STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 95-5973

) WOODY'S SEPTIC TANK SERVICE, )

)

Respondent. )

) DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 96-0573

)

RAYCO PROPERTIES, INC. )

d/b/a WOODY'S SEPTIC TANK )

SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on June 25-26, 1996, in Daytona Beach, Florida, before Ella Jane P. Davis, a duly assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Charlene Peterson, Esquire

VOLUSIA COUNTY PUBLIC HEALTH UNIT

501 South Clyde Morris Boulevard Post Office Box 9190

Daytona Beach, Florida 32120

For Respondent: Dennis K. Bayer, Esquire

COBB, COLE and BELL, P.A.

Post Office Box 2491

Daytona Beach, Florida 32115 STATEMENT OF THE ISSUE

Respondents were charged in DOAH Case No. 95-5973 by citation and in DOAH Case No. 96-0573 by administrative complaint in five separate acts with numerous violations of Chapters 381 and 486 F.S. and Chapter 10D-6 F.A.C., dealing with onsite sewage disposal systems.

PRELIMINARY STATEMENT

Respondents received two agency citations requesting fines, one for "The Pine Street Job" and the other for "The Deltona Hills Golf & Country Club Job." Respondents requested a formal hearing pursuant to Section 120.57(1) F.S. This became DOAH Case No. 95-5973.

The agency filed an administrative complaint against Respondents, alleging violations on the "Bridal Path Lane," "Clyde Morris Boulevard," and "Avocado Street" jobs. The administrative complaint sought an administrative fine and revocation of Donald P. Roberts' septic tank contractor's registration and Woody's Septic Tank Service's company authorization. Respondents requested a formal administrative hearing pursuant to Section 120.57(1) F.S. This became DOAH Case No. 96-0573.

The cases were consolidated.

At formal hearing, Petitioner Department of Health and Rehabilitative Services (DHRS) presented the oral testimony of Gerald Briggs, Travis Vickers, Andrew Trapp, Charles Schelbe, and Sharon Jarosz. Petitioner had 14 exhibits admitted in evidence, one of which may be considered only for aggravation of penalty, if and when it is determined that any penalty should be imposed.

Respondents presented the oral testimony of Andy Johnson, Willie Suggs, Donald P. Roberts, Glen Heinrichs, Jerry Thompson, and Greg Thompson, and had nine exhibits admitted in evidence.

The transcript of proceedings was filed with the Division of Administrative Hearings on July 25, 1996.

In the absence of the undersigned, the parties jointly sought, and received, an oral order from District Administrative Law Judge Charles A. Adams extending the date for filing proposed orders.

The parties' respective posthearing proposals have been considered and utilized in this recommended order as appropriate.

The previous obligation to comment on the fact proposals found within the proposed recommended orders through inclusion of an appendix to the recommended order was repealed on October 1, 1996, when Chapter 120, F.S., was amended by Chapter 96-159, Laws of Florida. Therefore, the recommended order has been entered without an appendix.

FINDINGS OF FACT

1. Rayco Properties, Inc. d/b/a Woody's Septic Tank Service is a company authorized by the State of Florida to perform septic tank construction and repair services. All of its contractors and other employees have practiced in the septic system business for many years.

   
   

2. The registered contractor, who is the company qualifier, is the person responsible for all contracting services performed by the septic company and for compliance with the applicable regulatory statutes and rules.

3. Donald P. Roberts is a registered septic tank contractor for Woody's Septic Tank Service. At all times material to these causes, he was the company's sole qualifier. At all times material, he was responsible for obtaining all necessary permits for the company.

   
   

4. DHRS is the agency responsible for septic contractor registration, septic tank company authorization, and the enforcement of the statutes and rules pertaining to registration and authorization pursuant to Chapters 381 and 489, Part III, F.S. and Chapter 10D-6 F.A.C. This includes the authority to cite, fine, and to suspend or revoke registrations and authorizations.

