STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 86-2107

)

GEORGE E. BAILEY, )

)

Respondent. )

) DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 86-2623

)

GEORGE E. BAILEY, )

)

Respondent. )

) DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 86-2624

)

GEORGE E. BAILEY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held on August 15, 1986 in Venice, Florida, before the Division of Administrative Hearings by its designated Hearing Officer, Diane K. Kiesling.

APPEARANCES

For Petitioner: Anthony N. DeLuccia, Jr., Esquire

District Legal Counsel Post Office Box 06085 Fort Myers, Florida 33906

For Respondent: Robert B. Bennett, Jr., Esquire

46 North Washington Boulevard, Suite 13 Sarasota, Florida 33577

The issue in each of these consolidated cases is whether the permit to operate a septic tank cleaning service of George E. Bailey should be revoked or otherwise disciplined based on the facts alleged in the administrative complaint.

Petitioner presented the testimony of Joseph Madrak, John McDonall, Warren McDougall, Emmery A. Wuthrich, Robert Keniston and Dale Holcomb, together with six exhibits admitted in evidence. Respondent presented the testimony of George

1. Bailey, Michael D. Lowen, and David Sandefer. The parties waived filing of a transcript of these proceedings.

   
   

   The parties filed proposed findings of fact and conclusions of law. All proposed findings of fact and conclusions of law have been considered. A ruling has been made on each proposed finding of fact in the Appendix attached hereto and made a part hereof.

   
   

   FINDINGS OF FACT

   
   

   1. On May 6, 1986, George Bailey, doing business as Bailey's Septic Tank Service pursuant to a permit to operate a septic tank cleaning service, pumped out and cleaned the septic tank located at 474 Hinton Street, Port Charlotte, Florida, owned by Davina Hall.

      
      

   2. On May 21, 1986, upon inspection of that septic tank by Warren McDougall and Dale Holcomb on the complaint of the owner, it was determined that the septic tank inspection hatch lid was not properly sealed. There was a hole where the corner of the inspection hatch lid had been broken off and the soil over the tank was not properly replaced and compacted.

      
      

   3. The only evidence as to whether anyone else did work on that septic tank after Bailey's and before the inspection was the testimony of the inspectors and Bailey about what they were told by others. That evidence is all hearsay and cannot be relied upon to base a finding under these circumstances. Accordingly, it cannot be found that Bailey's left this tank unsealed and damaged.

      
      

   4. On September 26, 1985, Bailey's serviced the septic tank located at 1043 Webster Avenue, Port Charlotte, Florida, at the request of Robert Keniston acting as agent for the owners, Mr. and Mrs. Caggiano. The house was vacant when the work was done, but Keniston observed the work in progress.

      
      

   5. On May 27, 1986, an inspection of the septic tank by Warren McDougall and Emmery Wuthrich of the Charlotte County Health Department revealed that the access lid was broken and had not been sealed.

      
      

   6. David Sandefer, the employee of Bailey's who performed the work, acknowledged that he left the tank with a broken lid and unsealed because Keniston told him to do so and would not pay the $40 to replace the lid. Keniston denies this and says he did not know of the broken lid until the inspection. Having observed the demeanor of the witnesses, it is found that Keniston's testimony is more reliable and credible in this regard.

   7. On June 10, 1986, the Sarasota County Health Department received a complaint that a Chevrolet pump truck, white cab with a red tank, was dumping sewage and had magnetic signs saying it was a pressure cleaning service. The complaint was being investigated by John Madrak that same day when he saw a truck fitting the description parked at the Frosted Mug, a restaurant in Venice, Florida. There were no signs on the truck. Madrak also observed a puddle under the tank caused by a leak from the outlet valve on the tank.

      
      

   8. Madrak saw work order forms in the cab of the truck saying Bailey's Septic Tank Service. Madrak talked to the driver of the truck, David Sandefer, and was told that the truck was owned by Bailey, but was not being used for septic tank cleaning. Sandefer said it had just been repainted.

      
      

   9. The driver left the Frosted Mug and Madrak followed at the instruction of his supervisor.

      
      

   10. After a lengthy chase, the truck stopped at a convenience store and Bailey, Madrak, Venice Police Officer Dodd and Sheriff's Deputy Lowen converged on the scene.

       
       

   11. Bailey acknowledged ownership of the truck, but indicated that it was being used as a water tank truck in a pressure cleaning business and not as a septic tank pump truck. It had been repainted and had not been used for septic tank service for 4 to 6 weeks prior thereto. Bailey owns two other pump trucks that were being used in the septic tank business.

       
       

   12. The truck had hoses and shovels consistent with use for pumping septic tanks. The truck had no signs indicating by whom it was being used.

       
       

   13. The truck was leaking from the outlet valve, but no evidence was presented as to the substance leaking from the truck. No one sampled, touched or smelled the leaking material and no one looked in the tank to see what was inside. At no time did anyone observe the truck in the act of pumping sewage.

       
       

       CONCLUSIONS OF LAW

       
       

   14. The Division of Administrative Hearings has jurisdiction of the parties to and subject matter of these proceedings. Section 120.57(1), Florida Statutes.

