STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 95-1470

) NORMAN SUTTON, d/b/a NORMAN ) SUTTON CONSTRUCTION CO., )

)

Respondent. )

)

RECOMMENDED ORDER

Final hearing in the above-styled case was held on June 30, 1995. The parties, attorneys, witnesses, and court reporter attended the hearing in Ft. Myers. Robert E. Meale, Hearing Officer of the Division of Administrative Hearings, participated by videoconference from Tallahassee.

APPEARANCES

The parties were represented at the hearing as follows: For Petitioner: Susan Scott

Senior Health Attorney Department of Health and

Rehabilitative Services Post Office Box 60085

Ft. Myers, Florida 33906

For Respondent: Attorney Melanie A. McGahee

333 South Commercio, Suite B Clewiston, Florida 33440

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent created a sanitary nuisance by installing drainfield pipes too far apart in a septic tank drainfield and failing to seal the lid to a septic tank, failing to call for a required inspection before covering an onsite sewage disposal system, and engaging in gross misconduct by assaulting two of Petitioner's employees.

PRELIMINARY STATEMENT

By undated Administrative Complaint, Petitioner alleged that Respondent is registered and authorized by Petitioner to provide septic tank contracting services. The Administrative Complaint alleges that, on or about May 4, 1994, on West DelMonte Avenue in Clewiston, Respondent installed an onsite sewage treatment and disposal system. The Administrative Complaint alleges that Petitioner disapproved the system for three violations and that Respondent

corrected only one of them before covering the system and placing it in operation without Petitioner's approval.

The first alleged violation is of Rule 10D-6.075(2)(a) and (c), Florida Administrative Code. The Administrative Complaint alleges that Respondent installed a system not properly sealed and with an improper drainfield.

The second alleged violation is of Rule 10D-6.075(4)(d). The Administrative Complaint alleges that Respondent failed to call for reinspection of an already- disapproved system before covering the system.

The third alleged violation is of Rule 10D-6.075(4)(l)1. The Administrative Complaint alleges that Respondent's threatening behavior interfered with an employee of Petitioner in the discharge of his duties and such action constitutes misconduct.

The Administrative Complaint seeks the imposition of a $1000 fine for the alleged violations.

By Answer served August 25, 1994, Respondent admitted that he installed a new drainfield for a septic tank system on the date and at the site in question. Respondent asserted that Petitioner unreasonably withheld approval of the installation, after which Respondent covered the system. The answer adds: "Because the Respondent is in disagreement with the department regarding their disapproval of the installed system, the alleged violations have not been altered . . .." Respondent also denied interfering with or opposing en employee of Petitioner in the discharge of his duties. Respondent concludes by requesting reasonable attorneys' fees.

At the hearing, Petitioner called three witnesses and offered into evidence ten exhibits. Respondent called one witness and offered into evidence two exhibits. All exhibits were admitted, but deemed withdrawn when not later transmitted to the Division of Administrative Hearings. However, the absence of the exhibits was not material in view of the detailed descriptions of the documents and photographs provided by the witnesses.

Neither party ordered a transcript. Rulings on timely filed proposed recommended orders are in the appendix.

FINDINGS OF FACT

1. Respondent is registered with Petitioner as a septic tank contractor and authorized to provide septic tank contracting services.

   
   

2. On May 4, 1994, pursuant to a previously issued permit, Respondent completed the installation of a new drainfield at 204 West DelMonte Avenue in Clewiston. He asked Petitioner's office for an inspection for approval to cover the system.

   
   

3. Jim Rashley, an environmental specialist employed by Petitioner, inspected the system on the morning of May 4. No one was at the site during the inspection.

   
   

4. Mr. Rashley discovered a violation concerning the type of header pipe. He also discovered that the drain lines were more than 36 inches apart and 18 inches from the side of the field. Mr. Rashley determined that the drainfield pipes were three feet and four inches apart.

5. Examining the septic tank itself, which Respondent had pumped, Mr. Rashley found that the lid had not been properly resealed, which would allow rain or dirt to enter the tank or effluent to escape from the tank if the drainfield failed.

   
   

6. Returning to his office, Mr. Rashley informed his supervisor, Steve Havig, that he was failing the system and called Respondent and told him the same thing. Respondent asked Mr. Rashley to come out to the site so they could both examine the system, and Mr. Rashley agreed.

   
   

7. When they met at the site, Respondent asked Mr. Rashley to point out the three violations, which he did. Respondent's response was to tell him that he was sick and tired of college kids telling him how to install septic tank systems. Mr. Rashley said that he could not ignore violations of the rules. After Respondent became more upset, he moved to within inches of Mr. Rashley's face and asked him if he would approve the system. Mr. Rashley answered he would if Respondent fixed the violations.

