STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 91-0044

) ALPHA SEPTIC INDUSTRIES, ) INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William R. Cave, held a formal hearing in the above styled case on June 11, 1991, in Sebring, Florida.

APPEARANCES

For Petitioner: Raymond R. Deckert, Esquire

Health Program Attorney, District VI 4000 West Dr. Martin Luther King

Jr. Blvd.

Tampa, Florida 33614

For Respondent: James F. McCollum, Esquire

129 South Commerce Avenue Sebring, Florida 33870

STATEMENT OF THE ISSUES

Whether an administrative fine should be imposed against the Respondent pursuant to Section 381.112, Florida Statutes, under the facts and circumstances of this case.

PRELIMINARY STATEMENT

On April 4, 1990 the Petitioner, Department of Health and Rehabilitative Services (Department) served an administrative

complaint on Paul Poore, a registered agent for Respondent, Alpha Septic Industries, Inc. (ASI) wherein Paul Poore was named a party. As a result of a motion hearing before Circuit Judge Joe R. Young, Jr. the Department agreed to amend the administrative complaint by deleting Paul Poore as a party. The amended administrative complaint was served on ASI on November 15, 1990. By the amended administrative complaint the Department seeks to impose an administrative fine against ASI in the amount of $150.00 per day until the alleged violation is corrected not to exceed $4,500.00. As grounds for the administrative fine it is alleged that ASI violated Rule lOD- 6.055(2)(b), Florida Administrative Code, by failing to assure that the walls of a certain fiberglass septic tank manufactured by ASI and installed in an onsite sewage disposal system serving 3727 Thunderbird Hill Circle, Sebring, Florida, were of the thickness required by the above cited rule. ASI requested a formal hearing and this proceeding ensued. Prior to the formal hearing in the case, a Motion to Dismiss or In the Affirmative Motion for Summary Judgment filed by ASI was heard and denied.

At the hearing, the Department presented the testimony of Dan Young, James B. Fisher, and Edward Dixon. The Department's composite exhibit 1 and exhibits 2 and 3 were received into evidence. ASI presented the testimony of Russell L. Lehman, Russell Plamann, Evelyn Keller, Richard LaPasula, Ted G. Kaipainon and Paul H. Poore. ASI's exhibits l through 16 were received into evidence.

A transcript of this proceeding was filed with the Division of Administrative Hearings on June 27, 1991. ASI, with the concurrence of the Department, requested and was granted an extension of ten days to file its proposed findings of fact and conclusions of law. The parties timely filed their respective proposed findings of fact and conclusions of law within the extended time frame. A ruling on each proposed finding of fact had been made as reflected in an Appendix to the Recommended Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:

1. At all times material to this proceeding, ASI, a corporation, was a manufacturer of fiberglass septic tanks in Sebring, Florida.

   
   

2. At all times material to this proceeding, ASI was on the state of Florida list of approved septic tank manufacturers. For a septic tank manufacturer to be put on the state of Florida list of approved septic tank manufacturers, the manufacturer must convince the Department that it will manufacture septic tanks in accordance with the standards and specifications set forth in Rule 10D-6.054 (General Standards for Treatment Receptacles) and Rule 10D-6.055 (Construction Materials for Treatment Receptacles), Florida Administrative Code.

   
   

3. A 1050 gallon fiberglass septic tank was installed at 3727 Thunderbird Hill Circle, Sebring, Florida by Dan Young, a licensed septic tank contractor. Final inspection in accordance with Rule 10D-6.043(2), Florida Administrative Code was made by the Department of this septic tank installation, and the installation was approved on May 24, 1984. However, during the Final Inspection the tank was partially covered with only the top of the tank visible which limited the amount of light available for a visual inspection for thin spots by Dixon.

   Young does not specifically remember this particular fiberglass septic tank as being manufactured by ASI because he did not remember being on the job and present when this particular tank was installed, and he did not check this particular tank to determine the manufacturer. However, it was Young's recollection that all of the fiberglass septic tanks used in Thunderbird Hill Village I, where this particular tank was installed, were purchased and picked up from ASI.

   
   

4. Likewise, neither Edward Dixon, who made the final inspection and approved the installation of this tank and who inspected the tank after the complaint was filed, nor James Fisher, who inspected the tank after the complaint was filed, specifically looked for, and do not recollect seeing any information on the tank that identified the manufacturer or the date of manufacture.

   
   

5. Neither Young nor Dixon checked the tank in question for thickness even though there was an opportunity to do so, and did not notice any readily visible thin spots in the tank during the installation or final inspection. Young's reason for not checking the thickness of the tank was that it was purchased from an approved manufacturer, and he assumed it was made to specifications. Dixon's reasons for not checking the tank for thickness was that it was not one of the standard checks in the final inspection for approval, and since the tank was partially

   covered it would have required drilling a plug in the tank which was impractical.

