STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH f/k/a )

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 96-5543

) LARRY A. FORD d/b/a LA FORD ) SEPTIC TANK, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on February 27, 1997, in Tallahassee, Florida, before Ella Jane P. Davis, a duly assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Thomas D. Koch, Esquire

Senior Attorney Department of Health Suite 160A

2639 North Monroe Street Tallahassee, Florida 32399-2946

For Respondent: No appearance

STATEMENT OF THE ISSUE

Is Respondent guilty of violations of Rule 10D-6.0751(l)(b) [gross negligence and incompetence] by the installation of a residence septic tank system and failure to obtain a new system construction permit with approved site plan prior to installation of a new on-site sewage treatment system, as charged in the

undated administrative complaint numbered HPO-96-1003, which was referred to the Division of Administrative Hearings on or about November 26, 1996 and if so, what discipline should be imposed?

PRELIMINARY STATEMENT

At the commencement of formal hearing on February 27, 1997, the agency's motion to restyle the cause as set out above was granted. This restyling reflects the new name of the agency.

At the time of formal hearing, Petitioner agency had pending a motion to continue and consolidate this case with a later-filed one. That motion was withdrawn at the commencement of formal hearing.

Respondent did not appear for formal hearing. Inquiry was made and the undersigned is satisfied that Petitioner had no reasonable expectation that formal hearing would not go forward as scheduled. Nonetheless, in an abundance of caution, presentation of evidence on the merits of the administrative complaint was delayed thirty minutes. Respondent still did not appear.

Petitioner agency presented the oral testimony of Charles Bradley, Larry Williams, Emily Wilson, Billy Melton, and Johnny Howard (who testified by telephone). The agency also had four exhibits admitted in evidence.

Due to his non-appearance, Respondent presented no testimony or exhibits.

A record of the proceedings was preserved by video tape in

accord with the 1996 statutory amendment providing therefor. No transcript of the proceedings was provided, but the undersigned has had the benefit of the video tape during the preparation of this recommended order. The video tape will be returned to the Division's employee in charge of video taping upon entry of this recommended order. Arrangements for a subsequent transcript, if any, should be made through the Division.

The timely filed proposed findings of fact and conclusions of law of Petitioner agency have been considered in the preparation of this recommended order. The Respondent filed no proposals.

FINDINGS OF FACT

1. Respondent Larry A. Ford is registered by Petitioner agency as a septic tank contractor, under the registered name of "L.A. Ford Septic Services."

2. On July 31, 1996, Gary W. Thompson, agent and building contractor for Johnny Howard, Jr., applied to the Suwannee County Health Department for an Onsite Sewage Disposal System Construction Permit to install an onsite sewage treatment and disposal system for Mr. Howard's residence. The site plan specified installation of a septic system on the north side of a house which was then under construction.

3. On August 2, 1996, Charles Bradley, Environmental Health Specialist, Suwannee County Health Department, conducted a site evaluation at the construction site. His site evaluation

   included taking soil samples from the location proposed for the system to determine the suitability of the soil and the seasonal high water elevation table. A permit was issued in accord with the site evaluation.

4. Mr. Howard (owner) and Mr. Thompson (general contractor) engaged Respondent Ford to install Mr. Howard's septic system.

5. In practice, septic tank installers, including Respondent, usually will contact the Suwannee County Health Department for a copy of the permit, site plan, and other particulars before beginning an installation. The record is silent as to whether that happened in this case.

6. On August 5, 1996, Respondent completed installation of the system and contacted Mr. Bradley to do a final inspection.

7. When Mr. Bradley arrived to inspect the system, he discovered that it had been installed on the west side of the house instead of the north side as called for in the site plan and permit as issued. In other respects, the installed system seemed to comply with the technical requirements for septic systems and Bradley issued an "in place" approval even though Respondent had failed to advise, or have Mr. Howard or Mr. Thompson advise, the Suwannee County Health Department about the change in the system's location so that the Department could conduct another pre-installation site evaluation and issue a corrected permit.

8. If a location or any other significant factor is going to be altered by the installer, the applicable rules require that the installer first amend the permit application and get a new site inspection and agency approval/permit. In practice, a location change is simply approved or rejected by the agency during the after-the-fact inspection, without any real insistence by the agency that the change be pre-approved. However, if the ultimate installation does not accord with health standards or rule standards for any reason, the agency is authorized by rule to require that the situation be corrected and that the installer arrange for a complying permit to be issued.

