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 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
The Issue The issue in this case is whether the Department of Health properly denied Petitioner’s application for a master septic tank contractors (MSTC) registration.
Findings Of Fact The Department of Health is the agency responsible for the registration of septic tank contractors, the authorization of septic tank companies, and the enforcement of the statutes of rules pertaining to the registration and authorization of septic tank contractors and companies pursuant to Chapters 381 and 489, Part 3, Florida Statutes and Chapter 10D-6, Florida Administrative Code. The registration as a master septic tank contractor was recently enacted by the Legislature. Master septic tank contractor is held to a higher standard of scrutiny by the Department because a MSTC can perform certain functions in the field without Department of Health supervision. Further, a MSTC can advertise his special certification to the public. Gregory Thompson, Petitioner, applied to the Department of Health to be registered as a MSTC. At the time of his application, Petitioner was registered with the Florida Department of State as the president of Rayco Properties, Inc. At the time the cases against the corporation referenced above were brought, the Petitioner was the president of Rayco; however, the requested contractor who was the company’s qualifier was Donald P. Roberts, who was the sole qualifier for the company. See paragraphs 2 and 3 of the Recommended Order in Case Numbers 95-5973 and 96-0573 Final Order issued 2/28/97. At the time of the Petitioner’s application for MSTC, Rayco had been found guilty of several septic tank contracting violations and an enforcement action was taken by the Department against Rayco and Donald R. Roberts. See DOAH Case Numbers 95-5973 and 96-0573. Pursuant to the Final Order, penalties were assessed against Rayco including a fine of four thousand four hundred fifty dollars ($4,450.00) and suspension of the corporation's Certificate of Authorization for one hundred-twenty (120) days. At the time of the application by the Petitioner, neither of these penalties had been resolved. The previous action was against Rayco and its qualifier, Donald R. Robert. As the Administrative Law Judge concluded in paragraph 82 of her order, “Revocation of the company’s authorization would effect the livelihood of numerous company principals and employees not directly involved in any of the proven violations.” The Department denied the Petitioner’s application for MSTC for three (3) reasons. The Petitioner’s corporation had been adjudicated guilty of minor or moderate infractions pertaining to on site sewage treatment and disposal systems (See paragraph 82 of the Recommended Order in Case Numbers 95-5973 and 96-0573), a copy of which is attached as Appendix 1. There was an outstanding fined assessed against Rayco Properties and the one hundred-twenty (120) day suspension of Rayco had not been resolved as required by the Florida Administrative Code. At the time of the formal hearing, the fine had been paid and the corporation had served and completed the one hundred-twenty (120) days' suspension.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Department grant the request for certification by the Petitioner for master septic tank contractor. DONE AND ENTERED this 3rd day of November, 1997, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 3rd day of November, 1997. COPIES FURNISHED: Gregory B. Thompson Post Office Box 251307 Holly Hill, Florida 32135 Charlene Petersen, Esquire Volusia County Health Department 420 Fentress Boulevard Daytona Beach, Florida 32114 Angela T. Hall, Agency Clerk Department of Health Building 6 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Dr. James Howell, Secretary Department of Health Building 6, Room 306 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue is whether Respondent should have his license suspended and an administrative fine imposed for allegedly committing fraud and deceit in the practice of contracting, providing septic tank contracting services without an operating permit, and submitting a fabricated building permit number to obtain a final inspection approval of a job.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Generally When the events herein occurred, Respondent, Willie A. Harmon, operated a septic tank business in Santa Rosa County, Florida, under the name of Willie Harmon's Septic Tank Service. That profession is regulated by Petitioner, Department of Health (Department). In this proceeding, the Department alleges that Respondent violated its rules law on three separate occasions in 1995, 1996, and 1997. Each alleged violation is discussed below. The Iris Lane Citation In April 1997, William M. Newell, who manages various rental properties in Santa Rosa County (County), hired Respondent to pump out a backed up septic tank system located at 1824 Iris Lane, Navarre, Florida. The system was an older one with a sand bottom, a type sometimes found in the southern part of the County. The job was performed by Respondent on April 21, 1997, and it called for Respondent to pump the tank dry. Respondent received payment from Newell for these services. On the evening of April 22, 1997, Newell returned to the premises and found the lid back on the system. Assuming that the job was completed, he telephoned the Santa Rosa County Health Department to request an inspection of the tank, as required by law. Larry Thomas, an environmental supervisor, inspected the tank on April 23, 1997, and found approximately five inches of solids still remaining in the tank and the remainder of the tank full of water. A properly pumped out tank would be dry. Newell immediately contacted Superior Septic Tank Service in Crestview, Florida, to repump the tank. Earl Raybon, an employee of that firm, inspected the tank and assumed it had not been pumped