The Issue Should Respondent be fined $500.00 for initiating repairs to an on-site sewage treatment and disposal system before obtaining a permit?
Findings Of Fact Respondent is engaged in the septic tank contracting business as a contractor licensed under Chapter 489, Part III, Florida Statutes. He does business as "Alpha." In association with his business Respondent provided services to residents at 224 North Orange Avenue, Orange City, Florida. This was related to a failed on-site sewage treatment and disposal system at that residence. To assist in providing repair service to the residence in Orange City, Florida, Respondent engaged Andy Trapp. Mr. Trapp's business is to assist septic tank contractors in obtaining necessary permits to perform septic tank contracting services. Mr. Trapp's occupation includes field work involving soil testing, measurements, and completion of necessary paperwork to assist the septic tank contractor in obtaining necessary permits. As permitting agency, usually Petitioner would accept applications submitted by Mr. Trapp in relation to the application for a permit to repair on-site sewage treatment and disposal systems, in that Mr. Trapp is recognized by Petitioner as being sufficiently qualified to submit information in support of an application for permit. On March 27, 1998, Mr. Trapp submitted an application for a permit to repair the on-site sewage treatment and disposal system at the Orange City, Florida, address, to include supporting information concerning the results of soil testing. That application was accompanied by the necessary fee to obtain a permit. The application was delivered to Petitioner's Daytona Beach, Florida, office as a matter of convenience to Mr. Trapp. Mr. Trapp realized that the actual processing of the permit application would be conducted by Petitioner's Deland, Florida, office. In that connection, Mr. Trapp realized that the application that he had submitted to the Daytona Beach office would be forwarded by interoffice transmittal to the Deland office, which would cause a delay in the processing of the application. In his experience Mr. Trapp has filed applications with the Daytona Beach office to be subsequently transmitted to the New Smyrna Beach office of the Petitioner, which ordinarily can be done late on the same day that the application was presented or by the next day. James McRae is an environmental supervisor for the Volusia Health Department, Environmental Health Office in Deland, Florida. It is his office that had ultimate responsibility for considering, and if appropriate, issuing a permit allowing Respondent to conduct necessary repairs of the failed on-site sewage treatment and disposal system at the Orange City, Florida address. Mr. McRae confirmed that the permit application, as submitted by Mr. Trapp for the repairs, had been received by the Deland office on March 30, 1998. In addition, the accompanying $57.00 fee had been transferred from the Daytona Beach office to the Deland office, as was customary, the custom being that the funds in support of an application would ultimately be received in the office from which the application would be processed and a permit number assigned, as applicable. Upon receipt of the application in the Deland office, a receipt was generated. Information concerning the permit application was placed in the computer. Assessment of the application was assigned to William Vander Lugt, Environmental Specialists II, who is part of the field staff for the Petitioner's Deland office. Beyond Mr. Vander Lugt's assignment to consider the application for the permit for the Orange City, Florida project, it was expected that he would do any necessary field work involving an inspection and any necessary soil analysis. If satisfied that the site was appropriate to effect repairs to the failed on-site sewage treatment and disposal system, Mr. Vander Lugt would issue a permit subject to approval by Mr. McRae. Mr. McRae identified that the usual turn around time for issuing permits is two to three days, assuming that the permit was applied for at Petitioner's office which would be responsible for assessing the application. In this instance the permit had been applied for at another office which delayed consideration of the permit application by the Deland office. The permit was approved on April 2, 1998, within three days of its receipt by the Deland office. Before the permit was issued, Respondent, through his employees, had commenced the repairs at the Orange City, Florida, address. The commencement of repairs was verified by an on-site inspection performed by Mr. Vander Lugt, on March 31, 1998. Although the supporting information presented by Mr. Trapp was in order and the fee had been paid, and there was no indication that any other problems existed which would prohibit the repairs from being conducted, Respondent was premature in commencing the work before the permit issued, and was unjustified in that choice.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be issued which imposes a $500.00 fine against Respondent for initiating a repair of an on-site sewage treatment and disposal system without first obtaining a permit to do the work. DONE AND ENTERED this 24th day of September, 1998, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 Filed with the Clerk of the Division of Administrative Hearings this 24th day of September, 1998. COPIES FURNISHED: Charlene Petersen, Esquire Department of Health 420 Fentress Boulevard Daytona Beach, Florida 32114 Michael J. Jedware Post Office Box 390073 Deltona, Florida 32739-0073 Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1703
The Issue The issues are whether David Boston should be issued an environmental resource permit and sovereign submerged lands authorization allowing him to construct 96 linear feet of rip rap revetment; construct a private dock of less than 1,000 square feet; and place 3,500 square feet of fill in non-jurisdictional areas; and whether he qualifies for a general permit to place a fill pad in isolated wetlands adjacent to the St. Johns River, a Class III waterbody.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this permitting dispute between neighbors, Petitioner, Vincent R. D'Antoni, Jr., contends generally that Respondent, David Boston (Boston), will cause flooding to Petitioner's property by reason of placing too much fill on an isolated wetland, which lies in the center of Boston's property. The filling is in conjunction with Boston's efforts to construct a single-family residence and private dock on his property, purchased in June 1998, which lies adjacent to the St. Johns River, a Class III waterbody, in Duval County, Florida. In preliminary decisions made on November 5, 1998, and January 21, 1999, Respondent, Department of Environmental Protection (DEP), "acknowledge[d] receipt" of Boston's intent to use a noticed general permit "to fill less than 4,000 square feet of an isolated wetland to facilitate construction of a single family home" on his lot (Case No. 99-2861), and gave notice of its intent to issue Boston an environmental resource permit and sovereign submerged lands authorization allowing him to construct a rip rap revetment and a dock and to place 3,500 square feet of fill in mainly non-jurisdictional areas (Case No. 99-1916). Although a number of objections were raised by Petitioner in his original filings, as clarified at the final hearing, Petitioner now contends that Boston placed excessive fill on his lot, including an isolated wetland, and that the fill has resulted in flooding, saturated soil, or standing water on Petitioner's property. He also contends that the location of Boston's proposed dock will affect the ability to use his own dock. Because no evidence was presented on the docking issue, and through admissions Petitioner acknowledged that there will be no adverse environmental impacts, no consideration will be given to those objections. Finally, Petitioner does not object to the placement of the rip rap revetment on the shoreline. Accordingly, the request for an environmental resource permit and consent to use sovereign submerged lands in Case No. 99-1916 should be approved. The property in issue lies just south of the Jacksonville University Country Club and a few blocks west of University Boulevard North on Wayland Street, which fronts the eastern side of the St. Johns River in a tract of land known as University Park. Except for the Boston lot, all other waterfront lots are now developed. When facing the river from Wayland Street, Petitioner's lot lies to the right of Boston's lot, while another lot owned by Robert Henderson (Henderson) lies to the left of Boston's lot. The lots are up to 500 feet deep; Boston's lot is around 96 feet wide, while Petitioner's