacement is not listed. Mr. Crescenzo testified that a $1,000 deposit is required for any job requiring a permit, as the permit itself is $300, and that he told the homeowner that he would not know the extent of the repair needed until he started the work. Mr. Wescott signed the estimate. Despite the language on the estimate that a new drainfield may be needed, Mr. Wescott understood that his drainfield would be replaced. While he admits signing it, he did not recall seeing the statement that deposits are non-refundable, notwithstanding that it is printed in bold type. His understanding appears to be based, in part, on a discussion between Mr. Wescott and Mr. Crescenzo about the continued vitality of the D-box. Mr. Wescott understood Mr. Crescenzo to say that the life of the septic system was approximately 19 years (the age of his home), and that if the drainfield was not replaced, the Wescotts would in all likelihood be calling him back in a matter of months to replace it because it was nearing the end of its expected life-span. He also understood Mr. Crescenzo to say that the D-box was obsolete and would not be replaced when the drainfield was replaced. Mr. Crescenzo, on the other hand, testified that he always maintained that they would try to repair the existing drainfield but may have to replace it. In the event that the system was replaced, D-boxes are no longer used and the existing one would not be replaced. Mr. Crescenzo denied stating that the life of a drainfield is 19 years, stating that drainfields do not have a standard life expectancy.1/ Mr. Crescenzo also emphasized that the work performed, whether a repair to the existing drainfield or a replacement, was subject to a 10-year warranty, thus making any statement that the company would just have to come back in a few months nonsensical. Mr. Crescenzo’s testimony is credited. Mr. Crescenzo applied for a permit on June 18, 2014, which costs $300. The permit application was to repair or replace the distribution box, not to replace the drainfield, and noted that the D-Box had collapsed. Mr. Crescenzo stated on the application that it may be possible to fix the D-Box and remove roots. The permit was issued for OSTDS repair on June 20, 2014. According to Stephen Kataro, an engineer for the septic tank program for Hernando County who approved the application and inspected the repair, the permit gave the option to replace the drainfield if necessary, based upon what was found during the repair. This approval is consistent with Department policy. On approximately July 3, 2014, Jeremiah Blake, a technician for Johns by John, went to the Wescott home to work on the septic system. Mr. Blake drove a Johns by John truck equipped with the standard equipment to install a drainfield. When he arrived at the home, the system was already uncovered. Mr. Blake discussed the repairs with Mr. Wescott, stating that he could do the drainfield or fix the D-Box. He determined that replacement of the outlet pipe leading to the D-Box addressed the problem, and that there was no need to replace the drainfield, as all drains were taking water. Mr. Blake completed the repair and used Mr. Wescott’s garden hose with a jet-spray nozzle to spray inside the D-Box and clean out the lines. There is an alternative repair method referred to as “jetting” that requires a separate permit that Respondents did not obtain. Jetting requires specialized equipment that Respondents do not own. The unrebutted testimony of both Mr. Wescott and Mr. Blake is that Mr. Blake used a simple garden hose to clear the lines. He is familiar with what the Department refers to as jetting, but has never operated jetting equipment. He uses the term “jetting” because it is an easier way to describe what he does with a simple garden hose to clear the D-Box of sand. When Mr. Blake replaced the pipe leading to the D-Box, he broke sprinkler lines in the area. Sprinkler lines are often, if not always, damaged in OSTDS repairs. Respondents had arranged the day before for a timed inspection, for which they paid an additional fee. The purpose of a timed inspection is to be able to complete the job and have it inspected as soon as it is finished. Mr. Kataro came out to the property at approximately 9:00 a.m., inspected the work performed, determined that it met permit requirements to restore function, and approved it.2/ Mr. Kataro left the site before Mr. Blake covered the system, consistent with standard practice. While Mr. Wescott was present when Mr. Kataro arrived to inspect the work, there was no testimony to indicate Mr. Wescott advised the inspector that he was unhappy with the scope of work performed. Mr. Blake had a backhoe on the premises for use in covering the area. He testified that he covered the system, including the broken sprinkler pipes, and that he always does so and then notifies the homeowner about the need to fix the sprinkler pipes. Both Mr. Blake and Mr. Wescott testified that Mr. Wescott asked Mr. Blake to remove some sod for him nearby, and paid him cash for doing so. According to Mr. Blake, Mr. Wescott seemed satisfied at this point. It seems inconceivable that Mr. Wescott would be willing to pay additional funds for Mr. Blake to remove sod if he had not covered the system he was supposed to cover and if he was unhappy with the work (or lack of work) performed, and yet not say anything to Mr. Blake about covering the completed repair. Mr. Wescott expected that since the drainfield was not replaced, he would receive some portion of the $1,000 he paid back. Had he realized that the repair would cost that much, he would have gotten estimates from other contractors. He viewed replacing the drainfield as preventative maintenance. Based on this belief, after Mr. Blake left the premises, Mr. Wescott called Mr. Crescenzo and asked about a refund. He did not complain, however, about the system not being covered. Mr. Crescenzo informed him that there would be no refund, as the work order clearly indicates that deposits are non-refundable. The Wescotts called the Johns by John office to get an itemized receipt for insurance purposes. There was some delay in receiving a receipt, so they went to the office to obtain it in person. Initially, they were given a receipt stating that the D- box had been replaced. When they questioned this and told the person working in the office that the D-box had not been replaced, she made some phone calls to verify the work performed. The office worker prepared a new receipt while speaking to someone, presumably Jeremiah Blake, on the phone. The new receipt stated, “connected tank to distribution box. Leveled D-Box to drainfield. Jetted drainfield lines.” The change in the description appears to have occurred more because the person working in the office misunderstood the scope of work performed, rather than any nefarious intent to defraud. Further, the reference to jetting was consistent with both Mr. Blake and Mr. Crescenzo’s shorthand notation for cleaning the line with the garden hose, as opposed to the alternative repair method requiring additional permitting. As noted in paragraph 16, the sprinkler lines were broken during the repairs. Mr. Wescott replaced the broken pipes, and placed bricks underneath them to hold them in place. He was still unhappy about not having a new drainfield in place, and felt that he had been defrauded. On August 4, 2014, Mr. Wescott filed a complaint with Albert Gray, the Environmental Manager at the Department. At the very end of his two-page letter, Mr. Wescott stated that the broken irrigation pipes have been repaired and the hole is still wide open with the tank cover exposed. The Department does not regulate the prices to be charged for repairs or installation of new systems: that is between the contractor and the homeowner. There is more involved to complete the job than the time that the workman is on the premises actually performing the repair. For example, in addition to the cost of the permit application, additional time is necessary to perform a site evaluation and soil test. Whether or not the drainfield must be replaced, the materials must be available to install should it be necessary, as well as the skilled workman and equipment (truck, backhoe, etc.). Further, it is clear that, had Respondents installed a new drainfield, the cost would have been much higher than what the Wescotts actually paid, not only to pay for the drainfield, but also to replace a large section of sod and a larger portion of the sprinkler system. Regardless of whether a new drainfield is installed, contractors are required to cover the OSTDS when they work on it. As a result of the Wescott’s complaint, Inspector Kataro went back out to the Wescott home to inspect the site. He found that the D-Box was lying open and exposed, with no earth covering the system. He took pictures of the area, which were admitted into evidence as Petitioner’s Exhibits J and K. The pictures show two exposed sprinkler pipes, supported at one end by bricks. One picture shows a bucket positioned over the distribution box, while