   
   

8. While Respondent yelled at Mr. Rashley only a few inches from his face, Mr. Rashley, feeling very uncomfortable, retreated to his vehicle and started to drive back to his office. Respondent got into his vehicle and tailgated Mr. Rashley the entire way. When they arrived at Mr. Rashley's office, Respondent told the secretary to call Mr. Rashley's boss.

   
   

9. Claiming that Mr. Rashley had unfairly disapproved the system, Respondent asked Mr. Havig to visit the site himself. Mr. Havig agreed to do so.

   
   

10. Mr. Havig visited the site on the morning of May 5 outside the presence of Respondent. He confirmed the violations. At their closest point, the drain lines were three feet four inches apart, and the septic tank lid was not sealed. Mr. Havig left a message for Respondent with this information.

    
    

11. At Respondent's request, Mr. Havig agreed to meet Respondent at the site at 1:30 pm. Returning from lunch with two other men, Mr. Havig stopped off at the site to meet Respondent. He found that the header pipe violation had been corrected, but the other violations had not been.

    
    

12. Mr. Havig and Respondent talked about the separation of the drain lines. Respondent said he could not move the pipe without disturbing the elevation, which is crucial to the functioning of the drainfield. Mr. Havig said he could either move the pipe or add another line so as to reduce the maximum separation between lateral lines to below 36 inches. Respondent complained that he could not maintain the position of the flexible pipe when pouring gravel over the pipes.

    
    

13. Respondent became angry. He grabbed a section of the plastic pipe and said that he would show Mr. Havig. The gravel fell in behind the place where the pipe had rested. Respondent declared that he would get the homeowner's approval to cover up the system rather than modify it. Mr. Havig went to his car to get a camera, and Respondent began using a lot of vulgarity.

    
    

14. As Mr. Havig took pictures of the installation, Respondent became angrier. His face turned red and he accused Mr. Rashley and Mr. Havig of harassing him. He warned Mr. Havig that, if they did not stop, they would have to suffer the repercussions. Moving very close to Mr. Havig and pounding his

    fist into his hand, Respondent asked Mr. Havig if he knew what Respondent meant. Mr. Havig said yes, that it was time for him to go.

    
    

15. Respondent covered the system up shortly after Mr. Havig departed. Respondent did not allow a reinspection of the system to determine if he corrected either the separation of the drain lines, which he admits he did not correct, or if he sealed the septic tank lid, which he claims he did correct.

    
    

16. Respondent has worked as a septic tank contractor in the area for 18 years. The likelihood of system failure is high if a septic tank lid is not properly sealed before the system is covered and placed into operation. Respondent appears to have been a responsible contractor. Based on these facts, there is enough doubt on the lid-sealing issue to preclude finding that Petitioner proved by clear and convincing evidence that Respondent did not seal the lid before covering the system.

    
    

17. The pipes constituting the drain lines are manufactured to allow 18 inches of effluent to escape from either side of the pipe. By installing lines with more than 36 inches between each other or 18 inches between a line and a side, Respondent reduced the efficiency of the drainfield because parts of the drainfield, which lies beneath the lines, will not receive as much effluent as other parts of the drainfield.

    
    

18. For awhile, due to safety concerns, Petitioner had to send two inspectors to inspect Respondent's work sites. Respondent never apologized to either Mr. Rashley or Mr. Havig until, acknowledging his unprofessional behavior, he apologized during the hearing. Respondent also noted that Petitioner has dealt with him professionally since the incidents in question.

    
    

19. Petitioner and Respondent have had troubled dealings in the past. On one occasion, Petitioner insisted on the placement of a drainfield adjacent to an existing, failed drainfield, even though the existing and proposed drainfields drained directly into a canal. Respondent wanted to locate the drainfield well away from the canal. Unable to secure approval locally, Respondent took an appeal to Petitioner's representatives in Tallahassee, who approved Respondent's original, more sensible plan to relocate the drainfield.

    
    

20. On the other hand, Respondent violated the minimum- separation rule for drain lines in 1993. Petitioner fined Respondent for the violation.

    
    

    CONCLUSIONS OF LAW

    
    

21. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes. All references to Rules are to the Florida Administrative Code.)

    
    

22. Petitioner must prove the material allegations by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

    
    

23. Rule 10D-6.075 provides in relevant part:

    
    

    * * *

    1. No contractor shall construct, alter, modify, repair, or install an onsite sewage treatment and disposal system without receiving a permit from the department.