lot has a similar width but narrows to only 20 feet or so near the river. At the river end of the D'Antoni, Boston, and Henderson lots is an area of contiguous wetlands. Until 1995, DEP regulated those wetland areas and this prevented D'Antoni and Henderson from placing any fill in those areas. Under DEP's current wetland delineation rule, however, such areas are non- jurisdictional, and any placement of fill at the river end is outside the purview of DEP's jurisdiction. Before Boston's lot was cleared and filled, it was about a foot lower in elevation than the D'Antoni lot; this was true even though Petitioner has never changed the natural grade of his property since it was purchased and developed. Therefore, water tended to flow naturally from an upland area north or east of the D'Antoni lot, through the D'Antoni lot to Boston's lot, and then through the lower part of the Henderson lot populated by "very mature cypress trees," and eventually into the St. Johns River. According to a 1977 aerial photograph, the Boston lot contained what appears to be a tidal connection from an uplands area through the wetlands on his property to the river. However, construction on property adjacent to the Henderson lot sometime after 1977 severed this connection, and a tidal connection (direct hydrologic connection) to the river no longer exists. Under Rule 62-341.475(1)(f), Florida Administrative Code, "a single family residence" is exempt from the Environmental Resource Program permitting and a general permit will be granted "as long as it is not part of a larger plan of common development," and "the total area of dredging or filling in isolated wetlands for the residence and associated residential improvement shall not exceed 4000 square feet." Since there is no longer a direct hydrologic connection between the wetlands on Boston's property and the St. Johns River, the wetlands are isolated within the meaning of this rule. Availing himself of the foregoing provision, on October 19, 1998, Boston gave notice to DEP "of [his] intent to use a noticed general permit to fill less than 4,000 square feet of an isolated wetland" on his property. He also provided certain drawings and other information (prepared by his surveyor) to show that he qualified for the permit. DEP does not "issue" a noticed general permit; rather, it only determines whether the applicant qualifies for a permit and then "acknowledges" this fact. Accordingly, on November 5, 1998, DEP "acknowledge[d] receipt" of Boston's notice. Although DEP encourages the user of such a permit to notify affected or adjoining property owners, there was no legal requirement that Boston do so, and he proceeded to clear the lot and then fill a part of the wetland area with two or three feet of dirt without giving notice to Petitioner or Henderson, his two neighbors. The filling raised the elevation of the Boston property at least two feet above the D'Antoni and Henderson lots and impeded the prior natural flow of water. At the same time, Boston constructed a three to four-foot timber wall (consisting of railroad ties) on the Henderson property line to retain the fill and a similar two-foot wall on Petitioner's line. These changes had the effect of impounding the water which had previously flowed naturally in a north-south direction through the wetlands from the D'Antoni lot to the Boston lot to the Henderson lot. It also generated runoff from the Boston lot to the D'Antoni lot, which had not previously occurred. When Petitioner observed the adjacent lot being cleared and filled, and the resulting erosion of fill onto his property, pooling of water, and damage to his chain link fence after a heavy rain in January 1999, he filed a complaint with DEP. An inspection was made by DEP, and Boston was told to stop work until corrective changes were made to ensure that such flooding would not occur. After a series of changes were made which satisfied DEP's concerns, the stop work order was lifted. Boston also signed a consent order and paid a $100.00 fine. However, pending the outcome of these cases, no further construction work has occurred. Petitioner has contended that Boston has placed more than 7,200 square feet of fill on his property in violation of the rule, which limits the amount of fill to less than 4,000 square feet. While this amount of filling has in fact occurred, approximately 3,500 square feet of fill was placed in non- jurisdictional areas between the shoreline and the isolated wetlands, and the rule only requires that Boston limit his fill to less than 4,000 square feet on the isolated wetland. Thus, contrary to a suggestion by Petitioner's engineer, the jurisdictional and non-jurisdictional filling are not totaled together to determine whether the threshold within the rule has been exceeded. Through photographs received in evidence and testimony by Petitioner and his wife, it was established that flooding or standing water has occurred on Petitioner's property during heavy rainfalls since the filling occurred, even as recently as January 2000. The evidence further shows that Petitioner's chain link fence has been damaged through the weight of the fill pressing against the fence. In addition, Petitioner has suffered the loss of "a couple of trees" because of "mucky" and "oversaturated" soil caused by excessive water. Also, a dog house on a raised platform in the back yard which was previously dry now "stays in water." These affected areas lie immediately adjacent to the filled area of the isolated wetland on Boston's property. Finally, there is an erosion problem beyond the isolated wetland consisting of sand and silt flowing from Boston's lot onto Petitioner's lot during heavy rainfalls. Despite these problems, Petitioner does not object to the development of the lot; he only asks that Boston do so in a manner which prevents these conditions from recurring in the future. Petitioner's engineering expert, Ronnie D. Perron (Perron), a professional engineer who visited the site in August 1999, ran a computer model (Interconnected Channel and Pond Routing, Version 2.11) showing runoff both before and after the fill was placed on Boston's lot. He concluded that "there was over one and a half feet of flooding in that wetlands due to filling Mr. Boston's lot" during a "mean annual storm event," which assumes five inches of rain during a 24-hour period. Even when he used more conservative estimates, Perron still arrived at water accumulations ranging from 0.6 feet to 1.5 feet. This excessive runoff is caused by the retaining wall and fill, which "blocks off" the water and causes it to "spread out in [Petitioner's] whole back yard." In response to Perron's model, a DEP professional engineer, David P. Apple (Apple), ran another computer model (PONDS, Version 2.25) received in evidence as Respondent's Exhibit No. 14. That model shows that during a three-year, one- hour storm event, the small depressed area on Boston's property (including the isolated wetland) had sufficient storage capacity to absorb up to six inches of runoff from off-site areas and not overflow back onto Petitioner's property. This size of storm event (which produces two and one-half inches of rain in an hour) is typically used by the Department in calculations for single- family residential property when the impervious area site is less than fifty percent. In this case, Apple didn't "feel that the impervious area out there was greater than [fifty] percent." Therefore, Apple concluded that the storm event used by Perron was too large, and that the smaller event used in his model was more appropriate. He also concluded that the Boston property could retain all water in a normal storm event without discharging any stormwater onto the D'Antoni lot. He did not, however, address the issue of the fill and retaining wall on the Boston lot impounding the water on his neighbor's lot. In developing the input perameters for his model, Apple assumed that water falling at the front (Wayward Street) side of the D'Antoni property drained to the front roadway; in fact, much of that water drains to the rear of the lot into the wetland area. A similar incorrect assumption was made regarding runoff on the Boston lot. If modifications were made to account for the proper drainage patterns, the Apple model would show larger amounts of water staging on the Boston property during rainfall events, which would increase the possibility of runoff onto the D'Antoni lot. Apple questioned the accuracy of the Perron model given the fact that Perron had used a larger storm event than he (Apple) believed was appropriate. However, even if Perron had used a three-year, one-hour storm event on his computer model, as advocated by Apple, he established that it would have resulted in flood staging on