STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 94-6482

) DAVID D. SANDERS, d/b/a ) LEHIGH SEPTIC SERVICE, )

)

Respondent. )

)

RECOMMENDED ORDER

Final hearing was held on March 14, 1995. The parties, attorneys, witnesses, and court reporter attended the hearing in Ft. Myers. Robert E. Meale, Hearing Officer of the Division of Administrative Hearings, participated by videoconference from Tallahassee.

APPEARANCES

The parties were represented at the hearing as follows: For Petitioner: Susan Mastin Scott

Senior Attorney Department of Health and

Rehabilitative Services Post Office Box 60085

Ft. Myers, Florida 33906

For Respondent: Thomas B. Hart

Humphrey & Knott, P.A. Post Office Box 2449

Ft. Myers, Florida 33902-2449 STATEMENT OF THE ISSUE

The issue in this case is whether Respondent is guilty of violations in connection with the installation of onsite sewage disposal systems.

PRELIMINARY STATEMENT

By Administrative Complaint issued April 6, 1993, Petitioner alleged that Respondent violated Rules 10D-6.075(2)(a) and (4)(l)2, Florida Administrative Code, by misrepairing a septic tank drainfield at 19169 Acorn Road in Ft. Myers. The parties settled the case without Respondent admitting liability, but allowing Petitioner to "reinstitute" the proceeding if Respondent violated any other septic tank rules or statutes prior to May 31, 1994.

By Administrative Complaint issued on or about September 29, 1994, Petitioner alleged that Respondent violated Rules 10D- 6.075(2)(a), (4)(l)2, and (4)(n) by erroneously certifying an onsite sewage disposal system at 817 Gleason Parkway in Cape Coral to be in good working order.

The September 29 Administrative Complaint also alleges that Respondent thereby violated a condition of his one-year probation imposed upon him by the settlement in the earlier case.

The September 29 Administrative Complaint alleges that the subject violations are repeat violations under Rule 10D-6.0751(3) and seeks the revocation of Respondent's license.

Respondent requested a formal hearing.

At the hearing, Petitioner called ten witnesses and offered into evidence

24 exhibits. Respondent called one witness and offered into evidence two exhibits. All exhibits were admitted.

Neither party ordered a transcript. Both parties filed proposed recommended orders. Rulings on timely filed proposed findings of fact are in the appendix.

FINDINGS OF FACT

1. Respondent is registered with Petitioner for performing septic tank contracting services.

   
   

2. In early 1991, Mr. Dennis Scott purchased a single family residence at 19169 Acorn Road in Ft. Myers. He purchased it as a rental property.

   
   

3. About a year later, he began having problems with the septic tank system. He had the tank pumped out, but the problem returned a short time later.

   
   

4. Mr. Scott told his maintenance man to contract with someone to fix the septic tank system. The maintenance man contacted Respondent. They agreed that Respondent would repair the system for $925.

   
   

5. The record is silent as to specifically what the maintenance man told Respondent or what he told the maintenance man. In any event, Respondent and Mr. Scott did not converse. Respondent enlarged the existing drainfield, although the record does not indicate that he did so because he was asked to do so by the maintenance man or because Respondent thought that this repair would fix the problem.

   
   

6. On May 28, 1992, Respondent and a team of employees appeared at the Acorn Road address to repair the septic tank system. Respondent left the site shortly after the men began work.

   
   

7. Mr. Scott had nothing to do with the hiring of Respondent or even with paying him. Because Mr. Scott was unavailable, a friend wrote Respondent a check when the job was finished, and Mr. Scott later repaid the friend.

   
   

8. On August 25, 1992, the system backed up again. Mr. Scott was not alarmed because of recent heavy rains. When the system backed up again a month later, Mr. Scott called Respondent, but could not get a call returned at first.

   Eventually, someone at Respondent's business said that he would come out and take a look at the system.

   
   

9. In early December, 1992, the system backed up again and no one had come out to look at it from Respondent's business. At the request of Mr. Scott, another contractor visited the site and, on December 14, 1992, dug up the drainfield.

   
   

10. The original drainfield had been installed improperly so as to run slightly uphill. This caused the system to operate inefficiently, although hydraulic pressure was evidently strong enough to draw the sewage through the drainfield.

    
    

11. The record is unclear whether the extension installed by Respondent also ran uphill or whether Respondent improperly designed the extension. Mr. Scott and the second contractor testified that the extension ran uphill. However, one of Petitioner's inspectors inspected the drainfield addition before it was covered and certified that it was acceptable, which meant that it did not run uphill. The source of conflicting evidence, inasmuch as it comes from an employee of Petitioner, undermines Petitioner's case.

    
    

12. The record is equally deficient to hold Respondent liable for poor design of the Acorn Road drainfield. There is no indication of what Mr. Scott wanted or, more importantly, what the maintenance man told Respondent. In any event, the evidence does not establish that Respondent installed an uphill drainfield.

