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

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.

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

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

Pasco County.

In response to the Administrative Complaint the Respondent filed a challenge

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

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

requesting the Respondent to admit each allegation of the Amended Administrative

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

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

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

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

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

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

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

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

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

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

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

RO on December 30, 2011.

RECOMMENDED ORDER

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

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

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

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

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

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

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

The Violations

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

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

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

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

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

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

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

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

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

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

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

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

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

555.350(12)(b), F.A.C., requires PWS operators to monitor the operations of the PWS

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

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

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

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

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

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

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

sometimes operating out of compliance with Department rules and standard operating

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

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

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

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

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

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

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

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

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

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

Disciplinary Guidelines

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

62-602.870(1), F.A.C., provides that the Department "shall, depending on aggravating

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

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

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

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

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

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

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

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

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

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

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

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

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

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

25).

Mitigating Circumstances

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

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

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

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

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

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

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

11,26).

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

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

the circumstances suggested the alternative disciplinary action of imposing an

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

employment with a facilities management company will make his performance

acceptable to the Department. (RO 27).

STANDARD OF REVIEW

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

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

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

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

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

1089 (Fla. 2d DCA 2009); Wills v. Fla. Elections Comm'n, 955 SO.2d 61 (Fla. 1st DCA

2007). Section 120.57(1 )(1), Florida Statutes, further prescribes that an agency may

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

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

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

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

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

(Fla. 1st DCA 1997).

In Bradley the Florida Supreme Court found that

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

determine the appropriate punishment for the misconduct of

the professionals it regulates. As long as the statute under

which a professional agency operates provides guidelines

for imposing penalties, the agency complies with [section

120.57(1 )(1)], and the increased penalty falls within the

guidelines established by its statute, a professional board or

agency has the discretion to increase the recommended

penalty.

596 SO.2d at 663.

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

disregard an ALJ's recommendation regarding mitigating circumstances, without

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

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

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

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

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

120.57(1)(1)] includes the official transcript of the evidentiary hearing ... ").

CONCLUSION

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

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

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

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

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

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

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

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

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

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

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

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

recommendation, or objecting to the DOAH hearing procedures.

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

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

It is therefore ORDERED that:

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

and incorporated herein by reference.

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

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

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

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

services to owners of WWTFs and PWs; and

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

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

action was taken; and

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

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

made payable to the Department of Environmental Protection - Water Quality

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

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

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

Tallahassee, Florida 32399-2400.

JUDICIAL REVIEW

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

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

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

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

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

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

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

with the clerk of the Department.

'. :/V'

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

STATE OF FLORIDA DEPARTMENT

OF ENVIRONMENTAL PROTECTION

Stoneman Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

FILED ON THIS DATE PURSUANT TO § 120.52,

FLORIDA STATUTES, WITH THE DESIGNATED

DEPARTMENT CLERK, RECEIPT OF WHICH IS

HEREBY ACKNOWLEDGED. ,...

3-;1./ .. /2,;

DATE

CERTIFICATE OF SERVICE

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

States Postal Service to:

Thomas B. Mahon

8151 Gall Blvd.

Zephyrhills, FL 33541

by electronic filing to:

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

and by hand delivery to:

Matthew Smith-Kennedy, Esquire

Department of Environmental Protection

3900 Commonwealth Blvd., M.S. 35

Tallahassee, FL 32399-3000

day of March, 2012.

STATE OF FLORIDA DEPARTMENT

OF ENVIRONMENTAL PROTECTION

\\.. - Administrative Law Counsel

3900 Commonwealth Blvd., M.S. 35

Tallahassee, FL 32399-3000

Telephone [phone]