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CONSTRUCTION INDUSTRY LICENSING BOARD vs. MARK ANSLEY, 88-002746 (1988)
Division of Administrative Hearings, Florida Number: 88-002746 Latest Update: Dec. 06, 1988

The Issue Whether Respondent should be disciplined for violating Sections 489.129(1)(h) and (m), Florida Statutes?

Findings Of Fact At all times relevant, Respondent was licensed as a certified building contractor in the State of Florida, holding license number CB C033338, and doing business under the name of Mark V. Ansley Building Contractors. On April 17, 1987, Respondent entered into a Construction Agreement with Mr. Kersey. The Agreement called for Respondent to build a house containing two bedrooms, one and one- half baths and a one-car garage in exchange for $31,860. Under the Agreement, construction was to begin on April 21, 1988. However, due to a problem with the lot on which the house was going to be built, there were delays. Mr. Kersey then decided to build the house on a lot across the street from the original lot. The lot was cleared on May 1, 1987, by Mr. Morris Snell. The septic tank permit was issued on June 17, 1987. The construction permit was issued on June 22, 1987. Construction of the residence began a week later and the slab was poured the second week of July, 1987. After the slab was poured, Mr. Kersey determined that the foundation was approximately 890 square feet instead of the 944 contracted for. After some negotiations between Mr. Kersey and Respondent, they agreed that Respondent would add a Florida room to make up the difference in square footage. The foundation for the Florida room was built four inches lower than the main house. There were problems with the roof trusses and with the framing which were corrected by Respondent. The company which manufactured the roof trusses sent the wrong trusses to the house. Mr. Kersey, who was present at the house when the trusses were being installed, noticed they were the wrong ones and stopped work on the house. After Respondent was informed, he notified the truss company and the correct trusses were delivered approximately ten days later and installed. The initial framing of the house was deficient and did not pass inspection. Respondent fired the persons who had done the framing, fixed the problems, and the framing passed inspection. Also, the persons framing the house left out a closet in one room of the house, but upon being informed, this was corrected. By this time, Mr. Kersey had made two payments to Respondent pursuant to their agreement. The first payment was for $3,100 and the second for $4,000. After the house was framed, Respondent expected to be out of town for two to three weeks. Respondent told Mr. Kersey that he was having problems collecting money from other jobs and that he would be unable to meet the construction schedule unless he had the money to pay for the necessary supplies right on the spot rather than waiting until Mr. Kersey returned. Mr. Kersey gave Respondent $15,000 in advance to allow Respondent to continue working on the house while he was gone. At this same time, July 18, 1987, Respondent and Mr. Kersey agreed that the house should be completed by September 15, 1988. Mr. Kersey returned from his trip in about 10 days and noticed that nothing had been done on the house. Mr. Kersey was unable to contact Respondent for two weeks, even though he wrote Respondent a letter and left messages with Respondent's secretary and on a telephone answering machine. During this period of time, Mr. Kersey hired an attorney. On August 1, 1987, Mr. Kersey finally spoke with Respondent about the lack of progress on the house. The Respondent told Mr. Kersey that it had rained almost constantly for 10 days and needed materials could not be delivered to the house. Respondent continued to do work on the house. Respondent contracted with a company to deliver and install windows. The window company in turn hired a subcontractor to install the windows. The subcontractor installed the windows improperly and eight of the sixteen windows had to be replaced by someone other than Respondent. Mr. Kersey agreed with Respondent that he would pay $1300, in addition to the contract price of the house, for the installation of a septic tank and drain field at the original location for the house. Respondent obtained the septic tank permit and arranged to have Mr. Carver of Carver's Septic Tank install the septic tank at the new location. Mr. Carver's estimate for the job was $1,810 and he agreed to do the job on the assurance by Mr. Kersey that he would pay for the job. Mr. Carver placed the septic tank and drain field at a location different from that which had been requested by Mr. Kersey and different from that shown on the survey map on file with the permit application at the Department of Health and Rehabilitative Services. In preparing the ground for the septic tank, Mr. Carver dug up the roots of an existing oak tree to a depth of from three to six feet around three-fourths of the tree's circumference. Also, the septic tank was located in close proximity to a three- inch free-flowing artesian well. The Department of Health and Rehabilitative Services initially gave its approval for the septic tank to be covered up. But after Mr. Kersey met with the Department's staff, the department disapproved the septic tank because it was located too close to the well. Mr. Carver did not finish work on the septic tank because he was not paid for the work he had done. In order to obtain approval for the septic tank, Mr. Kersey had to "abandon" the artesian well. This was accomplished by pouring 12 sacks of concrete into the well and pipe to seal it off. This job cost Mr. Kersey $840.00. Mr. Kersey also hired another company to complete the septic tank and drain field, and had to pay $700 to move the drain field. Sometime in August and September, Mr. Kersey began receiving information that some of the suppliers and subcontractors for the house had not been paid by Respondent and that liens would be placed on the property if they were not paid. Eventually, three companies filed claims of lien against the property. Sometime in September or October, Mr. Kersey posted signs on the house which stated that no further work was to be done on the house. When Respondent contacted Mr. Kersey, he was referred to Mr. Kersey's attorney. Respondent indicated to the attorney that he wanted to complete the job, and he was allowed to continue working on the job. During the next two weeks Respondent had the drywall and cabinets installed, put in the driveway, and painted. However, at a subsequent meeting with Mr. Kersey and his attorney, Mr. Kersey was not satisfied with the way the house was being built and stated he did not want Respondent on the job any more. Respondent did no more work on the house. On November 13, 1987, Mr. Kersey and Respondent met for the purpose of determining which subcontractors and suppliers had not been paid. At that time Respondent indicated that five subcontractors and suppliers had not been paid and that they were owed a total of $12,199. However, there were other subcontractors who had not been paid. In May, 1988, Mr. Kersey hired another contractor to complete the house. Mr. Kersey initially agreed to pay $9,400 for the work of this contractor, but ended up paying $14,000 because the contractor had to do work which was not included in the initial contract. Part of the work done by this contractor consisted of fixing or replacing a six-foot sliding glass door, three interior doors, and one exterior door which had been installed under Respondent's supervision. As mentioned in Findings of Fact 26, supra, three liens were placed on the property by materials suppliers. The three liens were perfected by Davis Windows, the company with which Respondent contracted for the purchase and installation of the windows for $1,888.22; Holmes Lumber Company, a company which provided building materials and supplies, for $4,032.08; and Gator Door for $1,152.93. Mr. Kersey is contesting the lien placed by Davis Windows. He has paid the amount due Holmes Lumber. He has not paid Gator Door. In addition to the companies which filed liens, the company that installed the cabinets was not paid at the time the cabinets were installed. Respondent paid for the cabinets on April 6, 1988. Also, Respondent paid Davis Windows $1,000, in March, 1988 and paid Gator Door $500 sometime in 1988. Finally, Respondent sent $1,500 to Holmes Lumber, ostensibly for Mr. Kersey's account, but the $1,500 was credited to another of Respondent's accounts which was in arrears. Respondent has entered into an agreement with Mr. Kersey to repay the amounts he may be owed due to Respondent's actions.

