The Issue Is Respondent guilty of violations of Rule 10D-6.0751(l)(b) [gross negligence and incompetence] by the installation of a residence septic tank system and failure to obtain a new system construction permit with approved site plan prior to installation of a new on-site sewage treatment system, as charged in the undated administrative complaint numbered HPO-96-1003, which was referred to the Division of Administrative Hearings on or about November 26, 1996 and if so, what discipline should be imposed?
Findings Of Fact Respondent Larry A. Ford is registered by Petitioner agency as a septic tank contractor, under the registered name of "L.A. Ford Septic Services." On July 31, 1996, Gary W. Thompson, agent and building contractor for Johnny Howard, Jr., applied to the Suwannee County Health Department for an Onsite Sewage Disposal System Construction Permit to install an onsite sewage treatment and disposal system for Mr. Howard's residence. The site plan specified installation of a septic system on the north side of a house which was then under construction. On August 2, 1996, Charles Bradley, Environmental Health Specialist, Suwannee County Health Department, conducted a site evaluation at the construction site. His site evaluation included taking soil samples from the location proposed for the system to determine the suitability of the soil and the seasonal high water elevation table. A permit was issued in accord with the site evaluation. Mr. Howard (owner) and Mr. Thompson (general contractor) engaged Respondent Ford to install Mr. Howard's septic system. In practice, septic tank installers, including Respondent, usually will contact the Suwannee County Health Department for a copy of the permit, site plan, and other particulars before beginning an installation. The record is silent as to whether that happened in this case. On August 5, 1996, Respondent completed installation of the system and contacted Mr. Bradley to do a final inspection. When Mr. Bradley arrived to inspect the system, he discovered that it had been installed on the west side of the house instead of the north side as called for in the site plan and permit as issued. In other respects, the installed system seemed to comply with the technical requirements for septic systems and Bradley issued an "in place" approval even though Respondent had failed to advise, or have Mr. Howard or Mr. Thompson advise, the Suwannee County Health Department about the change in the system's location so that the Department could conduct another pre-installation site evaluation and issue a corrected permit. If a location or any other significant factor is going to be altered by the installer, the applicable rules require that the installer first amend the permit application and get a new site inspection and agency approval/permit. In practice, a location change is simply approved or rejected by the agency during the after-the-fact inspection, without any real insistence by the agency that the change be pre-approved. However, if the ultimate installation does not accord with health standards or rule standards for any reason, the agency is authorized by rule to require that the situation be corrected and that the installer arrange for a complying permit to be issued. The following week, Mr. Howard's father, who was also the owner of the land adjacent to Mr. Howard's home construction site, complained to Larry Williams, Environmental Health Supervisor at the Suwannee County Health Department. The senior Mr. Howard's primary concern was that the drainfield for his son's new septic system extended across the property line into his property in an area he used for cultivation. A subsequent inspection by Larry Williams, who is an agency superior to Mr. Bradley, revealed that the system had been mislocated across property lines; that the septic tank was installed nearby a dryer vent opening in the west side of the house, rather than the plumbing stub-out designed for this system on the north side of the house; and that the system's elevation as installed would not allow for gravity flow as originally designed; and that the system, as installed, would require additional plumbing and a pump to operate it. The property line trespass would not have showed up in the "as is" inspection by Mr. Bradley. The testimony herein with regard to gravity backflow is sufficient to establish another technical installation violation, despite Mr. Bradley's original post-installation approval of the system, but the record is lacking in evidence to establish that there was a clear danger to public health as a result. Upon further investigation, agency personnel were confronted with at least one disputed fact. On the one hand, they had the complaints of the two Mr. Howards against Respondent and on the other hand they had Respondent's insistence that the younger Mr. Howard's wife had authorized Respondent to relocate the system to the west side of the house. As a result, Respondent denied any and