STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

)

Petitioner, )

)

vs. ) Case No. 99-2474

)

JOHN E. McDANIEL, d/b/a ) SUPERIOR SEPTIC AND SEWER, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for formal hearing pursuant to notice before P. Michael Ruff, duly-designated Administrative Law Judge of the Division of Administrative Hearings on November 9, 1999, in Panama City, Florida. The appearances were as follows:

APPEARANCES

For Petitioner: Rodney M. Johnson, Esquire

Chief Legal Counsel Department of Health Northwest Law Office

1295 West Fairfield Drive Pensacola, Florida 32501

For Respondent: Gary W. Tennyson, Esquire

3135 Lisenby Avenue

Panama City , Florida 32405 STATEMENT OF THE ISSUES

The issues to be resolved in the proceeding concern whether the Respondent, a licensed septic tank contractor, installed twelve septic tank systems at eleven locations in Bay and Walton Counties in which the required filters were removed, allegedly

violating the various provisions of Chapter 381, Florida Statutes, and Chapter 64E-6, Florida Administrative Code, cited and discussed herein below and, if that is the case whether an administrative fine should be imposed.

PRELIMINARY STATEMENT

The Respondent, John E. McDaniel, is a licensed septic tank contractor. It is alleged in the Administrative Complaint that he installed twelve septic tank systems at eleven locations and removed or caused to be removed the required filters from each of eleven septic tank systems without authorization by Department of Health (Department) personnel and contrary to the provisions of the Florida Administrative Code cited below. In the Complaint, the Petitioner seeks to assess a fine against the Respondent in the amount of $3,300.00, amounting to $300.00 per charged violation site. The Respondent availed itself of the right to a formal proceeding to contest that Complaint and this formal proceeding ensued.

The cause came on for hearing as noticed. The Petitioner presented seventeen exhibits at the hearing. All of the Petitioner's exhibits except Exhibits fourteen and fifteen, were admitted into evidence. (The Petitioner's Exhibits fourteen and fifteen were not admitted into evidence because, although requested, those exhibits had not been disclosed during the discovery phase of the proceeding). The Respondent presented two exhibits which were admitted into evidence. The Petitioner

presented thirteen witnesses and the Respondent presented three witnesses, including the Respondent himself.

At the conclusion of the proceeding the parties requested the opportunity to submit proposed recommended orders. The proposed recommended orders were timely submitted and have been considered in the rendition of this Recommended Order.

FINDINGS OF FACT

1. The Petitioner is an Agency of the State of Florida charged, in pertinent part, with regulating the licensure and compliance of septic tank contractors with the statutory and regulatory authorities cited herein. That authority includes the inspection and approval of the installation of septic tank and drainfield waste disposal systems in Bay and Walton Counties, Florida. It includes the authority to prosecute alleged violations of the statutes and rules regarding appropriate and legal installation of septic tanks and drainfield systems as are involved in this case.

2. The Respondent, John E. McDaniel, is a licensed septic tank contractor subject to the Department's jurisdiction and regulation. His firm installed twelve septic tank systems at eleven locations in Bay County, Walton County and one in Fountain, Florida. Final inspections were conducted on those systems from May 7, 1998 through January 11, 1999. Thereafter, acting on information and belief, the Department inspected those systems again and found that after final inspections that eleven

   legally required filters from eleven septic tank systems had been removed after the previous "final inspection." The removal of those filters was without authorization and contrary to the portions of the Florida Administrative Code cited below.

3. The petitioner agency took the position that the Respondent and his company were responsible for the illegal removal of the septic tank filters and took initial Agency action assessing a fine in the proposed amount of $3,300.00, $300.00 per violation. The Respondent contested that initial agency action bringing about the subject formal proceeding and evidentiary hearing.

4. Mike Guyne is the Environmental Health Director of the Bay County Health Department. He is familiar with three incidents of prior discipline where the Respondent was subjected to fines for two citations issued by the Department in 1996. Septic tank filters are required on all septic tanks. Although homeowners or persons other than the septic tank contractor could remove the filters, it would be difficult because the lids covering the filter weigh fifty to seventy-five pounds and are sealed with cement mortar and then covered with a layer of dirt. Thus if any person were to remove the subject septic tank filters it would be most easily accomplished before the system is sealed with mortar and before it is covered with dirt (i.e., after the final inspection of the system was made but before it was covered up).