Recommendation Based upon the foregoing Findings of Fact and Conclusion of Law, it is RECOMMENDED that Petitioner enter a final order imposing a $1,750 fine on Respondent. DONE and ORDERED this 6th day of December, 1988, in Tallahassee, Florida. JOSE A. DIEZ-ARGUELLES 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 6th day of December, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2746 The Petitioner submitted proposed findings of fact which are addressed below. Paragraph numbers in the Recommended Order are referred to as "RO ." Petitioner's Proposed Findings of Fact Proposed Finding of Fact Number Ruling and RO Paragraph 1. True, but not a finding of fact. 2., 3. Accepted generally. RO1. The evidence is unclear as to whether Mr. Ansley's business is incorporated. 4. Accepted. RO2. However, when the 120 days began to run cannot be determined. The original contract had to be amended from the beginning, since no construction took place on the original lot. 5. Subordinate to facts found. See RO3. 6. Accepted. RO 5., 6. 7. Rejected as irrelevant. Also, the evidence presented does not establish that Respondent is responsible for Mr. Kersey paying $1,220 to Mr. Snell. 8. Rejected as not supported by competent evidence. The evidence is contradictory as to when construction would begin. The septic tank and construction permits were not issued until June. 9. Rejected as irrelevant. 10. Rejected as irrelevant. 11. Accepted generally. RO2. 12. Accepted. RO8. Accepted. RO14-l5. Accepted. RO16-18. 15, 16. Accepted. RO20. 17, 18. Accepted as modified in RO 21-25. Second and third sentences of 17 are rejected as not supported by competent evidence. See also discussion of this issue in Conclusions of Law section of this RO. 19. Accepted. RO 27-28. 20., 21., 22. Accepted. RO 26., 30., 33. 23. Accepted generally. RO 29, 31. 24., 25., 27., 28., 29. Rejected as not findings of fact. Also, the opinions of Mr. Adams were based, in part, on evidence which was not presented at the hearing. Additionally, it is unclear that Respondent was charged with some of the violations alleged by Mr. Adams. 26., 30-34. Rejected as irrelevant and a recitation of testimony. COPIES FURNISHED: Elizabeth Alsobrook, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Mark V. Ansley 7004 Luke Street Jacksonville, Florida 32210 Bruce D. Lamb, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seely Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201

