STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, POLK ) COUNTY HEALTH DEPARTMENT, )

)

Petitioner, )

)

vs. ) Case No. 01-3218

)

BARBARA THOMPSON, d/b/a )

1. SEPTIC SERVICES, )

   )

   Respondent. )

   _______________________________)

   
   

   RECOMMENDED ORDER

   
   

   Pursuant to notice, this matter was heard on December 4, 2001, in Lakeland, Florida, by Donald R. Alexander, the assigned Administrative Law Judge of the Division of Administrative Hearings.

   APPEARANCES

   
   

   For Petitioner: Roland Reis, Esquire

   Polk County Health Department Department of Health

   1290 Golfview Avenue, Fourth Floor Bartow, Florida 33830-6740

   
   

   For Respondent: Jack T. Edmund, Esquire

   1125 East Main Street Bartow, Florida 33830-5004

   
   

   STATEMENT OF THE ISSUE

   
   

   The issue is whether Respondent's registration as a septic tank contractor should be disciplined for the reasons set forth in the Administrative Complaint.

   PRELIMINARY STATEMENT

   
   

   This matter began on June 29, 2001, when Petitioner, Department of Health, on behalf of the Polk County Health Department, filed an Administrative Complaint alleging that Respondent, Barbara Thompson, doing business as A-1 Septic Tank Service, had violated various statutes and rules while engaged in the business of providing sewage treatment services. For these violations, the Department of Health proposes to revoke Respondent's registration as a septic tank contractor and to assess an administrative fine in the amount of $2,000.00.

   On July 26, 2001, Respondent requested a formal hearing to contest the charges. The matter was referred by Petitioner to the Division of Administrative Hearings on August 15, 2001, with a request that an Administrative Law Judge be assigned to conduct a hearing. By Notice of Hearing dated September 21, 2001, a final hearing was scheduled on November 19 and 20, 2001, in Lakeland, Florida. At Respondent's request, the matter was rescheduled to December 4 and 5, 2001, at the same location.

   At the final hearing, Petitioner presented the testimony of Respondent; Larry Thompson; Raymond E. Thompson; Mark Pike; Gregory Wade; Timothy G. Mitchell; William L. Langford; Patricia Fay (Patsy) Brown; David Fleming; and William Mauer.

   Also, it offered Petitioner's Exhibits 5-8, 13, and 14, which were received in evidence. Respondent testified on her own behalf and presented the testimony of Ricky Thompson and Patricia Nieft.

   The Transcript of the hearing (two volumes) was filed on January 2, 2002. Proposed Findings of Fact and Conclusions of Law were filed by Petitioner and by Respondent on January 17 and 23, 2002, respectively, 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. Background

      
      

      1. In this disciplinary proceeding, Petitioner, Department of Health (Department), on behalf of the Polk County Health Department (Health Department), seeks to impose an administrative fine on, and revoke the septic tank contractor registration of, Respondent, Barbara Thompson, doing business under the name of A-1 Septic Services. Respondent currently operates a septic tank business in Lakeland, Florida, and has held her registration for approximately two and one-half years. Her most recent address is 1616 Ritter Road, Lakeland, Florida. As a registrant, she is under the regulatory authority of the Department.

      2. On November 28, 2000, the Department entered into a Settlement Agreement (Agreement) with Respondent for numerous violations of various provisions within Chapter 64E-6, Florida Administrative Code. The Agreement was approved by the Department in a Final Order dated March 5, 2001. As a condition of that Agreement, Respondent agreed that her husband, Larry Thompson, would not be employed in the management of the business; would not solicit, negotiate, contract, contact, or communicate with any customers of the business; or represent the business as agent or principal in any way. Larry Thompson's registration as a septic tank contractor had been previously revoked by a Final Order of the Department of Health and Rehabilitative Services entered on January 23, 1995.

      3. Based on complaints received from three consumers, the Health Department began an investigation of Respondent in 2001. The investigation culminated in the issuance of an Administrative Complaint on June 29, 2001, which generally alleged that in February and June 2001, Respondent was fraudulent in her dealings with three customers by recommending unneeded work on septic tank systems that were in good working order; that she violated the terms of the Agreement by allowing her husband to participate in the business; that in 1998 and 2000, Respondent conspired with her

         husband to fraudulently purchase three vehicles under the name of her husband's brother (and without his consent) for use in her business; and that by using one of those vehicles in her business, she unlawfully obtained her registration through fraud, misrepresentation, and concealment of material facts, and she committed gross misconduct in her profession.

         Respondent denies the allegations and suggests that the complaint is the result of an on-going dispute between her and local Health Department officials, who want to put her out of business.

