The Issue Whether Respondent John M. Williams deposited fill in waters of the state without a permit from the Department of Environmental Protection. If so, what is the appropriate corrective action and penalty?
Findings Of Fact Mr. Williams and the Cowford Subdivision Petitioner John M. Williams is a retired mechanic. In 1992, he became acquainted with the Cowford subdivision in Walton County, near Bruce, Florida. The subdivision fronts the Choctawhatchee River. Mr. Williams purchased lot 29 of the subdivision. Three or four years later, he bought lot 30. All told, Mr. Williams paid approximately $47,000 for the lots, an electric power line and an "above-ground" septic tank. The purchase price of the lots was $38,000. Running an electric line and installation of an electric light pole cost about $4,000. Mr. Williams paid about $5,000 for the septic tank and its installation. Mr. Williams' ultimate goal in purchasing the lots and adding the improvements was to build a house on the property for use in his retirement. Attempt to Obtain the Necessary Permits The septic tank was not purchased by Mr. Williams until after he had obtained a permit for its construction. At the county offices where he went to obtain the necessary permit, he was "sent over to the power company." (Tr. 216). At hearing, he described what happened there: I paid my money to get my power and they -- well, they informed me . . . once I got my power on I had 6 months to get my septic tank in the ground or they would turn my lights off. So here I had a $3,500 light pole put up and I couldn't very well see this thing going down. So, I went ahead to the Health Department. (Id.) Mr. Williams' testimony is supported by a Walton County Environmental Health Notice dated March 8, 1999, that states, "The Walton County Building Department will not be issuing approval for power for any residence until final approval of the septic system is obtained from the Walton County Environmental Health Office." P7, the first page after Page 3 of 3, marked in the upper right hand corner as PAGE 10. At the Health Department, on April 12, 1999, Mr. Williams applied for an "Onsite Sewage Treatment and Disposal System" permit on a form bearing the following heading: STATE OF FLORIDA DEPARTMENT OF HEALTH ONSITE SEWAGE DISPOSAL SYSTEM APPLICATION FOR CONSTRUCTION PERMIT Authority; Chapter 381, FS & Chapter 10D-6, FAC P7, page 1 of 3. According to the form, he paid the $200 fee for the permit on April 29, 1999. The payment was made within a month or so after the installation of the power line. An attachment to the "Walton County Environmental Health Onsite Sewage Treatment and Disposal System Application," made out by Mr. Williams on April 12, 1999, contains the following warning: OTHER AGENCY PERMITS: As the owner or agent applying for an OSTDS permit it is my responsibility to determine if the proposed development is in compliance with the zoning requirements of Walton County. I further assume responsibility to obtain any applicable permits from other State and Local Government Agencies. P15, page 2. (emphasis supplied) (See also P7, the second page after Page 3 of 3, marked in the upper right hand corner as PAGE 11). On May 5, 1999, about three weeks after Mr. Williams submitted the construction permit application, the site where the septic tank would be installed was evaluated by an EH Specialist, an inspector. On the same day, an Onsite Sewage Treatment and Disposal System Construction Permit was issued for an "above-ground" 900-gallon septic tank. Installation With county personnel present and under county supervision, the septic tank was installed on a ridge on Mr. Williams property about 17 feet above mean sea level. Fill dirt was brought onto the site and placed on top of the tank to create a septic tank mound. No dredging of the property was done in connection with the installation. Chance Discovery After a complaint was registered with DEP about dredge and fill activity on one of the lots near Mr. Williams, Gary Woodiwiss, then an environmental specialist in the Department assigned to conduct inspections in Walton and Holmes Counties, visited the Cowford subdivision in July 2000. During the visit, Mr. Woodiwiss noticed the septic tank mound on Mr. Williams' property and that the mound, in part, consisted of fill dirt. Being of the opinion that the both the fill dirt and the septic tank system constituted "fill" and that the fill may have been deposited in jurisdictional wetlands, that is, "waters of the state," Mr. Woodiwiss consulted with DEP personnel about the status of the site and DEP jurisdiction. Ultimately, DEP determined that the site of the septic tank mound, within the flood plain of the Choctowhatchee River, was jurisdictional wetlands. The Department took action. DEP Action On November 16, 2000, Mr. Woodiwiss issued a memorandum to the DEP file with regard to "John Williams. Unauthorized Fill in Flood Plain." The memo states: Site is located next to Charles Riley who is the subject of Department action for filling jurisdictional wetlands. Williams was erroneously given a permit by Walton County health Dept. to install a septic system in 1999, which he subsequently installed. I visited the site with the administrator for the septic tanks program in Walton and she indicated that they would pay for the installation of a new system on a new lot for Mr. Williams. I recommend that the removal of the system and relocation of the inhabitants of the lot to an area outside of the immediate flood plain. P6. (emphasis supplied) Five days later, on November 21, 2002, a warning letter was generated by Mr. Woodiwiss under the signature of Bobby A. Cooley, Director of District Management for DEP. The letter advised Mr. Williams as follows: Recent Department survey data established at your property has determined that your entire lot is below the mean annual flood line of the Choctawhatchee River and is subject to dredge and fill jurisdiction of the Department. Any construction on the property including placement of a mobile home, septic tank and drainfield or other structures must first receive a dredge and fill permit from the Department. Preliminary assessment of your proposed development of the property indicates that you may not meet the public interest criteria of Chapters 403 and 373 Florida Statutes for qualifying for a permit. R5. By this letter the Department informed Mr. Williams both that he was in violation of the law by not having secured a permit for the filling of the site and warned that, on the basis of a preliminary assessment, it was not likely that he would be eligible for an after-the-fact permit. The assessment of whether the site was eligible for a permit was re-stated in writing again, but with added certainty in a Compliance Assessment Form (the Form) prepared by DEP personnel. In Section V. of the form, there appears, together with the signature of the "Section Permit Processor and a date of "11/09/2000", the following: Project is not permittable due to type of wetland system being impacted and project must not be "Contrary to the Public Interest". The project could affect the public health, safety and welfare and property of others. The project is of a permanent nature. P13. Although the permit processor entered her assessment on November 9, 2000, and other sections of the form were entered on November 1, 2000, by Mr. Woodiwiss, the Compliance Assessment Form bears a final date of February 1, 2001. The Form shows the "Event Chronology" that led to the issuance of the NOV. The chronology, consistent with the testimony at hearing, reveals the following: 25 Jul.00. Complaint inspection for fill in wetlands on adjacent lot. Found isolated fill areas in a slough and adjacent to an apparent upland area. Vegetation is 100% jurisdictional but soil is composed of alluvial deposits in ridge like configurations, one of which the respondent wished to live on. Solicited the jurisdictional team for a district assist in determining jurisdiction. 