The Issue Whether the Petitioner is qualified for licensure as a septic tank system contractor.
Findings Of Fact The Petitioner applied for Septic Tank Contractor Registration on or about June 1, 1993. Mr. Gerald Briggs, Environmental Health Specialist III for the Department, notified the Petitioner that his application was not complete on or about July 7, 1993, and returned the Petitioner's application to the Petitioner. In November 1993, the Petitioner refiled his application with the Department. By letter dated December 9, 1993, the Department notified the Petitioner of its decision to deny his application for septic tank contractor's registration because the Petitioner lacked the required three years of active experience as a worker who has learned the trade as an apprentice under a registered septic tank contractor. William A. Kerce, a registered septic tank contractor in Florida, testified at the hearing. He stated that he had employed the Petitioner prior to the Petitioner's graduation from high school in 1985, and continued to employ him up until he sold the business to Donald Rose. The Petitioner's duties for installation of new septic tanks and for repairs of existing systems were to dig up an area, prepare it to install a septic tank in the ground, prepare the drainfield, and recover the tank and drainfield with soil. In addition, Mr. Kerce used the Petitioner to assist him in pumping septic tanks. Mr. Kerce stated that he did not consider the Petitioner an employee, but considered him an independent contractor. Mr. Kerce would have had to pay social security and provide worker's compensation benefits if he had considered the Petitioner an employee. Mr. Kerce provided all the materials and equipment used on the job. Mr. Kerce used the Petitioner's services five or six days a week for well over three years. Petitioner did not work for Mr. Kerce when Mr. Kerce did not have work to do, about two weeks per year. Mr. Kerce paid the Petitioner by the job, $200-$300 for installing a system, and $15-20 for helping him pump a system. The Petitioner worked for Mr. Kerce, except when he was working for another septic tank contractor doing the same type of work. If the Petitioner was working for another man, Mr. Kerce waited and scheduled his work until the Petitioner was available. While Mr. Kerce was not present on the job constantly, Mr. Kerce did supervise and approve all work done by the Petitioner. He was required by law to do so. Mr. Kerce sold his business to Donald Rose in 1992. To Mr. Kerce's knowledge, Mr. Rose continued to use the Petitioner. Mr. Rose could not get qualified as a contractor with the Department. As a result, Mr. Kerce had to step back in and run the business. The Petitioner assisted Mr. Rose in installing unpermitted systems. When confronted, the Petitioner assisted in the investigation of Mr. Rose, under threat of prosecution. As a result, the court withheld adjudication in the Petitioner's case and placed him on probation which he has not completed. The Petitioner was employed by Rotor Rooter in Jacksonville, Florida, for six months, installing and repairing septic systems. The Petitioner has been employed by AA Septic since April 15, 1994. The Petitioner took steps in June, 1993, to start a septic tank business as C&J, including listing in the Yellow Pages. However, his application was not approved. He did install a system for Eleanor Rake at about that time without a permit; however, he later returned Ms. Rake's money when confronted by the authorities. The Petitioner was on probation when he did the work for Ms. Rake.
Recommendation Based upon the consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That the Department deny the Petitioner certification until he completes his probation for violations of laws directly related to installation of septic systems; and further, that upon the completion of that probation and reapplication, the Department register the Petitioner, who has established that he met the work experience requirements. DONE and ENTERED this 27th day of June, 1994, in Tallahassee, Florida. STEPHEN F. DEAN, 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 27th day of June, 1994. APPENDIX TO RECOMMENDED ORDER CASE NO. 94-0954 The following findings were adopted or rejected for the reason stated: Respondent's Findings Recommended Order Paragraph 1 Paragraph 1 Paragraph 2 Paragraph 2 Paragraph 3 Paragraph 3, 4 Paragraph 4 Subsumed in paragraph 4 and Preliminary Statement. Paragraph 5 Subsumed in paragraphs 5 and 6 which are based upon best evidence. Paragraph 6 Subsumed in paragraphs 8 - 11, which are based on best evidence. Paragraph 7 Subsumed in Preliminary Statement. COPIES FURNISHED: Edward Jackson, Esquire 515 W. Adams Street Jacksonville, FL 32202 Teresa Donnelly, Esquire Department of Health and Rehabilitative Services 1000 N.E. 16th Avenue Building H Gainesville, FL 32601 Robert L. Powell, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Kimberly J. Tucker, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
The Issue Whether or not Respondent failed to reasonably honor a warranty relating to the installation and repair of a septic tank system.
