Findings Of Fact On February 2, 1981, Arnold J. Pergament inspected the 511 Rooming House. He found one fire extinguisher in good order and another losing pressure and in need of recharge. Roomers appliances overloaded electrical circuits. The bathrooms were not designated as being restricted to one sex. They were dirty, lacked hot water, adequate lighting, and a sink was off the wall; one toilet had a broken tank, another was missing a toilet seat. The showers needed repair. Screening was missing in the bathrooms, in the rooms, and on outside doors. Hallways were inadequately lighted. Railings on second floor walkways and stairways were widely spaced. The grounds were covered with trash, garbage, and sour water. When Mr. Pergament returned for a scheduled reinspection on April 6, 1981, he found that not a single violation had been corrected. Another inspection, on May 26, 1981, revealed additional deterioration: A bathroom was under one-half inch of water. The fire extinguishers had been serviced but no steps to correct any other violations had been taken. The condition of the grounds was worse. The same circumstances or worse obtained on June 1, 1981, on July 1, 1981, on August 26, 1981, and on March 19, 1982. Conditions at the 511 Rooming House amount to an eminent danger to the public health and safety.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner suspend respondent's license, No. 60-2595-H, for a period of one (1) year. DONE AND ENTERED this 13th day of April, 1982, in Tallahassee, Florida. ROBERT T. BENTON, II 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 13th day of April, 1982. COPIES FURNISHED: T. E. Burgess 511 Rooming House 511 Southwest Fifth Street Belle Glade, Florida 33430 William A. Hatch, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Lewis Reif Division of Hotels and Restaurants 201 West Broward Boulevard Fort Lauderdale, Florida 33301 Sherman S. Winn, Director Division of Hotels and Restaurants 725 South Bronough Street Tallahassee, Florida 32301
The Issue The issue is whether Petitioner is eligible to continue participating in the Drycleaning Solvent Cleanup Program.
Findings Of Fact Petitioner, Sunset Square General Partnership, is the owner of Sunset Square Shopping Center located in Clearwater, Florida, and in which Tux Cleaners, Department of Environmental Protection Identification No. 529501419, was a tenant conducting a drycleaning business. At all times relevant hereto, the Sunset Square Shopping Center was managed by the Stuart S. Golding Company on behalf of Sunset Square General Partnership. At all times relevant to this proceeding, Tux Cleaners was owned and operated by Angelo Guarnieri. In June 1996, Petitioner submitted an application to participate in the Drycleaning Solvent Cleanup Program (Program/ Drycleaning Solvent Cleanup Program). The application was signed by a representative of Petitioner and by Guarnieri. David Scher, an employee of the Stuart S. Golding Company, was listed on the application as the contact person for Petitioner. All applications to the Drycleaning Solvent Cleanup Program are joint applications that include the real property owner, the operator of the drycleaning facility, and the owner of the drycleaning facility. Thus, in this instance, the applicant was Petitioner, the owner of the real property on which the drycleaning facility was located, and Guarnieri, the owner and operator of the facility. Petitioner was listed as the "designated applicant" on the aforementioned application filed with the Department. The "designated applicant" served to advise and provide the Department with a single point of contact. Upon review of Petitioner's application, the Department determined that Petitioner met the prescribed eligibility requirements for participation in the Drycleaning Solvent Cleanup Program. Thereafter, by letter dated September 27, 1996, the Department notified Petitioner that its site, Tux Cleaners, was eligible for participation in the Drycleaning Solvent Cleanup Program. The letter advised Petitioner that its "participation in the Program is contingent upon continual compliance with the conditions of eligibility set forth in Section 376.3078(3), F.S." At the time Petitioner's letter of eligibility was issued, Section 376.3078(7), Florida Statutes (1995), required that owners and operators of drycleaning facilities install secondary containment by January 1, 1997. This statute was enacted in 1995, the year before Petitioner was determined eligible for participation in the Drycleaning Solvent Cleanup Program. To maintain its eligibility in the Drycleaning Solvent Cleanup Program, Petitioner was required to install secondary containment at Tux Cleaners by January 1, 1997. As of January 1, 1997, secondary containment had not been installed at Tux Cleaners. Consequently, on January 2, 1997, Petitioner and Tux Cleaners were no longer in compliance with the eligibility requirements for participation in the Drycleaning Solvent Cleanup Program. On January 21, 1998, Margaret Hennis, a Pinellas County environmental inspector, conducted an inspection of Tux Cleaners as part of a Title V compliance inspection. During the inspection, Hennis discovered that Tux Cleaners did not have the required secondary containment and advised Guarnieri that secondary containment needed to be installed. Guarnieri then informed Hennis that the equipment had been ordered in late 1997. Guarnieri initially ordered secondary containment for Tux Cleaners in June 1997 but cancelled the order because he thought the business had been sold. When the business was not sold, Guarnieri reordered the secondary containment in late 1997, almost one year after it should have been installed. There is no evidence that the secondary containment was ever delivered to Tux Cleaners; and it clearly was never installed at Tux Cleaners. Prior to becoming eligible for the Drycleaning Solvent Cleanup Program, Petitioner hired an environmental consultant, who subsequently advised Petitioner to apply for participation in the Program. After the application of Petitioner and Tux Cleaners was approved, Petitioner believed that the environmental consultant would monitor the drycleaning facility to ensure that the site was in continual compliance with Program eligibility requirements. Although Petitioner and Guarnieri submitted a joint application to the Department, they never discussed the need to install secondary containment at Tux Cleaners. It was only after receiving the February 26, 1998, letter described below that Petitioner had actual knowledge of the secondary containment requirement. Accordingly, Petitioner never asked Guarnieri whether the secondary containment had been installed or directed Guarnieri to install the required secondary containment. Furthermore, Guarnieri never discussed with Petitioner the January 1997 inspection of Tux Cleaners, Hennis' notification that secondary containment needed to be installed, or any matters relative to Guarnieri's ordering and reordering of the secondary containment. By letter dated February 26, 1998 (notice of cancellation), the Department notified Petitioner of its intent to cancel Petitioner's eligibility for participation in the Drycleaning Solvent Cleanup Program and of the reason for the cancellation. According to the notice of cancellation, the reason for the cancellation was that Tux Cleaners had "fail[ed] to continuously comply with the conditions of eligibility set forth in s. 376.3078(3), F.S." The February 26, 1998, letter stated, in pertinent part, the following: The Department has determined that the referenced site is no longer eligible to participate in the Drycleaning Solvent Cleanup Program for the following reason: Pursuant to s. 376.3078(7)(a), Florida Statutes (F.S.), owners or operators of drycleaning facilities shall by January 1, 1997, install dikes or other containment structures around each machine or item of equipment in which drycleaning solvents are used and around any area in which solvents or waste- containing solvents are stored. As of January 21, 1998, secondary containment had not been