out since it was full of water and had a layer of sludge at the bottom. Raybon observed that the walls and lid of the system were "in good shape," but it needed a replacement liner. Raybon then repumped the tank until the system was dry. When Respondent was later asked by Newell and Thomas why the tank had sludge and water, Respondent advised them that water and solids must have bled (leached) back into the tank through the sand bottom. Although it is not uncommon for groundwater to seep back into a tank through a sand bottom, it is highly unlikely that the tank would completely refill with water within two days, unless the area experienced heavy rains. There was no evidence that this occurred. Further, it is not possible for solids to seep back into the tank under any circumstances. Respondent's explanation that this accounted for the solids in the tank is not deemed to be credible. Respondent also explained that in order to prevent the ingestion of sand into his equipment, he had to leave some sludge at the bottom of the tank. Raybon established, however, that under current industry standards, it is the responsibility of the contractor to pump a tank dry, even if one gets sand in his equipment. Consistent with that practice, Raybon pumped the tank dry. Respondent finally contended that if he had pumped the tank dry, the sides of the system might have collapsed. This occurs, however, only when there is water pressure on both sides of the system. Because the second contractor pumped the system dry without incident, it is found that a collapsing system was not a valid concern. By failing to pump the tank dry, as required by industry standards, Respondent committed fraud and deceit on the customer. In addition, this misconduct caused the customer to incur monetary harm in that the customer had to pay a second contractor to finish the job. The Deer Lane Citation In early December 1995, Respondent installed a new septic tank system on a mobile home lot at 9050 Deer Lane, Navarre, Florida. Before the final written inspection approval for a new septic tank system can be given by the Department, the building permit must be attached to the application. It is the responsibility of the owner, and not the septic tank contractor, to obtain the building permit. Alternatively, if the lot is still undeveloped, as it was here, approval of the system may be obtained without a building permit by simply securing a yellow- green temporary sticker from the Department. On December 5, 1995, Respondent submitted paperwork to the Santa Rosa County Health Department reflecting that building permit number 95-608 had been issued to the owner. He contended that this number was obtained over the telephone from the owner, and this claim was not contradicted. However, a building permit was not issued to the owner until December 7, 1995, and it carried permit number 95-4144. The local department immediately discovered the difference in the two numbers and charged Respondent with fraud and deceit. There was no intent on the part of Respondent to commit fraud or deceit on the Department. Indeed, he could have obtained an inspection and final approval without a building permit being issued since the lot was still undeveloped. Moreover, he had no financial incentive to fabricate the permit number. Therefore, it is found that he did not commit fraud or deceit in the practice of contracting. The Webster Street Citation In order to perform septic tank services, a contractor must be registered with a county health department. By having an operating permit from one county health department, a contractor may perform services in other counties as well. Therefore, an operating permit in Okaloosa County would enable Respondent to perform services in Santa Rosa County. On June 27, 1996, Respondent partially pumped a tank at 7843 Webster Street, Navarre, Florida. At that time, he held no active registrations to perform the work. He eventually obtained an operating permit from the Okaloosa County Health Department on July 29, 1996. According to a representative of the Okaloosa County Health Department, it allows contractors who have previously had permits issued by that Department to work without a valid registration while their applications are being processed. This process usually, but not always, takes no more than two or three weeks. Whether Respondent had previously been issued a registration by the Okaloosa County Health Department is not of record. It is also unknown when Respondent filed his application with that Department, although he says that he had an application pending when the questioned job was performed. Because of these record deficiencies, it is found that, even though Respondent had no valid operating permit on June 27, 1996, he rightly assumed that such work was permissible under then existing policy of the Okaloosa County Health Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a Final Order finding Respondent guilty of violating Rules 64E-6.022(1)(k) and (l)2., Florida Administrative Code, and that Respondent be assessed a $500.00 administrative fine. The charges in the two citations should be dismissed. DONE AND ENTERED this 21st day of January, 1998, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 Filed with the Clerk of the Division of Administrative Hearings this 21st day of January, 1998. COPIES FURNISHED: Angela T. Hall, Agency Clerk Department of Health Building 6, Room 102 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Rodney M. Johnson, Esquire 1295 West Fairfield Drive Pensacola, Florida 32501 Willie A. Harmon Post Office Box 733 Fort Walton Beach, Florida 32548 Pete Peterson, Esquire Department of Health Building 6, Room 102 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue is whether Respondent's registration as a septic tank contractor should be disciplined for the reasons set forth in the Administrative Complaint.