Findings Of Fact Since 1984, the Department has been the state agency charged with the responsibility to establish rules and regulate underground pollutant storage facilities in Florida. In 1988, the Legislature added the administration of the newly enacted Florida Petroleum Liability and Restoration Program to the Department's duties. The program was to be established on or before January 1, 1989. The Applicant is the owner of a petroleum storage system in Jacksonville, Florida. Since 1984, it has been subject to the rules regarding underground pollutant storage facilities promulgated by the Department. On September 18, 1989, an odor indicative of possible petroleum contamination was discovered at the site during the installation of monitoring wells. A Discharge Notification Form was sent to the Department by the Applicant on October 23, 1989. The form advised that there were no leaks in the system. It was suggested that the odor may have resulted from surface spill at the site over a number of years. In response to the notification, an inspection of the site was completed by the Department on December 5, 1989. The inspection revealed the following on-site violations: Registration requirements were not being met. The forms had not been updated to include the presence of monitoring wells and overfill protection at the facility. Two underground tanks had not been properly abandoned. Inventory and reconciliation records had not been properly maintained, as required by rule since 1987. This violation was reviewed, and discussed in detail with on-site representatives of the Applicant. The monitoring wells were not installed by the time deadlines set forth in the Department's rules regarding stationary tanks. Since the wells were installed in September 1989, samples had not been taken for visual signs of petroleum contamination. The purpose of the system is to allow the owner of the storage tanks to learn if there is a leak in the tanks that can be quickly controlled to limit contamination. The day after the inspection, the Applicant applied for a determination of eligibility for participation in the restoration coverage portion of the new Florida Petroleum Liability Insurance and Liability Program. An affidavit was signed stating that all of the Department's rules regarding stationary tanks were being complied with by the Applicant. Six days after the inspection, the Department sent the Applicant written notice of the results of the inspection. The Applicant was given time frames and instructions for correcting the listed violations that could be corrected. A contamination assessment and clean up were also required in the letter. This letter did not address the issue of eligibility for the restoration funding program because that was a matter unrelated to the inspection results. On March 7, 1990, the Department determined the facility was ineligible for participation in the restoration funding provided by the Florida Petroleum Liability and Coverage Program. The following reasons were given: Failure to properly abandon underground storage tanks, pursuant to Section 17-61.050(3)(c), Florida Administrative Code. Failure to maintain inventory records, reconciliations, and significant loss/gain investigation as per Section 17-61.050(4)(c), Florida Administrative Code. Failure to install monitoring system and overfill protection by the dates set forth in Section 17-61.06(2)(c)2, Florida Administrative Code. Failure to properly monitor leak detection system, pursuant to Section 17-61.050(5)(c), Florida Administrative Code. The 10,000 gallon fuel oil tank and the 3,000 gallon waste oil tank present at the facility were abandoned in March 1990. The notice issued by the Department after its inspection in December 1989, gave the Applicant sixty days after receipt of the notice to properly abandon the tanks. The Applicant substantially complied with this requirement after the written notice was received. Although the Applicant failed to maintain the inventory records, reconciliations, and significant loss/gain investigations required by the Department rules, some of these violations had been corrected prior to the Department's inspection in December 1989. Correct inventory recordkeeping was discussed during the inspection, and the need to immediately implement the proper recordkeeping practices was emphasized in the post-inspection notice of violations. All of the recordkeeping violations were not cured until August 1990. The records kept by the Applicant during the noncompliance period from 1984 to August 1990, did not provide a substantially equivalent degree of information regarding possible leak detection or prohibited discharges as the required recordkeeping procedures. Two underground stationary storage tanks on the site have been part of the Applicant's petroleum storage system since 1970 and 1975, respectively. The monitoring wells and overfill protection for these tanks should have been in place by December 31, 1987. Neither monitoring system was installed until September 1989. The Applicant began the contract negotiations for installation in September 1988. The Applicant did not demonstrate that the facility contained an alternative procedure between December 31, 1987 and September 1989, that provided a substantially equivalent degree of protection for the lands, surface waters, or groundwaters of the state as the established requirement for monitoring wells and overfill protection. In December 1989, the Department's notice advised the Applicant that the monitoring wells should be sampled monthly for visual signs of petroleum contamination. Since April 1990, the Applicant has been completing the monthly sampling in the monitoring wells as part of its leak detection system, as required by the Department's rule regarding underground stationary tanks.
Recommendation Accordingly, it is RECOMMENDED: That the Department enter a Final Order denying Petitioner's application for restoration coverage in the Florida Petroleum Liability and Restoration Program at the Jacksonville location. DONE and ENTERED this 28 day of December, 1990, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY 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 _28_ day of December, 1990. APPENDIX TO RECOMMENDED ORDER The proposed findings of fact submitted by Petitioner are addressed as follows: Rejected. Improper interpretation of law. As for the facts in the first sentence, they are accepted. See HO #8. Rejected. Irrelevant. See HO #9. Rejected. Contrary to fact. See HO #9 and #11. Rejected. Contract to fact. See HO #11. Rejected. Contrary to fact. See HO #12 and #13. Rejected. Contrary to fact. Improper shifting of duty ad legal responsibility. Rejected . Improper application of law. The Respondent's proposed findings of fact are addressed as follows: Accepted. Accepted. Accepted. Accepted. See HO #8. Accepted. See HO #8. Accepted. See HO #3. Accepted. See HO #3. Accepted. See HO #3. Accepted. See HO #5. Accepted. Accepted. See HO #4. Accepted. See HO #4. Accepted. Accepted. See HO #6. Accepted. See HO #4 and #6. Accepted. See HO #4 and #6. Accepted. Accepted. Accepted. See HO #4 and #9. Accepted. Accepted. See HO #4 and #9. Accepted. Accepted. See HO #9. Accepted. See HO #4 and #10. Accepted. Rejected. Contrary to fact. See HO #10. Accepted. Accepted. Accepted. See HO #10. Accepted. See HO #3 and #12. Accepted. Accepted. See HO #13. Accepted. Accepted. See HO #6. Accepted. See HO #4 and #6. Accepted. See HO #6. Accepted. Rejected. Not established by evidence. See HO #6. Accepted. Accepted. Accepted. Accepted. See HO #7. Accepted. Accepted. COPIES FURNISHED: William Chadeayne, Qualified Representative 8933 Western Way, Suite 16 Jacksonville, Florida 32256 Janet E. Bowman, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32399-2400 Dale H. Twachtmann, Secretary Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, Esquire General Counsel Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32399-2400
The Issue Whether Petitioner is entitled to participate in the Reimbursement Program established under the State Underground Petroleum Environmental Response (SUPER) Act of 1986 for the petroleum terminal owned by Gulf Products Division of BP Oil Company at Port Everglades, Florida.