installed at the referenced facility. Failure to meet this requirement constitutes gross negligence (s. 376.3078(7)(d), F.S.). Also, failure to meet this requirement constitutes a failure to continuously comply with the conditions of eligibility set forth in s. 376.3078(3). Pursuant to s. 376.3078(3)(n)1., F.S., the Department shall have the authority to cancel the eligibility of any drycleaning facility or wholesale supply facility that fails to continuously comply with the conditions of eligibility set forth in s. 376.3078(3), F.S. Persons whose substantial interests are affected by this Order of Eligibility Cancellation have a right, pursuant to Sections 120.569 and 120.57, F.S., to petition for an administrative determination (hearing). The Petition must conform to the requirements of Chapters 62-103 and 28-5, F.A.C., and must be filed (received) with the Department's Office of General Counsel, 3900 Commonwealth Boulevard, Tallahassee, Florida 32399-3000, within forty-five (45) calendar days of receipt of this Notice. Failure to file a petition within the forty-five (45) calendar days constitutes a waiver or any right such persons have to an administrative determination (hearing) pursuant to Sections 120.569 and 120.57, F.S. * * * If a petition is filed, the administrative hearing process is designed to formulate agency action. Accordingly, the Department's final action may be different from the position taken by it in this Notice. * * * This Order of Eligibility Cancellation is final and effective forty-five (45) calendar days after the date of receipt of this Order unless the attached site access form is signed and returned to the Department or unless a petition is filed in accordance with the preceding paragraph. Upon the timely filing of such petition, this Order will not be effective until further order of the Department. Please be advised that mediation of administrative disputes arising from or relating to this Order of Eligibility Cancellation is not available [s.] 120.573, F.S.; when requested the Department will continue to meet and discuss disputed issues with parties adversely affected by this order. The February 26, 1998, notice of cancellation contained a typographical error in that it referenced an "attached site access form." That reference was as follows: "This Order of eligibility cancellation is final and effective forty-five (45) calendar days after the date of receipt of this Order unless the site access form is signed and returned to the Department or unless a petition is filed in accordance with the preceding paragraph." The reference in the notice of cancellation to the site access form was irrelevant to the notice and improperly and inadvertently included in the notice. That reference should have been omitted from the notice of cancellation and the sentence which mistakenly referred to the site access form should have stated: This Order of Eligibility Cancellation is final and effective forty-five (45) calendar days after receipt of this Order unless a petition is filed in accordance with the preceding paragraph. The February 26, 1998, notice of cancellation complies with the requirements of Section 376.3078(3)(n)2., Florida Statutes, notwithstanding the aforementioned typographical error contained therein. Consistent with the statutory requirements, the letter gives written notice to the applicant of the Department's intent to cancel Petitioner's program eligibility and also states the reason for the cancellation. Section 376.3078(3)(n)2., Florida Statutes, provides that the "applicant shall have 45 days to resolve the reason for the cancellation to the satisfaction of the Department." Typically, the Department's cancellation notices do not state that applicants or participants have 45 days to resolve the reason or reasons for cancellation of their eligibility. Nevertheless, the Department affords this opportunity to adversely affected parties. To facilitate this process, the Department's cancellation notices advise these parties that, when requested, the Department will "continue to meet and discuss disputed issues with parties adversely affected by this Order." Petitioner availed itself of the opportunity to discuss the disputed issues with the Department. In fact, shortly after receiving the notice of cancellation, Petitioner contacted the Department officials to determine what steps it could take to remain eligible for participation in the Drycleaning Solvent Cleaning Program. Thereafter, Petitioner took immediate steps in an attempt to resolve the reasons for cancellation of its eligibility. After extensive discussions between Petitioner and Department officials, the Department concluded that the notice of cancellation had been properly issued. The Department reached this conclusion after Petitioner acknowledged that Tux Cleaners did not have secondary containment installed by the January 1, 1997, the statutorily prescribed deadline for such installation. Having determined that the secondary containment had not been installed by the January 1997 deadline, the Department concluded that the reason for the cancellation of Petitioner's eligibility could not be resolved or corrected. The Department has interpreted the 45-day language in Section 376.3078(3)(n)2., Florida Statutes, to allow Program applicants or participants the opportunity to resolve items that do not constitute gross negligence within the meaning of the statute. In an attempt to bring the facility into compliance, Petitioner insisted that Guarnieri shut down all drycleaning operations at Tux Cleaners and remove all machines and solvents from the property. By mid-March 1998, Tux Cleaners had shut down all drycleaning operations and by the end of March 1998, all drycleaning machines were removed from the facility. Moreover, in mid-March 1998, after the drycleaning operations ceased, Tux Cleaners continued only as a dry drop-off facility. Any store operating solely as a dry drop-off facility is not required to have secondary containment. Secondary containment was not installed at Tux Cleaners by January 1, 1997, the statutorily prescribed deadline, even though it operated as a drycleaning facility from January 1, 1997, until mid-March 1998. Consequently, beginning in January 1, 1997, and through March 1998, Petitioner and Tux Cleaners were not in compliance with the eligibility requirements of the Drycleaning Solvent Cleanup Program.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby: RECOMMENDED that the Department issue a final order finding that Petitioner's facility is not eligible to participate in the Drycleaning Solvent Cleanup Program. DONE AND ENTERED this 10th day of January, 2000, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 10th day of January, 2000. COPIES FURNISHED: Martha L. Nebelsiek, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Richard M. Hanchett, Esquire Trenam, Kemker, Scharf, Barkin, Frye, O'Neill & Mullis, P.A. 2700 Barnett Plaza 101 East Kennedy Boulevard Post Office Box 1102 Tampa, Florida 33601-1102 Kathy Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Teri Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
Findings Of Fact Petitioner holds Adult Congregate Living Facility License No. S-0464- 0131-R, issued by Respondent, the effective date of which license is July 14, 1979. Petitioner's license expires on July 13, 1980. Petitioner has located in its food preparation area a double compartment, stainless steel sink equipped with hot and cold running water. There is not, however, a separate lavatory in the food preparation area for the specific purpose of the washing of hands. Petitioner's facility includes two lavatories within 18 feet of the food preparation area. However, these two lavatories are outside the food preparation area proper. One of the lavatories is located in an adjacent hallway, and the other is located in an adjacent bathroom. Petitioner's facility was licensed initially after the adoption of Chapter 10A-5, Florida Administrative Code, and is, therefore, a "new establishment" subject to regulation under Chapter 10D-13, Florida Administrative Code.