all responsibility for mislocating the system. Additionally, due to the original post-installation agency approval, the Respondent refused to correct the Howard septic system in any way or to participate in agency mediation. When agency efforts to mediate the problem were unsuccessful and Respondent failed to make any arrangements to correct the problem, the County Health Unit paid $975.00 for the correction of Mr. Howard's system by another certified septic contractor. This amount came out of its discretionary funds reserved for dangers to public health. Apparently, Mr. Howard has paid nothing for the repairs. The agency then instituted this instant disciplinary action against Respondent. Respondent refused certified mail delivery of the notice of intended action. Therefore, he had to be served by the Sheriff's office. The notice of intended action advised Respondent that the agency considered his acts and omissions with regard to his installation of the septic system to be gross negligence and incompetence under Rule 10D-6.075, Florida Administrative Code, and that if he did not take corrective action within three days of his receipt of the notice, the agency intended to issue an administrative fine against him and to suspend his registration as a septic tank contractor. Respondent again denied any responsibility for his installation of Mr. Howard's system and refused to take any corrective action or otherwise to try to mitigate the problem. The agency also has cited Respondent via an August 27, 1997 Letter of Warning which had nothing to do with the Howard job. The Letter of Warning advised Respondent that he was in violation of Part III, Chapter 489, Florida Statutes, punishable under Rule 10D-6.0751(1)(a) Florida Administrative Code, because his advertising used a business name (Ford Septic Tank Service) under which he is not registered, instead of his business registration name of "LA Ford Septic Tank". No timely request for administrative hearing was received to dispute the material issues raised by this warning letter, and therefore its allegations may be considered as true. This Letter of Warning also may be considered for purposes of aggravation of penalty, if any penalty is determined in the instant proceeding. The agency has had numerous other customer complaints against Respondent. Its own investigation of these other complaints has satisfied agency staff that in many instances Respondent was doing fraudulent and/or negligent septic system work. However, none of these allegations can be considered here for two reasons. First, because these other situations were not noticed nor charged in the pending administrative complaint, no findings of fact can be made herein with regard to them. Second, because these situations were never proven in a formal proceeding and were not reduced to a Letter of Warning, they may not be considered under the guidelines provided by the agency's rules to aggravate a penalty, if any penalty is determined in the instant proceeding. See the Conclusions of Law, infra. In filing the administrative complaint herein, witnesses Wilson and Melton considered the gravity of Respondent's situation at the Howard residence and his failure to take any mitigating action. They also considered, as aggravating circumstances, the many other citizen complaints discussed above. The administrative complaint for the charges surrounding Respondent's installation on Mr. Howard's permit was served on Respondent in October 1996. He timely requested a formal administrative hearing. Part of the registration procedure for septic treatment system contractors is to take an examination with regard to the requirements of Chapter 10D-6 Florida Administrative Code, including permit requirements, technical requirements for septic system installations and the conduct expected of contractors. Registered contractors who pass the examination, including Respondent, are expected to know and follow all requirements in Chapter 10D-6, Florida Administrative Code.
Recommendation 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 of one violation of Rule 10D- 6.0751(1)(b)2. and one violation of Rule 10D-6.0751(1)(l)2; fining Respondent $1,000.00; and revoking his certificate. RECOMMENDED this 29th day of APRIL, 1997, at Tallahassee, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax FILING (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 1997. COPIES FURNISHED: Thomas Koch, Esquire Department of Health 2639 N. Monroe Street Suite 160-A Tallahassee, FL 32399-2949 Larry A. Ford Route 1 Box 1705 O'Brien, FL 32071 David West, Esquire Department of Health District 3 Legal Office 1000 Northeast 16th Avenue, Box 3 Gainesville, FL 32601 Dr. James Howell, Secretary Department of Health 1317 Winewood Bouelvard Building 6 Room 306 Tallahassee, FL 32399-0700 Pete Peterson 1317 Winewood Boulevard Building 6 Room 102-E Tallahassee, FL 32399-0700
The Issue Whether the Agency should register the Petitioner as a septic tank contractor?
