The Issue Whether Respondent's permit for disposal of septic tank sludge should be revoked, as set forth in letter of the Volusia County Health Department, dated February 15, 1979. This case was originally set for hearing on June 21, 1979, pursuant to Notice of Hearing, dated March 30, 1979. On June 20, Respondent Philip G. Koan orally advised the Hearing Officer that he wished to withdraw his request for hearing. He was advised by the Hearing Officer to submit a written withdrawal of the petition and that the scheduled hearing would be cancelled pending receipt. On June 21, Respondent orally advised the Hearing Officer that he had changed his mind after reflection and now desired that the hearing be rescheduled. Since no written withdrawal of the petition or voluntary dismissal had been filed, the case was renoticed for hearing to be held on September 10, 1979. At the commencement of the hearing on that date, Petitioner moved to dismiss the case for lack of jurisdiction claiming that the petition had been dismissed by Respondent by his oral communication to the Hearing Officer on June The motion was denied because the proceeding had never been formally terminated by action of the Respondent or the Hearing Officer.
Findings Of Fact On October 5, 1978, Respondent Koan Septic Tank, Inc., Deland, Florida, submitted an application to the Volusia County Health Department for a permit to operate a septic tank cleaning service and temporary privy service. The application reflected the equipment which the applicant intended to use for the operation. Petitioner's application form contained a block entitled "Method and Place of Disposal." The applicant inserted the words "Smith Farm and Greens Dairy Grove" on the form. On November 7, 1978, Larry Herman, a sanitation aide for the County Health Department, performed an inspection of Respondent's facilities and equipment, and prepared a report on a mimeographed form headed "Septic Tanks and Privy Pump Truck Inspection." This form had a block entitled "Method and Place of Disposal." The inspector entered the words "Smith Farm - Greens Diary (sic), dumped & tilled." Although Herman testified that he had made no special inquiry at the time of his inspection as to the intended method of sludge disposal, he was aware that Respondent's customary method at its Smith Farm location was to "bury" the sludge into the ground by spreading and mechanical tilling. However, he recalled having conversations with Respondent's owner, Philip G. Koan, concerning disposal of sludge by the action of worms, prior to and after his inspection. On the other hand, both Koan and another officer of the corporation testified that Koan advised Herman at the time of the latter's inspection that the worm method of disposal would be used at the Greens Dairy location and that he expressed no objections. It is found that Herman was advised of Respondent's proposed method of disposal at the time of the inspection; however, he was not authorized to approve or issue permits. (Testimony of Herman, Gnann, Koan, Page, Petitioner's Exhibits 1-2) On November 7, 1978, the Volusia County Health Department issued a permit authorizing Respondent to operate its establishment. The permit reflected an expiration date of September 30, 1979, and provided that violation of any applicable health law would revoke the permit. No conditions were attached to the permit, nor did it indicate any required method of sludge disposal. (Testimony of Page, Petitioner's Exhibit 3) Respondent has been in the business of manufacturing, installing and servicing septic tanks for approximately eighteen years. In addition, Koan conducted a business involving the sale of worms. In the fall of 1978, he had approximately 12,000 pounds worms on hand. He had conducted various experiments at his business premises utilizing worms to dispose of manure and septic tank sludge. He found that the worms would eat the sludge material and excrete the same, resulting in worm "castings" or material which resembles potting soil with no residual odor. He had also placed worms in clogged septic tank drain fields and found that they later became unclogged, thus resulting in his conclusion that worms had disposed of the septic tank material in the tank. He further discovered that odors associated with septic tank sludge dissipated in a very short time when worms were present in the material, and observed that one pound of worms would "digest" or dispose of one pound of sludge in approximately twenty-four hours. Therefore, prior to receiving the county permit, he deposited the 12,000 pounds of worms in a trench located at the Greens Dairy location. After receiving the permit, Respondent dumped septic tank sludge in the trench approximately three times a week. The trench was about four feet wide, one foot deep, and 200 feet long. A screen was placed over the top of the ditch. However, it did not prevent access to files. (Testimony of Koan, Warnock, Petitioner's Exhibits 8-9) On December 12, 978, the owner of a skating rink adjacent to Respondent's Green Dairy property complained to the County Health Department concerning the presence of odors and flies at her establishment which had been the subject of customer complaints. A county sanitarian inspected the sludge operation on that date and found that there was some odor and a few flies in the immediate vicinity, but no fly larvae was observed. The ditch was full of sludge at the time. Some spillage has occurred in the driveway on the property. The location is approximately two to three hundred feet from the rear of the skating rink. A further inspection by the county Director of the Environmental Health Section was made on December 27. As a result, he wrote Respondent on December 28 that, although the inspection showed that flies and odors were minimal at the time, he could foresee an escalation of the same during certain periods, together with increased complaints from local businessmen. The letter further stated that the use of septic tank sludge for enriching a "worm bed" was in violation of Chapter 10D6.29, Florida Administrative Code, and Chapter 386 Florida Statutes, and was a sanitary nuisance which must be abated. A further complaint in January, 1979, followed by another county inspection revealed essentially the same conditions that existed at the time of the prior inspection, and prompted a second letter from the Environmental Health Section director to Respondent on January 31, 1979, wherein he was advised to cease dumping septic tank sludge at the Greens Dairy location within fourteen days and commence using the county sanitary landfill for such purposes. As a result of this letter, Respondent stopped dumping at the location on or about February 2. On February 15, another county letter was sent to Respondent which advised that its permit for disposal of septic tank sludge was revoked, subject to a request for hearing, as being in violation of Chapter 10D6.29(1) and (3)(c), Florida Administrative Code, and Chapter 386.041(1)(e), Florida Statutes. The stated grounds for proposed revocation were that Respondent was employing an unsatisfactory and unacceptable method and place for disposal of waste, and was maintaining a condition capable of breeding flies, mosquitoes and other insects capable of transmitting diseases. The letter further stated that Respondent was not tilling the sludge as had been stated on the permit application and that the potential for breeding flies was evident due to concentration and lack of covering with soil. (Testimony of Tyndall, Van Ulzer, Page, Camp, Koan, Petitioner's Exhibits 4-7) During the approximate three-month period from November 1978 through January 1979 when Respondent was dumping sludge, a strong and distinctive odor and an unusually large number of flies were experienced on the skating rink premises nearby. After the dumping stopped in early February, both problems disappeared. However, other odors incident to the presence of hogs and chickens at farms in the area also produced a noxious odor in and around the skating rink. The odor produced by the dumping of sludge dissipates rapidly