Petitioner's property between 0.97 and 1.64 feet during a smaller storm event. DEP proposed no solutions to the water problems on the D'Antoni lot, presumably because it concluded that the rule was satisfied; that by filling the Boston lot, it was no longer the "stormwater pond for the neighborhood runoff"; and that DEP had no other regulatory authority to solve this peculiar situation. The record shows clearly, however, that if no changes are made, water will continue to back up on Petitioner's property by virtue of the higher elevation on the Boston lot, and the possibility of runoff from Boston's lot exists during certain storm events. Neither condition existed before the fill was added. To correct the foregoing conditions, Perron proposes two corrective measures. First, Boston should install a yard drain (underground culvert) beginning in the wetlands area of his property and outfalling to the cypress trees on the adjacent Henderson lot. Besides providing an outfall for the excess water, this would also help recharge the mature cypress trees on the Henderson lot. Second, D'Antoni should install a series of "yard drains" using high-density polyethylene pipes to convey the standing water on his lot directly into the St. Johns River. The expert opined that neither activity would require a permit from DEP. These modifications are reasonable and appropriate and should be used by the factioning parties. Accordingly, the installation of a yard drain should be a condition for Boston to use his noticed general permit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order granting the application for a permit and consent in Case No. 99-1916 and confirming that David Boston qualifies for use of a noticed general permit in Case No. 99-2861 provided, however, that such use be conditioned on Boston constructing an underground culvert with a yard drain from the wetland area on his lot to the St. Johns River. DONE AND ENTERED this 22nd day of March, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 22nd day of March, 2000. COPIES FURNISHED: Kathy Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Vincent R. D'Antoni, Jr. 3824 Wayland Street Jacksonville, Florida 32277 David Boston 2262 Orchard Street Jacksonville, Florida 32209 Francine M. Ffolkes, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Teri Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
Findings Of Fact Bayfront commenced construction of the biological waste incinerator here at issue prior to March 21, 1992, the effective date of the moratorium on construction of biological waste incinerators and was exempt from that moratorium. An inspection of the premises on April 9, 1992, (exhibit 5) showed substantial work had been accomplished and the inspector concluded, and DEP's legal counsel concurred, that in order to have achieved the construction progress shown on April 9, 1992, the work had to have been commenced prior to March 21, 1992. Further, a building permit to renovate the building into which the waste incinerator was placed was issued November 12, 1991, (exhibit 7) and a building permit to install a waste incinerator was issued March 4, 1992, (exhibit 6). No contradictory evidence was submitted by Petitioner. Respondent's witnesses testified without contradiction that Bayfront's application for an operation permit was complete in all respects, including certification by a professional engineer; that all test results showed the emissions into the atmosphere were within the prescribed standards; that certain conditions contained in the construction permit as a result of the settlement agreement resolving the challenge to the issuance of the construction permit are contained in the operation permit; that those conditions exceed the conditions required by the rules for incinerators; and that Bayfront affirmatively provided the Department with reasonable assurance based on plans, test results, installation of pollution control equipment, or other information that the operation of the incinerator will not discharge, emit, or cause pollution in contravention of DEP's standards as contained in Rule 17-4.070(1), Florida Administrative Code. This testimony is accepted as factual. The draft permit authorizes Bayfront to burn a maximum of fifteen hundred pounds per hour of waste. Each time a test run is conducted to check the emissions, the pounds of waste burned per hour during the test establishes an upper limit on the rate of burning waste. As explained by James L. McDonald, the engineer processing air pollution applications for the Department at Transcript p. 50-51: The construction application asked for a permit at fifteen hundred pounds per hour. So the construction permit is -- the condition that we would want, the Department would normally want the test within ten percent of that fifteen hundred pounds an hour in order to go ahead and issue, if its in total compliance, to issue an operating permit at fifteen hundred pounds. Since the test came in at a reduced rate, below the ten percent, then that's why in the operating permit condition twenty-one says you're limited to the rate that we're, the test was conducted. [sic] Now, also, its interesting to note that in their test, if you look at their runs two and three -- because there are rules that say the Department could accept two runs out of three if a condition occurred that was out of their control -- if your average runs two and three, they would average within ten percent of fifteen hundred. So, as a permit processor, it even gave me some reasonable assurance that they could probably comply with the fifteen hundred. But, since the test of all three runs came in as an average of twelve fifty-one, then the operating permit included that twelve fiftyone. And like the real world out there, just like power plants, when it comes time for their annual testing, if they are at half speed, their business is down, it allows them to test at half speed. We won't require them to go up to full speed. They can test at half speed. But then they are limited there. And if they go above it at a later date they would have to retest. So they can work their way back up to where the Department has reasonable assurance that the upper limit of fifteen hundred pounds -- that's where later in condition twenty-one of the operating permit it says but in no case shall the maximum permit or burning rate of fifteen hundred pounds per hour be exceeded. Petitioner's second two grounds for challenging the issuance of the operation permit was answered by McDonald's testimony, above quoted, and this evidence was not rebutted by Petitioner. The primary thrust of the evidence presented by Petitioner was that Bayfront had somehow misled the City of St. Petersburg regarding the operation of the incinerator and had not complied with all of the City's requirements in other respects, ergo, Bayfront could not be relied on to comply with the conditions in the operation permit. This evidence is irrelevant to the determination of whether or not the operation of the incinerator complies with all of the Department rules. The conditions of the operating permit require Bayfront to submit periodic reports to the Department from which the Department can determine whether the conditions in the permit are being complied with. Furthermore, the Department requires the permittee to notify the Pinellas County Department of Environmental Management at least fifteen days prior to the date on which each formal compliance test is to begin (Permit Condition No. 22) to allow them to witness the test, if desired. The construction permit, complying with the settlement agreement, required Bayfront to adhere to more frequent testing and more extensive testing then is required by the rules for operating biological waste incinerators. All of the tests and reports submitted by Bayfront on the operation of this incinerator met all of the requirements in the construction permit and the draft operation permit.
Recommendation It is RECOMMENDED that Bayfront Medical Center be issued Permit No. AO52- 224337 to operate a biological waste incinerator at Fifth Avenue South and Eighth Street, St. Petersburg, Florida. DONE AND ENTERED this 16th day of November 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 16th day of November 1993. COPIES FURNISHED: Adrian W. Helm, Esquire 925 14th Avenue North St. Petersburg, Florida 33712 Daniel N. Burton, Esquire Thomas K. Maurer, Esquire Terri L. Gillis-Tucker, Esquire Foley and Lardner 111 North Orange Avenue, Suite 1800 Orlando, Florida 32801 W. Douglas Beason, Esquire Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Virginia B. Wetherell, Secretary 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
Findings Of Fact No evidence was adduced on which findings of fact could be based.
