18-000221 Teco Peoples Gas Company vs. Medalist Building Group, Llc Status: Closed DOAH Final Order on Tuesday, May 15, 2018.

Summary: The Respondent violated section 556.107(1), and the violation was the proximate cause of the incident. A fine of $15,000.00 is imposed payable to Sunshine 811.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TECO PEOPLES GAS COMPANY,

Petitioner,

vs. Case No. 18 - 0221

MEDALIST BUILDING GROUP, LLC,

Respondent.

_______________________________/

FINAL ORDER

Pursuant to notice, Francine M. Ffolkes, Administrative Law

Judge of the Division of Administrative Hearings (DOAH),

conducted a final hearing in this case on March 14, 2018, in Port

S t . Lucie, Florida.

APPEARANCES

For Petitioner: Adam D. Gr i ffin, Esquire

Aaron J. Broc k, Esquire

Lau, Lane, Pieper, Conley & McCreadie, P.A.

100 South Ashley Drive

Tampa, Florida 33602

For Respondent: Louis E. Lozeau, Jr., Esquire

Wright Ponsoldt & Lozeau

Trial Attorneys LLP

Suite 100

1002 Southeast Monterey Commons Boulevard

Stuart, Florida 34996

STATEMENT OF THE ISSUE S

The issues to be determined are whether : (1) a violation of

section 556.107(1)( a) , Florida Statutes, occurred; (2) relating

to a Ðhigh - priority subsurface installationÑ under section

556.116(1)(b); (3) which proximately caused an ÐincidentÑ under

section 556.116(1)(c); (4) for which a fine may be imposed

against the violator in an am ount not to exceed $50,000.00.

PRELIMINARY STATEMENT

On January 10, 2018, Sunshine State One - Call of Florida,

Inc. (Sunshine 811), sent a letter to DOAH enclosing a High

Priority Subsurface Installation Incident Report and Commitment

prepared by the Petiti oner, TECO Peoples Gas Company (Peoples

Gas), alleging a violation of section 556.107(1)(a) by the

Respondent, Medalist Building Group, LLC (Medalist). The

letter requested an adminis trative hearing. Under section

556.116(2)(c), DOAH has jurisdiction ove r this matter and a

final hearing was scheduled for March 14. On March 9, the

parties filed stipulations of fact.

At the final hearing, Peoples Gas presented the testimony of

Josh Turpie, Scott Tinney, Lance Horton, Ruth Weintraub, and

Jeremy LeMaster. Peoples Gas Exhibits 1 through 17, 19 and 20

were moved into evidence. Medalist presented the testimony of

its owner, Jeremy LeMaster, and moved Medalist Exhibits 1

through 6 into evidence.

A one - volume transcript was filed with DOAH on April 12 .

Prop osed findings of fact and conclusions of law were filed

jointly by the parties and they have been considered in the

preparation of this Final Order.

FINDING S OF FACT

Stipulated Facts

1. Sunshine 811 is the free - access notification system

established under the Underground Facility Damage Prevention and

Safety Act (the Act). See §§ 556.101 Î 556.116, Fla. Stat.

(2017). Section 556.105(1)(a) requires an excavator before

beginning any excavation or demolition to provide Sunshine 811

with certain information that will allow a utility company to

mark the location of underground facilities in the area of the

proposed excavation.

2. On January 8, 2018, Francisco Plascencia, an employee

and agent of Medalist, was operating a trackhoe excavator on the

property lo cated at or around 1380 SE Cove Road, Stuart, Florida.

3. While Medalist was digging to uproot a tree, the

trackhoe excavator ruptured a six - inch underground gas -

distribution main owned and operated by Peoples Gas.

4. Before beginning the excavation, Med alist did not

Ðcall 811Ñ or otherwise notify Sunshine 811 about the excavation.

5. Accordingly, the excavation site did not contain Ðlocate

marksÑ identifying on the surface of the earth the location of

the six - inch underground gas main.

The Parties

6 . Medalist is owned by Jeremy LeMaster who is a licensed

building contractor. Since 20 07, Medalist has built over

500 homes in Martin County.

7. Peoples Gas is the utility company that owns and

operates the underground gas - distribution main that is the

subject of this proceeding . Peoples Gas is a member operator of

Sunshine 811 and submitted the High Priority Subsurface

Installation Incident Report and Commitment regarding the

incident at 1380 SE Cove Road, Stuart, Florida.