Findings Of Fact The Petitioner, Ronald Burkett, applied for registration has a septic tank contractor to the Department of Health, the regulatory and permitting authority. The Department noticed the Petitioner by letter of its intent to deny his application for various grounds and that he had a right to a formal hearing. The Petitioner made a timely request for a formal hearing and these proceedings ensued. The application filed by the Petitioner was filled out by his now ex-wife, Susan Burkett, who had previously been a licensed septic tank contractor and the Petitioner's employer. The couple did business in the name of Working Man Septic Tank (Working Man). Susan Burkett filed out the application because the Petitioner does not read or write. The Petitioner as the employee of Working Man installed a septic tank without a license under a complex set of circumstances in which the property owner, employees of the Department of Health and the Petitioner sought to eliminate a serious health problem at a rental property. The existing septic system had failed and raw sewage was on the ground in the yard of single family residence which was being rented. The Department of Health sought to eliminate the nuisance. The Petitioner undertook to fix the system, submitted an application, and commenced work. Thereafter, it was determined that public sewer service was available, and this precluded issuance of the permit to repair the septic system. There is conflicting testimony about what occurred next; however, based upon the testimony of all the witnesses, the Petitioner left the tank he had installed in the ground; the owner hooked up the system; and the problems were eliminated. However, Susan Burkett received a warning letter from the Department of Health for having commenced the work without the permit. In 1994, the Petitioner was disciplined for septic tank contracting without a license, for installing septic tanks without a permit, and for substandard work in contracting. In 2003, Burkett repaired and replaced a distribution box at 638 Lakewood Road without a permit or an inspection which resulted in his now ex-wife, Susan Burkett, receiving a fine of $1,000, as the responsible contractor. Complaint SC 0752 alleges that U.S.A. Septic abandoned its contract and failed to fully perform a repair. Ron Burkett received checks in the amount of $3,500, which were negotiated in due course. Profit and Loss Statements which were part of tax documents submitted with the Petitioner's application indicated that they were for Ron's Septic Tank Service and Ronald E. Burkett. However, these statements were prepared in error by the Petitioner's accountants who subsequently supplied corrected documents showing the Petitioner's business name to be U.S.A. Septic Tank Co. and Ronald E. Burkett, Proprietor. Ron's Septic Tank Service is an unrelated septic contracting company owned and operated by another individual. This appears to have been a scrivener's error by the accountant which was corrected. However, the corrected documents are at odds with the business organization which supposedly existed, that is, U.S.A. Septic Tank Co., operated by Susan Burkett. At a minimum, the activities of U.S.A. Septic Tank Co. cannot be separated from the Petitioner's activities, and the Petitioner cannot divorce himself from misfeasance and malfeasance of that company or other companies which he worked for as an employee of his wife. The Construction Industry Certificate of Exemption from Florida Workers' Compensation Law filed with the application had had the expiration date altered. While the Petitioner may not have been responsible for the alteration, his application was facially deficient by failing to have a current exemption certificate.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Department of Health deny the Petitioner's application for registration as a septic tank contractor. DONE AND ENTERED this 16th day of March, 2004, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN 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 16th day of March, 2004. COPIES FURNISHED: Edward Brian Lang, Esquire One West Lloyd Street Pensacola, Florida 32501-2635 Rodney M. Johnson, Chief Counsel Department of Health Northwest Law Office 1295 West Fairfield Drive Pensacola, Florida 32501 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 issues are whether Respondent has violated the standards of practice in septic tank contracting, Florida Administrative Code rule 64E-6.022, and, if so, the penalty. (All references to Respondent are to Arlender Miller. All references to Ms. Rooter are to Ms. Rooter, Inc.)
