09-001735EF Department Of Environmental Protection vs. Synergy International, Inc. Status: Closed DOAH Final Order on Friday, September 11, 2009.

Summary: Petitioner proved the Notice of Violation charges of improper transport and handling of florescent lamps.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Petitioner, )

)

vs. ) Case No. 09-1735EF

)

SYNERGY INTERNATIONAL, INC., )

)

Respondent. )

)

FINAL ORDER

On June 15, 2009, a final administrative hearing was held

before J. Lawrence Johnston, Administrative Law Judge, Division

of Administrative Hearings, by video teleconferencing between

Tallahassee and Tampa.

APPEARANCES

For Petitioner: Jeffery Curry Close, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard, Mail Stop 35

Tallahassee, Florida 32399-3000

For Respondent: Matthew Gregg

Synergy International, Inc.

6060 28th Street, East, Suite 2

Bradenton, Florida 34203

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent, Synergy

International, Inc. (Respondent or Synergy), should be fined and

required to take correction actions based on charges in the

Notice of Violation, Orders for Corrective Action, and

Administrative Penalties Assessment, DEP OGC File 09-0140 (NOV).

PRELIMINARY STATEMENT

The NOV issued by the Department of Environmental Protection

(DEP) charges Respondent with: Count I, failure to label

accumulated universal waste lamps as required by Florida

Administrative Code Rule 62-737.400(5)(b)1. 1 ; Count II, being a

universal waste transporter and storing universal waste (spent

fluorescent lamps) for more than ten days, in violation of 40

Code of Federal Regulation (CFR) Section 273.53, which is

incorporated by reference in Rule 62-730.185(1); Count III, being

a small quantity handler of universal waste and not storing spent

lamps in containers or packages that are structurally sound,

adequate to prevent breakage, and compatible with the contents of

the lamps, in violation of 40 CFR Section 273.13(d)(1), which is

incorporated by reference in Rule 62-730.185(1); Count IV, being

a small quantity handler of universal waste and not immediately

containing broken lamp in a structurally sound container capable

of preventing releases of mercury to the environment, in

violation of 40 CFR Section 273.13(d)(2), which is incorporated

by reference in Rule 62-730.185(1); Count V, being a universal

waste transporter and not giving notice of those activities

before beginning operation and annually thereafter, in violation

of Rule 62-737.400(3)(a)2.; Count VI, being a small quantity

handler of universal waste, storing spent lamps for more than one

year, and not being able to demonstrate the length of time that

spent lamps have been stored, in violation of 40 CFR Section

273.13(c), which is incorporated by reference in Rule 62-

730.185(1); and Count VII, being liable for reasonable costs and

expenses incurred by DEP in investigating the charges.

Respondent denied the charges and requested a hearing, which

was scheduled for June 15, 2009, by video teleconference between

Tallahassee and Tampa.

The parties filed a Pre-Hearing Stipulation on June 8, 2009.

It included the stipulations:

b. On July 16, 2008, the Respondent was

storing at least some spent florescent bulbs

at the Facility ("Waste Bulbs").

* * *

d. Spent florescent bulbs are universal

waste lamps as defined at Rule 62-

737.400(5)(b)(1), F.A.C., and universal waste

as defined at 40 CFR 273.9.

Based on these stipulations, DEP moved at the outset of the final

hearing to exclude evidence Respondent was planning to introduce

to dispute whether the spent florescent bulbs found at

Respondent's business on July 16 and August 6, 2008, were

"universal waste lamps." Ruling was reserved, and the evidence

was presented, subject to the ruling on DEP's motion. At this

time, DEP's motion is denied. See Conclusions 21-22, infra .

At the hearing, DEP called four witnesses: Tara Swanson and

Shannon Camp, who are inspectors working in DEP's Hazardous Waste

program; James Jones, a former lighting installer for Respondent;

and Jim Dregne, DEP's Hazardous Waste Environmental Program

Manager for the Southwest District. DEP had its Exhibits 1-5

admitted in evidence. Matthew Gregg, Synergy's owner, testified

for Respondent and had Synergy Exhibits 1, 2, 6, 7, 9, 10, 11,

13, 15, and 16 admitted in evidence. Ruling was reserved on

DEP's objections to Synergy Exhibits 3, 4, 5, 8, 12, 14, and 17

on grounds of authenticity and hearsay. Those objections are

overruled (the documents were shown to be authentic, and the

hearsay is admissible under Section 120.57(1)(c), Florida

Statutes (2008), 2 to supplement or explain Mr. Gregg's

testimony).

