11-002276 Department Of Environmental Protection vs. Thomas B. Mahon
 Status: Closed
Recommended Order on Friday, December 30, 2011.


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Summary: For failure to comply with record keeping and reporting requirements applicable to operators of wastewater and drinking water treatment facilities, it is recommended that Respondent pay a fine of $2,00 and the he be place on probation for two years.

1(License No. 6019) operator. The Respondent was contracted to operate and maintain

13nine WWTFs located in Hillsborough and Pasco Counties, and eight PWSs located in

26Pasco County.

28In response to the Administrative Complaint the Respondent filed a challenge

39that was referred to DOAH. The Department filed an Amended Administrative

50Complaint on June 8, 2011. The Department also served a request for admissions

63requesting the Respondent to admit each allegation of the Amended Administrative

74Complaint. When the Respondent did not respond, the Department moved to have the

87matters deemed admitted. The ALJ ordered the Respondent to show cause why the

100matters should not be deemed admitted. The ALJ granted the Department's motion to

113deem the matters admitted after receiving the response to the Order to Show Cause.

127At the beginning of the final hearing, on November 30, 2011, the Department

140dropped the charge in Count XXI of the Amended Administrative Complaint that alleged

153the Respondent falsified entries in a WWTF log book. A court reporter recorded the

167final hearing, but a transGript was not ordered or filed by either party. The Department

182submitted a proposed recommended order. The Respondent Mahon filed a letter with

194attachments that were not previously offered into evidence at the final hearing. The ALJ

208did not admit the attachments into the evidentiary record, and subsequently issued his

221RO on December 30, 2011.

226RECOMMENDED ORDER

228In the RO, the ALJ recommended that the Department enter a Final Order that

242disciplines the Respondent's licenses by requiring: (1) payment of a $2,000.00

254administrative fine within 60 days; (2) two years probation, during which time the

267Respondent is prohibited from entering into any new oral or written contracts to provide

281operator services to owners of WWTFs and PWSs; (3) that the Respondent deliver a

295copy of the Final Order to his employer so that the employer is made aware of the

312problems for which the disciplinary action was taken. (RO at pages 10-11).

324The Violations

326The·ALJ found that the effect of his order that deemed admitted all matters in the

341Department's request for admissions, was to establish all the allegations of the

353amended administrative complaint as facts in evidence, except for the allegation of

365falsification of records, which the Department withdrew. (RO W 4, 17).

376Rule 62-602.650(3), Florida Administrative Code ("F.A.C."), requires that

386operators maintain an operation and maintenance log book ("O&M log") for each WWTF

401and PWS and to keep the O&M log on site for inspection. The ALJ found that on one

419Department inspection in 2009 and on fifteen Department inspections in 2010, the

431Respondent failed to have the O&M log on site for inspection at several WWTFs and

446PWSs. (RO 11 5). Rule 62-601.300(1), F.A.C., requires WWTF operators to monitor the

459operation of the WWTFs and to submit monthly Discharge Monitoring Reports ("DMRs")

473to the permittee and to the Department. The ALJ found that in 2010, there were twenty­

489five instances when the Respondent failed to timely submit DMRs. (RO 11 6). Rule 62­

504555.350(12)(b), F.A.C., requires PWS operators to monitor the operations of the PWS

516and to timely submit monthly operating reports ("MORs") to the water supplier and to the

533Department. The ALJ found that in 2010, there were twenty instances when the

546Respondent failed to timely submit MORs. (RO 11 7).

555The ALJ noted that in addition to record keeping and reporting duties, operators

568ofWWTFs are required to perform responsible and effective on-site operation,

578supervision, and maintenance of the facility. See Fla. Admin. Code R. 62-602.650(1).