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background In this disciplinary proceeding, Petitioner, Department of Health (Department), on behalf of the Polk County Health Department (Health Department), seeks to impose an administrative fine on, and revoke the septic tank contractor registration of, Respondent, Barbara Thompson, doing business under the name of A-1 Septic Services. Respondent currently operates a septic tank business in Lakeland, Florida, and has held her registration for approximately two and one-half years. Her most recent address is 1616 Ritter Road, Lakeland, Florida. As a registrant, she is under the regulatory authority of the Department. On November 28, 2000, the Department entered into a Settlement Agreement (Agreement) with Respondent for numerous violations of various provisions within Chapter 64E-6, Florida Administrative Code. The Agreement was approved by the Department in a Final Order dated March 5, 2001. As a condition of that Agreement, Respondent agreed that her husband, Larry Thompson, would not be employed in the management of the business; would not solicit, negotiate, contract, contact, or communicate with any customers of the business; or represent the business as agent or principal in any way. Larry Thompson's registration as a septic tank contractor had been previously revoked by a Final Order of the Department of Health and Rehabilitative Services entered on January 23, 1995. Based on complaints received from three consumers, the Health Department began an investigation of Respondent in 2001. The investigation culminated in the issuance of an Administrative Complaint on June 29, 2001, which generally alleged that in February and June 2001, Respondent was fraudulent in her dealings with three customers by recommending unneeded work on septic tank systems that were in good working order; that she violated the terms of the Agreement by allowing her husband to participate in the business; that in 1998 and 2000, Respondent conspired with her husband to fraudulently purchase three vehicles under the name of her husband's brother (and without his consent) for use in her business; and that by using one of those vehicles in her business, she unlawfully obtained her registration through fraud, misrepresentation, and concealment of material facts, and she committed gross misconduct in her profession. Respondent denies the allegations and suggests that the complaint is the result of an on-going dispute between her and local Health Department officials, who want to put her out of business. Consumer complaints On February 27, 2001, William Mauer (Mauer), who lives at 5212 Messina Road, Lakeland, Florida, contacted Respondent's firm after experiencing a problem with his septic tank system "not draining right" and "sewage backing up." Two individuals, one of whom Mauer identified at the hearing as being Larry Thompson, arrived around 4 p.m. Larry Thompson began using a probing rod around the 900-gallon tank, popped the lid, and announced that the tank "was full." The two then pumped out the tank, for which Mauer was charged $150.00. At the same time, Larry Thompson recommended that Mauer install a new drainfield and quoted a price of "around $2,800.00." By allowing Larry Thompson to solicit business, contact and communicate with customers, and represent the business, Respondent violated the terms of the Agreement. That evening, Respondent came to Mauer's house and prepared a work order for a new drainfield. Because Mrs. Mauer wished to pay by credit card, Respondent advised her that she did not accept credit cards, but she could run the transaction through her brother's business for the normal credit card processing fee which was described by the witnesses as ranging from $165.00 to $300.00. In any event, the Mauers agreed and charged the work on their credit card. Within a day or two, but after Respondent had pulled a permit for the repair job, Mauer backed out of the deal since the problems went away after the tank had been pumped out. The charge on the credit card was cancelled, and Mauer paid only for the pumping of his tank ($150.00) and the cost of a repair permit. At hearing, Maurer indicated that he was not "mad at all" about the service, and he agreed that he was "not really out of anything," since the credit card charges were cancelled. Respondent contended that when the Mauers' tank was inspected, there was sewage seeping from the lid and flowing back into the tank from the drainfield line, thus indicating a need for drainfield repairs. A subsequent inspection of the system by a Health Department official a few days after Respondent's visit revealed nothing "to indicate a bad drainfield." The representative acknowledged, however, that it was "not easy" to determine if a system was bad, and that a lack of visible signs of a problem did not mean that the system was in good working order. Even so, the lack of any further problems (after the pump-out) is a clear indication that Respondent recommended that unnecessary work be performed on the Mauers' system. On February 27, 2001, Patsy Brown, who lives in a duplex at 1014 Old South Drive, Lakeland, contacted Respondent's firm for a service call after she experienced "slow draining" in the master bathroom toilet of the second unit in the duplex. Two "young men" came out that evening around 9 p.m. One was Ricky Thompson, Respondent's brother- in-law; the other was identified at hearing as being Larry Thompson. After locating the tank, one of the two workers placed a shovel in the grass and found clear water without an odor around the drainfield. The older of the two workers (Larry Thompson) recommended that Brown replace (repair) the drainfield and quoted a price in the range of $2,400.00 to $2,700.00. Larry Thompson also instructed Ricky Thompson to pump out the tank. By allowing Larry Thompson to solicit work on her behalf, and act as a representative of the firm, Respondent contravened the terms of the Agreement. Believing that a new drainfield