Florida Laws (4) 120.57120.6017.002489.129
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DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES vs WILLIE C. HARMON AND HERMAN S. CAMPBELL, D/B/A HARMON SEPTIC TANK, INC., 93-004836 (1993)
Division of Administrative Hearings, Florida Filed:Destin, Florida May 18, 1994 Number: 93-004836 Latest Update: Nov. 18, 1997

The Issue Whether Petitioner should take disciplinary action against Respondents for the reasons alleged in the Administrative Complaint?

Findings Of Fact On behalf of his brother, Mr. Howell Parish, who lives in Orange Park, Florida, Mr. James A. Parish contracted with Respondents to restore efficient of operation the septic tank system at 5469 Soundside Drive in Santa Rosa County, premises owned by Howell Parish. Respondents agreed to make the restoration by providing a fiberglass approved tank with a fiberglass lid, install a new drain field and haul in dirt to build up a low area of the existing drain field. Respondents undertook repair activities but without a permit. Respondents did not obtain an inspection of their work after they had finished. On June 10, 1992, after the repairs were supposed to have been done, James Parish paid Respondent Harmon for the job with a personal check in the amount of $1,498.48. On the same date, Respondent Harmon signed a receipt for payment. The receipt shows as work performed, "Demucking and Installing one 1050 Gal Tank & 200 Sq.' Drain Field." Ms. Jo Ann Parish, spouse of Howell Parish, reimbursed James Parish for the work done on Soundside Drive. Shortly thereafter, the septic tank "caved in and the waste was boiling to the surface." (Tr. 16.) Howell Parish met with Larry W. Thomas, Environmental Health Supervisor for the Santa Rosa County Health Department, to discuss the situation. Following the meeting, Mr. Parish called Respondent Harmon and told that him that the problem needed to be straightened out and that he should contact Mr. Thomas promptly because his license could be in danger. Respondent promised to correct the problem and to reimburse Mr. Parish for the job but he did neither. He did not contact Mr. Thomas either. Mr. Thomas, on behalf of the County, investigated the site of the septic tank repair. He found that Respondents had installed a broken fiber glass tank when fiberglass tanks are not allowed at all in Santa Rosa County because of their structural inadequacy. In addition to the tank being cracked, it had a cracked lid. Another hole in the tank that should have been covered with a lid was covered with a piece of plywood. The plywood was kept in place by dirt fill. The drain field did not meet the minimum standards required by the County. Most significantly, it was installed beneath the water table. There was a laundry discharge pipe which was not connected to the tank as required. The site of the septic tank repair by Respondents was a sanitary nuisance. The broken condition of the tank allowed raw sewage to overflow. The drain field was emptying raw sewage directly into ground water. The laundry discharge was discharging into the ground rather than being hooked up to the septic tank. Mr. Parish was forced to hire another septic tank service to restore the system to good working order. The work, performed by Bettis Septic Tank Service, was billed to Mr. Parish at a cost of $6400.00.

