STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was conducted in this proceeding before Diane Cleavinger, Administrative Law Judge, Division of Administrative Hearings on February 26, 2008, in Marianna, Florida.

APPEARANCES

For Petitioner: Rodney M. Johnson, Esquire

Department of Health Northwest Law Office

1295 West Fairfield Drive Pensacola, Florida 32501

For Respondent: No appearance

STATEMENT OF THE ISSUE

Whether Respondent’s license as a septic tank contractor should be disciplined.

PRELIMINARY STATEMENT

On October 26, 2007, Petitioner filed an Administrative Complaint against Respondent, alleging that his license should be revoked for violation of Section 381.0065(3)(c), Florida Statutes, and Florida Administrative Code Rule 64E-6.022(1)(l)1. Specifically, the Administrative Complaint alleges that Respondent should be fined and his license revoked for gross misconduct that occurred when Respondent threatened bodily harm to an inspector from the Department and later threatened to have the inspector fired if he did not approve the septic system Respondent was installing.

Respondent disputed the allegations of the Administrative Complaint and requested an administrative hearing pursuant to Section 120.57, Florida Statutes. Thereafter, the case was forwarded to the Division of Administrative Hearings for formal proceedings.

At the hearing, Petitioner presented the testimony of one witness. Respondent, G. D. Yon, Jr., did not appear at the hearing after receiving sufficient notice of the hearing.

Additionally, at the conclusion of the hearing, Count III of the Administrative Complaint was dismissed with the concurrence of Petitioner since there was no evidence to support a finding that Respondent’s actions caused monetary harm to his customer.

After the hearing, Petitioner submitted a Proposed Recommended Order on March 19, 2008.

FINDINGS OF FACT

1. Respondent is registered with Petitioner as a septic tank contractor and authorized to provide septic tank contracting services, holding Registration No. SR0890264 and Authorization No. SA0900453.

2. David B. Grimes is employed by Bay County Health Department as an inspector responsible for the inspection of on- site sewage systems.

3. On August 22, 2007, Mr. Grimes inspected an on-site sewage treatment disposal system (OSTDS) being constructed by Respondent at 5431 John Pitts Road, Panama City, Florida.

4. The OSTDS failed to meet the minimum rule requirements due to a defective tank and improperly installed drainfield. The tank was defective because its dimensions were smaller than the dimensions required to enable the tank to have sufficient

   liquid capacity for the system being installed. Mr. Grimes told Respondent that he could not approve the system.

5. Upon learning that the system would not be approved, Respondent, who is a large man and larger than the inspector, threatened to do bodily harm to Mr. Grimes and stated, “I am going to whip your ass”. He also used other profanity in a threatening and serious voice. The inspector began to put his

   tools into the tool container on the back of his truck. When the inspector attempted to close the container’s lid and leave, Respondent blocked the path of the inspector and would not let him close the truck-bed lid. Respondent insisted the system be inspected and approved so he could finish the job. Other than blocking his path, Respondent did not take any other physical action towards harming Mr. Grimes. Other than with his hands, the evidence did not show that Respondent had the means to cause serious harm to Mr. Grimes. However, Mr. Grimes felt some fear for his safety and was very uncomfortable. He refused to approve the system and left the premises. He called his supervisor to report the incident and request a second inspection by his supervisor. Later that day, Mr. Grimes and his supervisor inspected the OSTDS. Respondent was not present. The inspector concurred with Mr. Grimes’ findings and the system was not approved.

6. On August 23, 2007, Mr. Grimes made a second visit to the property to continue the inspection of the OSTDS. The drainfield was corrected and a new and larger tank was installed. The dimensions of the tank were again smaller than required to meet the liquid capacity of the tank. Additionally, the tank had a gap in the seal around the intake feed line. It was, therefore, defective and could not be approved.

7. Mr. Grimes told Respondent that he could not approve the system. Respondent again grew angry when he was told the new tank was also defective and would not be approved. Respondent stated that Mr. Grimes was the worst inspector in the area and made other derogatory remarks towards him. Respondent also threatened to make trouble with the inspector’s employment and/or “get him fired” unless the system was passed. The evidence did not show that Respondent made any physical moves toward Respondent or otherwise impeded his inspection. The inspector was again fearful for his personal safety although the evidence did not demonstrate a reasonable basis for such fear. The OSTDS was not approved and Mr. Grimes left the work site.

8. There was no evidence that Respondent followed through with interfering with Mr. Grimes’ employment.

9. At best, the evidence showed that Respondent’s threat to interfere with the inspector’s employment was mere hyperbole. Such comments are common. While silly and rude, the mere threat of an employment action does not rise to the level of being unlawful and does not demonstrate misconduct sufficient to impose discipline on Respondent’s license.

10. On the other hand, the actions of Respondent towards the inspector when he threatened to do bodily harm to the inspector, and blocking his attempts to leave unless he approved the system, did constitute gross misconduct on the part of

    Respondent. Even though Respondent’s actions were unsuccessful, Respondent’s words coupled with his conduct go beyond mere hyperbole and constitute an unlawful threat towards a public official to influence the official’s actions.

