STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) Case No. 97-0898

)

DEPARTMENT OF HEALTH, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for formal hearing on June 17, 1997, in Live Oak, Florida, before Suzanne F. Hood, Administrative Law Judge, with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: No Appearance

For Respondent: Thomas D. Koch, Esquire

Department of Health Building 6, Room 133

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700 STATEMENT OF THE ISSUES

The issues are (1) whether Respondent violated Chapters 381, 386, and 489, Florida Statutes; and if so, (2) whether Respondent is subject to an administrative fine; and if so, (3) what penalty should be imposed.

PRELIMINARY STATEMENT

On or about January 17, 1997, Petitioner Larry. F. Ford, d/b/a LA Ford Septic Tank Service (Petitioner) requested a formal

hearing to contest allegations contained in an Administrative Complaint issued by Respondent Department of Health (Respondent). Said Administrative Complaint alleged that Petitioner had violated Chapters 381, 386, and 489, Florida Statutes, and Chapter 10D-6, Florida Administrative Code (currently Chapter

64E-6, Florida Administrative Code). Respondent referred Petitioner's request to the Division of Administrative Hearings on February 27, 1997.

The undersigned issued a Notice of Hearing scheduling this case for hearing on June 17, 1997. Petitioner did not make an appearance at the hearing. Respondent presented the testimony of fifteen witnesses and offered eight exhibits which were accepted into evidence.

A transcript of the proceeding was not filed with the Division of Administrative Hearings. Respondent filed a proposed recommended order on July 17, 1997.

On July 22, 1997, Respondent entered a Final Order in DOAH Case Number 96-5543, revoking Petitioner's septic system contractor's registration and imposing a $1000 administrative fine. On August 22, 1997, the undersigned issued an order directing Respondent to show cause why this case should not be dismissed for lack of subject matter jurisdiction.

On August 27, 1997, Respondent filed a Response to Order to Show Cause. In the response, Respondent conceded that the question whether Petitioner's septic tank contractor's

registration should be revoked, suspended, or otherwise disciplined is moot. However, Respondent maintained that the instant case involved different acts and omissions by Petitioner than those alleged and proven in the prior proceeding.

Respondent cited Section 381.0061, Florida Statues, and Rule 10D-6.0751, Florida Administrative Code (Currently 64E-6.022, Florida Administrative Code), as authority for imposing an administrative fine in this case even though Petitioner is no longer a registered septic tank contractor.

FINDINGS OF FACT

1. At all times material to this proceeding, Petitioner was registered with Respondent as a septic tank contractor, under the authorized name of LA Ford Septic Tank.

2. As of March 1, 1995, single compartment septic tanks must be used in series or in conjunction with a outlet filter which has been approved by Respondent. An outlet filter is designed to prevent solid wastes from reaching the drainfield of a septic system. Removal of an outlet filter will cause the premature failure of a drainfield system and create a potential sanitary nuisance.

3. In September of 1996, Rita Haynes contracted with Petitioner for the installation of a septic system for her mobile home. The system received construction approval from the Suwannee County Health Department on September 5, 1996. At that time, the outlet filter was attached to the system. On

   September 12, 1996, the Suwannee County Health Department re- inspected the system. The inspector discovered that the filter was missing. Ms. Haynes did not remove the filter or authorize anyone else to do so. Removal of the outlet filter constituted theft of Ms. Haynes' property. Allegations concerning the removal of the outlet filter on Ms. Haynes' property are included in the Administrative Complaint at issue here.

4. In September of 1996, Tracy Fernandez contracted with Petitioner to install a septic system for her mobile home. The system received construction approval from the Suwannee County Health Department on September 4, 1996. At that time, the outlet filter was present. The filter was missing when the Suwannee County Health Department re-inspected the system on September 10, 1996. Ms. Fernandez did not remove the filter or authorize anyone else to do so. Removal of the outlet filter constituted theft of Ms. Fernandez's property. Allegations concerning the removal of the outlet filter on the property of Ms. Fernandez are included in the Administrative Complaint at issue here.