Findings Of Fact The State Underground Petroleum Environmental Response (SUPER) Act of 1986 provides for the expeditious cleanup of sites contaminated as the result of storage of petroleum or petroleum products. The Reimbursement Program, found in Section 376.3071(12), Florida Statutes, provides for reimbursement of the allowable costs of site rehabilitation contaminated as a result of a discharge related to the storage of petroleum or petroleum products from a storage tank, or its integral piping or dispensing system. The Reimbursement Program does not provide for reimbursement of cleanup costs for discharges related to the transportation or disposal of petroleum or petroleum products. The site at issue in this proceeding is a terminal facility used for the storage of petroleum and petroleum product located at 1500 Southeast 26th Street, Port Everglades, Florida. This facility is referred to as Gulf Facility No. 46888 and DER Facility No. 068732278 (Gulf Terminal). The subject terminal facility is one of fourteen petroleum storage terminals located at Port Everglades, Florida. Petroleum and petroleum products come to the terminal by ship and are pumped from the ship through permanent pipelines to the large aboveground storage tanks located at the facility. The petroleum and petroleum products are stored in these large tanks until it is time for the product to be distributed to the end user. The Gulf Terminal contains eighteen storage tanks whose total capacity is 650,000 barrels of petroleum or petroleum products. These tanks vary in size, with the smallest having a capacity of 10,000 barrels and the largest having a capacity of 80,000 barrels. One barrel equals 42 gallons. The primary activity of the terminals at Port Everglades is to store petroleum or petroleum products. None of the terminals at Port Everglades, including the Gulf Terminal, refines or produces petroleum or petroleum products. Operation of this facility began in 1946. Petitioner, as the successor to the Gulf Oil Corporation, owned and operated the facility until February 1, 1985, when it sold the facility to BP Oil, Inc. As the previous owner of the facility, Petitioner performed an environmental audit which revealed petroleum hydrocarbon contamination at the site. Petitioner is responsible for the cleanup and is entitled to reimbursement of the allowable costs of the cleanup if the site is eligible to participate in the reimbursement program. Any contamination of the soil and groundwater at the site was caused by discharges of petroleum or petroleum products, water contaminated with petroleum or petroleum product or sludges which consist predominately of petroleum or petroleum product constituents. Based on hydrogeological assessment information, Petitioner determined that response action, including ground water cleanup activities, was required at the site. Petitioner hired independent contractors to conduct the response action. In 1986, Petitioner designed a recovery system for petroleum and petroleum product and a ground water treatment system at the site. Through February, 1989, the recovery system had recovered over 12,000 gallons of petroleum or petroleum products, which constitutes the recovery of between 60%- 70% of the total amount in the ground. Through November 1989, Petitioner had expended in excess of $560,000 on its response action at the Gulf Terminal. Petitioner advised Respondent of its response action at the site by letter dated January 6, 1988. Petitioner submitted documentation to Respondent concerning hydrogeological assessment at the site which included field and laboratory work and investigation performed for the site from 1984 to the present. Pursuant to the requirements of SUPER Act, Petitioner notified Respondent of its intention to seek reimbursement for money spent conducting response action in accordance with Chapter 17-70, Florida Administrative Code, with regard to petroleum and petroleum product contamination at the site. Petitioner's notice to Respondent was timely and was procedurally correct. On July 13, 1989, Respondent issued its Order of Determination of Ineligibility concerning Petitioner's request for reimbursement. As stated in this order the initial basis for Respondent's denial of eligibility was: The determination is based on the fact that the contamination was not related to the storage of petroleum or petroleum products. Sources of contamination at this site include tanker trucks, an oil/water separator, a holding pond, and crude oil and tank-bottom sludge disposal pit. These items are not petroleum storage systems as defined in Section 376.301 F.S. therefore (sic), this site is not eligible for reimbursement under the SUPER Act. ... Respondent clarified its Order of Ineligibility by a Notice to Amend and Clarify dated November 14, 1989, which provides, in pertinent part, as follows: The notice of denial provides that the site is being denied due to the fact that the disclosed sources of contamination are not petroleum storage systems. One of the criteria for being a petroleum storage system is that it be used or intended to be used for storage of petroleum or petroleum product. It is the criteria that the Department contends is not met in this case; i.e., that the discharges were not intended for storage. Section 376.3071(4), Florida Statutes, specifically limits the use of the Environmental Protection Trust Fund to incidents of inland contamination related to storage of petroleum or petroleum product. * * * The Department recently became aware that prior to 1983, contaminated water was disposed of directly from tanks at the site with no pretreatment by an oil/water separator. As with the disposal of oil and sludge to a pit, the act of intentionally disposing of contaminants to the ground is not "related to storage" as required by Chapter 376, Florida Statutes. * * * Wherefore, The State of Florida Department of Environmental Regulation hereby requests that the Hearing Officer allow for the amendment of the notice of denial of eligibility to include the following basis for denial: Contamination at the site is related to the disposal of petroleum or petroleum product, or water contaminated with petroleum or petroleum products. Disposal activities including the intentional discharge and disposal of contaminated water and/or fuel from tanks, oil water separators and sump areas, the intentional discharge and disposal of contaminated water to a percolation pond, the intentional discharge and disposal of oil and sludge to a disposal pit, and the intentional discharge and disposal of fuel to the ground at the loading rack. Among the causes of contamination of the Gulf Terminal are accidental overfills of tanks and leaks from an integral pipeline. Absent any other source of contamination, the discharges that occurred at the Gulf Terminal due to these causes would be eligible for the reimbursement. Respondent has determined, however, that the following additional sources of contamination render the entire response action ineligible for reimbursement: Discharges of dissolved hydrocarbon molecules contained in water which accumulated in storage tanks; Discharges of petroleum or petroleum products at the loading rack at the terminal; and The discharge of crude oil and of crude oil tank bottoms. TANK OVERFILL During the operation of the Gulf Terminal, petroleum and petroleum products have been accidentally discharged onto the ground. In 1955, an unknown quantity of petroleum or petroleum products was accidentally discharged onto the ground in the areas of tanks 104 and 105 as a result of these tanks being over- filled. Following this massive spill, between 5,000 - 10,000 barrels of product was recovered, while an unknown quantity could not be recovered. PIPELINE LEAK Since 1955, approximately 15,000 additional barrels of petroleum or petroleum products were leaked from an underground pipeline that is integral to the storage system in an area between the loading rack and tank 101, extending toward the west to between tanks 110 and 102. This is the vicinity where the heaviest free floating petroleum contamination exists. DISCHARGE OF CONTAMINATED WATER Florida has adopted the standard code for the design of aboveground storage tanks prepared by the American Petroleum Institute (API-650). The tanks at the Gulf Terminal are in compliance with API-650. The accumulation of water in storage tanks is a problem associated with the storage of petroleum or petroleum products in the storage tanks at the Gulf Terminal and at the other terminals at Port Everglades. Water accumulates in the storage tanks from rainfall and from condensation. The records of the US Department of Commerce, National Oceanic and Atmospheric Administration for Station 08063163 (Fort Lauderdale, Florida) accurately depict the rainfall levels at the terminal facility. The total annual rainfall levels are as follows: 1980, 69.67 inches; 1981, 57.9 inches; 1982, 82.92 inches; 1983 75.16 inches; 1984, 59.4 inches; 1985, 63.74 inches; 1986, 64.14 inches, 1987, 58.50 inches; 1988 40.66 inches. Because water is heavier than petroleum and petroleum products, the water accumulates at the bottom of the tanks. It is essential