Findings Of Fact Petitioner, the Department of Health and Rehabilitative Services, is the regulatory agency which regulates the installation and prescribed standards for on-site sewage disposal systems. Respondent, Alan Billings d/b/a Billing's Liquid Waste Removal, is a Florida entity registered and authorized by Petitioner to provide septic tank contracting services. On or about February 12, 1992, Respondent performed a septic tank repair at a two bedroom residential home located at 13904 Summers Avenue, in Hudson, Pasco County, Florida. Respondent's repairs consisted of adding 100 square foot of drainfield to the existing system, three yards of rock, cover paper, pipe, and a distributor box. Respondent provided the repairs as he agreed to on or about February 11, 1992. Installation of the additional drainfield by Respondent was proper and based on the size of the home (a two bedroom house), it was adequate for the building's normal requirement. Petitioner's expert, Van Kampen, testified without contradiction that the septic tank system repairs by Respondent were proper and was attached to an existing system which further added to the capacity of the system. The added capacity was far in excess of the particular purpose required for the home if used by a family of four. Based on the size of the home in which Respondent made the repairs, the maximum water usage anticipated would have been 4500 gallons of water per month. Documentary evidence introduced herein indicates that during the months in question, the average water usage at the subject home exceeded 11,000 gallons per month. The unexpected usage caused a "hydraulic overload" of the system, and was not within Respondent's expectations when he repaired it. Van Kampen related that the family that resided in the home consisted of seven (7) members. Respondent was unaware of that fact nor was he apprised of this fact until subsequent to the repairs when the system failed due to a hydraulic overload. Respondent did not offer a warranty to cover the "hydraulic overload" which is at issue herein.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Petitioner enter a final order dismissing the administrative complaint filed herein. DONE AND ENTERED this 4th day of February, 1994, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 4th day of February, 1994. COPIES FURNISHED: Robert Powell, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Kim Tucker, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Ron Smith, Esquire 12360 66th Street North Largo, Florida 34643 Shirley K. Hart, Esquire HRS District V Legal Office 11351 Ulmerton Road, Suite 407 Largo, Florida 34648-1630
The Issue Whether Petitioner may be granted a variance from Rule 64E-6.001(4), Florida Administrative Code, pursuant to Section 381.0065(4)(h)1., Florida Statutes.
Findings Of Fact Tony and Alma Moreno are owners of the building and premises located at 8250 Scenic Highway, Pensacola. They own the real property at that location all the way to road frontage right-of-way at Scenic Highway. The building had been in continuous existence in the same location for twenty or more years before Petitioner became connected with it. During that period of time, except for short hiatuses, either the Morenos or their lessees operated it as a licensed bar, most often under the name, "The Lighthouse Tavern." Sewage lines exist in the right-of-way at Scenic Highway, within 400 feet of the premises. The tavern is equipped with a septic tank. There has never been any history of septic problems on the tavern premises. The Lighthouse Tavern has always been a neighborhood bar of limited success. Martin MacAndrews has been putting amusement games in the tavern since 1978. He testified that during those twenty-two years, the average number of patrons has been eight to 14. Jim McDaniel has sold paper products to successive lessees since the 1970's. He has seen an average of 10 patrons during the day and up to 20 patrons at night. Charles Barcia, a more recent patron, has observed a maximum of nine patrons in the tavern. Denise Powell (nee´ Williams) leased the premises from August 7, 1998, until approximately September 28, 1998, during which time she operated the Lighthouse Tavern. She had approximately ten customers per day, used plastic barware, and had no septic problems. During the month or so she operated the tavern, she did not have the septic tank pumped. Ms. Powell's lease with the Morenos was not due to expire until July 31, 1999. However, on or about September 28, 1998, Hurricane Georges damaged the Lighthouse Tavern and wreaked destruction on Pensacola and much of the Florida Panhandle. The area was declared both a state and federal "disaster area." Ms. Powell immediately notified the Morenos, and they cancelled the lease by mutual agreement, because the premises were uninhabitable due to substantial water damage. Ms. Powell testified that but for Hurricane Georges, she would have continuously operated the Lighthouse Tavern under the terms of her lease from the Morenos. As it was, she abandoned the lease and the property. The Morenos made no repairs to the building. No commercial activity, as a tavern or otherwise, occurred on the subject property from September 28, 1998, through May 1, 2000, approximately a year-and-a-half. City water service to the property was terminated from October 12, 1998 until April 7, 2000. On April 5, 2000, Petitioner, a widowed mother, applied to Escambia County for an occupational license to run a tavern at that location. On or about April 7, 2000, Petitioner negotiated a new lease with the Morenos. It involved rate and terms favorable to Petitioner in exchange for her substantial investment (approximately $35,000, as of the date of