STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

)

Petitioner, )

)

vs. ) Case No. 97-4598

)

HERMAN CAMPBELL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on December 15, 1997, in Shalimar, Florida, before Donald R. Alexander, the assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Rodney M. Johnson, Esquire

1295 West Fairfield Drive Pensacola, Florida 32501

For Respondent: Willie Harmon (Qualified Representative) Post Office Box 733

Fort Walton Beach, Florida 32548 STATEMENT OF THE ISSUE

The issue is whether Respondent should have an administrative fine imposed for allegedly providing septic tank contracting services without a license.

PRELIMINARY STATEMENT

This matter began on August 21, 1997, when Petitioner, Department of Health, issued an Administrative Complaint alleging

that Respondent, Herman Campbell, had provided septic tank contracting services without registering with the agency, performed a repair of a septic tank system without obtaining the required permit or inspection from the agency, and had engaged in misconduct that had caused financial harm to the customer. As relief, the complaint seeks the imposition of a $2,000.00 administrative fine on Respondent.

The matter was referred by Petitioner to the Division of Administrative Hearings on October 9, 1997, with a request that an Administrative Law Judge be assigned to conduct a formal hearing. By Notice of Hearing dated November 3, 1997, a final hearing was scheduled on November 25, in Shalimar, Florida. At the request of Petitioner, the hearing was continued to December 15, 1997, at the same location.

At final hearing, Petitioner presented the testimony of Wayne Sullivan, the son-in-law of the alleged customer; Jack Prewitt, an agency environmental specialist; and Larry W. Thomas, environmental supervisor of the Santa Rosa County Health Department. Also, it offered Petitioner's Exhibit 1 which was received in evidence. Respondent was represented by Willie Harmon, a Qualified Representative. Respondent testified on his own behalf and offered Respondent's Exhibit 1. The exhibit has been received in evidence.

There is no transcript of hearing. Proposed findings of fact and conclusions of law were filed by Petitioner on

December 22, 1997, and they have been considered by the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. When the events herein occurred, Respondent, Herman Campbell, operated a back-hoe service in Santa Rosa County, Florida. He presently holds no licenses with, or registrations from, Petitioner, Department of Health (Department), to engage in the septic tank contracting business.

2. In April 1997, Wayne Sullivan, who resides in Navarre, Florida, made arrangements with a local contractor, Robert Hoover, to dig up the drainfield and replace the pipe on a septic tank system at his mother-in-law's home at 8207 Laredo Street, Navarre. Hoover purchased the necessary pipe but then backed out of the job at the last minute. Sullivan then called Mary Esther Plumbing, who recommended that Respondent be used. Respondent was a former licensed septic tank contractor who had installed the original septic tank at the residence more than ten years earlier.

3. Sullivan agreed to purchase all materials (pipe and gravel) needed for the job. Although Sullivan claims that Respondent told him he was licensed to do the work, it is found that Respondent indicated to Sullivan that he held no license or registration and could not obtain any permits. Notwithstanding Respondent's lack of licensure, Sullivan nonetheless asked Respondent to perform the work.

4. Respondent undertook the job on or about Thursday,

   
   

   April 24, 1997. Charging a rate of $45.00 per hour to operate his back-hoe, Respondent replaced the pipe in the drainfield. In addition, he dug up a number of stumps in the front yard. The total charge for all work, including the stump removals, was

   $1,375.00, which was paid by check from the mother-in-law. The amount related to the septic tank work is not known.

5. The following Monday, the Department received an anonymous complaint that an unlicensed person had performed septic tank contracting services for Sullivan's mother-in-law. After an investigation was conducted by a Department environmental specialist, an administrative complaint was issued.

6. Respondent did not register with the Department before performing the work, and he did not obtain the required permit from, and inspection by, the Department. By failing to do so, Respondent acted in contravention of Department rules.

7. Although the complaint alleges that Respondent caused monetary harm to the customer, there is no evidence that Sullivan's mother-in-law suffered any damages by virtue of Respondent's work. Indeed, at hearing, Sullivan indicated that he was pleased with Respondent's workmanship. While the Department suggests that the mother-in-law has been left with an "unauthorized drainfield," there is no evidence that this caused her to incur additional expense.

8. Respondent contended that he was merely "digging a

   ditch" with his back-hoe and was not providing septic tank contracting services. However, the evidence shows that he dug the ditch, removed the old pipe, placed gravel in the bed, and laid the new pipe into the ditch, all of which relate to septic tank contracting services. While Sullivan may have assisted Respondent in performing these tasks, it does not relieve Respondent of the responsibility of complying with Department rules.