       
       

   15. Chapters 381 and 386 of Florida Statutes authorize and empower the Department of Health and Rehabilitative Services (DHRS) in the areas of Public Health and Sanitary Nuisances. Section 381.031(1)(g), Florida Statutes, empowers DHRS to adopt rules pertaining to the disposal of sewage and waste and Section 381.031(3) permits DHRS to maintain all proper and necessary actions to enforce its rules and regulations. Chapter 10D-6, Florida Administrative Code, was adopted by DHRS pursuant to Section 381.031(1)(g), Florida Statutes, and is known as the Sanitary Code of Florida.

       
       

   16. Chapter 120, Florida Statutes, applies to this action and Section

       120.60 makes licensing application, renewal and suspension subject to the provisions of Chapter 120. Rule 10D 6.52(2), F.A.C., requires a permit for the disposal of septage to be issued through the county health unit arm of DHRS. Therefore, the action is an administrative action authorized by Chapter 120.

       
       

   17. Section 381.112(1) provides that in addition to administrative action under Chapter 120, DHRS may impose a fine of up to $500.00 for violation of any

       rule contained in the Sanitary Code of Florida. Finally, Rule 10D-6.52(3), F.A.C., allows a septage disposal permit to be suspended, revoked or denied by DHRS in accordance with procedures of Chapter 120 "for failure to comply with requirements of this Chapter."

       
       

   18. Respondent is charged with violating Chapter 10D 6.52(4) of the Florida Administrative Code which states as follows:

       
       

       (4) After septage is removed from an onsite waste disposal system, the original lid of the tank shall be put back in place, or be replaced with a new lid if the original lid is broken. The tank lid shall be completely sealed and the ground backfilled and compacted so that the site is left in a nuisance free condition.

       
       

   19. As to the allegations in Case No. 86-2107, it is clear from the evidence that Respondent pumped the septic tank system located at 474 Hinton Street in Port Charlotte and that the tank lid to the system was found to be broken approximately two weeks later. However, Petitioner has the burden of proving the allegations of its administrative complaint justifying a license discipline. Associated Home Health Agency, Inc. v. State of Florida, Department of Health and Rehabilitative Services, 453 So.2d 104 (Fla. 1st DCA. 1984). Thus Petitioner must show by competent, substantial evidence that Respondent left the tank lid in an unsealed condition and failed to replace and compact the soil over the tank upon the completion of the work performed by Respondent.

       
       

   20. Petitioner has presented no competent evidence to show that the location at 474 Hinton Street, Port Charlotte, Florida, was in the same condition on May 21, 1986 as it was upon completion of Respondent's work on May 6, 1986. The only evidence to the contrary is hearsay and cannot support a finding of fact.

       
       

   21. Petitioner has failed to sustain its burden of proof that the condition of the septic tank system in question on May 21, 1986 was due to any action or omission on the part of Respondent. Therefore there is no competent, substantial evidence to support a finding that Respondent violated Rule 10D 6.52(4), F.A.C. Case No. 86-2107 should be dismissed.

       
       

   22. As to the allegations in Case No. 86-2623, it is clear from the evidence that Respondent pumped the septic tank system located at 1043 Webster Avenue, Port Charlotte, Florida, and that the tank lid was broken and was left broken and unsealed. While Respondent maintains that the agent for the owner told him to leave the broken, unsealed lid, it has been found that Keniston's testimony denying this is more credible and is accepted. Accordingly, it is concluded that Bailey is guilty of violating Rule 10D-6.52(4), F.A.C.

       
       

   23. Finally, as to Case No. 86-2624, the charges are twofold. Chapter 10D-6.52 is entitled "Disposal of Septage" with subsection three providing as follows:

       
       

       (3) When a permit is issued, the number of said permit along with the name of the company, its address, phone number and the

       gallon capacity of the truck shall be prominently displayed on the service truck with three (3) inch or larger letters . . . .

       
       

   24. The evidence shows that Respondent's truck did not have all the information required by 10D-6.52(3) prominently displayed on June 10, 1986. However, there exists no basis for finding a violation for that omission unless it is shown by competent, substantial evidence that the truck in question was a service truck being used for the disposal of septage.

       
       

   25. While Respondent admits the truck had been previously been used as a septic tank service truck, Petitioner presented no evidence to refute Respondent's contention that the truck was no longer in use as such on June 10, 1986 and had not been so used for the previous four to six weeks. The mere fact that the truck could be used as a septic tank service truck does not eliminate or prohibit its use for other legitimate purposes.

       
       

   26. Rule 10D-6.52(3) assumes the "service truck" to which it refers to be involved in the "Disposal of Septage." Chapter 10D-6 defines "septage" as "a mixture of sludge, fatty materials, human feces and wastewater removed during the pumping of an onsite disposal system." Rule 10D-6.42(34), F.A.C.

