STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 92-1897

) MARCUS E. STONE, d/b/a STONE'S ) SEPTIC SYSTEMS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal hearing before P. Michael Ruff, duly-designated Hearing Officer of the Division of Administrative Hearings, on October 27, 1992, in Pensacola, Florida.

APPEARANCES

For Petitioner: Rodney M. Johnson, Esquire

Department of Health and Rehabilitative Services

District One

P.O. Box 8420

Pensacola, Florida 32505-0420 For Respondent: No appearance

STATEMENT OF THE ISSUES

The issue to be resolved in this proceeding concerns whether the Respondent installed certain septic tank and drainfield systems without having the appropriate permits from the Department of Health and Rehabilitative Services (HRS or Department) and without having the appropriate inspections performed before completing and being paid for the work in question. It is alleged, as well, that the Respondent engaged in advertising and performing septic tank contracting services under the name "Stone's Septic Services" without applying for and receiving an appropriate certificate of authorization from the Department to provide such services under that name.

PRELIMINARY STATEMENT

This cause arose upon the filing of an Administrative Complaint on March 17, 1992 by the Department, alleging, in essence, that the Respondent had violated Section 381.0065, Florida Statutes, and Rule 10D-6.043, Florida Administrative Code, by performing septic tank system repairs without a permit from the Department and without the required final inspections and approvals on dates and at locations alleged in the Administrative Complaint. It is also alleged that Rule 10D-6.075, Florida Administrative Code, was violated by the

Respondent by his alleged performance of septic tank contracting services without the proper permits, inspections and approvals of the Department; and it is alleged that Section 489.555, Florida Statutes, and Rule 10D-6.076, Florida Administrative Code, were violated by the advertising and provision of septic tank contracting services under a business name for which a certificate of authorization from the Department to provide such contracting services under that name had not been obtained.

The cause came on for hearing as noticed, and the Respondent failed to appear. The record in this proceeding indicates that due and appropriate notice was timely provided to the Respondent at the Respondent's last-known address of record, in spite of which the Respondent failed to appear. After waiting more than one-half hour for the Respondent to appear, the Hearing Officer accorded the Petitioner the opportunity to present its case-in-chief. No contact by the Respondent has since been made with the Hearing Officer to explain the reasons for his non-appearance or to make appropriate motion to alleviate his default.

Accordingly, the following Findings of Fact and Conclusions of Law are entered.

FINDINGS OF FACT

1. On December 10, 1991, the Respondent installed a drainfield and septic system for Pam Matheny. He was paid $490.00 for that job, which was to include the cost of obtaining the required permit before the installation of the system. The Respondent obtained no such permit, but proceeded to install the system, which is currently operating.

   
   

2. The Respondent performed drain line repair of a septic system for Mrs. Noel at 10 Royal Pines Drive, Pace, Florida. That job was also done without the required permit. A similar job was performed at 4844 Orleans Street, Pace, Florida, for a Mrs. Adams. No inspection of the work by the Department was obtained by the Respondent and no permit was issued to or obtained by the Respondent for the work, as established by the testimony of witness, Darla Ard, of the Santa Rosa County Health Unit of the Department.

   
   

3. Mr. William Sirmans testified. He is Ms. Ard's supervisor in the Escambia County Health Unit of the Department. All permit applications for the installation and/or repair of septic tank and drainfield sewage disposal systems are processed and issued, if appropriate, by his office. He corroborated the testimony of Ms. Ard and witness, Pam Matheny, to the effect that no permits were ever issued for the three jobs in question which were performed by the Respondent. He discussed these matters with the Respondent during the investigation process underlying this complaint and the Respondent conceded that he had performed the three jobs in question without the required permits. The required inspections, as delineated above, were not obtained either.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

5. The Department is an agency of the State of Florida having jurisdiction of this matter, pursuant to the provisions of Chapters 381, 386 and 489, Florida Statutes, and agency rules contained in Chapter 10D-6, Florida Administrative Code, cited more specifically herein regarding standards for on-site sewage disposal systems and the practice standards for septic tank contractors. The above Findings of Fact reveal that the septic tank installation and repair jobs

in question were performed by the Respondent without the relevant permits and required final inspections and approvals on the dates and locations delineated in the above Findings of Fact. It has thus been established that Section 381.0065, Florida Statutes, and Rule 10D-6.043, Florida Administrative Code, have been violated by the performance of these repairs and installations without the required permits from the Department and the required final inspections and approvals. It has also been established that Rule 10D-6.075, Florida Administrative Code, regarding the performance of septic tank contracting services without the proper permits, inspections and approvals of the Department (practice standards) has been violated. It has been established, as well, that Section 489.555, Florida Statutes, and Rule 10D-6.076, Florida Administrative Code, has been violated by the Respondent's advertisement and provision of septic tank contracting services under a fictitious name "Stone's Septic Services", without receiving the proper certificate of authorization from the Department to provide such services under that name. The above facts, as alleged and found herein, constituting violations of the statutory and rule authority cited, constitute grounds upon which the septic tank contracting registration and authorization held by the Respondent may be revoked.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore,

RECOMMENDED that a Final Order be entered by the Department of Health and Rehabilitative services revoking the Respondent's septic tank contracting registration and authorization, as provided for in the above-cited legal authority.

DONE AND ENTERED this 18th day of December, 1992, in Tallahassee, Leon County, Florida.

P. MICHAEL RUFF 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 18th day of December, 1992.

COPIES FURNISHED:

Robert L. Powell, Agency Clerk Department of HRS

1323 Winewood Boulevard

Tallahassee, FL 32399-0700

John Slye, Esq. General Counsel Department of HRS

1323 Winewood Boulevard

Tallahassee, FL 32399-0700

Rodney M. Johnson, Esq. Department of HRS District One

P.O. Box 8420

Pensacola, Florida 32505-0420

Marcus E. Stone 11601 Chemstrand Road

Pensacola, FL 32514

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT TO THE AGENCY WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST TEN DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONSULT WITH THE AGENCY CONCERNING ITS RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER.

Docket for Case No: 92-001897

Orders for Case No: 92-001897