19-002743 Teco Peoples Gas Company vs. Cougar Contracting, Llc Status: Closed DOAH Final Order on Wednesday, August 28, 2019.

Summary: Cougar's violation of section 556.107(1)(a), Florida Statutes, was a proximate cause of the incident. Cougar shall pay a fine in the amount of $5,000 to the Sunshine 811 system.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TECO PEOPLES GAS COMPANY,

Petitioner,

vs. Case No. 19 - 2743

COUGAR CONTRACTING, LLC,

Respondent.

_______________________________/

FINAL ORDER

Pursuant to notice, Francine M. Ffol kes, Administrative Law

Judge of the Division of Administrative Hearings (DOAH),

conducted a final hearing in this case on July 18, 2019, by video

teleconference in Tallahassee and Fort Myers, Florida.

APPEARANCES

For Petitioner: Adam D. Griffin, Esquire

Lau, Lane, Pieper, Conley

& McCreadie, P.A.

100 South Ashley Drive, Suite 1700

Tampa, Florida 33602

For Respondent: Mark Schultz, Esquire

Henderson, Franklin, Starnes

& Holt, P.A.

1715 Monroe Street

Fort Myers, Florida 33901

STATEMENT OF THE ISSUE S

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

violation of section 556.107(1)(a), Florida Statutes, relating to

a " high - priority subsurface installation " proximately caused an

" incident " un der section 556.116(1)(c); and (2) if so, what fine

should be imposed against the violator in an amount not to exceed

$50,000.

PRELIMINARY STATEMENT

On May 21, 2019, Sunshine Stat e 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 Petitioner, TECO Peoples Gas Company (Peoples Gas),

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

Respondent, Cougar Contracting, LLC (Cougar) . The letter

requested an adminis trative hearing. Under section

556.116( 3 )(c), DOAH has jurisdiction over this matter , and a

final hearing was scheduled for July 18 , 2019 . On July 12 ,

2019 , the par ties filed stipulations of fact. The parties

stipulated that a violation of section 556.107(1)(a) occurred ,

relating to a " high - priority subsurface installation " under

section 556.116(1)(b) .

At the final hearing, Peoples Gas presented the testimony of

Ru th Weintraub . Cougar presented the testimony of Shane Meaker.

Joint Exhibits 1 through 13 were received into evidence.

A one - volume T ranscript was filed with DOAH on August 5 ,

2019 . P roposed findings of fact and conclusions of law were

filed jointly by the parties and have been considered in the

preparation of this Final Order.

References to the Florida Statutes are to the 2018 version,

unless otherwise indicated.

FINDING S OF FACT

Based on the stipulated facts and the evidence adduced at

the final hearin g, the following findings of fact are made.

Stipulated Facts (Paragraphs 1 through 24)

Sunshine 811 and the Incident

1. Sunshine 811 is the free - access notification

system established by the Underground Facility Damage Prevention

and Safety Act (Act) . Se e §§ 556.101 - 556.116, Fla. Stat.

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 on the

surface of the earth the horizon tal route of underground

facilities in the area of the proposed excavation.

2. An excavator must notify Sunshine 811 of an upcoming

excavation not less than two full business days before beginning

an excavation . Such notification and resulting locate tic ket

remain valid for only 30 days after the notice to Sunshine 811.

See § 556.105(1)(a), (c), Fla. Stat.

3. Cougar is a site - work contractor . Cougar had a

subcontract with general contractor Waltbillig & Hood, who was

building a storage facility on prop erty at or around 16641 S outh

Tamiami Trail in Fort Myers. Among other site work, Cougar

agreed to install underground storm structures.

4. On Saturday, May 18, 2019, around 10:20 a.m., an

employee and agent of Cougar, Ramiro Garcia, was operating a

back hoe excavator on or near the property located at or

around 16641 S outh Tamiami Trail in Fort Myers. While digging

to install a storm structure, the excavator ruptured an eight -

inch steel underground gas distribution main owned and operated

by Peoples Gas.

5. More than three months before the incident, on

February 12, 2019, Cougar , through Jessica Armstrong , notified

Sunshine 811 about an excavation to occur at 16721 South Tamiami

Trail. Cougar r equested utility locating for the " perimeter of

new storage facility. " In response, Sunshine 811 generated

locate ticket number 043902987.

6. Two days later, on February 14, 2019, Cougar , through

Ms. Armstrong contacted Sunshine 811 to replace the previous

locate ticket number 043902987. This time Cougar request ed

locating at a different address, 16641 S outh Tamiami Trail, but

again requested utility locating for the " perimeter of new

storage facility. " In response, Sunshine 811 generated a new

locate ticket number 045903523, which expressly " replace[d]

Ticket # 043902987, " as Cougar requested.