the other shows the box sealed but not covered. Mr. Kataro testified that the pictures look similar to what he saw when he inspected the property after the repair was completed in July 2014. However, he could not say whether the sprinkler system pipes were broken before, or whether the bricks supporting the pipes were there previously. The testimony is clear that, after the job was inspected, Mr. Wescott made repairs to the sprinkler system that would require the area to be uncovered and Mr. Wescott acknowledged that he placed the bricks under the sprinkler pipes. Mr. Kataro recalled that Mr. Blake had a backhoe on the premises at the time of repair, but Mr. Kataro left the site before the area would have been covered. There is credible testimony that Mr. Blake covered the area and credible testimony that he did not. Other evidence presented is more consistent with a finding that the area was covered, at least minimally. The equipment for covering the area was by all accounts on site, and Mr. Blake used that equipment to remove sod for Mr. Wescott. It makes little sense for him to use the equipment to remove the sod but not use it for covering the D-Box and surrounding area. Moreover, had Mr. Blake covered the area, it would have to be uncovered to fix the sprinkler pipes. The Department did not prove by clear and convincing evidence that Mr. Blake, as an agent of Respondents, failed to cover the D-box. Respondent Crescenzo happened to be at the Department on August 14, 2014, picking up permits when he learned of the complaint from Mr. Wescott. He was very upset about the complaint and immediately wrote a response while still at the Department. In his response, he denied stating that the drain field would definitely be replaced, and emphasized that by repairing the pipe leading to the D-Box the homeowner saved a substantial amount of money, including not only the cost of installing the drain field, but the re-sodding of his yard and more substantial repair of his sprinkler system. Although clearly unhappy about the complaint, Respondent Crescenzo stated, “If the homeowner wants the system just replaced they should have said that at the time of the job. Or we could still do it if they insist for the original agreed price.” Mr. Wescott has not elected to accept Respondents’ offer. In his response, Crescenzo also referred to “jetting,” but used it in the same informal manner as Mr. Blake. His informal reference did not change the unrebutted testimony regarding the scope of work performed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a Final Order dismissing the Administrative Complaint. DONE AND ENTERED this 21st day of May, 2015, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of May, 2015.
Findings Of Fact On October 15, 1982, Hal Thomas Reid Associates applied for a septic tank permit to serve a 16-room motel. On February 2, 1983, this application was amended to a 5,800 gallon septic tank to serve a 32-unit condominium and office. The lot on which this drain field is to be located is 70 feet by 100 feet. When the application was filed, the lot was inspected by the Citrus County Health Department. The elevation of the land averaged 2.5 to 2.9 feet above mean sea level. The 10-year flood plane in this area is 4.9 feet. Occasional high tides inundate this area; however, the water drains off rapidly and no one testified that water ever remained standing as long as seven consecutive days. Usually the water drains off in less than 24 hours. On March 1, 1983, an extremely high tide flooded this area and roads in the vicinity to a depth of approximately one foot. This water remained on the site less than 24 hours. The site is not located adjacent to state waters, is not an area designated as wetlands, and is without the dredge and fill permitting jurisdiction of the United States Army Corps of Engineers and the Florida Department of Environmental Regulation (Exhibits 20 and 21). By adding five feet of fill to the site, the bottom of the gravel below the drain pipes will be above the 10-year flood plane. The drain field capacity is adequate to handle the flow from 33 bathrooms of residential units. In approving this permit, the Citrus County Health Department used the 150 gallons per day discharge for residential units rather than the 100 gallons per day discharge from a motel unit. The water table at this location is two feet above mean sea level. This is determined by the elevation reached at high tides for 14 consecutive days. As a condition to Citrus County withdrawing as an intervenor in these proceedings, Applicant agrees: To revegetate and restore any alleged wetlands affected by the permit to a like or similar condition; To install three shallow draft monitor wells around the drain field towards the wetlands area adjacent to the site and towards Woods 'n Waters subdivision, establish an existing level of bacteria count prior to the activation of the septic tank, and to monitor said wells through the Citrus County Health Department on a quarterly basis; and In the event any monitor wells shall test at an unsatisfactory level, Applicant will forthwith correct this condition to the satis- faction of the Citrus County Health Department. This application meets all of the code requirements of Chapter 10D-6, Florida Administrative Code.
The Issue The issue is whether Respondent violated Sections 455.227(1)(a) and 471.033(1)(g), Florida Statutes.
Findings Of Fact Mr. Maples is a licensed professional engineer in the State of Florida. He holds license no. PE 10214, and he practices engineering in the Panama City, Florida, area. During all times pertinent Mr. Maples held an active license and practiced pursuant to it. FEMC is charged with providing administrative, investigative, and prosecutorial services to the Board pursuant to Section 471.038, Florida Statutes. The Board exists pursuant to Section 471.007, Florida Statutes, and is authorized to discipline engineers under its authority by Section 455.225, Florida Statutes. Mr. Maples signed and sealed three pages of sprinkler system plans for the Wellness Center at Gulf Coast Community College (Wellness Center), located in Panama City, Florida. These plans were admitted as Petitioner's Exhibit No. 2. No date can be observed on the seal on Petitioner's Exhibit No. 2. It either is illegible or a date was never placed upon it. Hydraulic calculations, which use drawings as a source document, and which appear to coincide with Petitioner's Exhibit No. 2, were dated November 15, 2001. It is deduced, therefore, that Petitioner's Exhibit No. 2 was drawn on or about November 15, 2001. Petitioner filed an Administrative Complaint against Respondent on April 1, 2005. The Administrative Complaint alleged that the plans and calculations for the Wellness Center demonstrated negligence in the practice of engineering. That charge resulted in an final hearing conducted by Administrative Law Judge Stephen Dean on August 11, 2005. That case number was DOAH Case No. 05-2049PL. On October 13, 2005, Judge Dean recommended that the Complaint be dismissed. One of the allegations of negligence in 05-2049PL, related to a charge that inadequate water would be supplied to the hydraulically most demanding (HMD) area in the event of a fire. It was alleged, and proof was elicited, that a single 1 and 1/4-inch pipe traveling from a riser, across the men's shower area to the women's shower area, would be insufficient. This pipe is identified on Petitioner's Exhibit No. 2 as a line between Node 45 and Node 25. This pipe leads to a "T" intersection and further piping carries water, when activated, to the women's shower area. The matter of whether adequate water would be supplied to the HMD devolved into whether the plans called for one 61- foot long, 1 and 1/4-inch diameter pipe, or two 61-foot long, 1 and 1/4-inch diameter pipes. Because there was no pump provided on the drawings, and in fact there was no plan to install a pump, two 61-foot long, 1 and 1/4-inch diameter pipes were necessary to provide sufficient water in case of fire. As was illuminated in Case No. 05-2049PL, calculations were made, based on the drawings, in order to ensure that the HMD area will receive 1500 square feet of coverage per sprinkler head required by the contractor. The coverage required by the contractor exceeds that required by National Fire Protection Association-13 standards. HMD calculations are made at a point most remote from the source of water. The hydraulic calculations are produced through the use of a commercially produced computer program. Calculations from Case No. 05-2049PL became Petitioner's Exhibit No. 3 in this case. At the hearing in Case No. 05-2049PL, the allegation that the fire sprinkler plans signed and sealed by Mr. Maples would not provide adequate water pressure to the HMD area was rejected by Judge Dean. This is because Mr. Maples claimed that the plans, when viewed in light of the calculations, actually depicted two 61-foot long pipes, 1 and 1/4-inch and Judge Dean, while determining that the depiction was inadequate