Findings Of Fact Background And Stipulations. Petitioner, Mad Hatter Utilities, Inc. (Mad Hatter) made application on May 14, 1987, for a permit to construct on a 46-acre site in south central Pasco County a 0.5 million gallon per day (MGD) field-erected, extended aeration wastewater treatment plant and spray irrigation effluent disposal system. The application also proposes the use of a 0.1 MGD temporary packaged facility to provide services during the construction and before operation of the proposed field-erected plant and disposal system. Prior to final hearing, the Department of Environmental Regulation (DER) determined in free-form agency proceedings that reasonable assurances had not been provided that 0.5 MGD of effluent could be disposed of on the site safely and in accordance with the applicable statutes and rules using the proposed spray irrigation disposal system and that the capacity of the plant and disposal system should be limited to 0.1 MGD. Mad Hatter filed a petition challenging the DER's proposed agency action to down-size Mad Hatter's application Love Our Lakes Association (the Association) and Augustine L. Miro (Miro) each filed a petition challenging the DER's proposed agency action to grant the down-sized application. Pasco County intervened in support of the DER's proposed agency action. Also, prior to the hearing, the parties stipulated that the proposed wastewater treatment plant, in itself, provides reasonable assurance that wastewater will be treated in accordance with the requirements of the applicable statutes and DER rules and standards. However, remaining for resolution is the issue of how much effluent can, with reasonable assurance, be disposed of on the site safely and in accordance with the applicable statutes and DER rules and standards using the proposed effluent disposal system. 1/ At the final hearing, the standing of all of the parties was stipulated. Whether Plant Capacity Should Be Limited To Currently Available Effluent Disposal Capacity. In addition, at final hearing, the DER changed its position and urged that a permit could and should be issued to Mad Hatter to construct the proposed 0.5 MGD capacity wastewater treatment plant subject to the installation of a physical "baffle" or partition capable of limiting the actual operational capacity of the treatment plant (and, therefore, the effluent disposal system) to 0.1 MGD. The proposed "baffle" is described by Mad Hatter Exhibit 10, in evidence. Mad Hatter proposed a 0.5 MGD wastewater treatment plant because it is the smallest centralized plant that can be field erected and still provide economies of scale in its construction. The evidence proved that a proposed welded but removable steel "baffle" of the kind described in Mad Hatter Exhibit 10 would, along with other DER controls, provide reasonable assurance that the actual operational capacity of the plant would not exceed the effluent disposal limitation placed on the DER construction permit. Depending on where in the extended aeration chamber the baffle is placed, the reduction in treatment capacity will be proportional to the reduction in size of the aeration chamber, e.g., a reduction to 1/5 of design size will limit effective treatment capacity to 0.1 MGD. In addition to the physical "baffle," typical permit conditions require a wastewater treatment plant operator to report levels of plant activity to the DER and allow the DER to inspect the plant at reasonable times. In addition, customers of a wastewater treatment plant must receive a DER permit to send wastewater to the plant for treatment, and the permit places a limit on the amount of wastewater sent for treatment, giving the DER control over the inflow to the plant (and, therefore, the outflow, too.) Allowing Mad Hatter to build a plant with more capacity than currently available effluent disposal capacity allows Mad Hatter to more cost-effectively provide for anticipated future need for sewage treatment in the Land O'Lakes area. Rather than Mad Hatter or other utilities having to build multiple, inherently less cost-efficient "package plants," each at new construction costs, Mad Hatter could simply remove the "baffle," which itself costs only about $10,000, if additional effluent disposal capacity could be established. Excess plant capacity provides an incentive for Mad Hatter to explore the real possibility of contracting with customers for the use of treated wastewater ("gray water") as a source of additional effluent disposal capacity. The result would comport with the DER's policy to encourage reuse. Capacity Of The Currently Proposed Effluent Disposal System. Mad Hatter proposes to apply 0.41 MGD at an average of 2.4" of wastewater per week to a 43.69 acre spray field area on the site. Mad Hatter's permit application does not specify any spray irrigation schedule or identify non-application days when spraying of effluent would not be possible due to adverse climatic conditions, harvesting conditions, maintenance of irrigation equipment, or other conditions which preclude irrigation. Mad Hatter intends to grow as a cover crop on the irrigation site either bahia hay or other similar grass. Mad Hatter's permit application does not specify what soil-plant system Mad Hatter proposes to employ on the site for nutrient uptake. Mad Hatter plans to install a series of several hundred adjustable sprinkler heads for the distribution of effluent throughout the site. Each head is expected to have a reach of between 50 and 75 feet. Smaller sprinkler heads (18" high) were selected to reduce potential aerosol dispersion of mist during irrigation. Mad Hatter's proposed disposal system design incorporates a total of 1.5 million gallons of effluent storage capacity in two lined holding tanks to be constructed on site. Each tank is designed to be 150' square, with a design depth of three feet plus one foot of freeboard. The bottom and banks will comprise a vinyl liner placed on grade and lapping up onto the sides (above grade) which will consist of earthen berms reinforced by, steel angle irons and support rods. No emergency overflow discharge or "pop-off" device is incorporated for either tank. In the event the tanks become full when no irrigation is possible, tank contents may be routed back to the head of the treatment plant if it is not already overloaded. The capacity of a particular parcel of land to safely and adequately dispose of wastewater by spray irrigation depends on several factors: (1) design and construction of the system, including storage capacity; (2) rainfall; (3) water table; (4) soil composition; (5) permeability or hydraulic conductivity of the soils; (6) evapotranspiration; (7) treatment level of the wastewater; (8) nutrient uptake capability