590The ALJ found that the WWTFs for which the Respondent had responsibility were

603sometimes operating out of compliance with Department rules and standard operating

614practices. (RO mJ 8 and 9). For example, at different times at different WWTFs, the

629nitrate limit was exceeded, the surface of the clarifier was covered with solids, there

643were solids at the bottom of the chlorine contact chamber, the annual average fecal

657coliform limit was exceeded, the maximum fecal coliform limit was exceeded, there was

670excessive foam and scum on clarifier's surface, the lift station warning system was not

684operational, the calibration for meters had expired, there was accumulated sludge in the

697percolation pond, the blower's air filter was dirty and overdue for replacement, facility

710upsets were not reported, the stilling well was full of dried solids, the pump drive belt

726was cracked, air diffusers were clogged or broken, the lift station's audible and visual

740alarms were inoperable, and solids were discharging over the clarifier weir. (RO 8).

753Disciplinary Guidelines

755The ALJ noted that disciplinary guidelines applicable to operators of WWTFs and

767PWSs are contained in Rule 62-602.850, F .A.C. (RO 19). For the failure to maintain

782O&M logs and to timely submit DMRs and MORs, the recommended penalty is, as a

797minimum, issuance of a probation letter and, as a maximum, an administrative fine of

811$1,000. See Fla. Admin. Code R. 62-602.850(8}. The recommended penalty for failure

824to report plant upsets or unpermitted discharges is a minimum one year license

837suspension and a maximum of license revocation. Id. (RO 20). The recommended

849penalty for failure to perform operations in a manner consistent with standard operating

862practices is a minimumfine of $100 per day up to a maximum of $1,000. (RO 21).

879The ALJ acknowledged that the Department sought to revoke the Respondent's

890wastewater license for two years and suspend his drinking water license for two years.

904The ALJ found that when a license is revoked, the operator cannot work again as an

920operator unless he or she re-applies for and is issued a new When a license is

936suspended, the operator may continue to work as an operator at the conclusion of the

951suspension period. (RO 22). The ALJ noted that in order to suspend a license, Rule

96662-602.870(1), F.A.C., provides that the Department "shall, depending on aggravating

976and mitigating circumstances, in addition to a fine" suspend a license for up to two years

992for incompetence in the performance of the duties of an operator. (RO 23). The ALJ

1007concluded that the record evidence showed that the Respondent's performance of the

1019duties of an operator of PWSs was inadequate. Thus, the evidence was sufficient to

1033suspend the Respondent's drinking water license. (RO 24).

1041The ALJ also noted that in order to revoke a license, Rule 62-602.870(2), F.A.C.,

1055provides that one basis is "persistent inaccuracy or incompleteness of data or

1067information" in required logs and reports. The ALJ concluded that the on-site, operation

1080and maintenance problems identified in finding of fact paragraph 8 were not grounds for

1094revoking the Respondent's wastewater license under Rule 62-602.870(2), F.A.C.,

1103because it was not shown that they resulted in harm to the public health or safety or to

1121the environment. The ALJ found, however, that the record evidence was sufficient to

1134revoke the Respondent's wastewater license for frequent failures to maintain O&M logs,

1146or to submit DMRs and MORs for WWTFs and PWSs under his management. (RO

116025).

1161Mitigating Circumstances

1163A mitigating circumstance that the ALJ found should be considered in the

1175determination of the disciplinary action to be taken against the Respondent, was the fact

1189that with the exception of one WWTF and one PWS, the owner of which appeared at

1205the hearing to praise the Respondent's services to him, the Respondent had lost all of

1220his contracts with owners of WWTFs and PWSs to operate and maintain their facilities.

1234(RO mI 14, 26). Therefore, the problems that occurred in the past may not occur in the

1251future with any greater frequency than they occur with other licensed operators. (RO mr

126511,26).

1267The ALJ concluded that although the Department is authorized by its rules to

1280suspend the Respondent's drinking water license and to revoke his wastewater license,

1292the circumstances suggested the alternative disciplinary action of imposing an

1302administrative fine and a probation period to test the Respondent's claim that his new

1316employment with a facilities management company will make his performance

1326acceptable to the Department. (RO 27).