At the end of Respondent's presentation, Respondent asked to

present the testimony of an additional witness by post-hearing

deposition transcript. This request was granted, and proposed

final orders were to be filed within ten days from the filing of

the post-hearing deposition transcript, neither party having

requested a Transcript of the final hearing. It was anticipated

that the post-hearing deposition would be taken by the end of

June, but it was not scheduled. On July 17, 2009, DEP moved to

close the evidentiary record and set deadlines for proposed final

orders. Synergy did not file a response in the time allotted by

Rule 28-106.204(1), and an Order Closing Evidentiary Record and

Establishing Deadline for Proposed Final Orders (August 10, 2009)

was entered. DEP's timely Proposed Final Order and Respondent's

submittal on August 13, 2009, have been considered in the

preparation of this Final Order.

FINDINGS OF FACT

1. Since at least April 30, 2007, Respondent has operated a

lighting supply company at 6060 29th Street East, Bradenton,

Florida. (Despite Respondent's stipulation to this fact,

Respondent presented evidence that the correct mailing address of

its business actually is on 28th Street East.)

2. Spent florescent bulbs are universal waste lamps as

defined at Rule 62-737.400(5)(b)1. and universal waste as defined

at 40 CFR Section 273.9.

3. Respondent has never registered with DEP as a

transporter of universal waste bulbs or notified DEP that it was

transporting universal waste.

4. Respondent has never accumulated 5,000 kilograms or more

of universal waste at one time, nor has Respondent ever treated,

disposed of, or recycled universal waste at its facility.

5. DEP inspected Respondent's facility on July 16 and

August 6, 2008.

6. On the first inspection, DEP informed Respondent's

owner, Matthew Gregg, that the purpose of the inspection was to

see if Respondent was following the laws governing spent

fluorescent lamps. The inspectors say Mr. Gregg told them that,

when Synergy sells fluorescent lamps, its installers bring the

spent lamps back to Respondent's premises and that sometimes

customers bring spent lamps to Respondent's premises. The

inspectors say they asked Mr. Gregg where Respondent stored the

spent lamps, and he showed them Respondent's storeroom. They

also say they asked Mr. Gregg how long the spent bulbs had been

in the storeroom, and he told them "a couple of months." They

say he told them that Respondent was in the process of obtaining

equipment to recycle the mercury in the spent bulbs.

7. In the storeroom were shelves with cardboard boxes of

fluorescent and other lamps and bulbs and other product. The

inspectors say Mr. Gregg told him that the spent fluorescent

lamps were kept in the boxes on the shelves, some of which were

labeled "hazardous waste." From their vantage, the inspectors

did not see any labels on any of the boxes saying "Spent Mercury-

Containing Lamps for Recycling," "Universal Waste Mercury Lamps,"

"Waste Mercury Lamps," or "Used Mercury Lamps." They did not

turn the boxes around on the shelves and did not look at all

surfaces of the boxes. There was no evidence that they told

Mr. Gregg they considered the boxes not to be properly labeled.

8. The inspectors also observed fluorescent lamps,

including four broken lamps, in a flimsy plastic bag that was

torn. They told Mr. Gregg that the broken lamps had to be

cleaned up and put in a proper container, not just in a flimsy

plastic bag, and properly labeled. In response, Mr. Gregg had an

employee who was present working in the storeroom clean up the

broken lamps and put them in a proper container. It is not clear

from the evidence how the container was labeled.

9. Mr. Gregg contends that the evidence did not prove how

long the lamps were in the plastic bag prior to the inspection,

or when the four lamps were broken, and that it is possible the

storeroom worker was in the process of filling an order while the

inspection was ongoing. But it is telling that neither Mr. Gregg

nor the storeroom worker mentioned this to the inspectors at the

time, as Mr. Gregg himself concedes. For this reason, it is

found that the storeroom worker was not in the process of filling

an order while the inspection was ongoing, but rather that the

plastic bag with the four broken lamps had been there for an

extended but unknown period of time prior to the inspection.

10. The inspectors did not see any labels saying "Spent

Mercury-Containing Lamps for Recycling," "Universal Waste Mercury

Lamps," "Waste Mercury Lamps," or "Used Mercury Lamps" on the

premises that day. They did, however, see the following label in

the office area:

FLUORESCENT LAMP

RECYCLE

PACK

CALL FOR PICK-UP 877-220-5483

WARNING: THIS BOX CONTAINS MERCURY Hg

HAZARDOUS MATERIALS

11. On the second inspection, DEP just drove through the

parking lot and around to the back of Respondent's premises.