21 Aug.00. District assist. Hydrologic indicators and vegetation present in sufficient quantities to establish jurisdiction. John Tobe PhD. Requested that the mean annual flood be established on the site in order to augment his determination. October 11, 2000. District assist by Bureau of Survey and mapping and the establishment of a survey line of the 2.33 year (16.42 feet above MSL) mean annual flood elevation on the adjacent violation site. The whole site is clearly under the MAF, which extends approximately 200 meters up grade towards SR 20. The elevation of the MAF is consistent with hydrological indicators (porella pinnatta) that indicate such a flood elevation, as reported in previous studies. November 7, 2000. Met with Crystal Steele and Mike Curry of Walton County DOH to establish why Mr. Williams has a septic tank permit. They indicated that the permit was issued in error and that they would require the system to be moved. Ms. Steele stated that the County would pay for Mr. Williams to have a new system installed on another site because of the oversight. There are currently two moveable vehicles on the site, one of which is connected to the system, the other has a contained service for sewage. November 21, 2000. WLI [presumably Warning Letter Issued] November 27, 2000. Call to Mr. Williams. He wants to get money back or swap property for higher. I advised him to approach the owner Mr. Martin and make his situation known. January 22, 2000. Mr. Williams has refused to remove the fill and requests an NOV. P13, (emphasis supplied) MAF and Wetland Delineation There was considerable testimony introduced at hearing about establishment of the mean annual flood ("MAF") line for the purpose, among others, of its relationship to the elevation of the septic tank mound. The issue stemmed, no doubt, from Dr. Tobe's request that MAF be established in order to "augment his determination" with regard to DEP jurisdiction based on employment of the methodology in DEP's wetland delineation rule, see paragraph 13, above. Resolution of the issue is not necessary to augment the determination that all of lots 29 and 30 of the Cowford subdivision are located in wetlands that constitute "waters of the state." That the septic tank and the fill dirt were deposited on wetlands under the jurisdiction of DEP was clearly established by Dr. Tobe in his testimony at trial and the evidence in support of it. Petitioner concedes as much in his Proposed Final Order. Environmental Harm and Human Health Exposure Wetlands whose surface area is covered by the septic tank mound have been filled. The filling has caused environmental damage. An assessment of the damage was not offered at hearing but it appears from this record that the damage is minimal. During the time the septic tank has been on Mr. Williams' property, it has never been below the flood waters of the Choctawhatchee River and therefore has not yet caused direct hazard to human health. Corrective Action and Penalty It will be expensive to remove the septic tank; the expense will be more than the cost of installation. Petitioner fears, moreover, that it will render his property worthless. There is no evidence that Petitioner's violation of Department permitting requirements was willful. He has no history of violations previous to this one. Options to continued retention of a septic system through use of a portable wheeled waste remover or use of an upland drain field on another property are either not viable or so problematic as to be impractical. DEP Modification of its Position At the outset of the hearing, DEP announced that it no longer intended to seek civil penalties of $1,500 as it had intended when the NOV was issued. All that is sought by DEP by way of corrective action or penalty is removal of the septic tank and monetary reimbursement for the cost of the investigation of $250 (see Tr. 9, lls. 17-25, and Tr. 10, lls. 1-5.)
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the application of Kenneth W. Barron for a septic tank be DENIED; however, applicant should be given thirty days from date of the final order in which to raise the tank to a height consistent with the construction permit. DONE and RECOMMENDED this 29th day of April, 1983, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 1983.
The Issue The issues are (1) whether Respondent violated Chapters 381, 386, and 489, Florida Statutes; and if so, (2) whether Respondent is subject to an administrative fine; and if so, (3) what penalty should be imposed.
Findings Of Fact At all times material to this proceeding, Petitioner was registered with Respondent as a septic tank contractor, under the authorized name of LA Ford Septic Tank. As of March 1, 1995, single compartment septic tanks must be used in series or in conjunction with a outlet filter which has been approved by Respondent. An outlet filter is designed to prevent solid wastes from reaching the drainfield of a septic system. Removal of an outlet filter will cause the premature failure of a drainfield system and create a potential sanitary nuisance. In September of 1996, Rita Haynes contracted with Petitioner for the installation of a septic system for her mobile home. The system received construction approval from the Suwannee County Health Department on September 5, 1996. At that time, the outlet filter was attached to the system. On September 12, 1996, the Suwannee County Health Department re- inspected the system. The inspector discovered that the filter was missing. Ms. Haynes did not remove the filter or authorize anyone else to do so. Removal of the outlet filter constituted theft of Ms. Haynes' property. Allegations concerning the removal of the outlet filter on Ms. Haynes' property are included in the Administrative Complaint at issue here. In September of 1996, Tracy Fernandez contracted with Petitioner to install a septic system for her mobile home. The system received construction approval from the Suwannee County Health Department on September 4, 1996. At that time, the outlet filter was present. The filter was missing when the Suwannee County Health Department re-inspected the system on September 10, 1996. Ms. Fernandez did not remove the filter or authorize anyone else to do so. Removal of the outlet filter constituted theft of Ms. Fernandez's property. Allegations concerning the removal of the outlet filter on the property of Ms. Fernandez are included in the Administrative Complaint at issue here. In July of 1996, Laura Landen contracted with Ford to install a septic system for her mobile home. Petitioner told Ms. Landen that he would save her some money by removing the outlet filter after the initial inspection. The system received construction approval from the Suwannee County Health Department on July 24, 1996. At that time, the outlet filter was attached to the septic tank. The filter was missing when the Suwannee County Health Department re-inspected the system on September 11, 1996. Ms. Landen did not remove the filter or authorize anyone else to do so. Removal of the outlet filter constituted theft of Ms. Landen's property. Allegations concerning the removal of the outlet filter on Ms. Landen's property are included in the Administrative Complaint at issue here. In October of 1996, John and Mary Phillips contracted with Petitioner to