1332STANDARD OF REVIEW

1335Section 120.57(1 )(1), Florida Statutes, provides that an agency reviewing a

1346recommended order may not reject or modify the findings of fact of an ALJ, "unless the

1362agency first determines from a review of the entire record, and states with particularity in

1377the order, that the findings of fact were not based on competent substantial evidence."

1391§ 120.57(1)(1), Fla. Stat. (2011); Charlotte Countyv./MC Phosphates Co., 18 SO.3d

14021089 (Fla. 2d DCA 2009); Wills v. Fla. Elections Comm'n, 955 SO.2d 61 (Fla. 1st DCA

14182007). Section 120.57(1 )(1), Florida Statutes, further prescribes that an agency may

1430accept the recommended penalty in a recommended order, "but may not reduce or

1443increase it without a review of the complete record and without stating with particularity

1457its reasons therefor in the order, by citing to the record in justifying the action."

1472§ 120.57(1 )(1), Fla. Stat. (2011); Criminal Justice Standards and Training Comm'n v.

1485Bradley, 596 SO.2d 661 (Fla. 1992); Roberts v. Dep't of Corrections, 690 SO.2d 1383

1499(Fla. 1st DCA 1997).

1503In Bradley the Florida Supreme Court found that

1511[1]1 is a primary function of [a professionalagency] to

1520determine the appropriate punishment for the misconduct of

1528the professionals it regulates. As long as the statute under

1538which a professional agency operates provides guidelines

1545for imposing penalties, the agency complies with [section

1553120.57(1 )(1)], and the increased penalty falls within the

1562guidelines established by its statute, a professional board or

1571agency has the discretion to increase the recommended

1579penalty.

1580596 SO.2d at 663.

1584The agency is without authority, however, to reduce or increase the penalty, or

1597disregard an ALJ's recommendation regarding mitigating circumstances, without

1605considering the transcript of the hearing at which the facts were developed. See, e.g.,

1619Roberts v. Dep't of Corrections, 690 SO.2d 1383,1384 (Fla. 1st DCA 1997)(reflecting

1632that the fact finder's recommendation as to penalty may not be disregarded absent

1645consideration of the hearing transcript); Edwards v. Dep't of Health & Rehab. SeNs.,

1658592 SO.2d 1249, 1250 (Fla. 4th DCA 1992)("The 'complete record' required by [section

1672120.57(1)(1)] includes the official transcript of the evidentiary hearing ... ").

1683CONCLUSION

1684The case law of Florida holds that parties to formal administrative proceedings

1696must alert reviewing agencies to any perceived defects in DOAH hearing procedures or

1709in the findings of fact of ALJs by filing exceptions to DOAH recommended orders. See,

1724e.g., Henderson v. Dep't of Health, Bd. of Nursing, 954 So.2d 77 (Fla. 5th DCA 2007);

1740Fla. Dep't ofCorrs. v. Bradley, 510 So.2d 1122, 1124 (Fla. 1st DCA 1987). Having filed

1755no exceptions to certain findings of fact, the party has waived any objection to those

1770findings of fact, or to whether the violation found was properly charged. See, e.g.,

1784Comm'n on Ethics v. Barker, 677 SO.2d 254, 256 (Fla. 1996); Mehl v. Office of Financial

1800Regulation, 859 SO.2d 1260 (Fla. 1st DCA 2003).

1808The ALJ concluded that the Respondent Mahon's licenses should be

1818alternatively disciplined as recommended by the ALJ and not as proposed by the DEP.

1832Neither party filed any exceptions to the RO objecting to the ALJ's findings and

1846recommendation, or objecting to the DOAH hearing procedures.

1854Having considered the applicable law in light of the uncontested findings of fact

1867set forth in the RO, and being otherwise duly advised,

1877It is therefore ORDERED that:

1882A. The Recommended Order (Exhibit A) is adopted and approved in its entirety

1895and incorporated herein by reference.