was needed, Brown signed a work order for $2,785.00 and gave Larry Thompson a check in the amount of $1485.00 as partial payment. At the request of Larry Thompson, Brown made out the check to Barbara Thompson, rather than A-1 Septic Tank Service. A day or so later, and after Respondent had pulled a permit for the job, Brown had second thoughts about replacing her drainfield and contacted the Health Department. A representative visited her home on March 2, 2001, and found no visible signs of a system breakdown. The representative gave Brown the names of five other septic tank companies to contact for estimates. An unnamed registrant then replaced Brown's distribution box for $238.00, which resolved all problems. While the representative acknowledged that "a failed drainfield is not always apparent," and that "[i]t's not always easy just by looking at it or telling if that's a good drainfield or not," the fact that Brown's problems were unrelated to the drainfield supports a finding that Respondent recommended that Brown have unneeded work performed on her system. After the distribution box was replaced, Brown contacted Respondent and requested a refund of her money. Because the request was made more than 3 days after she had signed the contract, Respondent took the position that no refund was warranted. Brown then filed a consumer complaint with a Tampa television station. Respondent says she offered to refund the money if Brown would withdraw her complaint with the television station, but Brown refused to do so, and the complaint ended up being aired on "national television." To date, the money has never been refunded, although Brown has never made another formal request for a refund of her money, nor has she taken legal action against Respondent to recover the money. On June 5, 2001, David Fleming, who lives with his wife, Zora, at 3319 Mt. Tabor Road, Lakeland, experienced "problems with [the toilet] flushing." Zora telephoned Respondent's firm, and Ricky Thompson and Respondent arrived later that day. After Ricky popped the lid on the tank and found a full tank, Respondent recommended that the tank be pumped out for a charge of $150.00. When around one-half of the tank was pumped, Respondent advised Fleming that the price would be $200.00 because it was so full; otherwise, she would be forced to pump the contents of the truck back into the tank. Fleming then agreed to pay Respondent $200.00 for a full pump-out, and he obtained a receipt for the payment. This fee was not unreasonable, and thus Respondent did not violate any Department rule or statute by charging that amount. Respondent also advised Fleming that he needed a new drainfield which would cost "over $2,000.00." Fleming declined to sign a contract for that service since he could not afford one. He experienced no further problems with his system after the pump-out. Respondent denies having advised Fleming that he needed a new drainfield and acknowledged at hearing that "there was nothing wrong with it." She further contended that because the house did not even have an air-conditioner, she knew that the Flemings could not afford any further repairs. This testimony is not deemed to be credible. A subsequent inspection of the tank by a Health Department official on June 8, 2001, revealed that there were no "obvious signs of failure the day [he] was out there." The system continues to function normally to this day. Purchase of vehicles The record is somewhat confusing regarding the vehicles owned and used by Respondent and registered with the Department. Under Rule 64E-6.010(2)(a), Florida Administrative Code, a registrant must make application for a service permit with the Health Department each year and provide evidence that he or she "possesses adequate equipment . . . necessary to perform the work intended." At hearing, Respondent stated that she currently has three trucks, two of which (a Chevrolet and a Ford) are now registered with the Health Department, but only one of which (the Chevrolet Kodiac) is actually used in the business. As discussed in greater detail below, the Chevrolet Kodiac was purchased from Bartow Chevrolet Company, Inc. The second vehicle (either a Ford or another undisclosed make and model) is one she has "had for several years" that was purchased from an individual named Howard Nieft (the father- in-law of Ricky Thompson); however, the title still remains in Nieft's name. The third vehicle (an unknown make and model consisting of a cab and chassis only with a blown motor) is "one that [she is] putting together" that was purchased around a year ago in Zephyrhills from a person whose name she cannot recall. Like the second vehicle, Respondent says the "title work [on the third vehicle] has not been transferred yet," because she cannot "get hold of the owner" to sign an affidavit to transfer the title. However, Respondent also indicated that the third vehicle which she is "putting together" is titled in the name of her niece, Christina Wood. The conflicting testimony regarding the ownership of the third vehicle was never clarified by the parties. In August 1998, an individual who identified himself as Ray M. Thompson ("Ray"), approached Mark Pike (Pike), a commercial salesman with Bartow Chevrolet Company, Inc., for the purpose of purchasing a medium duty truck for his septic tank business. "Ray" gave a local address of 1400 Spivey Road, Lakeland, Florida. "Ray" eventually agreed to purchase (and finance through the dealership) a 1998 Chevrolet Kodiac truck on September 10, 1998, for approximately $35,000.00. In the course of the transaction, Pike requested a driver's license and insurance card from "Ray" to verify his identity. "Ray" gave Pike a North Carolina driver's license issued on August 18, 1997, to Ray M. Thompson. The Chevrolet Kodiac was later titled by the State to Ray M. Thompson. Ray M. Thompson is the brother of Larry Thompson, and the brother-in-law of Respondent. At the hearing, Pike