of the ground cover; (9) flow of water on and off the site; (10) classification of area waters, especially downstream; and (II) other characteristics of the immediate vicinity. The parcel of land Mad Hatter has selected for its proposed spray irrigation effluent disposal system is near Land O'Lakes, Pasco County, Florida. It is approximately 1300 feet south of Lake Thomas which is at a higher elevation than the site. The site consists of Zolfo series fine sand to depths of about 35 to 40 feet, below which is a layer of primarily clay to a depth of about 120 feet. The clay is thick enough to protect the Floridan aquifer, which lies still deeper below the surface. The soils found on the proposed disposal site are denominated as Zolfo fine sands under the classification system of the United States Department of Agriculture Soil Conservation Service (SCS). The SCS Soils Atlas for Pasco County describes Zolfo fine sands as follows: The Zolfo series is a member of the sandy, siliceous hyperthermic family of Grossarenic Entic Haplohumods. It consists of somewhat poorly drained, moderately permeable soils that formed in thick deposits of marine sand. These nearly level soils are on the uplands. The seasonal high water table is at a depth of 24 to 40 inches for 2 to 6 months during most years. It is at a depth of 10 to 24 inches for as long as 2 weeks in some years. Slopes range from 0 to 2 percent. The Mad Hatter site displays the fluctuating seasonal high water table level characteristic of Zolfo soils. During soils testing associated with the permit application process, the water table on site was observed at varying levels ranging from six feet below the surface (in October) to at or near the surface (in July), with average levels from two to three feet below surface observed in September, December, and February. The Lake Thomas area, as is the case with the Land O'Lakes region in general, has poor drainage. This area, including the proposed site, which formerly had been an orange grove like others still located in the area, historically has experienced periods of persistent standing water and saturated soil conditions during the rainy season. The area receives more than half of its annual rainfall (35.46") during the rainy season, the period from June through September. Ground penetrating radar tests and soils analysis indicated no significant paleosinks on the site. There were no indications of karst formations at the site. The site, as it presently exists, does not handle stormwater runoff efficiently. Runoff flows onto the site from upstream properties north and east of the site. The furrows on the site which remain from its use as a citrus grove allow stormwater to sheet flow onto the site and sit in numerous depressions until it leaves the site by percolation. However, Mad Hatter will grade the site to eliminate the depressions. In addition, Mad Hatter proposes to reestablish the former swale or ditch along Lake Thomas Road to facilitate proper drainage for the properties east of the site. This swale would tie into the existing ditch along the pipe beneath Drexel Road. The swales will divert runoff water originating at higher elevations off-site from the site and direct the runoff to a drainage ditch and culvert leading off the parcel near the midpoint of the western boundary. In extremely wet conditions, runoff might back up in the culvert, the swales and an existing drainage ditch running east from the culvert towards the middle of the site. The grading and drainage improvements to which Mad Hatter has committed would transmit stormwater in a more efficient and direct manner and will be easy to maintain. These improvements would reduce the quantity of water that occurs on the site by diverting runoff from adjacent properties so that it no longer flows onto the site. This would enhance the capability of the site to treat or dispose of effluent, Even under existing or natural conditions, the possibility of surface runoff from the site flowing into Lake Thomas is remote. The natural flow of groundwater across the site is west-southwest. Therefore, the likelihood of groundwater flowing to the north to Lake Thomas is very remote. As an extra assurance against surface runoff into Lake Thomas, Mad Hatter proposes to construct a two- to three-foot high berm along the site's north property line as described in Mad Hatter Exhibit 2F, in evidence. (This proposal is not a part of the application, but Mad Hatter committed to it at final hearing.) This berm would further preclude surface runoff from flowing in the direction of Lake Thomas and would provide 24 acre-feet or 7.8 million gallons of storage under "worst case" circumstances until water could flow naturally. The proposed berms and drainage improvements will have the net effect of decreasing the amount of water added to the site during rainfall, will decrease sheet flow across the site, and will keep water from "sheeting" across Lake Thomas Road, which is directly to the north of the site, and mixing with the waters of Lake Thomas. A groundwater monitoring plan is a hydrological study of a site to describe the subsurface lithology of the site, identify the depth of the water table, or any confining layers, determine the direction of groundwater flow and determine the location of any public or private potable water supply wells in the area. The groundwater monitoring plan for the site proposes a background well in the northeast corner of the site to sample water upstream of the site and three wells to be placed on the south and west property lines to demonstrate any impacts of effluent on the groundwater before it leaves the property. The groundwater monitoring plan proposed by Mad Hatter is adequate. Using an extended aeration technique, a clarifier, more-than-adequate detention time for chlorination and a tertiary filter, Mad Hatter's treatment plant will treat wastewater to relatively advanced stages. The proposed bahia hay or similar grass ground cover will provide adequate nutrient uptake upon application of the wastewater to the land. Section 7.5 of the Land Application Of Domestic Wastewater Effluent In Florida manual, which is incorporated by reference into Chapter 17-6, Florida Administrative Code, requires that a detailed soil-vegetation management program be included in the engineering report in an application for a wastewater treatment plant permit. Under Section 7.1 of the Manual, this requirement can be waived in 0.1 MGD plant proposals but is mandatory for proposed plants as large as 0.5 MGD. There was no evidence as to exactly where between 0.1 and 0.5 MGD the Section 7.5 requirement becomes mandatory. It is not possible to predict with complete accuracy the capacity of a parcel of land to