for that purpose, found in essence that adequate water would be provided to the HMD. Mr. Maples works closely with Chris Thomas, a sprinkler contractor whose license does not permit him to design a fire suppression system that consists of more than 49 heads. Their working arrangement is such that it would be expected that Mr. Thomas would understand Mr. Maples' drawings even if they were not as complete as they would be if the drawings were made for a contractor other than Mr. Thomas. In fact, Mr. Thomas participated in the production of the drawings signed and sealed by Mr. Maples. More than one set of drawings were used for the Wellness Center project. The project came under the jurisdiction of the Florida Department of Education. That agency approved the plans and the Florida State Fire Marshal approved the plans, although it is not certain that the plans those agencies approved were Petitioner's Exhibit No. 2. There were errors in the data entry on the hydraulic calculations. The building was completed prior to the time Case No. 05-2049PL was heard on August 11, 2005. Using the plans drawn by Mr. Maples, Mr. Thomas's foremen for the Wellness Center installed a single pipe between Node 45 and Node 25. On a weekend subsequent to the hearing in Case No. 05-2049PL, Mr. Thomas went to the Wellness Center and discovered that only one 61-foot long, 1 and 1/4-inch diameter pipe had been installed in the area represented to be between Node 45 and Node 25. Mr. Thomas immediately installed a second 61-foot long, 1 and 1/4-inch diameter pipe. Mr. Maples never went to the site and, accordingly, was unaware at the time he testified in Case No. 05-2049PL, that only one pipe had been installed. The Administrative Complaint lists five statements made by Mr. Maples in Case No. 05-2049PL that are alleged to express "an opinion publicly on an engineering subject without being informed as to the facts relating thereto." The five statements are further alleged to describe testimony that was, "untruthful, deceptive, or misleading in any professional statement or testimony." As noted above, the statements do not cite with particularity to the Transcript in Case No. 05-2049PL. The five statements read as follows: Respondent testified at the hearing that the line on the plans appearing as a single pipe, in fact, represented two pipes, 61 feet long with 1 1/4 inch diameters, running over the men's showers. Respondent testified at the hearing that the intent to install the sprinkler system with two pipes over the men's showers was obvious to anyone with experience in fire sprinkler systems. Respondent testified that he had signed and sealed revised plans showing a second parallel line over the men's showers. Respondent testified that the second 61 foot long 1 1/4 inch diameter pipe was represented in his calculations by a 3 foot length of pipe. Respondent testified that he used pipe lengths in the supporting calculations that match the pipe lengths shown in the plans. The actual testimony of Mr. Maples that addresses the pipes follows below. The initial questions were posed by Mr. Maples' attorney, Mr. Peters at page 260, line 13, of the Transcript in Case No. 05-2049PL. . Q. Okay. Now, the bulk of this allegation was that the hydraulically demanding design area did not have sufficient water pressure. Let's talk about that. Does the most hydraulically demanding area in this project show that it was receiving sufficient water pressure and distribution? A. Yes, the calculations show that specifically. Q. Do you have any concern that the most hydraulically demanding area is being under served? A. I do not. Q. Do the plans -- while they may not be perfect -- do they reasonably and competently show sufficient water pressure getting to the most hydraulically demanding area? A. Yes. (At this point there was a recess. Subsequently, the interrogation continued.) * * * Q. So do the plans and do the calculations show that there's sufficient water getting to the most challenging -- A. Yes, it does. Q. Okay. And let's take a minute to just make sure we review our nodal system. (At this point the Court interjected and moved the questioning away from the nodal system. The nodal system had been reviewed earlier in the hearing.) * * * Q. How is that? Okay. There is a segment called 20 to 25, which is an inch-and-a-quarter, 61 feet long. A. Correct. Q. And is there a parallel pipe in the same plane that runs along that same segment? A. Yes. Q. How can you tell that from this drawing and this set of calculations? A. I can tell on the calculations, because it tells me from 25 to 30, there's a connection. It tells me that 30 is connected to a three-inch main. Q. All right. Can you show these calculations and -- go over them with us and show us how you see that from these documents? A. Where is my set? Q. Right there. That's yours. THE COURT: Let me ask you this, sir. I see where it says that it's connected to that. But by [sic] my question is, it says that it's only 3-feet long. THE WITNESS: Three feet. Yes, sir. Let me -- can I address that? THE COURT: Surely. THE WITNESS: That is -- I will say an input error on it. But I want to tell you that it doesn't make any difference into the function of the system. BY MR. PETERS: Q. Tell us why not. A. It says 25 to 30 tells me there's a line, a connection to a 3-inch -- to node 30. What that tells me is that 3-inch line is feeding this row of sprinklers right here. Even though it says 3 feet, what it does, it has a short segment of line that just gushes water through there and makes those sprinklers flow a whole lot more than it needed. All right. When you put the right length, you put 61 feet in there, it comes back to just about what this line does, and it cuts the sprinkler flow down in those three areas. But it doesn't effect [sic] the function of the system because it doesn't effect [sic] the head loss in the main system where the pressure goes in the 3-inch line. Q. Head loss. Take a minute to try to explain that. A. The water -- it doesn't effect [sic] the pressure that the sprinklers are getting. What it does, when you put 61 feet in there, those three sprinklers that where it shows a 3-feet [sic] connection, it cuts them down from sprinkling a whole lot more water that's needed back to what's required. But as you go along this -- as you go along this line, go along this line where the 3-inch line is up here, at each place on the 3-inch line, there's a branch that goes towards the sprinklers. And each branch line is calculated separately. And the most demanding branch line is what puts the pressure that's required -- the flow -- required a 3-inch line. So what the 3-foot did, it made these three sprinklers right here flow considerably more, because it was just a little short piece of pipe and didn't have any friction loss going down through there. But it didn't effect [sic] -- it didn't effect [sic] the system head. Because that had less head loss than this one did. So when you put -- BY THE COURT: Q. Head loss is effected [sic] by, what? A. The length of pipe. Flow -- the length of pipe and size of pipe. Q. So will a longer piece of pipe -- assuming all the pipes are the same diameter -- does the pipe -- does the head loss on a short piece, is it greater than a long piece? A. Oh, no. Head loss on short pieces are considerably less than a long piece loss. The further it travels, the more pressure it loses. Q. Okay. And the pressure loss is transmitted, if you will, back to the 3-inch main? It effects [sic] the -- A. It effects [sic] what the flow comes from a 3-inch main. The 3-inch main effects [sic] it, because the three-inch main has the water supply, and has the pressure that's pushing it. Q. So the calculation for this system -- A. Yeah. Q.