Recommendation It is, accordingly, RECOMMENDED: That DER deny petitioner's application for a dredge and fill permit. DONE AND ENTERED this 18th day of July, 1989, in Tallahassee, Florida. COPIES FURNISHED: Cary C. Mills Post Office Box 7015 Milton, FL 32570 Richard L. Windsor, Esquire Stephen K. Hall, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 ROBERT T. BENTON, II 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 18th day of July, 1989. Dale H. Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue The issue is whether Respondent, Ben A. Leasure, should have a $3,000.00 administrative penalty imposed, take corrective action, and pay investigative costs for allegedly illegally filling 0.17 acres of wetlands contiguous with the Withlacoochee River (River), a Class III water, on land located in unincorporated Hernando County, Florida.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Respondent is the owner of an approximate 5-acre parcel of land located at the intersection of Olivet Drive and State Road 50 (5345 Olivet Drive) in unincorporated Hernando County, Florida. The property is also known as Parcel Identification Number R09-123-21-1110-00J0-0010. In broader geographic terms, the property lies just east of Interstate 75, west of U.S. Highway 301, and just west-southwest of Ridge Manor, a small community in Hernando County. The western boundary of the parcel is approximately 500 feet east of the River, a Class III Outstanding Florida Waterbody (OWF), which meanders through the area. See Fla. Admin. Code R. 62- 302.700(9)(i)41. In November 1971, Respondent purchased his property and on a later undisclosed date built a residence. According to Department Exhibit 24, which is a letter authored by Respondent in 1987, he first began filling the floodplain on the western part of his land "probably" in 1971, or just after he purchased the property. Historical aerial photographs of the site indicate that sometime before 1984, he constructed a pond just north of his house, apparently to be used for fishing, and by 1992 he had constructed a second, smaller pond just south of the larger pond. On February 3, 1986, the United States Army Corps of Engineers (Corps) sent Respondent a Cease and Desist Order in the form of a letter in which it advised Respondent that he had placed a "considerable amount of fill material" in wetlands adjacent to the River; that such filling was in violation of the federal Clean Water Act of 1977; that legal action would be taken if further filling occurred; that he must reply within 15 days indicating that he had complied with the terms of the letter; and that within the same timeframe he must provide information concerning the public and/or private need for the work, the effects on the surrounding area, and any other relevant information. By letter dated March 12, 1986, Respondent responded to the Cease and Desist Order and stated that prior to 1977 the land had been changed from wetlands to usable farmland, that his land did not connect to the River, and that there were no natural waters on his property that connected to state or federal waters. A follow-up letter was sent by the Corps on February 26, 1987, in which the Corps advised Respondent that he could resolve the violation "by removing all unauthorized fill material" and restoring the area. He was also told that in lieu of doing this, he could file an application for an after- the-fact permit authorizing the filling. A copy of a Joint Application for Permit was attached to the letter. On March 7, 1987, Respondent replied to the Corps' letter and stated that his land did not connect with any other waterbody; that he had been filling his property since 1971 without objection by anyone; that he had a "hard time understanding all these rules and regulations"; and that he questioned why the Corps was causing him "so much trouble for the last couple of years." Respondent never filed an application for an after-the-fact permit nor did he receive a reply to his letter. After an "Unauthorized Wetland Alteration Field Investigation" was conducted by the Southwest Florida Water Management District (District) sometime in 1992, by letter dated November 3, 1992, the District advised Respondent that it appeared the "wetland in question was disturbed prior to October, 1984" and that any filling done before that date was exempt from its jurisdiction; that it appeared that other dredge/fill work had been performed on the same wetland since that date; that Respondent's claim that the area was being used for agricultural purposes was not supported by any evidence; that Respondent's activities constituted a violation of Chapter 373, Florida Statutes; and that all illegal activity must be ceased immediately. The disposition of further contacts between the District and Respondent, if any, are unknown. Against this backdrop, on August 16, 2002, the Department's Tampa District Office received a complaint from the District stating that Respondent had illegally filled wetlands on his property. (The record does not show why the District waited almost ten years to refer the complaint to the Department.) In response to that complaint, and as a precursor to issuing a formal notice of violation, on August 20, 2002, the Tampa district office sent Respondent a warning letter indicating that a violation "may exist on [his] property" and requesting that he contact the Department to arrange a meeting "to discuss this matter." By mutual agreement, an inspection of the property was scheduled for September 5, 2002. Because a Department representative became unavailable just before the inspection, the Department did not appear at the property on the scheduled date or notify Respondent that the inspection had been cancelled. The following day, September 6, 2002, Department personnel were in the area and appeared unannounced at Respondent's property. However, no one was home and they did not inspect the property. Several weeks later, Department personnel again visited the site but could not gain access. Because Respondent was unwilling to grant access to his property, on April 17, 2003, the Department obtained an inspection warrant from the Circuit Court in Hernando County authorizing an inspection of Respondent's property. On April 22, 2003, seven Department employees inspected the property. Based upon plant species and hydrological indicators found on the property, it was established that the northwestern corner of Respondent's property lay within the surface water floodplain of the River and constituted wetlands, as defined by Section 373.019(22), Florida Statutes, and Florida Administrative Code Rule 62-340.200(19). (The Department also established that there is a fifty percent chance of the filled area being flooded during any given year.) Therefore, any filling on that portion of Respondent's property would require a permit. Department records reflected that Respondent had never obtained a permit authorizing any work. During their inspection, Department representatives observed that a narrow strip of land totaling around 0.20 acres in the northwest corner of the parcel (just west of the larger fish pond) had been filled with concrete debris and sand to a height of around 6 or 7 feet in an effort to sever the connection between the River and the wetlands.5 Unless the berm is removed, the activity could lead to adverse cumulative impacts, including a loss in available habitat for floral and fauna that currently use the area, a loss in water storage capacity of the current system, and a loss in detritus formation and nutrient/pollution cycling. An Enforcement Inspection Report prepared after the inspection recommended that an enforcement action be initiated. On June 10, 2004, the Department issued its Notice alleging that Respondent had violated Florida Administrative Code Rule 62-343.050, which requires a permit to fill wetlands or surface waters, and Section 403.161(1)(b), Florida Statutes, which makes it unlawful to violate a Department rule. On August 12, 2004, Respondent filed his Petition challenging the Notice. In his Petition, Respondent denied that he owned the property on which the filling occurred; alleged that the property had been previously inspected in 1986 by the Corps; alleged that the District confirmed by letter in 1992 that the filling had occurred prior to 1984 and was therefore exempt from regulation; and alleged that he is entitled to "restitution" for damages caused by the Wysong Dam being rebuilt downstream from his property. At hearing, Respondent also suggested that the filled area was not wetlands. This proceeding followed. On November 17, 2004, the Department conducted a second inspection of Respondent's property. The objectives of that inspection were to determine the boundary of the filled area by Global Position Satellite equipment and to allow Eric D. Hickman, the new Environmental Manager who was not present during the first inspection, to perform a review of the property. Through ground reconnaissance and photo- interpretation, Mr. Hickman was able to establish the landward extent of the wetlands and other surface waters of the State. Based on vegetation, soils, and hydrologic indicators found on the site, he was able to confirm that the filled area on Respondent's property is wetlands. In fact, because of the overwhelming evidence of wetland indicators on the property (that is, the site conditions met nearly every single test criterion for a wetland), Mr. Hickman stated that he could make that determination with "100 percent certainty." Mr. Hickman concurred with the findings in the earlier inspection report, including one that the filled area is located entirely within a forested floodplain, which is both a surface water and a wetland due to regular flooding in the area for sustained periods of time. Photographs received in evidence, and testimony by Department representatives, confirm that the flooding occurs on a regular basis. See also Finding of Fact 13, supra. Significantly, Mr. Hickman observed that additional filling had occurred since the first inspection some eighteen months earlier, and that there were two signs on the front of his property reading "Needed Clean Fill." Finally, the location of two large cypress trees on the property suggested that an intact and mature floodplain existed before the alterations occurred. The filling poses a threat to the functions of the land, such as vegetation and habitat. Therefore, removal of the concrete debris and sand is necessary in order to restore those functions. While the Department would not promise that he could do so, it did represent that it would consider Respondent's request to remove the debris and sand to the upland area of his property, which would be much less expensive than hauling it offsite. At hearing, Respondent acknowledged that despite a warning by the Corps in 1986 that the filling was illegal, he has continued to engage in that activity for at least two reasons: to prevent flooding of his property and to prevent contaminated River water from reaching his fish ponds. He further acknowledged that as recently as 2003 he allowed several trucks to dump concrete debris and sand onto his property. (The concrete debris was obtained from a local Walmart store.) Respondent justified his actions in part on the ground that the Corps failed to respond to his letter in March 1987, and he assumed that this was an indication that the filling was legal. He also contended that the filled area was originally uplands when he purchased the property, but it changed to wetlands due to increased runoff from heavy development in the area and the construction of a dam downstream which caused the River to overflow during heavy rains. As a consequence, his property and others in the area (such as homes on Cyril Drive) have been prone to flooding. However, Mr. Hickman established that a floodplain existed on the property before any filling occurred. In any event, the Department has jurisdiction over both natural and artificial wetlands, and permits are needed for filling either type of wetland. Therefore, while the filling may have been performed for a salutary purpose, after 1984 he needed a permit to do so (assuming that such activities in a wetland are permittable). The fact that the land is zoned agricultural by Hernando County does not negate this requirement.5 Finally, a contention that a wetland is changed to uplands by merely placing dry dirt onto the wetland has been rejected. The land still remains a wetland for jurisdictional purposes. Respondent never filed for an after-the-fact permit (as suggested by the Corps in 1987) because it was too "complicated" to fill out the form. He conceded, however, that he did not ask the Department for assistance in doing so. Except for the explanations discussed above, Respondent presented no mitigating evidence. He has asked that due to his financial circumstances the amount of the fine be moderated or forgiven. At hearing, three Tampa District Office employees established that they spent a total of 70 hours of time on this case. At their hourly rate of pay, this totals $1,850.00 in investigative costs. In addition, Mr. Hickman was required to perform a wetland determination on the property. The normal charge for an assessment on a property of this size is $550.00. The reasonableness of these amounts was not disputed by Respondent. However, the Department is seeking reimbursement of only $500.00.