They saw the contents of the storeroom on the pavement behind the

building. An employee of Respondent (the same employee who

cleaned up the broken lamp on the first inspection), told them

that the storeroom contents had been removed to allow Synergy to

clean out the storeroom that day. The inspectors observed

fluorescent lamps standing in and sticking out of the top of

boxes on the pavement. Some of them appeared to be spent lamps;

some did not appear to be spent lamps. Some of the lamps, both

apparently spent and apparently unspent, were "green-tip" lamps,

a type of Phillips-brand fluorescent lamp made with less than 0.2

mg per liter (mg/L) of mercury, as measured by the Toxicity

Characteristic Leaching Procedure (TCLP), which is the "universal

waste" threshold. There also are other brands of fluorescent

lamps that have a TCLP of less than 0.2 mg/L of mercury. The

inspectors could not determine whether particular florescent

lamps observed during their "drive-by" inspection had been made

with a TCLP of more than or less than 0.2 mg/L of mercury. They

did not inspect further or ask any questions about the lamps they

saw. It is possible that DEP's inspectors failed to obtain and

preserve independent evidence of the TCLP values of the

particular florescent lamps being stored at Respondent's facility

because they were lulled by Mr. Gregg's initial statements.

12. After Synergy received a warning letter from DEP,

Mr. Gregg has maintained that DEP's inspectors misunderstood him

during the first inspection. He contends that he did not admit

to transporting spent fluorescent lamps and storing them. He

contends that, when he told DEP's inspectors that Respondent

transports and stores lamps, he meant non-fluorescent lamps and

new fluorescent lamps that are stored on the premises and

transported to customers. DEP contends that Respondent's more

recent position is a fabrication.

13. In response to Mr. Gregg's testimony, DEP called

James Jones, who was an installer for Synergy from May to

October 2007. 3 Mr. Jones testified that Mr. Gregg instructed him

and other Synergy installers to transport spent bulbs to

Respondent's premises. He testified that he followed those

instructions, including on a job in 2007 when he replaced

approximately 800-1,000 florescent lamps at a Sav-a-Lot store in

Naples. According to Mr. Jones, some of the lamps replaced and

brought back to Synergy were so old that the stamped brand logo

was worn off.

14. The former installer's testimony conflicted not only

with Mr. Gregg's but also with the affidavits of another

installer and of an employee of Synergy. The DEP witness

attacked the credibility of Mr. Gregg and the affiants, accusing

them of bias. However, it is clear that the witness

acknowledged, agreed to, and signed Synergy's written policy

prohibiting installers from accepting spent lamps from customers.

If Mr. Jones was telling the truth, Mr. Gregg and Synergy

condoned the violation of the written policy.

15. At the hearing, DEP's expert, Mr. Dregne, testified

that at least some of the florescent lamps in Synergy's storeroom

on July 16 and outside the storeroom on August 6, 2008, probably

met the TCLP threshold for regulation because, based on

Mr. Gregg's initial statements to the DEP inspectors and the

testimony of former installer, they were a random mix of lamps

being taken out of service in July 2008. The length of time a

florescent lamp lasts depends on use and other factors. The

lamps can last for ten years or more. For about ten years,

florescent lamps falling below the TCLP threshold for regulation

have been manufactured in the United States. Not all lamps now

manufactured in the United States fall below the TCLP threshold

for regulation. (Lamps manufactured outside the United States

generally do not fall below the TCLP threshold for regulation,

but they generally are not sold in the United States.)

16. Based on a preponderance of all the evidence, it is

found that Respondent's position since receiving a warning letter

from DEP has been a fabrication in that Mr. Gregg actually and

truthfully made the statements in Findings 6-7, supra , and that

at least some of florescent bulbs in Synergy's storeroom on

July 16 and outside the storeroom on August 6, 2008, probably had

been made with a TCLP of more than 0.2 mg/L of mercury.

17. Mr. Gregg testified that fluorescent lamps on the

premises in plastic bags and any other containers unsuitable for

spent fluorescent lamps were not spent lamps but were defective

new lamps that were kept in Respondent's storeroom for purposes

of processing warranty claims. Mr. Gregg's testimony was

consistent with Synergy's written policy (also acknowledged,

agreed to, and signed by DEP's witness) that "[d]efective product

is to be kept on hand until credit is issued or manufacturer

requests return of product." However, it is not relevant whether

the florescent lamps were spent or defective new lamps. See

Conclusions 20 and 22, infra .