install a septic system for their home. The system received construction approval from the Columbia County Health Department on October 23, 1996. At that time, the outlet tee filter was present. Subsequently, the Phillips' daughter saw Petitioner take something out of the septic tank. The filter was missing when the Columbia County Health Department re-inspected the system on October 25, 1996. Mr. and Mrs. Phillips did not remove the filter or authorize anyone else to do so. Removal of the outlet filter constituted theft of the Phillips' property. Allegations concerning the removal of the outlet filter on the Phillips' property are included in the Administrative Complaint at issue here. In April of 1996, Marshall and Karen Merriman contracted with Petitioner to install a septic tank system on their property. The outlet filter was attached to the septic tank at the time of an initial inspection by the Suwannee County Health Department on April 22, 1996. Subsequently, Mr. Merriman saw Petitioner drive up and remove the outlet filter from the septic tank. Petitioner's removal of the outlet filter constituted theft of the Merrimans' property. A re-inspection by the Suwannee County Health Department on April 23, 1996, revealed that the outlet filter was missing. The inspector also discovered that Petitioner had not placed enough rock in the Merrimans' drainfield. Accordingly, the system did not pass final inspection. Mr. Merriman stopped payment on his check made payable to Petitioner in the amount of $909.50. Another septic tank contractor was hired to properly install the septic system on the Merrimans' property. Mr. Merriman's complaint to the Suwannee County Health Department resulted in a citation for a $1,500 fine against Petitioner for violating the following rules: (1) Rule 10D-6.0751(1)(k), Florida Administrative Code, practicing fraud or deceit; (2) Rule 10D-6.0751(1)(l)2, Florida Administrative Code, misconduct causing harm to customer; and (3) Rule 10D-6.055(3)(a), Florida Administrative Code, removal of outlet filter. Petitioner acknowledged receipt of the citation on September 24, 1996. That same day he requested an informal administrative hearing to contest the citation. The Suwannee County Health Department referred Petitioner's request for an informal hearing concerning the above-referenced citation to Respondent on September 27, 1996. Respondent then requested its District 3 Administrator to conduct the necessary proceedings and submit a Recommended Order to Respondent. The record does not reveal the disposition of Petitioner's request for an informal hearing regarding the citation. The Administrative Complaint at issue here does not contain any allegations relative to Mr. Merriman's complaint. However, since Petitioner did not dispute the material allegations contained in the citation, they may be considered as true in aggravation of any penalty imposed in the instant proceeding. In addition to the missing filters referenced above, the Columbia County Health Department found filters missing from Petitioner's installations on property owned by Richard Johnson and David Timmerman in September of 1996. The filters had been present during prior inspections of Petitioner's installations on the Johnson and Timmerman properties. The removal of the outlet filters from the Johnson and Timmerman properties constituted theft of their property. The Administrative Complaint at issue here contains allegations concerning Petitioner's removal of these outlet filters. The Suwannee County Health Department and the Columbia County Health Department had many citizen complaints about Petitioner's work. They performed a random check of all recent septic tank installations in their respective counties. They re- inspected the septic tank installations of other registered septic tank contractors as well as Petitioner's installations. They found missing outlet filters only in Petitioner's installations. The two health departments began spray painting a spot on filters during initial inspections to stop anyone from using the filters at multiple installations and inspections. Petitioner habitually, and as a routine business practice, removed the outlet filter from the septic tanks he installed after the initial inspection but before he covered the tank with dirt. He was responsible for stealing the required outlet filters on the property of Rita Haynes, Tracy Fernandez, Laura Landen, John and Mary Phillips, David Timmerman, and Richard Johnson. In each of these instances, Petitioner acted fraudulently and deceitfully. His gross misconduct created a potential sanitary nuisance and caused his customers monetary harm. An outlet tee filter costs approximately $50. Petitioner was able to underbid his competitors by removing the filter from an inspected system and using the same filter on another installation. From time to time, septic tanks need to be pumped out to prevent the flow of sludge and solids from the tank into the drainfield. Sludge and solids will clog the drainfield causing the system to fail. A failed system is expensive to repair or replace. A failed system also creates a public health hazard. When a septic tank is pumped out, all of the sludge should be removed. After the tank is empty, it should be washed down with a hose and inspected for cracks. If the tank is in good condition, a septic tank contractor is supposed to sign an inspection slip. In September of 1996, Allen Donaway contracted with Petitioner to pump out his septic tank and install a new drainfield. Petitioner's employees arrived at Mr. Donaway's residence on or about September 18, 1996, to pump out the tank. They claimed they had completed the job even though they left 12 or more inches of sludge at the bottom of the tank. Despite Mr. Dunaway's demands, Petitioner's employees refused to pump any more septage from the tank. When Mr. Donaway contacted Petitioner to complain that his employees had only partially pumped the tank, Petitioner demanded immediate payment. Mr. Donaway gave Petitioner a check for $135 which Petitioner cashed immediately. Mr. Donaway had to pay another registered septic tank contractor to pump the rest of the sludge from the tank and to install the new drainfield. Allegations concerning Petitioner's failure to completely pump out the sludge from Mr. Donaway's septic tank are contained in the Administrative Complaint at issue here. In a Letter of Warning dated July 15, 1996, the Columbia County Health Department informed Petitioner that Debbie Gregory had filed a complaint against him for an unsatisfactory septic pump-out. This letter requested a response to an allegation that Petitioner, without good cause, had abandoned a project which he was under a contractual obligation to perform in violation of Rule 10D-6.0751(1)(g), Florida Administrative Code. Petitioner was advised that he could avoid the imposition of a $500 fine or a disciplinary action against his contractor's license by correcting the problem within five working days. As of August 6, 1996, Petitioner had not responded to the health department's inquiry. He made no attempt to correct the problem by completely removing the solids and greases from Ms. Gregory's septic tank. Petitioner was advised by letter that Respondent intended to initiate enforcement procedures. Allegations concerning the unsatisfactory septic pump-out on Debbie Gregory's property were included in the Administrative Complaint at issue here. Petitioner's failure to completely pump out all of the sludge from the septic tanks of Allan Donaway and Debbie Gregory created a potential health hazard. Additionally, his gross misconduct caused these customers