The Incident

8. Joshua Tur pie is the senior utility technician with

Peoples Gas who performs line locates when Peoples Gas gets

tickets from Sunshine 811. Mr. Turpie testified that if a

contractor or homeowner calls Sunshine 811 before digging, it

comes to him and he has a 48 - hour window in which to mark the

location of any underground gas line. This is done by placing

flags, painting the ground and taking pictures.

9. On the morning of January 8, 2018, Mr. Turpie responded

to a location on Cove Road at the request of his super visor,

Scott Tinney. Mr. Tinney informed him that a drastic drop in gas

pressure was occurring , and it seemed to be in the area of

Mr. TurpieÓs location.

10 . At the location, Mr. Turpie found fire trucks and

police cars, and saw that a gas - distribution m ain was ruptured.

After assessing the situation and further discussing it with his

supervisor, who was now on - site, he assisted Peoples Gas

contractor with the Ðmake safeÑ operation. This entailed fully

exposing the gas main and using a Ðsqueeze off tool Ñ to clamp the

main at a location upstream of the rupture to stop the flow of

gas.

11. Mr. Turpie arrived on scene at 9:40 a.m. and the gas

flow was stopped at 11:15 a.m. At the scene, Mr. Turpie also

checked on his computer and saw that this particul ar gas -

distribution main was designated as a high priority main because

Ðit feeds basically everything in Stuart.Ñ An outage at this

type of main would have a high customer impact. This particular

gas main serviced 50 percent residential and 50 percent

c ommercial customers.

12. For excavation work in the area of a high - priority gas

main, Mr. Turpie would not only have flagged and marked the

location, but also would have called the excavator and explained

the high - priority nature of the gas main. In a ddition, a

notification letter would also be sent to the excavator regarding

the high - priority gas main and providing the contact information

of relevant Peoples Gas employees. Peoples Gas would also have

the opportunity to determine if it needed to place an employee

on - site during excavation.

13. A contractor for Peoples Gas repaired the gas main.

Peoples Gas employees also Ðlocked offÑ every customerÓs meter.

Four hundred and nine individual meters had to be physically

locked off before restoration ef forts could begin.

14. Restoration involved re - introducing gas to the system,

purging the lines of air, and physically turning on each meter,

checking gas appliances, and checking for leaks. This process

was labor intensive and involved deploying 36 P eoples Gas

employees from around the state and two contractors from Miami .

15. Peoples Gas set up a command center to which the

employees from around the state reported. There, the teams were

provided with outage lists of the metered customers in order t o

conduct the process of restoring service. Service restoration

continued through the evening of January 9. On the morning of

January 10, the deployed employees were sent back home and the

local teams completed restoring service to residences.

Community Impact

16. At the location of the gas main rupture, first

responders (i.e., fire rescue and police) set up a command

center, redirected traffic away from th at part of Cove Road, and

evacuated nearby residences and a nearby school.

17. The customers wit hout service during the outage

included two hospitals, four nursing homes, a fire station,

schools, a correctional facility, a church, businesses, and

residences.

Property Damage and Service - Restoration Costs

18. Ruth Weintraub is the Peoples Gas super visor for Damage

Prevention & Public Awareness. Ms. Weintraub testified that she

did an accounting of the expenses incurred as a result of the gas

line rupture. Ms. Weintraub calc ulated the amount based on:

(i) lost gas in the line; (ii) labor ; (iii) equ ipment;

(iv) lodging and meals; (v) charges from the third­party

contractors; and (vi) administrative costs. The amount was no

less than $127,000.00, which would increase as Peoples Gas

finalized its accounting.

MedalistÓs Actions

19. Mr. LeMaster testif ied that he was alerted to the

incident by a text from a field supervisor who had called 911 to

report the event. Mr. LeMaster arrived at the scene within

approximately 30 minutes after getting the text, and remained at

the site until there was complete c learance.

20. Mr. LeMaster testified that his employees are trained

in Sunshine 811 procedures. Ð[T]hey donÓt dig without having

locates.Ñ He surmised that Mr. Plascencia thought he was doing a

good thing by using the trackhoe to remove a tree which was in

the center of a staked driveway at the job site. Mr. Plascencia

was not instructed to remove the tree. In fact, the only work to

be done that day was the placement of silt fences.