   2. Consumer complaints

      
      

      1. On February 27, 2001, William Mauer (Mauer), who lives at 5212 Messina Road, Lakeland, Florida, contacted Respondent's firm after experiencing a problem with his septic tank system "not draining right" and "sewage backing up." Two individuals, one of whom Mauer identified at the hearing as being Larry Thompson, arrived around 4 p.m. Larry Thompson began using a probing rod around the 900-gallon tank, popped the lid, and announced that the tank "was full." The two then pumped out the tank, for which Mauer was charged $150.00. At the same time, Larry Thompson recommended that Mauer install a new drainfield and quoted a price of "around $2,800.00." By allowing Larry Thompson to solicit business, contact and

         communicate with customers, and represent the business, Respondent violated the terms of the Agreement.

      2. That evening, Respondent came to Mauer's house and prepared a work order for a new drainfield. Because

         Mrs. Mauer wished to pay by credit card, Respondent advised her that she did not accept credit cards, but she could run the transaction through her brother's business for the normal credit card processing fee which was described by the witnesses as ranging from $165.00 to $300.00. In any event, the Mauers agreed and charged the work on their credit card.

      3. Within a day or two, but after Respondent had pulled a permit for the repair job, Mauer backed out of the deal since the problems went away after the tank had been pumped out. The charge on the credit card was cancelled, and Mauer paid only for the pumping of his tank ($150.00) and the cost of a repair permit. At hearing, Maurer indicated that he was not "mad at all" about the service, and he agreed that he was "not really out of anything," since the credit card charges were cancelled.

      4. Respondent contended that when the Mauers' tank was inspected, there was sewage seeping from the lid and flowing back into the tank from the drainfield line, thus indicating a need for drainfield repairs. A subsequent inspection of the system by a Health Department official a few days after

         Respondent's visit revealed nothing "to indicate a bad drainfield." The representative acknowledged, however, that it was "not easy" to determine if a system was bad, and that a lack of visible signs of a problem did not mean that the system was in good working order. Even so, the lack of any further problems (after the pump-out) is a clear indication that Respondent recommended that unnecessary work be performed on the Mauers' system.

      5. On February 27, 2001, Patsy Brown, who lives in a duplex at 1014 Old South Drive, Lakeland, contacted Respondent's firm for a service call after she experienced "slow draining" in the master bathroom toilet of the second unit in the duplex. Two "young men" came out that evening around 9 p.m. One was Ricky Thompson, Respondent's brother- in-law; the other was identified at hearing as being Larry Thompson. After locating the tank, one of the two workers placed a shovel in the grass and found clear water without an odor around the drainfield. The older of the two workers (Larry Thompson) recommended that Brown replace (repair) the drainfield and quoted a price in the range of $2,400.00 to

         $2,700.00. Larry Thompson also instructed Ricky Thompson to pump out the tank. By allowing Larry Thompson to solicit work on her behalf, and act as a representative of the firm, Respondent contravened the terms of the Agreement.

      6. Believing that a new drainfield was needed, Brown signed a work order for $2,785.00 and gave Larry Thompson a check in the amount of $1485.00 as partial payment. At the request of Larry Thompson, Brown made out the check to Barbara Thompson, rather than A-1 Septic Tank Service.

      7. A day or so later, and after Respondent had pulled a permit for the job, Brown had second thoughts about replacing her drainfield and contacted the Health Department. A representative visited her home on March 2, 2001, and found no visible signs of a system breakdown. The representative gave Brown the names of five other septic tank companies to contact for estimates. An unnamed registrant then replaced Brown's distribution box for $238.00, which resolved all problems. While the representative acknowledged that "a failed drainfield is not always apparent," and that "[i]t's not always easy just by looking at it or telling if that's a good drainfield or not," the fact that Brown's problems were unrelated to the drainfield supports a finding that Respondent recommended that Brown have unneeded work performed on her system.

      8. After the distribution box was replaced, Brown

         
         

         contacted Respondent and requested a refund of her money. Because the request was made more than 3 days after she had signed the contract, Respondent took the position that no

         refund was warranted. Brown then filed a consumer complaint with a Tampa television station. Respondent says she offered to refund the money if Brown would withdraw her complaint with the television station, but Brown refused to do so, and the complaint ended up being aired on "national television." To date, the money has never been refunded, although Brown has never made another formal request for a refund of her money, nor has she taken legal action against Respondent to recover the money.

