. TIVE HEARINGS

DIVISION OF ADMlNISTRA'. .

STATE OF FLORIDA

DEPARTMENT OF HEALTH

DEPARTMENT OF HEALTH,

Petitioner,

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vs. DOH Case No,: 2011w

TERRY R. NORTON

Respondent.

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ADMINISTRATIVE COMPLAINT

Nature of the Case

YOU ARE HEREBY NOTIFIED that this is an administrative action. This case arises from Respondents' unlawful nets and practices and failure to comply with Section 381.0065 Florida Statute, Chapter 489 Part lll Florida Statutes and Chapter 64E-6 Florida Administrative Code. This action is authorized pursuant to Sections 381.0061 and 489.556 Florida Statutes, and Rule 64E 6.022 Florida Administrative Code that govern disciplinary actions against registered septic tank contractors.

Factual Allegations as to All Counts

1. The Petitioner, State of Florida, Department of Ilealth, is the administrative agency of the State of Florida charged with the duty to enforce the provisions of Chapter 381 Florida Statutes, Chapter 489 Part 111 Florida Statutes and the applicable rules contained in Chapter 64E-6 Florida Administrative Code.

2. The Respondent, Terry R. Norton, is a registered septic tank contractor, Registration number SR0890580, He is authorized to provide septic tank contracting services

   through the business name Port Charlotte Septic Inc., Authorization Number SA0051240. The Respondent advertises and holds himself out to the public as ,t septic tank contractor and engages in the practice of septic tank contractor services in at least Charlotte County.

3. The Respondent has had previous disciplinary action taken against him. On August 17, 2005, the Departme11t entered a Final Order, No.05-0088-DFO against Terry R. Norton imposing an administrative fine in the amount of $1,000.00 for improperly disposing spoil material, violating septic tank contractor disciplinary standards set forth in Rule 64E-6.002 Florida Administrative Code. See Pinal Order attached and incorporated herein as Attachment

   
   

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   ••A". Additionally, the Respondent had c:1J1other disciplinary action against him on May 30, 2000 when the Department issued a Citation for Violation against him for repairing a septic system without a pennit. See Citation attached and incorporated herein as Attachment •'B". Accordingly, the violations described herein are ·•repeat violalions" in detem1ining the range of disciplinary action staled in the Discip1inary Guidelines set forth in Rule 64E 6.022 Florida Adminfatrativc Code. Rule 64E-6.022(3) Florida Administrative Code states:

   As used in this rule, a repeat violation is any violation on which disciplinary action is being taken where the same licensee had previously had disciplinary action taken against him or received a letter of warning in a prior case. 1l1is definition applies regardless of the chronologfoai relationship of the violations and regardless of whether the violations are of the same or different subsections of this rule. The penalty given in the above list for repeat violations is intended to apply only to situations where the repeat violation is of a di11erent subsection of th.is ntlc than the first violation. Where the repeat violation is the very same type of violation as the first violation, the penalty set out above will generally be increased over what is shown for repeat violations.

   
   

4. On or about August 25, 2010, the Respondent contracted with property owm:r Keith Grenlng to repair the Onsite Sewage Treatment and Disposal System located at 1221 Peppertree Lane, Port Charlotte, Florida 33952 ("Property"). The Respondent subsequently applied to the Department for an Onsite Sewage Treatment and Disposal System repair permit.

5. On September 2, 2010, the Department issued an Onsite Sewage Treatment and Disposal System repair permit, number 10-407RP, (Repair Pennit) to repair the septic system on the Property. The permit required that the septic system's drainfield be 667 square feet and that

   the drainfield he excavated Lo the depth of 36 inches. incorporated herein as Attachment "C".

   See Repair Permit attached and

6. The Respondent proceeded to repair the septic system located on the Property and on September 29, 2010, the Department issued final approval of the repair job.

7. On November 6 and 8, 2010, lhe Department received a complaint from the property owner, Keith Grening. Mr. Grening stated there were sinkholes forming in his drainficld.

8. Subsequent inspections conducted by the Department on November 8 and 9) 2010 confirmed there were at least two sink holes and other areas of depression in the drainfield that should not be occurring.

   
   

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9. Shortly thereafter, the Respondent installed two inspection ports and brought in extra fill for the drainf'ield to fill in the depressions.

I 0. On Februnry 7, 2011 the property owner called the Department and reported that

his drainfield was fonning sinkholes and collapsing again. The Department's subsequent inspeclions on February 7, 18 and 24, 2010 concluded that the drainfield was in fact in premature failure and that it needed to be replaced.

l 1. On February 25, 2011 The Department issued another repair perm1l for the

Property's failing septic system. Although the Respondent h,td initially refused to perform the repair job, on March 7; 2011, the Respondent began the repair job at no expense to the property owner. The repair work was performed on March 7, 8 and 9, 2011 and was at all times under the observation of two Department inspectors who collected soil samples, filmed and photographed the repair job! and summarized their observations in a written report. See Report attached and incorporated herein marked Attachment "D".

1. On March 7, 2011, spoil material was observed during the excavation of the

   drainfield. The Department determined the Respondent failed to remove the soil and spoil

   material two feet below the dr-ainfield, contrary to the Repair Permit specifications, which required the Respondent to excavate and remove soils to the depth or 36 inches. The total depth of excavation completed by the Respondent Wi:i:S merely 29 inches. See previously referenced Attachment "D''. The Respondent's failure to remove the soils and failure to excavate lo the

   specified depth of 36 inches contributed to the septic systems premature faHure.