   
   

5. Donald P. Roberts has never previously been cited by the agency.

   
   

6. Before 1991, permits were not required for repairs to septic systems.

   
   

7. However, at all times material to these causes, repair, installation, and abandonment permits had to be obtained from DHRS, usually through its local units in the respective county public health unit offices. These offices take septic system permit applications, perform site evaluations, issue permits, and perform final inspections.

   
   

8. At all times material, no permits were required for replacing dosing pumps, fixing cracked dosing tanks, maintenance of existing systems or service of existing systems. No permits were necessary for replacing a D (or distribution) box, which is a non-mechanical, non-electrical item that serves as a distribution point for pipes.

   
   

9. At all times material, the act of installing a dosing tank was a repair that required a permit.

   
   

10. At all times material, the act of abandoning a septic tank (pumping it out, punching a hole in it, filling it with dirt and covering it or hauling it away) also required a permit.

    
    

11. The standard operating procedure for obtaining a septic system permit is as follows: 1) the contractor or landowner submits a permit application with a plot/site plan to the agency's county office; 2) the agency conducts a site evaluation, sometimes including soil borings and/or a percolation test; 3) the agency reviews and issues the permit; 4) the contractor performs the permitted work; 5) the contractor calls the agency for inspection before covering up with earth; 6) agency inspection occurs and the project is approved OR the contractor is told of a violation, perhaps cited therefor, and must fix any problems pointed out by the agency inspector. If there is a violation to be corrected, the contractor is supposed to call DHRS for re-inspections until the problem is solved and the job is approved by the agency.

    
    

12. Some jobs are so routine that some county offices do not do a site inspection before septic system work is done or reinspect after septic system work is done. This appears to be discretionary within the local office.

    
    

13. However, if a violation is noted, the problem must be corrected and reinspected or negotiated out. See Finding of Fact 15.

    
    

14. An approved plot/site plan becomes part of the permit when the permit is issued, and contractors are expected to adhere to the combined items. Permits state the requirements for the project or job.

15. If a contractor experiences problems on a particular job, such as a well that does not show up on the plot/site plan, he is expected to contact the local public health unit to try to resolve the issue. "Resolution" has traditionally been to revise the plot/site plan or modify the permit. In past years, this has been an informal procedure, sometimes accomplished by telephone calls from the field, sometimes by negotiations in the public health office.

    
    

16. All but one of the alleged violations (the Mahalik property) in these causes arose after DHRS decided to strictly require contractors to stop work and apply for and receive a formal modification of the permit or a new permit when unforeseen problems were encountered on any particular job. This procedure was codified in new Rule 60D-6.044(5) F.A.C., effective January 3, 1995.

    
    

17. At approximately the same time, DHRS also adopted a policy of forbidding its personnel to discuss such field problems with, or to issue permits to, anyone other than the qualifying registered contractor for each authorized septic tank company.

    
    

18. The agency has pointed to no specific statute or rule which provides that only a qualifying registered contractor may pull a DHRS permit or which forbids DHRS personnel discussing modifying a permit with any other company employees.

    
    

19. However, it is clear that only registered contractors may pull permits. Two exceptions are recognized: A landowner or homeowner may pull a permit for septic system work with septic system contractors as their "agents"; and in locations where DHRS has an agreement with a city or county plumbing permit office, DHRS acknowledges the local plumbing permits and does not require owners or plumbers to also pull a separate septic system permit from DHRS's local public health unit.

    
    

    I. Case No. 95-5973

    1. Deltona Hills Golf & Country Club

       
       

20. Respondents applied for a permit to do repairs to a septic system for Deltona Golf & Country Club on August 7, 1995.

    
    

21. A dosing tank is a mechanical device which lifts wastewater to a drainfield.

    
    

22. DHRS issued a permit to Respondent to replace the dosing tank with a 900 gallon tank. The original tank being replaced was a 50 gallon tank.

    
    

23. Respondents properly abandoned the existing 50 gallon dosing tank and installed the high water alarm, but they installed a 750 gallon tank, contrary to the express terms of the permit.

