04-000654EF Department Of Environmental Protection vs. Dajoma, Inc., D/B/A Double D Mobile Ranch Association Status: Closed DOAH Final Order on Monday, June 7, 2004.

Summary: Petitioner established that Respondent failed to operate its waste water treatment plant was not operated in accordance with rules. No mitigating evidence was presented to justify reducing the penalty.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Petitioner, )

)

vs. ) Case No. 04 - 654EF

)

DAJOMA, INC., d/b/a DOUBLE D )

MOBILE RANCH, )

)

Respondent. )

______________________________)

FINAL ORDER

Pursuant to notice, this matter was heard before the

Division of Administrative Hearings by its assigned

Administrative Law Judge, Donald R. Alexander, on May 11,

2004, in Daytona Beach, Florida.

APPEARANCES

For Petitioner: Kelli M. Dowell, Esquire

Department of Env ironmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 3000

For Respondent: John D'Houdt, President

Dajoma, Inc.

Two Tropic Wind Drive

Port Orange, Florida 32128 - 6532

STATEMENT OF THE ISSUE

The issue is whether Respondent should have an

administrative penalty imposed, take corrective action, and

pay investigative costs for allegedly maintaining a sewage

treatment plant in violation of applicable rules and statutes.

PRELIMINARY STATEMENT

On January 15, 2003, Petitioner, Department of

Environmental Protection (Department), filed an eight - count

Notice of Violation, Orders fo r Corrective Action, and Civil

Penalty Assessment (Notice) under Section 403.121(2), Florida

Statutes (2003), 1 alleging that during the course of a routine

inspection performed by a Department representative in

February 2002, he observed seven violations o f statutes and

rules by Respondent, Dajoma, Inc., which owns and operates a

wastewater treatment plant at the Double D Mobile Ranch in

Port Orange, Florida. 2 For these violations, the Department

seeks to impose administrative penalties in the amount of

$5 ,750.00, require Respondent to take certain corrective

action, and recover reasonable costs and expenses ($750.00)

incurred by the Department during its investigation.

On February 18, 2004, Respondent, through its President,

John D'Hondt, filed an Amende d Petition for Administrative

Hearing (Amended Petition) for the purpose of contesting the

charges. 3 The matter was then referred to the Division of

Administrative Hearings on February 24, 2004, with a request

that an Administrative Law Judge be assigned to conduct a

hearing. By Notice of Hearing dated March 4, 2004, a final

hearing was scheduled on May 6, 2004, in Daytona Beach,

Florida. On March 19, 2004, the final hearing was

rescheduled to May 11, 2004, at the same location.

On May 5, 2004, Pet itioner filed a Motion for Partial

Summary Final Order (Motion) in which it alleged that on the

basis of responses given by Mr. D'Hondt at his deposition on

April 20, 2004, and admissions in his Amended Petition, both

of which are attached to the Motion, t here were no disputed

facts regarding Counts I - VI of the Notice. It further

contended that as to Counts I - VI, it was entitled as a matter

of law to a summary final order in its favor. Thereafter,

during a status conference held by telephone on May 7, 200 4,

Mr. D'Hondt acknowledged that the allegations in Counts I - VI

were true, and that he desired only to present mitigating

evidence regarding those charges. Based on that

acknowledgement, the undersigned orally ruled that the

Department would not be requir ed to prove up those charges at

the final hearing. However, Respondent was allowed to provide

mitigating testimony at the hearing, if it desired to do so,

as allowed by Section 403.121(10), Florida Statutes.

Therefore, only Counts VII and VIII are still in issue.

At the final hearing, the Department presented the

testimony of Edward Thomas Fitzgerald, a Department

Environmental Specialist Inspector and accepted as an expert;

and Clarence C. Anderson, Jr., a Department Environmental

Supervisor. Also, it o ffered Petitioner's Exhibits 1 - 9, which

were received in evidence. Respondent was represented at the

final hearing by its President, John D'Hondt, who testified on

its behalf.

There is no transcript of the hearing. Proposed findings

of fact and conclus ions of law were due on May 21, 2004. The

same were timely filed by the Department, and they have been

considered by the undersigned in the preparation of this Final

Order. On May 25, 2004, Respondent filed a document entitled

"Additional Information fro m Respondent," which contained

written argument concerning Counts I - IV, VI, and VII.

Attached to the filing were various documents not admitted

into evidence at the hearing. 4 To the extent the filing is

based on evidence of record, it has been considered .