Recommendation It is, accordingly, RECOMMENDED, that Respondents' certificates of registration be revoked and that the Department impose on Respondents a fine of $2000.00. DONE and ENTERED this 28th day of October, 1994 in Tallahassee, Florida. COPIES FURNISHED: Frank C. Bozeman, III Asst. District Legal Counsel D H R S 160 Governmental Center Pensacola, FL 32501 Kenneth P. Walsh Attorney at Law P. O. Box 1208 Shalimar, FL 32505-0420 Robert L. Powell, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, FL 32399-0700 Kim Tucker General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, FL 32399-0700 DAVID M. MALONEY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of October, 1994.

Florida Laws (1) 386.041
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LARRY A. FORD, D/B/A LA FORD SEPTIC TANK SERVICES vs DEPARTMENT OF HEALTH, 97-000898 (1997)
Division of Administrative Hearings, Florida Filed:O Brien, Florida Feb. 27, 1997 Number: 97-000898 Latest Update: Jan. 02, 1998

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

Florida Laws (10) 120.57381.0011381.0012381.0061381.0065381.0066381.0072386.03386.041489.553 Florida Administrative Code (1) 64E-6.022
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DEPARTMENT OF HEALTH vs HERMAN CAMPBELL, 97-004598 (1997)
Division of Administrative Hearings, Florida Filed:Shalimar, Florida Oct. 09, 1997 Number: 97-004598 Latest Update: Mar. 19, 1998

The Issue The issue is whether Respondent should have an administrative fine imposed for allegedly providing septic tank contracting services without a license.

Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: When the events herein occurred, Respondent, Herman Campbell, operated a back-hoe service in Santa Rosa County, Florida. He presently holds no licenses with, or registrations from, Petitioner, Department of Health (Department), to engage in the septic tank contracting business. In April 1997, Wayne Sullivan, who resides in Navarre, Florida, made arrangements with a local contractor, Robert Hoover, to dig up the drainfield and replace the pipe on a septic tank system at his mother-in-law's home at 8207 Laredo Street, Navarre. Hoover purchased the necessary pipe but then backed out of the job at the last minute. Sullivan then called Mary Esther Plumbing, who recommended that Respondent be used. Respondent was a former licensed septic tank contractor who had installed the original septic tank at the residence more than ten years earlier. Sullivan agreed to purchase all materials (pipe and gravel) needed for the job. Although Sullivan claims that Respondent told him he was licensed to do the work, it is found that Respondent indicated to Sullivan that he held no license or registration and could not obtain any permits. Notwithstanding Respondent's lack of licensure, Sullivan nonetheless asked Respondent to perform the work. Respondent undertook the job on or about Thursday, April 24, 1997. Charging a rate of $45.00 per hour to operate his back-hoe, Respondent replaced the pipe in the drainfield. In addition, he dug up a number of stumps in the front yard. The total charge for all work, including the stump removals, was $1,375.00, which was paid by check from the mother-in-law. The amount related to the septic tank work is not known. The following Monday, the Department received an anonymous complaint that an unlicensed person had performed septic tank contracting services for Sullivan's mother-in-law. After an investigation was conducted by a Department environmental specialist, an administrative complaint was issued. Respondent did not register with the Department before performing the work, and he did not obtain the required permit from, and inspection by, the Department. By failing to do so, Respondent acted in contravention of Department rules. Although the complaint alleges that Respondent caused monetary harm to the customer, there is no evidence that Sullivan's mother-in-law suffered any damages by virtue of Respondent's work. Indeed, at hearing, Sullivan indicated that he was pleased with Respondent's workmanship. While the Department suggests that the mother-in-law has been left with an "unauthorized drainfield," there is no evidence that this caused her to incur additional expense. Respondent contended that he was merely "digging a ditch" with his back-hoe and was not providing septic tank contracting services. However, the evidence shows that he dug the ditch, removed the old pipe, placed gravel in the bed, and laid the new pipe into the ditch, all of which relate to septic tank contracting services. While Sullivan may have assisted Respondent in performing these tasks, it does not relieve Respondent of the responsibility of complying with Department rules. Respondent also contended that he was being singled out for enforcement purposes because he is black. There was no evidence, however, to support this contention. In mitigation, Respondent believed he was working with Sullivan, as the owner of the property, in jointly performing the work, and there was no intent on his part to evade the licensing requirements. In addition, there was no danger to the public, and the customer's property was not damaged. Although the Department contends that Respondent has installed many septic tanks and drain fields "without a permit," there is no evidence in the record of specific jobs performed illegally by Respondent. Finally, the $2,000.00 administrative fine suggested by the Department would appear to have an adverse impact on Respondent's livelihood.