after dumping. The absence of fly larvae in and around the ditch shows that flies were not breeding there during the period of dumping operations, but does not rule out the potential for such breeding in the future. (Testimony of Munshower, Tyndall, Coffin, Branton, Tontone, Warnock, Hunt, Stipulation) The Volusia County Health Department issues permits involving the disposal of sludge only when a treatment method of burial, incineration, or sanitary landfill is used in the operation, as prescribed by Respondent's Rule 10D-6.29, Florida Administrative Code. However, long-standing policy permits disposal by mechanical tilling of the sludge into soil as a "modified" method of burial. This method cuts the sludge with a disc and harrow and mixes it into the soil to a depth of approximately four inches. It also produces a temporary odor when the sludge is first spread on the soil. The county has no policies concerning the use of worms to dispose of sludge and does not consider it to be an acceptable method of disposal. The County Health Department has not conducted any scientific tests to determine the presence of pathogens in soil which has been mechanically tilled with sludge. (Testimony of Page) When sludge is placed over a "worm bed" and has settled, the material begins moving as the worms eat the sludge. The residue of the digestive process is sold as a soil conditioner which meets State Department of Agriculture requirements and which contains plant nutrients. Earth worms multiply rapidly when feeding on sludge. Respondent had approximately 50,000 pounds of worms in its trench when it ceased operations in February 1979. This method of sludge disposal has not been accepted generally by health authorities as a recognized and acceptable procedure. (Testimony of Koan, Warnock, Hunt, Tontone, Nemeyer, supplemented by Respondent's Exhibit 1)
Recommendation That Respondent's Permit No. 18362 be permitted to remain in effect until its expiration date provided that it disposes of sludge and/or contents from septic tanks in an acceptable method, as provided in Rule 10D-6.29, F.A.C. DONE AND ENTERED this 26th day of September, 1979, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 904/488-9675 COPIES FURNISHED: Robert Eisenberg, Esquire Department of HRS District IV Counsel 5920 Arlington Expressway Post Office Box 2050 Jacksonville, Florida Craig James, Esquire Post Office Drawer DD Deland, Florida 32720 Department of HRS Attn: Eric J. Haugdahl 1317 Winewood Boulevard Tallahassee, Florida 32301
Findings Of Fact Prior to November, 1987, Petitioners purchased adjoining Lots 56 and 57 located in West Vic Holiday Sands subdivision in Santa Rosa County. 1/ The two lots constitute substantially less than a fourth of an acre of land. Petitioners intended to place two two bedroom mobile homes on the lots for use as a weekend retreat for their families. When Petitioners purchased the two lots, the lots had an existing 900 - 1050 gallon septic tank on the property. The tank had been previously approved by the Department of Pollution Control in 1973 for Recreational vehicle/campsite use. The tank had never been permitted for use as a homesite, such as a two bedroom mobile home would require. A Recreational Vehicle (RV) is generally considered by HRS to be a motor vehicle with a maximum size of 8'x 35'. Anything substantially over that size, as Petitioners' two mobile homes were, would not be considered for RV use and would be required to obtain a homesite type permit. Petitioners were required by their proposed use of the property to obtain a homesite permit. However, Petitioners did not discover the homesite permit requirement until after they had purchased the two lots and after they had purchased two mobile homes at considerable monetary cost to themselves. The Petitioners did not think about investigating whether a septic tank permit would be required because the subdivision area had permanent residences already in place. However, the evidence demonstrated the majority of these residences are located on four lots. There are a few residences located on fewer than four lots and on lots the size of Petitioners. 2/ The residences with nonconforming septic tanks were permitted by HRS under a mistaken interpretation of the law by the local Health Department office. However, about a year prior to Petitioners' permit and at the request of the local office, the local office was audited and its interpretation was brought into compliance with state law. Petitioners were, therefore, no longer entitled to rely on the local office's previous misinterpretation of the law and in previously issuing permits authorized under that misinterpretation of the law. Petitioners applied for an existing septic tank permit on November 23, 1987. Because the existing tank did not have enough capacity or drainage area for the Petitioners' desired use and the size of the property was under one- quarter acre, Respondent informed Petitioners they would have to seek a variance from the usual septic tank permit requirements. 3/ Petitioners applied for a variance. Petitioners felt a hardship variance should be granted due to the amount of money they had spent on the property and the fact Respondent had granted other nonconforming permits under its mistaken interpretation of the septic tank law. Neither of the Petitioners appeared at the variance review committee meeting in Ocala, Florida, which considered their variance request. However, the local health official recommended approval of the variance since other tanks had been mistakenly approved previously. The committee reviewed Petitioners' application and other relevant information about the property. The committee determined that no hardship existed and denied the permit. Petitioners received the committee's letter of denial on February 20, 1988. The evidence showed that Petitioners had spent close to $14,000.00 in purchasing the property and preparing it for occupancy. However, monetary expenditures alone have never been considered sufficient to establish a hardship in permitting cases. Petitioners presented no evidence which would cause such expenditures to amount to a hardship. Use of their property is still available, although that use is not exactly what Petitioners had in mind. Moreover, Petitioners may still recoup the money spent on the mobile homes by renting or selling them. Under these facts, no hardship was shown by Petitioners. In essence, Petitioners failed to show any monetary losses as opposed to expenditures of a significant nature. Likewise, Petitioners failed to establish justifiable reliance on the Respondent's previous mistakes, i.e., estoppel. Respondent's mistakes were not known by Petitioners at the time the majority of Petitioners' expenditures were incurred. The evidence regarding the general appearance of the subdivision was insufficient to establish a basis for such reliance. Moreover, Petitioners had the opportunity and the initial burden to investigate any potential governmental requirements prior to their purchase of the property. Again, no hardship was established by Petitioners' utilizing the theory of estoppel. Finally, Petitioners failed to present any reliable evidence that the discharge from their septic tank would not adversely affect the health of the public or would not significantly degrade the ground or surface waters of the State. The fact that other nonconforming tanks are in place with relatively few observable problems does not support the further inference that one more nonconforming tank won't hurt in an already overloaded area. Under these facts, Petitioners are not entitled to a variance from the Department's septic tank requirements; and therefore, are not entitled to a septic tank permit.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Respondent request for a variance from the septic tank permit requirements be DENIED and the request for a septic tank permit be DENIED. DONE and ORDERED this 11th day of January, 1989, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The Oakland Building 2900 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of January, 1989.