-- even though there's an error, the error is not a critical error? A. No, sir, it does not effect [sic] the function of the system. Q. It doesn't effect [sic] the function of the system. Thank you. A. What it does, it shows a little more water flow. THE COURT: Okay. DIRECT EXAMINATION (RESUMED) BY MR. PETERS: Q. So do the plans -- does it need a pump to get water to this area? A. No, sir. THE COURT: Now, let me ask you a follow up on that. THE WITNESS: All right. THE COURT: After Mr. Schmidt put his input in, and he was basically engaged to do exactly what he did, and that was, to go through the plans, catch any things that he was concerned about, and turn that back to the general contractor so the general contractor could go back to the people he needed to go back to? THE WITNESS: Yes. THE COURT: The general contractor came back to you, and you did whatever was necessary to generate the second set of plans that you-all put in, which is your Respondent's 1? MR. PETERS: Well, although Respondent's -- can I ask him a couple of questions? THE COURT: Sure. BY MR. PETERS: Q. Respondent's 1, this is the one that shows the second line, the parallel lines, right? A. Yes, if this is the plan we're looking at, it shows the second -- physically shows -- separated it so anybody could see. THE COURT: It also shows the point of service. THE WITNESS: Yes, it also shows a different point of service. It shows --bring it back up to the 5. BY MR. PETERS: Q. But these don't bear your signature. A. This particular set doesn't. We signed some, but I don't know where they are. That came from Gulf Coast College there. Q. All right. All right. In terms of what this case is directly about, then, do the plans provide pipes with adequate diameters for water pressure to provide protection for the area most remote from the main riser? A. Absolutely. Q. Do the plans provide -- do the plans need to show a pump to increase water pressure for the pipe design use? A. No. Q. And did you use pipe lengths in the supporting calculations that match the pipe lengths shown in the plans? A. Yes. (At this point Mr. Peters addresses another matter. Thereafter, Mr. Campbell proceeded with his cross-examination on Page 268, line 25.) * * * BY MR. CAMPBELL Q. Mr. Maples, there was no testimony about phantom pipes in that previous case, was there? A. No. Q. And you would admit that if there was no pipe underneath this Node 25 pipe, that this fork of six sprinkler heads would not adequately be served by 1-and-a-quarter inch diameter pipe; isn't that correct? A. That's correct, with a caveat. The NFPA 13 has a section that says on the density .1 in a 1500 square feet [sic] area, if it is - - if it says ceiling heights less than 20 feet, and this is 10, that you can reduce the area of sprinkling by 40 percent. So that means, if we did that, we would do 900 square feet, and that would be adequate. Now, if you went strictly by NFPA 13 -- Q. But that's not what you drew here. You drew or attempted to draw 1500 square feet. A. That's what we were told to do. But that's not in accordance with NFPA 13. NFPA 13 is less. And we agree NFPA 13 rules. Q. Now, you initially said this was your initial set of plans before you got any input such as being told to do 1500 square feet; is that correct? A. No, no, I was told to do that to start with. Q. All right. Was that part of the specifications on this job? A. I didn't see it. That was --according to the contractor, that was the specifications from Schmidt or whoever they were. Q. All right. Now, looking at the Respondent's 1 you did not sign. A. That one is not signed, but I know there were some that were signed. Q. Doesn't it appear that in these entries for pressures and static pressures, at some point, there was a whiteout and a reentry on the first page of the sheet? A. I can't tell you that. It may have been. Q. All right. Now, in fact, you have got two separate entries of written information where some of those are different. For instance, the required pressure is different -- A. Yes, because it's a different system. This is one that's not in contention right here. This was the gym. It's got the same static pressures and flows, but this is a different set of calculations of the gym. This has not been -- that was for the gymnasium, just to see if there was enough water. They asked us to do that. Q. Now, is the gymnasium a part of the Wellness Center? I thought that was what the Wellness Center was. A. Well, it's part of the Wellness, yes. But it's a separate part. But this has never been in contention. Q. Well, now, on the set of plans, your initial set of plans, there were no such double entries? A. No, they didn't ask for it then. Q. And this separate set of entries here for the gym -- well, this -– yeah -- is still used by the same riser and the same -- A. Yes, sir. Q. -- point of service. A. Yes, sir. Q. So there would be a separate set of calculations somewhere for the gym; is that what you're saying? A. My understanding, they asked Chris to do a set of calculations just so they would have plenty of water at the gym. That's never been in contention. Because one thing, it's located right at the riser. Q. Now, isn't it a fact, if someone never looked at the calculations but only looked at page 2 of Exhibit P-1, that where the node 25 seems to go up to node 45, there is only one line indicating one pipe? A. Depending on who looks at it. Anybody familiar with the calculations and sprinkler systems would know. Q. If they saw no calculations whatsoever, they just looked at this sheet -- A. I would assume so. If it was Joe Blow out there that knew nothing, he would have probably been, you know -- Q. He would think there's one pipe there. A. Who would do that? Q. So the basis of your statement that anyone that knew that there had to be more than one pipe is -- anyone with experience in fire protection systems would know you could not feed -- A. That's correct. Q. -- 6 heads 60 feet down from the 3-inch pipe on a one -- A. An inexperienced person, probably, correct. Q. Well, now, an experienced person would know automatically you couldn't feed it that way, right? You would have to have a second pipe; that's what you're saying? A. Well, you would have to go by the calculations. I didn't say that. Q. But if you didn't go by the calculations, if you didn't know anything about the calculations, would it be obvious to anyone with experience in fire protection sprinkler systems that at the end of 60 feet of a one-and-a-one-quarter-inch pipe you could not support 50 pounds pressure -- support 6 heads on 1 inch pipe? A. I wouldn't say that. Because if I was an experienced person in fire protection and installation, I would look at that, and I would look for something else to see if there was something else. Q. So that sheet of plans by itself is insufficient even with someone with experience in fire protection? A. No, I didn't say that. I said I would be looking for something else. Q. You said you would be looking for something else. A. He would know that there was something supporting it. And especially a licensed contractor that's licensed to design sprinklers, too. He would obviously know. The statement set forth in paragraph 7, of the Administrative Complaint does not appear in the Transcript in Case No. 05-2049PL. Mr. Maples said nothing about showers. He did not say that the single pipe represented two pipes each of which was 61 feet long. What he said was that the calculations told him that there is a parallel pipe in the same plan as the pipe shown on the drawings. He said he could tell that because the calculations showed from Node 25 to 30 a connection to a 3- inch main. Mr. Maples' testimony in this regard was confusing and difficult to follow but not untruthful, deceptive, or misleading. He was not giving fact testimony but was expressing an opinion. The statement set forth in paragraph 8, of the Administrative Complaint does not appear in the Transcript in Case No. 05-2049PL. Mr. Maples never said that the "intent to install the sprinkler system with two pipes over the men's showers was obvious to anyone with experience in fire sprinkler systems." What he said was, that, "Anybody familiar with the calculations and sprinkler systems would know." He further said that if someone familiar with sprinkler systems would know that two pipes were necessary looked at the plans without the calculations that he "assumed" they would know there should be two pipes. With regard to the statement set forth in paragraph 8, when offered to agree with the statement, ". . . an experienced person would know automatically you couldn't feed it that way, right? You would have to have a second pipe; that's what you are saying?" Mr. Maples declined. In response to the question he said, "Well, you would have to go by the calculations. I didn't say that." Mr. Maples' testimony in this regard was not untruthful, deceptive, or misleading. He was not giving fact testimony but was expressing an opinion. The statement alleged as paragraph 9 does not appear in the Transcript. With regard to other plans, he said in response to a question about Respondent's Exhibit No. 1 that, ". . . it shows the second--physically shows--separated so any body could see." He noted that Respondent's Exhibit No. 1 did not bear his signature but said that he had signed some similar plans. There is no proof in the record that his testimony in this regard was untruthful, deceptive, or misleading. The allegation in paragraph 10 of the Administrative Complaint was that Mr. Maples said that the second 61-foot long, 1 and 1/4-inch diameter pipe "was represented in his calculations by a 3 foot length of pipe." Mr. Maples never uttered that statement. In response to a question from Judge Dean, with regard to the 3-foot long pipe, Mr. Maples said, "That is--I will say an input error on it." Mr. Maples' testimony in this regard was confusing and difficult to follow but not untruthful, deceptive, or misleading. The allegation in paragraph 11 of the Administrative Complaint was that Mr. Maples said that, "he used pipe lengths in the supporting calculations that match the pipe lengths shown in the plans." This allegation approximates a verbatim statement made by Mr. Maples. However, he had earlier noted, and thus qualified the statement when he stated that there was input error. Mr. Maples' testimony in this regard was