    
    

24. Travis Vickers, then DHRS's Environmental Specialist in the Volusia County Health Unit, ultimately cited Respondents for not complying with the permit and for not calling for re-inspection after the discrepancy in tank size was brought to their attention.

    
    

25. Respondents' reason for installing the 750 gallon tank was that they had used a 3:1 ratio to the drainfield which is codified in the agency rules. Thereby, they determined that a 714 gallon tank would be the ideal size tank to install. Then they simply installed the next largest size tank without reference to the permit.

26. Respondents' employees also maintained that when Mr. Vickers notified them they had installed the wrong size tank, they contacted someone else in the local county public health unit and that person orally approved the smaller size tank they had already installed. Therefore, they did not call Mr. Vickers again for re-inspection. The person who supposedly gave the oral authorization was not called to testify, and no written permit modifications or amendment were made, as required by the agency rules then in effect. In this light, Respondents' excuses for failing to install the 900 gallon tank according to permit specifications and failure to call for a re-inspection are not credible.

    
    

27. Therefore, it is clear that Respondents installed a smaller tank contrary to the permit specifications and received no modification of permit as required by agency rules in effect at the material time.

    
    

28. In making the foregoing findings of fact, I have not overlooked the fact that there are several ways to calculate the appropriate size of a dosing tank; that during his testimony, Mr. Vickers, himself, demonstrated at least two ways of calculating; or that Mr. Vickers' 900 gallon figure on the permit arose in part from considerations in addition to the published agency rules, which additional considerations were the result of workshops with septic system contractors and DHRS personnel which had been reduced to written form in a document nicknamed "the memo from hell," to which Respondent had no access in August 1995. However, that memorandum was designed to help DHRS personnel interpret the code and issue the permit. Its use by agency personnel in issuing a permit does not absolve the contractor of the responsibility to install the system according to the permit as issued, nor does it allow the contractor to unilaterally recalculate tank capacity at will on some other basis.

    
    

29. At Deltona Golf & Country Club, Respondents simply did not follow the permit requirements or replace the wrong size tank and call for re-inspection. The fact that Respondents were able to demonstrate alternative methodologies of computation does not change those salient facts.

    
    

    1. Case No. 95-5973

       1. Pine Street, Enterprise Florida a/k/a the Gleasons' Job

       
       

30. Respondents applied for a repair permit for 450 Pine Street, Enterprise, Florida. Mr. and Mrs. Gleason, referred to by some witnesses as "the homeowners," were actually leasing the property.

    
    

31. DHRS issued the permit to Respondents on October 3, 1995. It was valid for 90 days.

    
    

32. The repair job occurred during a rainy period when the water table was high. Respondents had to drill wellpoints to lower the water table. Further, they were hindered by rain, mud, muck, and debris on the property. A two days' job turned into 15 days' work.

    
    

33. Respondents finally installed the drainfield in a slightly different location than the approved location shown on the plot/site plan. Although contrary to the permit, Respondents' installation met minimum 10D-6 F.A.C. requirements, including those for setbacks. Respondents' employees testified that they chose to place the drainfield in an unpermitted location so as accommodate the Gleasons' urgent need for a septic system, because they considered the different location necessary to comply with Chapter 10D-6 F.A.C.'s setback requirements, and because the northeast corner where the

    drainfield had been permitted was covered with too much muck, and too many stumps, old tires, and pieces of tin and fencing to proceed there.

    
    

34. In the experience of Respondent Donald P. Roberts, and Willie Suggs and Jerry Thompson, who also are registered septic contractors, drainfields are not always installed according to the plot/site plan, but the location may be negotiated with DHRS prior to inspection. Respondents claimed to have received oral authorization to relocate the drainage field from an official in the local public health unit, but that person did not testify. Also, Respondents admitted they never applied for a permit modification in writing or obtained an amended permit, as required after January 3, 1995. Therefore, the concept of an oral permit modification is not credible. See, Findings of Fact 15-16.

    
    

35. Mr. Vickers inspected the work performed by Respondents on October 17, 1995. He arrived five hours late, creating bad feelings in Respondents.