to the proper storage of the petroleum or petroleum products that the water be removed for at least three reasons. First, if the water is not removed, the tanks would eventually become filled with water instead of product. Second, the product contaminated by water, particularly fuel for motor vehicles and aircraft, would not meet specifications. Third, water in the tanks speeds the corrosion of the tank. In order to remove this water that accumulates at the bottom of the storage tanks, a water draw-off mechanism located at the bottom of the tank is a design feature of API-650. When water accumulates in the bottom of the tank, the water is drained out through the water draw-off mechanism. The storage tanks located at the Gulf Terminal are equipped with such a water draw-off mechanism. Throughout the existence of the facility, accumulated water in the tanks has been controlled by discharging the water through the water draw-off mechanism. From 1948 to 1980, water was drained out of the tanks through the water draw-off mechanism and on to the ground. Beginning in 1980, the water was taken from the tanks through the water draw-off mechanism and piped to a catch basin where an effort was made to recover petroleum product by skimming the water before the water was discharged into the ground. Since 1985, the water taken from the tanks through the water draw-off mechanism has been treated by an oil/water separator which effectively removes all petroleum product before the water is discharged. The purpose of the oil/water separator is to separate petroleum product from water so that the petroleum product can be returned to the storage tank and the water can be discharged. This process serves to prevent the discharge of petroleum product. Up to 1988, the discharges to the ground from the oil/water separator at the Gulf Terminal accumulated in a holding pond. In 1988, the holding pond was eliminated and the water discharges from the oil/water separator were routed to a holding tank prior to treatment by an air stripper and subsequent discharge into the canal adjacent to the property. At all times since 1983, the water drawn out of the tanks has been the subject of permits issued by Respondent which approve the use of the oil/water separator. While it is necessary for the operation of the storage tanks that water be drawn from the tanks, it is not necessary for the operation of the storage tanks for the contaminated water to be discharged onto the ground. The purpose of discharging the water was to dispose of it. There was no intent to recover the contaminated water after it was discharged. Any water coming out of a storage tank is contaminated with dissolved petroleum. It may have solids in it and floating residue or product on it. Between 1946 and 1980, when this water from the storage tanks was discharged to the ground, any contaminates in the water would be discharged along with it. Water has been drained from tanks numbered 101, 106, 109, 110, 111, 112 113, and 114 on a daily basis. The other tanks are drained after a rainfall. An average of one or two inches of water was drained off each time it rained. Following a rainfall, in excess of 30 barrels of water would be drained from the smaller tanks, while approximately 300 barrels of water would be drained from the larger tanks. The discharge of the water drawn from the storage tanks contributed to the contamination of the groundwater at the Gulf Terminal. This type contamination exists in almost all areas of the site. Petitioner was unable to distinguish the contamination to the groundwater caused by the discharge of contaminated water drawn from the storage tanks from contamination to the groundwater which resulted from other causes. Petitioner failed to establish that the contribution to this contamination to the groundwater by the discharge of the contaminated water drawn from the storage tanks was insignificant. THE LOADING RACK The loading rack at the Gulf Terminal is the apparatus by which the petroleum in the storage tanks is dispensed to tanker truck for distribution to consumers. The loading rack is a series of dispensers which operate much like at a service station except that it fuels tanker trucks rather than automobiles. The loading rack is connected by permanent integral piping to the storage tanks. The purpose of the loading rack is to load the transport trucks. Without the storage tanks at the terminal, there would be no need for a loading rack. Over the years, discharges have occurred in the loading rack, usually as the result of human error. Occasional overfills in the 10-15 gallon range have occurred while a truck was being filled. This type discharge is analogous to a spill which occurs at a service station when an automobile is being fueled and the fuel splashes back or overfills the automobile's fuel tank. The supervisor of Respondent's Reimbursement Section testified that this type discharge, absent other causes, would probably be eligible for reimbursement. This testimony conflicts with the official position taken by Respondent in this proceeding that the cleanup caused by the operation of the loading rack is ineligible for reimbursement. In other incidents, small amounts of product ranging from a teacup to less than a gallon, were occasionally discharged while a truck was being drained of one type of product so that the truck could transport another type of product. The loading rack is an integral part of the storage system because without a means of moving the product out of storage and into the distribution system, the storage tanks could not provide a meaningful function. The discharges which occurred at the loading rack during the course of both loading and unloading trucks are insignificant when compared with the other sources of contamination at the site. TANK BOTTOMS In 1956, a storage tank was emptied for the purpose of switching product from crude oil to diesel fuel. At the time the change in product was made, approximately 1000 barrels of sludge and crude oil were disposed of in a pit adjacent to tank 101. Also disposed of was the tank bottom, a hard tar residue which formed at the bottom of the tank. Oil occasionally oozes to the surface in the vicinity of the pit adjacent to tank 101, but the area around the sludge pit has not been found to be contaminated, and the tank bottom has remained a hardened mass. Each tank on the site also had a pit alongside the tank where a tank bottom was disposed. Although it was necessary to remove the sludge and the tank bottoms to be able to properly operate the storage tanks, it was not necessary for the operation of the storage tanks to dump the sludge and the tank bottoms onto the ground or into the pits. The purpose of discharging the crude oil sludge and the tank bottoms was to dispose of them. There was no intent to recover the crude oil sludge or the tank bottoms water after they were discharged. CONTAMINATION PHASES The contamination at the site exists in three phases, floating petroleum product contamination, dissolved petroleum groundwater contamination, and sludge contamination. The contamination in the form of floating petroleum was caused by discharges of petroleum or petroleum products following the tank overfills, the pipeline leaks, and spills at the loading rack. The dissolved groundwater contamination was caused by two primary sources. First, the dissolved groundwater contamination was caused by floating petroleum product coming into contact with groundwater. Upon such contact, molecules from the floating petroleum would dissolve into the water, causing contamination. Second, the dissolved groundwater contamination was caused by the discharge of the contaminated water that had been drawn off from the storage tanks. Petitioner was unable to distinguish the dissolved groundwater contamination that was caused by accidental discharges of product from the contamination caused by the discharge of the contaminated water. Petitioner was also unable to establish that the dissolved groundwater contamination caused by the contaminated water was insignificant. The sludge contamination was caused by the discharge of crude oil and crude oil tank bottoms. CLEANUP The sludge contamination is capable of being cleaned up separately from the free floating petroleum contamination and the groundwater contamination at the site. The sludge contamination is separate and distinct from the other contamination at the site both as to the location of the contamination and as to the methods that would be employed to clean up that type of contamination. Free floating petroleum contamination is recovered by drawing down the water level in a well by use of a pump so that a cone of depression is created. The cone of depression is a funnel shaped depression that causes the surface of the underground water table to bend down towards the well in all directions. The free floating petroleum which flows on top of the underground water surface is then recovered by use of a second pump. The free floating petroleum is then pumped into a holding tank where the recovery of free floating petroleum is completed. The recovery of free floating petroleum contamination is usually more expensive