hearing) in renovating the Lighthouse Tavern. Among other renovations to the property, Petitioner has replaced the tavern's back wall and outside deck, added two pool tables, coolers, two complete bathrooms, a three compartment sink, and a handwash sink. Very few of the fixtures, etc. are removable, let alone subject to resale. A five-year lease, Exhibit P-2, was executed on May 1, 2000. It limits Petitioner's use of the property to use as a tavern, so she cannot get her renovation money back by converting to another business. Paragraph 21 of the lease, purporting to be a lease/purchase option, has not been filled- out, so Petitioner's option to purchase the property is potentially unenforceable. Current Florida Administrative Code rules require septic tanks to have a minimum capacity of 1050 gallons, a filter, and a baffle. A baffle is a device to keep water and waste from going into the drainfields. On May 15, 2000, Ensley Septic Tank Service, operated by Agnes and Joe Nelson, pumped, inspected, and certified the existing septic tank as structurally sound. However, the existing septic tank is twenty years old and provides only 750 gallons. It is not baffled and does not have a filter. Its two drainfields are 75 feet and 69 feet, respectively, from the waterfront, whereas by Escambia County Ordinance, the current setback requirement is 100 feet. On May 25, 2000, the Department denied Petitioner a permit to utilize the existing septic tank, based on the contents of her application, which stated that the tavern occupancy would be 75 seats. Departmental analysis showed that 75 patrons would result in 1,000 gallons per day usage. The existing septic tank does not have that capacity. Before the execution of the lease, Petitioner made no inquiries of Respondent Agency. Likewise, no one told her before the execution of the lease that she would not be able to utilize the existing septic tank or use the premises for a tavern. Rather, Petitioner relied on her own interpretation of an Escambia County Ordinance providing additional time to meet County regulations for reopening a business (or nonconforming use) after closing the business due to Acts of God, and on the fact that Denise Powell's lease, by its terms, did not expire until July 31, 1999. When she was denied a permit to use the existing system, Petitioner applied for a variance for 75 patrons. Petitioner also filed a second application for variance and requested 24 patron occupancy. Petitioner went before the Department's Variance Review Board, which recommended granting the variance with the provisos offered by Petitioner. However, on July 18, 2000, the Department denied the requested variance, stating that the information provided by Petitioner failed to show that no reasonable alternative exists for the treatment of the sewage or that the discharge from the septic tank will not significantly degrade the groundwater or surface waters. The Department offered to permit the tavern to operate either with a connection to the existing sewer system or with a septic tank that meets the current requirements of the Florida Administrative Code. At hearing, Petitioner established that the tavern's water bills from 1996 to 1998 show a use of only 430 to 588 gallons of water per month. This amount reflects the low number of 10-20 patrons per day during that period of time (See Finding of Fact 4), but it also is only approximately three- quarters of the capacity of the existing septic tank. At hearing, Petitioner offered the following cumulative provisos to reduce water flow to the system: limit tavern hours to 11:00 a.m. to 2:00 a.m. (15 hours) daily; use plastic or paper cups; not serve food or mixed drinks; restrict beverages to beer and wine; and limit occupancy to 24 patrons. She offered to pump the existing septic tank more frequently and provide "port-a-potties," as needed. Petitioner anticipates using 24 seats inside, plus picnic tables on the deck. She offered to eliminate the outside seating. The deck constitutes one-quarter of the 900 square feet of the establishment. She will upgrade the septic system as her income from operating the tavern recoups her investment. She will close-up and terminate her lease if she cannot bring the premises "up to Code," that is, to meet the current Florida Administrative Code requirements for septic tanks and/or sewer connections, in one year's time. She has no objection to such provisos being attached to a variance, if one is granted. At hearing, certified septic tank engineers, Agnes Nelson and Joe Nelson, testified that the existing 750-gallon septic tank should handle 24 patrons and the water use would be further limited by using plastic or paper drink containers. In Mr. Nelson's opinion, since he found no salt water from the Bay or water table inversion in the tank when he inspected it, and since the drainfield slopes away from the building, the only way salt water would enter the existing septic tank is if it got above ground. Agnes Nelson conceded that high tide could fill the tank up. If, for any reason, the drainfields were not working, then the current septic tank would not work. However, because the building is between the beach and the drainfields; because, in her opinion, 24 patrons probably could not fit inside the building; and because there was so little solid waste in the tank when it was pumped, Ms. Nelson doubted that the tide and the drainfields would create a problem, even in ordinary rainy weather. Unfortunately, in rendering her opinion, Ms. Nelson did not consider the seating capacity of the tavern's deck or the effect on the surface waters of Escambia Bay of operating the tavern with the existing system. As of the date of hearing, the Morenos were in agreement with all