    
    

36. On October 18, 1995, Mr. Vickers notified Respondents that they had located the drainfield in a different area than the area shown on the plot/site plan and approved by the permit.

    
    

37. After the violation notice was issued, Mr. Vickers refused to talk to anyone associated with the Respondent company except Donald P. Roberts, the qualified registered contractor, thereby creating further bad feelings in Respondents. To put it mildly, communication between the parties broke down completely.

    
    

38. The Gleasons had sent a demand that Respondents complete the Pine Street project by October 25, 1995, but then, approximately October 18, 1995, they hired Acme Septic to complete the project. On October 19, 1995, Acme pulled a DHRS permit for the same repair project in which Respondents were mired at the Pine Street location. Acme then installed the drainfield in the same general area as shown on Respondents' permit's original plot/site plan. In doing so, Acme used Respondents' materials and built on their prior work. Acme successfully installed the drainfield as required by the permit and all agency rules.

    
    

39. Under the circumstances, Respondents felt they had no duty to call Mr. Vickers for re-inspection of their discarded work.

    
    

40. Despite considerable use of the word "abandonment," Respondents technically remain charged only with failure to comply with the permit and failure to call for re-inspection on the Pine Street Job.

    
    

    1. Case No. 96-0573

    1. Avocado Street a/k/a The Hale Project

       
       

41. The Avocado Street Project was a private residence to which Respondents were originally called to do repair work on a septic system.

    
    

42. Many septic repairs do not require a permit. See Findings of Fact 8-

1. Also, repair permits are not required where a problem is discovered on a larger project which has already been permitted, but if contractors discover a problem during the course of an unpermitted repair, which problem would otherwise require its own permit, contractors were expected, post-January 3, 1995, to stop work and obtain an (amended) permit. See Rule 10D-6.044(5) F.A.C. and Finding of Fact 16.

   1. Replacement of "like kind" parts of a dosing tank such as a pump, do not require a permit. Repair of a crack in a dosing or septic tank does not require a permit. Replacement of an entire dosing tank or septic tank unless there is already an umbrella permit does require a new permit. See above, Findings of Fact 9 and 10.

      
      

   2. It is not standard practice for DHRS to inspect/evaluate the site before a replacement permit or an abandonment permit is issued. Such inspections are discretionary in practice and such permits are often issued on the spot at the time of application. See Findings of Fact 12 and 13.

      
      

   3. At Avocado Street, Respondents pumped out the Hales' septic tank and discovered that the dosing pump was not working. Respondents replaced the pump, but also discovered that the existing dosing tank was inadequate. Due to the inadequacy of the existing dosing tank, dosing pumps repeatedly had burned up. Respondents sent an employee to pull a DHRS permit for replacement of the existing dosing tank, which permit they felt could be pulled immediately. Then they proceeded, without permit in hand, to replace the dosing pump and install a larger dosing tank.

      
      

   4. Andrew Trapp, DHRS' Environmental Health Specialist in the Orange City office, became aware of the Avocado Street situation only because of a phone call from an employee of the Respondent company asking if a permit had ever been issued. Because a permit never had been issued, Trapp's suspicion was aroused. Therefore, he performed the discretionary onsite inspection and found the new dosing tank.

      
      

   5. The Avocado Street work of Respondents did not represent a public nuisance. The agency intentionally and violationally issued an after-the-fact permit to Mr. Hale with an employee of Respondent as Mr. Hale's agent on August 23-24, 1995. Any other suggested dates for this permit application are rejected as computer error.

      
      

   6. The project was reinspected by agency personnel who oversaw Respondents' employees repair a tank leak. DHRS finally approved the whole project.

      
      

      II. Case 96-0573

      1. Clyde Morris Boulevard a/k/a The IWS or BFI Job

         
         

   7. The Clyde Morris Boulevard property was leased by IWS/BFI from the City of Daytona Beach.

      
      

   8. Mastercraft Plumbing was the prime contractor responsible for connecting an existing septic system on the Clyde Morris Boulevard property to a public sewer system.