      9. On June 5, 2001, David Fleming, who lives with his wife, Zora, at 3319 Mt. Tabor Road, Lakeland, experienced "problems with [the toilet] flushing." Zora telephoned Respondent's firm, and Ricky Thompson and Respondent arrived later that day. After Ricky popped the lid on the tank and found a full tank, Respondent recommended that the tank be pumped out for a charge of $150.00. When around one-half of the tank was pumped, Respondent advised Fleming that the price would be $200.00 because it was so full; otherwise, she would be forced to pump the contents of the truck back into the tank. Fleming then agreed to pay Respondent $200.00 for a full pump-out, and he obtained a receipt for the payment.

         This fee was not unreasonable, and thus Respondent did not violate any Department rule or statute by charging that amount.

      10. Respondent also advised Fleming that he needed a new drainfield which would cost "over $2,000.00." Fleming declined to sign a contract for that service since he could not afford one. He experienced no further problems with his system after the pump-out.

      11. Respondent denies having advised Fleming that he needed a new drainfield and acknowledged at hearing that "there was nothing wrong with it." She further contended that because the house did not even have an air-conditioner, she knew that the Flemings could not afford any further repairs. This testimony is not deemed to be credible.

      12. A subsequent inspection of the tank by a Health Department official on June 8, 2001, revealed that there were no "obvious signs of failure the day [he] was out there." The system continues to function normally to this day.

   3. Purchase of vehicles

      
      

      1. The record is somewhat confusing regarding the vehicles owned and used by Respondent and registered with the Department. Under Rule 64E-6.010(2)(a), Florida Administrative Code, a registrant must make application for a service permit with the Health Department each year and provide evidence that he or she "possesses adequate equipment

         . . . necessary to perform the work intended." At hearing, Respondent stated that she currently has three trucks, two of

         which (a Chevrolet and a Ford) are now registered with the Health Department, but only one of which (the Chevrolet Kodiac) is actually used in the business.

      2. As discussed in greater detail below, the Chevrolet Kodiac was purchased from Bartow Chevrolet Company, Inc. The second vehicle (either a Ford or another undisclosed make and model) is one she has "had for several years" that was purchased from an individual named Howard Nieft (the father- in-law of Ricky Thompson); however, the title still remains in Nieft's name. The third vehicle (an unknown make and model consisting of a cab and chassis only with a blown motor) is "one that [she is] putting together" that was purchased around a year ago in Zephyrhills from a person whose name she cannot recall. Like the second vehicle, Respondent says the "title work [on the third vehicle] has not been transferred yet," because she cannot "get hold of the owner" to sign an affidavit to transfer the title. However, Respondent also indicated that the third vehicle which she is "putting together" is titled in the name of her niece, Christina Wood. The conflicting testimony regarding the ownership of the third vehicle was never clarified by the parties.

      3. In August 1998, an individual who identified himself

         
         

         as Ray M. Thompson ("Ray"), approached Mark Pike (Pike), a commercial salesman with Bartow Chevrolet Company, Inc., for

         the purpose of purchasing a medium duty truck for his septic tank business. "Ray" gave a local address of 1400 Spivey Road, Lakeland, Florida. "Ray" eventually agreed to purchase (and finance through the dealership) a 1998 Chevrolet Kodiac truck on September 10, 1998, for approximately $35,000.00. In the course of the transaction, Pike requested a driver's license and insurance card from "Ray" to verify his identity. "Ray" gave Pike a North Carolina driver's license issued on August 18, 1997, to Ray M. Thompson. The Chevrolet Kodiac was later titled by the State to Ray M. Thompson.

      4. Ray M. Thompson is the brother of Larry Thompson, and the brother-in-law of Respondent. At the hearing, Pike identified Larry Thompson as the person who actually purchased the vehicle in September 1998 and used the name and identification of Ray M. Thompson. At hearing, the real Ray Thompson denied that he had purchased the vehicle, and after learning about the transaction, he filed paperwork with the Department of Highway Safety and Motor Vehicles (DHSMV) cancelling his name on the registration of the vehicle. The same vehicle is now being used by Respondent in her business.

      5. Although a "blond-haired lady" was with "Ray" when he signed the paperwork to purchase the truck, and Respondent has that color of hair, Pike could not identify Respondent as being that person. Therefore, it is found that there is less

         than clear and convincing evidence that Respondent participated in the transaction or conspired with her husband to deceive the dealership or her brother-in-law.

      6. On September 27, 2000, an individual who identified himself as Ray M. Thompson ("Ray") visited Bartow Ford Company and spoke with Gregory Wade, a salesman, about the purchase of a new Ford F350 pickup truck for his septic tank business. "Ray" was accompanied by an unidentified female and gave an address of 1616 Ritter Road, Lakeland, Florida, the address of the mother of Ray and Larry Thompson, as well as Respondent and her husband. The same day, "Ray" traded in a 1999 Dodge Durango on a new 2001 F350 Ford pickup truck for approximately

         $41,000.00, less the net value of the trade-in. During the course of the transaction, "Ray" produced an out-of-state driver's license identifying himself as Ray M. Thompson, and an insurance identification card bearing the same name.