identified Larry Thompson as the person who actually purchased the vehicle in September 1998 and used the name and identification of Ray M. Thompson. At hearing, the real Ray Thompson denied that he had purchased the vehicle, and after learning about the transaction, he filed paperwork with the Department of Highway Safety and Motor Vehicles (DHSMV) cancelling his name on the registration of the vehicle. The same vehicle is now being used by Respondent in her business. Although a "blond-haired lady" was with "Ray" when he signed the paperwork to purchase the truck, and Respondent has that color of hair, Pike could not identify Respondent as being that person. Therefore, it is found that there is less than clear and convincing evidence that Respondent participated in the transaction or conspired with her husband to deceive the dealership or her brother-in-law. On September 27, 2000, an individual who identified himself as Ray M. Thompson ("Ray") visited Bartow Ford Company and spoke with Gregory Wade, a salesman, about the purchase of a new Ford F350 pickup truck for his septic tank business. "Ray" was accompanied by an unidentified female and gave an address of 1616 Ritter Road, Lakeland, Florida, the address of the mother of Ray and Larry Thompson, as well as Respondent and her husband. The same day, "Ray" traded in a 1999 Dodge Durango on a new 2001 F350 Ford pickup truck for approximately $41,000.00, less the net value of the trade-in. During the course of the transaction, "Ray" produced an out-of-state driver's license identifying himself as Ray M. Thompson, and an insurance identification card bearing the same name. At the hearing, although both Respondent and her husband were in the hearing room, Wade was unable to identify either one as the individuals who participated in the transaction on September 27, 2000. The vehicle was later titled by the State to Ray M. Thompson. After learning about the transaction, the real Ray M. Thompson filed paperwork with the DHSMV to cancel the registration. Given these circumstances, there is less than clear and convincing evidence that Respondent conspired with her husband to fraudulently purchase the vehicle under the name of her husband's brother, as alleged in Count VI of the complaint. Count V of the complaint also alleges that "sometime during 1998" Respondent conspired with her husband to "fraudulently purchase a pick-up truck, a Dodge Durango, from Bartow Chevrolet [Company, Inc.] under the name of Ray Thompson and without his permission." Except for the evidence which shows that a Dodge Durango was traded in on the Ford F350 truck in September 2000, as noted in Finding of Fact 21, there is no other evidence to support this allegation. Violation of Agreement At hearing, Larry Thompson maintained that after the Agreement was executed in November 2000, he has limited his participation with his wife's business to merely gassing up vehicles and performing maintenance work on the firm's vehicles, when necessary. He denies being employed by his wife or having any contact with customers. In addition, Ricky Thompson, Larry's brother, also denied that Larry Thompson ever accompanied him on service calls. However, the more credible evidence, as detailed in Findings of Fact 4 and 8, is that Larry Thompson performed work for his wife on two occasions in violation of the Agreement. Obtaining Registration by Fraudulent Means Count IV of the complaint alleges that by continuing to use the 1998 Kodiac truck in her business without the permission of the real Ray Thompson, Respondent "falsely indicated and represented to the Department that [she] had means, ability and equipment necessary for the operation of [her] business," that she obtained her registration through fraud or misrepresentation, concealment of material facts, and she committed gross misconduct in the pursuit of her profession. In this regard, Respondent's application for registration, date of licensure, and annual application for a service permit are not of record. While Respondent admitted that she is using the Kodiac in her business, there is less than clear and convincing evidence in the record to support this allegation. This is especially true since there was no evidence that a registrant must own (or have titled in his or her name) every vehicle used in the contracting business, or that Respondent did not have the financial means, ability, or equipment to engage in the business.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final order imposing a $500.00 fine and revoking Respondent's registration as a septic tank contractor. DONE AND ENTERED this 5th day of February, 2002, in Tallahassee, Leon County, Florida. ___________________________________ DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (850) 488-9675, SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of February, 2002. COPIES FURNISHED: Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703 Roland Reis, Esquire Polk County Health Department Department of Health 1290 Golfview Avenue, Fourth Floor Bartow, Florida 33830-6740 Jack T. Edmund, Esquire 1125 East Main Street Bartow, Florida 33830-5004
The Issue The petition in this matter was filed pursuant to Section 57.111, Florida Statutes, seeking fees and costs arising from an underlying proceeding (DOAH Case No. 93-5526) in which the Department of Health and Rehabilitative Services entered a Final Order adopting the hearing officer's recommendation that the administrative complaint against Wayne H. Crotty, d/b/a Crotty Septic/Roto- Rooter, be dismissed. The parties have stipulated to the reasonableness of the fees and costs, the total of which exceeds the statutory $15,000.00 maximum. Respondent, Department of Health and Rehabilitative Services, contests entitlement to the award and argues that Petitioners are not prevailing small business parties and, further, that the agency had a reasonable basis in law and fact at the time its complaint was filed.