dispose of wastewater effluent, even taking as many factors into account as possible. Only actual operational experience will be able to pinpoint disposal capacity. The operating permit can and should be adjusted to actual experience, whether up or down. Mad Hatter presented evidence through the opinion testimony of a qualified expert that the disposal system has a capacity of 0.41 MGD. This opinion does not account for variations in nutrient uptake because they were not expected to make a significant difference in capacity. It assumes no drainage improvements on the site and assumes that sheet flow onto the site equals sheet flow off the site. In preparing the water balances that support the opinion, the annual rainfall in 1983 or 1984 (whichever represents the highest annual rainfall in the last ten years) was used, and water loss by evapotranspiration was conservatively estimated by assuming grasses at the site and making downward adjustments from data collected by the National Oceanic and Atmospheric Administration (NOAA) at Lake Alfred. To estimate water loss by percolation, the lowest permeability results from double ring infiltration tests (46.5 minutes/per inch) were converted using a conservative factor of 1.4 percent, resulting in water loss through percolation of just 0.421 inches per day. In its document entitled "The Land Treatment of Municipal Wastewaters," the federal Environmental Protection Agency (EPA) recommends applying a 4-10 percent reduction factor to measured percolation values to estimate water loss by percolation. But it is not clear what kind of percolation tests are recommended by the EPA. Expert witnesses for the DER accepted the water balance methodology used and calculations made by Mad Hatter. But the DER witnesses stressed that the water balance is, as a matter of DER policy, only a guide and a starting point in assessing the capacity of a particular parcel of land to dispose of effluent. This is because unique characteristics of a particular site (such as soil composition, grade and vegetation) can result in Significantly different capacity than calculated by the water balance. Based on a site visit on July 22, 1987, and other eyewitness reports, the DER experts were of the opinion that only 0.1 MGD of effluent could be disposed of as proposed. On July 22, 1987, the sky was clear and temperatures were in the 90s. The last rain was less than one inch on July 20, 1987; yet, 30 percent of the site was covered by two inches of water, and the ground was saturated all over the site on July 22. The water table generally was less than 2 feet below the surface on July 22. Local residents told the DER experts and later testified at final hearing that similar or wetter conditions are prevalent generally throughout the months of May through August. When saturated conditions such as were observed on July 22, 1987, prevail at the site, spray irrigation of effluent cannot take place without causing surface water sheet flow runoff or ponding prohibited by the DER Land Application Manual. During periods when no spray irrigation is possible, it will be necessary for Mad Hatter to store treated wastewater for disposal at a later time when soil conditions permit. Primarily because Mad Hatter's application called for installation of a 0.1 MGD interim package plant during field erection of the proposed permanent plant and because 0.1 MGD was the threshold size for a mandatory groundwater monitoring plan, the DER conservatively and grossly estimated site capacity to be 0.1 MGD. Pasco County's expert witness also based his opinion on a water balance. Like the Mad Hatter expert, the County expert did not account for variations in nutrient uptake, assumed no drainage improvements, and assumed no net sheetflow on or off the site. The County expert did not use the double ring infiltration method Mad Hatter's expert used or any other site specific data to measure hydraulic conductivity. He estimated hydraulic conductivity at eight feet per day based on regional data from the area of the Southwest Florida Water Management District. It is not understood how this measure of hydraulic conductivity relates to either the 46.5 minutes per inch infiltration rate observed in Mad Hatter's double ding infiltration test or the 0.421 inch per day percolation water loss rate used in Mad Hatter's water balance. But the County expert specifically testified that he does not agree with Mad Hatter's methodology for obtaining a percolation water loss rate. He testified that there is no relationship between the results of a double ring infiltration test and the hydraulic conductivity of soil. The former, he says, just measures the rate at which water can enter the "soil horizon" and is a function solely of the permeability of the top 6 inches or so of the soil; on the other hand, he says, the latter measures the rate at which water moves vertically through saturated soil and leaves the soil from below. Mad Hatter did not rebut this testimony. Using his method, the County expert opinion was that 0.1 MGD of effluent could be disposed of at the site with only three days (or, at that rate, 300,000 gallons) of storage for the average annual rainfall but that 16 days (or 1,600,000) of storage would be required to accommodate the 10-year recurrence interval, i.e., the heaviest rainfall experienced within the previous decade. The DER's Land Application Of Domestic Wastewater Effluent In Florida manual, at Section 1.10, provides in pertinent part: Since soil-plant relationships are complex, the initial design loading rate should be conservative; a maximum annual average of two inches per week is recommended. The department will consider a rate higher than the two inch per week average provided the rate is substantiated in the engineering report on the basis of the renovating and hydraulic capacity of the soil-plant system, the existing quality and use of surface or groundwater in the area, and other hydrogeologic conditions. A two inch per week loading rate equates to 341,900 gallons per day; 0.41 MGD equates to 2.40 inches per week; 0.1 MGD equates to just 0.59 inches per week. The DER's Land Application Manual requires a minimum effluent storage volume equal to three days maximum daily flow of the treatment plant. In addition, the manual recommends a storage volume equal to the plant's maximum daily flow multiplied by the number of non-application days necessary to accommodate the 10-year recurrence interval. If planned storage capacity were exceeded during continuing wet weather, Mad Hatter would attempt to return effluent overflow to the head of the plant, if possible. If there is no room at the head of the plant, approximately 24 acre-feet or 7.8 mullion gallons of effluent could