STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

)

Petitioner, )

)

vs. ) Case No. 97-4599

)

WILLIE A. HARMON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on December 22, 1997, in Shalimar, Florida, before Donald R. Alexander, the assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Rodney M. Johnson, Esquire

1295 West Fairfield Drive Pensacola, Florida 32501

For Respondent: Willie A. Harmon, pro se

Post Office Box 733

Fort Walton Beach, Florida 32548 STATEMENT OF THE ISSUE

The issue is whether Respondent should have his license suspended and an administrative fine imposed for allegedly committing fraud and deceit in the practice of contracting, providing septic tank contracting services without an operating permit, and submitting a fabricated building permit number to obtain a final inspection approval of a job.

PRELIMINARY STATEMENT

This matter began on August 21, 1997, when Petitioner, Department of Health, issued an Administrative Complaint alleging that Respondent, Willie A. Harmon, had committed "fraud or deceit" and "misconduct causing the customer monetary harm," as proscribed by two agency rules. As relief, the complaint seeks the imposition of a $1,000.00 administrative fine and the suspension of Respondent's septic tank contracting registration.

The matter was referred by Petitioner to the Division of Administrative Hearings on October 9, 1997, with a request that an Administrative Law Judge be assigned to conduct a formal hearing. By Notice of Hearing dated November 3, 1997, a final hearing was scheduled on January 27, 1998, in Shalimar, Florida. On November 17, 1997, the case was rescheduled to December 22, 1997, at the same location.

On December 10, 1997, Petitioner filed a Motion to Consolidate two other citations issued against Respondent in 1996, which were still unresolved. Those two citations allege that on December 5, 1995, and June 27, 1996, respectively, Respondent submitted a fabricated building permit number to obtain a final inspection approval for a job and operated a septic tank disposal service without an operating permit. The citations seek the imposition of a $1,000.00 administrative fine. By agreement of the parties, the motion was granted, and the complaint and pending citations were taken up at final hearing.

At final hearing, Petitioner presented the testimony of William Michael Newell, a property manager; Larry W. Thomas, environmental supervisor for the Santa Rosa County Health Department; Earl Rabon, a septic tank contractor; and A. Douglas Simms, environmental supervisor for the Okaloosa County Health Department. Also, it offered Petitioner's Exhibits 1-3. All exhibits were received in evidence. Respondent testified on his own behalf.

There is no transcript of hearing. Proposed findings of fact and conclusions of law were due no later than January 15, 1998. They were timely filed by Petitioner on January 12, 1998, and they have been considered by the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. Generally

   
   

   1. When the events herein occurred, Respondent, Willie A. Harmon, operated a septic tank business in Santa Rosa County, Florida, under the name of Willie Harmon's Septic Tank Service. That profession is regulated by Petitioner, Department of Health (Department).

   2. In this proceeding, the Department alleges that Respondent violated its rules law on three separate occasions in 1995, 1996, and 1997. Each alleged violation is discussed below.

2. The Iris Lane Citation

   
   

   1. In April 1997, William M. Newell, who manages various rental properties in Santa Rosa County (County), hired Respondent to pump out a backed up septic tank system located at 1824 Iris Lane, Navarre, Florida. The system was an older one with a sand bottom, a type sometimes found in the southern part of the County. The job was performed by Respondent on April 21, 1997, and it called for Respondent to pump the tank dry. Respondent received payment from Newell for these services.

   2. On the evening of April 22, 1997, Newell returned to the premises and found the lid back on the system. Assuming that the job was completed, he telephoned the Santa Rosa County Health Department to request an inspection of the tank, as required by law. Larry Thomas, an environmental supervisor, inspected the tank on April 23, 1997, and found approximately five inches of solids still remaining in the tank and the remainder of the tank full of water. A properly pumped out tank would be dry.

   3. Newell immediately contacted Superior Septic Tank Service in Crestview, Florida, to repump the tank. Earl Raybon, an employee of that firm, inspected the tank and assumed it had not been pumped out since it was full of water and had a layer of sludge at the bottom. Raybon observed that the walls and lid of the system were "in good shape," but it needed a replacement liner. Raybon then repumped the tank until the system was dry.

   4. When Respondent was later asked by Newell and Thomas why

      the tank had sludge and water, Respondent advised them that water and solids must have bled (leached) back into the tank through the sand bottom.

   5. Although it is not uncommon for groundwater to seep back into a tank through a sand bottom, it is highly unlikely that the tank would completely refill with water within two days, unless the area experienced heavy rains. There was no evidence that this occurred. Further, it is not possible for solids to seep back into the tank under any circumstances. Respondent's explanation that this accounted for the solids in the tank is not deemed to be credible.

   6. Respondent also explained that in order to prevent the ingestion of sand into his equipment, he had to leave some sludge at the bottom of the tank. Raybon established, however, that under current industry standards, it is the responsibility of the contractor to pump a tank dry, even if one gets sand in his equipment. Consistent with that practice, Raybon pumped the tank dry.

   7. Respondent finally contended that if he had pumped the tank dry, the sides of the system might have collapsed. This occurs, however, only when there is water pressure on both sides of the system. Because the second contractor pumped the system dry without incident, it is found that a collapsing system was not a valid concern.

   8. By failing to pump the tank dry, as required by

      industry standards, Respondent committed fraud and deceit on the customer. In addition, this misconduct caused the customer to incur monetary harm in that the customer had to pay a second contractor to finish the job.