of Petitioner's efforts to obtain a variance. They also will allow her to bring the premises "up to Code," if she can. The Department's current opposition to granting a variance with the provisos offered by Petitioner is based in part on immaterial disputes between the parties over who signed the original application for variance and who filled in the number of seats as 75. The Department also is mistrustful of Petitioner because her second variance application stated the building constituted 1,200 square feet. Because the Department and Petitioner now agree that the premises comprise 900 square feet, the error in the second application is also irrelevant. The Department's current opposition to granting the variance with the foregoing provisos volunteered by Petitioner is at least in part due to the on-site audit, wherein Departmental staff determined that the premises, including the outside deck, actually could accommodate 60-75 living, but not necessarily seated, patrons. The Department sees this as an impediment to occupancy being limited to 24 patrons, in practice. Human nature is such that if a bar has a large, outside deck in a tropical climate, it will probably have more patrons then those sitting in the 24 "seats" provided. While this concern might be speculative in other realms, in dealing with possible contaminants to groundwater or to the surface waters of Escambia Bay, it is a legitimate, if uncodified, concern. Joseph Scott Hale, Environmental Health Supervisor I, made the following suggestions which do not require a variance. Petitioner could connect her premises to the existing sewer at the 75-person occupancy limit; or could install a septic tank or tanks and drainfield(s) in accordance with Departmental rules for a 47-person occupancy limit; or could install a much more modest tank and drainfield system for a 24-person occupancy limit. Petitioner has received written bids to accomplish such alternatives in the following ranges. (1) Installation of the necessary plumbing and pumps to connect to an accessible sewer line is available at a cost of $27,628 to $28,450, although these costs could be inflated to more than $40,000 by adding a grinder station and by charges from CSX railroad for access across its right-of-way to the existing sewer lines; and (2) Installation of one or more septic tanks and drainfield systems in accordance with current rules and in a size for an occupancy capacity of 47 is available for a price ranging from $28,032 to $29,465. Neither of these options is currently feasible for Petitioner, because she has spent her savings on the completed renovations and has only $1,000 +/-, on deposit at this time. She has no current income. Without a contract to purchase the tavern property, she does not believe she can obtain financing. She is not eligible for an upgrade grant from the State because the tavern is commercial property. Petitioner feels that it would be necessary for her to run the tavern at a profit for a year at a minimum capacity of 24 seats in order to be able to pay for either of the foregoing possibilities. She cannot get an alcoholic beverage license without the variance. Petitioner is satisfied that if she cannot make a go of the tavern within one year, she can rescind the lease. The Morenos were silent on this issue. It is not necessary to interpret the lease on this score in order to resolve this case. Respondent construes part of Mr. and Mrs. Nelson's testimony as providing a third, cost-effective, and reasonable alternative for Petitioner in the form of a septic tank and drainfield which could be installed according to current Code with an occupancy capacity of 24 patrons at an approximate cost of $3,600 to $4,000. This oral estimate was testified to by Mrs. Nelson, who, although a certified septic tank inspector, does not actually do installing of septic tanks. She conceded that dollar figure was purely a guess and based on one elevated tank of 1050 gallons with a baffle. Mr. Nelson, who does the actual installing, estimated that more than one tank, a mount system, and a pump or two might be necessary, at additional cost. His thinking is in line with the components of the other written estimates Petitioner has received. Accordingly, it is found that the estimate that Ensley Septic Tank Service can bring the existing system up to Code at a cost of $3,600 to $4,000 to Petitioner is speculative and not a reasonable alternative. As is common, expert opinions were mixed on the danger, if any, to the groundwater and surface waters which would be occasioned by Petitioner operating the tavern under her foregoing proposed provisos without upgrading the current septic system. Petitioner's expert in civil engineering and degradation of groundwater did soil borings on the premises and hit no groundwater at 15 inches, even after two weeks of significant rain. However, his experience with soil analysis from "mottling" was limited, and accordingly, his opinion that water in the ground will never or rarely rise above 15 inches, so as to endanger groundwater or surface waters was not persuasive. Instead, I accept the greater weight of the evidence as a whole in order to make the following findings of fact. The top of the drainfields are located 12 to 22 inches below grade and occupy a one foot area, 24-34 inches below grade. The seasonal high water table is 15 inches below grade. The drainfields operate within the groundwater table. Current rules require drainfields to have a separation from the bottom of the drainfield to the top of the seasonal high water table so as to provide space for aerobic biological action. When a drainfield operates within the water table, no opportunity exists for aerobic biological action. Anaerobic