to accomplish than groundwater cleanup because more equipment is required. Groundwater cleanup usually takes a longer period of time to accomplish than does free floating product cleanup. The same or a similar well used to recover the free floating petroleum can also be used for the cleanup of contaminated groundwater. The contaminated groundwater is pumped from the well into an oil/water separator where the water and dissolved petroleum is separated, water is taken off the bottom, put through an air stripper, and is returned to the ground through an infiltration unit. Respondent has previously found sites eligible for the reimbursement program even though those sites experienced discharges which alone would render a site ineligible for the reimbursement program. The basis for finding these sites eligible was that the ineligible discharges had become indistinguishable from the eligible discharges and were insignificant by comparison. Petitioner has complied with all procedural requirements for seeking eligibility contained in Section 376.3701, Florida Statutes. Respondent has not been denied access to the Gulf Terminal. Respondent has made no determination that there has been gross negligence in the maintenance of the petroleum storage system locate at the Gulf Terminal. Petitioner has not willfully concealed the existence of a serious discharge at the Gulf Terminal. Petitioner has not falsified any inventory records maintained with respect to the Gulf Terminal. Petitioner has not caused any intentional damage to the Gulf Terminal. The Gulf Terminal is not owned by the federal government. Petitioner's challenge to Respondent's order of ineligibility was filed in a timely manner.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is Recommended that Respondent enter a final order which determines that the subject site is eligible to participate in the reimbursement program for the cleanup of the free floating petroleum contamination, but that the subject site is ineligible to participate in the reimbursement program for the cleanup of the sludge contamination and for the cleanup of the groundwater contamination. RECOMMENDED this 20th day of July, 1990, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of July, 1990. APPENDIX TO RECOMMENDED ORDER, CASE 89-4521 The following rulings are made on the proposed findings of fact submitted by Petitioner in its Supplemental Proposed Recommended Order. The proposed findings contained in paragraphs 1-16, 18-25, 27-30, 33, 36-42, 44, 47-50, and 53-54 of the Supplemental Proposed Recommended Order are adopted in material part by the Recommended Order. The proposed findings contained in paragraphs 17, 31-32, 46, and 51-52 of the Supplemental Proposed Recommended Order are rejected as being contrary to the findings made and to the conclusions reached. The proposed findings contained in paragraph 26 of the Supplemental Proposed Recommended Order are adopted in part and are rejected in part as being unnecessary to the conclusions reached. The proposed findings contained in paragraph 34 of the Supplemental Proposed Recommended Order are rejected as not being established by the greater weight of the evidence. The testimony cited by Petitioner in support of these proposed findings do not establish the proposed findings. The proposed findings conflict with the contents of the Report of Ground-Water Quality Assessment accepted into evidence as Respondent's Exhibit 1. The proposed findings contained in paragraphs 35 , 43, and 45 of the Supplemental Proposed Recommended Order are rejected to the extent the proposed findings conflict with the findings made and the conclusions reached. The following rulings are made on the proposed findings of fact contained in Respondent's Proposed Recommended Order and in Respondent's Supplemental Proposed Recommended Order. The proposed findings of fact in paragraphs 1-5, 7-19, 23, 25-31, 33-34, 39- 52, 55-68, and 70-72 of Respondent's Proposed Recommended Order are adopted in material part. The proposed findings of fact in paragraphs 6, 20-22, 24, 32, 35-38, and 69 of Respondent's Proposed Recommended Order are rejected as being subordinate to the findings made or to the conclusions reached. The proposed findings of fact in paragraphs 53 and 54 of Respondent's Proposed Recommended Order are rejected because the testimony referred to by Respondent in support of the proposed findings relates to amounts discharged following rainfalls, not amounts discharged daily. The proposed findings of fact in paragraphs 1-14 of Respondent's Supplemental Proposed Recommended Order are rejected as being subordinate to the findings made or to the conclusions reached. COPIES FURNISHED: E. Gray Early, Esquire Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Robert W. Wells, Esquire Ignacio E. Sanchez, Esquire KELLEY, DRYE & WARREN 2400 Miami Center 201 South Biscayne Boulevard Miami, Florida 33131 Dale H. Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue The issue to be determined in this case is whether CJC Properties, Ltd. (CJC), is eligible for state restoration funding assistance under the Petroleum Contamination Participation Program or the Florida Petroleum Liability and Restoration Insurance Program for one or more discharges of gasoline at DEP Facility No. 378943938 (“the facility”).
Findings Of Fact The Facility CJC is a Florida Limited Partnership. It is the current owner of property located at 5691 U.S. Highway 27 North, in Tallahassee. Prior to CJC’s acquisition of the property, the property was owned by Carolyn J. Chapman, John W. Chapman, Jane Chapman Latina, and Carolyn Chapman Landrum (“the Chapmans”). The property was leased to various entities and operated as a gas station. The tanks and dispensers remained in service until November, 1995. The last operator of the facility was Lake Jackson 76, Inc. There were five underground petroleum storage tanks at the facility. Before 1991, one of the tanks at the facility was used for regular, leaded, gasoline. When leaded gasoline was phased out, the tank was used for unleaded gasoline. Site Assessments and Sampling Data On November 30, 1995, the Chapmans employed Petroleum Contractors, Inc., to remove the five storage tanks. During the tank removal, Environmental and Geotechnical Specialists, Inc. (“EGS”) performed an assessment to determine whether the facility was contaminated with petroleum or petroleum products. The Underground Storage Tank Removal Report prepared by EGS noted that all five tanks appeared to be intact. Soils in the tank pit wall and bottom were not discolored. No significant contamination was observed directly below the tanks. Soil from the tank pit was stockpiled on the site. EGS observed no significant signs of contamination of this soil. The soil stockpile was also screened with a Flame Ionization Detector Organic Vapor Analyzer (OVA). No organic vapors were detected. An OVA detects any organic vapor, but is used as a screening tool to find petroleum vapors. Department rules require that an OVA reading be performed both unfiltered and filtered. The filtered reading screens out everything but methane and is “subtracted” from the unfiltered reading to determine the presence of petroleum vapors. Twenty-four soil samples were taken from various depths at nine locations in the tank pit. These samples were tested using an OVA. Nine of the soil samples, taken from four locations, had corrected OVA readings indicative of petroleum contamination. EGS concluded that “soil contamination detected in the tank pit is likely the result of a leak in the piping” between the dispensers and the tanks. Soil samples were also taken from three borings in the vicinity of the dispenser island and OVA-tested. In boring D-2, organic vapors were detected from the surface to a depth of approximately seven feet. The OVA readings from D-2 declined with depth. EGS reported that “some contamination was detected beneath a dispenser; however, it does not ‘appear’ to significantly extend below six (6) feet.” EGS did not report both filtered and unfiltered OVA readings for the soil samples taken from the dispenser area, as it had done for soil samples taken from the tank pit and the stockpile. For the dispenser area soil samples, EGS reported a single OVA reading for each sample, without indicating whether the reading was “corrected” after filtering. For this reason, the Department contends that these data are unreliable. CJC points out that EGS stated in the text of its report that the soil samples were filtered. CJC also argues that, because the filtered OVA readings for soil samples taken from the tank pit area were not different from their unfiltered readings, the OVA readings for the soil samples from the dispenser area would not have changed after filtering. The preponderance of the evidence is that the contamination in the dispenser area was petroleum. Based on EGS’ findings during the tank removal in November 1995, Petroleum Contractors, Inc., filed a Discharge Reporting Form on December 1, 1995, stating that there had been a discharge of unleaded gasoline at the facility. In January 1996, the Chapmans applied to participate in FPLRIP based on the discharge reported on