       1. No contractor shall install, modify or repair an onsite sewage treatment and disposal system which will violate standards set forth in Chapter 381, F.S., or Chapter 10D-6, F.A.C.,

          without evidence that a variance has been granted.

          * * *

          1. No contractor shall perform services which will cause or increase the likelihood of pollution to ground or surface waters or which will increase the threat to the health and safety of the public.

             * * *

             (4) The following actions by a person included under this rule shall be deemed unethical and

             subject to penalties as set forth in rule 10D-6.0751:

             * * *

          2. Failure to call for required inspections.

          * * *

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

          1. Causes no monetary or other harm to a customer, or physical harm to any person. Example of such a violation would be the illegal disposal of septage by a contractor.

          
          

24. Rule 10D-6.056(4)(b) states that the distance between the centers of distribution lines in standard beds shall be a maximum of 36 inches. The distance between the sidewall of the bed and the center of the outside drain line shall be no more than 18 inches ....

    
    

25. Section 386.041 identifies sanitary nuisances that increase the threat of harm to the public. They include "[u]ntreated or improperly treated human waste . . .," under Section 386.041(1)(a).

    
    

26. Petitioner failed to prove that Respondent failed to seal the septic tank lid prior to covering the system.

    
    

27. Petitioner proved that Respondent installed drain lines too far apart, that Respondent failed to call for an inspection prior to covering up a system, and that Respondent engaged in gross misconduct in his dealings with two of Petitioner's employees.

    
    

28. The rules do not specify a penalty for the installation of drain lines too far apart, which, pursuant to Rule 10D- 6.0751(1)(p), does not mean that there is no penalty for such a violation of Chapter 10D-6.

    
    

29. Rule 10D-6.0751(1)(d) provides that a failure to call for required inspections carries a $250 fine for the first violation and a $500 fine and 90- day suspension for a repeat violation.

    
    

30. Rule 10D-6.075(1)(l)1 provides that gross misconduct resulting in no harm to a customer carries a $500 fine for the first violation and a $500 fine and 90-day suspension or revocation for repeat violations.

    
    

31. Rule 10D-6.075(3) states that 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 . . . in a prior case." The rule adds

    that a repeat violation exists "regardless of whether the violations are of the same or different subsections of this rule."

    
    

32. Rule 10D-6.075(2) lists some aggravating and mitigating circumstances, including monetary harm to a customer; uncorrected actual violations reflecting gross incompetence, negligence, or misconduct; the severity of the offense;

    the danger to the public; number of repetitions of the offense; and length of time the contractor has practiced. Concerning Respondent's assaultive behavior and failure to call for the required inspection, Respondent has greatly mitigated the penalty by admitting his mistake and apologizing. Concerning the spacing of the drain lines, the record does not permit a finding of the extent, if any, to which the spacing irregularity in this case poses a sanitary nuisance or otherwise threatens to pollute the ground or surface water.

    
    

33. These factors suggest that the penalties be lessened from the recommendations in the rule and even the lesser amounts sought by Petitioner. Respondent should be fined a total of $500 with the understanding that he now has of the serious potential penalties, including revocation, for future offenses.

RECOMMENDATION

It is

RECOMMENDED that Petitioner enter a final order finding Respondent guilty of violating Rule 10D-6.056(4)(b) and thus 10D- 6.075(2)(a) by installing a drainfield with excessive separation between drain lines, Rule 10D-6.075(4)(d) by failing to call for a required inspection, and Rule 10D-6.075(4)(l)1 by engaging in gross misconduct in his behavior toward two of Petitioner's employees. It is further recommended that the final order impose an administrative fine against Respondent in the amount of $500.

ENTERED on July 14, 1995, in Tallahassee, Florida.

ROBERT E. MEALE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Floirda 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings on July 14, 1995.

APPENDIX

Rulings on Petitioner's Proposed Findings

All adopted or adopted in substance except that Respondent failed to seal the septic tank lid, which is rejected as unsupported by the appropriate weight of the evidence.

COPIES FURNISHED:

Susan Mastin Scott Senior Health Attorney Department of Health and

Rehabilitative Services

P.O. Box 60085

Ft. Myers, FL 33906

Attorney Melanie A. McGahee

333 S. Commercio, Suite B Clewiston, FL 33440

Robert L. Powell Agency Clerk

Department of Health and Rehabilitative Services

1323 Winewood Boulevard

Tallahassee, FL 32399-0700

Martha Valiant, M. D. Director, Hendry County

Public Health Unit

P.O. Box 70 LaBelle, FL 33935

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: 95-001470

Orders for Case No: 95-001470