STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 92-7475

) ALAN BILLINGS d/b/a BILLINGS ) LIQUID WASTE REMOVAL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a formal hearing in this case on June 2, 1993, in New Port Richey, Florida.

APPEARANCES

For Petitioner: Shirley Hart, Esquire

Department of Health and Rehabilitative Services

11351 Ulmerton Road #407

Largo, Florida 34648-1630

For Respondent: Ron Smith, Esquire

12360 66th Street North Largo, Florida 34643

STATEMENT OF THE ISSUES

Whether or not Respondent failed to reasonably honor a warranty relating to the installation and repair of a septic tank system.

PRELIMINARY STATEMENT

By its administrative complaint filed herein, Petitioner seeks to impose a

$250.00 administrative fine against Respondent. Respondent has denied all material allegations of the administrative complaint, and has requested a formal hearing to contest the allegations. Pursuant to Respondent's request, an administrative hearing was held on June 2, 1993. At the hearing, Petitioner presented the testimony of Marilyn Mico, a clerk cashier and records custodian for the City of Hudson Water Department; Louann Augie Luanzio, a real estate agent; Frank Holter, the president of Tri-County Septic Tank Systems, and Donald Van Kampen, a supervisor employed by the Pasco County Health Unit, who was tendered and received as an expert in the installation of septic tank systems.

Respondent testified on his own behalf, and cross-examined Petitioner's witnesses. Petitioner introduced two exhibits, and Respondent introduced one exhibit, all of which were received in evidence at the hearing. Respondent

filed a proposed recommended order which was considered and is substantially incorporated in this recommended order.

FINDINGS OF FACT

1. Petitioner, the Department of Health and Rehabilitative Services, is the regulatory agency which regulates the installation and prescribed standards for on-site sewage disposal systems.

   
   

2. Respondent, Alan Billings d/b/a Billing's Liquid Waste Removal, is a Florida entity registered and authorized by Petitioner to provide septic tank contracting services.

   
   

3. On or about February 12, 1992, Respondent performed a septic tank repair at a two bedroom residential home located at 13904 Summers Avenue, in Hudson, Pasco County, Florida.

   
   

4. Respondent's repairs consisted of adding 100 square foot of drainfield to the existing system, three yards of rock, cover paper, pipe, and a distributor box.

   
   

5. Respondent provided the repairs as he agreed to on or about February 11, 1992.

   
   

6. Installation of the additional drainfield by Respondent was proper and based on the size of the home (a two bedroom house), it was adequate for the building's normal requirement.

   
   

7. Petitioner's expert, Van Kampen, testified without contradiction that the septic tank system repairs by Respondent were proper and was attached to an existing system which further added to the capacity of the system. The added capacity was far in excess of the particular purpose required for the home if used by a family of four.

   
   

8. Based on the size of the home in which Respondent made the repairs, the maximum water usage anticipated would have been 4500 gallons of water per month. Documentary evidence introduced herein indicates that during the months in question, the average water usage at the subject home exceeded 11,000 gallons per month. The unexpected usage caused a "hydraulic overload" of the system, and was not within Respondent's expectations when he repaired it. Van Kampen related that the family that resided in the home consisted of seven (7) members. Respondent was unaware of that fact nor was he apprised of this fact until subsequent to the repairs when the system failed due to a hydraulic overload.

   
   

9. Respondent did not offer a warranty to cover the "hydraulic overload" which is at issue herein.

   
   

   CONCLUSIONS OF LAW

   
   

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

    
    

11. The parties were duly noticed pursuant to Chapter 120, Florida Statutes.

12. Petitioner failed to establish that Respondent failed to reasonably honor a warranty as alleged within the purview of Section 10D-6.075(4)(f), Florida Administrative Code.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that:

Petitioner enter a final order dismissing the administrative complaint filed herein.

DONE AND ENTERED this 4th day of February, 1994, in Tallahassee, Leon County, Florida.

JAMES E. BRADWELL

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 4th day of February, 1994.

COPIES FURNISHED:

Robert Powell, Agency Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Kim Tucker, General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Ron Smith, Esquire 12360 66th Street North Largo, Florida 34643

Shirley K. Hart, Esquire HRS District V Legal Office

11351 Ulmerton Road, Suite 407

Largo, Florida 34648-1630

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: 92-007475

Orders for Case No: 92-007475