biological action is not effective in killing viruses and other pathogens. Viruses can travel in soil from a drainfield to surface water at a rate of 100 feet in eight hours. Mr. Hale, (see Finding of Fact 30), who was accepted as an expert in groundwater table determination, has an impressive list of credentials, and among other qualifications, is State-certified in OSTDSs. He has personally witnessed water rising to the level of the leechfield in this location. Mr. Hale also took borings, but not in the leechfield. Even though standing water was not found until 32 inches below grade, the soil was saturated at 15 inches, which is the seasonal high water table and mean high water mark of Escambia Bay at Petitioner's waterfront. The usual groundwater high water table in this location is 24 inches below natural grade, and the temporary water table rises and falls, as affected by Escambia Bay tides and by rainfall. Another concern is that the leechfields average only 15 inches below grade, and soil "capillary action" or water "wicking" through the soil can result in contamination of the groundwater if they become saturated. The close proximity of the property to Escambia Bay presents the potential for pollution of surface waters. Mr. Hale reported that the tavern location is not subject to frequent flooding. However, it can, and probably will, flood, as before, during a hurricane. Mr. Hale testified further that but for the length of the cessation of business as a result of the hurricane (more than one year), the tavern could have continued to operate with eight seats and no danger to the groundwater. In his opinion, the existing system, unaltered, can handle waste disposal for only eight patrons. A 47-seat occupancy is the maximum allowable for a 1,000 gallon flow. Even though 24 seats would not be expected to exceed 1,000 gallons a day, 24 seats would not be accommodated by the existing system's 750 gallon tank, drainfields, leechfields, and insufficient set back footage. Mr. Hale reluctantly conceded that 22 seats might be "feasible," with all proposed provisos in place, plus the substitution of low flow toilets, but that solution would not be his best recommendation nor acceptable to the Department. According to Dr. Malcomb Shields, who was accepted as an expert microbiologist in the field of migration of pollutants from drainfields to surface waters, Escambia Bay is already above its threshold in dangerous nutrients. Dr. Shields further opined, with impressive scientific detail, that narrowing the zone in the drainfield, as on the Lighthouse Tavern property, makes the drainfields susceptible to more pathogens. In his opinion, the offered provisos would have absolutely no effect on the existing septic tank and system efficiency except to limit water and waste into the septic tank itself. Dr. Shields conceded that a variance granted upon the terms requested would not, by itself, cause significant degradation of water quality. However, he felt that perpetual use of the variance, even with the foregoing provisos, would, combined with all other factors present, contribute to surface water degradation, which is the test under the rule. Dr. Shields did not feel that a variance absolutely limited to one year's duration would have the same effect.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Health enter a final order which: Permits Petitioner to operate her tavern either with a connection to the existing sewer system or with installation of a septic tank and drainfield system in accordance with the current Florida Administrative Code rules for an occupancy capacity of 24 patrons; and alternatively Grants Petitioner a 12-month variance to utilize the existing tank and drainfield system upon the following terms: Petitioner shall obtain and maintain an annual OSTDS operating permit allowing inspection at will by the Department; Petitioner shall maintain an annual contract with a licensed septic tank contractor to inspect and service the existing OSTDS at least once per month, or more frequently as necessary; Upon notification by the septic tank contractor of any problem with the OSTDS, Petitioner shall provide port-a- potties sufficient for 22 patrons; During the 12 months the variance is in place, Petitioner shall provide a port-a-potty on any occasion of rain over eight hours' duration. Petitioner shall not open for business until low- flow toilets are substituted; Petitioner shall operate the premises as a tavern for no more than 12 months, during which 12 months Petitioner shall take all necessary steps to bring the system up to Code or to connect to the sewer line; During the 12 months the variance is in place, Petitioner shall limit hours of operation to 15 hours daily; eliminate all deck seating; provide no more than 22 seats inside; use only paper or plastic ware; serve no food or mixed drinks; and actively limit occupancy to 22 patrons at any one time; and At the end of the 12 months, the system shall be in compliance or the tavern shall be closed and remain closed until compliance is achieved. DONE AND ENTERED this 12th day of February, 2001, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 12th day of February, 2001. COPIES FURNISHED: Steven E. Melei, Esquire 3603 Mobile Highway Pensacola, Florida 32505 Rodney Johnson, Esquire Department of Health 1295 West Fairfield Drive Pensacola, Florida 32501 Theodore M. Henderson, Esquire Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Dr. Robert G. Brooks, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701
The Issue The issue addressed in this proceeding is whether Respondent should be fined for violating provisions of Chapters 381, 386 and 489, Florida Statutes, governing septic tank installation and licensure.