FINDINGS OF FACT

Based upon all of the evidence, the following findings of

fact are determined:

a. Background

1. Since 1969, Respondent, an active Florida

corporation, has owned and operated a relatively small mobile

home park (with around 55 mobile homes) at Two Tropic Wind

Drive, Port Orange, Florida, known as Double D Mobile Ranch.

In conjunction with the mobile home park, Respondent owns and

operates a wastewater treatment plant (facility) for its

residents. The facility is under the regulatory jurisdiction

of the Department. Respondent's president is John D'Hondt,

who is the only certified operator for the facility.

2. On June 8, 2001, a Department representative

inspected Respondent's facility and noted that Respondent had

violated a number of statutes and rules. In accordance with

Department protocol, on September 26, 2001, the Department

sent Mr. D'Hondt by certified mail a "Noncompliance Letter"

(First Letter), which identified the various violations and

requested that Respondent respond within 14 days with a

schedule of corrective action. Mr. D'Hondt received the

First Letter but did not file a response.

3. On February 27, 2002, a Department representative

conducted a routine follow - up inspection of the facility.

Mr. D'Hondt w as present during the inspection. During the

course of the inspection, the representative noted the

following violations, some of which were repeat violations

from the earlier inspection:

a. Count I. The logbook on - site was not bound with

numbered pages , and it did not contain the signature of the

operators, as required by Florida Administrative Code Rule 62 -

602.650(4).

b. Count II. A copy of the operation and maintenance

manual was not on - site, as required by Florida Administrative

Code Rule 62 - 600. 410(4)(f).

c. Count III. A copy of the certified operator's

license was not on site, as required by Florida Administrative

Code Rule 62 - 620.350(8).

d. Count IV. Respondent failed to submit Discharge

Monitoring Reports from May 2001 through January 2002, as

required by Florida Administrative Code Rule 62 - 601.300(1)(b).

e. Count V. After effluent samples were collected and

tested, the tests revealed that the Total Suspended Solids

were 185 milligrams per Liter (mg/L), which exceed the permit

limit of 60 mg/L for a single sample, in violation of Florida

Administrative Code Rule 62 - 600.740(1)(b)1.d.

f. Count VI. Advisory signs were not posted at the

facility indicating the nature of the project area, as

required by Florida Administrative Code Ru les 62 - 610.418(1)

and 62 - 610.518(1).

g. Count VII. The percolation pond located adjacent to

the plant had less than one foot of freeboard, in violation of

Florida Administrative Code Rule 62 - 610.516.

4. In addition to the foregoing charges, by its C ount

VIII, the Department seeks to recover investigative costs

totaling not less than $750.00, which the Department claims

were incurred during the investigation and processing of the

Notice.

5. On April 2, 2002, the Department sent Mr. D'Hondt by

certifi ed mail a second Noncompliance Letter (Second Letter)

outlining the various violations and requesting that he

respond within 14 days after receipt of the Second Letter with

a schedule of corrective action. Although Mr. D'Hondt

received the Second Letter a round April 20, 2002, he failed to

file a response.

6. On July 1, 2002, the Department sent another letter

(Third Letter) by certified mail to Mr. D'Hondt requesting a

reply to the Second Letter previously sent in April. The

Third Letter advised Mr. D'Ho ndt that if he wished to avoid an

enforcement action, he should file a response within 7 days

from receipt of the letter. Mr. D'Hondt received the Third

Letter around July 20, 2002, but he failed to respond to

either the Second or Third Letters.

7. On Ja nuary 15, 2003, the Department issued its Notice

alleging that Respondent had violated various statutes and

rules (as described in Finding of Fact 3) in seven respects.

8. After an informal conference failed to resolve the

matter, Respondent eventually filed an Amended Petition on

February 18, 2004, contesting the validity of the charges.

b. The Charges

9. Because Respondent has acknowledged that the

allegations in Counts I - VI are true, no further proof as to

those matters is necessary. Accordingly, it is found that the

charges in those Counts have been established.

10. In Count VII, Respondent is charged with having "a

freeboard of less than one (1) foot" in its percolation pond,

as required by Florida Administrative Code Rule 62 - 610.516.

("Freebo ard" refers to the area between the top of the water

in the pond and the top of the surrounding berm.) Under that

rule, "[p]ercolation ponds . . . shall be provided with an

emergency discharge device to prevent water levels from rising

closer than one foo t from the top of the embankment or berm."

