STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 96-2837

)

MICHAEL W. BEEBE, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing by videoconference in Tallahassee, Florida, on August 30, 1996. The parties, attorneys, witnesses, and court reporter participated by videoconference in Fort Myers, Florida.

APPEARANCES

For Petitioner: Susan Mastin Scott

Senior Attorney Department of Health and

Rehabilitative Services Post Office Box 60085

Fort Myers, Florida 33906

For Respondent: Attorney Michael F. Kayusa

Post Office Box 6096

Fort Myers, Florida 33911 STATEMENT OF THE ISSUES

The issues are, as to a septic-tank cleaning job, whether Respondent is guilty of failing to remove all contents and committing gross negligence, incompetence, or misconduct causing monetary harm to a customer; and, as to the repair of a drainfield, whether Respondent is guilty of failing to call for a reinspection of an installation prior to covering it up. If Respondent is guilty of any of these acts or omissions, then another issue is the penalty to be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated May 17, 1996, Petitioner alleged that Respondent is a registered septic tank contractor.

In Count I, Petitioner alleges that Respondent contracted with Charles Allen to replace a septic tank drainfield and pump out a septic tank at his residence on Marco Island. The Administrative Complaint alleges that Respondent performed the work in November 1995, and Mr. Allen paid Respondent at least

$1500. On February 3, 1996, septic waste allegedly began backing up into Mr. Allen's home because his tank allegedly had 8-10 inches of solid waste on the bottom. Mr. Allen allegedly paid another contractor $250 to pump out the tank and later unsuccessfully sought reimbursement from Respondent.

Count I alleges that Respondent thereby violated Rule 10D-6.050(2), Florida Administrative Code, which requires that a contractor cleaning a septic tank remove "all contents, including scum, liquid, sludge and solids." Count I alleges that Respondent's acts and omissions constitute gross negligence, incompetence, or misconduct causing monetary harm to a customer and are thus subject to the penalties of Rule 10D-6.0751(1)(l)2, which imposes a $500 fine and 90-day suspension for the first violation and a $500 fine and revocation for a repeat violation. Count I alleges that the acts and omissions also constitute false-payment statements and are thus subject to the penalties of Rule 10D- 6.075(1)(e), which imposes a $500 fine for the first violation and a $500 fine and one-year suspension or revocation for a repeat violation.

In Count II, Petitioner alleges that Respondent installed a new drainfield in March 1996. Petitioner's inspection of the work allegedly revealed that the drainfield was 4.8 inches lower than permitted, a large amount of drainfield aggregate was sinking into the drainfield replacement material in the center of the drainfield, and Respondent had added an extension to an existing drainfield rather than installed a replacement drainfield, as the repair permit required. Count II alleges that Respondent covered the new system without calling for a reinspection.

Count II alleges that Respondent thereby violated Rule 10D-6.043(2), which requires inspection by Respondent of a repair prior to final covering of the system. Count II alleges that this violation is subject to the penalties imposed by Rule 10D-6.075(1)(d), which imposes a $250 fine for the first violation and a $500 fine or revocation for a repeat violation. Count II alleges that Respondent's acts or omissions also constitute gross negligence, incompetence, or misconduct causing monetary harm to a customer in violation of Rule 10D-6.0751(1)(l)2, whose penalties are set forth above.

In its request for relief, Petitioner declared that it intended to impose a fine of $1250 and a 180-day suspension, together with the requirement that Respondent make all necessary corrections to the job described in Count II.

At the hearing, Petitioner called four witnesses and offered into evidence

10 exhibits, which were all admitted except for Petitioner Exhibit 2. Respondent called one witness and offered into evidence no exhibits.

The parties did not order a transcript.

FINDINGS OF FACT

1. Respondent is a registered septic tank contractor. He is licensed locally to install septic tanks in Lee and Collier counties, where he has installed 250-450 septic tank systems in the past 15 years. He has been a septic-tank contractor for 25 years. He has a good record for performing septic-tank services.

   
   

2. In November 1995, Respondent performed work for Charles Allen on Marco Island. The work consisted of drainfield repairs and a septic-tank pumpout.

3. Respondent performed the drainfield repairs and pumped out the liquids from the tank, but failed to pump out the solids from the bottom of the tank. Unaware that the solids had not been removed, Mr. Allen paid Respondent the

   $1500 price on which they had agreed for all of the work.

   
   

4. Three months later, Mr. Allen's septic tank backed up, dumping sewage in his home. This happened late at night, and Respondent was unable to come right over to repair the system. Mr. Allen thus contacted another contractor, who, for $205, pumped out at least eight inches of solids, which were causing the sewage to back up into the house. Since the repairs, Mr. Allen has had no other problems with his system.

   
   

5. It is evident that Respondent failed to remove the solids in November, as three months are insufficient time for this kind of build-up and Mr. Allen's system has worked fine since the failure in February.

   
   

6. In March 1996, Respondent performed repair work to a drainfield in Bonita Springs. Petitioner rejected the work for final approval on March 27, 1996. The grounds for rejection were that the drainfield was installed 4.8 inches too low, a large amount of the drainfield aggregate was sinking into the drainfield replacement material, and Respondent had added an extension onto the existing drainfield, rather than replace the entire drainfield, as the repair permit had required.

