STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH,

Petitioner,

vs.

VIRGIL CARDIN, d/b/a VIRGIL CARDIN SEPTIC TANK SERVICE,

Respondent.

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) Case No. 13-0462

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RECOMMENDED ORDER

Pursuant to notice this case was heard by video teleconference at sites in Tallahassee and Lakeland, Florida, on March 21, 2013, before J. D. Parrish, an Administrative Law Judge with the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Shawee Smith, Esquire

Roland Reis, Esquire

Polk County Health Department 1290 Golfview Avenue, Fourth Floor Bartow, Florida 33830-6740

For Respondent: Tony C. Dodds, Esquire

Law Office of Tony C. Dodds 904 South Missouri Avenue Lakeland, Florida 33803-1034

STATEMENT OF THE ISSUES

Whether Respondent, Virgil Cardin, d/b/a Virgil Cardin Septic Tank Service (Respondent or Cardin), committed the violations alleged in the Administrative Complaint for Imposition

of Administrative Fines and Revocation of Septic Tank Contractor License and Business Authorization, dated December 28, 2012, and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

The Florida Department of Health (Petitioner), through the Polk County Health Department, filed an Administrative Complaint against Respondent that alleged violations of Florida Administrative Code Chapter 64E-6. More specifically, Petitioner claimed: Respondent had initiated work on a septic system without first obtaining a permit; had failed to call for pre-work inspections; had practiced fraud or deceit; had committed misconduct which caused no monetary or other harm to a customer; and, because he has been found in violation of these provisions in the past, should have his license or authorization revoked.

Respondent timely contested the proposed action and requested a hearing on the disputed issues of fact.

The case was forwarded to DOAH for formal proceedings on February 6, 2013. Thereafter, the case was scheduled for hearing in accordance with the Joint Response to Initial Order.

At the hearing, Petitioner presented testimony from Kevin King and Bart Harriss. Petitioner's Exhibits 1 through 9 were admitted into evidence. Respondent testified in his own behalf and presented testimony from Tom and Judy Digan ( the Digans).

A transcript of the proceedings was not ordered. The parties were granted ten days within which to file their proposed recommended orders. Both parties timely filed proposed orders that have been fully considered in the preparation of this Recommended Order.

FINDINGS OF FACT

The Parties

1. Petitioner is the state agency charged with the responsibility of administering the Standards for Onsite Sewage Treatment and Disposal Systems (SOSTDS). The installation, repair, and/or alteration of any septic tank system fall within the purview of Petitioner's authority. Public health concerns mandate that all septic tank systems be operated according to governing laws and rules.

2. Respondent is a resident of the State of Florida and is registered by Petitioner to provide septic tank contracting services within the state. Respondent's registration number is SR0890865.

3. Respondent owns and operates Virgil Cardin Septic Tank Service located in Lakeland, Florida, and the company is authorized to provide septic tank contracting services. The company's authorization number is SE093690.

4. Septic tank contracting services are governed by SOSTDS.

   
   

   The Controversy

   
   

5. It is undisputed that a permit must be obtained prior to performing repairs to a septic tank system. In Polk County (where all actions complained of occurred), a septic tank service company is required to apply for a permit before work is performed, obtain an inspection by appropriate authorities before beginning work, and complete all work in accordance with designated standards.

6. A septic tank pump-out does not require a permit. Any work that would involve the exposure of the drain fields and/or the refitting of portions of the septic system would require a permit.

7. The controversy in this case stems from Respondent's failure to obtain a permit before beginning repairs to a septic tank system located at 4931 Rolling Meadows Drive, Lakeland, Florida. It is undisputed that Respondent did not, in advance of starting work at the home, obtain a permit.

   The Arguments

   
   

8. The Digans own a home located at 4931 Rolling Meadows Drive, Lakeland, Florida. For several years, the Digans have experienced problems with their septic tank system to the point that waste from the septic system has backed up into their home.

9. Previously, Respondent addressed the Digans' septic tank system problems by pumping the waste from the tank, thereby

   
   

   eliminating pressure on the overwrought system. On or about August 24, 2012, Respondent went to the Digans' home and pumped out the septic tank. A permit for the work done that date was not required.