Findings Of Fact The Parties Wayne H. Crotty is, and at all relevant times has been a licensed septic tank contractor in the State of Florida. Crotty Unlimited, Inc. was formed in 1987 as a holding and management company for several small, diversified corporations held by the Crotty family. One of those companies was Crotty Septic Service, Inc., which was involved in septic contracting and related businesses since 1972. In the early 1990's the other small corporations were sold, and when only Crotty Septic Service, Inc. was left, it was dissolved and was later registered as a fictitious name under which Crotty Unlimited, Inc. was doing business. From March 1992 until approximately June 1994, Crotty Septic Roto- Rooter was registered as a fictitious name owned by the corporation, Crotty Unlimited, Inc. Wayne H. Crotty is currently a director and president of Crotty Unlimited, Inc. Prior to Fall of 1994 he was vice president and secretary of the corporation. He is now, and was at all relevant times, a minority shareholder. In 1992 and 1993, Wayne H. Crotty filed applications for septic tank contracting authorization pursuant to Chapter 489, part III, Florida Statutes, for the business "Crotty Septic/Roto-Rooter." The certificates were issued by the Department of Health and Rehabilitative Services under that designated business name. Wayne Crotty never applied for or received a certificate of authorization for septic tank contracting under the name, "Crotty Unlimited, Inc." Prior to 1992 the business authorization was in the name, Crotty Septic Services, Inc. The Department of Health and Rehabilitative Services (HRS), through its state health program officer, is the state agency with statutory responsibility for licensing septic contractors, and monitoring and disciplining those contractors. The program office relies on the field staff in local county health units to conduct inspections and investigate complaints. The Underlying Proceeding In 1993 Wayne Crotty had an application pending for a permit from HRS for a septage disposal service, temporary system service and septage treatment and disposal facility. The application designates the business as "Crotty Septic/Roto-Rooter" and the owner as "Crotty Unlimited, Inc." The application describes a lime stabilization facility on Southport Road in Osceola County (the Southport facility). The purpose of the facility was to receive pumped-out sewage effluent, treat the effluent through lime stabilization and spread the treated effluent in a designated field at the facility. Michael Napier, assistant director of environmental health in Osceola County conducted a series of inspections of the Southport facility in April, May and June of 1993. Mr. Napier noted what he considered were violations of Chapter 386, Florida Statutes, relating to sanitary nuisances and rule chapter 10D-6, Florida Administrative Code, relating to the treatment and disposal of septage and the standards of practice of septic tank contracting. He spoke with Wayne Crotty and corresponded with him regarding the inspection findings and he also consulted with Gerald Briggs, an environmental manager with HRS' state health program office in Tallahassee. Gerald Briggs drafted the administrative complaint in July 1993 based on the consultations with Michael Napier, the correspondence between the Osceola County health unit and Wayne Crotty and the inspection reports, photographs, or other supporting documentation. Throughout several months' time period Briggs felt from the tone of the letters that the corrections would be made. By July when Michael Napier said that the plant was handling a large quantity of septage in a very unsanitary and sloppy manner, Briggs agreed the facility should not be permitted as he was concerned about the impact on public health and the threat to ground and surface water in the area. Once Gerald Briggs decided to pursue an administrative complaint he determined that the respondent should be Wayne Crotty as the licensed septic tank contractor. The file on Wayne Crotty's certificate of authorization indicated that Crotty Septic/Roto-Rooter was the authorized business name. Wayne Crotty had in early 1992 informed Gerald Briggs that he had purchased a Roto-Rooter franchise and wanted to be able to advertise under that name. Briggs advised that as an individual septic tank contractor he could only qualify one authorized business and the business he advertised would have to be the one that was authorized by the agency. Briggs advised that Wayne Crotty could amend his authorization to change the business name from Crotty Septic Service, Inc. to Crotty Septic/Roto-Rooter. When Gerald Briggs drafted the administrative complaint alleging violations found by Michael Napier and the Osceola County field staff, he relied on the information in his