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)(a) and (b), Florida Administrative Code, and that Respondent be issued a letter of warning as to the first violation and that an administrative fine in the amount of $250.00 be imposed for the second violation. The allegation that Respondent violated a third rule should be dismissed. DONE AND ENTERED this 6th 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 6th 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 Herman Campbell 621 Oak Lane Fort Walton Beach, Florida 32548 Willie 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

Florida Laws (1) 120.57 Florida Administrative Code (1) 64E-6.022
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WAYNE H. CROTTY, D/B/A CROTTY SEPTIC/ROTO-ROOTER AND CROTTY SEPTIC, INC. vs DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, 94-005980F (1994)
Division of Administrative Hearings, Florida Filed:Orlando, Florida Oct. 21, 1994 Number: 94-005980F Latest Update: Oct. 18, 1995

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.

Florida Laws (9) 120.57120.68381.0061386.03489.552489.555489.55657.111865.09
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DEPARTMENT OF HEALTH, POLK COUNTY HEALTH DEPARTMENT vs BARBARA THOMPSON, D/B/A A-1 SEPTIC SERVICES, 01-003218 (2001)
Division of Administrative Hearings, Florida Filed:Lakeland, Florida Aug. 15, 2001 Number: 01-003218 Latest Update: Feb. 27, 2002

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

Florida Laws (4) 120.569120.57381.0065489.556
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ELINOR BURGER vs. ALEX RUTKOWSKI AND DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, 79-002489 (1979)
Division of Administrative Hearings, Florida Number: 79-002489 Latest Update: May 15, 1980

The Issue Whether a septic tank construction permit should be issued by the Respondent, Department of Health and Rehabilitative Services, for use by the Respondent, Alex Rutkowski, owner of Lot number 6, Block E, Carlton Terrace Subdivision First Addition, in Clearwater, Florida. Whether the filling in of Lot number 6 and the construction of a septic tank will damage the residence of the Petitioner, Elinor Burger, on Lot number 5.