monetary harm. They had to pay another septic tank contractor to complete Petitioner's work so that they could avoid the expense of prematurely replacing their drainfields. In August of 1996, Petitioner installed an onsite sewage treatment and disposal system on the property of Johnny Howard, Jr. The Suwannee County Health Department subsequently determined that Petitioner had installed the septic system on the wrong side of the Howard residence with the drainfield extending across the property line of the adjoining property. The inspector also discovered that the septic tank was installed next to a dryer vent opening in the Howard residence. When Petitioner refused to correct the problems at the Howard residence, the county health unit paid another septic tank contractor to correct the septic system. Respondent then filed an Administrative Complaint seeking revocation of Petitioner's septic tank contractor's registration and imposition of an administrative fine. On July 22, 1997, Respondent entered a Final Order in Department of Health Case Number 97-154 which revoked Petitioner's septic system contractor's registration and imposed a fine in the amount of $1000 due to the improper installation of the septic system at the Howard residence. This Final Order approved and adopted a Recommended Order in DOAH Case Number 96-5543, finding that Respondent was guilty of violating Rule 10D-6.0751(1)(b)2, Florida Administrative Code, for completing contracted work at the Howard residence without a permit and Rule 10D-6.0751(1)(l)2, Florida Administrative Code, gross misconduct causing monetary harm. Allegations concerning Petitioner's improper installation of the septic system on Mr. Howard's property were not contained in the instant Administrative Complaint. However, they may be considered in aggravation of any administrative fine imposed in the instant case. In the course of investigating citizen complaints against Petitioner, Respondent learned that Petitioner was advertising his business using the name of Ford Septic Tank and/or Ford Septic Tank Service(s) on his trucks and in the Yellow Pages. Petitioner's authorized business name is LA Ford Septic Tank. Respondent sent Petitioner a Letter of Warning dated August 27, 1996, advising him that advertising his services in a form other than his authorized business name violated part III of Chapter 489, Florida Statutes, and Rule 10D-6.0751(1)(a), Florida Administrative Code. The letter informed Petitioner that continued violations could result in an administrative fine of $500 per day. The letter stated that the violations might be cited in a future complaint based on repeat violations. Petitioner did not exercise his option to request an administrative hearing to contest the allegations contained in the Letter of Warning. On November 20, 1996, employees of the Suwannee County Health Department took photographs of Petitioner's business sign using an unauthorized name on a county road in Suwannee County. On November 22, the same employees took photographs of Petitioner's trucks bearing an unauthorized name. Petitioner's persistence in using an unauthorized business name was especially egregious because other septic tank contractors with the last name of Ford, who were not affiliated with Petitioner, worked in the same commercial and residential areas. For example, Mr. Merriman contracted with Wilbur Ford to correct the septic system that Petitioner improperly installed. North Florida Septic Tank was owned by Robert and Donna Ford. Their Yellow Page advertisement specifically disclaimed any affiliation with Petitioner. The instant Administrative Complaint contains allegations concerning Petitioner's use of an unauthorized name to advertise his business. Petitioner filed an application to become a registered septic tank contractor on August 6, 1991. Petitioner was convicted of grand theft and stopping payment on a check with intent to defraud on October 28, 1991, in the circuit court of Hernando County, Florida. Petitioner was convicted of these two felonies before he took the septic tank contractor's examination in November of 1991. Petitioner did not inform Respondent about the two convictions. Petitioner obtained his septic tank registration through fraud or misrepresentation by failing to disclose his felony convictions. The instant Administrative Complaint contains allegations concerning Petitioner's failure to disclose the two felony convictions. Respondent's efforts to persuade Petitioner to correct his improper installations and/or unsatisfactory pump-outs were not successful. He made no attempt to replace the filters he removed. He did not heed Respondent's warnings regarding his use of an unauthorized business name. He has failed to make any effort to rehabilitate himself or to mitigate the effects of his behavior despite the following: (1) the severity of his offenses; (2) the danger to the public that he created; (3) the number of times that he repeated the offenses; (4) the number of complaints filed against him; and (5) the monetary harm he caused his customers.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent enter a Final Order imposing an administrative fine in the amount of $7,000 against Petitioner. DONE AND ENTERED this 5th day of September, 1997, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 5th day of September, 1997. COPIES FURNISHED: Thomas D. Koch, Esquire Department of Health Building 6, Room 133 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Larry A. Ford 25295 CR 137 O'Brien, Florida 32071 Angela T. Hall, Agency Clerk Department of Health Building 6 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Pete Peterson, Esquire Department of Health Building 6, Room 102-E Tallahassee, Florida 32399-0700 James Howell, Secretary Department of Health Building 6, Room 306 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner violated the provisions of Chapter 381, Florida Statutes, and Chapter 64E-6, Florida Administrative Code, referenced herein, by allegedly illegally connecting a second dwelling to an existing, approved septic system.
Findings Of Fact On January 17, 2002, the Petitioner was given a written Notice of Violation and advised that an illegal sewer connection from a new or second mobile home on her property to her existing sewer system, serving her primary residence would have to be disconnected. It was an illegal second connection on a single, permitted sanitary sewer system. The second home was not occupied and could not be legally occupied until the proper sewer connection and relevant permitting was obtained. On January 30, 2002, the inspector again visited the premises and determined the illegal connection to still exist and the Petitioner was then advised that the illegal connection would have to be disconnected. On February 28, 2002, the inspector returned and found that the illegal connection had been restored to the existing system. He observed a person hurriedly disconnect the system as he approached. The relevant pipe joint had been left un-glued so that it could be readily connected or disconnected. He again notified the Petitioner, in person, that the illegal connection would have to be disconnected. The Respondent cited the Petitioner for the illegally connected sewer system and seeks to impose a $500.00 fine. The Petitioner elected to formally dispute the position of the Respondent agency and pursued a formal hearing to contest the allegations. The Petitioner failed to actually appear at hearing and contest the evidence adduced by the Respondent agency. That evidence is credible and is accepted as unrefuted and supportive of the above Findings of Fact.
