STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 95-3613

)

SUSAN and RON BURKETT, ) d/b/a/ U. S. A. SEPTIC TANK ) COMPANY and WORKING MAN )

SEPTIC TANK, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, this matter came on for hearing in Pensacola, Florida, before the Division of Administrative Hearings by its duly designated Administrative Law Judge, Diane Cleavinger, on May 8, 1994.

APPEARANCES

For Petitioner: Ron Ringo, Esquire

Department of Health and Rehabilitative Services

District 1, Legal Office Post Office Box 8420

Pensacola, Florida 32505-8420

For Respondent: Susan Burkett, Pro se

Post Office Box 3648 Pensacola, Florida 32516

STATEMENT OF THE ISSUE

The issue addressed in this proceeding is whether Respondents should be disciplined for violating provisions of Chapters 381, 386 and 489, Florida Statutes, governing septic tank installation and licensure.

PRELIMINARY STATEMENT

On July 11, 1995, the Department filed an Administrative Complaint against Respondents, Susan and Ron Burkett, d/b/a U.S.A. Septic Tank Company and Working Man Septic Tank. The Administrative Complaint alleged that Respondents should be disciplined for violating Chapter 10D-6, Florida Administrative Code.

Respondents disputed the allegations of the complaint and requested a formal administrative hearing. Respondents' request along with the Administrative Complaint were forwarded to the Division of Administrative Hearings.

At the hearing, Petitioner called two witnesses and offered three exhibits into evidence. Respondents participated in the hearing, but did not testify at the hearing.

After the hearing, Petitioner filed a Proposed Recommended Order on September 3, 1996, conceding that it did not carry its burden of proof in regards to Respondents. Respondents did not file a Proposed Recommended Order.

FINDINGS OF FACT

1. Respondent, Susan Burkett, is registered with the Department as a septic tank contractor. She is registered to provide such contracting services under the name U.S.A. Septic Tank Company.

   
   

2. Respondent, Ron Burkett, is married to Susan Burkett. She employs her husband in her septic tank business.

   
   

3. In the past, Ron Burkett, has done business as Working Man Septic Tank. Neither Ron Burkett nor Working Man Septic Tank have ever been registered septic tank contractors. Mr. Burkett was previously disciplined for the unregistered practice of septic tank contracting. However, there was no non-hearsay evidence presented in this case which demonstrated that Mr. Burkett continues to perform unregistered septic tank work. Likewise there was no substantive evidence which demonstrated that Susan Burkett aided her husband in practicing as an unregistered septic tank contractor.

   
   

4. Around March 29, 1995, U.S.A. Septic Tank was hired by Architectural Trends, Inc. to install an on-site 1500 gallon septic tank system for $1500.00. Respondent, Ron Burkett, dug the hole for the septic tank. The septic tank was delivered to the site and was actually placed in the ground by another company. The placement of the tank was difficult because of the layout of the structures on the lot and the soft sandy soil of the lot. Neither Respondent was present when the septic tank was placed in the hole.

   
   

5. The company who placed the tank in the ground placed the tank backwards. Additionally, at some point in the process from the tanks supplier to its placement in the hole dug by Mr. Burkett the tank was cracked.

   
   

6. For reasons not established by the evidence, the contractor contracted with the company who installed the tank to re-install a new tank and complete additional sewage work necessitated by the tanks elevation. The contractor paid

   $5081.00 for the second company's work.

   
   

7. However, the evidence did not show that either Respondent walked off the job. Likewise, the evidence did not show that either Respondent was negligent in the installation of the tank or caused their employer any monetary harm. This lack of evidence was caused by the fact that the Respondents' employer for the job who had personal knowledge of the facts, could not be found and, therefore, did not testify at the hearing.

   
   

8. Given the facts of this case, the Administrative Complaint against Respondents should be dismissed.

CONCLUSIONS OF LAW

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

1. Chapter 10D-6, Florida Administrative Code, is the Chapter which regulates the installation of onsite sewage disposal systems and the registration of onsite sewage disposal contractors in the State of Florida.

   
   

   10D-6.070 General Provisions.

   1. Persons shall not hold themselves out as septic tank contractors or contract to provide septic tank services in the state unless registered by the department in accordance with the provisions of this rule.

   2. Persons licensed pursuant to subsection 489.105(3)(m), F.S., shall not be prohibited by this Part from engaging in the profession for which they are licensed.

      * * * 10D-6.071 Definitions.

      (1) Septic Tank Contractor -- a person responsible for a contracted project who, for compensation, undertakes to, submits a bid to, or does himself or by others construct, install, alter, repair, modify, or maintain an onsite sewage disposal system. A contractor must possess the experience, knowledge, skill and ability to provide services in the septic tank trade pertaining to installation, maintenance, construction, alteration, repair, pumping or design where not prohibited by law, of any kind of onsite sewage disposal system or

      its components.

      * * *

      10D-6.072 Requirements for Registration.

      (1) Persons subject to registration -- A person shall be subject to the require- ments of this rule if he or she contracts to provide services to the public or holds himself or herself out as being capable of performing services related to any of the following activities in the onsite sewage disposal industry regulated by the department.

      1. Installation of onsite sewage disposal systems.

      2. repair of onsite sewage systems.

      3. Modification of onsite sewage disposal systems.

      4. Maintenance of onsite sewage disposal systems.

      5. Septic tank pumping and septage disposal services, excluding companies which only provide portable toilet services.

      * * *

      (4) The following actions by a person included under this rule shall be deemed unethical and subject to penalties as set forth in section 10D-6.075:

      (a) Providing contracted services without obtaining registration from the department, failure to obtain a certificate of author- ization for a firm which provides contracted services, acting under a name not registered or authorized by the department, offering to provide septic tank contracting services without maintaining a current registration or authorization.

      
      

2. Petitioner has the burden to establish by clear and convincing evidence that Respondent violated the above listed sections of Chapter 10D-6, Florida Administrative Code, under the allegations of the Administrative Complaint. In this case, Petitioner has failed to establish that either Respondent is guilty of violating Chapter 10D-6, Florida Administrative Code. Therefore, the Administrative Complaint should be dismissed.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law it is, accordingly,

RECOMMENDED, that the Department dismiss the Administrative Complaint. DONE and ENTERED this 23rd day of October, 1996, in Tallahassee, Leon

County, Florida.

DIANNE CLEAVINGER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 1996.

COPIES FURNISHED:

Ron Ringo, Esquire Department of Health and

Rehabilitative Services

160 Governmental Center Pensacola, FL 32501

Susan Burkett

U.S.A. Septic Tank Company Working Man

Post Office Box 3648 Pensacola, FL 32516

Gregory D. Venz, Agency Clerk Department of Health and

Rehabilitative Services Building 7, Suite 204-X 1317 Winewood Boulevard

Tallahassee, FL 32399-0700

Richard Doran, Esquire Department of Health and

Rehabilitative Services Building 7, Room 204

1317 Winewood Boulevard

Tallahassee, FL 32399-0700

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: 95-003613

Orders for Case No: 95-003613