3. The Deer Lane Citation

   
   

   1. In early December 1995, Respondent installed a new septic tank system on a mobile home lot at 9050 Deer Lane, Navarre, Florida. Before the final written inspection approval for a new septic tank system can be given by the Department, the building permit must be attached to the application. It is the responsibility of the owner, and not the septic tank contractor, to obtain the building permit. Alternatively, if the lot is still undeveloped, as it was here, approval of the system may be obtained without a building permit by simply securing a yellow- green temporary sticker from the Department.

   2. On December 5, 1995, Respondent submitted paperwork to the Santa Rosa County Health Department reflecting that building permit number 95-608 had been issued to the owner. He contended that this number was obtained over the telephone from the owner, and this claim was not contradicted. However, a building permit was not issued to the owner until December 7, 1995, and it carried permit number 95-4144. The local department immediately discovered the difference in the two numbers and charged Respondent with fraud and deceit.

   3. There was no intent on the part of Respondent to commit

      fraud or deceit on the Department. Indeed, he could have obtained an inspection and final approval without a building permit being issued since the lot was still undeveloped.

      Moreover, he had no financial incentive to fabricate the permit number. Therefore, it is found that he did not commit fraud or deceit in the practice of contracting.

4. The Webster Street Citation

1. In order to perform septic tank services, a contractor must be registered with a county health department. By having an operating permit from one county health department, a contractor may perform services in other counties as well. Therefore, an operating permit in Okaloosa County would enable Respondent to perform services in Santa Rosa County.

2. On June 27, 1996, Respondent partially pumped a tank at 7843 Webster Street, Navarre, Florida. At that time, he held no active registrations to perform the work. He eventually obtained an operating permit from the Okaloosa County Health Department on July 29, 1996.

3. According to a representative of the Okaloosa County Health Department, it allows contractors who have previously had permits issued by that Department to work without a valid registration while their applications are being processed. This process usually, but not always, takes no more than two or three weeks.

4. Whether Respondent had previously been issued a

   registration by the Okaloosa County Health Department is not of record. It is also unknown when Respondent filed his application with that Department, although he says that he had an application pending when the questioned job was performed. Because of these record deficiencies, it is found that, even though Respondent had no valid operating permit on June 27, 1996, he rightly assumed that such work was permissible under then existing policy of the Okaloosa County Health Department.

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Section 120.569, Florida Statutes (1997).

6. Because Respondent is subject to penal sanctions, including the imposition of an administrative fine, Petitioner bears the burden of proving by clear and convincing evidence that the allegations in the complaint are true. See, e.g., Osborne Stern & Co., Inc., v. Dep't of Banking and Finance, 670 So. 2d 932, 933 (Fla. 1996).

7. The complaint alleges that Respondent violated Rules 10D-6.0751(1)(k) and (l)2., Florida Administrative Code [now renumbered as Rules 64E-6.022(1)(k) and (l)2.], by practicing fraud or deceit and committing misconduct which caused monetary harm to a customer. The first citation alleges that Respondent violated Rule 10D-6.0751(1)(k), Florida Administrative Code [now renumbered as Rule 64E-6.022(1)(k)], by practicing fraud and

   deceit and making a misleading or untrue representation. The second citation alleges that Respondent violated Rule 10D- 6.0751(1)(m), Florida Administrative Code [now renumbered as Rule 64E-6.022(1)(m)], by operating a septage disposal service without a valid department operating permit.

8. As to the charge in the Administrative Complaint, Petitioner has established by clear and convincing evidence that Respondent committed fraud and deceit and misconduct causing monetary harm to a customer. In reaching this conclusion, the undersigned has construed Respondent's action of failing to pump the tank dry, even though this was contrary to industry standards, and then billing the customer for pumping the tank dry as constituting fraud and deceit. In addition, such misconduct resulted in monetary harm to the customer. Therefore, the charges in the Administrative Complaint have been sustained.

1. As to the first citation, there is less than clear and convincing evidence that Respondent intended to commit fraud and deceit on the Department by submitting a fabricated building permit number. Therefore, this charge should be dismissed.

2. Finally, there is less than clear and convincing evidence that Respondent operated a septage disposal service without a valid operating permit, as charged in the second citation. With respect to this charge, Respondent correctly relied upon the existing practice of the Okaloosa County Health Department, which allowed applicants to perform septic tank

   services while their applications were being processed. Therefore, this charge should also be dismissed.

3. Rule 64E-6.022(1), Florida Administrative Code, provides that, absent mitigating or aggrevating circumstances, for the first violation of Rule 64E-6.022(1)(k), a $500.00 fine should be imposed on the individual. For the first violation of Rule 64E-6.022(1)(l)2., the rule also calls for a $500.00 fine. Because the two violations stem from the same job and conduct, a single, rather than multiple, fine is appropriate. In the absence of any aggrevating or mitigating circumstances, it is recommended that a $500.00 fine be imposed.

RECOMMENDATION

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

RECOMMENDED that the Department of Health enter a Final Order finding Respondent guilty of violating Rules

64E-6.022(1)(k) and (l)2., Florida Administrative Code, and that Respondent be assessed a $500.00 administrative fine. The charges in the two citations should be dismissed.

DONE AND ENTERED this 21st day of January, 1998, in Tallahassee, Leon County, Florida.

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 21st day of January, 1998.

COPIES FURNISHED:

Angela T. Hall, Agency Clerk Department of Health Building 6, Room 102

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Rodney M. Johnson, Esquire 1295 West Fairfield Drive Pensacola, Florida 32501

Willie A. Harmon Post Office Box 733

Fort Walton Beach, Florida 32548

Pete Peterson, Esquire Department of Health Building 6, Room 102

1317 Winewood Boulevard

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 should be filed with the Department of Health.

Docket for Case No: 97-004599

Orders for Case No: 97-004599