      
      

   9. Mastercraft hired Respondents to handle the abandonment of a septic tank which Mastercraft was replacing. Abandonment is more fully described above in Finding of Fact 10.

      
      

   10. Although DHRS presented some hearsay to the effect that Mastercraft expected Respondents to obtain the DHRS abandonment permit, there is no direct evidence for such hearsay to support or explain. Contrary evidence was presented that persons within the IWS/BFI hierarchies had led Respondents to believe that Mastercraft had pulled the necessary DHRS permit or an umbrella

       plumbing permit which would cover Respondents' abandonment activities. See, Finding of Fact 19. However, there is no direct, competent, or conclusive evidence one way or the other.

       
       

   11. Respondents' actual abandonment work was completed on or about April 10, 1995.

       
       

   12. Respondents charged Mastercraft for the work but not for pulling any abandonment permit from DHRS, because Respondents did not pull any such permit.

       
       

   13. Once Respondents discovered that Mastercraft had not pulled the DHRS septic permit, Jerry Thompson, as an employee of Respondent company, pulled a permit as Mastercraft's agent on May 9, 1995. As previously stated, pre- inspection is not standard practice and DHRS abandonment permits are often issued in a single day.

       
       

       II. Case No. 96-0573

       1. Bridal (or Briddle) Path Lane a/k/a Oakridge Acres a/k/a Mrs. Mahalik's Property

       
       

   14. Respondents were called to repair a septic tank at Mrs. Mahalik's home on Bridal Path Lane in October 1994.

       
       

   15. Most of the work did not require DHRS permits. See Findings of Fact 8-10. Respondents charged Mrs. Mahalik, among other things, for installing a new 300 gallon dosing tank.

       
       

   16. Approximately four months later, in February 1995, Mrs. Mahalik telephoned the Flagler County Public Health Unit and asked whether Respondents' repair had been permitted. DHRS had no record of it.

       
       

   17. An after-the-fact application was made for the job and a permit for the Mahalik job was issued in March 1995 to Mrs. Mahalik with Respondent company as her agent.

       
       

   18. Replacement of a dosing tank required a permit under Rule 10D-6.043

       F.A.C. in 1994 but Rule 10D-6.044(5) F.A.C., requiring the stoppage of work while applying for an amended permit, did not exist until January 3, 1995.

       
       

       CONCLUSIONS OF LAW

       
       

   19. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Section 120.57(1), F.S.

       
       

   20. The citations and administrative complaint clearly charge Respondents with installing or abandoning without a permit and with installing contrary to an existing permit (without permit amendment), in repeated instances, all within a one year period.

       
       

   21. The citations for the 1995 Deltona Golf & Country Club and Pine Street jobs charged violations of Section 381.0065 F.S. and Rules 10D-6.043(2) and 10D- 6.075(4)(d) F.A.C.

       
       

   22. The administrative complaint for the 1995 Avocado Street and Clyde Morris Boulevard jobs and for the 1994 Bridal Path Lane job clearly charged

       violations of Sections 381.0065(3)(b) and (4) F.S. and Rules 10D-6.043(1) and (2), 10D-6.075(4)(b)2 and 10D-6.0751(4)(b)2 F.A.C. The last of which did not exist in 1994 for the Mahalik job.

       
       

   23. However, due to admitted errors of draftsmanship of the citations (DOAH Case No. 95-5973) and the inartful construction of the administrative complaint (DOAH Case No. 96-0573), precisely which violations were alleged against which set of circumstances required clarification. That was accomplished by DHRS' Request for Official Recognition which has been made a part of this record by agreement of Respondents. (Tr - 14-16, 145) 1/

       
       

   24. Charges in the administrative forum are by notice and Respondents have had opportunity to be heard and present evidence on all the allegations considered here.