5. In July of 1996, Laura Landen contracted with Ford to install a septic system for her mobile home. Petitioner told Ms. Landen that he would save her some money by removing the outlet filter after the initial inspection. The system received construction approval from the Suwannee County Health Department on July 24, 1996. At that time, the outlet filter was attached to the septic tank. The filter was missing when the Suwannee

   County Health Department re-inspected the system on September 11, 1996. Ms. Landen did not remove the filter or authorize anyone else to do so. Removal of the outlet filter constituted theft of Ms. Landen's property. Allegations concerning the removal of the outlet filter on Ms. Landen's property are included in the Administrative Complaint at issue here.

6. In October of 1996, John and Mary Phillips contracted with Petitioner to install a septic system for their home. The system received construction approval from the Columbia County Health Department on October 23, 1996. At that time, the outlet tee filter was present. Subsequently, the Phillips' daughter saw Petitioner take something out of the septic tank. The filter was missing when the Columbia County Health Department re-inspected the system on October 25, 1996. Mr. and Mrs. Phillips did not remove the filter or authorize anyone else to do so. Removal of the outlet filter constituted theft of the Phillips' property. Allegations concerning the removal of the outlet filter on the Phillips' property are included in the Administrative Complaint at issue here.

7. In April of 1996, Marshall and Karen Merriman contracted with Petitioner to install a septic tank system on their property. The outlet filter was attached to the septic tank at the time of an initial inspection by the Suwannee County Health Department on April 22, 1996. Subsequently, Mr. Merriman saw Petitioner drive up and remove the outlet filter from the septic

   tank. Petitioner's removal of the outlet filter constituted theft of the Merrimans' property. A re-inspection by the Suwannee County Health Department on April 23, 1996, revealed that the outlet filter was missing. The inspector also discovered that Petitioner had not placed enough rock in the Merrimans' drainfield. Accordingly, the system did not pass final inspection. Mr. Merriman stopped payment on his check made payable to Petitioner in the amount of $909.50. Another septic tank contractor was hired to properly install the septic system on the Merrimans' property.

8. Mr. Merriman's complaint to the Suwannee County Health Department resulted in a citation for a $1,500 fine against Petitioner for violating the following rules: (1) Rule

   10D-6.0751(1)(k), Florida Administrative Code, practicing fraud or deceit; (2) Rule 10D-6.0751(1)(l)2, Florida Administrative Code, misconduct causing harm to customer; and (3) Rule

   10D-6.055(3)(a), Florida Administrative Code, removal of outlet filter. Petitioner acknowledged receipt of the citation on September 24, 1996. That same day he requested an informal administrative hearing to contest the citation.

9. The Suwannee County Health Department referred Petitioner's request for an informal hearing concerning the above-referenced citation to Respondent on September 27, 1996.

   Respondent then requested its District 3 Administrator to conduct the necessary proceedings and submit a Recommended Order to

   Respondent. The record does not reveal the disposition of Petitioner's request for an informal hearing regarding the citation. The Administrative Complaint at issue here does not contain any allegations relative to Mr. Merriman's complaint. However, since Petitioner did not dispute the material allegations contained in the citation, they may be considered as true in aggravation of any penalty imposed in the instant proceeding.

10. In addition to the missing filters referenced above, the Columbia County Health Department found filters missing from Petitioner's installations on property owned by Richard Johnson and David Timmerman in September of 1996. The filters had been present during prior inspections of Petitioner's installations on the Johnson and Timmerman properties. The removal of the outlet filters from the Johnson and Timmerman properties constituted theft of their property. The Administrative Complaint at issue here contains allegations concerning Petitioner's removal of these outlet filters.

11. The Suwannee County Health Department and the Columbia County Health Department had many citizen complaints about Petitioner's work. They performed a random check of all recent septic tank installations in their respective counties. They re- inspected the septic tank installations of other registered septic tank contractors as well as Petitioner's installations. They found missing outlet filters only in Petitioner's

    installations. The two health departments began spray painting a spot on filters during initial inspections to stop anyone from using the filters at multiple installations and inspections.