    
    

13. In early 1994, a house was listed for sale at 817 Gleason Parkway in Cape Coral. The listing agent informed the agent who had found a prospective buyer that there might be a problem with the septic tank system. The agent called Respondent's business and asked for a preclosing inspection of the septic tank system. The parties postponed the closing until the inspection could be completed and any necessary funds reserved to fix the system.

    
    

14. The drainfield for the septic tank system at 817 Gleason Parkway was elevated due to the relatively high water table in the area. Even so, the system was poorly designed because the drainfield was too low and too small, based upon applicable requirements of law at the time of the original construction of the system and its renovation five years ago.

    
    

15. Respondent was familiar with the system. He had reconstructed the system in 1990, although he did not redesign the new system, and had maintained the system since. He was aware that the tank had an automatic alarm that sounded when the fluid level became too high.

    
    

16. In fact, Respondent conducted a cursory inspection due to his reliance on the automatic alarm in the tank, the imminent availability of centralized sewer service in the area, and possibly his unwillingness to disappoint a real estate agent by jeopardizing a pending sale. Among other omissions was his failure to probe the drainfield to determine its condition.

    
    

17. Had Respondent conducted a competent inspection, he would have found that the stones in the drainfield were greasy, indicative of a failing system. Much of the time sewage water stagnated beside the drainfield mound. If pooled water were not present at the time of his inspection, the tall dollarweed growing on the mound should have alerted him to the prevailing damp conditions.

18. Additionally, Respondent should have noticed lawnmower tracks through the typically soaked areas around the drainfield, as well as the thick grass that was uncut due to the soaked ground under it. Although water may not have been erupting from the drainfield mound at the time of Respondent's inspection, a reasonably close examination of the area would have revealed a small hole where sewage had erupted in the recent past from the mound.

    
    

19. Instead, Respondent certified on April 4, 1994, that the "septic tank was in good working order." Respondent had been contacted to inspect the septic tank system, including the drainfield. Respondent was aware of the scope of his assignment, and his certification implied that the entire system was in good working order.

    
    

20. Within two weeks after Respondent's certification, the system failed completely. Petitioner ordered the new owner to incur substantial expenses to repair the onsite system until he could tie into centralized sewer services.

    
    

    CONCLUSIONS OF LAW

    
    

21. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes. All references to Rules are to the Florida Administrative Code.)

    
    

22. Section 489.556 authorizes Petitioner to suspend or revoke the certificate of registration of a septic tank contractor if the registrant violates any provision of Chapter 489, Part III, or any lawful order or rule of Petitioner; or has been found guilty of gross misconduct in the pursuit of the profession. Section 381.0065(3)(h) authorizes Petitioner to impose fines and suspend and revoke registrations for violations of Chapter 489, Part III or any rule promulgated under Section 381.0065.

    
    

23. Rule 10D-6.075(4)(l)2 provides that Petitioner may discipline a contractor for "gross negligence, incompetence, or misconduct" causing financial harm to any person.

    
    

24. Rule 10D-6.0751(1)(l)2 calls for a $500 fine and 90 day suspension for the first offense of gross negligence, incompetence, or misconduct causing harm to any person. The rule provides for a $500 fine and revocation for a repeat violation.

    
    

25. Rule 10D-6.0751(3) defines a repeat violation as "any violation on which disciplinary action is being taken where the same licensee had previously had disciplinary action taken against him or received a letter of warning in a prior case."

    
    

26. Petitioner must prove the material allegations against Respondent by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

    
    

27. Petitioner has proved by clear and convincing evidence that Respondent committed gross incompetence on the Gleason Parkway job, but not on the Acorn Road job. Petitioner also proved by clear and convincing evidence that a customer suffered monetary loss as a result of Respondent's acts and omissions.

    
    

28. This is not a repeat violation against Respondent. Petitioner brought an earlier disciplinary proceeding against him for the Acorn Road job, as well

as another job at Hunter Ranch, as to which Petitioner chose to present no evidence at the hearing. Respondent settled the claims without admitting liability. When Petitioner tried to prove the allegations underlying the only claim that it chose to pursue from the earlier proceeding, it could not do so. It is impossible therefore to treat the subject violation as a repeat violation.

RECOMMENDATION

It is hereby

RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order imposing against Respondent a $500 administrative fine and suspending his license for 90 days.

ENTERED on March 30, 1995, in Tallahassee, Florida.

ROBERT E. MEALE

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 on March 30, 1995.

APPENDIX

Rulings on Petitioner's Proposed Findings

1-2: adopted or adopted in substance.

3: rejected as recitation of evidence and subordinate. 4-5: adopted or adopted in substance.

6-15: rejected as recitation of evidence and subordinate. 16: adopted or adopted in substance.

17-19: adopted or adopted in substance.

20: rejected as unsupported by the appropriate weight of the evidence.

Rulings on Respondent's Proposed Findings

1-2: adopted or adopted in substance.

3-4: rejected as unsupported by the appropriate weight of the evidence, recitation of evidence, and subordinate.

5: rejected as irrelevant.

6: rejected as unsupported by the appropriate weight of the evidence, recitation of evidence, and subordinate.

7-9: rejected as subordinate and irrelevant.

