STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH ) AND REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 94-0128

) RON BURKETT D/B/A/ WORKING ) MAN SEPTIC TANK, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this matter came on for hearing in Pensacola, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Diane Cleavinger, on September 6, 1994.

APPEARANCES

For Petitioner: Frank C. Bozeman, Esquire

Department of Health and Rehabilitative Services

District 1, Legal Office Post Office Box 8420

Pensacola, Florida 32505-8420 For Respondent: no appearance

STATEMENT OF THE ISSUES

The issue addressed in this proceeding is whether Respondent should be fined for violating provisions of Chapters 381, 386 and 489, Florida Statutes, governing septic tank installation and licensure.

PRELIMINARY STATEMENT

On July 20, 1993, the Department filed an Administrative Complaint against Respondent, Ron Burkett, d/b/a Working Man Septic Tank. The Administrative Complaint alleged that Respondent should be administratively fined for violating Chapter 10D-6, Florida Administrative Code. Respondent disputed the allegations of the complaint and requested a formal administrative hearing. Respondent's request along with the Administrative Complaint were forwarded to the Division of Administrative Hearings.

At the hearing, Petitioner called three witnesses and offered five exhibits into evidence. Respondent did not appear at the hearing.

Neither party filed Proposed Recommended Orders.

FINDINGS OF FACT

1. On August 3, 1989, and again in March, 1992, Respondent was hired by Janet Thompson to perform septic tank work on her septic tank system located at her home at 3168 Pins Lane, Gulf Breeze, Santa Rosa County, Florida. Her system was backing up into her house. Ms. Thompson contacted Mr. Burkett through his advertisement for Working Man Septic Tank in the Southern Bell Yellow Pages.

   
   

2. Mr. Burkett recommended that a new drainline or finger be added to her septic system. Mr. Burkett did put in a new finger. However, the new finger was incorrectly installed, in that the drainline exceeded the maximum allowable width and did not have the minimum depth of aggregate in violation of the Rules of the Department regarding the installation of drainlines for septic tank systems.

   
   

3. Mr. Burkett's work seemed to solve Ms. Thompson's backup problem. However, a few months later her septic tank system began backing up again. Ms. Thompson again called Mr. Burkett to come and fix the problem.

   
   

4. Mr. Burkett recommended another drainline in an "L" shaped configuration. Mr. Burkett installed the new finger. However, he again installed the line incorrectly and violated the Department's Rules, in that the drainline exceeded the maximum allowable width and did not have the minimum depth of aggregate.

   
   

5. Ms. Thompson's septic tank problem was corrected for a few months and then began backing up once more. Ms. Thompson called another contractor who finally solved the problem by properly installing an extensive drainline system by building the low area of the drainfield and utilizing three truckloads of aggregate.

   
   

6. In May, 1990, William Davenport hired Respondent to do some preventive installation of a new drainfield to the septic tank system located at his home at 6220 East Bay Boulevard, Gulf Breeze, Santa Rosa County, Florida. Mr. Burkett only performed part of the work for which he was hired. The work Respondent did perform was incorrect and violated the Department's Rules regarding the installation of drainfields and lines for septic tank systems. Specifically, the work performed by Respondent was incorrect in that the drainfield exceeded the maximum allowable width, no barrier of building paper or other suitable material was installed to protect the infiltration bed and the aggregate did not meet the minimum depth required. Rules 10D-6.056(4)(a), (d) and (e), Florida Administrative Code.

   
   

7. Finally, throughout the time period of the repair work on the Thompson and Davenport properties Respondent was not registered or licensed by the Department to perform such services and was advertising to provide such services under the name "Working Man Septic Tank Co." in the Southern Bell Yellow Pages. Both the lack of a registration and the advertisement of an unlicensed business violate the Rules of the Department. Rule 10D-6.075(4)(a), Florida Administrative Code.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1987).

9. Chapter 10D-6, Florida Administrative Code, is the Chapter which regulates the installation of onsite sewage disposal systems and the registration of onsite sewage disposal contractors in the State of Florida. Chapter 10D-6, Florida Administrative Code, states in part:

   
   

   10D-6.056 Construction Standards for Drainfield System.