2. The Respondent's acts and practices described herein constitute gross negligem:e, incompetence or misconduct. These violations subject the Respondent to the discipline mandated in Rule 64E-6.022(1)(1)1 Florida Administrative Co<le, which is revocation for a repeat violation. The Department hereby imposes nn administratiw fine in the amount of One Thousand Dollars ($1,000.00) in lieu of revocation for these violations against Respondent, Terry

   R. Norton. This discipline has been mitigated from revocation in accordance with Rule 64.E- 6.022(2) Florida Administrative Code. Alternatively, the Respondent's actions resulted in the repair of an onsite sewage treatment and disposal system in violation of the standards of Section 381.0065, Florida Statutes or Chapter 64E-6, Florida Administrative Code. The Respondent's actions subject the Respondent to the discipline in Rule 64F.-6.022(1)(p), Florida Administrative

   
   

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   Code, which is revocation for a repeat violation. The DcpartmenL hereby imposes an administrative fine in the amount of One Thousand Dollars ($1,000.00) in lieu of revocation for these violations against Respondent, Terry R. Norton. ·n,is discipline has been mitigated from revocation in accordance with Rule 64E-6.022(2) Florida Administrative Code.

3. During the excavation of the drainfield on March 7 and 8, 2011, the Department observed that corrugated pipe from the previous drainfield had been placed in between the new infiltnitors at several locations as part of the first repair perfo1med by the Respondent. Rule 64E- 6.002(50), Florida Administrative Code, defines spoil material as any part of the existing drainficld, any adjacent soil material. with.in 24 inches vertically and 12 inches horizontally of the drainficld, and any soil that has visible signs ofcmuenl that has been removed as part of a repair, modification or abandonment of an onsite sewage treatment and disposal system. Accordingly, the corrugated pipe is considered spoil material as defined hy Rule 64E•6.002(50).

4. Leaving these pieces of corrugated pipe in a newly repaired drainfield is in violates Rule 64E-6.015, Florida Administrative Code and the Repair Pennit specifications, which requires removal and proper disposal of spoil material. See previously referenced Attachment D, This placement of the old corrugated pipe in between the infiltrators is a contributing factor to the septic system's premature failure.

5. The Respondent Terry R. Norton, acts and practices described herein constitute gross negligence, incompetence or misconduct. These violations subject the Respondent to the discipline mandated in Rule 64£-6.022(1)(1)1 Florida Administrative Code, which is revocation for a repeat violation. The Department hereby imposes an administrative fine in the amowit of One Thousand Dollars ($1,000.00\ in lieu of revocation, for these violations, against Respondent, Terry R. Norton. '!'his discipline has been mitigated from revocation in accordance with Rule 64E-6.022(2) Florida Adminii::trative Code. Alternatively, the Respondent's actions resulted in the repair of an onsite sewage treatment and disposal system in V1olation of the standards of Section 381.0065, Florida Statutes or Chapter 64E 6, Florida Administrative Code. The Respondent's actions subject the Respondent to the discipline in Rule 64E-6.022(1)(p), Florida Administrative Code, which is revocation for a repeat violation. The Department hereby imposes an administrative fine in the amount of One Thousand Dollar::; ($1,000.00) in lieu of

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revocation for these violations against Respondent, Terry R. Norton. This discipline has been mitigated from revocation in accorchmce with Rule 64E-:-6.022(2) Florida Administrative Code.

R quest. for Relief

Wherefore, the Oe;ipartment of Health hereby imposes an administrative fine in the total amount of Two Thousand Dollars ($2,000.00) against Respondent, Terry R. Norton, Registration Number SR0890580. This fine ha been mitigated from a revocation sel J'orlh in the disciplinary standards for this repeat violation,

Done this 29th day of March, 2011 by the Department of Health, Charlotte County

Denise Du e Florida B # 565921 Chicf'Legul Counsel

Hen.Ith Department.

2295 Victoria Avenue, Room 206 Fort Myers, Florida 33901

(239) 461-6130

(239) 461-6176 Facsimile

CERTIFICATE OF SERVICE

I hereby cerli.fy that the true and original Administrative Complaint herein was furnished to Terry R. Norton, 614 Rio Villa Drive, Punta Gorda edF,x Tracking No.

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this

29th day arch 2011.

Denise

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NOTICE OF RIGHTS TO APPEAT.

A party whose subslantial interest is affected by this order may petition for an administrative hearing pursuant to sections 120.569 and 120.57, Ji'la. Stat. Such proceedings arc governed by Rule 28-106, Florida Administrative Code. A petition ·for administrative hearing must be in writing and musl be received by the Agency Clerk for the Department, within twenty­ one (21) days from the receipt of this order. The address of the Agency Clerk is 4052 Hald Cypress Way, BIN# A02, Tallahassee FL 32399-1703. The Agency Clerk's facsimile number is 850-410- t 448.

Mediation is not available as an altemative remedy.

Your failure to submit petition for hearing within 21 days from receipt of this order will constitute a waiver of your right to ru1administrative hearing, a11d this order shall become a "final order,"

Should this order become a final order, a party who is adversely affected by it is entitled to judicial review pursuant to section 120.681 Fla. Stat. Review proceedings arc governed by the

.r'lorida Rules of Appellate Procedure. Such proceedings may be commenced by filing one copy ofa Notice of Appeal with the Agency Clerk of the Department or Htmlth and a second copy, accompanied by the filing fees required by law, with the Court of Appeal in the appropriate DistricL Court. The notice must be filed within 30 days of rendition of the final order.

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Docket for Case No: 11-002036