files and named Wayne Crotty as the responsible septic tank contractor and what he understood was Crotty's business: Crotty Septic/Roto-Rooter. The respondent throughout the underlying proceeding was designated as "Wayne H. Crotty, d/b/a Crotty Septic/Roto-Rooter." No corporate party appeared in that underlying case (DOAH number 93-5526) by intervention or otherwise. Richard G. Hunter, Ph.D., HRS Health Officer for Environmental Health and Statewide Services signed the administrative complaint based on his examination of the packet prepared by his program and legal staff and the information from the field. The complaint sought to impose $2,500 in administrative fines on Wayne H. Crotty for violating regulations concerning disposal of stabilized septage and for creating or maintaining a sanitary nuisance. Wayne Crotty denied the allegations and requested a formal hearing. The case was referred to the Division of Administrative Hearings, was assigned DOAH number 93-5526 and was heard on February 3-4, 1994. Included in the recommended order was this ultimate conclusion: 94. At most, the department established some intermittent sloppy practices by the Respondent -- practices that resulted primarily from the failure to have proper equipment available (the dumpster), and from untrained staff (Norm's admission about the cows). In the absence of clear advance notice of violations and an opportunity to correct the violations as provided by section 386.03, Florida Statutes, and with Respondent's evidence of reasonable attempts to cooperate and to obtain more appropriate equipment and train staff, those isolated practices should not be subject to penalty. (Recommended Order entered 6/28/94) In a Final Order entered on August 22, 1994, the Department of Health and Rehabilitative Services adopted the findings, conclusions and recommendation of the hearing officer and dismissed the administrative complaint against Wayne H. Crotty, d/b/a Crotty Septic/Roto-Rooter. The Elements Required for an Award of Fees and Costs Respondent, Wayne H. Crotty, thus prevailed in the underlying action. Wayne Crotty was an officer, minority shareholder and, according to his testimony, an employee of Crotty Unlimited, Inc. (transcript, p. 58). He was not a sole proprietor of an unincorporated business; he was not a small business party. At the time that the complaint was filed the agency had a reasonable basis to claim that violations were occurring or had occurred. However, its initiation of the proceeding was fatally flawed by its failure to provide statutory notice and an opportunity to correct the violations. When the complaint was filed the parties were still engaged in free-form discussion and correspondence regarding operations at the lime stabilization facility.
The Issue The issue in this case is whether the Department should grant and approve Petitioner’s application as a septic tank contractor.
Findings Of Fact The Department of Health is the agency responsible for the registration of septic tank contractors and the authorization of septic tank companies. The Department of Health enforces the statutes and rules pertaining to the registration and authorization of septic tank contractors and septic tank companies pursuant to Chapters 381 and 489, Part 3, Florida Statutes, and Rule 10D-6, Florida Administrative Code. The Petitioner, Gerald D. Thompson, applied to the Department of Health to be a registered septic tank contractor. The Department received his application on July 3, 1996. The Petitioner’s application indicates that he had been convicted of a crime related to septic tank contracting and had had an enforcement action taken against him. The attachment to the application reflected that both events had occurred to the Petitioner. The Petitioner had been adjudged guilty, in Flagler County Circuit Court, on January 18, 1997, of the attempted felony littering by disposing of domestic sewage on private property in an area not permitted for such use. Petitioner’s previous septic tank contracting registration had been revoked for two (2) years in a settlement agreement between the Petitioner and the Department of Health and Rehabilitative Services. The revocation was effective June 1, 1994. The Settlement Agreement stipulated that the Petitioner could reapply for registration as a septic tank contractor upon the expiration of the two (2) years stipulated in the agreement under the rules in effect at the time of the new application. The Settlement Agreement was signed by Petitioner and by Petitioner’s counsel. On September 6, 1996, the Petitioner issued its denial of the Petitioner’s instant application on the grounds that he failed to meet the qualifications listed in Rule 10D- 6.072(3)(d)(e)(f), Florida Administrative Code. It is uncontroverted that the Petitioner had his prior registration as a septic tank contractor revoked and that he was adjusted guilty of attempted felony littering in a case-related septic tank contracting.