9. The following week, Mr. Howard's father, who was also the owner of the land adjacent to Mr. Howard's home construction site, complained to Larry Williams, Environmental Health Supervisor at the Suwannee County Health Department. The senior Mr. Howard's primary concern was that the drainfield for his son's new septic system extended across the property line into his property in an area he used for cultivation.

10. A subsequent inspection by Larry Williams, who is an agency superior to Mr. Bradley, revealed that the system had been mislocated across property lines; that the septic tank was installed nearby a dryer vent opening in the west side of the house, rather than the plumbing stub-out designed for this system on the north side of the house; and that the system's elevation as installed would not allow for gravity flow as originally

    designed; and that the system, as installed, would require additional plumbing and a pump to operate it.

11. The property line trespass would not have showed up in the "as is" inspection by Mr. Bradley.

12. The testimony herein with regard to gravity backflow is sufficient to establish another technical installation violation, despite Mr. Bradley's original post-installation approval of the system, but the record is lacking in evidence to establish that there was a clear danger to public health as a result.

13. Upon further investigation, agency personnel were confronted with at least one disputed fact. On the one hand, they had the complaints of the two Mr. Howards against Respondent and on the other hand they had Respondent's insistence that the younger Mr. Howard's wife had authorized Respondent to relocate the system to the west side of the house. As a result, Respondent denied any and all responsibility for mislocating the system. Additionally, due to the original post-installation agency approval, the Respondent refused to correct the Howard septic system in any way or to participate in agency mediation.

14. When agency efforts to mediate the problem were unsuccessful and Respondent failed to make any arrangements to correct the problem, the County Health Unit paid $975.00 for the correction of Mr. Howard's system by another certified septic contractor. This amount came out of its discretionary funds

    reserved for dangers to public health. Apparently, Mr. Howard has paid nothing for the repairs.

15. The agency then instituted this instant disciplinary action against Respondent.

16. Respondent refused certified mail delivery of the notice of intended action. Therefore, he had to be served by the Sheriff's office.

17. The notice of intended action advised Respondent that the agency considered his acts and omissions with regard to his installation of the septic system to be gross negligence and incompetence under Rule 10D-6.075, Florida Administrative Code, and that if he did not take corrective action within three days of his receipt of the notice, the agency intended to issue an administrative fine against him and to suspend his registration as a septic tank contractor.

18. Respondent again denied any responsibility for his installation of Mr. Howard's system and refused to take any corrective action or otherwise to try to mitigate the problem.

19. The agency also has cited Respondent via an August 27, 1997 Letter of Warning which had nothing to do with the Howard job. The Letter of Warning advised Respondent that he was in violation of Part III, Chapter 489, Florida Statutes, punishable under Rule 10D-6.0751(1)(a) Florida Administrative Code, because his advertising used a business name (Ford Septic Tank Service) under which he is not registered, instead of his business

    registration name of "LA Ford Septic Tank". No timely request for administrative hearing was received to dispute the material issues raised by this warning letter, and therefore its allegations may be considered as true. This Letter of Warning also may be considered for purposes of aggravation of penalty, if any penalty is determined in the instant proceeding.

20. The agency has had numerous other customer complaints against Respondent. Its own investigation of these other complaints has satisfied agency staff that in many instances Respondent was doing fraudulent and/or negligent septic system work. However, none of these allegations can be considered here for two reasons. First, because these other situations were not noticed nor charged in the pending administrative complaint, no findings of fact can be made herein with regard to them. Second, because these situations were never proven in a formal proceeding and were not reduced to a Letter of Warning, they may not be considered under the guidelines provided by the agency's rules to aggravate a penalty, if any penalty is determined in the instant proceeding. See the Conclusions of Law, infra.

21. In filing the administrative complaint herein, witnesses Wilson and Melton considered the gravity of Respondent's situation at the Howard residence and his failure to take any mitigating action. They also considered, as aggravating circumstances, the many other citizen complaints discussed above. The administrative complaint for the charges surrounding

    Respondent's installation on Mr. Howard's permit was served on Respondent in October 1996. He timely requested a formal administrative hearing.

22. Part of the registration procedure for septic treatment system contractors is to take an examination with regard to the requirements of Chapter 10D-6 Florida Administrative Code, including permit requirements, technical requirements for septic system installations and the conduct expected of contractors. Registered contractors who pass the examination, including Respondent, are expected to know and follow all requirements in Chapter 10D-6, Florida Administrative Code.