Recommendation RECOMMENDED that a final order be entered by the State of Florida Department of Health denying the Petition of Shirley Davis in its entirety and that a final order be entered imposing a $500.00, fine for the violations described in the above Findings of Fact and Conclusions of Law. DONE AND ENTERED this 16th day of September, 2002, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 Clerk of the Division of Administrative Hearings this 16th day of September, 2002. COPIES FURNISHED: Shirley Davis 140 West Putnam Grove Road Oak Hill, Florida 32759 John D. Lacko, Esquire Department of Health 420 Fentress Boulevard Daytona Beach, Florida 32114 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
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
Findings Of Fact Rayco Properties, Inc. d/b/a Woody's Septic Tank Service is a company authorized by the State of Florida to perform septic tank construction and repair services. All of its contractors and other employees have practiced in the septic system business for many years. The registered contractor, who is the company qualifier, is the person responsible for all contracting services performed by the septic company and for compliance with the applicable regulatory statutes and rules. Donald P. Roberts is a registered septic tank contractor for Woody's Septic Tank Service. At all times material to these causes, he was the company's sole qualifier. At all times material, he was responsible for obtaining all necessary permits for the company. DHRS is the agency responsible for septic contractor registration, septic tank company authorization, and the enforcement of the statutes and rules pertaining to registration and authorization pursuant to Chapters 381 and 489, Part III, F.S. and Chapter 10D-6 F.A.C. This includes the authority to cite, fine, and to suspend or revoke registrations and authorizations. Donald P. Roberts has never previously been cited by the agency. Before 1991, permits were not required for repairs to septic systems. However, at all times material to these causes, repair, installation, and abandonment permits had to be obtained from DHRS, usually through its local units in the respective county public health unit offices. These offices take septic system permit applications, perform site evaluations, issue permits, and perform final inspections. At all times material, no permits were required for replacing dosing pumps, fixing cracked dosing tanks, maintenance of existing systems or service of existing systems. No permits were necessary for replacing a D (or distribution) box, which is a non-mechanical, non-electrical item that serves as a distribution point for pipes. At all times material, the act of installing a dosing tank was a repair that required a permit. At all times material, the act of abandoning a septic tank (pumping it out, punching a hole in it, filling it with dirt and covering it or hauling it away) also required a permit. The standard operating procedure for obtaining a septic system permit is as follows: 1) the contractor or landowner submits a permit application with a plot/site plan to the agency's county office; 2) the agency conducts a site evaluation, sometimes including soil borings and/or a percolation test; 3) the agency reviews and issues the permit; 4) the contractor performs the permitted work; 5) the contractor calls the agency for inspection before covering up with earth; 6) agency inspection occurs and the project is approved OR the contractor is told of a violation, perhaps cited therefor, and must fix any problems pointed out by the agency inspector. If there is a violation to be corrected, the contractor is supposed to call DHRS for re-inspections until the problem is solved and the job is approved by the agency. Some jobs are so routine that some county offices do not do a site inspection before septic system work is done or reinspect after septic system work is done. This appears to be discretionary within the local office. However, if a violation is noted, the problem must be corrected and reinspected or negotiated out. See Finding of Fact 15. An approved plot/site plan becomes part of the permit when the permit is issued, and contractors are expected to adhere to the combined items. Permits state the requirements for the project or job. If a contractor experiences problems on a particular job, such as a well that does not show up on the plot/site plan, he is expected to contact the local public health unit to try to resolve the issue. "Resolution" has traditionally been to revise the plot/site plan or modify the permit. In past years, this has been an informal procedure, sometimes accomplished by telephone calls from the field, sometimes by negotiations in the public health office. All but one of the alleged violations (the Mahalik property) in these causes arose after DHRS decided to strictly require contractors to stop work and apply for and receive a formal modification of the permit or a new permit when unforeseen problems were encountered on any particular job. This procedure was codified in new Rule 60D-6.044(5) F.A.C., effective January 3, 1995. At approximately the same time, DHRS also adopted a policy of forbidding its personnel to discuss such field problems with, or to issue permits to, anyone other than the qualifying registered contractor for each authorized septic tank company. The agency has pointed to no specific statute or rule which provides that only a qualifying registered contractor may pull a DHRS permit or which forbids DHRS personnel discussing modifying a permit with any other company employees. However, it is clear that only registered contractors may pull permits. Two exceptions are recognized: A landowner or homeowner may pull a permit for septic system work with septic system contractors as their "agents"; and in locations where DHRS has an agreement with a city or county plumbing permit office, DHRS acknowledges the local plumbing permits and does not require owners or plumbers to also pull a separate septic system permit from DHRS's local public health unit. I. Case No. 95-5973 Deltona Hills Golf & Country Club Respondents applied for a permit to do repairs to a septic system for Deltona Golf & Country Club on August 7, 1995. A dosing tank is a mechanical device which lifts wastewater to a drainfield. DHRS issued a permit to Respondent to replace the dosing tank with a 900 gallon tank. The original tank being replaced was a 50 gallon tank. Respondents properly abandoned the existing 50 gallon dosing tank and installed the high water alarm, but they installed a 750 gallon tank, contrary to the express terms of the permit. Travis Vickers, then DHRS's Environmental Specialist in the Volusia County Health Unit, ultimately cited Respondents for not complying with the permit and for not calling for re-inspection after the discrepancy in tank size was brought to their attention. Respondents' reason for installing the 750 gallon tank was that they had used a 3:1 ratio to the drainfield which is codified in the agency rules. Thereby, they determined that a 714 gallon tank would be the ideal size tank to install. Then they simply installed the next largest size tank without reference to the permit. Respondents' employees also maintained that when Mr. Vickers notified them they had installed the wrong size tank, they contacted someone else in the local county public health unit and that person orally approved the smaller size tank they had already installed. Therefore, they did not call Mr. Vickers again for re-inspection. The person who supposedly gave the oral authorization was not called to testify, and no written permit modifications or amendment were made, as required by the agency rules then in effect. In this light, Respondents' excuses for failing to install the 900 gallon tank according to permit specifications and failure to call for a re-inspection are not credible. Therefore, it is clear that Respondents installed a smaller tank contrary to the permit specifications and received no modification of permit as required by agency rules in effect at the material time. In making the foregoing findings