not untruthful, deceptive, or misleading. The allegations contained in the Administrative Complaint at paragraphs 7 and 8, were fairly alleged as the opinions of Mr. Maples. The opinions alleged are in essence that a person with experience in the fire suppression business could determine from the plans and calculations that a second 61-foot long, 1 and 1/4-inch pipe would run parallel to the pipe shown from Node 25 to 45. After an exhaustive study of the plans and calculations in this case, the Administrative Law Judge has not been able to conclude that the testimony as to the second pipe is borne out by Petitioner's Exhibit 2 or the calculations that are Petitioner's Exhibit 3. Moreover, Judge Dean found that the intent to have two pipes, "was not adequately shown in the original drawings." The foremen sent by Mr. Thomas to install the system did not conclude that two parallel pipes were required. They installed only one. An expert called by FEMC, Larry Simmons, an expert in professional engineering, stated unequivocally in this case that using Mr. Maples' drawings and calculations, he could not determine that a second 61-foot long, 1 and 1/4-inch pipe was called for by the plans. Judge Dean was not misled by Mr. Maples' testimony in Case No. 05-2049PL, with regard to the pipe. This was indicated by his acknowledgement in Finding of Fact 8 in his Recommended Order that the intent to have two pipes, "was not adequately shown in the original drawings." Judge Dean was not called as a witness so that he could reveal if he was misled based on the information that became available after the hearing in Case No. 05-2049PL. It was not proven by clear and convincing evidence that Mr. Maples was "untruthful, deceptive, or misleading in any professional statement or testimony." As will be discussed in detail below, Mr. Maples engaged in misconduct in the practice of engineering by expressing an opinion publicly on an engineering subject without being informed as to the facts relating thereto.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board find that Respondent Lester M. Maples did not violate Section 455.227(1)(a), Florida Statutes, but that he offered an opinion publicly on an engineering subject without being informed as to the facts relating thereto in violation of the prohibitions contained in Section 471.033(1)(g), Florida Statutes. It is further recommended that he be reprimanded, placed on two years' probation, and ordered to pay an administrative fine of $1,000. DONE AND ENTERED this 28th day of April, 2006, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of April, 2006. COPIES FURNISHED: Bruce Campbell, Esquire Florida Engineers Management Corporation 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267 Alvin L. Peters, Esquire Peters & Scoon 25 East 8th Street Panama City, Florida 32401 Paul J. Martin, Executive Director Board of Professional Engineers Department of Business and Professional Regulation 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267 Doug Sunshine, Esquire Vice President for Legal Affairs Florida Engineers Management Corporation 2507 Callaway Road Tallahassee, Florida 32303-5267 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner's "groundwater monitoring plan," embodied as a condition in the present operating permit, should be modified at the behest of the Department of Environmental Regulation.
Findings Of Fact On October 2, 1985, the Department issued to Charlotte County a permit to operate a Class I Sanitary landfill, pursuant to Section 403.087 and 403.707, Florida Statutes. A groundwater monitoring plan was part of that permit. One of the purposes of the groundwater monitoring plan was to detect any leachate plume of pollutants which might migrate off the site of the landfill in the groundwater. In accordance with the groundwater monitoring plan, as part of its conditions, the landfill has four monitoring wells, MW-1 - MW-4. One of those monitoring wells, MW-1, was established as a background well. Two of the monitoring wells, numbers 2 and 4, were installed as "interceptor" and "intermediate" wells. The fourth monitoring well is a "compliance well." The purpose of the background well at the landfill site is to determine the quality of the groundwater as it comes onto or enters the property subject to the operating permit. Specific condition number 2 of the monitoring plan incorporated, in the permit, required that once a year, beginning with the first quarter, sampling wells MW-1 and MW-2 should be analyzed for certain synthetic, organic compounds. Eight synthetic, organic compounds (SOCs) were tested for in accordance with Rule 17-22.104(1)(g), Florida Administrative Code. Those compounds were as follows: Trichloroethylene; Tetrachloroethylene; Carbon Tetrachloride; Vinyl Chloride; 1, 1, 1-Trichloroethane; 1, 2-Dichloroethane; Benzene; and Ethylene-dibromide. On December 9, 1985, the Department received the results of the chemical analysis performed by its laboratory in Tallahassee on the samples collected by district personnel on August 5, 1985. Those test results indicate the presence of the following compounds in well MW-1: Ethylbenzene at a concentration of 1.0 micrograms per liter, Methylenechloride at a concentration of 4.5 micrograms per liter, Trichloroethane at a concentration of 3.2 micrograms per liter, Toluene at 2 micrograms per liter, Xylene at 2.4 micrograms per liter, and Acetone at 40 micrograms per liter, as well as other "purgables" at an aggregate of 30 micrograms per liter. On the basis of this analysis, the Department informed the County that it would modify the County's groundwater monitoring plan by requiring it to monitor for "purgables", (synthetic, organic compounds) in all four wells on a quarterly basis. The original groundwater monitoring plan had required monitoring for the eight original SOCs in two of the four wells on an annual basis. This proposed modification would thus modify the conditions of the landfill operation permit held by the County. Since the samples taken on August 5, 1985, further tests have been performed on water samples taken from the four subject wells at the landfill site by both the County and the Department. On December 9, 1985, the County obtained water samples from wells MW-1 and MW-2, which were analyzed for the eight primary SOCs enumerated in the original water monitoring plan. That analysis showed the following: MW-1 1, 1, 1-Trichloroethane - 1.8 micrograms per liter MW-2 1, 1, 1-Trichloroethane - 4.1 micrograms per liter 1, 2-Dichloroethane - 1.1 micrograms per liter The Department took water samples on January 16, 1986, from all four wells. Results of the analyses for SOCs showed that as of that date, MW-1, which had been the well testing "positive," which resulted in the proposed change in the permit and monitoring plan was, on January 16, free of synthetic, organic compounds. Wells MW-2 and MW-3 were also free of purgables. The analysis of water sample from well MW-4 showed that it contained 4.67 micrograms per liter of Benzene, 1.58 micrograms per liter of Chlorobenzene, and 8.27 micrograms per liter of 1, 2- Dichloroethane. Sampling the wells MW-1 and MW-2 on March 13, 1986, the County analyzed for the complete list of "purgables" or SOCs with the result that well MW-1 was shown to contain 1.8 micrograms per liter of Ethylbenzene and 2.7 micrograms per liter of Toluene. Well MW-2 contained 1.3 micrograms per liter of Ethylbenzene and 2.0 micrograms per liter of Toluene. Almost two months later, on May 5, 1986, the Department sampled wells MW-1, MW-3 and MW-4, finding that MW-1 contained no purgables; MW-3 contained 1 microgram per liter of Methylenechloride (an isolated occurrence of this compound); and well MW-4 contained 1 microgram per liter of Chlorobenzene, 2 micrograms per liter of 1, 3-Dichlorobenzene, 10 micrograms per liter of Toluene, 2 micrograms per liter of Cis-1, 2, Dichloroethane and 6 micrograms per liter of "other purgables. Thus, it can be seen that in the August 1985 test, the first monitoring well tested, MW-1, contained SOCs. At the later test performed in December, that well contained SOCs in the form of Trichloroethane and yet on January 16, 1986, the well was free of detectable SOCs. On March 13, 1986, however, that well was shown to contain Ethylbenzene and Toluene. On the other hand, on the May 5, 1986, sample, the well contained no detectable purgable compounds. On the December 9 test, it can be seen that well MW-2 contained Trichloroethane and Dichloroethane and yet on January 16 was free of any detectable SOCs. However, on March 13, 1986, well MW-2 contained Ethylbenze and Toluene. Well MW-3 was free of SOCs at the December test, but on May 5, 1986, contained Methylenechloride, although in a very slight concentration, which could have resulted from contaminated testing equipment. Well MW-4 contained, in December, the above-noted concentrations of Benzene, Chlorobenzene, and Dichloroethane. On March 13, 1986, wells MW-3 and MW-4 were not tested. The Department's test of May 5, 1986, sampled MW-1, MW-3 