12. Petitioner habitually, and as a routine business practice, removed the outlet filter from the septic tanks he installed after the initial inspection but before he covered the tank with dirt. He was responsible for stealing the required outlet filters on the property of Rita Haynes, Tracy Fernandez, Laura Landen, John and Mary Phillips, David Timmerman, and Richard Johnson. In each of these instances, Petitioner acted fraudulently and deceitfully. His gross misconduct created a potential sanitary nuisance and caused his customers monetary harm.

13. An outlet tee filter costs approximately $50. Petitioner was able to underbid his competitors by removing the filter from an inspected system and using the same filter on another installation.

14. From time to time, septic tanks need to be pumped out to prevent the flow of sludge and solids from the tank into the drainfield. Sludge and solids will clog the drainfield causing the system to fail. A failed system is expensive to repair or replace. A failed system also creates a public health hazard.

15. When a septic tank is pumped out, all of the sludge should be removed. After the tank is empty, it should be washed down with a hose and inspected for cracks. If the tank is in

    good condition, a septic tank contractor is supposed to sign an inspection slip.

16. In September of 1996, Allen Donaway contracted with Petitioner to pump out his septic tank and install a new drainfield. Petitioner's employees arrived at Mr. Donaway's residence on or about September 18, 1996, to pump out the tank. They claimed they had completed the job even though they left 12 or more inches of sludge at the bottom of the tank. Despite

    Mr. Dunaway's demands, Petitioner's employees refused to pump any more septage from the tank. When Mr. Donaway contacted Petitioner to complain that his employees had only partially pumped the tank, Petitioner demanded immediate payment.

    Mr. Donaway gave Petitioner a check for $135 which Petitioner cashed immediately. Mr. Donaway had to pay another registered septic tank contractor to pump the rest of the sludge from the tank and to install the new drainfield. Allegations concerning Petitioner's failure to completely pump out the sludge from

    Mr. Donaway's septic tank are contained in the Administrative Complaint at issue here.

17. In a Letter of Warning dated July 15, 1996, the Columbia County Health Department informed Petitioner that Debbie Gregory had filed a complaint against him for an

    unsatisfactory septic pump-out. This letter requested a response to an allegation that Petitioner, without good cause, had abandoned a project which he was under a contractual obligation

    to perform in violation of Rule 10D-6.0751(1)(g), Florida Administrative Code. Petitioner was advised that he could avoid the imposition of a $500 fine or a disciplinary action against his contractor's license by correcting the problem within five working days.

18. As of August 6, 1996, Petitioner had not responded to the health department's inquiry. He made no attempt to correct the problem by completely removing the solids and greases from Ms. Gregory's septic tank. Petitioner was advised by letter that Respondent intended to initiate enforcement procedures. Allegations concerning the unsatisfactory septic pump-out on Debbie Gregory's property were included in the Administrative Complaint at issue here.

19. Petitioner's failure to completely pump out all of the sludge from the septic tanks of Allan Donaway and Debbie Gregory created a potential health hazard. Additionally, his gross misconduct caused these customers monetary harm. They had to pay another septic tank contractor to complete Petitioner's work so that they could avoid the expense of prematurely replacing their drainfields.

20. In August of 1996, Petitioner installed an onsite sewage treatment and disposal system on the property of Johnny Howard, Jr. The Suwannee County Health Department

    subsequently determined that Petitioner had installed the septic system on the wrong side of the Howard residence with the

    drainfield extending across the property line of the adjoining property. The inspector also discovered that the septic tank was installed next to a dryer vent opening in the Howard residence.

    When Petitioner refused to correct the problems at the Howard residence, the county health unit paid another septic tank contractor to correct the septic system. Respondent then filed an Administrative Complaint seeking revocation of Petitioner's septic tank contractor's registration and imposition of an administrative fine.