accumulate on the site after the berms are constructed and swales improved, as proposed. If an emergency of such proportions developed that the emergency capacity of the site were exceeded, overflow from the site would be discharged, eventually, into the Anclote River but probably not into Lake Thomas. Mad Hatter failed to provide reasonable assurances that 0.41 MGD of treated wastewater cane be applied to the proposed disposal site without surface discharge or runoff in all weather conditions, including wet weather. Mad Hatter failed to provide reasonable assurances that effluent storage capacity proposed by Mad Hatter would be adequate to accommodate the total volume of effluent which would have to be stored on the site during wet weather saturated conditions if Mad Hatter were permitted to treat more than 100,000 gallons of sewage per day. There are reasonable assurances that 0.1 MGD of treated effluent can be applied to the proposed site without surface discharge or runoff in all weather conditions. The 1.5 million gallon effluent storage capacity proposed by Mad Hatter would be adequate to accommodate the volume of effluent which would have to be stored during wet weather saturated conditions if Mad Hatter were permitted to treat 0.1 MGD of sewage. Because the natural flow of groundwater and surface water is away from Lake Thomas, it is unlikely that groundwater or surface water contamination caused by the plant or spray field would impair water quality in Lake Thomas, particularly if only 0.1 MGD of treated effluent is disposed of on the site in the manner proposed. In the absence of a demonstration by Mad Hatter of additional effluent disposal capacity at alternative sites or through reuse agreements with local developers, it is not arbitrary for DER to require that the effective treatment capacity of the proposed Mad Hatter wastewater plant be limited to the demonstrated effluent disposal capacity of the proposed site by installation of a removable baffle in the extended aeration chamber of the plant.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Department of Environmental Regulation enter a final order granting the application of Mad Hatter Utilities, Inc., subject to the standard DER general permit conditions and subject to the following special permit conditions: A welded but removable steel "baffle," as described in Mad Hatter Exhibit 10, shall be incorporated in the proposed treatment plant reducing the size of the operable extended aeration chamber to one-fifth the original size and thereby reducing the operable capacity of the treatment plant to one-fifth, from 0.5 MGD to 0.1 MGD, until Mad Hatter can establish 0.5 MGD disposal capacity by reuse or by additional disposal acreage or both. Swales shall be improved and dug and berms constructed on the disposal site, as described in Mad Hatter Exhibit 2F. Bahia hay or, subject to DER approval, other similar grass shall be planted and maintained on the disposal site as the vegetative cover crop for nutrient uptake. Mad Hatter shall specify, subject to other permit conditions, its proposed spray irrigation schedule, including non-application days when spraying of effluent would not be possible due to adverse climatic conditions, harvesting conditions, maintenance of irrigation equipment, or other conditions which preclude irrigation. RECOMMENDED this 12th day of January, 1988, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 1988.
The Issue Whether respondent committed the violations alleged in the Notice to Show Cause, and if so, whether its license should be revoked or suspended, or whether a civil penalty should be imposed.
Findings Of Fact At all times relevant- to this cause, Real Estate Rentals, Inc. held license number 39-926-H issued by the Department of Business Regulation, Division of Hotels and Restaurants (Division) for the premises known as Ippolito Apartments located at 112 South Brevard Avenue, Tampa, Hillsborough County, Florida. The president of Real Estate Rentals, Inc. is E. L. Ippolito. On February 27, March 14, and March 25, 1986, Pablo Mercado inspected the Ippolito Apartments. Mr. Mercado is employed by the Division as an Environmental Health Specialist and his duties include the inspection of hotels, apartments, and other buildings. Mr. Mercado inspects between 40 and 50 buildings a week. Each building is routinely inspected four times a year. When Mr. Mercado inspected the Ippolito Apartments on February 27, 1986, he found several conditions which he considered to be statutory or rule violations. Mr. Mercado noted these violations on a standard form of the Division. The Division's form lists various items numbered 1-36. Items 1 (Fire Extinguishers), 5 (Fire Hazards), 11 (Building Repair/Painting), and 19 (Screening) were checked on the form as minor violations, and comments were made concerning each item. As to Item 1, Mr. Mercado noted that no fire extinguishers were in the building and that a fire extinguisher was needed on each floor or one in each apartment. As to item 5, Mr. Mercado noted that furniture needed to be removed from the hall. As to item 11, Mr. Mercado made the following comments: Need window facing st. apt. #1. You need a window in bathroom apt. #1. Paint inside bldg. Stairs need repair. Hole in bathroom floor apt. #3. Water leaking in the bathroom from the upstairs apt. into apt. #1. As to Item 19, Mr. Mercado noted that all the screens missing on the windows had to be replaced. The form was sent to Real Estate Rentals, Inc., with the indication that the document was a warning and that all violations had to be corrected by March 14, 1986. When Mr. Mercado made his inspection on February 27, 1986, he did not observe a hole in the bathroom floor in apartment #3 or observe any water leaking into the bathroom in apartment #1, and there was no competent evidence presented at the hearing to establish that either of these conditions existed. Mr. Mercado did observe that there were no fire extinguishers in the hall, and he did go into one apartment and observed that there was not a fire extinguisher in that apartment. Two other tenants informed him that they did not have a fire extinguisher in their apartments. Mr. Mercado observed that one of the windows facing the street contained no window pane but simply had a plastic bag taped over the window frame on the outside of the building to cover the empty space. On other windows jalousie slats were missing, and the window on the bathroom of apartment #1 was covered with a piece of plywood. Some screens were missing and some screens were torn up. One of the steps on the stairs was missing part of the two-inch lip, which created a hazard to individuals using the stairs. On March 14, 1986, Mr. Mercado made a