and MW-4. On that date MW-4 contained Chlorobenzene, Dichlorobenzene, Toluene, Dichloroethane, and "other purgables." Thus, in consecutive samples taken and analyzed by the Department and the County since the date of its proposed modification of the groundwater monitoring plan, it has appeared that organic compounds detected in one sampling did not appear or were below the detection limits in subsequent analyses and yet showed up in other monitoring wells. It is especially significant, however, that well MW-4, which is the well farthest "down" the groundwater gradient and is indeed the compliance well for assessing whether the landfill is performing within the regulatory bounds of its operating permit has, whenever tested, demonstrated the presence of the above-noted contaminants. The fact that some wells demonstrate the presence of contaminants and on a later test, test negative for those contaminants was shown by the Department to likely occur because of variables attributable to rainfall. The amounts and occurrence of rainfall' can play a significant role in determining whether the concentrations in any amount exist in the monitoring wells and can determine in part what concentrations are found in samples from those monitoring wells. The compounds move through the soil or reside in the soil and the rainfall may cause certain compounds to be washed or leached out of the soil in varying amounts and at varying rates. Sampling shortly after a heavy rainfall might result in detection of certain compounds not detectable during a dry period or might increase the amounts detectable. The absence or slight concentrations of the subject contaminants in a well which increase with later samples would indicate that the leachate or contaminant "plume" in the groundwater is passing through that well. The down gradient well, MW-4, is the compliance well and is located down gradient from the perimeter ditch around the landfill. On both the samples taken in January and in May, that well was shown to be contaminated with SOCs as depicted above. Thus, it has been established that there are some leachate contaminant plumes moving in the groundwater through the location of that well, which establishes the likelihood that the leachate in the landfill will migrate off site by the flow of the groundwater. Thus, since DER issued the proposed modification of the monitoring plan, four additional groundwater samplings have revealed more SOCs at the landfill site. SOCs have been found in all wells at one time or another in detectable amounts. The presence or absence of SOCs and the varying amounts present at various sampling times at various wells is explained by variations in the migration rate of the contaminants due to variations in frequency and amount of rainfall percolating into and flowing through the substrate in which the wells are located. Groundwater in the area of the landfill is not well-protected from waste contamination. The landfill is located in an area where the groundwater table is one to two feet above the surface level during the wet season and only four to five feet below the surface level in the dry season. The landfill is not lined with clay or another impervious or semi-impervious material which could retard the migration of contaminants from the landfill itself into the groundwater acquifer. Because of this, ground water can migrate upward into the waste in the landfill during the wet season and the waste in the landfill can percolate into the groundwater acquifer in a downward and outward direction during the dry season. Additionally, the south and west slopes of the landfill are exposed and waste is thus exposed to the water contained in the perimeter ditch around the landfill, which water is connected hydrologically to the groundwater acquifer. The landfill is the only public solid waste disposal site in Charlotte County and thus receives all manner of waste, including some hazardous waste. Leachate contaminant plumes have already developed on the landfill site and may be in the process or may already have migrated off the site. This site is the only municipal landfill in the seven-county South Florida District of the Department where the SOCs are being detected in the groundwater. The groundwater in the area outside the landfill is designated as G-II, which is usable as a drinking water source. It is appropriate to sample the groundwater more frequently in the vicinity of such a landfill when that groundwater is designated as a drinking water supply. Although well number 1 was originally designated as a background well to check the background chemical status of the water before it migrates down gradient to the landfill site, that well, although located generally up gradient of the groundwater flow, has been shown to contain SOCs which in all probability emanated from the landfill. This is because the County has periodically added water from the landfill itself into the perimeter ditch around the landfill causing groundwater flow to move in both directions laterally from the ditch. Finally, although the Petitioner contends that some of the contamination found in the samples is a result of improper testing and contamination with laboratory solvents, the potential for laboratory contamination of the samples and sampling equipment is a possible explanation (although not proven) only for those SOCs found that are common laboratory solvents. Only Methylchloride, which occurred in one isolated sample, and the compound Toluene fit into this category of possible laboratory contaminants. The remaining SOCs found in the samples are not common laboratory solvents and therefore are present in the samples due to their presence in the groundwater itself from which the sample was taken.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that the modified groundwater plan proposed by the Department in the December 18, 1985, letter to Charlotte County should be adopted into the groundwater monitoring plan for the Charlotte County landfill. DONE and ORDERED this 19th day of November 1986 in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of November 1986. APPENDIX - CASE NO. 86-0084 Petitioner's Proposed Findings of Fact 1 - 18. Accepted Rejected as not established by the evidence presented. Accepted, but dispositive of the material issues presented. Rejected as to its asserted import. Accepted, but not dispositive of the material issues presented. Accepted. Accepted. Rejected as not dispositive of the material issues presented. Accepted, but not in itself dispositive. Accepted. Accepted. Accepted, but not dispositive of the material issues presented. Accepted, except as to the last clause. Accepted. Rejected as to its asserted import. Accepted, but not dispositive of the materia issues presented. Respondent's Proposed Findings of Fact 1 - 20. Accepted. COPIES FURNISHED: Matthew G. Minter, Esquire Assistant County Attorney Charlotte County 18500 Murdock Circle Port Charlotte, Florida 33948 Douglas L. MacLaughlin, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Mary F. Smallwood, Esquire General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact At all times relevant hereto, ADI and Youngquist Brothers were licensed well drilling contractors and qualified to bid on Bid Request No. 9237 issued by Southwest Florida Water Management District ("SWFWMD" or "District"), Respondent. On July 23, 1992 the District mailed packets for bid requests to ADI, Youngquist Brothers, Inc., and others. On August 12, 1992 a mandatory pre-bid meeting for Bid Request No. 9237 was conducted at the District office. Representatives of ADI and Youngquist attended the pre-bid meeting. Responses to Bid Request No. 9237 were opened by the District on August 26, 1992. ADI's bid was for $159.50 per hour, and Youngquist's bid was for $200.00 per hour. Greg McQuown, District Manager of the Geohydrologic Data Section prepared the technical portions of this bid request and, following the bid opening, visited the facilities of both ADI and Youngquist as provided in Section 2.1.1.19 of the bid specifications to observe the equipment they proposed to use. Request for Bid No. 9237 requested bidders to submit an hourly rate for furnishing an experienced crew, the drilling rig and all equipment, materials, fuel and services necessary for the proper operation and maintenance of the drilling rig to be used in drilling numerous monitoring wells as directed by the District. Although the bid is for one year, it is renewable for two additional years. Drilling contracts on an hourly basis are not frequently used in water well drilling contracts, but for this project, this type contract appeared preferable to the District due to the wide variations in well depths and drilling conditions. Speed of drilling is a very significant element in an hourly rate drilling contract. Section 1.17 of the general conditions of Request for Bid No. 9237 provides in pertinent part: If bids are based on equivalent products, indicate on the bid form the manufacturer name and number. * * * The bidder shall explain in detail