21. On July 22, 1997, Respondent entered a Final Order in Department of Health Case Number 97-154 which revoked Petitioner's septic system contractor's registration and imposed a fine in the amount of $1000 due to the improper installation of the septic system at the Howard residence. This Final Order approved and adopted a Recommended Order in DOAH Case Number

    96-5543, finding that Respondent was guilty of violating Rule 10D-6.0751(1)(b)2, Florida Administrative Code, for completing

    contracted work at the Howard residence without a permit and Rule 10D-6.0751(1)(l)2, Florida Administrative Code, gross misconduct causing monetary harm.

22. Allegations concerning Petitioner's improper installation of the septic system on Mr. Howard's property were not contained in the instant Administrative Complaint. However, they may be considered in aggravation of any administrative fine imposed in the instant case.

23. In the course of investigating citizen complaints against Petitioner, Respondent learned that Petitioner was advertising his business using the name of Ford Septic Tank and/or Ford Septic Tank Service(s) on his trucks and in the Yellow Pages. Petitioner's authorized business name is LA Ford Septic Tank.

24. Respondent sent Petitioner a Letter of Warning dated August 27, 1996, advising him that advertising his services in a form other than his authorized business name violated part III of Chapter 489, Florida Statutes, and Rule 10D-6.0751(1)(a), Florida Administrative Code. The letter informed Petitioner that continued violations could result in an administrative fine of

    $500 per day. The letter stated that the violations might be cited in a future complaint based on repeat violations.

    Petitioner did not exercise his option to request an administrative hearing to contest the allegations contained in the Letter of Warning.

25. On November 20, 1996, employees of the Suwannee County Health Department took photographs of Petitioner's business sign using an unauthorized name on a county road in Suwannee County. On November 22, the same employees took photographs of Petitioner's trucks bearing an unauthorized name.

26. Petitioner's persistence in using an unauthorized business name was especially egregious because other septic tank contractors with the last name of Ford, who were not affiliated

    with Petitioner, worked in the same commercial and residential areas. For example, Mr. Merriman contracted with Wilbur Ford to correct the septic system that Petitioner improperly installed. North Florida Septic Tank was owned by Robert and Donna Ford.

    Their Yellow Page advertisement specifically disclaimed any affiliation with Petitioner. The instant Administrative Complaint contains allegations concerning Petitioner's use of an unauthorized name to advertise his business.

27. Petitioner filed an application to become a registered septic tank contractor on August 6, 1991. Petitioner was convicted of grand theft and stopping payment on a check with intent to defraud on October 28, 1991, in the circuit court of Hernando County, Florida. Petitioner was convicted of these two felonies before he took the septic tank contractor's examination in November of 1991. Petitioner did not inform Respondent about the two convictions. Petitioner obtained his septic tank registration through fraud or misrepresentation by failing to disclose his felony convictions. The instant Administrative Complaint contains allegations concerning Petitioner's failure to disclose the two felony convictions.

28. Respondent's efforts to persuade Petitioner to correct his improper installations and/or unsatisfactory pump-outs were not successful. He made no attempt to replace the filters he removed. He did not heed Respondent's warnings regarding his use of an unauthorized business name. He has failed to make any

    effort to rehabilitate himself or to mitigate the effects of his behavior despite the following: (1) the severity of his offenses; (2) the danger to the public that he created; (3) the number of times that he repeated the offenses; (4) the number of complaints filed against him; and (5) the monetary harm he caused his customers.

    CONCLUSIONS OF LAW

    
    

29. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this proceeding pursuant to Section 120.57, Florida Statutes.

30. Respondent is the agency charged with the duty to enforce and implement the provision of Chapters 381, 386, and 489, Florida Statutes. The agency charged Petitioner with violations of Chapter 10D-6, Florida Administrative Code. These rules have recently been transferred to Chapter 64E-6, Florida Administrative Code.

31. The Columbia County Health Department and the Suwannee County Health Department are full-time local health department which function in cooperation with Respondent pursuant to Chapter 145, Florida Statutes.