CONCLUSIONS OF LAW

18. This is an administrative proceeding under Section

403.121(2), Florida Statutes. Under paragraph (d) of that

subsection, the Department has the burden of proving by a

preponderance of the evidence that Respondent is responsible for

the alleged violations; and, since penalties are assessed in the

NOV, "the administrative law judge shall issue a final order on

all matters, including the imposition of an administrative

penalty."

19. Count I charges a violation of Rule 62-737.400(5)(b)1.,

which provides:

Handlers and transporters shall manage

universal waste lamps and devices in a way

that prevents breakage, releases of their

components to the environment, and their

exposure to moisture. In the event of a

release, the handler or transporter must

determine whether the cleanup residues (e.g.,

cleanup equipment and contaminated soils)

resulting from the release are hazardous

waste, and if so, must manage them in

accordance with Chapter 62-730, F.A.C. The

following management standards shall be

observed in addition to the applicable

requirements adopted under Rule 62-730.185,

F.A.C., and the U.S. Department of

Transportation 49 CFR Parts 171 through 180,

hazardous material regulations.

* * *

(b) Universal waste lamps, devices or the

containers in which they are stored shall be

labeled or marked clearly as follows:

1. For universal waste lamps, the words

"Spent Mercury-Containing Lamps for

Recycling", "Universal Waste Mercury Lamps",

"Waste Mercury Lamps" or "Used Mercury

Lamps"; except for those crushed per

paragraph (6)(b) below which shall be labeled

"Crushed Mercury Lamps"; . . . .

20. Rule 62-737.200 includes the following definitions:

(7) "Generator" means any person whose act

or process produces spent mercury-containing

lamps or devices.

* * *

(28) "Universal waste lamp or device

destination facility" or "lamp or device

destination facility" means a mercury

recovery or reclamation facility permitted by

the Department or an out-of-state recycling

facility permitted by another state for the

processing of universal waste lamps or

devices and the ultimate recovery and

reclamation of the mercury they contain, and

one that meets the applicability requirements

for a destination facility under 40 CFR

273.60 as adopted by reference under Rule 62-

730.185, F.A.C.

(29) "Universal waste device" or "device"

means any mercury-containing device,

excluding one generated by a household

exempted under 40 CFR 261.4(b)(1), that is

also characteristically hazardous for mercury

under 40 CFR 261.24 [the 0.2 mg/L TCLP

threshold] and is being managed in accordance

with this chapter.

(30) "Universal waste lamp" or "lamp" means

any mercury-containing lamp that is also

characteristically hazardous for mercury

under 40 CFR 261.24 [the 0.2 mg/L TCLP

threshold] and is being managed in accordance

with this chapter.

(31) "Universal waste lamp or device

handler" or "handler" means a generator, or

another person including a transfer facility

storing lamps or devices more than 10 days,

that generates or receives universal waste

lamps or devices from other handlers,

accumulates and manages these lamps and

devices in accordance with this chapter, and

ships them to a universal waste lamp or

device destination facility.

(a) A large quantity handler of

universal waste lamps or devices

is: a generator or reverse

distribution handler accumulating

5,000 kilograms or more of

universal waste lamps or devices at

any one time; or another handler,

excluding a generator or reverse

distribution handler, that

accumulates 2,000 kilograms or more

of lamps or 100 kilograms or more

of devices at any one time.

(b) A small quantity handler of

universal waste lamps or devices is

a generator or reverse distribution

handler accumulating less than

5,000 kilograms of universal waste

lamps or devices at any one time;

or another handler that accumulates

less than 2,000 kilograms of lamps

or 100 kilograms of devices at any

one time.

(32) "Universal waste lamp or device

transfer facility" or "transfer facility"

means an in-state transportation-related

facility including loading docks, parking

areas, storage areas, and other similar

areas, including those designated at lamp

generator facilities during relamping

activities, where shipments of universal

waste lamps or devices are held during the

normal course of transportation for 10 days

or lessansfer facilities do not include

handler facility areas where handlers are

accumulating lamps or devices in accordance

with 40 CFR 273.15 or 273.35.

(33) "Universal waste lamp or device

transporter" or "transporter" means any

person, including a generator or other

handler, engaged in the off-site

transportation of universal waste lamps or

devices to a handler or lamp or device

destination facility by air, rail, highway or

water.