December 1, 1995. By order dated January 26, 1996, the Department determined that the reported discharge was eligible for state-funded remediation assistance under FPLRIP. In 1997, another consultant, Levine Fricke Recon (LFR) conducted a site assessment at the facility and submitted its Interim Site Assessment Report to the Department. As part of its own soil sampling at the site, LFR collected a “direct push” soil boring in the dispenser island area, near the place where EGS had reported organic vapors. The boring data showed no petroleum vapors until the interval 16-to-20 feet below ground surface. LFR also collected and analyzed groundwater samples from the site. It reported that a sample taken from beneath the former diesel dispenser contained lead. Because lead occurs naturally in soils, its presence in a water sample does not confirm that a discharge of leaded gasoline occurred. In 1998, LFR conducted a second assessment of the facility site. It installed and sampled four shallow monitoring wells, designated MW-1S through MW-4S, and three deep monitoring wells, designated MW-2D through MW-4D. Groundwater samples from MW-3S and MW-3D were analyzed for lead, ethylene dibromide (EDB), and 1,2-Dichloroethane. All three substances are usually detected in a groundwater sample contaminated with leaded gasoline. On August 28, 1998, LFR submitted its Interim Site Assessment II to the Department, which shows lead and EDB were found in a sample taken from MW-3S, but not 1,2-Dichloroethane. LFR did not conclude or express a suspicion in either of its two assessment reports that leaded gasoline had been discharged at the facility. The deadline for submitting a Discharge Reporting Form or written report of contamination was December 31, 1998. A site assessment report received by the Department before January 1, 1999, which contained evidence of a petroleum discharge, was accepted by the Department as a “report of contamination.” The petroleum discharge information received by the Department before January 1, 1999, consisted of the Underground Storage Tank Removal Report, the FPLRIP claim, the Interim Site Assessment Report, and the Interim Site Assessment Report II. Post Deadline Site Assessment Data After the statutory deadline, LFR submitted its Interim Site Assessment III. This report includes January 1999 groundwater sampling data from four monitoring wells which show the presence of low levels of EDB. When EDB is found in a groundwater sample, it is a common practice to re-sample the well from which the sample was taken. Of the wells that showed the presence of EDB, only MW- 10D was re-sampled, after January 1, 1999. There was no EDB present in the groundwater when MS-10D was re-sampled. In June 2000, as part of the remediation of the contamination at the facility, an area of contaminated soil was removed to a depth of 14 feet. The area of soil removed included the former dispenser area. In January 2003, the Department notified CJC that the $300,000 FPLRIP funding cap would soon be reached. In March 2003, CJC signed a Funding Cap Transition Agreement, acknowledging that “At no time will the DEP be obligated to pay for cleanup of this discharge any amount that exceeds the funding cap.” CJC further acknowledged that it “is responsible for completing the remediation of the discharge in accordance with Chapter 62-770, F.A.C.” In 2005, CJC re-sampled one of the monitoring wells for lead and EDB. Neither substance was present. The site is not currently being actively remediated. Periodic groundwater sampling indicates that concentrations of contaminants are dropping. No further active remediation has been proposed. The cost to complete remediation is a matter of speculation. The record evidence is insufficient to make a finding about future remediation costs. Eligibility Determinations On September 2, 2003, CJC submitted a PCPP Affidavit to the Department, seeking state funding under PCPP. On October 30, 2003, the Department denied CJC eligibility for PCPP funding on the basis that the contamination was covered under FPLRIP and, therefore, was excluded from funding under PCPP. The Department has never granted PCPP eligibility for the cleanup of a discharge previously being funded under FPLRIP. Apparently, in 2005, CJC hired Glenn R. MacGraw, an expert in the assessment of petroleum-contaminated sites, to review the EGS and LFR assessments. In a letter to CJC’s attorney dated August 19, 2005, MacGraw expressed the opinion that “at least 2 discharges have occurred on this site, one in the former tank area, and one in the former dispenser area.” MacGraw’s opinion that there had been a discharge of leaded gasoline was based on the detection of EDB and lead in the groundwater. He also thought the presence of methyl tetra-butyl ether (MTBE) in groundwater samples taken from the tank pit area showed a tank leak of unleaded gasoline. CJC requested FPLRIP funding for the other alleged discharges at the facility. On March 23, 2006, the Department issued a letter formally stating its disagreement that there were other reported discharges and denying eligibility for FPLRIP funding. On March 30, 2006, the Department issued an Amended Order of Ineligibility under PCPP. The amended order added a second ground for denial, that the reported discharge was not shown to have occurred before January 1, 1995. Whether There Was A Second Discharge Eligible for Funding CJC argues that the presence of lead and EDB in the groundwater sample taken from MW-3S shows that there was a discharge of leaded gasoline at the facility. However, LFR reported that the well screen for MW-3S had probably been damaged during installation, because a significant amount of filter sand was observed in the purge water. The Department contends, therefore, that the source of the lead detected in the groundwater sample from MW-3S could have been (naturally) in the soil that entered the well. The Department also discounts the detection of EDB in the groundwater sample because EDB is an ingredient of some pesticides and can show up in groundwater when pesticide has been applied to the overlying land. Furthermore, EDB was not detected in the groundwater sample taken from MW-3D, a deeper well located near MW-3S. MacGraw does not think the EDB came from a pesticide application, because the EDB contamination at the site occurs in an elongated “plume,” in the former dispenser area, whereas one would expect to see EDB distributed evenly over the site if the source was a pesticide application. MacGraw mapped the plume of EDB by using data obtained after the discharge reporting deadline. Michael J. Bland, a Department employee and expert in geology and petroleum site assessment, believes the data from the facility are insufficient to confirm the presence of EDB or its distribution. LFR reported in its Interim Site Assessment that no significant soil contamination was found near the dispenser island. Groundwater samples from MW-3D, a deep monitoring well near MW-S3, showed no EDB, lead, or 1,2-dichlorothane. Bland opined that, if the detection of EDB in the shallow well was reliable, EDB would have been detected in the deep well, too, because EDB is a “sinker.” EDB is persistent in groundwater, so when it is not detected when a well is re-sampled, reasonable doubt arises about the detection in the first sample. Of all the wells sampled in 1999 that showed EDB, only MW-10D was re-sampled in 2003. When the well was re-sampled, there was no EDB. CJC contends that EDB was not found in the re-sampling of MW-10D because of the soil removal in 2000, but the Department contends that the soil removal would not have affected the presence of EDB in MW-10D, because the well is significantly down-gradient of the area of soil removal. It was undisputed that the presence of 1,2- dichoroethane in MW-S3 was not reliably determined. There is insufficient evidence in the record to establish that the contamination reported in the dispenser area is the source of contamination which persists at the facility. The reported contamination only affected the top six feet of soil. The soil removal to a depth of 14 feet in that area in 2000 should have fully remediated the reported contamination. The data upon which CJC relies in claiming eligibility under FPLRIP or PCPP for a second discharge are, at best, incomplete and ambiguous. CJC failed to prove by a preponderance of the evidence that a discharge of leaded gasoline occurred. CJC also failed to prove that the reported contamination in the dispenser is associated with a discharge that still exists to be remediated with state assistance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Environmental Protection enter a final order determining that CJC is ineligible to participate in the Petroleum Cleanup Participation Program for the discharge reported to the Department on December 1, 1995, and that CJC has not demonstrated eligibility to participate in the Petroleum Cleanup Participation Program or the Florida Petroleum Liability and Restoration Program for any other discharges. DONE AND ENTERED this 9th day of July, 2008, in Tallahassee, Leon County, Florida. BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 2008.