32. Section 381.0011(4), Florida Statutes, gives Respondent the duty to "[a]dminister and enforce laws and rules relating to sanitation, control of communicable diseases, illnesses and hazards to health among humans and from animals to humans, and the general health of the people of the state."

33. Respondent has the authority to "commence and maintain all proper and necessary actions and proceedings to enforce the rules adopted pursuant to this chapter . . . ." Section 381.0012(1), Florida Statutes. Respondent may seek injunctions in a proper circuit court when it deems such action is necessary to fulfill its duties. Section 381.0012(2), Florida Statutes.

34. Section 381.0061, Florida Statutes, states as follows in pertinent part:

    1. In addition to any administrative action authorized by chapter 120 or by other law, the department may impose an administrative fine, which shall not exceed $500 for each violation, for a violation of s. 381.0065, s. 381.0066, s. 381.0072, or part III of chapter 489, for a violation of any rule adopted under this chapter, or for a violation of any of the provision of chapter

       386. Notice of intent to impose such fine shall be given by the department to the alleged violator. Each day that a violation continues may constitute a separate violation.

       
       

    2. In determining the amount of fine to be imposed, if any, for a violation, the following factors shall be considered:

       1. The gravity of the violation, including the probability that death or serious physical or emotional harm to any person will result or has resulted, the severity of the actual or potential harm, and the extent to which the provisions of the applicable statutes or rules were violated.

       2. Action taken by the owner or operator to correct violations.

       3. Any previous violations.

35. Section 381.0065, Florida Statutes, sets forth the provisions for the regulation of onsite sewage treatment and

    disposal systems. Section 381.0065(3)(b), Florida Statutes, requires Respondent to:

    (b) Perform application reviews and site evaluations, issue permits, and conduct inspections and complaint investigations associated with the construction, installation, maintenance, modification, abandonment, or repair of an onsite sewage treatment and disposal system. . . .

    
    

    Section 381.0065(3)(h), Florida Statutes, requires Respondent to:

    
    

    (g) Conduct enforcement activities , including imposing fines, issuing citations, suspensions, revocations, injunctions, and emergency orders for violations of this section, part III of chapter 489, or chapter

    386 or for a violation of any rule adopted under this section, part III of chapter 489, or chapter 386.

    Section 381.0065(4), Florida Statutes, prohibits anyone from constructing, repairing, modifying, abandoning, or operating a septic system unless Respondent issues a permit approving the activity. That same section prohibits any person from contracting to perform any activity related to a septic system without being registered pursuant to part III of Chapter 489, Florida Statutes. Section 381.0065(4), Florida Statutes.

36. Respondent has the authority to issue citations containing:

    an order of correction or an order to pay a fine, or both, for violations of

    ss. 381.0065-381.0067 or chapter 386 or part III of chapter 489 or the rules adopted by the department, when a violation of these sections or rules is enforceable by an administrative or civil remedy or when a violation of these sections or rules is a misdemeanor of the second degree. A citation

    issued under ss. 381.0065-381.0067 or chapter

    386 or part III of chapter 489 constitutes a notice of proposed agency action.

    
    

    Section 381.0065(5)(b)1, Florida Statutes.

    
    

37. When Respondent issues a citation, the recipient has a right to an administrative hearing to contest the allegations contained therein. Section 381.0065(5)(b)4. Florida Statutes.

38. Respondent may issue a citation as an alternative means to enforce the provisions of Chapters 381, 386, and 489, Florida Statutes. Section 381.0065(5)(b)8, Florida Statutes. The ability to issue a citation does not deprive Respondent of its authority to enforce statutes and rules by any other means. Section 381.0065(5)(b)8, Florida Statutes. However, Respondent "must elect to use only a single method of enforcement for each violation." Section 381.0065(5)(b)8, Florida Statutes.

39. Chapter 386, Florida Statutes, gives Respondent the duty to require any person committing, creating, keeping, or maintaining a sanitary nuisance to remove or abate that nuisance. Section 386.03(1), Florida Statutes. Respondent has authority to institute the following in carrying out its duties: (a) a suit at law; (b) criminal proceedings; (c) legal proceedings as set forth in Section 381.0012, Florida Statutes; and

    1. administrative proceedings as set forth in Section 381.0061, Florida Statutes.