21. Respondent stipulated that spent florescent bulbs are

universal waste lamps as defined at Rule 62-737.400(5)(b)1. and

universal waste as defined at 40 CFR Section 273.9. Respondent's

stipulation must be given effect. See Broche v. Cohn , 987 So. 2d

124, 127 (Fla. 4th DCA 2008) ("Pretrial stipulations prescribing

the issues on which a case is to be tried are binding on the

parties and the court, and should be strictly enforced. Further,

it is the policy of the law to encourage and uphold stipulations

in order to minimize litigation and expedite the resolution of

disputes.") (citing Lotspeich Co. v. Neoguard Corp. , 416 So. 2d

1163, 1165 (Fla. 3d DCA 1982); Gunn Plumbing, Inc. v. Dania Bank ,

252 So. 2d 1 (Fla. 1971); Spitzer v. Bartlett Bros. Roofing , 437

So. 2d 758, 760 (Fla. 1st DCA 1983)) (internal quotation marks

omitted). In this case it was unclear whether Respondent was

stipulating that all spent florescent bulbs are universal waste,

or just that spent florescent bulbs can be universal waste if

they are the kind that meet the TCLP threshold.

22. While Synergy is not being held to a stipulation that

all spent florescent bulbs are universal waste, the Department

proved that Synergy was acting as a "handler" and "transporter"

of "universal waste lamps"; was storing "universal waste lamps"

that were not labeled as required; and was not managing those

lamps in a way that prevented breakage, releases of their

components to the environment, and their exposure to moisture.

These facts establish a violation of Rule 62-737.400(5)(b)1.

23. Count II charges a violation of 40 CFR Section 273.53,

which is adopted by reference in Rule 62-730.185(1) and provides:

(a) A universal waste transporter may only

store the universal waste at a universal

waste transfer facility for ten days or less.

(b) If a universal waste transporter stores

universal waste for more than ten days, the

transporter becomes a universal waste handler

and must comply with the applicable

requirements of subparts B or C of this part

while storing the universal waste.

The Department proved a violation of this CFR. Synergy was

storing universal waste for more than ten days and was not in

compliance with the regulations governing universal waste

handlers.

24. Counts III and IV charge violations of 40 CFR Section

in Rule 62-730.185(1) and provide:

(d) Lamps. A small quantity handler of

universal waste must manage lamps in a way

that prevents releases of any universal waste

or component of a universal waste to the

environment, as follows:

(1) A small quantity handler of

universal waste must contain any

lamp in containers or packages that

are structurally sound, adequate to

prevent breakage, and compatible

with the contents of the lamps.

Such containers and packages must

remain closed and must lack

evidence of leakage, spillage or

damage that could cause leakage

under reasonably foreseeable

conditions.

(2) A small quantity handler of

universal waste must immediately

clean up and place in a container

any lamp that is broken and must

place in a container any lamp that

shows evidence of breakage,

leakage, or damage that could cause

the release of mercury or other

hazardous constituents to the

environment. Containers must be

closed, structurally sound,

compatible with the contents of the

lamps and must lack evidence of

leakage, spillage or damage that

could cause leakage or releases of

mercury or other hazardous

constituents to the environment

under reasonably foreseeable

conditions.

The Department proved the alleged violations of this CFR.

25. Count V charges a violation of Rule 62-737.400(3)(a)2.,

which provides:

Registration:

* * *

2. Before beginning operations and annually

thereafter by March 1, a handler or a

transporter of spent universal waste lamps or

devices, excluding a person specified in

paragraph 1. above, and the sponsor of a

reverse distribution program shall register

by notifying the Department of its intent to

be a handler or transporter or to operate a

reverse distribution program, and certifying

that it has employee training procedures in

place for the proper handling, emergency

response, and containment and cleanup of its

spent universal waste lamps or devices.

. . . .

The Department proved a violation of this Rule.

26. Count VI charges a violation of 40 CFR Section

273.15(c), which is adopted by reference in Rule 62-730.185(1)

and provides:

(c) A small quantity handler of universal

waste who accumulates universal waste must be

able to demonstrate the length of time that

the universal waste has been accumulated from

the date it becomes a waste or is received.