7. On February 14, 2019, Peoples Gas locator , Todd

Gerloski , responded at 3:10:06 p.m. to the second locate ticket

number 045903523, b y entering " High Priority Pipeline - Marked, "

which confirmed that Peoples Gas had locat ed and marked a high

priority pipeline within the excavation area.

8. T he parties agree the three locate tickets with dates of

February 12, 2019, l ocate t icket number 043902987 ; February 14,

2019 , l ocate t icket number 045903523 ; and May 18, 2019, l ocate

t icket number 138900287, speak for themselves.

9. Whenever, like here, an excavation site conflicts with a

high - priority gas main, Peoples Gas issues and sends to the

excavator an e - mail notice with the subject line " ATTENTION:

High Priority Natural Gas Pipeline in Your Work Area - PLEASE

READ. " The notice provides the number of the locate ticket and

warns among other things : " In reference to your locate

request(s), there is a high profile gas line in the area .

Excavation around this line requires increa sed caution to prevent

significant bodily injury and/or property loss. " The notice also

provides the locater ' s contact information and states : " This

line has been marked; please call the [ contact ] below one (1)

working day in advance of excavation so Peo ples Gas can make

arrangements to be on site if necessary. Note: the law requires

the excavator to spot dig the facilities. " Finally, the notice

advises that " information provided by an excavator is valid

for 30 calendar days. "

10. Peoples Gas ' s Timothy A. Easter sent this notice to

Cougar ' s Ms. Armstrong via e - mail o n February 15, 2019, at

11:02 a.m.

11. Thus, through Mr. Gerloski and Mr. Easter, Peoples Gas

identified the gas main as high priority and notified Cougar

about the presence of the high - pri ority main.

12. According to s ection 556.105(1)(c), locate ticket

number 045903523, which replaced the original locate ticket

number 043902987, expired on March 17, 2019.

13. Accordingly, when the incident occurred on May 18,

2019, Cougar was digging wit hout a valid locate ticket, in

violation of the Act.

Cougar ' s and Peoples Gas ' s Response to the Incident and the

Incident ' s Impact on the Community

14. Immediately after rupturing the gas main, Cougar ' s

R amiro Garcia turned off the excavator and ordered everyone to

move away from the area of damage. Mr. Garcia then called 911

and his supervisor.

15. Traffic along this section of U.S. 41 (Tamiami Trail)

was shut down in both directions shortly after the 911 call, but

no later than 11:15 a.m. Around the same time, the area and

businesses around the damage were evacuated.

16. After receiving a report of the incident from the fire

department, Peoples Gas ' s first responder arrived on scene at

11:06 a.m. and confirmed that the damage was to the eight - inch

hi gh - priority steel gas main, a one - way feed that serves 15,176

customers to the south and along Fort Myers Beach. To avoid

losing gas service to 15,176 customers, restoration of which

would require at least one visit by a Peoples Gas representative

to each customer, Peoples Gas endeavored to safely keep the gas

main in service while conducting the repair.

17. In order to do so, Peoples Gas relied on the assistance

of several contractors, employees, and public first responders ,

and delivered trucks of compr essed natural gas to maintain the

necessary operating pressure of the gas main downstream , while

Peoples Gas conducted the repair on the section of damaged pipe.

18. Around 2:15 p.m., the southbound lane of U.S. 41 was

reopened. The southbound lane was c losed for approximately three

and one - half hours. The northbound lane remained closed.

19. Around 6:00 p.m., Peoples Gas incident commander, Greg

Crawford, received a phone call from Cougar ' s Shane Meaker.

Mr. Meaker called to offer help by offering a l arge track hoe to

help dig around the main and assist the repair. Peoples Gas

accepted the offer , and a Peoples Gas contractor operated the

Cougar track hoe to assist the repair.

20. Peoples Gas successfully and safely kept the gas main

in service while conducting the repair. However, gas service was

lost to 17 customers, which required Peoples Gas to restore

service to those customers after completing the repair.

21. The repair effort extended overnight ; Peoples Gas

completed the repair , and the site w as " made safe " at

approximately 4 :00 a.m. the next day, May 19, 2019. In total,

the effort to repair the damage lasted approximately 17 hours.

2 2. At 4:06 a.m. , on Sunday, May 19, 2019, Peoples Gas

notified the sheriff ' s department that the scene was saf e, and

shortly thereafter , northbound U.S. 41 was again open to traffic.

The northbound lane was closed for approximately 17 hours.

