Item C18
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: Mav 20, 2009
Division:
Public Works
Bulk Item: Yes X
No
Department: Facilities Maintenance
Staff Contact Person John W. King, ext 4431
AGENDA ITEM WORDING: Approval to institute legal proceedings against Glen Boe & Associates, Inc.
ITEM BACKGROUND: On February 21,2008, Glen Boe & Associates, Inc. submitted a proposal to prepare
a renewal application for the Roth Building WWTP permit; Monroe County Public Facilities Maintenance
received and accepted this proposal on the same day. On Monday, April 20, 2009, notice was received from the
Florida Department of Environmental Protection that although the required corrective actions to bring our
facility into compliance had been performed, the renewal permit application was not timely received. On
Monday, May 4,2009 a corrective notice was received from the FDEP regarding this matter. This is a violation
of Rule 62-4.030 Florida Administrative Code and carries penalties plus costs. Under the rule, the deadline for
the filing of the permit application was March 22, 2008. The County, as the applicant, is responsible for the
timely filing of the permit, however, Glen Boe did not provide the County with the permit application
paperwork for filing with the FDEP until October 6, 2008. Glen Boe was specifically hired for their expertise in
the area of FDEP Wastewater Treatment Plant (WWTP) permitting. In lieu of an administrative hearing, the
FDEP provided the county with a "short order consent form" which allows the County to resolve this matter
without the necessity of a formal administrative hearing. The short order consent form was dated April 15, 2009
and provided the County 15 days to sign and return it. The County contacted Glen Boe, informed them of the
situation and asked that Glen Boe indemnify the County and cover the penalties and administrative costs
imposed, which total $1,250.00. Glen Boe has thus far refused. Upon consultation and with the advice of the
County Attorney's office, since there is no factual dispute that the permit application was filed after the
deadline, it was determined that the County (Facilities Maintenance) should execute the consent order and the
County should then proceed against Glen Boe in small claims court to recover the costs and penalties imposed
for Glen Boe's failure to timely provide the application paperwork to the County in order for the County to
submit the paperwork to the FDEP prior to the application deadline.
PREVIOUS RELEVANT BOCC ACTION: none
CONTRACT/AGREEMENT CHANGES: none
STAFF RECOMMENDATIONS: Approval.
TOTAL COST: $1.250.00 INDIRECT COSTS
Penalty $1,000 plus $250 costs
BUDGETED: Yes
No
COST TO COUNTY: $ same
SOURCE OF FUNDS: Ad Valorem
REVENUE PRODUCING: Yes
Nol AMOUNTPERMONTH_ Year
APPROVED BY:
County Atty _ OMB/Purchasing _
Risk Management _
DOCUMENTATION: Included _ NotRequired_
DISPOSITION:
AGENDA ITEM #
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NlIlilecTlc W Cassel. AssishUlt COllI,11 Artorn~'
('mlhia L 11'111. Aseislanl County Altol1lel
Christine Linlbc1'I-B.unnl's. A"i~lalJl Counh' Atlornel
Derek V, ] IOll"illd. A"sislant COUIJ(~ Attornel '
Lisa Granger, Assistanl County Attorney
.. Boord Certilied in City, County & Local Gov!. La"
April 29, 2009
David P. Kirwan, P.A.
5800 Overseas Highway, Suite 4
Marathon, FL 33050
'b-Pla~
;i, ,JO~I
!JQAR{I..Q~ COUNT( fJlMMISSIONERS
Mayor Genrge NeUyCfi~, Di~trict 2
I-Idyor Pro Tem Sylvl~ .1. ["Iurphy, District 5
Kim Wiyinytol1, Dis.rj(i: 1
Heather Carruthers! [;istn.-1: J
l"latio Di Gennaro, Distnd 'i
Office of the ('OUUIY AttOl"lIel
1111 IL'" Sheet. 3\\]k ~Olj .
I-:.ey West. FL '30,m
(,OS} 2'12-1470 - 1'1""w
(305) 292-15]6 - Jia--;
Re: Glen Boe & Associates, Inc./Monroe CoWlty - FDEP Fines
Wastewater Renewals - Roth Building and Monroe Regional Service Center
Dear Mr. Kirwan:
This letter is in response to your letter dated April 24, 2009.
I would agree with you the Monroe County is responsibIe for compliance and the timely submittaI
of the Florida Department of Enviromnental Protection wastewater treatment plant permit
applications; however, as I stated in my e-mails, your client was hired to prepare the permit
application because of their expertise in this area. Notwithstanding the hiring of your client two (2)
months prior to the application submission deadline in the case of the Roth Building, and three (3)
weeks prior to tbe submission deadIine in the case of the Monroe Regional Service Center, your client
failed to provide the County with a prepared permit application ready for submission by the COWlty
prior to either of the deadlines. The County signed and returned your client's proposals, in the case of
the Roth Building, on the same day, and in the case of the Monroe Regional Center, within four (4)
days. Your client did not indicate, in either proposal, that its engagement bad not been timely nor does
your client convey any such concern either before or after it was engaged. While we appear to agree
on the legal background, we do not agree entirely as to the factual background.