      7. At the hearing, although both Respondent and her husband were in the hearing room, Wade was unable to identify either one as the individuals who participated in the transaction on September 27, 2000. The vehicle was later titled by the State to Ray M. Thompson. After learning about the transaction, the real Ray M. Thompson filed paperwork with the DHSMV to cancel the registration. Given these circumstances, there is less than clear and convincing

         evidence that Respondent conspired with her husband to fraudulently purchase the vehicle under the name of her husband's brother, as alleged in Count VI of the complaint.

      8. Count V of the complaint also alleges that "sometime during 1998" Respondent conspired with her husband to "fraudulently purchase a pick-up truck, a Dodge Durango, from Bartow Chevrolet [Company, Inc.] under the name of Ray Thompson and without his permission." Except for the evidence which shows that a Dodge Durango was traded in on the Ford F350 truck in September 2000, as noted in Finding of Fact 21, there is no other evidence to support this allegation.

   4. Violation of Agreement

      
      

      1. At hearing, Larry Thompson maintained that after the Agreement was executed in November 2000, he has limited his participation with his wife's business to merely gassing up vehicles and performing maintenance work on the firm's vehicles, when necessary. He denies being employed by his wife or having any contact with customers. In addition, Ricky Thompson, Larry's brother, also denied that Larry Thompson ever accompanied him on service calls. However, the more credible evidence, as detailed in Findings of Fact 4 and 8, is that Larry Thompson performed work for his wife on two occasions in violation of the Agreement.

   5. Obtaining Registration by Fraudulent Means

1. Count IV of the complaint alleges that by continuing to use the 1998 Kodiac truck in her business without the permission of the real Ray Thompson, Respondent "falsely indicated and represented to the Department that [she] had means, ability and equipment necessary for the operation of [her] business," that she obtained her registration through fraud or misrepresentation, concealment of material facts, and she committed gross misconduct in the pursuit of her profession. In this regard, Respondent's application for registration, date of licensure, and annual application for a service permit are not of record.

2. While Respondent admitted that she is using the Kodiac in her business, there is less than clear and convincing evidence in the record to support this allegation. This is especially true since there was no evidence that a registrant must own (or have titled in his or her name) every vehicle used in the contracting business, or that Respondent did not have the financial means, ability, or equipment to engage in the business.

   CONCLUSIONS OF LAW

   
   

3. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto

   pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2001).

4. Because Respondent's registration is at risk, Petitioner bears the burden of proving by clear and convincing evidence that the charges in the Administrative Complaint are true.

5. The Administrative Complaint contains a general allegation that Respondent violated "Chapter 64E-6, FAC; [Sections] 381.0065 et. seq., FS; Chapter 489, Part III, FS; and the November 28, 2000 Settlement Agreement." In more specific terms, the charging document alleges that in her dealings with the Mauers, Patsy Brown, and the Flemings, Respondent violated Rule 64E-6.022(1)(k), Florida Administrative Code, by practicing fraud or deceit, and making untrue representations, that she violated Rule 64E- 6.022(1)(l)2., Florida Administrative Code, by committing gross negligence, incompetence, or misconduct which caused monetary harm to a customer, and that she violated Section 489.556(2), Florida Statutes (2000), by violating a lawful order of the Department (Counts I, II, and III); that Respondent falsely represented to the Department that she had the necessary equipment for the operation of the business, obtained her registration by means of fraud, misrepresentation or concealment of material facts, and committed gross

   misconduct in her profession in violation of Rule 64E- 6.022(1)(i), Florida Administrative Code, and Section 489.556(3) and (4), Florida Statutes (2000) (Count IV); and that by conspiring with her husband to fraudulently purchase two trucks (the Kodiac and Dodge Durango) under the name of her husband's brother without his permission, Respondent violated Rule 64E-6.022(1)(k), Florida Administrative Code (Counts V and VI).

6. The charging document relies primarily upon various parts of Rule 64E-6.022 as the substantive provisions which Respondent has allegedly violated. That rule is entitled "Disciplinary Guidelines" and contains "guidelines [to] be used in disciplinary cases, absent aggravating or mitigating circumstances." According to the history note which accompanies the rule, its provisions are derived from former Rule 10D-6.0751, Florida Administrative Code, repealed effective May 14, 1996. In its present form, except for subparagraphs (1)(p) and (q), the rule simply identifies various illicit acts, with no statutory source of authority stated therein, and prescribes the penalty guidelines to be used in the case of a violation.