Findings Of Fact The parties stipulated to findings of fact set forth in paragraphs 1.- 8.,below. Stipulated Facts Respondent has documented contamination from the abandoned petroleum storage system. The abandoned petroleum storage system has been properly closed. Petitioner submitted an application to Respondent on Respondent's forms 17-769.900(3) and (4), F.A.C., which was postmarked on or before June 30, 1992. The site is not eligible for cleanup pursuant to Section 376.3071(9) and (12), Florida Statutes, the Early Detection Incentive Program, or the Florida Petroleum Liability and Restoration Insurance Program pursuant to Section 376.3072, Florida Statutes. This site is not owned or operated by the federal government. This site did not have leaking tanks that stored pollutants that are not petroleum products as defined in Section 376.301, Florida Statutes. Respondent was not denied access to this site. Petroleum contamination was not discovered after the application deadline of June 30, 1992. Additional Facts Petitioner, a Florida corporation with its principal place of business in Leon County, Florida, is in the business of owning and leasing property. Petitioner is the fee simple owner of property located at 2022 Wahnish Way in Tallahassee, Florida. The property located on Wahnish Way was leased to James T. "Pete" Thomas by Petitioner's predecessor in title. Thomas operated a gasoline station and automobile repair garage on the property. The lease with Thomas was continued by Petitioner without change upon Petitioner's assumption of the legal title to the property in 1985. Prior to Petitioner's assumption of title to the property, Thomas had installed four petroleum storage systems in a four tank pit on the property in the early 1970's. Each tank and its integral piping is a petroleum storage system, as defined by Section 376.301(15), Florida Statutes (1991). In the early 1980's, Thomas and his wholesale gasoline distributor determined that one of the four underground tanks was losing petroleum product. In 1982, Thomas ceased using the southernmost tank in the pit for the storage of petroleum products for subsequent consumption, use or sale. The distributor ceased placing gasoline in the southernmost tank. Later, in compliance with subsequent statutory enactments, Thomas registered all of the tanks, including the abandoned southernmost tank with Respondent by the statutory deadline of December 31, 1984. Although Thomas signed the registration documents as an agent of Petitioner, he was not such an authorized agent and the registration occurred without the knowledge or approval of Petitioner. As a result, Petitioner cannot be viewed as having filed the registration. Petitioner, unaware that Thomas had experienced any product loss problems or that the tanks on the property had been registered by Thomas with Respondent, became aware of both matters following receipt of a letter from government officials of Leon County, Florida, on November 20, 1990. As set forth in that letter, Petitioner was apprised that the tanks were not in compliance with State of Florida standards and would have to be closed or retrofitted to bring the tanks into compliance. Following receipt of the letter, Petitioner informed Thomas that selling of gasoline at the site was to be discontinued immediately. Closure of the tanks, performed in early 1991 by contractors retained by Petitioner, consisted of excavation and removal of the petroleum storage systems from the property. All four tanks were in the tank pit side by side, from the northernmost end of the pit to the southern end of the pit fronting on Osceola Street in Tallahassee, Florida. When the removal was completed, a Closure Assessment form was prepared by one of the contractors, Jim Stidham and Associates, in accordance with requirements of Florida law. During that process, excessive contamination from petroleum product of the soils in the extreme south end of the tank pit was discovered. Excessive contamination, defined as anything more than 500 parts per million, was located beneath the southernmost pump on the southern end of the pump island and in the southern end of the pit. Both soil sample seven in the southernmost end of the pit and soil sample 11 under the southernmost pump document these unacceptable high levels of contamination. A 20 foot soil boring as near as possible to the southernmost tank on the site revealed the unacceptable levels of contamination extended to that depth. As supported by the testimony of James A. Stidham, Petitioner's expert in the assessment of contamination caused by underground petroleum storage tanks, the location of contamination in the pit area establishes that the tank causing the contamination was the southernmost tank. In view of the location of the contamination in the pit area, the tank discovered to have a hole in it at the time of removal was the southernmost tank. The excessive contamination located at the shallow depth of two feet under the southernmost pump resulted from the improper disconnection of piping attached to the pump and is not attributable to the leak in the tank. Each tank was connected by piping on the eastern end of each tank to the corresponding pump. The southernmost pump was not used after 1982 and was missing integral parts by the time the tanks were closed. In the course of exploring options for clean up of the property, Petitioner filed for assistance from Respondent in the form of participation in the ATRP. Unaware of the true date of the cessation of use of the southernmost tank, Petitioner gave the date of last use for all tanks in the pit by stating that the "tanks were taken out of service between December 15, 1990 and January 15, 1991." Petitioner provided this response to Respondent's July 30, 1991 request for further information on August 6, 1991. Although Respondent made an initial determination to deny Petitioner's application in the middle of August, 1991, that action was not communicated to Petitioner. Instead, Petitioner's application was held by Respondent, pending possible amendment to Section 376.305(7), Florida Statutes (1991), the law controlling admission to the ATRP. Respondent held Petitioner's application for a total of 19 months before issuance of a formal decision to deny the application on February 26, 1993. Such delay by Respondent is unreasonable. Respondent's denial of Petitioner's application was based upon the eligibility requirement restricting ATRP participants to those situations where the petroleum storage system has not stored petroleum products for consumption, use or sale after March 1, 1990, and the belief of Respondent's personnel that all storage systems on Petitioner's property had stored products beyond that date. Specifically, Respondent eventually gave notice that it intended to deny Petitioner's application for participation in the ATRP for the following reason: Eligibility in the Abandoned Tank Restoration Program is restricted to those petroleum storage systems that have not stored petroleum products for consumption, use or sale after March 1, 1990, pursuant to Section 17-769.800(3)(a), Florida Administrative Code. Respondent utilized provisions of Subsection 376.305(7)(f), Florida Statutes (1991), to permit entry of some applicants into the ATRP, demonstrating that Respondent did not consider the March 1, 1990 deadline contained in provisions of Subsection 376.305(7)(b), Florida Statutes (1991), to be absolute. As attested at the final hearing by Respondent's employee, Respondent considered "variables" when determining whether to enforce the March 1, 1990, deadline. Those variables comprise the criteria listed in Subsection 376.305(7)(f), Florida Statutes (1991). By use of those variables, Respondent effectively applied provisions of Subsection 376.305(7)(f), Florida Statutes (1991), to some program applicants other than Petitioner and permitted their participation while choosing to refrain from final agency action under that same criteria with regard to Petitioner's application pending subsequent legislative enactment. Petitioner's southernmost tank is an abandoned petroleum storage system that was not required to be registered with Respondent when it was in service; the system came into the possession of Petitioner following its abandonment; was never returned to service; and is not otherwise eligible for cleanup pursuant to Subsection 376.3071(9), Florida Statutes, or Section 376.3072, Florida Statutes.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a final order be entered granting Petitioner's application for participation in the ATRP with regard to contamination resulting from Petitioner's southernmost petroleum storage system. DONE AND ENTERED this 1st day of February, 1994, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2658 The following constitutes my rulings, pursuant to Section 120.59, Florida Statutes, upon proposed findings of fact submitted by the parties: Petitioner's Proposed Findings. 1.-23. Adopted, though not verbatim. Respondent's Proposed Findings. 1.-2. Rejected, not supported by weight of the evidence. 3.-4. Rejected, subordinate to HO findings on this point. 5.-11. Accepted. Rejected, relevance. A mischaracterization of the evidence in that the testimony establishes that an existing lease agreement was continued. Accepted to the extent that the evidence establishes that there were four tanks in the pit. Rejected, credibility, weight of the evidence as to the accuracy of the registration form in the face of conflicting evidence. 16.-18. Rejected, weight of the evidence. 19.-20. Accepted. 21.-22. Rejected, subordinate. Accepted. Rejected, relevance. 25.-26. Accepted. 27.-29. Rejected, subordinate. Rejected, relevance. Rejected, argumentative. Accepted. Rejected, legal conclusion, argumentative. COPIES FURNISHED: Melissa Fletcher Allaman Attorney at Law Post Office Drawer 1170 Tallahassee, Florida 32302 Jefferson M. Braswell Lisa M. Duchene W. Douglas Beason Assistant General Counsels Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kenneth Plante General Counsel Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Virginia B. Wetherell Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint issued against him and, if so, what disciplinary action should be taken against him.