5. On February 16, 1999, Joseph W. Miner, an Environmental Health Specialist for Washington County, went to a site in Washington County to inspect a septic tank system installed by Superior Septic Tank Company (Respondent). The filter in that system had been painted orange on the top but the installers had already moved to another job and so Mr. Miner was unable to question them regarding the origin of that filter. Mr. Miner went to the next site to inspect a septic tank system also installed by Superior Septic Tank Company, and the filter in that septic tank system had also been painted orange on its top. Some counties mark filters by spray painting them when they are put into service to keep them from being removed and used in another system.

6. Mr. Miner engaged in a conversation with an employee of the Superior Septic Tank Company whose name is unknown (gray- haired gentleman with a ponytail) at the second location. This employee was in the company of co-employee Mike Parker who testified in this case. He was questioned by Mr. Miner. This employee told Mr. Miner that Walton County had marked those filters and once the inspections were complete and the inspector left those Walton County job sites that, if the homeowner did not want a filter on the system, employees of Superior Septic Tank Company removed the filters before sealing the tank and system. This same employee also told Mr. Miner that they could not re-use the orange painted filter in Walton County because they would be

   detected as having already been painted (for identification reasons by Department personnel) and therefore, if they were installed in a different system later the inspector would know that they had been removed from a previous system. Consequently, this employee told Mr. Miner that the painted filters from Walton County were thereafter used in Washington County system installations.

7. When Mr. Miner questioned this employee about the authority for removing the filters he was told that Mr. McDaniel, the Respondent and the owner of Superior Septic Tank Company, had indicated that he had authorization "from Tallahassee" authorizing the filter removal. Mr. McDaniel himself stated in a phone conversation with Mr. Miner that he had a verbal agreement to remove filters from septic tanks with the Director of Environmental Health for Bay County. In any event, in Washington County no septic tank systems are approved for final inspection unless filters are installed according to Mr. Miner.

8. Amanda Brown had septic tank systems installed by the Respondent at two sites. These systems later began failing and at that point an employee of the Respondent, who happened to be Brown's brother, Charles Eldridge, told Ms. Brown that the filters in her systems had been removed after final inspection. Environmental Health staff personnel later opened those three systems installed by the Respondent company in Ms. Brown's presence. Two of the three systems had no filters installed.

   Ms. Brown had not authorized removal of those filters.

   
   

9. Ken Manley is a contractor who builds residential homes including those at the addresses depicted in Exhibits three and four. Mr. Manley did not authorize the removal of the filters from the septic tank systems referenced in Exhibits three and four, although someone removed them.

10. George Stanley Pitts is a land developer who contracted with Superior Septic Tank Company and Mr. McDaniel to install septic tank systems. The systems were installed at the locations referenced in Exhibits five, six, seven and eight in evidence. Mr. Pitts had a conversation with personnel of the Superior Septic Tank Company who told him that the Health Department had authorized leaving filters out of the systems if the owner did not object. Mr. Pitts maintains that he did not remove nor authorize removal of the filters referenced in those exhibits and yet they were removed.

11. James Buchanan owns property that is referenced in Exhibit nine in evidence. He had a septic tank system installed by the Respondent on Angie Road as referenced in Exhibit nine. He did not authorize removal of the filter from the septic tank system at that location although they were removed after the final inspection.

12. Thomas Owen as well had a septic tank system installed at 12034 Oak Avenue, in Fountain, Florida, as depicted in Exhibit ten. It was installed by Superior Septic Tank Company. After

    the final inspection was done on the system, the filter was removed although Owen states that he did not authorize removal of the filter from his septic tank system.