Findings Of Fact At the times of the alleged jobs, Respondent was registered as a septic tank contractor and served as the qualifying agent for Ms. Rooter. At the time of all three jobs, Respondent had apparent authority to serve as the agent of Ms. Rooter in contracting for and performing the septic tank contracting work described below. However, nothing in the record establishes any relationship between Respondent and Ms. Rooter at the time of the issuance of the Administrative Complaint, so as to justify treating the notice of this proceeding, when served upon Respondent, as notice to Ms. Rooter. Hans Seffer, who testified, is the son of the woman who owns the apartment complex located at 14950 North Miami Avenue, Miami. Mr. Seffer found Ms. Rooter on the internet and spoke with Carolyn Futch, operations manager of Ms. Rooter, about septic tank contracting services needed at the apartment complex. Respondent later met with Mr. Seffer at the property. Initially, Mr. Seffer believed that the existing septic tank needed only to be pumped out. However, upon inspection, Respondent determined that the system also required a new drainfield, pump, and dosing tank. Accordingly, on February 20, 2008, Respondent, as "technician," and either Mr. Seffer or his mother signed a one-page contract on a form identifying the contractor as Ms. Rooter, license number SA0071430. The contract describes the following work: Install 1,000 sq. ft. drainfield with 300 gallon dosing tank including immediate (2/21/08) tank pump out. Additionally if tank requires pumpout prior to securing all necessary permits, Ms. Rooter will perform pumpout at no additional cost. Manhole cover included. Respondent and either Mr. or Mrs. Seffer initialed this section of the contract. The contract states that the total due for this work is $10,500. Ms. Seffer paid $5,000 by check on February 21, 2008, leaving a $5,500 balance due. On March 1, 2008, Respondent, as agent for Ms. Rooter and on behalf of the property owner, submitted to Petitioner an application for a construction permit for an onsite sewage disposal system. The application describes the property improvements as a multifamily complex with ten bedrooms and 5,284 square feet of building space. The site plan attached to the application states: "Replace drainfield only." On April 2, 2008, Ms. Futch emailed Mr. Seffer to confirm an earlier discussion between them. The discussion addressed a requirement of Petitioner that Ms. Rooter install a second tank. The email states that the property owner will pay $5,600 for the installation of a "2nd tank (1,050-gal)," so the new total contract price is $11,100. This email restates the scope of the work as the installation of a 1,000-square-foot drainfield and 300-gallon dosing tank. By return email two days later, Mr. Seffer agreed to the additional work. On April 11, 2008, Petitioner issued to the property owner a construction permit that specifies a 2,575-gallon septic tank and a 1,000 square-foot drainfield. The permit states: "The licensed contractor installing the system is responsible for installing the minimum category of tank in accordance with sec. 64E-6.013(3)(f), F.A.C." This rule does not refer to tank capacities. On April 23, 2008, Petitioner issued a "construction inspection and final approval" form that shows the installation of two 1,200-gallon septic tanks and a 1,005-square-foot drainfield. The form states that items bearing an "X" are "not in compliance with statute or rule and must be corrected." The construction and final system are approved by Petitioner's inspector. During the course of the work, Respondent told Mr. Seffer that the existing tank was damaged and needed to be replaced, at an additional cost of $5,000, so the remaining balance rose to $16,100. Mr. Seffer agreed to this change. By email dated April 30, 2008, to Mr. Seffer, Ms. Futch confirmed the additional cost of $5,000 for the second septic tank and expressed "hope [that] Ms. Rooter has met your expectations." The email acknowledges, however, that "we must complete the electrical portion of the job." On May 2, 2008, Mr. Seffer sent Ms. Rooter two checks totaling $15,000, leaving a balance of $1,100. On the same date, Mr. Seffer sent Ms. Futch an email that, pursuant to their agreement, he would retain this amount for the "electric and final raking work." By email dated May 27, 2008, to Ms. Futch, Mr. Seffer noted that the manhole that Ms. Rooter had installed in the middle of the lawn was not level and was sunken, presenting a tripping hazard; the final grading was incomplete, leaving low spots and holes; a large rock remained near the palm tree and needed to be removed. Mr. Seffer sent Ms. Futch a reminder email on June 4, 2008, that resent the May 27 email. Mr. Seffer sent another email to Ms. Futch on June 21, 2008. In it, he