The Issue The issue is whether Petitioner is liable to Respondent for costs it incurred in removing a drum containing gasoline and water that was located on Petitioner’s property.
Findings Of Fact At all times relevant to this proceeding, Petitioner owned a house (Petitioner's property or site), located at 217 20th Avenue North, St. Petersburg, Florida. The back of Petitioner's property was adjacent to an alley. Next door to Petitioner's property was another house owned by Petitioner. Between September 1995 and December 1995, Petitioner's property was unoccupied and undergoing extensive renovations. Petitioner hired Craig Quirk as the carpenter for the renovation project. Mr. Quirk worked on the project on a full-time basis during the entire period Petitioner's property was being renovated. One morning in late September when Mr. Quirk arrived at Petitioner's property to work, he discovered a wrought-iron stand and a 55-gallon drum in the backyard of Petitioner's property. Prior to that day, the drum had not been on Petitioner's property. Because the stand and drum were in the area where Mr. Quirk usually parked the vehicle, he and a helper dragged the drum and rack to the edge of the yard. The drum had a cap on it and was not leaking. Later that morning, when Petitioner came to the site, Mr. Quirk reported his discovery of the 55-gallon drum on Petitioner's property. At the time renovations were being made to Petitioner's property, Petitioner rented a dumpster which was used as a receptacle for construction debris. Mr. Quirk knew that the house owned by Petitioner and next door to Petitioner's property was on the market. Therefore, during the renovation of Petitioner's property, Mr. Quirk always utilized the dumpster in order to keep Petitioner's property clean. One or two days after learning about and observing the 55-gallon drum on the site, Petitioner telephoned a friend, Anthony Regan, to seek advice about removing the drum from Petitioner's property. At the time of Petitioner's call, Mr. Regan had two-and-a-half years of experience working as a truck driver for a hazardous waste facility. Although Mr. Regan is not a hazardous waste expert, because of his work experience, he is familiar with certain aspects related to hazardous waste and its disposal. Furthermore, Mr. Regan knows individuals within his company who can provide specific information regarding hazardous waste. At Petitioner's request, Mr. Regan went to the site to examine the 55-gallon drum and to assess what should be done with it. After being shown the drum by Petitioner, Mr. Regan temporarily removed the cap from the drum and inserted a stick in it. Based on his observation and assessment, Mr. Regan determined that the 55-gallon drum contained petroleum and water. When Mr. Regan observed the drum, it was not leaking and did not appear to be an environmental hazard. While at the site, Mr. Regan informed Petitioner that county amnesty program might provide assistance in removing the 55-gallon drum from Petitioner's property. Also, Mr. Regan told Petitioner that he would get an estimate from someone at the hazardous waste company for which Mr. Regan worked regarding the cost of removing the drum. Mr. Regan indicated that, after he checked on the county amnesty program and the estimate, he would report his findings to Petitioner. Between eight and ten days after going to Petitioner's property, Mr. Regan shared the results of his inquiries with Petitioner. First, Mr. Regan learned that the county amnesty program would not remove the drum because it did not belong to Petitioner, but had been dumped on Petitioner's property. Second, Mr. Regan reported to Petitioner that the hazardous waste company for which Regan worked could remove the 55-gallon drum from Petitioner's property for $350.00. Mr. Regan offered to look into the matter further, but prior to doing so went out-of-town for four or five weeks. Upon Mr. Regan’s return, Petitioner immediately contacted him to determine if additional information had been obtained concerning removal of the drum. While Mr. Regan had obtained no more additional information regarding removal of the drum, he suggested that Petitioner call the Sheriff’s Office. It was then that Petitioner made calls to several local agencies regarding the removal of the drum. Petitioner first called the police department, which in turn referred him to the county dump. The county dump could not assist Petitioner, but referred him to the Sheriff’s Office. Petitioner then called the Sheriff’s Office and spoke to Bob Aukenbaur, who told Petitioner that it was Petitioner's responsibility to have the drum removed. Because Petitioner was dissatisfied with Mr. Aukenbaur’s response, Petitioner called and attempted to speak to the Sheriff. Although unsuccessful in this regard, Petitioner did speak to an executive assistant, who promised to check into the matter. Approximately two days later, the executive assistant telephoned Petitioner and indicated that he was unable to find an amnesty program that would provide assistance to Petitioner. However, the executive assistant provided Petitioner with the telephone number of the Department of Environmental Protection and suggested that Petitioner call that agency for help. Petitioner then contacted the Department's regional office in Tampa, where he spoke to Jane Donnelly. The focus of Petitioner’s inquiry was whether it was his responsibility to remove the drum that had been “illegally dumped” on his property. After asking Petitioner several questions, Ms. Donnelly promised to get back with him. Several days after Petitioner contacted Department, Leslie Webster, an employee of the Department's regional office in Tampa and a Department trainee, visited the site to investigate the matter. When Ms. Webster arrived at the site, Petitioner and Paul Roney, the project design supervisor, were there. Petitioner showed Ms. Webster where the drum was located and explained to her that the drum had been dumped on his property. After Ms. Webster's on-site investigation, a form entitled "Initial Report of Emergency Response Incident" (Initial Report) was completed and forwarded to the Department's Tallahassee office. Petitioner was not provided with the Initial Report. The form bears the signature of Leslie Webster and is dated November 29, 1995. According to the Initial Report, the date of the incident was two weeks prior and the date the incident was reported to the Bureau of Energy Response was November 27, 1995. These dates do not accurately reflect the date of the incident and the date the incident was first reported. The Initial Report indicates that the incident was reported by Petitioner; that the “type of incident” is identified as “dumping“; that the incident description is noted as “abandoned drum(s)"; that the responsible party is “unknown”, and that the material in the drum is identified as from one to fifty- five gallons of gasoline and water. Also, the Initial Report has a “narrative” section. Nothing in this section indicates that Ms. Webster or anyone in the Department informed Petitioner that he was responsible for having the drum removed from the site. In situations such as this, the Department typically explains to the property owner what his responsibilities are with respect to a nonleaking drum. The property owner is then given a specified amount of time in which to remove the drum. The amount of time given to the property owner to remove the drum from his property varies, depending on the particular circumstances. The Department communicates this information to property owners in person, by telephone, or in writing. However, the Department's preferred manner of providing notice to property owners is to “talk face to face with people and let them know the circumstances they’re under.” When a Department investigator or other staff member visits a site and talks to the property owner about his responsibilities for removing pollutants or hazardous substances, no written notice is provided to the property owner reiterating the substance of the conversation. When Ms. Webster went to investigate the matter related to the drum on Petitioner’s property, there is no evidence that she told the Petitioner that he was responsible for removing the drum and that he was required to do so within a specified time. Likewise, there is no evidence that Ms. Webster told Petitioner that if he failed to remove the drum, the Department would have it removed and assess Petitioner the cost of such removal. Several days after Ms. Webster went to the site to investigate the matter, the drum remained on Petitioner’s property. Concerned that the drum had not been removed, Petitioner again called the Department's regional office in Tampa and spoke to Ms. Donnelly. During this conversation, Petitioner acknowledged that Ms. Webster had been to his property, but he expressed concern that the drum had not yet been removed. Ms. Donnelly then told Petitioner not to worry about it and stated, “I think we’re going to take care of it.” On or about November 29, 1995, the Department of Environmental Protection had the drum removed at a cost of $1,783. By letter dated August 5, 1996, more than eight months after the drum was removed from Petitioner’s property, the Department billed Petitioner $1,873.64 for costs and expenses incurred in removing the drum from Petitioner's property. This amount included administrative and investigative costs of $90.64 and $1,783 for the removal of the drum. Pursuant to the letter, Petitioner was given thirty days from the date of the letter in which to remit the amount due. Petitioner refused to pay the $1,873.64, and on the date of the hearing, the amount remained outstanding. The Department has incurred litigation costs of $2,090.93.