STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES )

)

Petitioner, )

)

vs. ) CASE NO. 93-4836

)

WILLIE HARMON & HERMAN S. )

CAMPBELL, d/b/a HARMON )

SEPTIC TANK, INC. )

)

Respondents. )

)

RECOMMENDED ORDER

This matter came on for hearing in Destin, Florida, before David M. Maloney, Hearing Officer of the Division of Administrative Hearings, on October 4, 1994. Proposed findings of fact in petitioner's proposed recommended order have largely been adopted, in substance, insofar as material.

APPEARANCES

For Petitioner: Frank C. Bozeman, III, Esquire

Assistant District Legal Counsel

160 Governmental Center Pensacola, Florida 32505-1420

For Respondents: Respondents did not appear personally or through counsel.

PRELIMINARY STATEMENT

On August 24, 1993, the Agency Clerk for the Department of Rehabilitative Services, (the "Department"), filed an Amended Notice with the Division of Administrative Hearings. The Notice advised the Division that it had received a request for a formal hearing from Respondents, Willie C. Harmon and Herman S. Campbell d/b/a Harmon Septic Tank, Inc.

Attached to the Notice was an Administrative Complaint issued by Richard G. Hunter, Assistant Health Officer for Environmental Health, informing Respondents Harmon, Campbell and Harmon Septic Tank, Inc., of the intention of the Department in conjunction with the HRS Santa Rosa County Public Health Unit to revoke the Respondents' septic tank contracting registrations and authorization and to impose an administrative penalty in the amount of two thousand dollars.

The complaint charged Respondents with four violations: three of administrative rules governing standards for onsite sewage disposal systems, Rules 10D-6.075(4)(b)(2), 10D-6.075(1)(a), 10D-6.075(4)(1)(2), Florida

Administrative Code; and one statutory, Section 386.041, Florida Statutes.

At hearing, the Department moved to amend the count charging a violation of Rule 10D-6.075(1)(a) to remain the same in narrative but to correct the citation of the rule to Rule 10D-075(2)(a), Florida Administrative Code. The motion was granted.

STATEMENT OF THE ISSUES

Whether Petitioner should take disciplinary action against Respondents for the reasons alleged in the Administrative Complaint?

FINDINGS OF FACT

1. On behalf of his brother, Mr. Howell Parish, who lives in Orange Park, Florida, Mr. James A. Parish contracted with Respondents to restore efficient of operation the septic tank system at 5469 Soundside Drive in Santa Rosa County, premises owned by Howell Parish. Respondents agreed to make the restoration by providing a fiberglass approved tank with a fiberglass lid, install a new drain field and haul in dirt to build up a low area of the existing drain field.

   
   

2. Respondents undertook repair activities but without a permit. Respondents did not obtain an inspection of their work after they had finished.

   
   

3. On June 10, 1992, after the repairs were supposed to have been done, James Parish paid Respondent Harmon for the job with a personal check in the amount of $1,498.48.

   
   

4. On the same date, Respondent Harmon signed a receipt for payment. The receipt shows as work performed, "Demucking and Installing one 1050 Gal Tank &

   200 Sq.' Drain Field."

   
   

5. Ms. Jo Ann Parish, spouse of Howell Parish, reimbursed James Parish for the work done on Soundside Drive.

   
   

6. Shortly thereafter, the septic tank "caved in and the waste was boiling to the surface." (Tr. 16.) Howell Parish met with Larry W. Thomas, Environmental Health Supervisor for the Santa Rosa County Health Department, to discuss the situation.

   
   

7. Following the meeting, Mr. Parish called Respondent Harmon and told that him that the problem needed to be straightened out and that he should contact Mr. Thomas promptly because his license could be in danger. Respondent promised to correct the problem and to reimburse Mr. Parish for the job but he did neither. He did not contact Mr. Thomas either.

   
   

8. Mr. Thomas, on behalf of the County, investigated the site of the septic tank repair. He found that Respondents had installed a broken fiber glass tank when fiberglass tanks are not allowed at all in Santa Rosa County because of their structural inadequacy. In addition to the tank being cracked, it had a cracked lid. Another hole in the tank that should have been covered with a lid was covered with a piece of plywood. The plywood was kept in place by dirt fill.