The handler may make this demonstration by:

(1) Placing the universal waste in

a container and marking or labeling

the container with the earliest

date that any universal waste in

the container became a waste or was

received;

(2) Marking or labeling each

individual item of universal waste

(e.g., each battery or thermostat)

with the date it became a waste or

was received;

(3) Maintaining an inventory

system on-site that identifies the

date each universal waste became a

waste or was received;

(4) Maintaining an inventory

system on-site that identifies the

earliest date that any universal

waste in a group of universal waste

items or a group of containers of

universal waste became a waste or

was received;

(5) Placing the universal waste in

a specific accumulation area and

identifying the earliest date that

any universal waste in the area

became a waste or was received; or

(6) Any other method which clearly

demonstrates the length of time

that the universal waste has been

accumulated from the date it

becomes a waste or is received.

The Department proved a violation of this CFR.

27. Count VII sought recovery of reasonable costs and

expenses incurred by DEP in investigating the charges under

Section 403.141(1), Florida Statutes, which provides for the

recovery of the "reasonable costs and expenses of the state in

tracing the source of the discharge, in controlling and abating

the source and the pollutants, and in restoring the air, waters,

and property, including animal, plant, and aquatic life, of the

state to their former condition . . . ." But in this case, there

was no proof of pollution that had to be traced, controlled, or

abated, or any need for restoration. There also was no proof of

any reasonable costs or expenses. No recovery was sought in

DEP's Proposed Final Order. For these reasons, no costs or

expenses are recoverable under Count VII.

28. Section 403.121(5), Florida Statutes, establishes a

penalty of $500 for the violations alleged in Counts I, II, and

III, and VI. Section 403.121(4)(e), Florida Statutes,

establishes a penalty of $1,000 for the violations alleged in

Counts IV and V.

29. Section 403.121(10), Florida Statutes, allows reduction

of a penalty up to 50 percent upon consideration of mitigating

circumstances, such as "good faith efforts to comply prior to or

after discovery of the violations by the department." It also

provides: "Upon an affirmative finding that the violation was

caused by circumstances beyond the reasonable control of the

respondent and could not have been prevented by respondent's due

diligence, the administrative law judge may further reduce the

penalty." There are no such mitigating circumstances present in

this case.

30. Under Section 403.121(11), Florida Statutes, penalties

collected pursuant to Section 403.121 "shall be deposited in the

Ecosystem Management and Restoration Trust Fund or other trust

fund designated by statute and shall be used to fund the

restoration of ecosystems, or polluted areas of the state, as

defined by the department, to their condition before pollution

occurred." No other trust fund appears to have been designated

by statute. In addition, Section 403.1651(2)(a), Florida

Statutes, provides that the Ecosystem Management and Restoration

Trust Fund "shall be used for the deposit of all moneys recovered

by the state" under Chapter 403, Florida Statutes.

DISPOSITION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED:

1. The charges in Counts I through VI of the NOV are

sustained;

2. Respondent shall pay $4,000 in penalties into the

Ecosystem Management and Restoration Trust Fund. Payment shall

be made by cashier’s check or money order payable to the "State

of Florida Department of Environmental Protection" and shall

include thereon the notations "OGC Case No. 09-0140" and

"Ecosystem Management and Restoration Trust Fund"; and

3. The payment shall be sent to the State of Florida

Department of Environmental Protection, Attn: Sandra Wilson,

13051 North Telecom Parkway, Temple Terrace, Florida 33637-0926.

DONE AND ORDERED this 11th day of September, 2009, in

Tallahassee, Leon County, Florida.

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 11th day of September, 2009.

ENDNOTES

1/ Unless otherwise indicated, all rule references are to the

version of the Florida Administrative Code in effect at the time

of the filing of the NOV.

2/ Unless otherwise indicated, all statutory citations are to

the 2008 Florida Statutes.

3/ Respondent tried to prove that the installer was an

independent contractor, not an employee, in part to impeach the

witness's testimony that he was an employee and in part to avoid

responsibility for the installer's actions. If believed, the

installer's testimony would prove both that he was an employee

and that Respondent was responsible for his actions.

COPIES FURNISHED:

Jeffery Curry Close, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard, Mail Stop 35

Tallahassee, Florida 32399-3000

Matthew Gregg

Synergy International, Inc.

6060 28th Street, East, Suite 2

Bradenton, Florida 34203

Michael W. Sole, Secretary

Department of Environmental Protection

3900 Commonwealth Boulevard, Mail Stop 35

Tallahassee, Florida 32399-3000

Tom Beason, General Counsel

Department of Environmental Protection

3900 Commonwealth Boulevard, Mail Stop 35

Tallahassee, Florida 32399-3000

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled

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

filed within 30 days of rendition of the order to be reviewed.