10: rejected as irrelevant. The rule speaks of harm to any "person," not to a customer or other person in privity with the contractor.

11: rejected as unsupported by the appropriate weight of the evidence.

12: adopted or adopted in substance, but Petitioner's indirect responsibility does not excuse Respondent's grossly incompetent inspection of the system.

13-14: adopted or adopted in substance. 15: rejected as unnecessary.

16-17: rejected as subordinate.

COPIES FURNISHED:

Susan Mastin Scott, Senior Attorney

Department of Health and Rehabilitative Services

P.O. Box 60085

Ft. Myers, FL 33906

Thomas B. Hart Humphrey & Knott, P.A.

P.O. Box 2449

Ft. Myers, FL 33902-2449

Kim Tucker, General Counsel

Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, FL 32399-0700

Robert L. Powell Agency Clerk

Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, FL 32399-0700

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.

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,

Petitioner,

vs. CASE NO. 94-6482

RENDITION NO. HRS-95-245-FOF-HST

DAVID D. SANDERS, d/b/a LEHIGH SEPTIC SERVICES,

Respondent.

/

FINAL ORDER

This cause came on before me for the purpose of issuing a final agency order. The hearing officer assigned by the Division of Administrative Hearings in the above-styled case submitted a recommended order to the Department of Health and Rehabilitative Services. The Recommended Order entered March 30, 1995 by Hearing Officer Robert E. Meale is incorporated by reference.

RULINGS ON EXCEPTIONS RESPONDENT' S EXCEPTIONS

Respondent filed exceptions to findings of fact 16, 17 and 18, and to conclusion of law 23. My review of the entire record shows that the hearing officer's findings of fact are supported by competent substantial evidence. The exceptions to the findings of fact are denied.

Respondent's exception to conclusion 23 is denied. Financial harm was caused by Respondent's misconduct.

PETITIONER' S EXCEPTIONS

Petitioner HRS first excepts to conclusion of law 28 that this case does not involve a repeat violation. The hearing officer so concluded because Respondent did not, in two previous administrative complaints, confess to the alleged violations. Be that as it may, the two final orders stemming from the earlier administrative complaints impose fines for the violations alleged. The first final order recites that Respondent does not contest the allegations.

Clearly, the fines imposed previously make the instant violation a repeat violation. The exception is granted. Conclusion of law 28 is rejected.

The hearing officer recommends that a $500 fine be imposed and the Respondent's license be suspended for 90 days. The Department in its exceptions requests that the license be revoked. The exception is granted. The two "priors" embodied in the earlier Administrative Complaints are sufficient

grounds to increase the recommended penalty. It would be improper to require the Department to now prove the facts underlying the earlier Administrative Complaints merely because Respondent decided (1) not to contest the allegations and (2) to pay the fines at the time the previous Administrative Complaints arose. The hearing officer clearly erred in so altering the burden of proof.

The recommended penalty is increased from a 90-day suspension to revocation of Respondent's septic tank authorization and certification. The increased penalty is based upon the two previous Administrative Complaints and final orders admitted into evidence and which imposed disciplinary actions on the Respondent in the form of administrative fines.

FINDINGS OF FACT

The Department hereby adopts and incorporates by reference the findings of fact set forth in the Recommended Order, except where inconsistent with the above rulings on exceptions.

CONCLUSIONS OF LAW

The Department hereby adopts and incorporates by reference the conclusions of law set forth in the Recommended Order, except where inconsistent with the above rulings on exceptions.

Based upon the foregoing, it is

ADJUDGED, that the septic tank registration of Respondent David D. Sanders, d/b/a Lehigh Septic Service be revoked and that a $500 fine is hereby imposed on David D. Sanders, d/b/a Lehigh Septic Service.

DONE and ORDERED at Tallahassee, Florida, this 29th day of August, 1995.

Edward A. Feaver, Acting Secretary Department of Health and

Rehabilitative Services

Richard Hunter

Deputy State Health Officer

NOTICE OF RIGHT TO JUDICIAL REVIEW

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 ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

COPIES FURNISHED:

Thomas B. Hart, Esquire Humphrey & Knott P.A.

P. O, Box 2449

Ft. Myers, Florida 33906-2449

Susan Mastin Scott, Esquire HRS District 8 Legal Office

P. O. Box 60085

Fort Myers, Florida 33906

Judith Hartner, M.D., Director HRS Lee County Public Health Unit 3920 Michigan Ave.

Ft, Myers, Florida 33916

William Brewer

3335 S.E. 18th Place

Cape Coral Florida 33904

Gerald R. Briggs

HRS Onsite Sewage Program 1317 Winewood Blvd.

Tallahassee, Florida 32399-0700

Hearing Officer Robert E. Meale Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing FINAL ORDER has been sent by U.S. Mail or hand delivery to the above-named persons this 30th day of August, 1995.

Robert L. Powell, Sr.. Agency Clerk

Department of Health and Rehabilitative Services Building E, Suite 200 Tallahassee, Florida

Docket for Case No: 94-006482

Orders for Case No: 94-006482