   
   

7. Petitioner's inspector informed Respondent of the rejection on March

1. On April 3, the inspector drove by the site and found that Respondent had covered the repaired system without having first called for a reinspection.

   
   

   1. Circumstances unknown to Respondent, the homeowner, and Petitioner at the time of initial permit rendered almost the entire plan for this repair job unfeasible. Among other factors was the fact that the drainfield was planned for a front yard, sandwiched between a driveway and a landscaped area. Also, Respondent discovered deficiencies in the original drainfield once he uncovered it.

      
      

   2. However, Respondent was not justified failing to call for a reinspection before covering the system. Respondent was irritated with Petitioner's representative for failing to come immediately to inspect the work, but this is no excuse for covering the repaired system with dirt prior to obtaining a reinspection.

      
      

   3. Shortly before the final hearing, Respondent dug up the system, installed an entirely new drainfield, and completed the repairs in a satisfactory fashion.

      
      

      CONCLUSIONS OF LAW

      
      

   4. The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes. All references to Rules are to the rules in the Florida Administrative Code in effect at the time of the offenses.)

      
      

   5. Petitioner must prove the material allegations by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern and Company, Inc., 670 So. 2d 932 (Fla. 1996) and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

   6. Section 489.556(2) and (4) provides that Petitioner may revoke or suspend a certificate of registration of a septic -tank contractor for violating any rule of Respondent or being found guilty of "gross misconduct in the pursuit of his profession."

      
      

   7. Rule 10D-6.075(4) identifies the following as unethical actions subject to discipline:

      
      

      1. Failure to call for required inspections.

      2. False payment statements which are the result of assessing the customer for work not performed.

         (l) Gross negligence, incompetence, or misconduct . . ..

         
         

   8. Given the short period of time between Respondent's work on Mr. Allen's septic tank and its failure, plus its trouble-free operation since, it is evident that Respondent failed to clean out the solids in November. But an isolated failure to remove the solids from a septic tank is not necessarily evidence of gross negligence, incompetency, or incompetence. The omission may have been the result of internal miscommunication on a job involving not just a relatively simple septic-tank pumpout, but also a relatively more involved drainfield installation. Obviously, Respondent did the drainfield work correctly. Ordinarily a sign of gross misconduct, Respondent's failure to return to the site immediately to fix the problem was ameliorated by the lateness of the call.

      
      

   9. Respondent's failure is more accurately described as a false payment statement. Clearly, Respondent billed Mr. Allen for work that was not performed.

      
      

   10. Absent aggravating or mitigating factors, Rule 10D-6.075(1)(e) calls for the imposition of a $500 fine for the first violation of the rule prohibiting false statements and a $500 fine and one-year suspension or revocation for a repeat violation.

       
       

   11. Rule 10D-6.043(2) requires an inspection prior to final covering of the system. The rule requires a reinspection of previously failed systems before they are covered.

       
       

   12. Respondent failed to call for the reinspection prior to covering the system in Bonita Springs. However, Petitioner has failed to prove any other violations on the Bonita Springs job.

       
       

   13. Absent aggravating or mitigating factors, Rule 10D-6.075(1)(d) calls for the imposition of a $250 fine for the first violation and $500 fine and 90- day suspension for a repeat violation.

       
       

   14. Rule 10D-6.0751(3) provides that a repeat violation is any violation by a licensee who has had other disciplinary action taken against him, without regard to the order in which the violations occurred and whether the violations are of the same provisions of the rules.

       
       

   15. Absent aggravating or mitigating factors, the rules call for penalties of $500 for the false payment statement, as a first-time offense, and $500 and a 90-day suspension or revocation for the failure to call for a required inspection, as a repeat offense.

   16. The recommended penalty in this case should be reduced due to the correction that Respondent made at the Bonita Springs site and Respondent's long history of septic-tank contracting without significant discipline. The sole penalty should be a fine of $1000.

RECOMMENDATION

It is

RECOMMENDED that the Department of Health and Rehabilitative Service enter a final order imposing an administrative fine of $1000 against Respondent for a false payment statement and failure to call for reinspection prior to covering a system.

ENTERED on October 10, 1996, in Tallahassee, Florida.

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings on October 10, 1996.

COPIES FURNISHED:

Susan Mastin Scott Senior Attorney Department of Health and

Rehabilitative Services Post Office Box 60085

Fort Myers, Florida 33906

Attorney Michael F. Kayusa Post Office Box 6096

Fort Myers, Florida 33911

Richard Doran, General Counsel Department of Health and

Rehabilitative Services

1317 Winewood Boulevard, Room 204

Tallahassee, Florida 32399-0700

Gregory D. Venz, Agency Clerk Department of Health and

Rehabilitative Services 1317 Winewood Boulevard Building 2, Room 204X

Tallahassee, Florida 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 must be filed with the agency that will issue the final order in this case.

Docket for Case No: 96-002837

Orders for Case No: 96-002837