Findings Of Fact The Respondent, Alex Rutkowski, and his wife own Lot number 6, Block E, Carlton Terrace Subdivision, First Addition, in Clearwater, Florida in which the sixteen (16) lots are approximately 70 feet wide and 105 to 150 feet deep. The soil in the area is Mayakka Fine Sand, a poorly drained soil which has a water table normally at a depth of ten (10) to thirty (30) inches below ground surface, but which rises to the surface for a short time during wet periods. After respondent Rutkowski's initial application for a permit to install a septic tank on Lot number 6 had been denied, he employed an engineer and filed a plan for proposed site modification. The plan was received by the Respondent, Department of Health and Rehabilitative Services, and Rutkowski was notified on December 6, 1979, that the plan to remove the existing land fill, replace it with Astatula Fine Sand and raise the building pad appeared to be acceptable for the issuance of a septic tank construction permit, but that no further action on the application for the permit could be taken until after an administrative ruling on a protest by a neighboring property owner (Respondent' Exhibits 1, 4 and 5). The Pinellas County Engineering Department had approved the drainage for the area on October 9, 1979 (Respondent's Exhibit 2). The Petitioner, Elinor Burger, has lived on Lot number 5, which adjoins Lot number 6, since 1957. When there is a heavy rain of three (3) to four (4) inches, her septic tank fails to operate, and water stands in her back yard. She has seen and smelled polluted water standing in the street in front of her home. Water also stands on a second lot she owns adjoining her residence after a heavy rain preventing the mowing of the lot for long periods of time. Ms. Burger has unsuccessfully sought to connect to a sewer system by petitions for sewer connection on at least- three (3) occasions and has laid additional drainage lines to help solve her problem. In the spring, summer and fall of 1979, she had severe water problems. Ms. Burger believes the elevation of Lot number 6 would cause further water damage to her property, and that a septic tank on Lot number 6 would add more sewage problems to the area A witness for Petitioner, Alan Flandreau, who lives with his wife and three (3) children on lot number 13 adjoining Lot number 5 in the subdivision, has a septic tank that fills up in rainy weather and runs into the street, resulting in a stench and green slime. Flandreau has had his septic tank pumped out a number of times since 1968, when he bought his home. His lot is low, and water drains onto his property from other lots. A witness for Petitioner, Burl Crowe, owns Lot number 11 and lives on Lot number 12. Lot number 11 adjoins Lot number 6, and Lot number 12 borders on the property of Petitioner Burger. Crowe has lived on Lot number 12 for fourteen (14) years and on many occasions had water entering his garage and standing in his yard when it rains. He has seen Lot number 6 under water and water standing on the street in front of his house, A witness for the Respondents was Gerald Goulish, the professional engineer who prepared the site modification plan (Respondent's Exhibits 4 and 8). Goulish has studied the site together with Rule 10D-6 of the Florida Administrative Code (infra) and believes the plan to fill the location of the septic tank site will cause the soil to percolate and evaporate and the proposed elevation of Lot number 6 two (2) feet will cause the water to drain toward the street and not onto adjoining property. He suggested that the adjoining and adjacent property owners cooperate and construct common swales to eliminate the surface water problems. A second witness for the Respondents was Burt Fraser, a sanitary supervisor for the Pinellas County Health Department, who denied the first application for installation of a septic tank on Lot number 6 but notified Respondent Rutkowski that the lot could be modified. Thereafter, he wrote Rutkowski that a modification plan had been received which meets the minimum requirements of the Florida Administrative Code. Fraser stated that he will issue a permit for construction of a septic tank upon completion of the administrative hearing procedure unless directed not to issue such a permit. Fraser agreed that the conditions as described by Petitioner Burger and her witnesses are accurate, and that the subdivision has problems which will not be solved until sanitary sewers are installed, but he believes that he has no alternative except to issue a permit if an applicant meets the requirements of Rule 10D-6.25 Florida Administrative Code. He knows of no requirement to make a study of adjacent and adjoining properties, and Respondent Department has not made a study. There are seven (7) houses in the sixteen (16) lot subdivision. The area is low and subject to flooding because of soil texture. There is an undisputed drainage problem in the area which causes a septic tank problem to the residents. The addition of more houses and septic tanks will increase the already serious drainage conditions which are public health nuisances. The Respondent, Department of Health and Rehabilitative Services, submitted proposed findings of fact, memorandum of law and a proposed recommended order. These instruments were considered in the writing of this order. To the extent the proposed findings of fact have not been adopted in or are inconsistent with factual findings in this order, they have been specifically rejected as being irrelevant or not having been supported by the evidence.