Findings Of Fact On August 3, 1989, and again in March, 1992, Respondent was hired by Janet Thompson to perform septic tank work on her septic tank system located at her home at 3168 Pins Lane, Gulf Breeze, Santa Rosa County, Florida. Her system was backing up into her house. Ms. Thompson contacted Mr. Burkett through his advertisement for Working Man Septic Tank in the Southern Bell Yellow Pages. Mr. Burkett recommended that a new drainline or finger be added to her septic system. Mr. Burkett did put in a new finger. However, the new finger was incorrectly installed, in that the drainline exceeded the maximum allowable width and did not have the minimum depth of aggregate in violation of the Rules of the Department regarding the installation of drainlines for septic tank systems. Mr. Burkett's work seemed to solve Ms. Thompson's backup problem. However, a few months later her septic tank system began backing up again. Ms. Thompson again called Mr. Burkett to come and fix the problem. Mr. Burkett recommended another drainline in an "L" shaped configuration. Mr. Burkett installed the new finger. However, he again installed the line incorrectly and violated the Department's Rules, in that the drainline exceeded the maximum allowable width and did not have the minimum depth of aggregate. Ms. Thompson's septic tank problem was corrected for a few months and then began backing up once more. Ms. Thompson called another contractor who finally solved the problem by properly installing an extensive drainline system by building the low area of the drainfield and utilizing three truckloads of aggregate. In May, 1990, William Davenport hired Respondent to do some preventive installation of a new drainfield to the septic tank system located at his home at 6220 East Bay Boulevard, Gulf Breeze, Santa Rosa County, Florida. Mr. Burkett only performed part of the work for which he was hired. The work Respondent did perform was incorrect and violated the Department's Rules regarding the installation of drainfields and lines for septic tank systems. Specifically, the work performed by Respondent was incorrect in that the drainfield exceeded the maximum allowable width, no barrier of building paper or other suitable material was installed to protect the infiltration bed and the aggregate did not meet the minimum depth required. Rules 10D-6.056(4)(a), (d) and (e), Florida Administrative Code. Finally, throughout the time period of the repair work on the Thompson and Davenport properties Respondent was not registered or licensed by the Department to perform such services and was advertising to provide such services under the name "Working Man Septic Tank Co." in the Southern Bell Yellow Pages. Both the lack of a registration and the advertisement of an unlicensed business violate the Rules of the Department. Rule 10D-6.075(4)(a), Florida Administrative Code.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is, accordingly, RECOMMENDED, that the Department impose on Respondent a fine of $2,000.00. DONE and ORDERED this 9th day of November, 1994, in Tallahassee, Florida. COPIES FURNISHED: Frank C. Bozeman, III Asst. District Legal Counsel D H R S 160 Governmental Center Pensacola, FL 32501 Kenneth P. Walsh Attorney at Law P. O. Box 1208 Shalimar, FL 32505 Robert L. Powell, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, FL 32399-0700 Kim Tucker General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, FL 32399-0700 DIANNE CLEAVINGER 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 9th day of November, 1994.
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. /
The Issue The issue to be resolved in this proceeding concerns whether the Respondent installed certain septic tank and drainfield systems without having the appropriate permits from the Department of Health and Rehabilitative Services (HRS or Department) and without having the appropriate inspections performed before completing and being paid for the work in question. It is alleged, as well, that the Respondent engaged in advertising and performing septic tank contracting services under the name "Stone's Septic Services" without applying for and receiving an appropriate certificate of authorization from the Department to provide such services under that name.
Findings Of Fact On December 10, 1991, the Respondent installed a drainfield and septic system for Pam Matheny. He was paid $490.00 for that job, which was to include the cost of obtaining the required permit before the installation of the system. The Respondent obtained no such permit, but proceeded to install the system, which is currently operating. The Respondent performed drain line repair of a septic system for Mrs. Noel at 10 Royal Pines Drive, Pace, Florida. That job was also done without the required permit. A similar job was performed at 4844 Orleans Street, Pace, Florida, for a Mrs. Adams. No inspection of the work by the Department was obtained by the Respondent and no permit was issued to or obtained by the Respondent for the work, as established by the testimony of witness, Darla Ard, of the Santa Rosa County Health Unit of the Department. Mr. William Sirmans testified. He is Ms. Ard's supervisor in the Escambia County Health Unit of the Department. All permit applications for the installation and/or repair of septic tank and drainfield sewage disposal systems are processed and issued, if appropriate, by his office. He corroborated the testimony of Ms. Ard and witness, Pam Matheny, to the effect that no permits were ever issued for the three jobs in question which were performed by the Respondent. He discussed these matters with the Respondent during the investigation process underlying this complaint and the Respondent conceded that he had performed the three jobs in question without the required permits. The required inspections, as delineated above, were not obtained either.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that a Final Order be entered by the Department of Health and Rehabilitative services revoking the Respondent's septic tank contracting registration and authorization, as provided for in the above-cited legal authority. DONE AND ENTERED this 18th day of December, 1992, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 18th day of December, 1992. COPIES FURNISHED: Robert L. Powell, Agency Clerk Department of HRS 1323 Winewood Boulevard Tallahassee, FL 32399-0700 John Slye, Esq. General Counsel Department of HRS 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Rodney M. Johnson, Esq. Department of HRS District One P.O. Box 8420 Pensacola, Florida 32505-0420 Marcus E. Stone 11601 Chemstrand Road Pensacola, FL 32514
The Issue Whether Petitioner should take disciplinary action against Respondents for the reasons alleged in the Administrative Complaint?