1900B. The Respondent, Thomas B. Mahon's Certified Operator Drinking Water and

1911Wastewater Licenses are placed on probation for a period of two years commencing on

1925the date of entry of this Final Order. During the two-year probation, the Respondent is

1940prohibited from entering into any new oral or written contracts to provide operator

1953services to owners of WWTFs and PWs; and

1961C. The Respondent shall immediately deliver a copy of this Final Order to his

1975employer so that the employer is made aware of the problems for which this disciplinary

1990action was taken; and

1994D. The Respondent shall pay an administrative fine of $2,000.00 to the

2007Department within 60 days of the date of entry of this Final Order. The check shall be

2024made payable to the Department of Environmental Protection - Water Quality

2035Assurance Trust 'Fund; the memo shall reference OGC Case No.1 0-3555; and be

2048mailed to the Department of Environmental Protection, Operator Certification Program,

2058Bureau of Water Facilities Funding, 2600 Blair Stone Road, Mail Station-3506,

2069Tallahassee, Florida 32399-2400.

2072JUDICIAL REVIEW

2074Any party to this proceeding has the right to seek judicial review of the Final

2089Order pursuant to Section 120.68, Florida Statutes, by filing a Notice of Appeal pursuant

2103to Rules 9.110 and 9.190, Florida Rules of Appellate Procedure, with the clerk of the

2118Department in the Office of General Counsel, 3900 Commonwealth Boulevard, M.S. 35,

2130Tallahassee, Florida 32399-3000; and by filing a copy of the Notice of Appeal

2143accompanied by the applicable filing fees with the appropriate District Court of Appeal.

2156The Notice of Appeal must be filed within 30 days from the date this Final Order is filed

2174with the clerk of the Department.

2180'. :/V'

2182DONE AND ORDERED this tJJ.:... day of March, 2012, in Tallahassee, Florida.

2194STATE OF FLORIDA DEPARTMENT

2198OF ENVIRONMENTAL PROTECTION

2201Stoneman Douglas Building

22043900 Commonwealth Boulevard

2207Tallahassee, Florida 32399-3000

2210FILED ON THIS DATE PURSUANT TO § 120.52,

2218FLORIDA STATUTES, WITH THE DESIGNATED

2223DEPARTMENT CLERK, RECEIPT OF WHICH IS

2229HEREBY ACKNOWLEDGED. ,...

22323-;1./ .. /2,;

2236DATE

2237CERTIFICATE OF SERVICE

2240I CERTIFY that a copy of the foregoing Final Order has been sent by United

2255States Postal Service to:

2259Thomas B. Mahon

22628151 Gall Blvd.

2265Zephyrhills, FL 33541

2268by electronic filing to:

2272Division of Administrative Hearings

2276The DeSoto Building

22791230 Apalachee Parkway

2282Tallahassee, FL 32399-1550

2285and by hand delivery to:

2290Matthew Smith-Kennedy, Esquire

2293Department of Environmental Protection

22973900 Commonwealth Blvd., M.S. 35

2302Tallahassee, FL 32399-3000

2305day of March, 2012.