This means that a facility operator must maintain at least one

foot of separation between the water level in the treatment

pond and the top of the berm. The purpose of maintaining this

amount of separation is to prevent an overflow of treated

liquids in the event of an extremely heavy rainfall or a

catastrophic event. This is especially important here since

Respondent's percolation pond (which is used to dispose of

treated liquids from the facility) appears to b e no more than

30 feet or so from several mobile homes. See Petitioner's

Exhibit 3.

11. Testimony by the Department inspector established

that when the inspection occurred, there was less than one

foot of separation on the right side of the pond, as

co rroborated by, and reflected in, Petitioner's Exhibit 3, a

digital photograph of the pond taken during the inspection.

Respondent's contention that a separation of at least one foot

existed in the pond at the time of inspection has been

considered and rej ected in light of the credible contrary

evidence. Therefore, the charge in Count VII has been

established.

12. The evidence supports a finding that the Department

incurred at least $750.00 in investigative costs while

conducting the inspection, performin g tests, attempting to

informally resolve the case, and issuing the Notice. This

amount is based on the cost of the field and laboratory tests,

the hourly compensation of the inspector, and the hourly

compensation of the supervisor who reviewed the inspec tor's

work. It also includes the time expended by Department

personnel in attempting to informally resolve the matter and

later issuing the NOV. See Petitioner's Exhibit 9.

Therefore, the charges in Count VIII have been sustained.

13. Under the statuto ry scheme in place, the violations

in Counts I through VII call for an administrative penalty in

the amount of $5,750.00. The derivation of this amount is

found in Petitioner's Exhibit 7, which is a penalty

computation worksheet.

c. Mitigating Evidence

14. Although he was given an opportunity to offer

mitigating evidence at the final hearing, Mr. D'Hondt failed

to present any evidence that the violations were caused by

circumstances beyond his control or that they could not have

been prevented by due di ligence. While Mr. D'Hondt did

testify at final hearing that he has reduced the occupancy

rate in the mobile home park to 70 percent to satisfy

Department flow capacity requirements, this by itself is

insufficient to warrant a reduction in the penalty.

CO NCLUSIONS OF LAW

15. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties hereto

pursuant to Sections 120.569, 120.57(1), and 403.121, Florida

Statutes.

16. Section 403.121(2), Florida Statutes, prescribes th e

administrative enforcement process for the Department "to

establish liability and to recover damages for any injury to

the air, waters, or property . . . of the state caused by any

violation." Under that process, the Department is authorized

to "institu te an administrative proceeding to order the

prevention, abatement, or control of the conditions creating

the violation or other appropriate corrective action." §

403.121(2)(b), Fla. Stat. The process is initiated by "the

department's serving of a writte n notice of violation upon the

alleged violator by certified mail." § 403.121(2)(c), Fla.

Stat. If a hearing is requested by the alleged violator, "the

department has the burden of proving with the preponderance of

the evidence that the respondent is res ponsible for the

violation." § 403.121(2)(d), Fla. Stat. Thereafter, "the

administrative law judge shall issue a final order on all

matters, including the imposition of an administrative

penalty." Id.

17. By a preponderance of the evidence, the Depar tment

has established that all charges in the Notice have been

sustained. Therefore, Respondent is guilty of the charges, as

alleged in the Notice. Under the guidelines in Section

403.121(3) - (5), Florida Statutes, these violations call for an

administrat ive penalty in the amount of $5,750.00. That

amount has been accepted as being an appropriate penalty.

Respondent should also reimburse the Department for

investigative costs in the amount of $750.00, which were

incurred during the course of the investig ation and up to the

time the Notice was issued. See § 403.141(1), Fla. Stat.

18. Finally, Section 403.121(10), Florida Statutes,

provides that the administrative penalties may be mitigated

under certain circumstances. More specifically, the statute

prov ides that

[t]he administrative law judge may receive

evidence in mitigation. The penalties

identified in subsection (3), subsection

(4), and subsection (5) may be reduced up

to 50 percent by the administrative law

judge for mitigating circumstances,

i ncluding good faith efforts to comply

prior to or after discovery of the

violations by the department. Upon an

affirmative finding that the violation was

caused by circumstances beyond the

reasonable control of the respondent and

could not have been preve nted by

respondent's due diligence, the

administrative law judge may further reduce

the penalty.