10. Given the history of the problems with the Digans' system, it became apparent to the owners and Respondent that comprehensive repairs to the system were necessary. As there was no way to predict when another pump-out might be required, it was not surprising that approximately one week later Respondent returned to the Digans' property for additional work.

11. On that date, September 1, 2012, Respondent could not pump out the Digans' tank, because his truck was already full. Instead, Respondent took a backhoe to the Digans' property and began to dig trenches for the drain field. Respondent's employee began to construct a septic drain line header pipe with drain field chamber end plates attached. Respondent exposed the Digans' septic system as if he were going to make repairs to the system.

12. When confronted by two environmental supervisors who observed Respondent's actions, Respondent readily admitted he did not have a permit for the work. At first, Respondent stated that the homeowners could not afford permits. Later, Respondent maintained that the work he performed on September 1, 2012, did not require a permit.

    
    

13. Petitioner maintains that Respondent went to the Digans' home on September 1, 2012, to make repairs to the septic tank system without prior inspection or a required permit.

    The Analysis

    
    

14. Prior to September 1, 2012, Respondent knew or should have known that the Digans' septic tank system needed extensive repairs. Respondent had pumped out the tank several times and should have known that the system was not functioning as intended.

15. Prior to September 1, 2012, Respondent knew or should have known that repairs to any septic tank system require an inspection and permit.

16. On September 4, 2012, after being caught the prior Saturday on the Digans' property, Respondent applied for a permit for the repairs to the Digans' septic tank system.

17. On September 5, 2012, a repair permit was issued for the Digans' property.

18. On September 7, 2012, the repairs to the Digans' system were inspected and approved.

19. There was no emergency on September 1, 2012, that necessitated repairs to the Digans' septic tank system on that date. Pumping out the Digans' tank on that date would have addressed any immediate concern.

    
    

20. On-site inspections before septic tank systems are repaired are critical to public health because they assure that groundwater contamination is avoided, that the existing tank is sound and will function as intended, and that setbacks to other properties, wells, or systems are adequate.

21. Respondent knew or should have known that performing any work before an inspection negates the safeguards to public health concerns.

22. Respondent knew or should have known that the materials needed to adequately repair the Digans' septic tank system exceeded the chambers he took to the site on September 1, 2012.

23. Digging up the Digans' system on September 1, 2012, created a sanitary nuisance.

    Respondent's History

    
    

24. In the event a violation is found in this case, Respondent's disciplinary history would be relevant in considering what penalty, if any, should be imposed. To that end the following findings are made:

    1. Respondent has previously been found in violation of failing to call for a required inspection; and

    2. Respondent has previously been found in violation of practicing fraud or deceit, making misleading or untrue misrepresentations, or misconduct that causes no monetary harm to a customer.

    
    

    CONCLUSIONS OF LAW

    
    

25. DOAH has jurisdiction over the parties to and the subject matter of these proceedings. § 120.57(1), Fla. Stat. (2012).

26. In this matter, Petitioner bears the burden of proof to establish that Respondent engaged in the conduct complained of in the Administrative Complaint. To that end, Petitioner must establish by clear and convincing evidence the allegations against Respondent. See Dep't of Banking & Fin., Div. of Sec. & Inv. Prot. v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996); and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

27. Clear and convincing evidence "requires more proof than a 'preponderance of the evidence,' but less than 'beyond and to the exclusion of a reasonable doubt.'" In re Graziano, 696

    So. 2d 744, 753 (Fla. 1997). Evidence that is credible, denoted by precise facts and information that a witness distinctly remembers, is sufficient to support the burden of clear and convincing evidence. See In re Davey, 645 So. 2d 398 (Fla.

    1994), and Slomowitz v. Walker, 429 So. 2d 797 (Fla. 4th DCA 1983).

28. Rule 64E-6.022 provides in part:

    
    

    64E-6.022 Standards of Practice and Disciplinary Guidelines.

    
    

    1. It shall be the responsibility of persons registered under this rule to see

       
       

       that work for which they have contracted and which has been performed by them or under their supervision is carried out in conformance with the requirements of all applicable Florida Statutes and Chapter

       64E-6, F.A.C. 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.