the reason(s) hoe (sic) the proposed equivalent will meet the specifications and not be considered an exception thereto. Bids which do not comply with these requirements are subject to rejection. Bids lacking any written indication of intent to quote an alternate brand will be received and considered in complete compliance with the specifications as listed on the bid form. Section 1.11 of the general specifications provides: 1.11 BID DATA. Bidders shall furnish complete and detailed Bid Data as specified on the Request for Bid Form. Bids furnished without data, or incomplete submissions may be rejected at the discretion of the District. Exceptions to the requirements, if any, shall be noted in complete detail. Failure by the bidder to detail each exception to a bid specification or a requirement results in the bidder being required to meet each specification or requirement exactly as stated. Section 2.2.2.3 under Contractor Equipment and Services (exhibit 2) lists the following equipment: API 3 1/2 inch drill pipe, no hard banding, square shoulders acceptable, 1,400 feet. API 4 3/4 inch steel drill collars 10,000 lbs. (approximately 200 feet). API 7 to 7 1/2 inch steel drill collars, 13, 500 lbs. (approximately 100 feet) are acceptable equivalent. Rig equipped with hydraulic torque equipment for drill collars and drill pipe. The drilling contemplated by this Bid Request is reverse air drilling in which an air hose is inserted inside the drill pipe and air from this hose facilitates a removal of the material through which the drill bit penetrates. ADI's Bid Proposal (exhibit 4) under Equipment List provides in pertinent part: Drill stem 4 1/2" flush joint 2 1/8 ID Collars 2 @ 3 1/2" X 20' 1 @ 6" X 20' -2 @ 7 3/4" X 30' * * * Above listed tools available, we will make available any other specified tools. The inside diameter (ID) of API 3 1/2 inch drill pipe is 2 11/16 inches. This size pipe will allow use of a 3/4 inch air hose and still provide adequate area for the drilled material to be excavated from the hole being drilled. Further, this Bid Request proposed the use of 6 inch PVC casing to be provided by the District. Thus, the drill pipe and drilling equipment needed to pass through this size casing. The function of the drill collar is to provide weight on the drill bit to insure a straight hole as well as increase the speed of drilling. All else being equal (especially speed of rotation of drill bit) the greater the weight the faster the drilling. Standard API 3 1/2 inch drill pipe has an outside diameter of 4 3/4 inches and is the largest standard drill pipe that can be used in the 6 inch casing here proposed. Not only does the 4 1/2 inch drill pipe proposed for use by ADI have a smaller ID than API 3 1/2 inch drill pipe specified, but also this is not a constant ID but constricts to this 2 1/8 inch ID where pipe sections are connected. This constriction can increase the turbulence in the pipe and slow the removal of the drilled material. The cross section area of a 2 1/8 inch ID pipe is 5/8 the area of a 2 11/16 inch ID pipe. Accordingly, drilling with the API 3 1/2 inch pipe can be much faster than with a drill pipe with a 2 1/8 inch ID due solely to the greater volume flowing through the 3 1/2 inch pipe. The 4 1/2 inch drill collars listed in ADI's bid proposal weighed in at 1100 pounds in lieu of the 4 3/4 drill collars and 10,000 pounds specified in Request for Bid. ADI contends that by adding the words "above listed tools available, we will make available any other specified tools" they clearly intended to provide all equipment demanded by the District. This is the type language which leads to contract disputes. All of Petitioner's witnesses testified that they intended to commence the work, if awarded the contract, with the equipment listed on their bid proposal. On an hourly drilling contract this equipment is inadequate. All of these witnesses also testified they would use the equipment listed in the Request for Bid specifications if required to do so by the District. Neither Dave Robinson, Petitioner's superintendent who prepared its bid and attended the pre-bid conference, nor Jerry C. Howell, President of Petitioner who modified and approved the bids submitted, had ever used API 3 1/2 inch drill pipe and were not familiar with the dimensions of that item. Yet they did not check to ascertain how the inside diameter of that drill pipe compared with the inside diameter of the 4 1/2 drill stem flush joint they had on hand. Petitioner further contended that the cost of the API 3 1/2 inch drill pipe was insignificant in determining the bid price submitted, and therefore, this discrepancy was immaterial and should not lead to rejection of the bid. Petitioner's bid failed to comply with General Conditions 1.17 in that it failed to explain in detail the reasons the 4 1/2 inch drill stem proposed for use meets the specifications which required a drill pipe with a substantially larger minimum interior cross section area. Petitioner's challenge to Youngquist's bid proposal as being non- responsive for not listing the API 3 1/2 inch pipe is without merit. Youngquist's bid complied with the provision of Section 1.11 of the General Specifications and McQuown's visit to Youngquist's facility confirmed that Youngquist had on hand all of the equipment specified in the Request for Bid Proposal. Petitioner was represented at the compulsory pre-bid conference by David Robinson, ADI's superintendent, who prepared ADI's bid package. Robinson testified that at the pre-bid conference he asked Mr. McQuown what was the inside diameter of the API 3 1/2 inch drill pipe and McQuown responded 1 7/8 inches. Several other witnesses, including McQuown, testified that no questions were asked at the pre-bid conference about the API 3 1/2 inch pipe and all of these witnesses were fully aware that the pipe has an ID greater than 2 1/2 inches. McQuown's testimony that Robinson asked only about the inside diameter of the 4 3/4 inch drill collar shown in the bid specifications and he responded 1 7/8 inches to that question is deemed the more credible evidence. Robinson testified that he thought McQuown has misspoke when he said 1 7/8 inches but did not check available catalogues to determine the actual ID of this pipe to shed some light on the adequacy of the 4 1/2 inch drill pipe proposed in ADI's bid. The more credible testimony is that Robinson was not misinformed about the ID API 3 1/2 inch drill pipe at the pre-bid conference.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the formal bid protest filed by American Drilling, Inc. to challenge the award of Bid Request 9237 be dismissed and that the contract be awarded to Youngquist Brothers, Inc. DONE AND ENTERED this 15th day of February, 1993, in Tallahassee, Leon County, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of February, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-6618BID Proposed findings listed by Petitioner are accepted except as noted below. Those neither noted below nor included in the Hearing Officer's findings were deemed unnecessary to the conclusions reached. 16. Rejected. Although there can be a slight variation in the internal diameter of API 3 1/2 inch drill pipe, there is no API 3 1/2 inch drill pipe with an inside diameter less than 2 1/2 inches. 18. Rejected as contrary to the credible evidence. Rejected. ADI fully intended to use the drill pipe and collars listed on its bid unless or until the District mandated a change to the equipment or tools specified. Both of Petitioner's principle witnesses believed the 4 1/2 inch drill stem listed could satisfactorily perform the required drilling. Rejected as contrary to the evidence. Accepted as a fact that after ADI learned it was low bidder inquiries were made to locate a source for the specified drill pipe and collars. At McQuown's visit to ADI, Jerry C. Howell assured him that ADI wanted to fully cooperate with the District in carrying out the contract when issued. Rejected that ADI's response was clear and complete as required by the specifications. Second sentence rejected as irrelevant and immaterial. Rejected as irrelevant. Diversified was not a party to these proceedings. Rejected. Youngquist's bid complied with the bid specifications. By not responding to those items in the bid specification, Youngquist, pursuant to the General Bid Specifications, agreed to provide exactly the equipment specified by the District in the Request for Bid. 32. These omissions have never been deemed by the District to be grounds for rejecting bids. 33 -34. Rejected as immaterial. 36. Although McQuown testified that he did not pay a lot of attention to the general (boiler plate) conditions in the bid proposal, he recognized that the failure of a bidder to list equipment different than that contained in the bid proposal meant that the bidder intended to supply the equipment specified. See 36 above. Rejected as irrelevant. Last sentence rejected as immaterial. First sentence rejected. Rejected. First sentence rejected. 46 - 49. Rejected as immaterial. 51. Rejected insofar as Youngquist's bid is concerned. 53. Last sentence rejected. Rejected as improper and inaccurate interpretation of the contract provisions. Moreover, this is a question of law, not of fact. The bid specifications speak for themselves. Interpretation of these specifications is a legal not a factual matter. Last sentence rejected. Last sentence rejected. Rejected as fact, accepted as a conclusion of law. See 36 above. 63 Generally accepted. However, it is found that all parties recognize that it was not necessary for bidders to have on hand all equipment requested in the bid specification, and that ADI representatives indicated that they would like to start work with the equipment on hand and would do so unless otherwise directed. Proposed joint findings submitted by Respondent and Intervenor are accepted. Those not included in the Hearing Officer's findings were deemed unnecessary to the conclusions reached. COPIES FURNISHED: Douglas Manson, Esquire Mary Catherine Lamoureaux, Esquire Post Office Box 499 Tampa, Florida 33601-0499 Richard Tschantz, Esquire A. Wayne Alfieri, Esquire 2379 Broad Street Brooksville, Florida 34609-6899 Mark R. Komray, Esquire Thomas Smoot, Esquire Suite 600 12800 University Drive Fort Myers, Florida 33906-6259 Peter G. Hubbell, Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899