11. Respondent’s actions did not cause physical or monetary harm to any person.

12. In the past, Respondent was disciplined by letter of warning in Case Number SC0478 in 2000, for covering a new installation in violation of the system construction standards and by citation in Case Number SC0591 in 2001, for creation of a sanitary nuisance, negligence, misconduct, and falsification of inspection report. The instant violation is a second violation for misconduct and a repeat violation of the rules of the Department.

    CONCLUSION OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2007).

14. Inspectors are authorized to inspect construction of OSTDS, and assure construction and installations are in compliance with applicable laws and rules.

15. Section 381.0065(3)(c), Florida Statutes, states, in pertinent part:

    
    

    [Department shall] Develop a comprehensive program to ensure that onsite sewage treatment and disposal systems regulated by the department are sized, designed, constructed, installed, repaired, modified, abandoned, used, operated, and maintained in compliance with this section and rules adopted under this section to prevent groundwater contamination and surface water contamination and to preserve the public health. The department is the final administrative interpretive authority regarding rule interpretation. In the event of a conflict regarding rule interpretation, the Division Director of Environmental Health of the department, or his or her designee, shall timely assign a staff person to resolve the dispute.

    
    

16. Chapter 381.0061(1), Florida Statutes, states "in addition to any administrative action authorized by Chapter 120 or by other law, the department may impose a fine, which shall not exceed $500.00, for each violation of Section 381.0065, Florida Statutes . . ."

17. Section 489.556, Florida Statutes, states, in pertinent part:

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

    
    

    * * *

    
    

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

    
    

18. Florida Administrative Code Rule 64E-6.022 states in pertinent part:

    1. . . . The following actions by a person included under this rule shall be deemed unethical and subject to penalties as set forth in this section. The penalties listed shall be used as guidelines in disciplinary cases, absent aggravating or mitigating circumstances and subject to other provisions of this section.

       
       

       * * *

       
       

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

       
       

       1. Causes no monetary or other harm to a customer or physical harm to any person. First violation, letter of warning or fine up to $500; repeat violation, $500 fine and

       90 day suspension or revocation.

       
       

       * * *

       
       

    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. The effect of the penalty upon the

          contractor's livelihood.

       10. Any efforts at rehabilitation.

       11. Any other mitigating or aggravating 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.

       
       

19. Petitioner must prove by clear and convincing evidence that Respondent’s license should be disciplined. See Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932, 935 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); Section 120.57(1)(h), Florida Statutes ("Findings of fact shall be based on a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute.").

20. "[C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the

    witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established." In re Davey, 645 So. 2d 398, 404 (Fla. 1994), quoting, with approval, from Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

21. Section 838.021, Florida Statutes, states corruption by unlawful threat against a public servant includes threatening unlawful harm to the public servant to influence the performance of a discretionary act by the public servant.

22. "Gross" misconduct means misconduct which is immediately obvious or glaringly noticeable. See Webster's New Collegiate Dictionary (1981).

23. In this case, Respondent’s threatened job action was no more than bluster and neither unlawful or serious. Other than the threat, there was no other conduct associated with Petitioner’s threat that would cause a reasonable person to believe Respondent’s threat should be taken seriously. On the other hand, Respondent’s threat to physically harm the inspector if he did not approve the system Respondent was installing was more than words. The inspector’s attempt to leave was blocked and he was prevented from closing the lid to his tool container.

During this encounter, Respondent’s demeanor was threatening and serious. Physical threats, coupled with Respondent’s actions, are clearly gross misconduct in that such behavior constitutes a malicious and unlawful threat against a public official to influence that official’s action. Such gross misconduct is a violation of Section 489.556, Florida Statutes. See Department of Health and Rehabilitative Services v. Sutton, DOAH Case No.

95-1470 (July 14 1995). The fact that Respondent’s conduct did not result in physical or monetary harm to anyone mitigates in his favor. Additionally, there was no evidence that Respondent’s physical threat and accompanying conduct was routine or frequent. On the other hand, this violation is a repeat violation for misconduct and a second violation of the Department’s rules. Revocation would seriously impair Respondent’s livelihood and effectively terminate his septic tank business. Given these facts, the appropriate penalty under the guidelines above is a $500.00 fine and a 90-day suspension of Respondent’s registration.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore,

RECOMMENDED that Respondent's license be disciplined for violations of the Florida Administrative Code Rule 64E-6.022 and that his Septic Tank Contractor License No. SR0890264 and

Authorization No. SA0900453 be fined in the amount of $500.00 and suspended for 90 days.

DONE AND ENTERED this 5th day of May, 2008, in Tallahassee, Leon County, Florida.

S

DIANE CLEAVINGER

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 5th day of May, 2008.

COPIES FURNISHED:

Rodney M. Johnson, Esquire Department of Health Northwest Law Office

1295 West Fairfield Drive Pensacola, Florida 32501

G. D. Yon, Jr.

Yon Septic Tank Co. 2988 Hwy 71

Marianna, Florida 32446

R. S. Power, Agency Clerk Department of Health

4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701

Dr. Ana M. Viamonte-Ros, Secretary Department of Health

4052 Bald Cypress Way, Bin A-00 Tallahassee, Florida 32399-1701

Josefina M. Tamayó, General Counsel Department of Health

4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701

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: 07-005504

Orders for Case No: 07-005504