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent is now, and has been at all times material to the instant matter, registered as a septic tank contractor with the Department. In July 2002, Respondent entered into a contract with Pro Gold Investments Corp. (Pro Gold), whose president and sole owner is Emerico Kemeny Fuller. The contract provided that Respondent would install a "new septic system" for Pro Gold at 453 Blue Road in Coral Gables, Florida (Blue Road Property) for $4,600.00, a job that should have taken only a "few days" to complete. Pro Gold gave Respondent a "job deposit" of $2,300.00. In July 2003, Pro Gold, by Warranty Deed, conveyed title to the Blue Road Property to Maurits de Blank's company, Mortgage Lending Company LLC (MLC), and it also executed a Bill of Sale, Absolute and Assignments of Contracts, which read as follows: PRO GOLD INVESTMENTS CORP, as Seller, in consideration of Ten Dollars ($10.00) and other valuable consideration paid to it by MORTGAGE LENDING COMPANY, LLC, as Buyer, the receipt of which is acknowledged hereby sells, assigns, grants, transfers, and conveys to Buyer all of Seller's right, title, and interest in the following described goods, contracts and personal property: SEE ATTACHED EXHIBIT "A- PROPERTY" AND EXHIBIT "B- CONTRACTS ASSIGNED" Seller covenants and agrees that it is the lawful owner of goods, contracts, rights or interests transferred hereby; that they are free from all encumbrances, except for outstanding amounts due, if any, to those parties set forth on Exhibit "B," and that it has the right to sell, transfer and assign the goods, properties and rights set forth in the attached Exhibit "A," and the right to transfer and assign the contracts, rights or interests shown on Exhibit "B," and will warrant and defend same against the lawful claims and demands or all persons. The "attached Exhibit 'A- Property'" read, in pertinent part, as follows: (Regarding transfer of 453 Blue Road, Coral Gables, Florida, "the Real Property") (Mortgage currently in favor of Mortgage Lending Company, LLC "the Mortgage") All property rights of any kind whatsoever, whether in property that is real, fixed, personal, mixed or otherwise and whether in property that is tangible or intangible, including, without limitation, all property rights in all property of any kind whatsoever that is owned or hereafter acquired by the Company and that is associated with, appurtenant to or used in the operation of the Real Property or is located on, at or upon the Real Property and is associated with or used in connection with or in operation of any business activity conducted on, at or upon the Real Property, and including, without limitation, the following: * * * All right, title, and interest in those certain contracts and agreements [set] forth in the attached Exhibit "B," which are hereby transferred and assigned to Mortgage Lending Company LLC. Among the "contracts and agreements [set] forth in the attached Exhibit 'B,'" was the aforementioned July 2002, contract wherein Respondent agreed to install a "new septic system" for Pro Gold on the Blue Road Property (Septic System Contract). This contract was still executory. Respondent had not done any work on the site in the year that had passed since the contract had been signed. In the beginning of August 2003, Mr. de Blank met with Respondent and advised him that MLC was the new owner of the Blue Road Property and that MLC had also received an assignment of the Septic System Contract from Pro Gold. In response to this advisement, Respondent stated "he did not do assignments." Following this meeting, Mr. de Blank sent Respondent documentation supporting the assertions he had made regarding MLC's ownership of the Blue Road Property and its having been assigned the Septic System Contract. Mr. de Blank then attempted, unsuccessfully, to make contact with Respondent by telephone. He "left messages," but his telephone calls were not returned. These efforts to telephonically communicate with Respondent having failed, Mr. de Blank "decided that it may make some sense to start a letter writing program." As part of that "program," on September 8, 2003, Mr. de Blank sent Respondent the following letter: Re: 453 Blue Road, Coral Gables As background, and in chronological order: Pro Gold Investments purchased the above cited property and obtained a construction loan from our firm. One of the conditions was that all construction contracts would be assignable to our firm in the event of default. Pro Gold Investments entered into contract with your firm to install a new septic tank and drainfield at 453 Blue Road. Pro Gold Investments defaults and forfeits title in lieu of foreclosure. The deed was recorded on August 4, 2003, at Bk/Pg: 21484/4283. Not recorded but attached for your reference is an assignment of contracts to include the contract Pro Gold Investments entered into with your firm. See further attachment. The original can be inspected in my office. At this point, I request you proceed with the work as soon as practical and under identical conditions as originally agreed with Pro Gold Investments. Please call me at . . . to confirm a start date. Mr. de Blank did not receive any response to his letter. He finally was able, however, to reach Respondent on the telephone. During this telephone conversation, Mr. de Blank made arrangements to meet Respondent at the Blue Road Property to discuss Respondent's doing the work Respondent had agreed to do in the Septic System Contract. This meeting between Mr. de Blank and Respondent took place on September 11, 2003. During the meeting, Mr. de Blank went over with Respondent "what the job [was] going to be." Although Respondent indicated that he was "going to put in th[e] septic tank" per the Septic System Contract, Mr. de Blank had his doubts that Respondent would be true to his word. Following the meeting, Mr. de Blank sent Respondent the following letter: Re: 453 Blue Road, Coral Gables We met today to discuss the above referenced job. My understanding is: You will start the job no later than the first week of October and will complete the job no later th[a]n the last week of October. I will obtain a copy of the approved permit. You indicated you will not need a survey.[1] Should you change you[r] mind, you can always refer to a survey I keep on site. You will have your insurance agent mail to my address a certificate of insurance. Though not discussed: I would like a partial release of payments made to date for the job. See further the attachment. Assuming you concur, then please send a signed and notarized copy to Maurits de Blank, Mortgage Lending Company, Post Office Box 430336, Miami, Florida 33143. Note that I prefer for various legal reasons that you use the release form as provided. Once the job has been started, I would like a list of firms supplying materials to the job. Notwithstanding that he had promised Mr. de Blank that he would "start the job no later than the first week of October," by the middle of October Respondent had yet to even "pull a septic tank construction permit from the City of Coral Gables" (that was needed before any on-site work could begin).2 In an attempt to find out from Respondent what was the cause of the delay, Mr. de Blank started a "calling campaign," but Respondent neither answered the telephone when Mr. de Blank called nor returned Mr. de Blank's calls. On October 19, 2003, Mr. de Blank sent the following letter to Respondent (by certified United States Mail, return receipt requested): Re: 453 Blue Road, Coral Gables I need a firm commitment when you will start and finish septic tank at above address. If you cannot perform the work, then I will need a refund of the deposit given to your firm. Please call to discuss. The end of the month was fast approaching, and Respondent had neither contacted Mr. de Blank nor begun the Septic System Contract on-site work. After paying a visit to Coral Gables City Hall and learning that Respondent had still not even "pull[ed] a septic tank construction permit from the City of Coral Gables," Mr. De Blank found another septic tank contractor, Westland Septic Tank Corp., to do the installation work for MLC that Respondent was contractually obligated to perform. MLC paid Westland $4,400.00 to do the work. Westland completed the job some time prior to November 4, 2003. The work passed all of the necessary inspections. Upon learning that MLC had contracted with Westland, Respondent sent Mr. de Blank a letter complaining that Mr. de Blank had not given Respondent an adequate opportunity to meet his obligations under the Septic System Contract. In the letter, Respondent offered to return only $500.00 of the $2,300 down payment he had received from Pro Gold. Mr. de Blank subsequently informed Respondent that this was not satisfactory and that he wanted the "full deposit back." He added that if he did not get it, he would "go to court." Not having received any portion of the "deposit back," Mr. de Blank, acting on behalf of MLC, in mid-November 2003, filed suit against Respondent in Miami-Dade County Court. On May 14, 2004, a Final Judgment was entered in Miami-Dade County Court Case No. 0313813 in favor of MLC and against Respondent "in the amount of $1,675.00 plus court costs in the amount of $121.00." As of the date of the final hearing in this case, Respondent had not made any payments to MLC. In view of the foregoing, it is found that Respondent abandoned for 30 consecutive days, without any apparent good cause, a project in which he was under contractual obligation to complete; and his failure to go forward with the project, combined with his failure to return any of the deposit he had received, caused monetary harm to a party to whom he was contractually obligated.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby: RECOMMENDED that the Department issue a final order finding Respondent guilty of the misconduct alleged in the Administrative Complaint and disciplining him therefor by fining him $500.00 and suspending his registration for 90 days. DONE AND ENTERED this 4th day of February, 2005, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 2005.