The Issue The issue in this case is whether the Petitioner, the Department of Health and Rehabilitative Services (HRS), should fine the Respondent, William Loiacano, d/b/a Gulf Coast Food Distributors, Inc., for maintaining a sanitary nuisance.2/
Findings Of Fact In 1990,6/ the Respondent, William Loiacano, d/b/a Gulf Coast Food Distributors, Inc., purchased property at 8402 Lemon Road, Port Richey, Florida, for purposes of relocating his on-going food distributing business. The prior owner operated a carpet business, with approximately five employees, at the location. The Respondent had about 45-50 employees. Shortly after the Respondent started doing business at the new location, he began to have problems with the existing septic tank system. The problem seemed to relate to the increased use of the toilets in the building by the added number of the Respondent's employees. In September, 1990, an HRS environmental health specialist inspected the premises and observed evidence of raw sewage bubbling to the surface from the septic system's drain field and flowing into a stormwater retention pond on the property.7/ The Respondent was directed to abate the nuisance, and a discussion of the Respondent's alternatives ensued. The Respondent rejected the first proposed alternative of connecting to a central public sewer. The nearest connection was over 1000 feet away and would entail significant cost to the Respondent. (The cost would have been even higher if gravity flow was not possible, and it became necessary to pump to the connection point.) The Respondent chose, with HRS' permission, the next alternative of trying to solve the problem by installing a second septic tank system on the property. The second septic tank system for which the Respondent applied, and which he had built, was designed for domestic use by 15 employees. In addition, after installation of the second septic tank system, the Respondent began processing a relish pack and a salad mix on the premises. The processing method for these products required the use of a great deal of water. On or about February 7, 1991, another HRS environmental health specialist inspected the premises and again found evidence of raw sewage bubbling to the surface, this time from the new septic system's drain field, and flowing into the stormwater retention pond. The amount of water flowing into the drainfields, from a combination of the use of the toilets in the building, together with the new processing operations taking place in the building, had overtaxed the double septic tank system, and the system failed. Given the quantities of water needed to process the new products, the Respondent should have anticipated, and probably was aware of, the system failure. The Respondent was directed to fix the problem within a week or stop the processing the new products on the premises. The Respondent tried several water conservation methods in an attempt to address the problem without having to either stop processing the new products or incur the cost of connecting to the central public sewer system. He knew, or should have known, that his efforts were futile, given the quantities of water needed to process the relish pack and salad mix. HRS also referred the matter to the Florida Department of Environmental Regulation. DER inspected on or about February 18, 1991, and told the Respondent that he could not dispose of the industrial waste from the operation of his business in the on-premises septic system without an industrial waste disposal permit. In connection with this, DER apparently advised the Respondent that he would be required to test the water in the stormwater retention pond for certain contaminants. The Respondent was unable to understand what he needed to test for, and how, and sought assistance from DER and HRS. Although there is evidence that HRS tried to help the Respondent by referring him to certain individuals employed by the DER for answers, the Respondent did not follow HRS' guidance. In any case, the efforts would have been futile, as the Respondent did not have enough property to dispose of the industrial wastes from the operation of his business on-site using a septic tank system. On or about June 19, 1991, a neighbor complained to the Respondent about the smell of raw sewage coming from the Respondent's septic system. The Respondent did not receive his neighbor's observations kindly. The neighbor complained to HRS and the Pasco County Sheriff's office. An HRS inspection on June 20, 1991, confirmed the existence of a sanitary nuisance on the premises. Again, raw sewage was bubbling to the surface from the new septic system's drain field and was flowing into the stormwater retention pond. HRS arranged for another meeting with the Respondent on June 27, 1991. At the June 27, 1991, meeting, HRS required that the Respondent stop processing the relish pack and the salad mix until he could hook up to the central public sewer. It was felt that the septic tank systems might be adequate pending connection to the central public sewer if the quantities of water required for processing those products on the premises were eliminated and if other preventive measures were taken. From June 27, 1991, forward to the date of the hearing, the Respondent purchased relish pack and salad mix from other suppliers rather than process them on the premises at 8402 Lemon Road. In addition, the Respondent continued to attempt to conserve water, had the septic tanks pumped out as frequently as required (sometimes practically daily), and had his employees utilize portable toilets in an attempt to avoid additional septic tank failures. After learning that excessive water use at the premises was partially a result of plumbing leaks, the Respondent also had the plumbing fixed. The Respondent also immediately initiated the long process of connecting to the central public sewer. He had a meeting with the assistant county administrator for utilities service for Pasco County on July 3, 1991. They discussed alternatives for connecting the Respondent's business. Initially, the County wanted the Respondent to pay to run a sewer line over 1000 feet to the south of his property to enable the County to efficiently connect other businesses and property owners in that area. But this option would have been costly to the Respondent, and there was no guarantee that gravity flow was possible between the Respondent's property and the connection point. If not, the Respondent also would have to pay the cost of pumping to the connection point. The Respondent hired an engineer to design an alternative that would be less costly. He also sought the cooperation of his neighbors, who would be required to connect to central sewer when the Respondent did. The engineer also worked with those neighbors in designing an alternate connection. On or about September 9, 1991, another meeting was held among the Respondent and his engineer and the county's utilites construction team. As a result of this meeting, the County agreed to modify the connection route in accordance with the Respondent's proposal. The Respondent's engineer continued his work on the design of the connection. HRS inspections on or about September 11 and 25, 1991, revealed that the Respondent's septic system was failing again and that raw sewage again was bubbling to the surface from the new septic system's drain field and flowing into the stormwater retention pond. HRS arranged to meet with the Respondent again on October 4, 1991, along with a Pasco County deputy sheriff and a DER industrial wastewater compliance inspector. At this meeting, the Respondent felt that the deputy sheriff was threatening to arrest him for violation of the law, and he angrily terminated the meeting and asked all of them to leave the premises. In December, 1991, the Respondent arranged a meeting with the County and his neighbors to discuss sharing the cost of the connection route the Respondent was proposing to build. The neighbors, realizing the Respondent's weak bargaining position, refused to share the Respondent's costs. At this point, the County conceded to pay the approximate $9,000 to jack and bore under the road, but the Respondent was required to pay to run a sewer line approximately 300 feet to the south and to construct a manhole on his neighbors' side of the road, as well as on his side of the road. (The second manhole would be used by the neighbors to connect their properties to the line the Respondent was building when the County required them to connect.) The total cost to the Respondent for his part of the construction of the connection to the public sewer will be approximately $24,000. On January 17, 1992, the Respondent paid a $3,428 impact fee for connecting to the central public sewer, based on projected water use. On January 23, 1992, the Respondent applied for a force main interconnect permit. At the time of the final hearing, the jack and bore and the construction of the new sewer line connecting the Respondent's property to the central sewer were about to begin. The evidence indicates that, once HRS made it clear to the Respondent on or about June 27, 1991, that connection to the central public sewer was the Respondent's only remaining option, the Respondent moved with reasonable dispatch. The time it took to arrange to be connected to the public sewer was within normal ranges, and there is no evidence that the Respondent did anything to cause unnecessary delays. (Delays, if any, were caused by the need for the Respondent's engineer to work with and get cooperation from the Respondent's neighbors, who were not as anxious as the Respondent to have the new sewer line built.) There also is no evidence that the Respondent processed relish pack or salad mix on the premises after June 27, 1991. In addition, the Respondent continued to attempt to conserve water, had the septic tanks pumped out frequently (sometimes practically daily), and had his employees utilize portable toilets in an attempt to avoid additional septic tank failures. The evidence also indicates that, after June 27, 1991, all concerned were hopeful that the measures the Respondent was taking would prevent, or at least minimize, septic system failures pending connection to the public sewer. After June 27, 1991, HRS presented direct evidence of septic tank system failures only on two occasions in September, 1991. The evidence is that, after becoming aware of the system failures in September, 1991, HRS sought the imposition of a fine against the Respondent. The evidence suggests two other important motivating reasons for HRS' action: first, not being aware of the actions the Respondent took between June 27 and September, 1991, to connect to the central sewer, HRS mistakenly believed that the Respondent was ignoring its instructions; and, second, HRS mistook the Respondent's angry outburst at the meeting at the Respondent's place of business in September, 1991, when he felt he was being threatened with arrest for violation of the law, as being evidence that the Respondent was not genuine in his apparent concern and efforts to respond to HRS' guidance and instruction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Health and Rehabilitative Services (HRS) enter a final order fining the Respondent, William Loiacano, d/b/a Gulf Coast Food Distributors, Inc., in the amount of $5,000. RECOMMENDED this 29 day of April, 1992, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this day of April, 1992.