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Department dismissing the claim against Petitioner, James J. Wooten, and finding that he is not liable to the Department for $3,964.57 in costs. DONE AND ORDERED this 18th day of September, 1997, in Tallahassee, Leon County, Florida. COPIES FURNISHED: James J. Wooten, pro se 145 25th Street, South CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 18th day of September, 1997. St. Petersburg, Florida 33705 Kathelyn M. Jacques, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Kathy Carter, Agency Clerk Department of Environmental Protection Office of the General Counsel 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 F. Perry Odom, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Findings Of Fact Petitioner failed to present any evidence in support of her contention that the permit in question should be issued for 10 rather than 5 years.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Department of Environmental Protection issue permit no DO29-221380 to Petitioner herein, Vicki L. Woodward, for a period of 5 years. RECOMMENDED this 23rd day of September, 1993, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 23rd day of September, 1993. COPIES FURNISHED: Vicki L. Woodward Happy Traveler Campground 2710 Fountain Boulevard Tampa, Florida 33609 Susan Schwartz, Esquire Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Virginia B. Wetherell Secretary 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
The Issue The issues for determination are: (1) whether Hillsborough County took any adverse employment action against Petitioner, David Moreda; (2) whether Petitioner disclosed information in the nature specified under Subsection 112.3187(5), Florida Statutes (2006); (3) if yes to the foregoing, whether such adverse employment action against Petitioner was causally related to any disclosure Petitioner made of information specified in Subsection 112.3187(5), Florida Statutes (2006); whether Petitioner provided above-referenced information to Respondent's chief executive officer; and (5) whether Petitioner timely filed a complaint of whistle-blower retaliation.
Findings Of Fact The County administrator, Patricia G. Bean, is the head of the Hillsborough County administrative organization and the chief executive officer of Hillsborough County. As County administrator, Ms. Bean is responsible for carrying out all decisions, policies, ordinances, and motions made by the Board of County Commissioners. She is also responsible for oversight of all the departments under the County Administrator's Office and uses approximately 24 departments within the Hillsborough County organization to achieve the functions necessary to County government. The Public Works Department (Public Works) and the Water Resource Services Department (Water Resource Services), formerly referred to as the Water Department, are each stand-alone departments. Most of the functions of Public Works and Water Resource Services are separate and distinct from each other. From approximately March 1986 through May 2006, Hillsborough County employed Petitioner in Water Resource Services. Petitioner began working for Hillsborough County as a senior groundskeeper. Thereafter, he became a landscape gardener, which involved cutting grass and maintaining wastewater facilities. Petitioner ultimately became a Plant Maintenance Mechanic I and then a Plant Maintenance Mechanic II. As a Plant Maintenance Mechanic II, Petitioner's duties were to operate and maintain lift stations for Water Resource Services. As of October 2003, Petitioner was employed as a Plant Maintenance Mechanic II and was assigned to work at the County's South Pump Station. In or about October 2003, Petitioner was injured in a nonwork-related motorcycle accident which resulted in Petitioner's breaking both of his feet. As a result of his injuries, Petitioner requested and the County granted a medical leave of absence. Petitioner tried to return to work in April 2004, but it was too soon after his motorcycle accident. After Petitioner's attempt to return to work was unsuccessful, and apparently premature, his doctor placed him on another medical leave. Initially, Petitioner was on short-term medical leave for about six months, followed by a long-term disability leave for the next year or so. Hillsborough County preserved Petitioner's employment status while he was on these leaves of absence necessitated by injuries he sustained in the motorcycle accident. Some time prior to January 2005, in anticipation of returning to work, Petitioner applied for a transportation worker position in Public Works. In March 2005, the County sent Petitioner to have a doctor complete a "Fitness for Duty Report" form. Petitioner went to his orthopedic surgeon, who completed the form on March 16, 2005. The doctor noted on the form that Petitioner could return to work on April 4, 2005. As he prepared to return to work after his one and one-half years of medical leave, Petitioner began to request work location transfers. Petitioner requested three such transfers within Water Resource Services, where he was employed. Two of the three work location transfers were granted. In the instance when Petitioner's work location transfer was not granted, Petitioner was allowed to transfer to another work team at his assigned work site. On January 24, 2005, while still on leave of absence, Petitioner requested a transfer of work location from the County's South Pump Station, where he was assigned before he went on medical leave, to the Central Pump Station. According to Petitioner, he requested this transfer because the Central Pump Station was closer to his home. The director of Water Resource Services, Paul Vanderploog, granted Petitioner's request. By letter dated March 29, 2005, about two months after Petitioner's first request for transfer of work location was granted, and while he was still on leave, Petitioner requested another transfer. This time Petitioner requested to be transferred from the County's Central Pump Station to the Northwest Pump Station.1/ When Petitioner requested a transfer from the Central Pump Station to the Northwest Pump Station, he told Vanderploog that if this request were honored, he (Petitioner) would not request another transfer. Petitioner specifically asked to be placed under either Wally Peters or Charlton Johnson, both of whom were team leaders at the Northwest Pump Station. In addition to requesting the transfer from the Central Pump Station, Petitioner advised Mr. Vanderploog that he was looking for another position in the County and had been looking for the past six months. Petitioner's March 29, 2005, letter stated, in part, the following: I pledge to you, right now, that I will return to full-duty under either Wally Peters or Charlton Johnson with NO other requests for movement. I promise you, as a gentleman, that I will accept the assignment at NW [Northwest] pump stations [sic] with no subsequent requests for lateral movement contingent upon my return. However, I will be looking for another position in the County, as I have done for the past 6+ months. I want to do something different with my life, and until the right opportunity comes along, I will "stick it out" in pump stations. Vanderploog granted Petitioner's second transfer request and transferred Petitioner from the Central Pump Station to the Northwest Pump Station. On April 4, 2005, the day Petitioner's physician had stated Petitioner could return to work, Petitioner was scheduled to begin work at the Northwest Pump Station. However, Petitioner called in sick that day and did not report to work. When Petitioner returned to work, he reported to the Northwest Pump Station and worked there about two weeks. Meanwhile, on or about April 6, 2005, two days after he was to report to work, Petitioner requested a third transfer of work location. This time he wanted to be transferred from the Northwest Pump Station to the South Pump Station, where he was initially assigned. According to Petitioner, he requested the transfer from the Northwest Pump Station because he was not comfortable working on the team lead by Charlton Johnson, to which Petitioner had been assigned. Mr. Vanderploog denied Petitioner's request to transfer from the Northwest Pump Station to the South Pump Station. The reason Mr. Vanderploog denied the request was that he knew Petitioner and the team chief at the South Pump Station had communication problems and did not get along very well. Petitioner had detailed his perception of these problems in his March 29, 2005, letter to Mr. Vanderploog, referred to in paragraph 13 and 15 above. Mr. Vanderploog believed that if he transferred Petitioner back to the