40. An improperly built or maintained septic tank constitutes a nuisance which is injurious to health. Section 386.041, Florida Statutes.

41. In order for a person to become a registered septic tank contractor, the applicant must have good moral character. Section 489.553(4), Florida Statutes, Rule 10D-6.072(3)(b), Florida Administrative Code (currently Rule 64E-6.072(3)(b), Florida Administrative Code).

42. Rules 10D-6.055(3)(a) and 10D-6.055(3)(f), Florida Administrative Code (currently Rules 64E-6.055(3)(a) and 64E- 6.055(3)(f), Florida Administrative Code), require that all single compartment septic tanks be used in series, or in conjunction with an outlet tee filter. Petitioner has been charged with violating these provision when he removed the outlet filter from the septic tanks on the properties of six of his customers.

1. Disciplinary guidelines implementing Respondent's authority to enforce Chapters 381 and 386, Florida Statutes, and part III of Chapter 489, Florida Statutes, state as follows in pertinent part:

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

      
      

      1. . . . [A]cting under a name not registered or authorized by the department. First violation, letter of warning; repeat violation, $500 fine, or revocation.

      2. Permit violations.

         * * *

         (i) Obtaining registration through fraud or misrepresentation. Revocation and $500 fine.

         * * *

         1. Practicing fraud or deceit, making misleading or untrue representations. First violation, $500 fine; repeat violation, revocation.

         2. 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.

         
         

         Rule 10D-6.0751, Florida Administrative Code (currently Rule 64E- 6.022, Florida Administrative Code) in pertinent part.

         Petitioner has been charged with violating these provisions of this rule.

         44. Rules 10D-6.0751(2), 10D-6.0751(3), 10D-6.0751(4), and

         
         

         10D-6.0751(5), Florida Administrative Code (currently Rules 64E- 6.022(2), 64D-6.022(3), 64D-6.022(4), and 64D-6.022(5), Florida

         Administrative Code) state as follows:

         
         

   2. Circumstances which shall be considered for the purposes of mitigation or aggravation of penalty shall include the following:

      1. Monetary or other damage to the registrant's customer, in any way associated with the violation, which damage the registrant has not relieved, as of the time the penalty is to be assessed.

      2. Actual job-site violations of this rule or conditions exhibiting gross negligence, incompetence or misconduct by the contractor, which have not been corrected as of the time the penalty is being assessed.

      3. The severity of the offense.

      4. The danger to the public.

      5. The number of repetitions of the offense.

      6. The number of complaints filed against the contractor.

      7. The length of time the contractor has practiced and registration category.

      8. The actual damage, physical or otherwise, to the customer.

      9. Any efforts at rehabilitation.

         (k) Any other mitigation or aggravation circumstances.

         
         

   3. As used in this rule, a repeat violation is 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. This definition applies regardless of the chronological relationship of the violations and regardless of whether the violations are of the same or different subsections of this rule. The penalty given in the above list for repeat violations is intended to apply only to situations where the repeat violation is of a different subsection of this rule than the first violation. Where the repeat violation is the very same type of violation as the first violation, the penalty set out above will generally be increased over what is shown for repeat violations.

   4. Where several of the above violations shall occur in one or several cases being considered together, the penalties shall normally be cumulative and consecutive.

      
      

   5. The provisions of this section shall not be construed so as to prohibit civil action or criminal prosecution as provided in Part III of Chapter 489, F.S., and Section 381.0065, F.S., or for a violation of any provision of part I of Chapter 386,

F.S. . . .