13. Charles Eldridge was employed by Superior Septic Tank Company and John McDaniel. He was employed at four different times during a five-year period including 1998. When he was employed in 1998, the installation of filters in septic tank systems was a relatively new requirement. Mr. Eldridge performed work on his sister's septic tank systems which are described in Exhibits one and two in evidence. He removed the filters from those systems. Mr. Eldridge maintains that Mr. McDaniel told employees and frequently reminded them to remove filters from septic tank systems after final inspections were performed by Health Department officials. Mr. McDaniel, according to Eldridge, told his employees that the filters cost from $28.00 to

    $38.00 and could be used again in a later system (implicitly for reasons of saving money).

14. Kevin Cobb is a Environmental Health Specialist for the Walton County Health Department. He is an inspector of septic tank systems. He did a final construction inspection and a final inspection of the septic tank system installed by Mr. McDaniel's Superior Septic Tank Company which is described in Exhibit eleven. When he performed the final inspection he spray-painted the top of the filter with orange paint, which is the practice and policy in Walton County as a means to show that that filter

    had been used; therefore if it appears in a later-constructed and installed system it will show the inspector at that later time that the filter had previously been used and illegally removed from another system. Mr. Cobb was accompanied by another Health Department employee and re-inspected the septic tank system described in Exhibit eleven. After removing the lid over the filter location he found that there was no filter in the outlet "T" fitting, although orange paint remained on top of the "T" fitting as shown in the photographs, in evidence as Exhibits sixteen and seventeen. Mr. Cobb discovered the filters were missing in two of the three systems installed by Superior Septic Tank Company which he inspected.

15. Ralph McDonald is an Environmental Health Inspector for the Bay County Health Department. He inspected the septic tank systems depicted in Exhibits one, two, six, nine and ten, which were installed by the Superior Septic Tank Company. When he made the construction inspection of those systems he found filters to be in place in those systems. He did not authorize removal of the filters. Brian Hughes is also an Environmental Health Inspector for the Bay County Health Department. He made the construction inspection on septic tank systems referenced in Exhibits three, four, and eight in evidence, which were also installed by the Superior Septic Tank Company. When he made that inspection he found the filters to be properly in place. He also would not authorize removal of filters from septic tank systems

    nor approve permitting systems which did not have filters. After final approval of the septic tank systems referenced in Exhibits two, five, six, seven, eight, nine and ten, the Bay County Health Department re-inspected those systems and found according to Mr. Hughes and Mr. Darsey's testimony, as well as Mr. Ellis', that the filters were then missing from those same systems. Thus they had been removed after the final construction and inspection had been performed.

16. Carl Darsey is a Supervisor in Environmental Health for the Bay County Health Department. The septic tank systems installed by the Superior Septic Tank Company described in Exhibits five and seven also had filters at the time the construction approval inspection was performed. Mr. Darsey never authorized removal of those filters nor would he approve systems without the filters in place. Leroy Ellis is employed in the Disease Intervention section of the Bay County Health Department and accompanied the other named employees of the Bay County Health Department on the re-inspections of the above-referenced septic tank systems. His testimony corroborates that of Hughes and Darsey. After final approval of the septic tank systems referenced in Exhibits three and four, Mr. Guyne, with other environmental health staff of the Bay County Health Department, re-inspected those systems installed by the Superior Septic Tank Company and found that the filters were missing from those systems as well.

17. Septic tank system filters are designed to clean the effluent and add longevity to the septic tank systems, to help prevent clogging of the drainfields. Filters have been installed in all septic tanks according to Department rules and policies for approximately the last two years and, according to Mr. Guyne, no complaints on system failures have been brought to the Bay County Health Department's attention related to filters.

    Mike Parker is an installation supervisor employed by the Superior Septic Tank Company. He had a conversation with Mr. Miner in Washington County and informed him of customer

    problems with maintenance of the filters. Mr. Guyne established, however, that homeowners are responsible for problems with their septic tank filters after the final inspection. It was not established, however, that any of the homeowners or customers of the Superior Septic Tank Company and Mr. McDaniel removed the filters themselves.