Findings Of Fact Respondent is registered with Petitioner for performing septic tank contracting services. In early 1991, Mr. Dennis Scott purchased a single family residence at 19169 Acorn Road in Ft. Myers. He purchased it as a rental property. About a year later, he began having problems with the septic tank system. He had the tank pumped out, but the problem returned a short time later. Mr. Scott told his maintenance man to contract with someone to fix the septic tank system. The maintenance man contacted Respondent. They agreed that Respondent would repair the system for $925. The record is silent as to specifically what the maintenance man told Respondent or what he told the maintenance man. In any event, Respondent and Mr. Scott did not converse. Respondent enlarged the existing drainfield, although the record does not indicate that he did so because he was asked to do so by the maintenance man or because Respondent thought that this repair would fix the problem. On May 28, 1992, Respondent and a team of employees appeared at the Acorn Road address to repair the septic tank system. Respondent left the site shortly after the men began work. Mr. Scott had nothing to do with the hiring of Respondent or even with paying him. Because Mr. Scott was unavailable, a friend wrote Respondent a check when the job was finished, and Mr. Scott later repaid the friend. On August 25, 1992, the system backed up again. Mr. Scott was not alarmed because of recent heavy rains. When the system backed up again a month later, Mr. Scott called Respondent, but could not get a call returned at first. Eventually, someone at Respondent's business said that he would come out and take a look at the system. In early December, 1992, the system backed up again and no one had come out to look at it from Respondent's business. At the request of Mr. Scott, another contractor visited the site and, on December 14, 1992, dug up the drainfield. The original drainfield had been installed improperly so as to run slightly uphill. This caused the system to operate inefficiently, although hydraulic pressure was evidently strong enough to draw the sewage through the drainfield. The record is unclear whether the extension installed by Respondent also ran uphill or whether Respondent improperly designed the extension. Mr. Scott and the second contractor testified that the extension ran uphill. However, one of Petitioner's inspectors inspected the drainfield addition before it was covered and certified that it was acceptable, which meant that it did not run uphill. The source of conflicting evidence, inasmuch as it comes from an employee of Petitioner, undermines Petitioner's case. The record is equally deficient to hold Respondent liable for poor design of the Acorn Road drainfield. There is no indication of what Mr. Scott wanted or, more importantly, what the maintenance man told Respondent. In any event, the evidence does not establish that Respondent installed an uphill drainfield. In early 1994, a house was listed for sale at 817 Gleason Parkway in Cape Coral. The listing agent informed the agent who had found a prospective buyer that there might be a problem with the septic tank system. The agent called Respondent's business and asked for a preclosing inspection of the septic tank system. The parties postponed the closing until the inspection could be completed and any necessary funds reserved to fix the system. The drainfield for the septic tank system at 817 Gleason Parkway was elevated due to the relatively high water table in the area. Even so, the system was poorly designed because the drainfield was too low and too small, based upon applicable requirements of law at the time of the original construction of the system and its renovation five years ago. Respondent was familiar with the system. He had reconstructed the system in 1990, although he did not redesign the new system, and had maintained the system since. He was aware that the tank had an automatic alarm that sounded when the fluid level became too high. In fact, Respondent conducted a cursory inspection due to his reliance on the automatic alarm in the tank, the imminent availability of centralized sewer service in the area, and possibly his unwillingness to disappoint a real estate agent by jeopardizing a pending sale. Among other omissions was his failure to probe the drainfield to determine its condition. Had Respondent conducted a competent inspection, he would have found that the stones in the drainfield were greasy, indicative of a failing system. Much of the time sewage water stagnated beside the drainfield mound. If pooled water were not present at the time of his inspection, the tall dollarweed growing on the mound should have alerted him to the prevailing damp conditions. Additionally, Respondent should have noticed lawnmower tracks through the typically soaked areas around the drainfield, as well as the thick grass that was uncut due to the soaked ground under it. Although water may not have been erupting from the drainfield mound at the time of Respondent's inspection, a reasonably close examination of the area would have revealed a small hole where sewage had erupted in the recent past from the mound. Instead, Respondent certified on April 4, 1994, that the "septic tank was in good working order." Respondent had been contacted to inspect the septic tank system, including the drainfield. Respondent was aware of the scope of his assignment, and his certification implied that the entire system was in good working order. Within two weeks after Respondent's certification, the system failed completely. Petitioner ordered the new owner to incur substantial expenses to repair the onsite system until he could tie into centralized sewer services.