7. The rule differs from those used by virtually all other professional licensing boards whose rules are codified in Chapters 64B1 through 64B24, Florida Administrative Code.

   For example, the rules of some licensing boards list a description of the violation, together with the specific statute which forms the source of authority for the violation, and then the penalty guideline (e.g., doctors (64B8-55.001), nurses (64B9-8.006), and physical therapists (64B17-7.001)); others provide language stating that if any person is found to have committed any acts set forth in certain enumerated statutes, a specific penalty guideline shall apply (e.g., acupuncturists (64B1-9.001), dentists (64B5-13.005), psychologists (64B19-17.002), and chiropractors (64B2- 16.003)); while at least one other rule identifies the violation and source of authority in one rule and prescribes the penalty guidelines in another (e.g., optometrists (64B13-

   15.001 et. seq.). It appears that prior to the enactment of the current rule, the Department used the latter format in Chapter 10D-6, Florida Administrative Code, now repealed. Despite the dissimilarity of the new rule with those of other licensing boards, Respondent has not complained about a lack of notice or some other procedural infirmity regarding the nature of the charges, and therefore the undersigned will rely on the disciplinary guidelines (and relevant statutory sources of authority) as the basis for determining whether a violation has occurred.

8. Under Section 489.556, Florida Statutes (2000), a registration may be suspended or revoked only upon a showing that the registrant has:

   1. Violated any provision of [Part III, Chapter 489].

   2. Violated any lawful order or rule rendered or adopted by the department.

   3. Obtained his or her registration or any other order, ruling, or authorization by means of fraud, misrepresentation, or concealment of material facts.

   4. Been found guilty of gross misconduct in the pursuit of his or her profession.

      
      

9. There is clear and convincing evidence that by recommending that unnecessary work be performed on their systems, Respondent made untrue representations in her dealings with the Mauers, Brown, and the Flemings in violation of Rule 64E-6.022(1)(k). In addition, Brown suffered monetary harm by virtue of Respondent's actions in violation of Rule 64E-6.022(1)(l)2. A violation of the foregoing rules also constitutes a violation of Section 489.556(2), Florida Statutes. To this extent, Counts I, II, and III of the complaint should be sustained.

10. The evidence is clear and convincing that Respondent violated the Agreement by allowing her husband to participate in the firm's business on two occasions. Therefore, she has violated Section 489.556(2), Florida Statutes, as alleged in Counts I and II of the complaint.

11. There is less than clear and convincing evidence that Respondent obtained her registration through fraud or misrepresentation, or that she conspired with her husband to fraudulently purchase three vehicles, as alleged in Counts IV, V, and VI. Therefore, those charges should be dismissed.

12. Rule 64E-6.022, Florida Administrative Code, provides suggested disciplinary guidelines to be used, absent aggravating or mitigating circumstances, when a registrant violates a provision within that rule. Except for a prior disciplinary action which was resolved against Respondent in March 2001, and the fact that multiple violations are present here, there are no aggravating or mitigating circumstances.

13. For a repeat violation of making an untrue or misleading representation, subparagraph (1)(k) of the rule calls for revocation of the registration. For a first time violation of Rule 64E-6.022(1)(l)2., the rule calls for a $500 fine and a 90-day suspension of the registration. In addition, Section 489.556, Florida Statutes, provides that a registration may be suspended or revoked upon a showing that the registrant has violated any provision within that statute. Here, the evidence shows that Respondent violated subsection

    (2) in two respects by twice violating a "lawful order" and by violating two Department rules.

14. Given the circumstances presented here, including the two aggravating factors, Respondent should be fined

$500.00 and her registration should be revoked.

RECOMMENDATION

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

RECOMMENDED that the Department of Health enter a final order imposing a $500.00 fine and revoking Respondent's registration as a septic tank contractor.

DONE AND ENTERED this 5th day of February, 2002, in Tallahassee, Leon County, Florida.

___________________________________ DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(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 5th day of February, 2002.

COPIES FURNISHED:

Theodore M. Henderson, Agency Clerk Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703

William W. Large, General Counsel Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703

Roland Reis, Esquire

Polk County Health Department Department of Health

1290 Golfview Avenue, Fourth Floor Bartow, Florida 33830-6740

Jack T. Edmund, Esquire 1125 East Main Street Bartow, Florida 33830-5004

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 agency that will issue the final order in this case.

Docket for Case No: 01-003218

Orders for Case No: 01-003218