of fact, I have not overlooked the fact that there are several ways to calculate the appropriate size of a dosing tank; that during his testimony, Mr. Vickers, himself, demonstrated at least two ways of calculating; or that Mr. Vickers' 900 gallon figure on the permit arose in part from considerations in addition to the published agency rules, which additional considerations were the result of workshops with septic system contractors and DHRS personnel which had been reduced to written form in a document nicknamed "the memo from hell," to which Respondent had no access in August 1995. However, that memorandum was designed to help DHRS personnel interpret the code and issue the permit. Its use by agency personnel in issuing a permit does not absolve the contractor of the responsibility to install the system according to the permit as issued, nor does it allow the contractor to unilaterally recalculate tank capacity at will on some other basis. At Deltona Golf & Country Club, Respondents simply did not follow the permit requirements or replace the wrong size tank and call for re-inspection. The fact that Respondents were able to demonstrate alternative methodologies of computation does not change those salient facts. Case No. 95-5973 Pine Street, Enterprise Florida a/k/a the Gleasons' Job Respondents applied for a repair permit for 450 Pine Street, Enterprise, Florida. Mr. and Mrs. Gleason, referred to by some witnesses as "the homeowners," were actually leasing the property. DHRS issued the permit to Respondents on October 3, 1995. It was valid for 90 days. The repair job occurred during a rainy period when the water table was high. Respondents had to drill wellpoints to lower the water table. Further, they were hindered by rain, mud, muck, and debris on the property. A two days' job turned into 15 days' work. Respondents finally installed the drainfield in a slightly different location than the approved location shown on the plot/site plan. Although contrary to the permit, Respondents' installation met minimum 10D-6 F.A.C. requirements, including those for setbacks. Respondents' employees testified that they chose to place the drainfield in an unpermitted location so as accommodate the Gleasons' urgent need for a septic system, because they considered the different location necessary to comply with Chapter 10D-6 F.A.C.'s setback requirements, and because the northeast corner where the drainfield had been permitted was covered with too much muck, and too many stumps, old tires, and pieces of tin and fencing to proceed there. In the experience of Respondent Donald P. Roberts, and Willie Suggs and Jerry Thompson, who also are registered septic contractors, drainfields are not always installed according to the plot/site plan, but the location may be negotiated with DHRS prior to inspection. Respondents claimed to have received oral authorization to relocate the drainage field from an official in the local public health unit, but that person did not testify. Also, Respondents admitted they never applied for a permit modification in writing or obtained an amended permit, as required after January 3, 1995. Therefore, the concept of an oral permit modification is not credible. See, Findings of Fact 15-16. Mr. Vickers inspected the work performed by Respondents on October 17, 1995. He arrived five hours late, creating bad feelings in Respondents. On October 18, 1995, Mr. Vickers notified Respondents that they had located the drainfield in a different area than the area shown on the plot/site plan and approved by the permit. After the violation notice was issued, Mr. Vickers refused to talk to anyone associated with the Respondent company except Donald P. Roberts, the qualified registered contractor, thereby creating further bad feelings in Respondents. To put it mildly, communication between the parties broke down completely. The Gleasons had sent a demand that Respondents complete the Pine Street project by October 25, 1995, but then, approximately October 18, 1995, they hired Acme Septic to complete the project. On October 19, 1995, Acme pulled a DHRS permit for the same repair project in which Respondents were mired at the Pine Street location. Acme then installed the drainfield in the same general area as shown on Respondents' permit's original plot/site plan. In doing so, Acme used Respondents' materials and built on their prior work. Acme successfully installed the drainfield as required by the permit and all agency rules. Under the circumstances, Respondents felt they had no duty to call Mr. Vickers for re-inspection of their discarded work. Despite considerable use of the word "abandonment," Respondents technically remain charged only with failure to comply with the permit and failure to call for re-inspection on the Pine Street Job. Case No. 96-0573 Avocado Street a/k/a The Hale Project The Avocado Street Project was a private residence to which Respondents were originally called to do repair work on a septic system. Many septic repairs do not require a permit. See Findings of Fact 8- Also, repair permits are not required where a problem is discovered on a larger project which has already been permitted, but if contractors discover a problem during the course of an unpermitted repair, which problem would otherwise require its own permit, contractors were expected, post-January 3, 1995, to stop work and obtain an (amended) permit. See Rule 10D-6.044(5) F.A.C. and Finding of Fact 16. Replacement of "like kind" parts of a dosing tank such as a pump, do not require a permit. Repair of a crack in a dosing or septic tank does not require a permit. Replacement of an entire dosing tank or septic tank unless there is already an umbrella permit does require a new permit. See above, Findings of Fact 9 and 10. It is not standard practice for DHRS to inspect/evaluate the site before a replacement permit or an abandonment permit is issued. Such inspections are discretionary in practice and such permits are often issued on the spot at the time of application. See Findings of Fact 12 and 13. At Avocado Street, Respondents pumped out the Hales' septic tank and discovered that the dosing pump was not working. Respondents replaced the pump, but also discovered that the existing dosing tank was inadequate. Due to the inadequacy of the existing dosing tank, dosing pumps repeatedly had burned up. Respondents sent an employee to pull a DHRS permit for replacement of the existing dosing tank, which permit they felt could be pulled immediately. Then they proceeded, without permit in hand, to replace the dosing pump and install a larger dosing tank. Andrew Trapp, DHRS' Environmental Health Specialist in the Orange City office, became aware of the Avocado Street situation only because of a phone call from an employee of the Respondent company asking if a permit had ever been issued. Because a permit never had been issued, Trapp's suspicion was aroused. Therefore, he performed the discretionary onsite inspection and found the new dosing tank. The Avocado Street work of Respondents did not represent a public nuisance. The agency intentionally and violationally issued an after-the-fact permit to Mr. Hale with an employee of Respondent as Mr. Hale's agent on August 23-24, 1995. Any other suggested dates for this permit application are rejected as computer error. The project was reinspected by agency personnel who oversaw Respondents' employees repair a tank leak. DHRS finally approved the whole project. II. Case 96-0573 Clyde Morris Boulevard a/k/a The IWS or BFI Job The Clyde Morris Boulevard property was leased by IWS/BFI from the City of Daytona Beach. Mastercraft Plumbing was the prime contractor responsible for connecting an existing septic system on the Clyde Morris Boulevard property to a public sewer system. Mastercraft hired Respondents to handle the abandonment of a septic tank which Mastercraft was replacing. Abandonment is more fully described above in Finding of Fact 10. Although DHRS presented some hearsay to the effect that Mastercraft expected Respondents to obtain the DHRS abandonment permit, there is no direct evidence for such hearsay to support or