18. Initially, in approximately early 1998, Mr. McDaniel took the position that he had some informal authority from Health Department Personnel to remove filters and so informed

    Mr. Eldridge and Mr. Miner. Later, however, when the dispute arose concerning the removal of the filters and who might have removed them, he took the position that he did not remove any filters.

19. In a one-year period Mr. McDaniel's installation personnel typically installed about two hundred and fifty septic

    tank systems. In Walton County two filters were missing out of three tanks checked, and in Bay County ten filters were missing out of fourteen tanks checked. Mr. Eldridge testified that if an inspector remained on a site during the time that the system was being back-filled or covered up then the filter would be left in the system.

20. Thus two employees of the Respondent stated that they were instructed to remove the filters after the final inspection. Moreover, a random sampling of septic tank systems installed by the Respondent established that a great majority of them had had the filters removed. The explanation that vandals may have taken the twelve filters does not make sense. It strains belief to think that twelve of seventeen septic tanks would be vandalized and then only vandalized as to the removal of filters with no other damage done to the systems. Further, the two employees testifying on behalf of the Respondent have testimony deficient in materiality or weight. Mike Parker was not employed by the Respondent when the installations of the majority of these systems occurred. He had no knowledge of doing the installation on the eleven systems involved and was not working for McDaniel during the relevant period in 1998. He was not aware that filters in Walton County are painted with orange paint to try to prevent their removal and re-use, and does not remember any orange paint on filters installed in Washington County, which was clearly established to be the case on the filters that

    Mr. McDaniel was installing. Additionally, Mr. Halstead's memory is deficient because upon being questioned about annual installations performed, his testimony varied about how many weekly or annual installations are performed. Mr. Halstead stated that he had never seen any filters in Walton County painted with orange paint when the testimony of Mr. Cobb, corroborated by the photographs in evidence, show that they clearly were painted with orange paint in Walton County. Thus both Mr. Halstead and

    Mr. Parker's testimony is entitled to little weight.

    
    

21. Mr. McDaniel submitted a report in evidence showing that Charles Eldridge had apparently used marijuana at one point and had gotten into an altercation resulting in a trespass warning from the Sheriff's Department. This was supposedly related to a dispute over payment of wages, in conjunction with Mr. Eldridge apparently quitting his job with Mr. McDaniel in anger. This evidence was intended to show that Mr. Eldridge was a disgruntled former employee who might therefore have a motive to lie in his testimony to retaliate against Mr. McDaniel for perceived past grievances. The evidence shows clearly, however, that after this report was entered concerning Mr. Eldridge and after their verbal altercation, that, according to Mr. McDaniel's own testimony, he had hired Mr. Eldridge several more times.

    Thus there is an insufficient demonstration in the evidence of a

    motive on the part of Mr. Eldridge to actually lie in retaliation against Mr. McDaniel.

22. Mr. Eldridge had apparently become upset when he worked for Mr. McDaniel because of a shortage of pay due him and

    Mr. McDaniel testified that he admittedly had caused that problem with Mr. Eldridge, but this does not warrant a finding that

    Mr. Eldridge's testimony was fabricated. This is because the statement made to Mr. Miner by the "gray-haired employee with the ponytail," who made the incriminating statement about instructions from Mr. McDaniel to remove filters, was not refuted, which fact corroborates Mr. Eldridge's testimony. That employee clearly stated that the fluorescent painted filters came from Walton County and were removed from Walton County septic tank systems and then re-used in Washington County. The reason given for the removal was that Mr. McDaniel had instructed his personnel to remove them. That is consistent with the testimony given by Mr. Eldridge. Mr. Miner phoned Mr. McDaniel back at the time the question first arose concerning the Walton and Washington County systems, and Mr. McDaniel told him that he had authorization from the Environmental Health Director in Bay County to remove filters. That authorization was shown never to have existed even if relevant. Later, at hearing, Mr. McDaniel denied making that statement and said that he never removed any filters at all. That assertion renders his testimony inconsistent and thus it cannot be credited.