With rellard to the Roth Building:
We would agree that the permit was scheduled to expire on September 18, 2008; therefore, the
permit renewal application was due to be filed on March 22, 2008.
David i). KJ:y!ar., P.A.
April 19, 2009
Page Two
We ar~ in agreement that tilt engagement proposal was provided and returned to your client on the
same date, February 21, 2008; however, we differ as to the date your client mailed the application to
the County. 'ihe cover letter. the invoice and the FDFP submission Icller all erroneously sh0w the date
of March 18, 2008 when in fact the application pa<:ket was n01 mailed to the COlUlty until March 21,
2008. This is bore out by the fact that Page 2A-12 of the permit application contains your clients
engineering certification. While the papeIWork may have been prepared on March 18, 2008, yom
client signs and certifies the paperwork on March 2]. 2008 as indicated by the fact yom client changed
the signature date to the 21't. The same is true of the engineering certification contained in Page 3 of
14 of the Application to Coru.1ructlOperate/Abandon Class I, III or V Injection Well Systems, as well
as the Roth Building Wastewater Treatment Plant Operation and Maintenance Report.
If you refer to a calendar, you will see that March 21, 2008 was a Friday. The County received the
packet, by mail, on March 24, 2008; at which point, the renewal application was already untimely and
there was nothing the County could do to cme the late filing of the renewal application. As you have
already pointed out. subsequent actions, either by the COWlty or yom client, are inunaterial to the fact
your client failed to provide the permit application to the COWlty for submission by the County prior to
the submission deadline.
With rel.!ard to the Monroe Ree:ional Service Center:
While we agree that the proposal was timely signed, I would disagree that your client did not
timely receive it. There are e-mail communications between Ms. Walters and Ms. Hunt on March 31,
2008 informing Ms. Hunt that the County had signed the proposal and would be furwarding the
proposal. While there were indications that the County had some problems receiving e-mails from
Glen Boe & Associates, Inc., there was no indication that Glen Boe & Associates, Inc. had any
problems receiving e-mails form the COWlty. Despite informing Glen Boe & Associates, Inc. of the
acceptance of the proposal and agreeing to receipt of the signed proposal by e-maiI, Glen Boe &
Associates, Inc. never contacted the County to inform the County that it was not received.
The County would prefer to resolve this matter amicably; however, as I previously stated, if your
client chooses not to indemnify the County for these violations which have been prompted by yom
client's action, then the County will pursue whatever legal remedies are available to the CoWlty.
Sf3d~~~
PED~ADO
Assistant County Attorney
PJM:kmp
cc: John W. King, Senior Director, Lower Keys Facil!ties
Dent Pierce, Director, Public Works Division ./
DAnn P. KlRWAN, I'.A.
Board Cerliiit:d Rt:ul Estate Lawyt:f
5800 Overseas Highway, Suite ~
Marathon, Florida 33050
(305) 743-0375
Pax (305) 946-0352
Ki rwan@Bellsouth.nct
April 24, 2009
Pedro Mercado, Esq.
Assistant Monroe County Attorney
via email to
Mercado-Pedro@Monroe County-
FL.GOV
Re: Glen Doe & Associates, Inc./Monroe County
Wastewater Renewals - Roth Building and Monroe Regional Service Center
Dear Mr. Mercado:
Please he advised that I represent Glen Boe & Associates, Inc. This letter is a follow-up
to your recent emails to my client, the most recent of which was sent yesterday. Please
direct any future contact concerning this matter to me.
You have expressed an expectation that my client wi II indemnify Monroe County for its
failure to timely renew its wastewater treatment plant permits on the above-referenced
projects. Because your expectation is not grounded on the facts, Glen Hoe & Associates,
Inc. will not agree to any indemnification in this matter.
Here is the factual and legal background: The Florida Department of Environmental
Protection requires that wastewater treatment plant renewals be applied for not later than
180 days prior to the expiration of a current permit. The applicant is responsible for
compliance.
Glen Boe & Associates, Inc. (the firm) will take responsibility for making application,
provided that it is timely engaged by the applicant to do so. My client does not work for
any client except in where the applicant has signed and timely returned a \Witten proposal
to the firm stating the teons of its engagement.