explain. Contrary evidence was presented that persons within the IWS/BFI hierarchies had led Respondents to believe that Mastercraft had pulled the necessary DHRS permit or an umbrella plumbing permit which would cover Respondents' abandonment activities. See, Finding of Fact 19. However, there is no direct, competent, or conclusive evidence one way or the other. Respondents' actual abandonment work was completed on or about April 10, 1995. Respondents charged Mastercraft for the work but not for pulling any abandonment permit from DHRS, because Respondents did not pull any such permit. Once Respondents discovered that Mastercraft had not pulled the DHRS septic permit, Jerry Thompson, as an employee of Respondent company, pulled a permit as Mastercraft's agent on May 9, 1995. As previously stated, pre- inspection is not standard practice and DHRS abandonment permits are often issued in a single day. II. Case No. 96-0573 Bridal (or Briddle) Path Lane a/k/a Oakridge Acres a/k/a Mrs. Mahalik's Property Respondents were called to repair a septic tank at Mrs. Mahalik's home on Bridal Path Lane in October 1994. Most of the work did not require DHRS permits. See Findings of Fact 8-10. Respondents charged Mrs. Mahalik, among other things, for installing a new 300 gallon dosing tank. Approximately four months later, in February 1995, Mrs. Mahalik telephoned the Flagler County Public Health Unit and asked whether Respondents' repair had been permitted. DHRS had no record of it. An after-the-fact application was made for the job and a permit for the Mahalik job was issued in March 1995 to Mrs. Mahalik with Respondent company as her agent. Replacement of a dosing tank required a permit under Rule 10D-6.043 F.A.C. in 1994 but Rule 10D-6.044(5) F.A.C., requiring the stoppage of work while applying for an amended permit, did not exist until January 3, 1995.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order finding Respondents Donald P. Roberts and Rayco Properties, Inc. d/b/a Woody's Septic Tank Service guilty as set out in the Conclusions of Law and assessing against both Donald P. Roberts and the company, jointly and severally a total fine of $4,450 and suspending both for 120 days from the date of the final order. DONE and ENTERED this 1st day of November, 1996, at Tallahassee, Florida. ELLA JANE P. DAVIS 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 1st day of November, 1996.
Findings Of Fact Respondent is registered with Petitioner for performing septic tank contracting services. In early 1991, Mr. Dennis Scott purchased a single family residence at 19169 Acorn Road in Ft. Myers. He purchased it as a rental property. About a year later, he began having problems with the septic tank system. He had the tank pumped out, but the problem returned a short time later. Mr. Scott told his maintenance man to contract with someone to fix the septic tank system. The maintenance man contacted Respondent. They agreed that Respondent would repair the system for $925. The record is silent as to specifically what the maintenance man told Respondent or what he told the maintenance man. In any event, Respondent and Mr. Scott did not converse. Respondent enlarged the existing drainfield, although the record does not indicate that he did so because he was asked to do so by the maintenance man or because Respondent thought that this repair would fix the problem. On May 28, 1992, Respondent and a team of employees appeared at the Acorn Road address to repair the septic tank system. Respondent left the site shortly after the men began work. Mr. Scott had nothing to do with the hiring of Respondent or even with paying him. Because Mr. Scott was unavailable, a friend wrote Respondent a check when the job was finished, and Mr. Scott later repaid the friend. On August 25, 1992, the system backed up again. Mr. Scott was not alarmed because of recent heavy rains. When the system backed up again a month later, Mr. Scott called Respondent, but could not get a call returned at first. Eventually, someone at Respondent's business said that he would come out and take a look at the system. In early December, 1992, the system backed up again and no one had come out to look at it from Respondent's business. At the request of Mr. Scott, another contractor visited the site and, on December 14, 1992, dug up the drainfield. The original drainfield had been installed improperly so as to run slightly uphill. This caused the system to operate inefficiently, although hydraulic pressure was evidently strong enough to draw the sewage through the drainfield. The record is unclear whether the extension installed by Respondent also ran uphill or whether Respondent improperly designed the extension. Mr. Scott and the second contractor testified that the extension ran uphill. However, one of Petitioner's inspectors inspected the drainfield addition before it was covered and certified that it was acceptable, which meant that it did not run uphill. The source of conflicting evidence, inasmuch as it comes from an employee of Petitioner, undermines Petitioner's case. The record is equally deficient to hold Respondent liable for poor design of the Acorn Road drainfield. There is no indication of what Mr. Scott wanted or, more importantly, what the maintenance man told Respondent. In any event, the evidence does not establish that Respondent installed an uphill drainfield. In early 1994, a house was listed for sale at 817 Gleason Parkway in Cape Coral. The listing agent informed the agent who had found a prospective buyer that there might be a problem with the septic tank system. The agent called Respondent's business and asked for a preclosing inspection of the septic tank system. The parties postponed the closing until the inspection could be completed and any necessary funds reserved to fix the system. The drainfield for the septic tank system at 817 Gleason Parkway was elevated due to the relatively high water table in the area. Even so, the system was poorly designed because the drainfield was too low and too small, based upon applicable requirements of law at the time of the original construction of the system and its renovation five years ago. Respondent was familiar with the system. He had reconstructed the system in 1990, although he did not redesign the new system, and had maintained the system since. He was aware that the tank had an automatic alarm that sounded when the fluid level became too high. In fact, Respondent conducted a cursory inspection due to his reliance on the automatic alarm in the tank, the imminent availability of centralized sewer service in the area, and possibly his unwillingness to disappoint a real estate agent by jeopardizing a pending sale. Among other omissions was his failure to probe the drainfield to determine its condition. Had Respondent conducted a competent inspection, he would have found that the stones in the drainfield were greasy, indicative of a failing system. Much of the time sewage water stagnated beside the drainfield mound. If pooled water were not present at the time of his inspection, the tall dollarweed growing on the mound should have alerted him to the prevailing damp conditions. Additionally, Respondent should have noticed lawnmower tracks through the typically soaked areas around the drainfield, as well as the thick grass that was uncut due to the soaked ground under it. Although water may not have been erupting from the drainfield mound at the time of Respondent's inspection, a reasonably close examination of the area would have revealed a small hole where sewage had erupted in the recent past from the mound. Instead, Respondent certified on April 4, 1994, that the "septic tank was in good working order." Respondent had been contacted to inspect the septic tank system, including the drainfield. Respondent was aware of the scope of his assignment, and his certification implied that the entire system was in good working order. Within two weeks after Respondent's certification, the system failed completely. Petitioner ordered the new owner to incur substantial expenses to repair the onsite system until he could tie into centralized sewer services.