    CONCLUSIONS OF LAW

    
    

23. The Division of Administrative Hearings has jurisdiction of the parties hereto and the subject matter of these proceeding in accordance with Sections 120.569 and 120.57(1), Florida Statues. This prosecution arose under Section 381.0065, Florida Statutes, and Chapter 64E-6, Florida Administrative Code (formerly Chapter 10d-6, Florida Administrative Code).

24. The Petitioner is charged with administering a comprehensive program to ensure on-site sewage treatment and disposal systems that are designed, sized, constructed, installed, modified, properly abandoned and maintained in compliance with the statutes and rules designed to preserve public health. See Section 381.0065(3)(e), Florida Statutes. Section 381.0065, provides in pertinent part as follows:

    1. LEGISLATIVE INTENT. - It is the intent of the Legislature that . . . the department shall issue permits for the construction, installation, modification, abandonment, or repair of on-site sewage treatment and disposal systems. . .

       
       

    2. DEFINITIONS. - As used in ss. 381.0065- 381.0067, the term:

       
       

       (j) "Onsite sewage treatment and disposal system" means a system that contains a . . . drainfield . . .[and] a septic tank . . .

       
       

    3. DUTIES AND POWERS OF THE DEPARTMENT OF HEALTH. - The department shall:

       
       

       1. Adopt rules to administer ss 381.0065- 381.0067.

       2. Perform application reviews and site evaluation, issue permits, and conduct inspections and complaint investigations associated with the construction, installation, maintenance, modification, abandonment, or repair of an on-site sewage treatment and disposal system for a residence

          . . .

          
          

          * * *

          
          

          (h) Conduct enforcement activities, including imposing fines, issuing citations .

          . . for violations of this section . . . or for a violation of any rule adopted under this section . . .

          
          

          * * *

          
          

    4. PERMITS; INSTALLATION; AND CONDITIONS. - A person may not construct, repair, modify, abandon, or operate an on-site sewage treatment and disposal system without first obtaining a permit approved by the department. The department may issue permits to carry out this section.

       
       

       * * *

       
       

    5. ENFORCEMENT; RIGHT OF ENTRY; CITATION. -

       
       

       1. Department personnel who have reason to believe noncompliance exists, may at any reasonable time, enter the premises . . . to determine compliance with . . . rules . . . adopted under 381.0065 . . .

          
          

       2. 1. The department may issue citations that may contain . . . an order to pay a fine . .

       . for violations of ss 381.0065-381.0067 . .

       .

25. The applicable rules generated from the above statutory authority and which control the Department's actions in this case are:

    64E-6.003 Permits.

    
    

    1. System Construction Permit - No portion of an on-site sewage treatment and disposal system shall be installed, . . . until an

       "On-site Sewage Treatment and Disposal System Construction Permit" has been issued on DH Form 4016.

       
       

       * * *

       
       

    2. System Inspection - Before covering with earth and before placing a system into service, a person installing or constructing any portion of an on-site sewage treatment and disposal system shall notify the county health department of the completion of the construction activities and shall have the system inspected by the department for compliance with the requirements of this Chapter.

       
       

       64E-6.008 System Size Determinations.

       
       

       1. . . . The use of an approved outlet filter device shall be required . . . Outlet filters shall be placed to allow accessibility for routine maintenance. Utilization and sizing of outlet filters shall be in accordance with the manufacturer's recommendations. The Bureau of On-site Sewage programs shall approve outlet filter devices per the department's Policy on Approval Standards For On-site Sewage Treatment and Disposal Systems Outlet Filter Devices, February 1995, which is herein incorporated by reference.

          64E-6.025 Definitions.

          
          

          Definitions in Chapter 64E-6, parts I and II, are also applicable to Chapter 64E-6, part IV.

          
          

          * * *

          
          

       2. Baseline system standards - A passive, gravity fed subsurface trench system that is made up of the following components and

          characteristics, and is in compliance with part I requirements:

          
          

          1. a dual compartment septic tank, or tanks in series,

             
             

          2. an approved outlet filter device meeting the manufacturer's recommendations, installed on the septic tank discharge outlet immediately prior to discharge into the drainfield,

             
             

          3. anticipated effluent concentrations from the treatment tank are within the following ranges:

             
             

             1. CBOD5 - 120-240 mg/l

             2. TSS - 65-176 mg/l

             3. TN - 36-45 mg/l

             4. TP - 6-10 mg/l,

             
             

          4. a distribution box or header pipe,

             
             

          5. A mineral aggregate drainfield trench with the following characteristics:

       
       

       1. measures 12 inches deep by 26 inches wide.