1. Respondent has met its burden of proving by clear and convincing evidence that Petitioner violated Chapters 381, 386,

   and 489, Florida Statutes, and the rules implementing those statutes. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

2. Petitioner violated Section 381.0065(4), Florida Statutes, and Rules 10D-6.055(3)(a), 10D-6.055(3)(f), 10D- 6.0751(l)(k), and 10D-6.0751(1)(l)2, Florida Administrative Code, when he removed the outlet filters from the septic tanks of six of his customers. Petitioner's removal of these filters created a potential sanitary nuisance which is prohibited by Section 386.041(b), Florida Statutes. His gross misconduct was fraudulent and deceitful, causing monetary harm to his customers.

3. Petitioner violated Rule 10D-6.0751(1)(l)2, Florida Administrative Code, when he pumped out the septic tanks of two of his customers leaving sludge and solids in the bottom of their tanks. Petitioner's failure to perform his contractual duty to properly maintain his customers' tanks created a sanitary nuisance contrary to Section 386.041(b), Florida Statutes. His gross misconduct caused a potential health hazard and monetary harm to his customers.

4. Petitioner violated Section 489.553(3)(a), Florida Statutes, and Rules 10D-6.072(3)(b) and 10D-6.0751(1)(a), Florida Administrative Code, when he failed to disclose his felony convictions prior to his registration. Without that information, Respondent was unable to determine whether Petitioner was of good moral character, and therefore, eligible to become registered.

   Petitioner obtained his registration through fraud or misrepresentation.

5. Petitioner violated Rule 10D-6.0751(a), Florida Administrative Code, when he repeatedly used an unauthorized business name in his septic tank contracting business.

6. Respondent concedes that any issue related to revocation of Petitioner's registration is moot because it has already been revoked. Because Petitioner is no longer regulated by Respondent, the undersigned is without subject matter jurisdiction to apply the disciplinary guidelines contained in Rule 10D-6.0751, Florida Administrative Code. Respondent has cited no authority which would require the undersigned to impose an administrative fine for the following reasons: (a) using an unauthorized business name contrary to Rule 10D-6.0751(1)(a), Florida Administrative Code; (b) obtaining registration through fraud or misrepresentation contrary to Rule 10D-6.0751(1)(i), Florida Administrative Code; (c) practicing fraud or deceit contrary to Rule 10D-6.0751(1)(k), Florida Administrative Code; and (d) gross misconduct which causes a customer monetary harm contrary to Rule 10D-6.0751(1)(l)2, Florida Administrative Code. Accordingly, charges against Petitioner relating to these offenses are hereby dismissed.

7. Petitioner is still subject an administrative fine which would apply to any non-registered person, such as an owner or operator, who is guilty of the following: (a) modifies a

   septic tank system by removing the outlet filter after the initial inspection contrary to Section 381.0065(4), Florida Statutes, and Rules 10D-6.055(3)(a), and 10D-6.055(3)(f), Florida Administrative Code; and (b) creates a potential sanitary nuisance and then refuses to correct the problem contrary to Chapter 386, Florida Statutes. Accordingly, Petitioner should be fined $6,000 for removing the filter and creating a sanitary nuisance on the property of six of his customers.

8. Petitioner is also subject to an administrative fine for creating a potential sanitary nuisance by refusing to pump out all of the sludge and solids from the septic tanks of two of his customers and refusing to correct the problems after notice contrary to Chapter 386, Florida Statutes. In this case, Petitioner stood in the shoes of his customers due to his contractual obligation to properly maintain their septic systems. Accordingly, Petitioner should be fined $1,000.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent enter a Final Order imposing an administrative fine in the amount of $7,000 against Petitioner.

DONE AND ENTERED this 5th day of September, 1997, in Tallahassee, Leon County, Florida.

SUZANNE F. HOOD

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 5th day of September, 1997.

COPIES FURNISHED:

Thomas D. Koch, Esquire Department of Health Building 6, Room 133

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Larry A. Ford 25295 CR 137

O'Brien, Florida 32071

Angela T. Hall, Agency Clerk Department of Health Building 6

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Pete Peterson, Esquire Department of Health Building 6, Room 102-E

Tallahassee, Florida 32399-0700

James Howell, Secretary Department of Health Building 6, Room 306

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: 97-000898

Orders for Case No: 97-000898