Recommendation It is hereby RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order imposing against Respondent a $500 administrative fine and suspending his license for 90 days. ENTERED on March 30, 1995, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on March 30, 1995. APPENDIX Rulings on Petitioner's Proposed Findings 1-2: adopted or adopted in substance. 3: rejected as recitation of evidence and subordinate. 4-5: adopted or adopted in substance. 6-15: rejected as recitation of evidence and subordinate. 16: adopted or adopted in substance. 17-19: adopted or adopted in substance. 20: rejected as unsupported by the appropriate weight of the evidence. Rulings on Respondent's Proposed Findings 1-2: adopted or adopted in substance. 3-4: rejected as unsupported by the appropriate weight of the evidence, recitation of evidence, and subordinate. 5: rejected as irrelevant. 6: rejected as unsupported by the appropriate weight of the evidence, recitation of evidence, and subordinate. 7-9: rejected as subordinate and irrelevant. 10: rejected as irrelevant. The rule speaks of harm to any "person," not to a customer or other person in privity with the contractor. 11: rejected as unsupported by the appropriate weight of the evidence. 12: adopted or adopted in substance, but Petitioner's indirect responsibility does not excuse Respondent's grossly incompetent inspection of the system. 13-14: adopted or adopted in substance. 15: rejected as unnecessary. 16-17: rejected as subordinate. COPIES FURNISHED: Susan Mastin Scott, Senior Attorney Department of Health and Rehabilitative Services P.O. Box 60085 Ft. Myers, FL 33906 Thomas B. Hart Humphrey & Knott, P.A. P.O. Box 2449 Ft. Myers, FL 33902-2449 Kim Tucker, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Robert L. Powell Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
The Issue The issue in this case is whether Respondent, Larry C. Garner, should be fined $500 for misstating the size of a septic tank and drain field.
Findings Of Fact Respondent, Larry C. Garner, is the licensed septic tank contractor who owns and operates A. Carver Septic Tank. (The Citation for Violation erroneously referred to the company as “E. Carver Septic Tank,” but the error was corrected without objection at final hearing. There was no evidence to support Respondent’s suggestion that the Department may have taken disciplinary action against him because it erroneously thought Respondent was another licensee.) On December 6, 2001, an employee of Respondent pumped out a septic tank and measured a drain field located at 847 Matthews Road, Maxville, Florida. The resident there wanted to enlarge her residence and needed Respondent's services in order to obtain Department approval of the existing septic tank system for the enlarged residence. After services were provided, Respondent's office gave the resident a receipt stating that Respondent's company had pumped out a 900 gallon septic tank and that the drain field measured 360 square feet. (Respondent's office actually dealt with the resident's adult daughter.) Respondent's office staff also prepared Form 4015 (a Department form entitled “Onsite Sewage Treatment and Disposal System Existing System and System Repair Evaluation”) and gave it to the resident for use in getting approval of the system for the enlarged residence. The form stated that the septic tank was 900 gallons and that the drain field was 360 square feet. When the resident applied for approval of her septic tank system for her enlarged residence, the Department inspected the system and found that the septic tank actually was 750 gallons and the drain field actually was only approximately 110 square feet. The Department issued the Citation for Violation based on the magnitude of the discrepancy. Respondent denied that he personally had any contemporaneous knowledge of the services provided by his employee or the receipt of Form 4015 prepared by his office, and there was no evidence that he did. Respondent personally investigated after issuance of the Citation for Violation. At final hearing, Respondent questioned whether the Form 4015 actually stated that the septic tank was 900 gallons. From the handwriting on the form itself, it appears possible that the number could read 700, not 900. But based on the written receipt, which either was prepared contemporaneously with the Form 4015 or was the basis for preparation of the Form 4015 by Respondent's office staff, the greater weight of the evidence was that the Form 4015 stated and was intended to state 900 gallons as the size of the septic tank. As further support for this finding, Respondent himself testified to a conversation he had with his employee during which the employee explained that he sized the septic tank at 700 gallons based on its apparent depth and Respondent admonished him that the employee knew better--i.e., knew it was necessary to measure height, width, and depth to accurately measure the size of a septic tank. Respondent also attempted to explain how his employee may have made a forgivable error in measuring the drain field. According to the Form 4015, the employee measured the drain field as a rectangular bed, 12 feet by 30 feet. Actually, the drain field consists of two trenches (one 26 feet long and the other 29 feet long), which the Department's inspector measured as being two feet wide. Respondent testified that the drain field began at a distribution box and was approximately ten feet wide within a few feet of the distribution box. Respondent testified that it would be easy to incorrectly assume that the approximate ten-foot width continued as a bed for the entire length of the drain field, as his employee apparently did. However, the greater weight of the evidence was that the employee's error was not reasonable; to the contrary, to determine the configuration and size of a drain field, it is necessary to probe the ground at more than just one distance close to the distribution box. When Respondent himself went to the site to investigate the allegations against him, he probed both near the distribution box and further away southeast of the distribution box. He testified that he found solid rock ten feet in width near the distribution box; to the southeast, his probing revealed a trench which Respondent measured at between three and a half and four feet in width. Based on those measurements, Respondent assumed two trenches approximately 30 feet long and four feet in width each, for a total of approximately 240 square feet. It is difficult to reconcile Respondent’s testimony as to the width of the southeast trench with the testimony of the Department's inspector. The Department's inspector probed approximately ten feet and 20 feet from the septic tank and found two-foot wide trenches in four different places. The Department's inspector also testified without contradiction in response to Respondent's questions on cross-examination that backhoes used at the time this drain field was installed in 1973 generally had two-foot wide excavation buckets. Based on the greater care taken by the Department's inspector in measuring the drain field, and the kind of backhoe in general use in 1973, it is found that the Department's inspector's measurements were more accurate. Even if Respondent's measurements were accurate, and the Department inspector's were inaccurate, the measurements recorded on the receipt and on Form 4015 still would have been seriously overstated. While not seriously disputing the inaccuracy of the Form 4015 submitted in this case, Respondent stated "anyone can make a mistake" and that the Department should have asked Respondent to re-check the measurements instead of issuing a citation, especially in view of Respondent's disciplinary record in 29 years in the business in Clay County. (Respondent testified that his only "issues in Tallahassee" were one incident--not fully explained--involving a cow on someone's property and another when he had someone take a re- certification examination for him at a time when his mother was ill. The Department did not controvert this testimony. As already mentioned, there was no evidence to support Respondent's initial suggestion that the Department may have taken disciplinary action against him because it erroneously thought he was another licensee.) But the Department's witness testified that issuance of the citation was appropriate and consistent with agency policy because of the magnitude of the discrepancies on the Form 4015. Respondent testified that the employee involved in this case was his stepson, who has worked for Respondent for 14 years, since he was 11 years old, seven to eight years as a full-time employee. Respondent also testified that he recently fired his stepson, but the reasons for firing him were not directly related to his conduct in this case. Respondent also testified that he felt compelled to insist on a hearing although he knew the Form 4015 was inaccurate because he perceived the Department to be acting in this case as if it had "absolute power" over him. He apparently viewed his request for a hearing as a necessary challenge to government's assertion of "absolute power" over him.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final order finding Respondent guilty as charged and imposing a fine in the amount of $500. DONE AND ENTERED this 24th day of May, 2002, in Tallahassee, Leon County, Florida. ______________________________ J. LAWRENCE JOHNSTON 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 24th day of May, 2002. COPIES FURNISHED: Dr. John O. Agwunobi, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 John D. Lacko, Esquire Department of Health 420 Fentress Boulevard Daytona Beach, Florida 32114 Larry C. Garner 13950 Normandy Boulevard Jacksonville, Florida 32221
The Issue Whether Respondent is guilty of creating, keeping, or maintaining a nuisance injurious to health in violation of Section 386.041(1)(b), Florida Statutes, as set forth in the Citation for Violation, dated August 19, 1996.