          
          

       2. the top of the drainfield no closer to the ground surface than 6 inches.

          
          

       3. the bottom of the drainfield no farther from the ground surface than 30 inches.

          
          

       4. bottom of drainfield is a minimum of 24 inches above the seasonal high water table in undisturbed natural soil.

          
          

       5. a 4 inch distribution line.

       
       

26. Rule 64E-6.022, Florida Administrative Code, specifies penalties as follows:

    64E-6.022 Disciplinary Guidelines.

    
    

    1. The following guidelines shall be used in disciplinary cases, absent aggravating or

       mitigating circumstances and subject to other provisions of this section.

       
       

       	* *	*
       (b)	Permit violations.
       	* *	*
       (2)	Contracted work is	completed without a

       permit having been issued, or no permit application is received until after contracted work was completed, resulting in missed inspection or inspections. First violation, $1,000 fine . . .

       
       

       * * *

       
       

       (p) Installation, modification, or repair of an on-site sewage treatment and disposal system in violation of the standards of

       s. 381.0065 or s. 381.00655, F.S., or Chapter 64E-6, F.A.C. First violation, $500 per specific standard violated . . .

       
       

27. The above Findings of Fact show that the Respondent installed the subject septic tank systems and caused the removal of the twelve referenced and required filters after final inspections were performed. That removal was without authorization. The eleven locations where the twelve filters were removed and with the accompanying construction permit numbers are as follows:

    Bay County - Permit 3678 at 9141 Angie Road, final inspection 5/7/98; Permit 4047 at 9135 Angie Road, final inspection 5/7/98; Permit 4702 at 8806 Creek Run, final inspection 2/4/99; permit 4701 at 8914 Creed Run, final inspection 2/4/98; Permit 4622 at 7011 Keiber Ct., final inspection 10/1/98; Permit 4621 at 7218 Keiber Circle, final inspection 10/4/98; Permit 4620 at 7006 Keiber Ct., final inspection 10/1/98; Permit 4619 at 7021 Keiber Ct., final inspection 12/11/98; Permit

    4798 at 9238 Angie Road, final inspection 12/24/98; Permit 4385 at 12034 Oak Ave., Fountain, FL, final inspection 12/24/98; Walton County - Permit 98-656-P at a house off Magnolia Drive, final inspection 1/11/99.

    
    

28. Thus it has been established that the Respondent committed the violations charged. The totality of the circumstances supported by the evidence and found above show that the violations were not due to a mistake as to the legal requirement on the part of the Respondent. Rather, the Respondent was shown to have been aware of a requirement to install filters during the time period in question and removed the filters after the final inspections were done, after having the filters installed when they were visible by the inspecting officials. This shows a clear intent to mislead the regulatory authorities. Accordingly, a substantial penalty is warranted.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, recommended that a final order be issued by the Department of Health finding that the Respondent committed the violations charged and assessing a $3,300.00 fine against the Respondent.

DONE AND ENTERED this 23rd day of March, 2000, in Tallahassee, Leon County, Florida.

P. MICHAEL RUFF 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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of March, 1999.

COPIES FURNISHED:

Rodney M. Johnson, Esquire Chief Legal Counsel Department of Health Northwest Law Office

1295 West Fairfield Drive Pensacola, Florida 32501

Gary W. Tennyson, Esquire 3235 Lisenby Avenue

Panama City, Florida 32405

Angela T. Hall, Clerk Department of Health

2020 Capital Circle, Southeast Bin A02

Tallahassee, Florida 32399-1703

Amy M. Jones, Acting General Counsel Department of Health

2020 Capital Circle, Southeast Bin A02

Tallahassee, Florida 32399-1703

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: 99-002474

Orders for Case No: 99-002474