       Petitioner did not present any evidence that the Respondent's truck was involved in the disposal of septage as defined by 10D-6.42(34). In fact, no examination was done and no samples were taken. Moreover, the circumstances under which the truck was observed are not indicative of the truck's usage, since it was initially observed parked at a local eatery rather than pumping septage and at no time thereafter was observed in the pumping of any septic tank system.

       
       

   27. As stated previously, Petitioner has the burden of proving its allegations. Associated Home Health Agency, Inc., supra. Thus, Petitioner must show by competent, substantial evidence that Respondent's truck was in use as a service truck involved in the disposal of septage for a septic tank service when the alleged violation of Rule 10D-6.52(3) was observed. Petitioner has not met that burden. Therefore, the fact that Respondent's truck did not contain the information required by 10D-6.52(3) without the further showing that the truck came within the purview of the 10D-6.52(3) requirement is insufficient to conclude Respondent's truck violated 10D-6.52(3) on June 10, 1986.

       
       

   28. Petitioner's letter of complaint alleged Respondent violated Rule 10D- 6.52(5), F.A.C., in that on June 10, 1986, "septage was observed leaking from the discharge device of the truck . . . creating a nuisance injurious to health." Chapter 10D-6 of the Florida Administrative Code contains a precise definition of what constitutes "septage" in Rule 10D-6.42(34): "a mixture of sludge, fatty materials, human feces and wastewater removal during the pumping of an onsite sewage disposal system."

       
       

   29. In order for Respondent to be found in violation of Rule 10D-6.52(5), Petitioner must show that Respondent's truck contained septage on June 10, 1986, and that the contents were leaking, spilling or creating a sanitary nuisance. Petitioner has presented no competent evidence as to the truck's contents that date. No samples were taken and no tests were done to determine what was in the truck.

       
       

   30. Respondent has failed to carry its burden of proof and Case No. 86- 2107 should be dismissed.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter

a Final Order and therein

1. Dismiss the complaint in Case No. 86-2107.

   
   

2. Find the Respondent guilty of the violations alleged in Case No. 86- 2633.

   
   

3. Dismiss the complaint in Case No. 86-2624.

   
   

4. Suspend the septic tanking cleaning service permits of George E. Bailey, doing business as Bailey's Septic Tank Service, for a period of one year and impose a fine of $500.00.

DONE and ORDERED this 15th day of October, 1986, in Tallahassee, Florida.

DIANE K. KIESLING

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 15th day of October, 1986.

APPENDIX TO RECOMMENDED ORDER

The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all proposed findings of fact submitted by the parties to this case.

Specific rulings on proposed findings of fact of Petitioner Case No. 86-

2107

1. Each of the following proposed findings of fact are adopted in

   substance or as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 2(2); 3(2).

2. Proposed findings of fact 4 and 5 are unnecessary.

Specific rulings on proposed finding of fact of Petitioner Case No. 86-2623

1. Each of the following proposed findings of fact are adopted in substance or as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(5); 3(5); 5(4); 6(4); 7(5); 8(4).

2. Proposed findings of fact 4, 9 and 10 are unnecessary.

3. Proposed finding of fact 2 is subordinate to the facts actually found.

Specific rulings on proposed finding of fact of Petitioner Case No. 86-2624

1. Each of the following proposed finding of fact are adopted in substance or as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(7); 1(7); 3(7); 4(8); 5(8); 6(8); 8(9); 9(10); 10(11); 11(11); 12(12).

2. Proposed findings of fact 13, 14, 15, and 17 are unnecessary.

3. Proposed findings of fact 7 and 16 are subordinate to the fact actually found.

Specific rulings on proposed findings of fact of Respondent Case No. 86-

2107

1. Proposed finding of fact 1 is adopted in substance as modified in

   Finding of Fact 1 and proposed finding of fact 2 is similarly adopted in Finding of Fact 2.

2. Proposed findings of fact 3, 4, 5, 6 and 7 are subordinate to the facts actually found.

3. Proposed finding of fact 8 is unnecessary.

Specific rulings on proposed findings of fact of Respondent Case No. 86-

2623

1. Each of the following proposed findings of fact are adopted in

   substance or as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(4); 2(4);; 3(4); 4(5).

2. Proposed findings of fact 5, 6, 7, 8, 9, and 10 are subordinate to the facts actually found.

3. Proposed findings of fact 11 and 12 are unnecessary.

Specific rulings on proposed findings of fact of Respondent Case No. 86-

2624

1. Each of the following proposed findings of fact are adopted in

   substance or as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(7); 3(13); 4(12); 6(8); 7(13); 8(13); 10(11); 11(11); 12(11).

2. Proposed findings of fact 2 and 9 are subordinate to the facts found.

3. Proposed finding of fact 5 is rejected as not supported by the credible evidence.

4. Proposed finding of fact 13 is unnecessary.

COPIES FURNISHED:

Anthony N. DeLuccia, Jr., Esquire Post Office Box 06085

Fort Myers, Florida 33906

Robert B. Bennett, Jr., Esquire

46 N. Washington Boulevard, Suite 13 Sarasota, Florida 33577

William Page, Jr., Secretary Department of Health and Rehabilitative Services

1323 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 86-002107

Orders for Case No: 86-002107