Findings Of Fact On behalf of his brother, Mr. Howell Parish, who lives in Orange Park, Florida, Mr. James A. Parish contracted with Respondents to restore efficient of operation the septic tank system at 5469 Soundside Drive in Santa Rosa County, premises owned by Howell Parish. Respondents agreed to make the restoration by providing a fiberglass approved tank with a fiberglass lid, install a new drain field and haul in dirt to build up a low area of the existing drain field. Respondents undertook repair activities but without a permit. Respondents did not obtain an inspection of their work after they had finished. On June 10, 1992, after the repairs were supposed to have been done, James Parish paid Respondent Harmon for the job with a personal check in the amount of $1,498.48. On the same date, Respondent Harmon signed a receipt for payment. The receipt shows as work performed, "Demucking and Installing one 1050 Gal Tank & 200 Sq.' Drain Field." Ms. Jo Ann Parish, spouse of Howell Parish, reimbursed James Parish for the work done on Soundside Drive. Shortly thereafter, the septic tank "caved in and the waste was boiling to the surface." (Tr. 16.) Howell Parish met with Larry W. Thomas, Environmental Health Supervisor for the Santa Rosa County Health Department, to discuss the situation. Following the meeting, Mr. Parish called Respondent Harmon and told that him that the problem needed to be straightened out and that he should contact Mr. Thomas promptly because his license could be in danger. Respondent promised to correct the problem and to reimburse Mr. Parish for the job but he did neither. He did not contact Mr. Thomas either. Mr. Thomas, on behalf of the County, investigated the site of the septic tank repair. He found that Respondents had installed a broken fiber glass tank when fiberglass tanks are not allowed at all in Santa Rosa County because of their structural inadequacy. In addition to the tank being cracked, it had a cracked lid. Another hole in the tank that should have been covered with a lid was covered with a piece of plywood. The plywood was kept in place by dirt fill. The drain field did not meet the minimum standards required by the County. Most significantly, it was installed beneath the water table. There was a laundry discharge pipe which was not connected to the tank as required. The site of the septic tank repair by Respondents was a sanitary nuisance. The broken condition of the tank allowed raw sewage to overflow. The drain field was emptying raw sewage directly into ground water. The laundry discharge was discharging into the ground rather than being hooked up to the septic tank. Mr. Parish was forced to hire another septic tank service to restore the system to good working order. The work, performed by Bettis Septic Tank Service, was billed to Mr. Parish at a cost of $6400.00.
Recommendation It is, accordingly, RECOMMENDED, that Respondents' certificates of registration be revoked and that the Department impose on Respondents a fine of $2000.00. DONE and ENTERED this 28th day of October, 1994 in Tallahassee, Florida. COPIES FURNISHED: Frank C. Bozeman, III Asst. District Legal Counsel D H R S 160 Governmental Center Pensacola, FL 32501 Kenneth P. Walsh Attorney at Law P. O. Box 1208 Shalimar, FL 32505-0420 Robert L. Powell, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, FL 32399-0700 Kim Tucker General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, FL 32399-0700 DAVID M. MALONEY 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 28th day of October, 1994.
The Issue The issue in this case is whether Respondent created a sanitary nuisance by installing drainfield pipes too far apart in a septic tank drainfield and failing to seal the lid to a septic tank, failing to call for a required inspection before covering an onsite sewage disposal system, and engaging in gross misconduct by assaulting two of Petitioner's employees.
Findings Of Fact Respondent is registered with Petitioner as a septic tank contractor and authorized to provide septic tank contracting services. On May 4, 1994, pursuant to a previously issued permit, Respondent completed the installation of a new drainfield at 204 West DelMonte Avenue in Clewiston. He asked Petitioner's office for an inspection for approval to cover the system. Jim Rashley, an environmental specialist employed by Petitioner, inspected the system on the morning of May 4. No one was at the site during the inspection. Mr. Rashley discovered a violation concerning the type of header pipe. He also discovered that the drain lines were more than 36 inches apart and 18 inches from the side of the field. Mr. Rashley determined that the drainfield pipes were three feet and four inches apart. Examining the septic tank itself, which Respondent had pumped, Mr. Rashley found that the lid had not been properly resealed, which would allow rain or dirt to enter the tank or effluent to escape from the tank if the drainfield failed. Returning to his office, Mr. Rashley informed his supervisor, Steve Havig, that he was failing the system and called Respondent and told him the same thing. Respondent asked Mr. Rashley to come out to the site so they could both examine the system, and Mr. Rashley agreed. When they met at the site, Respondent asked Mr. Rashley to point out the three violations, which he did. Respondent's response was to tell him that he was sick and tired of college kids telling him how to install septic tank systems. Mr. Rashley said that he could not ignore violations of the rules. After Respondent became more upset, he moved to within inches of Mr. Rashley's face and asked him if he would approve the system. Mr. Rashley answered he would if Respondent fixed the violations. While Respondent yelled at