Findings Of Fact Petitioner, Department of Health, the successor agency to the Department of Health and Rehabilitative Services, is the state agency charged with the responsibility of investigating and correcting sanitary nuisances in this state. The Respondent, Hyacinth D. Wynter, now known as Hyacinth D. Wallace, has owned a private residence and kennels located at 2323 Tuscawilla Road, Winter Springs, Florida, from 1996 to the present. On or about June 19, 1996, the Seminole County Public Health Unit received a complaint of a possible sanitary nuisance existing on the Respondent’s property. On June 21, 1996, an inspection of Respondent’s property revealed that the property contained a large home with a septic tank and drain field in the front yard and another in the back yard. A kennel for small animals and an apartment was also located in the rear of the property. The septic tank and drain field in the rear of the property was located in a low spot which was subject to the accumulation of surface water runoff from the kennel and during periods of above-average rainfall. Observation revealed standing water in the back yard. The water showed discoloration and had a pungent odor. However, no solid waste was visible. Subsequent tests for sewage contamination was inconclusive. This observation indicated the drain field had failed. Respondent was given a Sanitary Nuisance form letter which recommended that the septic tank be pumped, the ground disinfected and the drainfield be repaired within ten days. Respondent contacted two septic tank companies in late June and received estimates on pumping the septic tank and on the repair and improvement of the septic system. Respondent retained one of the companies to pump the septic tank. The septic tank company was unable to complete the job prior to Petitioner’s reinspection on July 2, 1997, because of above normal rainfall and the inability to get its truck into the Respondent’s back yard. Petitioner reinspected Respondent’s property on July 2, 1997 and observed the same conditions as was observed on June 21, 1997. A three day extension was granted to Respondent, in order for the tank to be pumped. On July 3, 1997, Orlando Septic Tank Service, Inc. pumped the septic tank and disinfected the area. It also advised Respondent that the drainfield had failed and would need to be replaced. On July 8, 1997, Respondent inspected the area again and observed the same conditions as on the prior inspections. An Official Notice to Abate a Sanitary Nuisance and a Notice of Intended Action was issued by Respondent on July 11, 1997. It was served on Respondent, by posting and by certified mail, on July 12, 1997. Respondent was directed to abate the nuisance within 7 days of the notice or an administrative fine would be imposed. Respondent began to disinfect the area with lime on a daily basis, until the drainfield was repaired. The low area with the standing water was bordered off with visible construction type ribbon and visitors coming to the premises were advised to stay clear of the area. Respondent authorized Orlando Septic Tank Service to submit a permit application to replace the drainfield in accordance with the specifications approved by the Petitioner. The application was submitted on July 17, 1996. The permit was issued on July 24, 1996. On July 25, 1997, Respondent received a proposal from Orlando Septic Service to install an elevated drainfield on the site for the sum of $4,288.50. Respondent was not able to financially afford to authorize this work without obtaining financing for the project. When financing was obtained, Respondent accepted the proposal and then authorized the work on August 8, 1996. Due to other obligations, Orlando Septic was not able to give a proposed starting date for the project until August 26, 1996. On August 13, 1996, Petitioner inspected the Respondent’s property again and observed the same conditions as on previous inspections. Petitioner was informed of the projected starting date for repair of the drainfield, however, a Citation for Violation was issued on August 16, 1996 calling for corrective actions to abate the condition by 4:00 p.m. August 19, 1996. On August 27, 1996, the septic tank was pumped again. Orlando Septic Service was scheduled to begin work on the repair of the drainfield on August 26, 1996. On that same date, the company called Respondent and informed her that they were delayed on another job and could not begin repair of Respondent’s drainfield until sometime in September. Respondent immediately called another company and gave them the contract. The repair was completed on September 10, 1996. The evidence was insufficient to establish that a sanitary nuisance existed on Respondent’s property on August 16, 1996.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED as follows: The Respondent, Hyacinth D. Wynter, be found not guilty of violations Sections 386.041(b), Florida Statutes. The Notice of Intended Action be revoked. DONE and ENTERED this 30th day of May, 1997, in Tallahassee, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of May, 1997. COPIES FURNISHED: Sonia Nieves Burton, Esquire Department of Health 400 West Robinson Street Orlando, Florida 32801 Michael D. Jones, Esquire Atrium II Building 301 West State Road 434, Suite 317 Winter Springs, Florida 32708 Catherine H. Berry Legal Office Duval County Health Department 515 West 6th Street Jacksonville, Florida 32206-4397 Gregory D. Venz, Agency Clerk Department of Children & Families Building 2 Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Pete Peterson, Esquire 1317 Winewood Boulevard Building 6 Room 102-E Tallahassee, Florida 32399-0700
The Issue The issue in this case is whether Respondent should deny the request for an increase in licensed capacity, from 12 to 65 children, because Petitioner's septic system is inadequate for the increased capacity.