The Issue Whether Respondent committed the violations as set forth in the Citation for Violation, Onsite Sewage Program/Sanitary Nuisance dated April 28, 2000.
Findings Of Fact Petitioner is authorized and given the jurisdiction to regulate the construction, installation, modification, abandonment, or repair of onsite sewage treatment and disposal systems, including drainfields, by septic tank contractors. At all times material hereto, Respondent was a registered septic tank contractor and, as such, he was authorized to provide septic tank contracting services, including the installation and repair of drainfields. On or about November 2, 1995, Petitioner issued a permit (Permit No. RP648-95) to Wilmar Rodriguez for the repair of a septic tank system at 417-421 Perry Avenue, Greenacres, Florida. The property was a triplex, which was purchased by Mr. Rodriquez in 1981. Mr. Rodriguez has no knowledge as to whether any drainfields were installed or replaced on the property, prior to 1981. The Permit included the installation of a new multi- chambered septic tank, a dosing tank, a lift station, and a new drainfield. The Permit was also for a filled system and called for the drainfield to be 700 square feet. Respondent was indicated as the "agent" on the Permit. Respondent and/or his employees performed the work under the Permit. Respondent was the septic tank contractor for the repair of the septic tank system under the Permit. On November 9, 1995, the construction of the septic tank system was approved by one of Petitioner's inspectors, who was an Environmental Specialist I. Petitioner's inspectors are not present during the entire construction or repair of a septic tank system or drainfield. Usually, inspections are made after the completion of the construction or repair of the septic tank system. Additionally, the inspection of a drainfield is usually performed after the rock has been placed on top of the drainfield. On February 2, 1996, the same inspector performed the inspection after the completion of the construction of the septic tank system, including after the placing of the rock on top of the drainfield. Even though the Permit reflects a filled system, the filled/mound system section on the inspection sheet was crossed out. The inspector considered the system to be a standard system, not a filled or mound system, and, therefore, inspected it as a standard system. In inspecting a drainfield, the inspection by an inspector includes checking to ensure that a drainfield has 42 inches of clean soil below the drainfield. An inspector uses an instrument that bores down through the rock and brings up a sample of the soil, which is referred to as augering. Augering is randomly performed at two locations. For the instant case, the inspector performed the augering in two random locations of the drainfield, which were in the area of the middle top and the middle bottom. The samples failed to reveal anything suspect; they were clean. On February 2, 1996, the inspector issued a final approval for the septic tank system. Final approval included the disposal of "spoil" and the covering of the septic tank system with "acceptable soil". The inspector mistakenly inspected the system as a standard system. He should have inspected the system as a filled system.1 After the repair and installation of the septic tank system by Respondent, Mr. Rodriguez continued to have problems with the septic tank system. He contacted Respondent three or four times regarding problems with the system, but the problems persisted. Each time, Respondent was paid by Mr. Rodriguez. Sewage water was flowing into the street where the property was located and backing-up into the inside of the triplex. Having gotten no relief from Respondent, Mr. Rodriguez decided to contact someone else to correct the problem. Mr. Rodriguez contacted Richard Gillikin, who was a registered septic tank contractor. On October 14, 1999, a construction permit was issued to Mr. Rodriguez for the repair of the septic tank system. Mr. Gillikin was indicated as the agent. Mr. Gillikin visited the property site of the triplex and reviewed the problem. He determined that the drainfield was not properly functioning, but he did not know the cause of the malfunctioning. With the assistance of Petitioner's inspectors, Mr. Gillikin and Mr. Rodriguez attempted to determine the best method to deal with the problem. After eliminating options, Mr. Rodriguez decided to replace the drainfield. To replace the drainfield, Mr. Gillikin began excavating. He began removing the soil cover and the rock layer of the drainfield. Mr. Gillikin also wanted to know how deep he had to dig to find good soil. After digging for that purpose and for 10 to 12 inches, he discovered a drainfield below Respondent's drainfield. The drainfield that Mr. Gillikin discovered was a rock bed 12 inches thick in which pipes were located and, as indicated, 10 to 12 inches below Respondent's drainfield. Mr. Gillikin also dug a hole two to three feet deep, pumped the water out of the hole, and saw the old drainfield. Mr. Gillikin determined that the old drainfield extended the full length of Respondent's drainfield. As a result of Mr. Gillikin's determining that the old drainfield was below Respondent's drainfield, both drainfields had to be removed and the expense of a new drainfield increased. Leon Barnes, an Environmental Specialist II for Petitioner, who was also certified in the septic tank program, viewed the drainfield site. He determined that the old drainfield was below Respondent's drainfield and that, therefore, Respondent had not removed the old drainfield. On or about November 6, 1999, Mr. Barnes' supervisor, Jim Carter, and co-worker, Russell Weaver, who is an Engineer, also visited the drainfield site. Mr. Weaver determined that the old drainfield covered a little more than 50 percent of the area under Respondent's drainfield. On November 8, 1999, a construction inspection and a final inspection of the system installed by Mr. Gillikin were performed. The system was approved. Respondent admits that a new drainfield is prohibited from being installed over an old drainfield. However, Respondent denies that he installed a new drainfield over the old drainfield on Mr. Rodriguez's property. In 1995, Respondent failed to completely remove the old drainfield before he installed the new drainfield. The soil and rocks from the old drainfield, which was not functioning, were contaminated spoil material. Because the old drainfield was not completely removed, the contaminated spoil material remained in the drainfield and was used as part of the material in the installation of the new drainfield. Leaving the contaminated spoil material in the new drainfield, prevented the sewage water from being able to percolate through the ground, which is a method of cleansing the sewage water. Without being able to percolate through the ground, the sewage water remained on the surface of the drainfield, creating a serious sanitary nuisance and health hazard. The sewage water spilled onto the street and backed-up into the triplex. Respondent was issued a Citation for Violation, Onsite Sewage Program/Sanitary Nuisance by Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Palm Beach County Health Department, enter a final order: Affirming the Citation for Violation, Onsite Sewage Program/Sanitary Nuisance and finding that Noel Sanfiel violated Section 381.0065, Florida Statutes (1995), and Rule 10D- 6.0571(4), now Rule 64E-6.015(6), and Rule 10D-6.0751(1)(l)1, now 64E-6.022(1)(l)1, Florida Administrative Code. Imposing a fine of $500. DONE AND ENTERED this 13th day of February, 2001, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 2001.