return inspection. He noted that the furniture had been removed from the hall. However, he did not feel that any of the other violations listed had been corrected. Therefore, Mr. Mercado filled out a Call Back/Re-Inspection Report", which referred to the warning issued on February 27, 1986, and made the following comments: Violations: #1--#5--#11--#19 (See DBR-226) Only violation #5 is complied. The rest of the violations #1,#)1,#19 are not complied. The report indicated that the time to correct the violations had been extended to March 24, 1986. This report was sent to the respondent by certified mail. On March 25, 1986, Mr. Mercado again inspected the Ippolito Apartments. The conditions had not changed from the time of his previous inspection on March 14, 1986. Mr. Mercado visited the Ippolito Apartments again on April 7, 1986, and also on June 10, 1986. The pictures admitted into evidence as petitioner's exhibits No. 6 were taken on June 10, 1986. On June 10, 1986, the building was in the same condition as it had been on February 27, March 14, and March 25, 1986, except that several of the windows on the front of the building had been replaced with plywood boards. Mr. Mercado did not believe that the replacement of the windows with the boards corrected the violation as to the windows, but he could not remember whether the windows had been replaced with the plywood as of March 14th or the March 25th inspection, or whether they were replaced at a later time. Since slats were still missing from other windows on all of his inspections, he did not feel the violations as to the windows had been corrected. By June 10, 1986, the windows in front of the apartment had been replaced with plywood backed by 2 x 4 studs. According to Mr. Howell, who performed the work, the replacement of the windows with the plywood structure occurred approximately 2 1/2 months prior to the hearing, which would have been early or mid-April, 1986. In that the only competent evidence as to the date of the replacement of the front windows was Mr. Howell's testimony, it is found that the windows in the front of the building had not been replaced with plywood at the time of Mr. Mercado's inspections on March 14 and March 25, 1986. There was no competent evidence presented as to the condition of the windows in the front of the building on March 14 or March 25, 1986.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that petitioner enter a final order finding respondent guilty of three violations of Rule 7C-1.03(1) and one violation of Rule 7C-1.04(1) on February 27, March 14 and March 25, 1986, as set forth in charges 1 through 4 of the Notice to Show Cause, finding respondent not guilty of the violations set forth in charges 5 and 6 of the Notice to Show Cause, and imposing a total civil penalty of $975 assessed as follows: (1) failure to provide adequate fire extinguishers, $100 for each offense for a total of $300, (2) failure to maintain windows in good repair, $100 for each offense for a total of $300, (3) failure to maintain stairs in good repair, $50 for each offense for a total of $150, (4) failure to maintain screens in good repair, $75 for each offense for a total of $225. DONE and ENTERED this 9th day of October, 1986, in Tallahassee, Florida. DIANE A. GRUBBS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of October, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1800 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings On Proposed Findings of Fact Submitted by the Petitioner 1. Accepted in paragraph 1. 2.-3. Accepted generally in paragraph 2. Accepted in paragraph 3. Accepted in paragraph 4, except that competent evidence showed only that at least one apartment did not have fire extinguisher. The only evidence as to other apartments was hearsay. Rejected as immaterial. Rejected as immaterial in that evidence showed there was not a fire extinguisher in each apartment. 8.-9. Accepted in paragraph 4. 10. Rejected as irrelevant in that respondent was never notified or charged with a violation based on that condition. 11.-12. Accepted generally in paragraph 4. 13. Accepted in paragraph 3. 14.-15. Accepted in paragraph 5. Accepted in paragraph 6. Accepted in background, not finding of fact. Accepted in part in paragraph 7, however, whether violations were corrected was irrelevant because respondent was not charged with violations on April 17, 1986. Rejected as not a finding of fact in that it is a recitation of testimony. Rejected, date of repair set forth in paragraph 8. 22.-23. Rejected as immaterial and as recitation of testimony. 24. Rejected to the degree it is a finding of fact in that replacement of windows occurred after relevant time period. 25.-31. Rejected, not finding of fact. Rulings On Proposed Findings of Fact Submitted by the Respondents Accepted in paragraph 1. Rejected as irrelevant and also not supported by the evidence in that a violation was noted for correction. Accepted in paragraph 3. Accepted in part and rejected in part as set forth in paragraph 4. Accepted in paragraph 5. Accepted in part in paragraph 8, however, repair work irrelevant since it occurred after date of inspections. Rejected as irrelevant. Accepted in part in paragraph 4. Whether bathroom had exhaust fan is irrelevant since the issue was whether the window was in good repair. Reject that Mr. Mercado was not a credible witness. COPIES FURNISHED: James Kearney, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32301 R. Hugh Snow, Director Department of Business Regulation Division of Hotels and Restaurants The Johns Building 725 South Bronough Street Tallahassee, Florida 32301 Lynne A. Quimby, Esquire Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32301 Mr. Emilio L. Ippolito 901 South Rome Avenue Tampa, Florida 33606