notes that a Ms. Rooter employee worked on digging an electrical trench on June 13, but left mid-day, and no work had been performed since that day. In the meantime, recent rains had revealed a lack of compaction in the backfilling done by Ms. Rooter, as the fill had settled and undermined a sidewalk. After failing to obtain a response, on July 26, 2008, Mr. Seffer sent a final email to Ms. Futch warning her that he would file complaints with governmental agencies and advising that the unconnected pump was not pumping sewage throughout the entire system. The record does not contain the contracts for the septic tank contracting services involved in the second and third jobs alleged in the Administrative Complaint. Also, Petitioner did not present the testimony of the property owners involved in these jobs. The record for these jobs is limited to the permitting documentation. On September 26, 2008, as agent of Ms. Rooter and on behalf of the property owner, Shoreview Properties, Respondent submitted an application for a construction permit for an onsite sewage disposal system for 9999 Northeast 2nd Avenue, Miami Shores. This application describes the property as commercial with a 47,771 square-foot building. On October 1, 2008, Petitioner's inspector inspected the property. The inspector found an opened drainfield area with contaminated material and other conditions capable of hosting various disease vectors. He also found a backhoe and worker, who claimed that someone else had excavated the drainfield. The inspector immediately posted an ONASN, pursuant to the authority of chapter 386, Florida Statutes, that required the immediate abatement of the listed insanitary conditions. The inspector also determined that the existing onsite sewage disposal system exceeded Petitioner's jurisdictional threshold of 5,000 gallons per day. On September 10, 2008, as agent of Ms. Rooter and on behalf of the property owner, Lisa Mullin, Respondent submitted to Petitioner an application for a construction permit for an onsite sewage disposal system for 101 Northeast 195th Street, Miami. This application describes the property as 0.19 acres, on which is situated a single family residence comprising 1,663 square feet and three bedrooms. On September 22, 2008, an agent of the property owner called Petitioner and complained that Ms. Rooter had commenced the work without having first obtained a permit. Petitioner's inspector visited the site on the same day and found "very recent" earthwork. The owner informed the inspector that the contractor had installed three drainlines, cut an old water line, and installed a new water line over the drainfield. However, the record fails to establish the amount of time that elapsed between the work claimed to have been performed by Ms. Rooter and the report by the property owner. Respondent has paid numerous fines imposed by Petitioner for improper septic tank contracting. In 1999, Respondent paid a fine in an unspecified amount for performing an unpermitted drainfield repair and making the repair without the required filter sand. On January 27, 2000, Respondent paid a fine of $250 for performing unpermitted system repairs. On February 4, 2000, Respondent was assessed a fine of $1,000 for performing unpermitted and uninspected system repairs and failing to honor a warranty. On January 8, 2004, Respondent received a cease and desist order for qualifying more than one septic tank contracting business. In 2007, Respondent paid separate fines of $1,500 and $1,000 for illegal septic tank contracting work in Dade and Monroe counties, respectively.
Recommendation It is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of the three violations identified in paragraphs 26, 27, and 29 above, dismissing the remaining charges against him, dismissing any charges against Ms. Rooter, and revoking Respondent's septic tank contracting registration. DONE AND ENTERED this 31st day of January, 2011, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 31st day of January, 2011. COPIES FURNISHED: Arlender Miller 640 Northwest 129th Street Miami, Florida 33168 Jenea Reed, Esquire Miami Dade County Health Department 8323 Northwest 12th Street, Suite 214 Miami, Florida 33126 R.S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 E. Renee Alsobrook, Acting General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Shairi Turner, Deputy Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701 Kim Berfield, Deputy Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701
The Issue Whether Rules 10D-6.072(3)(d), (e), and (f), Florida Administrative Code, are an invalid exercise of delegated legislative authority on the ground that these three rules enlarge, modify, or contravene the specific provisions of law implemented, in violation of section 120.52(8)(c), Florida Statutes (Supp. 1996).