   * * *

   (4) Drain trenches and absorption beds -- drain trenches and absorption beds are the standard subsurface drainfield systems used for disposing of effluent from septic tanks or other sewage waste receptacles. When used, these systems shall be constructed as specified below.

   (a) When utilizing the standard drain trench method, the width of the trench at the bottom shall be 18 to 36 inches. There shall be a minimum separation distance of 2 feet between the sidewalls of adjacent trenches.

   * * *

   1. Coarse or lightweight aggregate shall encase the distribution pipe and have a total depth of at least 12 inches extending throughout the width of the trench or absorption bed.

   2. The aggregate in place shall be protected from infiltration of earth backfill by an effective barrier of untreated building paper, polyester bonded filament or other acceptable material as determined by the department.

   * * * 10D-6.070 General Provisions.

   1. Persons shall not hold themselves out as septic tank contractors or contract to provide septic tank services in the state unless registered by the department in accordance with the provisions of this rule.

   2. Persons licensed pursuant to subsection 489.105(3)(m), F.S., shall not be prohibited by this Part from engaging in the profession for which they are licensed.

   * * * 10D-6.071 Definitions.

   (1) Septic Tank Contractor -- a person respons- ible for a contracted project who, for compensation, undertakes to, submits a bid to, or does himself or by others construct, install, alter, repair, modify, or maintain an onsite sewage disposal system. A contractor must possess the experience, knowledge, skill and ability to provide services in the septic tank trade pertaining to installation, maintenance, construction, alteration, repair, pumping or design where not prohibited by law, of any kind of onsite sewage disposal system or its components.

   * * *

   10D-6.072 Requirements for Registration.

   (1) Persons subject to registration -- A person shall be subject to the requirements of this rule

   if he or she contracts to provide services to the public or holds himself or herself out as being capable of performing services related to any of the following activities in the onsite sewage disposal industry regulated by the department.

   1. Installation of onsite sewage disposal systems.

   2. repair of onsite sewage systems.

   3. Modification of onsite sewage disposal systems.

   4. Maintenance of onsite sewage disposal systems.

   5. Septic tank pumping and septage disposal services, excluding companies which only provide portable toilet services.

   * * *

   (4) The following actions by a person included under this rule shall be deemed unethical and subject to penalties as set forth in section 10D-6.075:

   (a) Providing contracted services without obtaining registration from the department, failure to obtain a certificate of authorization for a firm which provides contracted services, acting under a name not registered or authorized by the department, offering to provide septic tank contracting services without maintaining

   a current registration or authorization.

   
   

10. Petitioner has the burden to establish by clear and convincing evidence that Respondent violated the above listed sections of Chapter 10D-6, Florida Administrative Code, under the allegations of the Administrative Complaint. In this case, Petitioner has made such a showing.

    
    

11. The evidence was clear that Respondent was not registered or licensed as an onsite sewage disposal contractor during the time period of the work he performed for the Ms. Thompson and Mr. Davenport and was advertising for such services in the yellow pages. Failure to obtain registration as an onsite sewage disposal contractor and advertising for such services are violations of 10D- 6.075(4)(a), Florida Administrative Code.

    
    

12. Additionally, Respondent repaired two onsite sewage disposal systems in violation of the standards set forth in Chapter 10D-6, Florida Administrative Code. The drainfields in both cases did not meet minimum size requirements imposed by Rule 10D-6.056(4)(a), Florida Administrative Code and did not contain the requisite amount of aggregate required in Rule 10D-6.056(4)(d), Florida Administrative Code. Finally, The drainfield involved in the Davenport repairs did not have a suitable barrier to protect the infiltration bed as required in Rule 10D-6.056(4)(e), Florida Administrative Code.

    
    

13. 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. The guideline penalties are appropriate in this case. Therefore, since Respondent is guilty of committing four violations of the Department's Rules, a fine in the amount of $2,000.00 should be imposed against Respondent.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law it is, accordingly,

RECOMMENDED,

that the Department impose on Respondent a fine of $2,000.00.

DONE and ORDERED this 9th day of November, 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

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

DIANNE CLEAVINGER

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 9th day of November, 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: 94-000128

Orders for Case No: 94-000128