Recommendation Based on the foregoing Findings and Conclusions of Law, the Hearing Officer recommends that Respondent Rutkowski's application for a permit for the construction of a septic tank on Lot number 6 be denied without prejudice to the Respondent to reapply if there should be a change in circumstances. DONE and ORDERED this 10th day of April 1980, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED Barbara Dell McPherson, Esquire Department of HRS Post Office Box 5046 Clearwater, Florida 33518 William W. Gilkey, Esquire Richards Building 1253 Park Street Clearwater, Florida 33516 Mr. Alex Rutkowski 30 North Evergreen Clearwater, Florida

Florida Laws (1) 120.57
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DEPARTMENT OF HEALTH vs WILLIE A. HARMON, 97-004599 (1997)
Division of Administrative Hearings, Florida Filed:Shalimar, Florida Oct. 09, 1997 Number: 97-004599 Latest Update: Apr. 13, 1998

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

Florida Laws (1) 120.569 Florida Administrative Code (1) 64E-6.022
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DEPARTMENT OF HEALTH, DIVISION OF ENVIRONMENTAL HEALTH vs LARRY C. GARNER, D/B/A E. CARVER SEPTIC TANK, 02-001020 (2002)
Division of Administrative Hearings, Florida Filed:Green Cove Springs, Florida Mar. 01, 2002 Number: 02-001020 Latest Update: Jul. 11, 2002

The Issue The issue in this case is whether Respondent, Larry C. Garner, should be fined $500 for misstating the size of a septic tank and drain field.