Findings Of Fact Petitioner applied for septic tank contractor registration in July 1996. On September 6, 1996, the Respondent issued its intent to deny his application on the grounds that he failed to meet the required qualifications listed in Rules 10D-6.072(3)(d), (e), and (f), Florida Administrative Code. Rule 10D-6.072(3)(d) provides that an applicant is not qualified to take the registration exam to become a licensed septic tank contractor if a previous registration issued by the Respondent has been revoked within the last 5 years. Rule 10D-6.072(3)(e) provides that an applicant is not qualified to take the registration exam to become a licensed septic tank contractor if he has a disciplinary case pending with the Respondent involving septic tank contracting. Rule 10D-6.072(3)(f) provides that an applicant is not qualified to take the registration exam to become a licensed septic tank contractor if he has been convicted of a crime in any jurisdiction which is directly related to the practice of contracting. Petitioner filed a request for a hearing, in which he alleged Rules 10D-6.072(3)(d), (e), and (f) constitute an invalid exercise of delegated legislative authority in that these rules enlarge, modify, or contravene the specific provisions of law implemented, in violation of section 120.52(8)(c), Florida Statutes (Supp. 1996). Rules 10D-6.072(3)(d), (e), and (f) formally took effect on January 3, 1995. There is no material failure to comply with the procedural requirements of Chapter 120, Florida Statutes, in the promulgation of these rules. 9. Sections 154.06, 381.0011, 381.006, 381.0065, 489.553, and 489.557, Florida Statutes, grant the Respondent specific authority to adopt rules implementing the statutes. Petitioner does not dispute the Respondent’s rulemaking authority. Rules 10D-6.072(3)(d), (e), and (f) implement sections 154.01, 381.001, 381.0011, 381.0012, 381.0025, 381.006, 381.0061, 381.0065, 381.00655, 381.0066, 381.0067, Part I of Chapter 386, and Part III of Chapter 489, Florida Statutes. Part III of Chapter 489, Florida Statutes (Supp. 1996), is the chapter governing septic tank contractor registration. Chapter 10D-6, Florida Administrative Code, are the rules pertaining to Standards for Onsite Sewage Treatment and Disposal Systems, which include septic tank systems. A person who becomes a registered septic tank contractor has the authority to install, maintain, repair, and perform site evaluations for repairs of onsite sewage treatment and disposal systems. There are an estimated 1.4 million septic systems in use in Florida. The onsite sewage treatment program impacts public health in that it prevents and corrects sanitary nuisances; prevents pollution to groundwater, which is the primary drinking water source in the state; prevents pollution to surface water; and eliminates risks to public health from exposure to improperly treated human waste. Untreated or improperly treated human waste contains many significant disease-causing organisms injurious to human health. A “sanitary nuisance” is the “commission of any act, . . . or the keeping, maintaining, propagation, existence, or permission of anything, . . . by which the health or life of an individual, or the health or lives of individuals, may be threatened or impaired, or by which or through which, directly or indirectly, disease may be caused.” Section 386.01, Florida Statutes (1995). “Improperly built or maintained septic tanks” and “untreated or improperly treated human waste” constitute “prima facie evidence of maintaining a nuisance injurious to health.” Section 386.041(1), Florida Statutes (1995). The training, regulation, and registration of septic tank contractors, who install and repair such systems, is directly related to public health. An improperly installed or repaired system may result in untreated human waste or raw sewage either surfacing on the ground, backing up in the owner’s house/business, contaminating groundwater, and contaminating nearby surface water. The Respondent regularly receives complaints from citizens detailing installation problems, including complaints regarding improper workmanship, the premature failure of their septic tank system resulting in sewage on the ground around their house, and the contractor’s failure to honor his/her warranty. The impetus behind regulating contractors came primarily from the industry itself (i.e., the Florida Septic Tank Association). The qualification outlined in Rule 10D-6.072(3)(d), which provides that an applicant is not qualified to become a registered septic tank contractor if the Respondent has revoked his prior septic tank registration within the last 5 years, protects the public from sanitary nuisances caused by the improper installation and repair of septic tank systems. This qualification is, moreover, an indicator of an applicant’s “good moral character.” The qualification outlined in Rule 10D-6.072(3)(e), which provides that an applicant is not qualified to become a registered septic tank contractor if the applicant