    CONCLUSIONS OF LAW

    
    

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

24. The Department proved by clear and convincing evidence that Respondent installed Mr. Howard's system incorrectly as alleged. The evidence also shows that usually, in practice, a location change such as occurred here is simply approved or rejected during the after-the-fact inspection, without any real insistence by the agency that the change be preapproved.

    However, the agency is authorized to require that the contractor correct the situation and obtain a new after-the-fact permit when there is a deficiency in the project.

25. Rule 10D-6.046(2) Florida Administrative Code prohibits the installation of systems "within five feet of property lines." Rule 10D-6.044(5) requires that "in the event of a change in any information given in the application which served as basis for issuing a construction permit, the permit holder will immediately file an amended application detailing such changed conditions. If the new conditions are determined to be in compliance with the standards in this chapter, the construction permit shall be amended. If the new conditions are determined to be in non-compliance with the standards of this chapter, the permit shall be revoked subject to the provisions of Chapter 120 Florida Statutes."

26. Respondent has refused to correct permit violations brought to his attention after a second post-installation inspection and has failed to secure an after-the-fact permit. He is guilty of the violations charged in the administrative complaint.

27. Section 489.556 Florida Statutes governs the suspension or revocation of septic tank contractor registration. It provides, in relevant part:

    A certificate of registration may be suspended or revoked upon a showing that the registrant has:

    1. Violated any provision of this part

    2. Violated any lawful order or rule rendered or adopted by the department.

* * *

(4) Been found guilty of gross misconduct in the pursuit of his or her profession.

28. Rules 10D-6.0751(1)(b)2. and (1)(l)2. provide guidelines for assessment of a penalty as follows:

(1) The following guidelines shall be used in disciplinary cases, absent aggravating or mitigating circumstances and subject to the provisions of this section.

(b) Permit violations

2. Contracted work is completed without a permit having been issued, or no permit application is received until after contracted work was completed, resulting in missed inspection or inspections. First violation, $1000 fine; repeat violation, revocation.

(l) Gross negligence, incompetence, or misconduct which:

2. Causes monetary or other harm to a customer, or physical harm to any person. First violation, $500 fine and 90 day suspension; repeat violation, $500 fine and revocation.

1. The monetary harm to the customer in this case has apparently been borne by the agency.

2. 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 . . . received a letter of warning in a prior case." The listed penalty is "intended to apply only to situations where the repeat violation is of a different subsection of this rule than the first violation." The rules go on to provide that permit violations aggravate penalties, and violations of an identical nature aggravate penalties. Where several violations occur in one case or several cases being considered together, the penalties are to be cumulative and consecutive.

3. The only prior violation the undersigned may consider here is the August 27, 1996 Letter of Warning for violation of Rule 10D-6.0751(1)(a). Although it is not considered even a "permit violation" under the terms of the rule, it is under the same subsection of Rule 10D-6.0751 as the charges herein. The simultaneous violations of Subsections (1)(b)2 and (1)(l)2. herein are listed under "permit violations." These two violations have been proven herein in a single proceeding upon the clear and convincing standard established in Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

4. The agency guidelines are convoluted, to say the least. One reading thereof would permit a $1,500 fine and a 90- day suspension. However, upon the foregoing Letter of Warning, and considering the aggravation of Respondent's adamant refusal to mitigate the situation herein or to apply for an appropriate after-the-fact permit, an appropriate penalty of $1,000 fine and revocation of certificate is warranted, as requested by the agency.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that the Department of Health enter a final order finding Respondent guilty of one violation of Rule 10D- 6.0751(1)(b)2. and one violation of Rule 10D-6.0751(1)(l)2; fining Respondent $1,000.00; and revoking his certificate.

RECOMMENDED this 29th day of APRIL, 1997, at Tallahassee, Florida.

ELLA JANE P. DAVIS

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675 SUNCOM 278-9675

Fax FILING (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 1997.

COPIES FURNISHED:

Thomas Koch, Esquire Department of Health 2639 N. Monroe Street Suite 160-A

Tallahassee, FL 32399-2949

Larry A. Ford Route 1 Box 1705

O'Brien, FL 32071

David West, Esquire Department of Health District 3 Legal Office

1000 Northeast 16th Avenue, Box 3

Gainesville, FL 32601

Dr. James Howell, Secretary Department of Health

1317 Winewood Bouelvard

Building 6 Room 306

Tallahassee, FL 32399-0700

Pete Peterson

1317 Winewood Boulevard Building 6 Room 102-E Tallahassee, FL 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: 96-005543

Orders for Case No: 96-005543