Findings Of Fact Petitioner is a child care facility licensed for 12 children in accordance with relevant provisions in Chapter 402, Florida Statutes.1 Petitioner seeks to increase its licensed capacity from 12 to 65 children. Respondent is the state agency responsible for licensing child care facilities. Respondent stipulates that Petitioner satisfies all relevant licensing requirements except those pertaining to the capacity of the septic system at the facility. The child care facility is on the same property and is part of the O'Neal Memorial Baptist Church. The church has 25 members and shares the same septic system. Respondent is statutorily required to enforce minimum standards for licensing child care facilities, including standards for the health, sanitation, and safety of the children. Respondent did not delegate its statutory authority to a local governmental agency. The local governmental agency did not exercise licensing authority over Petitioner. Respondent properly relied on the Nassau County Health Department (the "Health Department") to determine whether the existing septic system is adequate for 65 children. Since 1990, the Health Department has performed local inspections for Respondent pursuant to Florida Administrative Code Rule 10D-6,2 Chapter 386, and valid inter-agency agreements.3 The Health Department properly determined that the current septic system is adequate for only 12 children. The Health Department correctly applied the formula prescribed in Rule 10D-6, including Rules 10D-6.048 and 10D-6.049. The capacity of a septic system is determined by flow rates prescribed by rule, the size and design of the septic tank, the type and size of the drainfield, and soil conditions. The current system consists of a 1200 gallon tank, a mound drainfield of 287 square feet, and adverse soil conditions.4 Flow rates are not limited to toilet flushes. Flow rates include toilet flushes, kitchen use, hand washing, and any other demand on the septic system. The flow rates prescribed by rule are 3 gallons for each member of the church, 10 gallons for each child, and 15 gallons for each worker in the child care facility. The current facility has three workers for 12 children. The facility serves food to the children. The flow rate prescribe for children must be increased by four gallons whenever food is served. The total flow for the existing capacity of the facility is 363 gallons. Church members produce a total flow of 150 gallons. Children and workers, respectively, produce a total flow of 168 and 45 gallons. The existing septic system is more than adequate for an a total flow of 363 gallons. A 900 gallon tank is the smallest tank allowed by rule for a total flow of 0-300 gallons. A 1050 gallon tank is the smallest tank allowed for a total flow of 301- 400 gallons. The existing 1200 gallon tank is more than adequate for 12 children and 50 church members. The evidence did not establish whether the existing 1200 gallon tank is a single compartment tank. A 1200 gallon single compartment tank, by rule, will accommodate 401 to 500 gallons of total flow. If the existing tank is a single compartment tank, it is more than adequate for 12 children. Petitioner argues that the actual membership of the church is only 25 and not 50. Even if the actual membership is 50, the existing septic system is adequate. The existing septic system is not adequate for 65 children with a total flow of 910 gallons. Assuming the number of workers would increase to 5 and that there are only 25 church members, the total flow for workers and members, respectively, would be 150 gallons. Total flow would be 1060 gallons. A 2200 gallon tank is the smallest tank allowed by rule for a total flow of 1060 gallons. The current 1200 gallon tank does not comply with applicable rules and is inadequate for a total flow of 1060 gallons. Even if the existing tank were designed as a single compartment tank, it would not be adequate for 65 children. A 1200 gallon single compartment tank is adequate for a total flow of only 401 to 500 gallons. Petitioner argues that the church members use the septic system on the weekends when the child care facility is not in operation. Petitioner argues that the flow rates for church members should be excluded from total flow when determining capacity of the existing system. Petitioner's argument is not dispositive even if it were correct. Even if 50 church members were excluded, total flow is 910 gallons. The maximum flow prescribed by rule for a 1200 gallon single compartment tank is 401-500 gallons. The inadequacy of the current septic system is exacerbated by the paucity of the existing drainfield. The smallest tank allowed by rule for the projected total flow of 1060 gallons is a 2200 gallon tank. However, a 2200 gallon tank is allowed only if it is used with a drainfield of 1,746 square feet. Petitioner's drainfield is only 287 square feet. Petitioner's drainfield is a mound. A mound has less capacity than an in-ground drainfield due to differences in loading rates. Moreover, soil conditions surrounding the drainfield further reduce its capacity. Petitioner can obtain the desired licensing capacity if it increases the capacity of the current septic system. Petitioner would need to obtain a repair permit to redesign the drainfield, increase its area, increase the size of the septic tank, or to perform all of the foregoing repairs.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order and thereinDENY Petitioner's application for a license for 65 children. DONE AND ENTERED this 28th day of April, 1997, in Tallahassee, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 28th day of April, 1997.
Findings Of Fact At all times material to this proceeding, Respondent, James A. Tipton ("Tipton"), has been a registered professional engineer in the State of Florida, having been issued license number PE 0018147, which expires on January 31, 1987. Tipton employed the services of Robert Corno as a field man for taking samples to establish soil profiles, site characteristics and existing water tables for septic tank applications prepared and filed by Tipton. Corno had actual authority from Tipton to conduct tests, site examinations and evaluations and to submit his findings to Tipton. Sometime before April 8, 1985, Tipton was retained to perform professional engineering services in connection with the preparation and filing of an application for a septic tank on lot 168, block 3, Charlotte Ranchettes Subdivision in Charlotte County ("lot 168"), owned by Joseph Duseo. Tipton sent Corno to lot 168 on April 13, 1985, to examine and evaluate the site, take soil samples and make other observations that would have to be reported to Tipton in connection with Tipton's work. Corno completed his work and reported to Tipton. Corno did not bring Tipton the actual soil samples. On April 8, 1985, Duseo's general contractor told Corno about a well on lot 168. When Corno visited the site, he observed the well. The well is an artesian well, about 3 feet high and six inches in diameter. The well is an irrigation-type well and is non-potable. The well was within fifty feet of the drain field of the septic system Tipton proposed for lot 168. The well also is approximately 5 to 10 feet from the north property line. Corno knew at the time of his visit to the site that the well was not plugged. However, Corno understood that Duseo was in the process of arranging with the Southwest Florida Water Management District to have the well plugged. Corno did not tell Tipton about the well before Tipton prepared and filed the application for the proposed septic tank. Therefore, Tipton did not know there was a well on lot 168 when he was preparing the application for the septic tank permit. Tipton did not ask Corno any questions calculated to reveal whether there was a well on lot 168. Corno held the belief that non-potable wells, especially those that were to be plugged, did not have to be shown on septic tank permit applications. There was evidence about a survey of lot 168 certified by a land surveyor employed by a firm of professional engineers which did not show any well on lot 168. However, Tipton did not have access to the survey before he prepared the septic tank permit application on lot 168. (The survey bears two dates, April 17 and April 18, and was not signed until April 25, 1985.) On or about April 15, 1985, Tipton signed and certified the septic tank permit application for lot 168. The application was filed at the Charlotte County Public Health Unit (Health Department) on April 16, 1985. The application indicates "none" in the space provided to indicate the "location of wells within 75 feet of property lines." The well on lot 168 is an important consideration which should have been depicted on the application. Septic tank drain fields could pollute a well. Even if Tipton had known that the well was supposed to be plugged, it was not plugged until July 1985. Failure to show the well was a serious omission. Tipton was negligent for relying on Corno without having an understanding whether Corno would report to him the existence of non-potable wells within 50 feet of the drain field of a septic system or within 75 feet of a property line if the well was likely to be plugged. If he had used due care, Tipton would have either made explicit inquiry of Corno sufficient to reveal the existence of the well or ascertained from Corno in advance that he would report to Tipton the existence of any well within 50 feet of the drain field of a proposed septic system or within 75 feet of property lines. Having failed to exercise due care, Tipton did not realize that Corno would not be reporting to him the existence of a non-potable well which was supposed to be plugged in the future. A few days after he filed the application, Tipton learned about the well on lot 168. But at about the same time, Duseo and his contractor began discussing construction alternatives that would change the septic system and require a new septic tank application. Therefore, Tipton did not immediately amend the April 15 application to show the well. In mid-May, Tipton filed a new application for the different septic system. The new application, not in issue in this case, showed the well. The application also contained a soil profile which probably is not accurate. However, Tipton's soil profile simply reflects the information reported to him by Corno. While Tipton's soil profile does not correspond with soil profiles from other test holes dug in the area of the proposed drain field by the Health Department and an expert witness, the information Corno reported to Tipton was well within the realm of possibilities for soil in the area of lot 168. Corno generally seemed to be a qualified and experienced field man who used proper tools to do his job. There was nothing suspicious about Corno's information, and there was no reason for Tipton to suspect that it was false or fraudulent. While it is the better practice for a professional engineer to require his field man to deliver the actual soil sample to support a soil profile report, this is not required of professional engineers if there is no reason to suspect that a field man's soil profile report is false or fraudulent. On the application, Tipton estimated the high water table on lot 168 at 2.2 feet below existing grade. While other expert witnesses estimated a higher high water table, the evidence did not prove that Tipton was negligent in his estimate. Some of the conflicting estimates were Health Department estimates which, the evidence indicates, tend to be high to be on the safe side. Others were estimates on permit applications which may have been influenced by the Health Department's desires and which may not reflect the engineers' actual estimates. Of all the estimates, only Tipton's was supported by testimony how the estimate was derived. (Tipton used what he called Darcy's Law.) Finally, Petitioner's own expert witness testified that Tipton's high water table estimate could not be called negligent.