   
   

9. The drain field did not meet the minimum standards required by the County. Most significantly, it was installed beneath the water table. There was a laundry discharge pipe which was not connected to the tank as required.

10. The site of the septic tank repair by Respondents was a sanitary nuisance. The broken condition of the tank allowed raw sewage to overflow. The drain field was emptying raw sewage directly into ground water. The laundry discharge was discharging into the ground rather than being hooked up to the septic tank.

    
    

11. Mr. Parish was forced to hire another septic tank service to restore the system to good working order. The work, performed by Bettis Septic Tank Service, was billed to Mr. Parish at a cost of $6400.00.

    
    

    CONCLUSIONS OF LAW

    
    

12. Because this matter was referred by the Department to the Division of Administrative Hearings, the Division has jurisdiction over the formal proceeding. Section 120.57(1)(b)3., F. S.

    
    

13. Respondents' failure to obtain a permit and obtain an inspection of the work performed under contract to Mr. Parish is unethical, a permit violation, and subject to the penalties in Rule 10D-6.0751, Florida Administrative Code. Rule 10D-6.075(4)(b)2., F. A. C.

    
    

14. Contrary to Rule 10D-6.075(2)(a), Florida Administrative Code, Respondents repaired an onsite sewage disposal system in violation of the standards set forth in Chapter 10D-6, Florida Administrative Code. The installation of the broken fiberglass tank without proper lids violated the general standards for treatment receptacles of onsite sewage disposal systems found in Rule 10D-6.054, Florida Administrative Code. The drainfield did not meet minimum size requirements imposed by Rule 10D-6.0571, Florida Administrative Code. The drainfield installed beneath the water table failed to meet the requirement of Rule 10D-6.047(2), Florida Administrative Code, that the water table elevation be at least 24 inches below the bottom surface of the drainfield trench or absorption bed. The failure to connect the laundry discharge to the septic tank violated Rule 10D-6.048(4), Florida Administrative Code, which governs laundry waste flows.

    
    

15. The repair work conducted by Respondents converted the septic tank system to a nuisance injurious to health as defined in Section 380.041(1)(b), Florida Statutes.

    
    

16. Respondents' work for Mr. Parish was incompetent and they committed gross negligence which caused monetary harm to Mr. Parish.

    
    

17. It is Rule 10D-6.0751, Florida Administrative Code, which sets out disciplinary guidelines for violations of Chapter 10D of the Code and other violations of law. For a first violation, most of the guidelines call for a

$500.00 fine for each violation. Revocation is not ordinarily called for until violations are repeated by the holder of a certificate of authorization. But, Rule 10D-6.074, Florida Administrative Code, states that certificates of registration may be revoked not only upon a showing that a registrant has violated provisions of Chapter 10D but also when "found guilty of gross misconduct in the pursuit of his or her profession." Rule 10D-6.074(1)(c), Florida Administrative Code. Respondents are guilty of gross misconduct both in the installation of a broken onsite sewage disposal system which threatened to contaminate ground water and was likely injurious to human health and in causing grief and monetary harm to Mr. Parish. Respondents careless disregard for human health and the protection of precious ground water was further evidenced by the failure to obtain a permit and to have the work inspected as required by law.

RECOMMENDATION

It is, accordingly, RECOMMENDED,

that Respondents' certificates of registration be revoked and that the Department impose on Respondents a fine of $2000.00.

DONE and ENTERED this 28th day of October, 1994 in Tallahassee, Florida.

COPIES FURNISHED:

Frank C. Bozeman, III

Asst. District Legal Counsel D H R S

160 Governmental Center Pensacola, FL 32501

Kenneth P. Walsh Attorney at Law

P. O. Box 1208

Shalimar, FL 32505-0420

Robert L. Powell, Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, FL 32399-0700

Kim Tucker General Counsel

Department of Health and Rehabilitative Services

1323 Winewood Boulevard Building One, Room 407 Tallahassee, FL 32399-0700

DAVID M. MALONEY

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 28th day of October, 1994.

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 93-004836

Orders for Case No: 93-004836