Perro Mercado, Esq,
Assistanl Monroe County Attorney
April 24, 2009
Pagt' 2
As to the Roth Building, here is the sequence of events;
The permit was scheduled to expire on Septcll1bcr 18,2008, The renewal application was
due to be filed on March 22,2008, If the application is timely filed, the DEP will not
impose any penalties - cven if the pcrmit is not renewed by the renewal date. If the
application is untimely filed, the DEP can strictly enforce the deadline,
On February 21, 2008 a written proposal was emailed by the finn to the County (via Jo
Walters). It was signed by Jo Walters and returned to the firm the same day. After
receiving the signed proposal, the firm prepared the renewal application and mailed it to
John King on March 18. The wastewater treatment pennit application was not submitted
to the FDEP by Monroe County until April 16,2008 - almost a month after the permit
due date.
The VariOUS communications between the DEP and the firm that occurred after the filing
of the tardy renewal application are inunaterial to the enforcement action taken against
the County. The firm timely responded to all of the routine inquiries made by DEP and
the finn's final response to the DEP was made more than a month before the permit
expiration date.
Thus, the problem solely arose because the County failed to timely file the completed
application it was provided by the finn.
As to the Monroe Regional Service Center, here is the sequence of events:
The pennit was scheduled to expire on October 19, 2008. The renewal application was
due to be filed on April 22, 2008.
On March 25, 2008 Jo Walters sent an email to the finn (Kathy Hunt) requesting a
proposal for services. On March 28, the finn sent a proposal to 10 Walters by email and
U.S. Mail. On March 31, Jo Walters advised Kathy Hunt that the proposal was received
by U,S. Mail - but not by email. Jo Walters attempted to resolve an apparent problem
with the County's bulk email filter to keep it from blocking emails from Glen Boe &
Associates.
Although the County may have timely signed the proposal, the linn did not receive a
signed proposal back from Monroe County on this project until September 30, 2008. On
that date, a telephone conversation between Jo Walters and Kathy Hunt revealed that the
proposal had not previously been received by the firm. The firm did not prepare the
application extension solely because it had not received a signed engagement proposal
from its client.
Pedro Mercado, r.sq.
As~istant Monroe County Attomey
ApI;] 24, 2U09
Page 3
On October 2,2008 John King received a Jetter from DcP advising of onsite violations at
the subject treatment plant - and that the DEP had not yet received the renewal
application.
On October ri, 2008 the firm completed the renewal application and mailed it to John
King for submission, FDEP did not issue the renewal permit until November 17,2008.
Again, the sole problem here is caused by the applicant's failure to engage the firm to
submit a renewal application more than 180 days prior to the expiration of the existing
permit.
At this point, to mitigate its alleged damages, Monroe County should enter into the
proposed consent order(s) with DEP and pay the $1,250 penalty and costs as to each of
these projects in a timely manner.
My client valucs its business relationship with Monroe County, but cannot assume
liability for matters that were outside its control. For that reason, Glen Boe & Associates,
Inc. will strenuously resist any action that may be brought by Monroe County in this
matter.
Si7e1Y,
t/~b ./
/'1~~~
Florida Department of
Environmental Protection
Charlie Crist
Governor
South District
P.O. Box 2549
Fort Myers, FL 33902-2549
Jeff Kottkamp
Lt. Governor
Michael W. Sole
Secretary
CERTIFIED MAIL NO.: 7008 0500 0000 77754604
RETURN RECEIPT REQUESTED
'RECEIVED
MAY 0 4 2009
BY:
April 30, 2009
-
Monroe County Board of County Corrunissioners
Mr. John King
Senior Director of Lower Keys Operations
3583 South Roosevelt Boulevard
Key West, Florida 33040
RE: Monroe County - DW
Roth Building WWTP
OGC Case No.: 09-0704-44-DW
FLA014994
Dear Mr. King,
Enclosed is the Short Form Consent Order to resolve the above referenced case. Please
sign, date, and return this copy to the Department within fifteen (15) days.
If you have any questions please contact Keith Kleinmann at (239) 332-6975, ext. 182.
Your cooperation in resolving this case is appreciated.
. 7t~~
.J! D1/ Jon M. Iglehart
Vv v Director of District Management
JMI/KK/ jl
Enclosure
c: Devon Villareal, FDEP, Marathon (devon.villareal@dep.state.fl.us)
Keith Kleinmann, (b;eith.kleinmann@dep.state.fl.us)
Enforcement File
"More Protection, Less Process" !
www.dep.state.jl.us
SHORT FORM CONSENT ORDER
April 30, 2009
Monroe County Board of County Commissioners
Mr. John King
Senior Director of Lower Keys Operations
3583 South Roosevelt Boulevard
Key West, Florida 33040
SUBJECT: Proposed Settlement of the Roth Building Wastewater Treatment Plant
(FLAOI4994)
OGC File No.: 09-0704-44-DW
Dear Mr. King,
The purpose of this letter is to complete the resolution of the matter previously identified
during a Department phone call on April 7, 2009. The corrective actions required to bring
your facility into compliance have been performed. The Department finds that you are in
violation of State rules and statutes. In order to resolve the matters identified in ~he Department
phone call, you are assessed civil penalties in the amount of$l,OOO, along with $250 to
reimburse the Department costs, for a total of$1,250.