   
   

6. On September 12, 1989 a complaint was filed with the Department alleging that the septic tank at 3727 Thunderbird Hill Circle had "caved inwards" and was cracked. The complaint alleged a wall thickness of approximately 0.140-0.160 inch.

   
   

7. On or about September 14, 1989, the Department, in response to the complaint, had inspector Dixon visit the site. Dixon drilled and removed a plug approximately one inch in diameter from the tank and carried the plug to Fisher at the Department's office in Sebring, Florida. While at the site, Dixon measured the tank's wall thickness around the drilled plug site with a micrometer. The wall thickness measured between

   0.140 and 0.150 inch in this area.

   
   

8. Fisher measured the plug at three different locations with a micrometer. The measured thickness of the plug was 0.147, and 0.157 and 0.162. The micrometer used by Fisher had been checked for accuracy, and found to be accurate within 0.0002 inch.

   
   

9. There was no evidence that the plug was taken from the area of the tank that had "caved-in", only that Dixon had randomly selected an area on the top of the tank from which he took the plug.

   
   

10. Although no one saw any heavy equipment run over this particular tank, there was evidence that other tanks in this area had been run over after installation which required them to be repaired. Also, Fisher testified that upon viewing the tank that it appeared to have been impacted by a heavy weight causing it to be crushed or "bowed-in". There was no evidence to show that the tank had been cracked. There was insufficient evidence to show that the "caving-in" was the result of the tank being below specifications on wall thickness.

    
    

11. There was testimony that heat, light and certain caustic material placed in the tank may have some effect on a fiberglass tank, but there was no substantial competent evidence to show how the tank may be effected or if it was affected.

    
    

12. ASI was notified of the complaint on October 10, 1989, and requested to correct the alleged deficiency or an administrative would be imposed. The alleged deficiency was not corrected, and an administrative complaint was served on ASI on

    November 15, 1990. As of the date of the formal hearing, ASI had not corrected the alleged deficiency.

    
    

13. This particular fiberglass septic tank is still in service, and no effluent was leaking from this tank and running to the surface of the ground. The tank does not constitute a health hazard.

    
    

14. ASI had previously repaired fiberglass septic tanks during installation where it was shown that an isolated area of the septic tank wall was below the thickness specifications. However, the Department had not previously cited ASI for any violation of the thickness specification for walls in septic tanks manufactured by ASI.

    
    

15. The Department has inspected the ASI facility on at least an annual basis for compliance with the Sanitary Code of Florida, and has always found ASI to be in substantial compliance with the code, notwithstanding certain derogatory remarks on at least three occasions. Other than a visual inspection for thin spots, the Department does not check for compliance with the wall thickness specifications for fiberglass septic tanks in its annual or other inspections of the manufacturing plant or at the final inspection and approval of an onsite sewage disposal system.

    CONCLUSIONS OF LAW

    
    

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

    
    

17. Under the authority granted the Department in Section 381.031(1)(g), Florida Statutes, the Department promulgated and adopted Chapter 10D-6, Florida Administrative Code as part of the Sanitary Code of Florida.

    
    

18. Rule 10D-6.054, Florida Administrative Code, sets out the general standards for the design of all treatment receptacles (septic tanks) manufactured for use in Florida, unless specifically exempted by other provisions of these rules. Rule 10D-6.055, Florida Administrative Code, sets out the specific requirements such as wall thickness for all treatment receptacles (septic tanks) made from the different construction materials, including manufactured fiberglass septic tanks.

    
    

19. Rule lOD-6.055(1)(b), Florida Administrative Code, was first adopted on December 22, 1982, and became effective on January 1, 1983. This version of the rule provided that fiberglass septic tanks of no less than three-sixteenth inch would be allowed in small isolated areas for tanks not exceeding a capacity of 1500 gallons. Rule lOD-6.55(1)(b), Florida Administrative Code, was amended on February 5, 1985, and presently provides in pertinent part as follows:

    
    

    (b) . . . Fiberglass tanks with an effective liquid capacity of not over 1500 gallons shall have a minimum wall thickness of one- quarter inch. However, a wall thickness of not less than three-sixteenths inch will be allowed in small isolated areas of the tank.

    
    

20. Rule lOD-6.043(2), Florida Administrative Code, provides in pertinent part as follows:

    
    

    (2) Final Inspection - Before covering with earth and before placing a system in service, a person installing or constructing a septic tank, drainfield, or other onsite sewage disposal system shall have the system inspected by the Department for compliance with the requirements of this Chanter. . . .

    If the system is approved, the Department

    shall issue "Final Installations Approval" notice (HRS-H Form 4016) to the installer. .

    . . (e. s.)

    
    

21. Rule lOD-6.042(5), Florida Administrative Code, defines approval as an onsite sewage disposal system constructed and installed in compliance with technical standards and requirements of this chapter.(e. s.) This rule goes on to say that an "Approved" installation does not imply that a system will perform satisfactorily for any specific period of time.