19. There being no evidence to show (a) that Respondent

made "good faith efforts to comply prior to or after discovery

of the violations" (here the Responde nt did not respond to the

First, Second, or Third Letters); (b) that the violations were

caused by circumstances beyond Respondent's control; or (c)

that the violations could have been prevented by Respondent's

due diligence, mitigation of the fine is not warranted.

Based on the foregoing Findings of Fact and Conclusions

of Law, it is

ORDERED that the Notice of Violation, Orders for

Corrective Action, and Civil Penalty Assessment issued against

Respondent are sustained, and that Respondent be fined

$5,750 .00 for said violations and reimburse the Department in

the amount of $750.00 for investigative costs incurred during

the processing of this matter. Said penalty and costs shall

be paid to the Department within thirty days from the date of

this Order by c ashier's check or money order payable to the

"State of Florida Department of Environmental Protection" and

shall include thereon the OGC Case Number (02 - 1715) and the

notation "Ecosystem Management and Restoration Trust Fund."

The payment shall be sent to the Department of Environmental

Protection, Program Manager, Wastewater Compliance/Enforcement

Section, Central District Office, 3319 Maguire Boulevard,

Suite 232, Orlando, Florida 32803 - 3767. It is further

ORDERED that Respondent shall comply with all Department

rules regarding domestic waste treatment and disposal.

Respondent shall also correct and redress all violations in

the time periods below and shall comply with all applicable

rules in Florida Administrative Code Chapters 62 - 600, 62 - 601,

62 - 610, and 62 - 620. It is further

ORDERED that Respondent shall immediately obtain a

hardbound logbook containing consecutive number pages.

Respondent shall also record the identification of the plant,

the signature and license number of each operator, the time in

and time out, the signatures of the persons making the

entries, the specific operation and maintenance activities,

the tests performed, the samples collected, and any major

repairs made. The log shall be maintained on - site in a

location accessible to 24 - hour inspection, protected from

weather damage, and current to the last operation and

maintenance performed. It is further

ORDERED that within thirty days of the effective date of

this Order, Respondent shall maintain the wastewater plant in

order that the effluent limits shall not be exceeded.

DONE AND ORDERED this 7th day of June, 2004, in

Tallahassee, Leon County, Florida.

S

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSo to 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 7th day of June, 2004.

ENDNOTES

1/ Unless otherwise noted, all future references are to

Florida Statutes (2003).

2/ Although Respondent was originally identified in the style

of this case as the Double D Mobile Ranch Association, the

proper name appears to be the Double D Mobile Ranch. The style

of the case has been changed to reflect the correct name.

3/ According to papers filed in this cause, after the Notice

was issued on January 15, 2003, Respondent requested an

informal conference to address the findings in the Notice.

After a n informal conference was held, on September 23, 2003,

the Department announced that it was closing the informal

conference. Respondent then filed a Petition for

Administrative Hearing challenging the closing of the informal

hearing. On January 24, 2004, the Department issued an Order

Dismissing Petition with Leave to Amend. Respondent's Amended

Petition was thereafter filed on February 18, 2004.

4/ Even if the attached documents were received in evidence

and considered, most of them relate to events w hich occurred

before the inspection in question, or to conditions which

existed during prior inspections dating back to 1996, and

therefore would have little, if any, probative value on the

issue of mitigation. As to Respondent's comments concerning

vario us charges, they either are contrary to the more

persuasive evidence ( e.g. , contentions that the Department

inspector testifying at hearing was not the individual who

conducted the inspection in question, and that the percolation

pond had more than one foo t of freeboard), or they constitute

new evidence which should have been presented at hearing before

the record was closed.

COPIES FURNISHED:

Kelli M. Dowell, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tall ahassee, Florida 32399 - 3000

John D'Hondt

Dajoma, Inc.

Two Tropic Wind Drive

Port Orange, Florida 32128 - 6532

Kathy C. Carter, Agency Clerk

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 300 0

Teri L. Donaldson, General Counsel

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 3000

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entit led to judicial review pursuant to Section 120.68, Florida

Statutes. Review proceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing the original Notice of Appeal with the agency clerk of

the Division of Administrative Hearings and a copy, accompanied

by filing fees prescribed by law, with the District Court of

Appeal, First District, or with the District Court of Appeal in

the Appellate District where the party resides. The notice of

appeal must be f iled within 30 days of rendition of the order

to be reviewed.