Mr. Rashley only a few inches from his face, Mr. Rashley, feeling very uncomfortable, retreated to his vehicle and started to drive back to his office. Respondent got into his vehicle and tailgated Mr. Rashley the entire way. When they arrived at Mr. Rashley's office, Respondent told the secretary to call Mr. Rashley's boss. Claiming that Mr. Rashley had unfairly disapproved the system, Respondent asked Mr. Havig to visit the site himself. Mr. Havig agreed to do so. Mr. Havig visited the site on the morning of May 5 outside the presence of Respondent. He confirmed the violations. At their closest point, the drain lines were three feet four inches apart, and the septic tank lid was not sealed. Mr. Havig left a message for Respondent with this information. At Respondent's request, Mr. Havig agreed to meet Respondent at the site at 1:30 pm. Returning from lunch with two other men, Mr. Havig stopped off at the site to meet Respondent. He found that the header pipe violation had been corrected, but the other violations had not been. Mr. Havig and Respondent talked about the separation of the drain lines. Respondent said he could not move the pipe without disturbing the elevation, which is crucial to the functioning of the drainfield. Mr. Havig said he could either move the pipe or add another line so as to reduce the maximum separation between lateral lines to below 36 inches. Respondent complained that he could not maintain the position of the flexible pipe when pouring gravel over the pipes. Respondent became angry. He grabbed a section of the plastic pipe and said that he would show Mr. Havig. The gravel fell in behind the place where the pipe had rested. Respondent declared that he would get the homeowner's approval to cover up the system rather than modify it. Mr. Havig went to his car to get a camera, and Respondent began using a lot of vulgarity. As Mr. Havig took pictures of the installation, Respondent became angrier. His face turned red and he accused Mr. Rashley and Mr. Havig of harassing him. He warned Mr. Havig that, if they did not stop, they would have to suffer the repercussions. Moving very close to Mr. Havig and pounding his fist into his hand, Respondent asked Mr. Havig if he knew what Respondent meant. Mr. Havig said yes, that it was time for him to go. Respondent covered the system up shortly after Mr. Havig departed. Respondent did not allow a reinspection of the system to determine if he corrected either the separation of the drain lines, which he admits he did not correct, or if he sealed the septic tank lid, which he claims he did correct. Respondent has worked as a septic tank contractor in the area for 18 years. The likelihood of system failure is high if a septic tank lid is not properly sealed before the system is covered and placed into operation. Respondent appears to have been a responsible contractor. Based on these facts, there is enough doubt on the lid-sealing issue to preclude finding that Petitioner proved by clear and convincing evidence that Respondent did not seal the lid before covering the system. The pipes constituting the drain lines are manufactured to allow 18 inches of effluent to escape from either side of the pipe. By installing lines with more than 36 inches between each other or 18 inches between a line and a side, Respondent reduced the efficiency of the drainfield because parts of the drainfield, which lies beneath the lines, will not receive as much effluent as other parts of the drainfield. For awhile, due to safety concerns, Petitioner had to send two inspectors to inspect Respondent's work sites. Respondent never apologized to either Mr. Rashley or Mr. Havig until, acknowledging his unprofessional behavior, he apologized during the hearing. Respondent also noted that Petitioner has dealt with him professionally since the incidents in question. Petitioner and Respondent have had troubled dealings in the past. On one occasion, Petitioner insisted on the placement of a drainfield adjacent to an existing, failed drainfield, even though the existing and proposed drainfields drained directly into a canal. Respondent wanted to locate the drainfield well away from the canal. Unable to secure approval locally, Respondent took an appeal to Petitioner's representatives in Tallahassee, who approved Respondent's original, more sensible plan to relocate the drainfield. On the other hand, Respondent violated the minimum- separation rule for drain lines in 1993. Petitioner fined Respondent for the violation.
Recommendation It is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of violating Rule 10D-6.056(4)(b) and thus 10D- 6.075(2)(a) by installing a drainfield with excessive separation between drain lines, Rule 10D-6.075(4)(d) by failing to call for a required inspection, and Rule 10D-6.075(4)(l)1 by engaging in gross misconduct in his behavior toward two of Petitioner's employees. It is further recommended that the final order impose an administrative fine against Respondent in the amount of $500. ENTERED on July 14, 1995, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Floirda 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on July 14, 1995. APPENDIX Rulings on Petitioner's Proposed Findings All adopted or adopted in substance except that Respondent failed to seal the septic tank lid, which is rejected as unsupported by the appropriate weight of the evidence. COPIES FURNISHED: Susan Mastin Scott Senior Health Attorney Department of Health and Rehabilitative Services P.O. Box 60085 Ft. Myers, FL 33906 Attorney Melanie A. McGahee 333 S. Commercio, Suite B Clewiston, FL 33440 Robert L. Powell Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Martha Valiant, M. D. Director, Hendry County Public Health Unit P.O. Box 70 LaBelle, FL 33935