    
    

22. Section 381.112(1) and (2), Florida Statutes, provides in pertinent part as follows:

    
    

    1. In addition to any administrative action authorized by chapter 120 or by other law, the Department of Health and Rehabilitative Services may impose a fine, which shall not exceed $500 for each violation, . . . for a violation of any rule contained in the Sanitary Code of Florida. .

       . . 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. Actions taken by the owner or operator to correct violations.

          
          

       3. Any previous violations. (e. s. )

          
          

23. The Department has the burden of establishing facts to show that the fiberglass septic tank installed at 3727

Thunderbird Hill Circle was manufactured by ASI and that the wall thickness of that tank was below the thickness specifications requirement of Rule lOD-6.065(2)(b), Florida Administrative Code, for fiberglass septic tanks manufactured for use in Florida. The Department has met its burden in this regard. However, considering that the violation was not the cause of the damage to the tank and the violation created no problem for the landowner or create a health hazard for the public, the gravity of the violation will not support such a heavy fine as $4,500.00 which is being proposed by the Department. Particularly, when you consider that the Department may have found this violation during the Final Inspection and had it corrected, had Dixon made a visual inspection for thin spots in this tank when sufficient light was available to make such inspection meaningful. Although the Department has the discretion not to impose a fine, it is necessary to impose a fine in this case to put ASI on notice of the necessity for its quality control to assure that all tanks manufactured by ASI for use in Florida meet all the requirements the applicable sections of the Sanitary Code of Florida.

RECOMMENDATION

Having considered the foregoing findings of fact and conclusions of law, the mitigating factors provided in Section 381.112(2), Florida Statutes, and the Department's responsibility under these circumstances, it is, recommended that the Department enter a Final Order finding ASI guilty of violating Rule 10D-6.055(1)(b), Florida Administrative Code, and assessing an administrative fine in the amount of $200.00 pursuant to Section 381.112(1), Florida Statutes.

DONE and ENTERED this 7th day of August, 1991, in Tallahassee, Florida.

_

WILLIAM R. CAVE

Hearing Officer

Division of Administrative Hearings

The DeSoto Building 1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings

this 7th day of August, 1991.

APPENDIX

The following contributes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case.

Rulings on Proposed Findings of Fact Submitted by the Petitioner

1.-2. Adopted in Findings of Fact 1 and 3, respectively, as modified.

3. Adopted in Findings of Fact 3, 5, and 15, as modified. 4.-9. Adopted in Findings of Fact 6, 7, 7, 8, 12, and 12,

respectively, as modified.

1. Rejected but see Finding of Fact 10.

2. Adopted in Finding of Fact 11.

3. Not material or relevant but see Finding of Fact 8.

Rulings on Proposed Findings of Fact Submitted by Respondent

1. Adopted in Finding of Fact 3, as modified.

2. The second sentence adopted in Findings of Fact 3 and 4, as modified. The balance of paragraph 2 is legal

   argument

   and not a Finding of Fact.

3. Not a Finding of Fact but a statement of the contents of a rule or conclusion of law.

4. Covered in Preliminary Statement.

5.-6. Adopted in Finding of Fact 3, as modified.

7.-8. More of a legal argument or conclusion of law than a Finding of Fact.

9.-10. Not material or relevant but see Finding of Fact 5. 11.-13. Adopted in Finding of Fact 5, as modified.

14. Rejected. The Department made a prima facie showing that the tank installed was manufactured by ASI since it was purchased and picked up from ASI by Young. Therefore,

the

burden shifted to ASI to prove these facts. ASI failed in that regard.

15.-17. Not material or relevant, but see Finding of Fact 10.

1. Adopted in Finding of Fact 10, as modified.

2. Adopted in Findings of Fact 6 and 10, as modified.

3. Adopted in Finding of Fact 13, as modified.

4. Not material or relevant.

5. Paragraph 22 is argument as to the credibility of Fisher's

   testimony, and not a Finding of Fact.

6. Not material or relevant.

24.-25. Adopted in Finding of Fact 15, as modified. 26.-27. Not material or relevant.

28. Adopted in Finding of Fact 15, as modified.

29.-33. Either legal argument or Conclusion of Law and not Findings of Fact.

34. Adopted in Finding of Fact 14, as modified.

35.-38. Either legal argument or Conclusion of Law and not Findings of Fact.

COPIES FURNISHED:

Raymond R. Deckert, Esquire

Health Program Attorney, District VI

4000 West Dr. Martin Luther King Jr. Blvd. Tampa, FL 33614

James F. McCollum, Esquire

129 South Commerce Avenue Sebring, FL 33870

John Slye, General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Blvd.

Tallahassee, FL 32399-0700

R. S. Power, Agency Clerk Department of Health and

Rehabilitative Services 1323 Winewood Blvd.

Tallahassee, FL 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO 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: 91-000044

Orders for Case No: 91-000044