has a disciplinary case pending with the Respondent involving septic tank contracting, fits into what the septic tank contracting program under chapter 489 and Chapter 10D-6 is designed to accomplish. This qualification protects the public by denying licenses to those persons who have demonstrated they are not complying with the rules or statutes. The qualification outlined in Rule 10D-6.072(3)(f), which provides that an applicant is not qualified to become a registered septic tank contractor if he has been convicted of a crime in any jurisdiction which is directly related to the practice of contracting, fits into what the septic tank contracting program under Chapter 489 and Chapter 10D-6 is designed to accomplish. This qualification protects the public by denying licenses to those persons who are not law abiding and do not follow the standards. “Good moral character” is not defined in Chapter 489, Florida Statutes. Each of the three qualifications established by Rules 10D-6.072(3)(d), (e), and (f) make specific or interpret an individual’s good moral character. The Department’s statutory authority for Rule 10D- 6.072(3)(d), Rule 10D-6.072(3)(e), and Rule 10D-6.072(3)(f) comes from: (a) section 489.553(2), which requires the Department to “provide qualifications for applicants;” (b) section 489.553(4)(a), which says the applicant “must be of good moral character’” (c) section 489.558(2), which says the Department may deny registration if it determines the applicant “has violated any provision of this part [Part III of Chapter 489];” and (d) section 489.556, which authorizes the Department to suspend and revoke licenses. The Joint Administrative Procedures Committee (JAPC) has neither filed an objection nor voted on an objection to the three rules at issue in this case. Although a staff member of JAPC, in response to Petitioner’s complaint, recently made a preliminary inquiry into the validity of these rules, the committee did not adopt the staff member’s recommendation.
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
The Issue Whether Petitioner should take disciplinary action against Respondents for the reasons alleged in the Administrative Complaint?
Findings Of Fact On behalf of his brother, Mr. Howell Parish, who lives in Orange Park, Florida, Mr. James A. Parish contracted with Respondents to restore efficient of operation the septic tank system at 5469 Soundside Drive in Santa Rosa County, premises owned by Howell Parish. Respondents agreed to make the restoration by providing a fiberglass approved tank with a fiberglass lid, install a new drain field and haul in dirt to build up a low area of the existing drain field. Respondents undertook repair activities but without a permit. Respondents did not obtain an inspection of their work after they had finished. On June 10, 1992, after the repairs were supposed to have been done, James Parish paid Respondent Harmon for the job with a personal check in the amount of $1,498.48. On the same date, Respondent Harmon signed a receipt for payment. The receipt shows as work performed, "Demucking and Installing one 1050 Gal Tank & 200 Sq.' Drain Field." Ms. Jo Ann Parish, spouse of Howell Parish, reimbursed James Parish for the work done on Soundside Drive. Shortly thereafter, the septic tank "caved in and the waste was boiling to the surface." (Tr. 16.) Howell Parish met with Larry W. Thomas, Environmental Health Supervisor for the Santa Rosa County Health Department, to discuss the situation. Following the meeting, Mr. Parish called Respondent Harmon and told that him that the problem needed to be straightened out and that he should contact Mr. Thomas promptly because his license could be in danger. Respondent promised to correct the problem and to reimburse Mr. Parish for the job but he did neither. He did not contact Mr. Thomas either. Mr. Thomas, on behalf of the County, investigated the site of the septic tank repair. He found that Respondents had installed a broken fiber glass tank when fiberglass tanks are not allowed at all in Santa Rosa County because of their structural inadequacy. In addition to the tank being cracked, it had a cracked lid. Another hole in the tank that should have been covered with a lid was covered with a piece of plywood. The plywood was kept in place by dirt fill. The drain field did not meet the minimum standards required by the County. Most significantly, it was installed beneath the water table. There was a laundry discharge pipe which was not connected to the tank as required. The site of the septic tank repair by Respondents was a sanitary nuisance. The broken condition of the tank allowed raw sewage to overflow. The drain field was emptying raw sewage directly into ground water. The laundry discharge was discharging into the ground rather than being hooked up to the septic tank. Mr. Parish was forced to hire another septic tank service to restore the system to good working order. The work, performed by Bettis Septic Tank Service, was billed to Mr. Parish at a cost of $6400.00.