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Petitioner’s application for registration as a septic tank contractor be denied because he was convicted of a crime involving contracting and his license had been revoked within five (5) years prior to his application. DONE AND ENTERED this 17th day of November, 1997, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Jerry D. Thompson 500 Walker Street Holly Hill, Florida 32117 Charlene Petersen, Esquire Chief Legal Counsel Department of Health 420 Fentress Boulevard Daytona Beach, Florida 32114 Angela T. Hall, Agency Clerk Department of Health 1317 Winewood Boulevard Building 6 STEPHEN F. DEAN 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 17th day of November, 1997. Tallahassee, Florida 32399-0700 Dr. James Howell, Secretary Department of Health 1317 Winewood Boulevard Building 6, Room 306 Tallahassee, Florida 32399-0700 Pete Peterson, Esquire Department of Health 1317 Winewood Boulevard Building 6, Room 102E Tallahassee, Florida 32399-0700
The Issue The issue is whether Petitioner created a sanitary nuisance in violation of Florida Administrative Code Rules 64E- 6.022(1)(l) and 64E-6.022(1)(q) and, if so, the proper penalty.
Findings Of Fact The Department of Health, Duval County Health Department (Department), is the state agency charged with enforcing the statutory and regulatory provisions pertaining to septic tank installations and repairs in Florida, pursuant to Section 381.0065, Florida Statutes, and Florida Administrative Code Sub-Chapter 64E-6. Mr. Hoag is registered as a Septic Tank Contractor pursuant to Florida Administrative Code Rule 64E-6.019. He was issued registration no. SR0911053. It was necessary to install a new septic tank at residences located at 8817 and 8821 Bellrose Avenue, in Duval County, during March 2004. The owner of the premises, Ben Lewis, contracted with Florida Septic Tank Service, Inc., to accomplish this work. A repair application was submitted to the Department on March 8, 2004, and was approved. Florida Septic Tank Service, Inc., engaged Mr. Hoag, of Plumbing and Contracting by Hoag, to accomplish the plumbing portion of the operation. Sometime on April 8, 2004, the exact time not being estimated, Mr. Hoag disconnected the stub from the residences that ran to the former septic tank. This was done so that pipes could be run to a new septic tank. He neither connected the line that he disconnected to the new septic tank nor capped the pipe. Mr. Hoag requested the occupants of the residences to refrain from using the sanitary facilities within the residences until he was able to continue his work on April 9, 2004. Despite this request, the facilities were used between April 8, 2004, and April 9, 2004. On April 9, 2004, sometime prior to 11:45 in the morning, Colleen Bierbach, an inspector with the Department, entered the premises of 8817 and 8821 Bellrose Avenue and observed household wastewater and human fecal matter on the ground at the terminus of the stub. Pictures were taken that memorialized the nature of the deposits. Inspector Scott Turner, of the Department, issued a citation to Mr. Hoag that indicated that the offense occurred at 11:45 a.m. on April 9, 2004. The citation reflected a violation of Section 386.041(1)(a), Florida Statutes, and Florida Administrative Code Rule 64E-6.022(1)(l) and (q). With regard to Florida Administrative Code Rule 64E-6.022(1)(l), the citation charged only that he committed, "Gross negligence, incompetence, or misconduct which causes no monetary harm to a customer." The citation was accepted by Mr. Hoag on April 15, 2004. Mr. Hoag's failure to either connect the line to the new septic tank or to cap the outflow line, caused an unsanitary and unsafe condition to exist at 8817 and 8821 Bellrose Avenue, Duval County, on April 9, 2004. No evidence was adduced as to the exact time that the pipe was opened on April 8, 2004, or as to the exact time that the pipe was closed and the area decontaminated on April 9, 2004.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Duval County Health Department, dismiss the citation issued to Mr. Hoag on April 9, 2004. DONE AND ENTERED this 15th day of February, 2006, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 15th day of February, 2006. COPIES FURNISHED: Catherine R. Berry, Esquire Department of Health 515 West Sixth Street Jacksonville, Florida 32206-4311 Robert J. Hoag Plumbing & Contracting by Hoag Post Office Box 7931 Jacksonville, Florida 32238 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Timothy M. Cerio, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Dr. John O. Agwunobi, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701