       
       

   25. In DOAH Case No. 95-5973, DHRS seeks to levy a fine of $350 for Respondents' failure to comply with the permit requirements by failing to install the required size dosing tank, and a fine of $250 for failure to call for re-inspection at the Deltona Golf & Country Club, on or about August 7, 1995. The January 3, 1995 rule amendments apply to this incident. The violations specified in the Request for Official Recognition are Rules 10D- 6.043(2), 10D-6.055(7)(a), 10D-6.060(3), 10D-6.075(4)(d) and 10D-6.0751(1)(d) and (2)(b) F.A.C. [1995] and Section 381.0065(5)(b)1. F.S. [1994]. See also Conclusion of Law 63.

       
       

   26. The Deltona Golf & Country Club permit requiring a 900 gallon dosing tank was clear; all Respondents had to do was comply with the permit. They did not comply with the permit. They did not correct their unpermitted installation and call for re-inspection. They should be fined $600, as cited.

       
       

   27. In DOAH Case No. 95-5973, DHRS seeks to levy a fine of $350 for failure to comply with permit requirements by failing to install the septic system according to permit and $250 for failure to call for re-inspection at 450 Pine Street, Enterprise, Florida, a/k/a The Gleasons' Job, in October 1995. The January 3, 1995 rule amendments apply to this incident. The violations specified in the Request for Official Recognition are Rules Sections 10D- 6.043(2), 10D-6.060(3), 10D-6.075(1) and (4)(d) and 10D-6.0751(1)(d) F.A.C. [1995] and Section 381.0065(5)(b)1. F.S. [1994]. See also Conclusion of Law 63.

       
       

   28. Respondents installed the drainage field at Pine Street contrary to the permit specifications. Although Respondents may have installed their drainfield in minimal compliance with Chapter 10D-6 F.A.C., the installation was not in compliance with the permit and plot/site plan. Before Respondents departed from the permit and plot/site plan, they were required to formally amend their application and get an amended permit. Moreover, since Acme Septic ultimately installed the drainfield both in compliance with the setback requirements and in the northeast corner of the property as originally permitted, I am not persuaded that Respondents were unable to do so. They should be fined $350 as cited for not complying with the permit.

       
       

   29. However, Respondents did not abandon the Pine Street project. Respondents were removed from the project by the Gleasons and replaced by Acme Septic. Respondents are not charged with abandoning the project, only with failing to install according to permit and covering with earth without an inspection and with failure to correct and arrange a re-inspection. Under the circumstances, the latter charge is illogical and unreasonable, and the fine of

       $250 for not calling for re-inspection should not be imposed.

   30. In DOAH Case No. 96-0573, DHRS seeks a $1,000 fine for each of three incidents, revocation of Donald P. Roberts' contractor's registration, and revocation of Rayco Properties, Inc. d/b/a Woody's Septic Tank Services' company authorization. The violations charged are:

       
       

       1. Installing a dosing tank at the Avocado Street site a/k/a The Hale Project on or about August 23, 1995, before applying

          for and receiving a DHRS permit for the work. The January 3, 1995 rule amendments apply to this incident. The violations specified in the Request for Official Recognition are Rules 10D-6.043(1), 10D-6.0571, 10D-6.060(3),

          10D-6.075(2) and 10D-6.0751(1)(b)2. [1995] and

          Sections 381.0065(4) and (5)(b)1. F.S. [1994].

          See also Conclusion of Law 64.

       2. Abandoning a septic tank without a permit at Clyde Morris Boulevard, a/k/a The IWS/BFI Job, on or about May 23, 1995. The January 3, 1995 rule amendments apply to this incident. The violations specified in the Request for Official Recognition are Rules 10D-6.053(2)(a), 10D-6.060(3), 10D-6.075 (4)(b)2., 10D-6.0751(1)(b)2. F.A.C. [1995] and Section 381.0065(5)(b)1 F.S. [1994].

          See also Conclusion of Law 64.

       3. Repairing a septic system without a permit on Bridal Path Lane a/k/a Oakridge Acres a/k/a Mrs. Mahalik's property in October 1994. The rules enacted March 17, 1992 apply to this incident. The violations specified in the Request for Official Recognition are Rules 10D-6.043(1), 10D- 6.0571, 10D-6.075(2), and 10D-6.0751(1)(b)2.