South Pump Station, the team chief with whom Petitioner did not get along, may have left that location, and he (Vanderploog) did not consider this an acceptable tradeoff. Less than two weeks after Petitioner requested his third transfer (from the Northwest Pump Station to the South Pump Station) and Mr. Vanderploog denied the request, Petitioner wrote and sent an e-mail dated April 17, 2005, to the County administrator, Ms. Bean, and other upper management. In the April 17, 2005, e-mail, Petitioner stated that he believed it was inappropriate to employ Synrick Dorsett, a sexual predator, in Water Resource Services in an unsupervised capacity. Specifically, Petitioner stated: The problem is that an employee of the Water Department, who is a registered sexual predator, is allowed to roam unsupervised through out [sic] Brandon and Valrico (and anywhere he cares to go) as part of his job assignment in the Water Department. His name is Syndrick Dorsett. . . He is on FDLE's website as a sexual predator. He should NOT be allowed to roam freely in a County vehicle. At the time Petitioner wrote the e-mail to the County administrator, he had already known for ten years that there was a sexual predator working in Water Resource Services. In fact, Synrick Dorsett’s status as a sex offender was well known in Water Resource Services for many years. Petitioner testified that he wrote the April 17, 2005, e-mail, after he "had certain thoughts" about another County employee named Synrick Dorsett. Petitioner testified that he began to have these thoughts after the County Commissioners proposed putting photos of sexual predators in County parks. Petitioner claimed that Dorsett came to mind in light of those proposals, because he was under the impression that Dorsett was a "sexual predator" and was a County employee as of April 2005. However, this testimony is not credible in light of Petitioner's admission to a County investigator. In the summer of 2005, Petitioner admitted to the County, through Bob Sheehan, the chief investigator of the County's Professional Responsibility Section of the Consumer Protection and Professional Responsibility Agency, that he sent the April 17, 2005, e-mail to the County officials in order to better his leverage to obtain the position he wanted in Water Resource Services. In fact, about two weeks after Petitioner sent the April 17 e-mail, even though Mr. Vanderploog had denied Petitioner's third work location request (from the Northwest Pump Station to the South Pump Station), Vanderploog attempted to address Petitioner's concern that he (Petitioner) was uncomfortable working on the team to which he was assigned. In order to accommodate Petitioner, on or about May 2, 2005, Mr. Vanderploog moved Petitioner from the work team that he was initially assigned at the Northwest Pump Station to the other work team at that location. In or about April 2005, Petitioner interviewed with Public Works for a position as a transportation worker, the position he had applied for several months earlier. Prior to accepting the transportation worker position in Public Works, Petitioner indicated by his signature on two different County forms that he understood the job description for the position and could perform the functions of the job. Petitioner signed the County's pre-printed job description form on April 21, 2005, indicating that he read and understood the basic job description. A few days later, on May 2, 2005, Petitioner signed an Acknowledgement of Position Description Review form, in which he acknowledged that he "is able to perform the function" of the transportation worker without accommodations. On or about May 4, 2005, Petitioner accepted the position of transportation worker with Public Works. On a County form, Petitioner acknowledged that he understood that his new position with Public Works, county-wide, is a voluntary demotion (in terms of the hourly pay rate) and that if he did not successfully complete the six-month probationary period, he would no longer be employed by Hillsborough County. Petitioner was scheduled to start his new position as transportation worker on May 23, 2005. As noted above, Petitioner notified Mr. Vanderploog in the March 29, 2005, letter that he was looking for another position with the County. However, Petitioner never notified any manager in Water Resource Services that he had accepted the transportation worker position in Public Works. Water Resource Services first learned that Petitioner had accepted the position of transportation worker on or about May 10, 2005, when Public Works contacted the interim section manager (section manager) of Water Resource Services' wastewater operations and requested that his office complete a change of status form for Petitioner. After learning from Public Works that Petitioner had accepted the transportation worker position, the section manager wrote an e-mail to Petitioner. In the e-mail, the section manger told Petitioner that he had been notified that Petitioner had accepted the transportation worker position and, therefore, Petitioner needed to resign from his current position as Plant Maintenance Mechanic II. The resignation was necessary in order to process the paperwork to effectuate Petitioner's move to his new position as transportation worker. Prior to learning that Petitioner had accepted the position with Public Works, the section manager was concerned that Petitioner had only worked one day after he received medical clearance to return to work. In light of this concern, the section manager had instructed Petitioner's supervisor to initiate a written reprimand for Petitioner's failure to come to work. However, after receiving notice from Public Works that Petitioner had accepted a job in that unit, the section manager decided he would not pursue the previously-planned disciplinary action. Petitioner was aware of the contemplated disciplinary action. However, in the e-mail referred to in paragraph 31, in which he asked Petitioner to submit a resignation letter, the section manager also advised Petitioner that he (the section manager) would not pursue any disciplinary action against Petitioner since Petitioner was leaving Water Resource Services and taking another job. On May 10, 2005, Petitioner voluntarily resigned from his position in Water Resource Services, after he received the e-mail from the section manager and after he had accepted the position as a transportation worker in Public Works. Before starting his new job with Public Works in May 23, 2005, Petitioner asked Water Resource Services to rescind his resignation. Water Resource Services declined Petitioner's request because of his refusal to show up for work and his behavior toward, and inability to appropriately interact with, people in the entire department. After arriving at the job site in Public Works on his first day of work as a transportation worker, Petitioner testified that he knew that taking this job was a mistake. His first assignment involved installing a guardrail, work which was very labor intensive. Petitioner believed that the physical requirements of this job could result in his re-injuring himself. Given his concerns, Petitioner did not work the entire day and left after only a few hours and never returned. After his first and only day working as a transportation worker, Petitioner indicated he could not perform the duties of that job. Thereafter, Public Works temporarily assigned Petitioner to the storm water unit in the County Center, where he performed duties such as filing, making copies, and "running" mail. He worked in this temporary assignment four or five months, including the summer of 2005. The County scheduled a Fitness-for-Duty examination for Petitioner that occurred on June 16, 2005. The health care professional who conducted the examination concluded Petitioner must observe a lifting restriction and must walk only on even ground; he could not walk on rough, uneven terrain. The health care provider also indicated that Petitioner's physical condition that required these restrictions was a permanent condition. On August 8, 2005, Petitioner signed a County form, indicating that he could not perform any of the functions of a transportation worker. A Fitness-for Duty meeting was conducted on August 11, 2005. During that meeting, Public Works reviewed all information regarding Petitioner's physical capabilities and the job tasks associated with the transportation worker position and other positions to which he requested a transfer, Plant Maintenance Mechanic I or II in the Storm Water section of Public Works. Public Works, in conjunction with the Human Resources Department, determined that Petitioner could not perform the essential functions of the transportation worker position or the Plant Maintenance Mechanic I and/or II positions. Given the outcome of the Fitness-for-Duty meeting, by letter dated August 23, 2005, the County notified Petitioner that he had 90 days from the date of the letter to find another position or Public Works would have to terminate his employment.2/ As the 90-day deadline was about to expire, Public Works determined that it needed to have a due process hearing on Petitioner's employment status. The time required for culmination of