Findings Of Fact Respondent, Larry C. Garner, is the licensed septic tank contractor who owns and operates A. Carver Septic Tank. (The Citation for Violation erroneously referred to the company as “E. Carver Septic Tank,” but the error was corrected without objection at final hearing. There was no evidence to support Respondent’s suggestion that the Department may have taken disciplinary action against him because it erroneously thought Respondent was another licensee.) On December 6, 2001, an employee of Respondent pumped out a septic tank and measured a drain field located at 847 Matthews Road, Maxville, Florida. The resident there wanted to enlarge her residence and needed Respondent's services in order to obtain Department approval of the existing septic tank system for the enlarged residence. After services were provided, Respondent's office gave the resident a receipt stating that Respondent's company had pumped out a 900 gallon septic tank and that the drain field measured 360 square feet. (Respondent's office actually dealt with the resident's adult daughter.) Respondent's office staff also prepared Form 4015 (a Department form entitled “Onsite Sewage Treatment and Disposal System Existing System and System Repair Evaluation”) and gave it to the resident for use in getting approval of the system for the enlarged residence. The form stated that the septic tank was 900 gallons and that the drain field was 360 square feet. When the resident applied for approval of her septic tank system for her enlarged residence, the Department inspected the system and found that the septic tank actually was 750 gallons and the drain field actually was only approximately 110 square feet. The Department issued the Citation for Violation based on the magnitude of the discrepancy. Respondent denied that he personally had any contemporaneous knowledge of the services provided by his employee or the receipt of Form 4015 prepared by his office, and there was no evidence that he did. Respondent personally investigated after issuance of the Citation for Violation. At final hearing, Respondent questioned whether the Form 4015 actually stated that the septic tank was 900 gallons. From the handwriting on the form itself, it appears possible that the number could read 700, not 900. But based on the written receipt, which either was prepared contemporaneously with the Form 4015 or was the basis for preparation of the Form 4015 by Respondent's office staff, the greater weight of the evidence was that the Form 4015 stated and was intended to state 900 gallons as the size of the septic tank. As further support for this finding, Respondent himself testified to a conversation he had with his employee during which the employee explained that he sized the septic tank at 700 gallons based on its apparent depth and Respondent admonished him that the employee knew better--i.e., knew it was necessary to measure height, width, and depth to accurately measure the size of a septic tank. Respondent also attempted to explain how his employee may have made a forgivable error in measuring the drain field. According to the Form 4015, the employee measured the drain field as a rectangular bed, 12 feet by 30 feet. Actually, the drain field consists of two trenches (one 26 feet long and the other 29 feet long), which the Department's inspector measured as being two feet wide. Respondent testified that the drain field began at a distribution box and was approximately ten feet wide within a few feet of the distribution box. Respondent testified that it would be easy to incorrectly assume that the approximate ten-foot width continued as a bed for the entire length of the drain field, as his employee apparently did. However, the greater weight of the evidence was that the employee's error was not reasonable; to the contrary, to determine the configuration and size of a drain field, it is necessary to probe the ground at more than just one distance close to the distribution box. When Respondent himself went to the site to investigate the allegations against him, he probed both near the distribution box and further away southeast of the distribution box. He testified that he found solid rock ten feet in width near the distribution box; to the southeast, his probing revealed a trench which Respondent measured at between three and a half and four feet in width. Based on those measurements, Respondent assumed two trenches approximately 30 feet long and four feet in width each, for a total of approximately 240 square feet. It is difficult to reconcile Respondent’s testimony as to the width of the southeast trench with the testimony of the Department's inspector. The Department's inspector probed approximately ten feet and 20 feet from the septic tank and found two-foot wide trenches in four different places. The Department's inspector also testified without contradiction in response to Respondent's questions on cross-examination that backhoes used at the time this drain field was installed in 1973 generally had two-foot wide excavation buckets. Based on the greater care taken by the Department's inspector in measuring the drain field, and the kind of backhoe in general use in 1973, it is found that the Department's inspector's measurements were more accurate. Even if Respondent's measurements were accurate, and the Department inspector's were inaccurate, the measurements recorded on the receipt and on Form 4015 still would have been seriously overstated. While not seriously disputing the inaccuracy of the Form 4015 submitted in this case, Respondent stated "anyone can make a mistake" and that the Department should have asked Respondent to re-check the measurements instead of issuing a citation, especially in view of Respondent's disciplinary record in 29 years in the business in Clay County. (Respondent testified that his only "issues in Tallahassee" were one incident--not fully explained--involving a cow on someone's property and another when he had someone take a re- certification examination for him at a time when his mother was ill. The Department did not controvert this testimony. As already mentioned, there was no evidence to support Respondent's initial suggestion that the Department may have taken disciplinary action against him because it erroneously thought he was another licensee.) But the Department's witness testified that issuance of the citation was appropriate and consistent with agency policy because of the magnitude of the discrepancies on the Form 4015. Respondent testified that the employee involved in this case was his stepson, who has worked for Respondent for 14 years, since he was 11 years old, seven to eight years as a full-time employee. Respondent also testified that he recently fired his stepson, but the reasons for firing him were not directly related to his conduct in this case. Respondent also testified that he felt compelled to insist on a hearing although he knew the Form 4015 was inaccurate because he perceived the Department to be acting in this case as if it had "absolute power" over him. He apparently viewed his request for a hearing as a necessary challenge to government's assertion of "absolute power" over him.

Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final order finding Respondent guilty as charged and imposing a fine in the amount of $500. DONE AND ENTERED this 24th day of May, 2002, in Tallahassee, Leon County, Florida. ______________________________ J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 2002. COPIES FURNISHED: Dr. John O. Agwunobi, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 John D. Lacko, Esquire Department of Health 420 Fentress Boulevard Daytona Beach, Florida 32114 Larry C. Garner 13950 Normandy Boulevard Jacksonville, Florida 32221

Florida Laws (2) 381.0065489.553
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