Recommendation Based upon the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Board of Professional Engineers enter a final order holding Respondent, James A. Tipton, guilty of negligence in the practice of engineering under Count I of the Amended Administrative Complaint (but dismissing Count II of the Amended Administrative Complaint) and imposing an administrative fine in the amount of five hundred dollars ($500.00). RECOMMENDED this 19th day of May, 1986, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of May, 1986. COPIES FURNISHED: Ms. Sarah Logan Executive Director Board of Professional Engineers 130 North Monroe Street Tallahassee, FL 32301 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 Salvatore A. Carpino, Esq. General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 Wings Slocum Benton, Esq. Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 John Charles Heekin, Esq. C-1 Ocean Plaza 21202 Ocean Blvd. Port Charlotte, FL 33952 APPENDIX The following are specific rulings on all the parties' proposed Findings of Fact as required by Section 120.59(2), Florida Statutes (1985). Rulings on Petitioner's Proposed Findings of Fact Petitioner's Proposed Findings of Fact 1 through 3, 9, 10, 13 through 16, 19, 21 and 22 are accepted as substantially factually accurate and are incorporated in the Findings Of Fact in the same or similar format to the extent necessary. Petitioner's Proposed Finding Of Fact 4 would have been included in paragraph 1 above except that the last sentence is unnecessary. Petitioner's Proposed Finding Of Fact 5 would have been included in paragraph 1 above except that the third sentence is unnecessary. Petitioner's Proposed Findings Of Fact 17, 18 and 27 would have been included in paragraph 1 above except that they are unnecessary. Petitioner's Proposed Finding Of Fact 26 would have been included in paragraph 1 above except that whether Alligator Creek is a "significant" drainage feature would depend on the definition of "significant" which was not established by the evidence. In addition, Petitioner's Proposed Finding Of Fact 26 is unnecessary. Petitioner's Proposed Findings Of Fact 6 through 8 are rejected as conclusions of law and because the last sentence of Proposed Finding Of Fact 6 is cumulative. Petitioner's Proposed Finding Of Fact 11 is rejected because the first sentence is contrary to the greater weight of the evidence and Findings Of Fact and the second sentence is, subordinate to Findings Of Fact. Petitioner's Proposed Findings Of Fact 12, 20, 23 and 24 are rejected as subordinate to Findings Of Fact. Petitioner's Proposed Finding Of Fact 25 is rejected because the first sentence is subordinate to Findings Of Fact and the second sentence is contrary to the greater weight of the evidence. Rulings on Respondent's Proposed Findings of Fact. Respondent's Proposed Findings Of Fact 1 through 3, 5 and 12 are accepted as substantially factually accurate and are incorporated in the Findings Of Fact in the same or similar format to the extent necessary. Respondent's Proposed Finding Of Fact 4 would have been included in paragraph 1 above except that the second sentence is unnecessary. Respondent's Proposed Finding Of Fact 8 would have been included in paragraph 1 above except that it is unnecessary. Respondent's Proposed Finding Of Fact 9 would have been included in paragraph 1 above except that it is in part unnecessary. Respondent's Proposed Finding Of Fact 11 would have been included in paragraph 1 above except that it is contrary to the greater weight of the evidence and Findings Of Fact that there is "no way" for an engineer to avoid relying on a field man's error such as Corno's error in omitting to report the existence of the well. Respondent's Proposed Finding Of Fact 14 would have been included in paragraph 1 above except that it is irrelevant. Respondent's Proposed Finding Of Fact 6 is rejected because it is subordinate to Findings Of Fact and is unnecessary. Respondent's Proposed Finding Of Fact 7 is rejected because it is simply a recitation of conflicting evidence, some of which is accepted but some of which is rejected as contrary to the greater weight of the evidence and Findings Of Fact. Specifically, it was found that Corno did not tell Tipton about the well and that Tipton did not have the survey in his possession at the time the application was filed. Respondent's Proposed Finding Of Fact 10 is rejected as contrary to the greater weight of the evidence and Findings Of Fact. Specifically, the evidence supported a finding of negligence on the part of Tipton for failure to utilize due care and to have due regard for acceptable standards of engineering principles whether or not practicing in Charlotte County. In addition, Mr. Murray's expert testimony must be disregarded because it was given upon a hypothetical assumption that an engineer had possession of a sealed survey showing no improvements on the property as the time of the application, a fact not proved by the evidence. Respondent's Proposed Finding Of Fact 13 is rejected as contrary to the greater weight of the evidence and Findings Of Fact. Specifically, personnel in the Health Department, part of the "general public," were misled. (The general public also reasonably could have been led to a fallacious conclusion, but there was no "misconduct" on Tipton's part. See Conclusions of Law.) ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF PROFESSIONAL ENGINEERS DEPARTMENT OF PROFESSIONAL REGULATION, FLORIDA BOARD OF PROFESSIONAL ENGINEERS Petitioner, vs. DOAH CASE NO. 85-2684 DPR CASE NO.0058289 JAMES A. TIPTON, Respondent. /
