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

- Date
- Proceedings
-
PDF:
- Date: 12/30/2011
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
- 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: 09/08/2011
- 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: 08/16/2011
- Proceedings: Order (parties shall advise of status on or before August 22, 2011).
-
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.
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
-
Krystle V. Hoenstine, Esquire
Address of Record -
Thomas B. Mahon
Address of Record -
Matthew Smith-Kennedy, Esquire
Address of Record