The Cost of Repair

23. Peoples Gas awaits an invoice from one of its

contractors, but the preliminary cost to repair the m ain and

restore service to the 17 customers was $156,745.83. 1 / This

number comprises 53 , 930 therms of lost gas ( $53,658 ) , material

cost ( $938 ) , equipment cost ( $9,924 ) , overtime labor ( $3,200 ) ,

double - time labor ( $15,258 ) , lodging and meal expenses ( $453 ) ,

contractor charges ( $65,018 ) , and administrative charges

( $8,298 ) .

Cougar ' s Recent History of Violations

24. On January 7, 2019, Cougar ruptured a four - inch

underground gas main near Tiburon Way and Tidewater Key B oulevard

in Estero. Although Cougar ha d called Sunshine 811 for a locate

request on October 16, 2018, for the nearby area, the locate

ticket number 289810669 had expired when the incident occurred.

Peoples Gas suffered $2,571.84 in damages, and Cougar paid the

claim in full.

Causation

25. I f Sunshine 811 had been notified, Peoples Gas would

have identified the location of the underground main with locate

marks and would have sent Cougar the standard high - priority

e - mail notice referenced above.

26. Mr. Meaker confirmed that Cougar ' s equipme nt operators

are well trained and recognize locate marks . H ad Cougar called

Sunshine 811 before commencing excavation on Saturday, May 18,

2019, the operator would have seen the locate marks and may not

have struck the gas main.

27. The record evidence c ontains a M ay 18, 2019, l ocate

t icket number 138900287 , which reflects that it was requested at

11:54 a.m. on Saturday, May 18, 2019, almost two hours after the

incident occurred. Thus, Cougar was excavating without a valid

locate ticket at the time of th e incident described above.

2 8 . Cougar ' s failure to notify Sunshine 811 prior to

commencing work on Saturday, May 18, 2019, is the proximate cause

of the incident described above.

CONCLUSIONS OF LAW

2 9 . DOAH has jurisdiction in this section 556.116

proc eeding to determine the facts and law concerning an alleged

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

30. Cougar ' s excavation on Saturday, May 18, 2019, at

10:00 a.m. without a prior call to Sunshine 811 is a violation of

section 556.107(1)(a).

31. The gas main ruptured by Cougar i s a " high - priority

subsurface installation , " as that term is defined in section

556.116(1)(b).

32. Rupture of the gas main was an " incident " as that term

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

property da mage and service - restoration costs in excess of

$50,000.

33 . The preponderance of the evidence proved that Cougar ' s

violation of section 556.107(1)(a) was a proximate cause of the

incident.

34 . Under section 556.116(3), a fine may be imposed by

DOAH on t he violator in an amount not to exceed $50,000.

See § 556.116(3)(c), Fla. Stat. 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.

35 . Thus , t he purpose of this proceeding and the fine

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

" to provide access for excavating contractors and the public to

provide notification to the system [Sunshine 811] of their intent

to engage in exca vation or demolition. " See § 556.101(2), Fla.

Stat. This " [a]ids the public by preventing injury to persons or

property and the interruption of services resulting from damage

to an underground facility. " See § 556.101(3), Fla. Stat.

3 6 . Based on the to tality of the circumstances , which

includes the service - restoration costs, the impact on the

community, Cougar ' s response to the incident, and Cougar ' s prior

violation, a fine of $5,000 is imposed.

DISPOSITION

Based on the foregoing F indings of F act and C o nclusions of

L aw, it is

ORDERED that Cougar ' s violation of section 556.107(1)(a) was

a proximate cause of the incident , and Cougar shall pay a fine in

the amount of $5,000 to the Sunshine 811 system.

DONE AND ORDERED this 28th day of August , 2019 , in

Tall ahassee, Leon County, Florida.

S

FRANCINE M. FFOLKES

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

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 28th day of August , 2019 .

ENDNOTE

1/ Cougar and Peoples Gas agree to this paragraph , and the

pertinent exhibits on damages , solely for this DOAH hearin g.

Nothing admitted in this paragraph or respective exhibits may be

used against Cougar or Peoples Gas in any subsequent legal

proceeding.

COPIES FURNISHED:

Wayne E. Flowers, Esquire

Lewis, Longman & Walker, P.A.

245 Riverside Avenue , Suite 150

Jackson ville, Florida 32202

(eServed)

Adam D. Griffin, Esquire

Lau, Lane, Pieper, Conley

& McCreadie, P.A.

100 South Ashley Drive , Suite 1700

Tampa, Florida 33602

(eServed)

Mark Schultz, Esquire

Henderson, Franklin, Starnes

& Holt, P.A.

1715 Monroe Stree t

Fort Myers, Florida 33901

(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 proceedings 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 th e 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 provided by law.