Findings Of Fact On February 16, 1977, Joe Hodges, an inspector in petitioner's employ, inspected respondent's premises in the normal course of his duties. On a form styled "Public Food Service Inspection Record," Mr. Hodges noted that respondent's refrigerators lacked thermometers; that the dishwasher needed a new temperature gauge; that a screen door opening onto the outside from the kitchen was not in good repair; that the employees' restroom had no soap and towels and had a window screen in need of repair; that the surfaces of some work tables were not smooth; that the employees' hair restraints were ineffective; and that there were many roaches. After this inspection, respondent Laramore acquired thermometers for the refrigerators, caused the area outside the premises to be cleaned, put soap and towels in the employees' restroom and caused the restroom window screen to be repaired. On March 22, 1977, Mr. Hodges returned to respondent's premises, inspected again and issued a formal directive to respondent to exterminate roaches, clean the kitchen floors, repair certain nozzles on the dishwasher, clean certain equipment, store food elsewhere than on the floor of the walk-in refrigerator, lower the temperature in certain refrigerators, provide additional refrigerator thermometers, repair the lining of a freezer lid, and furnish effective hair restraints to employees. On the following day, respondent contacted Larry Farris of Panhandle Pest Control, who regularly sprayed the restaurant for bugs, and asked him to take whatever extra steps were necessary to exterminate the roaches. On the same day, respondent contacted Easom Plumbing Company and arranged for the dishwasher to be repaired. The screen door was fixed, although it was broken subsequently by men using dollies to deliver supplies. Respondent caused the freezer lining to be replaced, certain table tops to be sanded down, a sink drain to be repaired, and the entire kitchen to be steam cleaned. On March 21, 1977, Mr. Hodges returned to respondent's premises and filled out a call back inspection report which listed the items set forth in the notice to show cause, petitioner's exhibit No. 1. On December 30, 1977, together with Mr. George Parish, Mr. Hodges made another visit to respondent's premises. Mr. Parish and Mr. Hodges found roaches, a torn screen on the back door, dirty equipment and a refrigerator containing salad and pastries stored at a temperature of 56-60 degrees. Mr. Parish saw live German cockroaches in many places, notably near an oven no longer used for cooking. This oven, certain other equipment, aswell as dish and pot storage shelves were dirty and needed to be cleaned. Mr. Parish noticed roach excrement caked alongside one of the tables in the kitchen. Mr. Parish and Mr. Hodges found that the sink drain leak had been fixed. They perceived no deficiency in respondent's employees' hair restraints, even though these did not differ significantly from restraints used in the spring of 1977. They also found that respondent's dishwasher had been repaired. At the time of the inspection on December 30, 1977, the dishwasher operator, who was washing one load after another, made a wash cycle last two and a half minutes and followed up with a rinse cycle lasting a minute and a half. The dishwasher contained a hot water heater to boost the temperature of the water used for washing and rinsing dishes in the machine. Although this was in good working order, the dishwasher was being operated with a rinse water temperature of only 172 degrees. The normal wash cycle is 30 seconds and the rinse cycle normally lasts only 12 seconds. With repeated loads of dishes and abnormally long cycles, the water used for dishes in later loads does not reach the same high temperature as at first.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner assess a civil penalty against respondent in the amount of one hundred dollars ($100.00). DONE and ENTERED this 31st day of January 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Lawrence D. Winson, Esquire The Johns Building 725 South Bronough Street Tallahassee, Florida 32304 Mr. Herman D. Laramore, Esquire Post Office Box 793, Courthouse Marianna, Florida 32446
Findings Of Fact Respondent is a licensed cosmetologist in the State of Florida. His license number is CL-0114757. At times relevant to the inquiry, Respondent was the owner and/or operator of a cosmetology salon named La'Moods. At times relevant, the license number for La'Moods was CE-0058354. At times relevant that salon was located in Jacksonville, Florida. Carol Engels is an inspector for the Petitioner. In performing her duties she routinely inspects cosmetology salons. Ms. Engels made a routine inspection of La'Moods on October 27, 1994. While the inspection was being conducted, the salon was open for public business. At that time, Chester Akins, a cosmetologist at the salon was combing a customer's hair. Ms. Engels inspected Mr. Akins' work area. In the Akins' work area there were loose hair cuttings. There was clutter on the top of a counter in the work area. When that clutter was moved by Ms. Engels, several cockroaches crawled out onto the work station. In addition, Ms. Engels observed a number of "gobs" of hair and greasy combs in that part of the work area that is referred to as a "clean area". Reference the cosmetologist's obligations to be performed after each customer leaves, the combs should be washed with soap and water and then disinfected for about 20 minutes and then stored in the clean area. In this instance, the clean area for Mr. Akins' work station was a drawer and that drawer had loose hair, greasy combs with hair in them, and dirty brushes in it. The drawer also had Mr. Akins' personal effects, some papers such as receipts, keys and money. The receipts, keys and paper should not have been in the clean area. Respondent was not in attendance when the inspection commenced. He came to the salon before the inspection was concluded. He did not observe the clean area at the Akins' work station on the date the inspection was made. The inspection sheet concerning the prior inspection that had been performed was not conspicuously displayed on October 27, 1994. It had been moved from a conspicuous location to the shampoo area. Respondent surmises that the inspection sheet had been placed there by a cleaning crew. This was not the first occasion in which the prior inspection sheet was not conspicuously displayed. Respondent had been cited for violations of not having prior inspection sheets conspicuously displayed because the inspection sheet had fallen off the wall or been moved by persons cleaning the salon.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That a Final Order be entered making Respondent responsible for the violations found and fining Respondent $250.00. DONE and ENTERED this 25th day of July, 1995, in Tallahassee, Florida. CHARLES C. ADAMS, 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 25th day of July, 1995. APPENDIX The following discussion is given concerning the Petitioner's proposed findings of fact: Those facts are subordinate to facts found in the Recommended Order. COPIES FURNISHED: Dorothy Faircloth, Executive Director Board of Cosmetology Department of Business and Professional Regulation 1940 No. Monroe Street Northwood Centre, Suite 60 Tallahassee, FL 32399-0790 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 N. Monroe Street Northwood Centre, Suite 60 Tallahassee, FL 32399-0790 James E. Manning, Qualified Representative Department of Business and Professional Regulation 1940 N. Monroe Street Northwood Centre, Suite 60 Tallahassee, FL 32399-0792 Eugene Eubanks 1443 Raven Drive Jacksonville, FL 32218