       
       

       * * *

       
       

       (b) Permit violations.

       
       

       1. Contractor initiates work to install, modify, or repair a system when no permit has been issued by the department. A permit is issued after construction is started but prior to completion of the contracted work. No inspections are missed. First violation, letter of warning or fine up to $500; repeat violation, $500 fine and 90 day suspension or revocation.

          
          

       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, letter of warning or fine up to

       $1000; repeat violation, revocation.

       
       

       * * *

       
       

       (d) Failure to call for required inspections. First violation, letter of warning or fine up to $500; repeat violation, letter of warning or fine up to

       $500 and 90 day suspension or revocation.

       
       

       * * *

       
       

       (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.

          
          

29. Section 489.556, Florida Statutes (2012), provides:

    
    

    Suspension or revocation of registration.--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.

       
       

    3. Obtained his or her registration or any other order, ruling, or authorization by means of fraud, misrepresentation, or concealment of material facts.

       
       

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

       
       

30. Section 381.0065, Florida Statutes (2012), provides, in

    
    

    part:

    
    

    (1) LEGISLATIVE INTENT.--

    
    

    1. It is the intent of the Legislature that proper management of onsite sewage treatment and disposal systems is paramount to the health, safety, and welfare of the public.

       
       

    2. It is the intent of the Legislature that where a publicly owned or investor- owned sewerage system is not available, the department shall issue permits for the construction, installation, modification, abandonment, or repair of onsite sewage treatment and disposal systems under conditions as described in this section and rules adopted under this section. It is further the intent of the Legislature that the installation and use of onsite sewage treatment and disposal systems not adversely affect the public health or significantly degrade the groundwater or surface water.

    
    

    * * *

    
    

    (4) PERMITS; INSTALLATION; AND CONDITIONS.-- A person may not construct, repair, modify, abandon, or operate an onsite sewage treatment and disposal system without first obtaining a permit approved by the department. . . .

    
    

31. Petitioner has established by clear and convincing evidence that Respondent violated provisions of law as alleged in the Administrative Complaint. Moreover, Petitioner has established that this Respondent is a repeat offender. Petitioner has established that Respondent initiated work without first applying for a permit and calling for an inspection as required by law. Second, Petitioner has proved that Respondent misrepresented the circumstances of the repairs to be made for the Digans. Under any circumstance, repair to the Digans' septic tank system required a permit, required inspections before and after the work was performed, and required that appropriate materials be used to address the failing septic system. It is concluded that the work performed by Respondent on September 1, 2012, required a permit. Respondent's self-serving testimony that he did not intend to make repairs on September 1, 2012, has not been deemed credible. The drainage fields were being excavated when Respondent was observed by authorities. The outlet pipe and other connections were in the stage of being assembled. Respondent may meant well trying to save the homeowners a costly repair with added permit fees, but that is unacceptable as a matter of law. Moreover, this Respondent has been disciplined on at least two prior occasions for violations of the rules governing septic tank services.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent's authorizations to perform septic tank services be suspended for a period not less than 90 days. Additionally, it is RECOMMENDED that Respondent be required to pay an administrative fine in an amount not less than

$2,000.00.

DONE AND ENTERED this 6th day of May, 2013, in Tallahassee,

Leon County, Florida.

S

J. D. PARRISH

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 2013.

COPIES FURNISHED:

John H. Armstrong, M.D., F.A.C.S. State Surgeon General

Department of Health Bin A00

4052 Bald Cypress Way Tallahassee, Florida 32399-1701

Jennifer A. Tschetter, General Counsel Department of Health

Bin A02

4052 Bald Cypress Way Tallahassee, Florida 32399-1701

Althea Gaines, Agency Clerk Department of Health

Bin A02

4052 Bald Cypress Way Tallahassee, Florida 32399-1703

Tony C. Dodds, Esquire

Law Office of Tony C. Dodds 904 South Missouri Avenue Lakeland, Florida 33803-1034

Roland Reis, Esquire

Polk County Health Department

1290 Golfview Avenue, Fourth Floor Bartow, Florida 33830-6740

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: 13-000462

Orders for Case No: 13-000462