The Issue The issue for determination is whether Rule 17 Administrative Code (1991), constitutes an invalid exercise of delegated legislative authority.
Findings Of Fact The parties stipulated to findings of fact set forth in paragraphs 1.-8., below. Stipulated Facts Respondent has documented contamination from the abandoned petroleum storage system. The abandoned petroleum storage system has been properly closed. Petitioner submitted an application to Respondent on Respondent's forms 17-769.900(3) and (4), Florida Administrative Code, which was postmarked on or before June 30, 1992. The site is not eligible for cleanup pursuant to Section 376.3071(9) and (12), Florida Statutes, the Early Detection Incentive Program, or the Florida Petroleum Liability and Restoration Insurance Program pursuant to Section 376.3072, Florida Statutes. This site is not owned or operated by the federal government. This site did not have leaking tanks that stored pollutants that are not petroleum products as defined in Section 376.301, Florida Statutes. Respondent was not denied access to this site. Petroleum contamination was not discovered after the application deadline of June 30, 1992. Additional Facts Petitioner, a Florida corporation, is in the business of owning and leasing property. Petitioner is the fee simple owner of property located at 2022 Wahnish Way in Tallahassee, Florida. The property located on Wahnish Way was leased to James T. "Pete" Thomas by Petitioner's predecessor in title. Thomas operated a gasoline station and automobile repair garage on the property. The lease with Thomas was continued by Petitioner without change upon Petitioner's assumption of the legal title to the property in 1985. Prior to Petitioner's assumption of title to the property in the early 1970's, Thomas had installed four petroleum storage systems in a four tank pit on the property. Thomas later registered all four of the tanks with Respondent by the statutory deadline of December 31, 1984, as required by Florida law. Although Thomas signed the registration documents as an agent of Petitioner, he was not such an authorized agent and the registration occurred without the knowledge or approval of Petitioner. Sometime in the early 1980's, Thomas and his wholesale gasoline distributor determined that one of the four underground tanks was losing product. In 1982, Thomas ceased using the southernmost tank in the pit for the storage of petroleum products for subsequent consumption, use or sale. The distributor ceased placing gasoline in the southernmost tank. Petitioner, unaware that Thomas had experienced any product loss problems or that the tanks on the property had been registered by Thomas with Respondent, became aware of both matters following receipt of a letter from government officials of Leon County, Florida, on November 20, 1990. As set forth in that letter, Petitioner was apprised that the tanks were not in compliance with State of Florida standards and would have to be closed or retrofitted to bring the tanks into compliance. Following receipt of the letter, Petitioner informed Thomas that selling of gasoline at the site was to be discontinued immediately. Closure of the tanks, performed in early 1991, by contractors retained by Petitioner, consisted of excavation and removal of the petroleum storage systems from the property. All four tanks were in the tank pit side by side, from the northernmost end of the pit to the southern end of the pit fronting on Osceola Street in Tallahassee, Florida. When the removal was completed, a Closure Assessment form was prepared by one of the contractors, Jim Stidham and Associates, in accordance with requirements of Florida law. During that process, excessive contamination from petroleum product of the soils in the extreme south end of the tank pit was discovered. Excessive contamination, defined as anything more than 500 parts per million, was located beneath the southernmost pump on the southern end of the pump island and in the southern end of the pit. A 20 foot soil boring as near as possible to the site of the southernmost tank revealed that unacceptable levels of contamination extended to that depth. As supported by the testimony of James A. Stidham, Petitioner's expert in the assessment of contamination caused by underground petroleum storage tanks, the location of contamination in the pit area establishes that the tank causing the contamination was the southernmost tank. The hole discovered in one of the tanks at the time of removal was likely located in the southernmost tank. The excessive contamination located at the shallow depth of two feet under the southernmost pump resulted from the improper disconnection of piping attached to the pump and is not attributable to the leak in the tank. Each tank was connected by piping on the eastern end of each tank to the corresponding pump. The southernmost pump was not used after 1982 and was missing integral parts by the time the tanks were closed. In the course of exploring options for clean up of the property, Petitioner filed for assistance from Respondent in the form of participation in the ATRP. Unaware of the true date of the cessation of use of the southernmost tank, Petitioner gave the date of last use for all tanks in the pit by stating that the "tanks were taken out of service between December 15, 1990 and January 15, 1991." Petitioner provided this response to Respondent's July 30, 1991 request for further information on August 6, 1991. Although Respondent made an initial determination to deny Petitioner's application in the middle of August, 1991, that action was not communicated to Petitioner. Instead, Petitioner's application was held by Respondent, pending possible amendment to Section 376.305(7), Florida Statutes (1991). Respondent held Petitioner's application for a total of almost nineteen months before issuance of a formal decision to deny the application on February 26, 1993. Respondent's denial of Petitioner's application was based upon the eligibility requirement restricting ATRP participants to those situations where the petroleum storage system has not stored petroleum products for consumption, use or sale after March 1, 1990, and the belief of Respondent's personnel that all storage systems on Petitioner's property had stored products beyond that date. Specifically, Respondent eventually gave notice that it intended to deny Petitioner's application for participation in the ATRP for the following reason: Eligibility in the Abandoned Tank Restoration Program is restricted to those petroleum storage systems that have not stored petroleum products for consumption, use or sale after March 1, 1990, pursuant to Section 17-769.800(3)(a), Florida Administrative Code.
The Issue Whether or not the agency may, pursuant to Section 525.06 F.S., assess $390.04 for sale of substandard product due to a violation of the petroleum inspection laws and also set off that amount against Petitioner's bond.
Findings Of Fact Coleman Oil Co., Inc. d/b/a Shell Oil Co. at I-75 and SR 26 Gainesville, Florida, is in the business of selling kerosene, among other petroleum products. On November 15, 1990, Randy Herring, an inspector employed with the Department of Agriculture and Consumer Services and who works under the direction of John Whitton, Chief of its Bureau of Petroleum, visited the seller to conduct an inspection of the petroleum products being offered for sale to the public. Mr. Herring drew a sample of "1-K" kerosene being offered for sale, sealed it, and forwarded it to the agency laboratory in Tallahassee where Nancy Fisher, an agency chemist, tested it to determine whether it met agency standards. The testing revealed that the sampled kerosene contained .22% by weight of sulfur. This is in excess of the percentage by weight permitted by Rule 5F- 2.001(2) F.A.C. for this product. A "Stop Sale Notice" was issued, and on the date of that notice (November 20, 1990) the inspector's comparison of the seller's delivery sheets and the kerosene physically remaining in his tanks resulted in the determination that 196 gallons of kerosene had been sold to the public. Based on a posted price of $1.99 per gallon, the retail value of the product sold was determined, and the agency accordingly assessed a $390.04 penalty. The agency also permitted the seller to post a bond for the $390.04 on November 21, 1990. The assessment is reasonable and conforms to the amount of assessments imposed in similar cases.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order approving the $390.04 assessment and offsetting the bond against it. DONE and ENTERED this 25th day of April, 1991, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 April, 1991. COPIES FURNISHED TO: CLINTON H. COULTER, JR., ESQUIRE DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES 510 MAYO BUILDING TALLAHASSEE, FL 32399-0800 MR. RANDAL W. COLEMAN COLEMAN OIL COMPANY POST OFFICE BOX 248 GAINESVILLE, FL 32602 HONORABLE BOB CRAWFORD COMMISSIONER OF AGRICULTURE THE CAPITOL, PL-10 TALLAHASSEE, FL 32399-0810 RICHARD TRITSCHLER, GENERAL COUNSEL DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES 515 MAYO BUILDING TALLAHASSEE, FL 32399-0800
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 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