2309STATE OF FLORIDA DEPARTMENT

2313OF ENVIRONMENTAL PROTECTION

2316\\.. - Administrative Law Counsel

23213900 Commonwealth Blvd., M.S. 35

2326Tallahassee, FL 32399-3000

2329Telephone 850/245-2242

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 03/21/2012
Proceedings: Agency Final Order
PDF:
Date: 03/21/2012
Proceedings: Agency Final Order filed.
PDF:
Date: 12/30/2011
Proceedings: Recommended Order
PDF:
Date: 12/30/2011
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 12/30/2011
Proceedings: Recommended Order (hearing held November 30, 2011). CASE CLOSED.
PDF:
Date: 12/13/2011
Proceedings: Response Letter filed.
PDF:
Date: 12/12/2011
Proceedings: Proposed Recommended Final Order filed.
PDF:
Date: 12/12/2011
Proceedings: (Petitioner's Exhibit A) filed.
Date: 11/30/2011
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 11/16/2011
Proceedings: Order (granting Department's motion for recognition of admissions).
PDF:
Date: 11/14/2011
Proceedings: Letter to DOAH from T. Mahon regarding deposition and witness list filed.
PDF:
Date: 11/07/2011
Proceedings: Order (on motion for recognition of admissions requested by Petitioner).
PDF:
Date: 10/25/2011
Proceedings: Motion for Recognition of Admissions Requested by Petitioner filed.
PDF:
Date: 09/27/2011
Proceedings: Order Granting Continuance and Re-scheduling Hearing by Video Teleconference (hearing set for November 30, 2011; 9:00 a.m.; Tampa and Tallahassee, FL).
PDF:
Date: 09/27/2011
Proceedings: Amended Motion for Continuance filed.
PDF:
Date: 09/26/2011
Proceedings: Motion for Continuance filed.
PDF:
Date: 09/26/2011
Proceedings: Subpoena Duces Tecum (Thomas Mahon) filed.
PDF:
Date: 09/23/2011
Proceedings: Witness List and (Proposed) Exhibit Disclosure filed.
PDF:
Date: 09/16/2011
Proceedings: Notice of Appearance (Krystle Macadangdang) filed.
PDF:
Date: 09/09/2011
Proceedings: Notice of Taking Deposition Duces Tecum (of T. Mahon) filed.
PDF:
Date: 09/08/2011
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 09/08/2011
Proceedings: Notice of Hearing (hearing set for October 5 and 6, 2011; 9:00 a.m.; Temple Terrace, FL).
PDF:
Date: 09/02/2011
Proceedings: Notice of Service of Petitioner's First Set of Interrogatories filed.
PDF:
Date: 09/02/2011
Proceedings: Florida Department of Environmental Protection's First Request for Production of Documents to Thomas B. Mahon filed.
PDF:
Date: 09/02/2011
Proceedings: Plaintiff's First Set of Interrogatories to Thomas B. Mahon filed.
PDF:
Date: 08/25/2011
Proceedings: Petitioner's First Set of Request for Admissions to Thomas B. Mahon filed.
PDF:
Date: 08/25/2011
Proceedings: Notice of Service of Petitioner's First Set of Request for Admissions filed.
PDF:
Date: 08/23/2011
Proceedings: Amended Case Status Report (For Proposed Hearing dates) filed.
PDF:
Date: 08/22/2011
Proceedings: Case Status Report filed.
PDF:
Date: 08/16/2011
Proceedings: Order (parties shall advise of status on or before August 22, 2011).
PDF:
Date: 08/09/2011
Proceedings: Order (granting motion to witdraw and consent).
PDF:
Date: 08/08/2011
Proceedings: Motion to Withdraw and Consent filed.
PDF:
Date: 07/27/2011
Proceedings: Case Status Report filed.
PDF:
Date: 06/09/2011
Proceedings: Order (granting unopposed motion for leave to amend the complaint).
PDF:
Date: 06/08/2011
Proceedings: Amended Administrative Complaint for Revocation of Wastewater and Drinking Water Operator Licenses filed.
PDF:
Date: 06/08/2011
Proceedings: Motion for Leave to Amend Complaint filed.
PDF:
Date: 05/19/2011
Proceedings: Order.
PDF:
Date: 05/16/2011
Proceedings: Joint Response to Initial Order filed.
PDF:
Date: 05/09/2011
Proceedings: Initial Order.
PDF:
Date: 05/06/2011
Proceedings: Amended Petition for Formal Administrative Hearing filed.
PDF:
Date: 05/06/2011
Proceedings: Administrative Complaint for Revocation of Wastewater and Drinking Water Operator Licenses filed.
PDF:
Date: 05/06/2011
Proceedings: Request for Assignment of Administrative Law Judge and Notice of Preservation of Record filed.

Case Information

Judge:
BRAM D. E. CANTER
Date Filed:
05/06/2011
Date Assignment:
05/09/2011
Last Docket Entry:
03/21/2012
Location:
Tampa, Florida
District:
Middle
Agency:
ADOPTED IN TOTO
 

Counsels

Related Florida Statute(s) (5):

Related Florida Rule(s) (4):