          F.A.C. [1994] and Section 381.0065(5)(b)1

          F.S. [1994]. See also Conclusion of Law 64.

          
          

   31. At Avocado Street, Respondents installed a replacement dosing tank without a permit. They knew they should have a permit in hand before beginning that phase of the project, but they took a chance the permit would be issued before the work was complete. It was not.

       
       

   32. However, Respondents did not try to hide their action, and the agency recognized that no public nuisance danger was created thereby. The agency issued an after-the-fact permit and ultimately approved the project. Accordingly, Respondents' violation on Avocado Street is minor.

       
       

   33. Respondents had committed exactly the same sort of violation in October 1994 at Bridal Path Lane. See supra. However, due to the Bridal Path Lane violation and the Avocado Street violation being contained in the same charging document (the administrative complaint), and the Bridal Path Lane events not being a violation on which the licenses had previously had disciplinary action taken against them or for which they had received a letter of warning in a prior case (see Rule 10D-6.0751(3) and (4) F.A.C. [1995], 2/ the "repeat offense penalty" of revocation should not be imposed for the Avocado Street violation. The penalty should be cumulative and consecutive here.

   34. Thus, Respondents should pay a $1,000 fine for the Avocado Street violation. See, Rule 10D-6.0751(1)(b)2. F.A.C. [1995].

       
       

   35. The agency has proven the elements of the charges applicable to the Clyde Morris Boulevard abandonment of a septic tank without a permit by clear and convincing evidence, but with extenuating circumstances. The penalty appropriately would be a $1,000 fine. See, Rule 10D-6.075(1)(b), F.A.C. [1995].

       
       

   36. In the 1994 Bridal Path Lane situation, Respondents failed to obtain a permit to install a dosing tank before installation. Since at that time, this was apparently a first time occurrence and involved no public danger, a $500 fine and 90 day suspension are provided for by Rule 10D-6.0751(1)(b)2. F.A.C. [1994].

       
       

   37. Nonetheless, DHRS prays that in light of all the violations assessed herein against Respondents, their registrations should be revoked. To show aggravation of penalty, they have submitted evidence (DHRS's sealed Exhibit 1) of prior disciplinary action by Final Agency Order dated April 29, 1994, whereby Jerry D. Thompson d/b/a Woody's Septic Tank Service by joint stipulation and settlement agreement agreed to have his contractor's registration revoked for a period of two years from June 1, 1994 and to serve one year's probation in settlement of pending criminal charges. That evidence only has been considered after all other violations and penalties have been determined.

       
       

   38. The exhibit is directed against a proper person not specifically named in this instant action, Jerry D. Thompson. 3/ The corporate person named in both actions (Woody's Septic Tank Service) did not stipulate in the exhibit to any violation alleged against its company authorization and apparently the prior action did not de-authorize the company, only the prior qualifying contractor. Settlements are not necessarily admissions of wrongdoing; the exhibit does not purport to be an admission; nor is the exhibit a finding of guilt of violation. The exhibit also does not name any statutory or rule charges. For all of these reasons, it is impossible to relate (for purposes of aggravation of current penalties) the 1994 settlement/final order to the violations found and penalties imposed therefor in the instant action.

       
       

   39. Therefore, the chronology is that in the space of October 1994 to 1995 (one year), Respondents committed acts which have resulted in conclusions of guilt against them for:

       
       

       1. A $350 fine should be imposed for failure to comply with the permit and a $250 fine should be imposed for failure to call for re-inspection on the Deltona Golf & Country Club project, approximately August 7, 1995.

       2. A $350 fine is applicable for failure to comply with the permit on Pine Street in October 1995.

       3. A $1,000 fine is applicable for failure to obtain a permit before replacing a dosing tank on Avocado Street on August 23, 1995.

       4. A $1,000 fine is applicable for abandoning a septic tank without a permit on Clyde Morris Street on May 23, 1995.

       5. A $500 fine and 90 days' suspension is applicable for failure to obtain a permit before replacing a dosing tank on Bridal Path Lane in October 1994.