21. Prior to this incident, Medalist had never hit any

underground li nes and always contacted Sunshine 811 before

digging. Mr. LeMaster testified that Mr. Plascencia was

immediately terminated for not following company policy and

procedures.

Sunshine 811

22. Lance Horton is the manager for Pipeline Safety &

Occupational S ervices at Peoples Gas. Mr. Horton also served on

the Board of Directors of Sunshine 811. He explained that the

Sunshine 811 call and locate procedure is Ða damage prevention

program in the effort . . . to protect underground facilities,

not just gas but also electric, communication facilities, water,

[and] sewer.Ñ It is important to prevent Ðincidents such as

this,Ñ which put utility employees, first responders, and members

of the public in peril.

CONCLUSIONS OF LAW

23. DOAH has jurisdiction in this se ction 556.116

proceeding to determine the facts and law concerning an alleged

incident. See § 556.116(3), Fla. Stat. (2017).

24. MedalistÓs attempt to remove the tree without a prior

call to Sunshine 811 before digging is a violation of section

556.107( 1)(a).

25. The gas main ruptured by Medalist is a Ðhigh - priority

subsurface installationÑ as that term is defined in section

556.116(1)(b).

26. Rupture of the gas main was an ÐincidentÑ as that term

is defined in section 556.116(l)(c). The incident res ulted in

property damage and service - restoration costs in excess of

$50,000.00.

27. The preponderance of the evidence proved that

MedalistÓs violation of section 556.107(1)(a) was a proximate

cause of the incident.

28. Under section 556.116(3), a fine m ay be imposed by DOAH

on the violator in an amount not to exceed $50,000.00.

See § 556.116(3)(c), Fla. Stat. (2017). The fine is payable to

the Sunshine 811 system and the findings in this proceeding may

not be used in any civil action. See § 556.116(3) (e) and (f),

Fla. Stat. (2017).

29. Thus , the purpose of this proceeding and the fine

relates to the stated legislative intent of chapter 556, which is

Ðto provide access for excavating contractors and the public to

provide notification to the system [Sun shine 811] of their intent

to engage in excavation or demolition.Ñ See § 556.101(2), Fla.

Stat. (2017). This Ð[a]ids the public by preventing injury to

persons or property and the interruption of services resulting

from damage to an underground facility. Ñ See § 556.101(3), Fla.

Stat. (2017).

30. Under the totality of the circumstances, including the

service - restoration costs, the impact on the community,

MedalistÓs immediate response to the incident, and MedalistÓs

lack of any prior violations, a fine of $15,000.00 is imposed.

DISPOSITION

Based on the foregoing findings of fact and conclusions of

law, it is

ORDERED that MedalistÓs violation of section 556.107(1)(a)

was a proximate cause of the incident , and Medalist shall pay a

fine in the amount of $1 5,000.00 to the Sunshine 811 system.

DONE AND ORDERED this 15th day of May , 2018 , in Tallahassee,

Leon County, Florida.

S

FRANCINE M. FFOLKES

Administrative Law Judge

Division of Administrative Hearings

1230 Apalachee Par kway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 15th day of May , 2018 .

COPIES FURNISHED:

Wayne E. Flowers, Esquire

Lewis, Longman & W alker, P.A.

Suite 150

245 Riverside Avenue

Jacksonville, Florida 32256

(eServed)

Adam D. Griffin, Esquire

Lau, Lane, Pieper, Conley & McCreadie, P.A.

100 South Ashley Drive

Tampa, Florida 33602

(eServed)

Louis E. Lozeau, Jr., Esquire

Wright Ponsoldt & Lozeau Trial Attorneys LLP

Suite 100

1002 Southeast Monterey Commons Boulevard

Stuart, Florida 34996

(eServed)

Jeremy LeMaster

Medalist Building Group, LLC

Post Office Box 1067

Palm City, Florida 34991

Aaron J. Brock, Esquire

Lau, Lane, Pieper, Conley & McCreadie, P.A.

100 South Ashley Drive

Tampa, Florida 33602

(eServed)

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 procee dings are governed by the Florida Rules of Appellate

Procedure. Such proceedings are commenced by filing the original

notice of administrative appeal with the agency clerk of the

Division of Administrative Hearings within 30 days of rendition

of the order to be reviewed, and a copy of the notice,

accompanied by any filing fees prescribed by law, with the clerk

of the District Court of Appeal in the appellate district where

the agency maintains its headquarters or where a party resides or

as otherwise provi ded by law.