the hearing process resulted in the 90-day period Petitioner was given to find a job being extended by more than two additional months. On or about August 26, 2005, Petitioner began an approved leave of absence in conjunction with his search for another position. After Petitioner sent the e-mail discussed in paragraph 31, Petitioner was invited to interview for four positions with the County, including positions in the Library Services Department, Public Works, and the Parks, Recreation and Conservation Department. On or about October 20, 2005, Petitioner was interviewed for a position with the Library Services Department. However, he was not selected for that position because that position required that the person be bilingual, and Petitioner was not bilingual. The Parks, Recreation and Conservation Department attempted to interview Petitioner on two different occasions. In the first instance, Petitioner failed to show up for an interview scheduled for August 4, 2005, at a time agreed upon by Petitioner. On or about November 19, 2005, Petitioner declined an interview for a second position with the Parks, Recreation and Conservation Department because the salary was too low. On or about November 23, 2005, Public Works requested an extension of Petitioner's leave of absence. The Hillsborough County Civil Service Board (the Board) approved the extension. In December 2005, Petitioner was interviewed for one of three vacant positions as an inspector/spray/equipment operator in the Mosquito and Aquatic Weed Control Section of Public Works. That position required some degree of expertise in spraying for mosquitoes and handling chemicals used for controlling pests on grass. Most of the interview questions were designed to determine the interviewee's level of technical knowledge about the required job duties. Petitioner's score on the interview rating was lower than any of the other candidates. Therefore, the more qualified applicants were offered the positions. In a memorandum dated December 7, 2005, Scott Cottrell, P.E., engineering director, Public Works, requested a due process hearing for the purpose of seeking to terminate Petitioner from the transportation worker position. Mr. Cottrell cited the following reasons for seeking this action: (1) Petitioner's last active day of work was August 25, 2005, and he had been on medical leave since August 26, 2005; (2) at the interviews for the transportation worker position, Petitioner had read and signed a Job Description form and indicated he understood the duties of that position; (3) after reporting to work the first day, Petitioner advised the unit that he could not finish the day's work activities due to his physical condition; (4) Petitioner had worked only part of one day as a transportation worker; (5) the determination at the August 11, 2005, Fitness-for-Duty meeting that Petitioner was unable to perform the essential functions of his position as transportation worker; and (6) the determination that Petitioner could not perform the duties of Plant Maintenance Mechanic I or II positions in the Stormwater Section of Public Works due to his medical restrictions. The memo randomly noted that Petitioner had been given 90 days to seek and secure other employment, but had been unable to do so. Finally, Mr. Cottrell wanted to fill the position with someone who could perform the job. According to Mr. Cottrell, "[d]ue to our [Public Works] mission, it is imperative that we keep our positions actively filled; therefore, it has become necessary to proceed with further action to seek the termination of [Petitioner]." On or about February 1, 2006, the Appointing Authority conducted a due process hearing regarding Petitioner's employment. On February 10, 2006, Hillsborough County dismissed Petitioner from his position with Public Works. The notice of dismissal stated that Petitioner's dismissal was based on a determination at a Fitness-for-Duty meeting on August 11, 2005, where it had been determined that Petitioner was unable to perform the essential functions of the transportation worker position for Public Works. The notice stated that the dismissal was based on Civil Service Board Rule 11.2(27). Civil Service Board Rule 11.2(27) provides that an employee in the classified service, such as Petitioner, may be dismissed where the employee demonstrates a mental or physical impairment that prevents such employee, with or without accommodation, from performing the essential functions of his or her position. The notice of dismissal dated February 10, 2006, specified that the dismissal was effective on that date. The notice also advised Petitioner that he could appeal the dismissal to the Board by filing a request for hearing within ten calendar days from the date of receipt of the notice. Petitioner challenged his dismissal and filed an appeal request on February 20, 2006. On the appeal request form, Petitioner indicated that he received the notice of dismissal on February 13, 2006. On June 5, 2006, the Board heard Petitioner's appeal of his dismissal. During this proceeding, at which both parties were represented by counsel, the Board considered the County's Motion for Summary Judgment, the opposition thereto, exhibits in the record, and argument of counsel. On June 20, 2006, the Board entered a Final Summary Judgment in the case affirming Petitioner's dismissal, after finding certain material facts to be undisputed. Among the undisputed material findings was Petitioner's admission at the February 1, 2005, due process hearing, that he could not perform the duties of transportation worker.3/ On or about July 10, 2006, Petitioner sent a memorandum to Camille Blake, the County's Equal Employment Opportunity manager, and Robert Sheehan requesting an investigation. In the memorandum, Petitioner alleged that Water Resource Services harassed and retaliated against him for reporting and exposing to the media "a register [sic] sexual predator on the payroll." According to the memorandum, Petitioner began looking for another position in the County as a result of the alleged harassment and retaliation, and this job search resulted in Petitioner's being offered and accepting the job in Public Works. Petitioner's statement in the July 10, 2006, memorandum, that he began looking for a job because he was being harassed and retaliated against by persons in Water Resource Services is not credible contrary to Petitioner's March 29, 2005, letter to Mr. Vanderploog. In that letter, Petitioner stated he had been looking for another position in the County for the "past 6+ months," because he "want[ed] to do something different with [his] life." Based on the foregoing, Petitioner returned to work in April 2005 and took the transportation worker position, not because he was being harassed or retaliated against, but because he wanted to do "something different with [his] life." In the July 10, 2006, memorandum, Petitioner also stated that although he accepted the job in Public Works, he really wanted to stay in Water Resource Services so he did not immediately submit his resignation. In fact, Petitioner stated that he was "about to" call Public Works and rescind his acceptance, but before he could do so, he received the May 10 e-mail from the section manager, referred to in paragraph 31, "demanding" Petitioner's resignation. Petitioner's July 10, 2005, memorandum stated that the only reason he submitted the resignation letter to Water Resource Services was because he had been previously told he was "insubordinate and facing charges," and he wanted to "avoid more consternation and strife and to not be insubordinate." According to the memorandum, Petitioner attempted to rescind his resignation letter the day after it was submitted, but the manager in Water Resource Services rejected Petitioner's attempt to rescind his resignation. Notwithstanding Petitioner's July 10, 2006, memorandum stating that he was forced to resign, Petitioner's resignation was voluntary, and Water Resource Services was under no obligation to accept Petitioner's offer to rescind his resignation and to rehire him. By letter dated July 14, 2006, Petitioner filed a complaint with the County administrator. The complaint challenged the Board's Final Summary Judgment affirming Petitioner's dismissal under the state's Whistle-blower Act. The sole reason the County terminated Petitioner's employment was that he could not perform the functions of the transportation worker position in Public Works. Civil Service Board Rule 11.2(27) provides that employees in classified service, such as Petitioner, may be dismissed if a demonstrated physical impairment prevents the employee from performing the essential functions of his position. The evidence does not support Petitioner's claims that after he filed a Whistle-blower claim on April 17, 2005, he was forced to transfer to Public Works, and then was dismissed from that job.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Hillsborough County Board of County Commissioners enter a final order finding that Petitioner did not timely file his Whistle-blower complaint and dismissing the Petitioner's complaint. DONE AND ENTERED this 11th day of April, 2007, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of April, 2007.