Recommendation It is hereby RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order imposing against Respondent a $500 administrative fine and suspending his license for 90 days. ENTERED on March 30, 1995, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on March 30, 1995. APPENDIX Rulings on Petitioner's Proposed Findings 1-2: adopted or adopted in substance. 3: rejected as recitation of evidence and subordinate. 4-5: adopted or adopted in substance. 6-15: rejected as recitation of evidence and subordinate. 16: adopted or adopted in substance. 17-19: adopted or adopted in substance. 20: rejected as unsupported by the appropriate weight of the evidence. Rulings on Respondent's Proposed Findings 1-2: adopted or adopted in substance. 3-4: rejected as unsupported by the appropriate weight of the evidence, recitation of evidence, and subordinate. 5: rejected as irrelevant. 6: rejected as unsupported by the appropriate weight of the evidence, recitation of evidence, and subordinate. 7-9: rejected as subordinate and irrelevant. 10: rejected as irrelevant. The rule speaks of harm to any "person," not to a customer or other person in privity with the contractor. 11: rejected as unsupported by the appropriate weight of the evidence. 12: adopted or adopted in substance, but Petitioner's indirect responsibility does not excuse Respondent's grossly incompetent inspection of the system. 13-14: adopted or adopted in substance. 15: rejected as unnecessary. 16-17: rejected as subordinate. COPIES FURNISHED: Susan Mastin Scott, Senior Attorney Department of Health and Rehabilitative Services P.O. Box 60085 Ft. Myers, FL 33906 Thomas B. Hart Humphrey & Knott, P.A. P.O. Box 2449 Ft. Myers, FL 33902-2449 Kim Tucker, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Robert L. Powell Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
Findings Of Fact Petitioner Jerry L. Seymour owns lot 220A in Pine Tree Estates, a parcel of slightly over one acre, approximately 140 feet by 330 feet, situated in Broward County, Florida. Petitioner's lot is substantially overgrown with vegetation, including swamp cabbage, myrtle, sawgrass, ferns, palmetto and cypress. The soil consists of cap rock, muck, sandy loam, humus and sand. On June 13, 1977, the day before the final hearing, standing water a few inches deep covered major portions of lot 220A, including the southern one-third and eastern edge of the lot. In short, lot 220A lies in a low, swampy area. The ground water level varies directly with rainfall. On June 13, 1977, the ground water was not quite as high as the crown of the road adjoining the lot. Rainfall in the area on June 12 or 13, 1977, if any, was not extraordinary. Historically, annual rainfall in Broward County has averaged 60 inches, but annual rainfall since 1970 has been below this average. According to petitioner's testimony, the water table has dropped a foot in the past year. After Petitioner's initial application for a permit for installation of a septic tank on lot 220A had been turned down, he filed an amended application in which he proposed to remove impervious materials from an area approximately 130 feet by 140 feet and to refill the excavation, to a height of 42 inches above the adjacent road, with soil of a kind that would facilitate drainage. In his letter denying petitioner's amended application, Mr. Hillyer, on behalf of respondent, wrote: Inasmuch as the lot in question does not comply with the above referenced code requirements we can not issue a septic tank permit at this time. However, if Mr. Seymour wishes to remove the muck in the area of the drainfield and fill the property as outlined on the survey submitted to the 42" above the crown of the road mentioned in your letter, this department will be in a position to re-evaluate this property as to whether or not a septic tank permit can be issued. Petitioner's amended application also indicated that a "Chromaglass Model CA-900 Aerobic Treatment Unit" together with a chlorinator and chlorine contact chamber would be installed, instead of a conventional septic tank; and that the installation would be in an absorption field of at least 300 square fee, and at a distance of at least 125 feet from the well petitioner proposed to drill on the lot. In addition, petitioner proposed to dredge a swale as a means of draining lot 220A. Petitioner also owns lot 220B in Pine Tree Estates, which lies immediately west of lot 220A, and shares a north-south boundary with lot 220A. The lots are about the same size and about equally swampy, although the soil in lot 220B is slightly less sandy. When petitioner's application for a permit to place a similar aerobic treatment unit on lot 220B was denied, he petitioned for an administrative hearing. The recommended order which resulted was accepted in evidence at the final hearing in this matter. That recommended order concludes: Wherefore, the Hearing Officer finds that if the planned drain field is installed on a 100' x 140' pad filled an additional 23 inches above its current pad level it will be 42 inches from the October, 1974 high water table measure, meeting the criteria established by law and I would recommend its approval. Jerry Seymour v. Broward County Health Department, State of Florida, No. 75-1059 (DOAH; October 10, 1975) No final order in Case No. 75-1059 was offered in evidence at the hearing in the present case.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent deny petitioner's application for a permit for construction of a septic tank, with leave to petitioner to refile an application if changed circumstances warrant. DONE and ENTERED this 2nd day of August, 1977, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Christopher B. Knox, Esquire Suite 302A, Medical Towers 303 Southeast 17th Street Ft. Lauderdale, Florida 33316 Mr. Howard L. Braynon, Esquire 5920 Arlington Expressway Post Office Box 241F Jacksonville, Florida 32231