          
          

   40. I have weighed all the evidence and the arguments of the parties in light of the eleven disciplinary guidelines set forth in Rule 10D-6.0751(2)

       F.A.C. There is no clear proof of monetary damages to the registrants' customers which is unrelieved as of the date of formal hearing. With the exception of pro forma re-inspections, all conditions of misconduct have been corrected. The offenses are minor or moderate rather than severe. No danger to the public was ever demonstrated. Only one public complaint (by Mrs. Mahalik) was demonstrated. All principals of Woody's Septic Tank Service have practiced septic service for many years; most of their problems with the permitting agency arose during a period of a tightening of internal agency procedures contrary to standard operating procedures of the past. No damage to a customer not otherwise compensated at law was clearly and convincingly demonstrated. Revocation is the most severe penalty available and would devastate Respondent Roberts' livelihood. Revocation of the company authorization would affect the livelihood of numerous company principals and employees not directly involved in any of the proven violations. There have been no efforts at rehabilitation, but the agency's failure to negotiate or even discuss remediation of problems or amendment of permits has contributed to Respondents' failure to correct several violations and to jobs not being timely reinspected.

       
       

   41. In consideration thereof, I conclude that only an additional $1,000 fine and additional 30 days' suspension should be imposed as "aggravation" penalty.

RECOMMENDATION

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 finding Respondents Donald P. Roberts and Rayco Properties, Inc.

d/b/a Woody's Septic Tank Service guilty as set out in the Conclusions of Law and assessing against both Donald P. Roberts and the company, jointly and severally a total fine of $4,450 and suspending both for 120 days from the date of the final order.

DONE and ENTERED this 1st day of November, 1996, at Tallahassee, Florida.

ELLA JANE P. DAVIS

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 1st day of November, 1996.

ENDNOTES

1/ Candidly, all the charges in this case could have been simplified to cite Section 381.0065(4) F.S. and Rule 10D-6.043(1) F.A.C. as in effect at all times material, plus Rules 10D-6.053 and 10D-6.075(2) as in effect at all times material and Rules 10D-6.075(2)(b) in 1994 and 10D-6.075(2)(b) and (4)(b) in 1995. They were not so clarified.

The clarification resulting from the Request for Official Recognition is set out in the Conclusions of Law, event by event. The Request for Official Recognition would not normally constitute a notice of charges, but herein, by agreement of the parties, this one was utilized as a "more definite statement" of the charges.

Respondents have suggested in their proposed recommended order that the agency's answers to interrogatories also constitute a charging document. This concept is rejected. Nor can it be determined that the agency's answers to interrogatories or inartful pleading or prejudiced Respondents' defense of this case. See Conclusion of Law 66.

2/ See the explanation at Conclusion of Law 79 and the effect of DHRS's sealed Exhibit 1, concerning a prior offense.

3/ Interestingly, this document, admitted only for the limited purposes of aggravation of penalty also shows that Mr. Thompson's license was revoked at the time he testified in this proceeding (See Finding of Fact 34) and at the time when he pulled a permit as an employee of Respondent company. (See Finding of Fact 55).

COPIES FURNISHED:

Charlene Peterson, Esquire VOLUSIA COUNTY PUBLIC HEALTH UNIT

501 South Clyde Morris Boulevard Post Office Box 9190

Daytona Beach, Florida 32120

Dennis K. Bayer, Esquire COBB, COLE AND BELL, P.A.

Post Office Box 2491

Daytona Beach, Florida 32115

Woody's Septic Tank Service c/o Greg Thompson, President or Donald Roberts

500 Walker Street

Holly Hill, Florida 32717

Richard Doran, Esquire Department of Health and

Rehabilitative Services

1317 Winewood Boulevard, Room 204

Tallahassee, Florida 32399-0700

Gregory D. Venz, Agency Clerk Department of Health and

Rehabilitative Services Building 2, Room 204-X 1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 95-005973

Orders for Case No: 95-005973