The civil penalties are apportioned as follows: $1,000 for violation of Rule 62-4.030,
Florida Administrative Code.
The Deparbnent acknowledges that the payment of these civil penalties by you does not
constitute an admission of liability. This payment must be made payable to the Department of
Environmental Protection by cashier's check or money order and shall include the aGC File"
Number assigned above and the notation "Ecosystems Management and Restoration Trust
Fund." Payment shall be sent to the Department of Environmental Protection, 2295 Victoria Ave,
P.O. Box 2549, Fort Myers, FL 33902-2549, within thirty (30) days of your signing this letter.
Your signing this letter constitutes your acceptance of the Department's offer to resolve
this matter on these terms. If you elect to sign this letter, please return it to the Department at the
address indicated above. The Department will then countersign the letter and file it with the
Clerk of the Department. When the signed letter is filed with the Clerk, the letter shall constitute
final agency action ofthe Department which shall be enforceable pursuant to Sections 120.69
and 403.121, Florida Statutes.
If you do not sign and return this letter to the Department at the District address within fifteen
(15) days, the Department will assume that you are not interested in settling"this matter on the
above described terms, and will proceed accordingly. None of your rights or substantial interests
are determined by this letter unless you sign it and it is filed with the Department Clerk.
SHORT FORM CONSENT ORDER
PAGE TWO
Sincerely,
~. M4l
f ..~ -
":::JOnN[-~art
Director of District Management
FOR THE RESPONDENTS:
I, on behalf of , HEREBY
ACCEPT THE TERMS OF THE SETTLEMENT OFFER IDENTIFIED ABOVE,
By:
Date:
...............................................................................
FOR DEPARTMENT USE ONLY
DONE AND ENTERED this
day of
, 200_.
STATE OF FLORIDA DEPARTMENT
OF ENVIRONMENTAL PROTECTION
Jon M. Iglehart
Director of District Management
FILING AND ACKNOWLEDGMENT
FILED, on this date, pursuant to
~ 120.52, Florida Statutes,
With the designated Department
Clerk, receipt of which is hereby
Acknowledged.
Clerk
Date
Copies furnished to:
Lea Crandall, Agency Clerk
Mail Station 35
SHORT FORM CONSENT ORDER
PAGE THREE
NOTICE OF RIGHTS
Persons who are not parties to this Consent Order but whose substantial interests are
affected by this Consent Order have a right, pursuant to Sections 120.569 and 120.57, Florida
Statutes, to petition for an administrative hearing on it. The Petition must contain the
infonnation set forth below and must be filed (received) at the Department's Office of General
Counsel, 3900 Commonwealth Boulevard, MS-35, Tallahassee, Florida 32399-3000, within 21
days of receipt ofthis notice. A copy of the Petition must also be mailed at the time of filing to
the District Office named above at the address indicated. Failure to file a petition within the 21
days constitutes a waiver of any right such person has to an administrative hearing pursuant to
Sections 120.569 and 120.57, Florida Statutes.
The petition shall contain the following infonnation:
(a) the Department's Consent Order identification number and the county in which the subject
matter or activity is located; (b) The name, address, and telephone number of each petitioner; the
name, address, and telephone number of the petitioner's representative, if any, which shall be the
address for service purposes; (c) A statement of how and when each petitioner received notice of
the Consent Order; (d) A statement of how each petitioner's substantial interests are affected by
the Consent Order; (e) A statement of the material facts disputed by petitioner. If there are none,
the petition must so indicate; (f) A statement of facts which petitioner contends warrant reversal
or modification of the Consent Order; (g) A statement of which rules or statutes petitioner
contends require reversal or modification of the Consent Order; and (h) A statement of the relief
sought by petitioner, stating precisely the action petitioner wants the Department to take with
respect to the Consent Order.
If a petition is filed, the administrative hearing process is designed to formulate agency
action. Accordingly, the Department's final action may be different from the position taken by it
in this Notice. Persons whose substantial interests will be affected by any decision of the
Department with regard to the subject Consent Order have the right to petition to become a party
to the proceeding. The petition must conform to the requirements specified above and be filed
(received) within 21 days of receipt of this notice in the Office of General Counsel at the above
address of the Department. Failure to petition within the allowed time frame constitutes a waiver
of any right such person has to request a hearing under Sections 120.569 and 120.57, Florida
Statutes, and to participate as a party to this proceeding. Any subsequent intervention will only
be at the approval of the presiding officer upon motion filed pursuant to Rule 28-106.205,
Florida Administrative Code.
Mediation under Section 120.573, Florida Statutes, is not available in this proceeding.
SFCO/June 2007