9. Respondent also contended that he was being singled out for enforcement purposes because he is black. There was no evidence, however, to support this contention.

10. In mitigation, Respondent believed he was working with Sullivan, as the owner of the property, in jointly performing the work, and there was no intent on his part to evade the licensing requirements. In addition, there was no danger to the public, and the customer's property was not damaged. Although the Department contends that Respondent has installed many septic tanks and drain fields "without a permit," there is no evidence in the record of specific jobs performed illegally by Respondent. Finally, the $2,000.00 administrative fine suggested by the Department would appear to have an adverse impact on Respondent's livelihood.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto

    pursuant to Section 120.57(1), Florida Statutes.

    
    

12. Because Respondent is subject to penal sanctions, including the imposition of an administrative fine, Petitioner bears the burden of proving by clear and convincing evidence that the allegations in the complaint are true. See, e.g., Osborne

Stern & Co., Inc., v. Dep't of Banking and Finance, 670 So. 2d 932, 933 (Fla. 1996).

1. The complaint alleges that Respondent: (a) violated Rule 10D-6.0751(1)(a), Florida Administrative Code [now renumbered as Rule 64E-6.022(1)(a)], by failing to register with the Department to provide septic contracting services; (b) violated Rule 10D-6.0751(1)(b)2., Florida Administrative Code (now renumbered as Rule 64E-6.022(1)(b)1.), by performing a repair on a septic system without obtaining the required permit or inspection from the Department; and (c) violated Rule

   10D-6.0751(1)(l)2., Florida Administrative Code (now renumbered as Rule 64E-6.022(1)(l)2.), by committing misconduct which causes monetary harm to a customer.

2. As to the first charge, Petitioner has established by clear and convincing evidence that Respondent provided contracting services without obtaining registration from the Department. In reaching this conclusion, the undersigned has construed Respondent's action of digging a trench, placing gravel in the trench, laying pipe, and then covering the pipe with gravel as being services within the purview of the Department's regulation. Therefore, Respondent has violated Rule

   64E-6.022(1)(a), Florida Administrative Code.

   
   

3. As to the second charge, there is clear and convincing evidence that Respondent initiated work to "install, modify, or repair a system when no permit has been issued by the

   department," as proscribed by Rule 64E-6.022(1)(b), Florida

   Administrative Code. Therefore, the second charge has been sustained.

4. Finally, there is less than clear and convincing evidence that Respondent engaged in misconduct which caused "monetary harm" to a customer within the meaning of Rule

   64E-6.022(1)(l)2., Florida Administrative Code. Therefore, this portion of the complaint should be dismissed.

5. For a violation of Rule 64E-6.022(1)(a), Florida Administrative Code, the Department may impose a letter of warning for the first violation and a $500 fine for a repeat violation. For a violation of Rule 64E-6.022(1)(b), the Department may impose a $1,000.00 fine for a first violation. Also relevant to these disciplinary guidelines are circumstances enumerated in Rule 64E-6.022(2)(a)-(k), Florida Administrative Code, which may be considered for purposes of mitigation and aggrevation of penalty.

6. Because the evidence shows that this is the first occasion on which Respondent has provided contracting services without obtaining registration from the Department, a letter of warning is appropriate for the first rule violation. As to the second rule violation, there are mitigating circumstances present, as outlined in paragraph 10, which justify the imposition of a lower fine. Therefore, the undersigned recommends that a $250.00 fine be imposed.

RECOMMENDATION

Based on 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 violating Rules

64E-6.022(1)(a) and (b), Florida Administrative Code, and that Respondent be issued a letter of warning as to the first violation and that an administrative fine in the amount of

$250.00 be imposed for the second violation. The allegation that Respondent violated a third rule should be dismissed.

DONE AND ENTERED this 6th day of January, 1998, in Tallahassee, Leon County, Florida.

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 1998.

COPIES FURNISHED:

Angela T. Hall, Agency Clerk Department of Health Building 6, Room 102

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Rodney M. Johnson, Esquire 1295 West Fairfield Drive

Pensacola, Florida 32501

Herman Campbell 621 Oak Lane

Fort Walton Beach, Florida 32548

Willie Harmon

Post Office Box 733

Fort Walton Beach, Florida 32548

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

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 Department of Health.

Docket for Case No: 97-004598

Orders for Case No: 97-004598