Recommendation It is, accordingly, RECOMMENDED, that Respondents' certificates of registration be revoked and that the Department impose on Respondents a fine of $2000.00. DONE and ENTERED this 28th day of October, 1994 in Tallahassee, Florida. COPIES FURNISHED: Frank C. Bozeman, III Asst. District Legal Counsel D H R S 160 Governmental Center Pensacola, FL 32501 Kenneth P. Walsh Attorney at Law P. O. Box 1208 Shalimar, FL 32505-0420 Robert L. Powell, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, FL 32399-0700 Kim Tucker General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, FL 32399-0700 DAVID M. MALONEY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of October, 1994.
The Issue The 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 in this case is whether the Department of Health properly denied Petitioner’s application for a master septic tank contractors (MSTC) registration.
Findings Of Fact The Department of Health is the agency responsible for the registration of septic tank contractors, the authorization of septic tank companies, and the enforcement of the statutes of rules pertaining to the registration and authorization of septic tank contractors and companies pursuant to Chapters 381 and 489, Part 3, Florida Statutes and Chapter 10D-6, Florida Administrative Code. The registration as a master septic tank contractor was recently enacted by the Legislature. Master septic tank contractor is held to a higher standard of scrutiny by the Department because a MSTC can perform certain functions in the field without Department of Health supervision. Further, a MSTC can advertise his special certification to the public. Gregory Thompson, Petitioner, applied to the Department of Health to be registered as a MSTC. At the time of his application, Petitioner was registered with the Florida Department of State as the president of Rayco Properties, Inc. At the time the cases against the corporation referenced above were brought, the Petitioner was the president of Rayco; however, the requested contractor who was the company’s qualifier was Donald P. Roberts, who was the sole qualifier for the company. See paragraphs 2 and 3 of the Recommended Order in Case Numbers 95-5973 and 96-0573 Final Order issued 2/28/97. At the time of the Petitioner’s application for MSTC, Rayco had been found guilty of several septic tank contracting violations and an enforcement action was taken by the Department against Rayco and Donald R. Roberts. See DOAH Case Numbers 95-5973 and 96-0573. Pursuant to the Final Order, penalties were assessed against Rayco including a fine of four thousand four hundred fifty dollars ($4,450.00) and suspension of the corporation's Certificate of Authorization for one hundred-twenty (120) days. At the time of the application by the Petitioner, neither of these penalties had been resolved. The previous action was against Rayco and its qualifier, Donald R. Robert. As the Administrative Law Judge concluded in paragraph 82 of her order, “Revocation of the company’s authorization would effect the livelihood of numerous company principals and employees not directly involved in any of the proven violations.” The Department denied the Petitioner’s application for MSTC for three (3) reasons. The Petitioner’s corporation had been adjudicated guilty of minor or moderate infractions pertaining to on site sewage treatment and disposal systems (See paragraph 82 of the Recommended Order in Case Numbers 95-5973 and 96-0573), a copy of which is attached as Appendix 1. There was an outstanding fined assessed against Rayco Properties and the one hundred-twenty (120) day suspension of Rayco had not been resolved as required by the Florida Administrative Code. At the time of the formal hearing, the fine had been paid and the corporation had served and completed the one hundred-twenty (120) days' suspension.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Department grant the request for certification by the Petitioner for master septic tank contractor. DONE AND ENTERED this 3rd day of November, 1997, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 1997. COPIES FURNISHED: Gregory B. Thompson Post Office Box 251307 Holly Hill, Florida 32135 Charlene Petersen, Esquire Volusia County Health Department 420 Fentress Boulevard Daytona Beach, Florida 32114 Angela T. Hall, Agency Clerk Department of Health Building 6 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Dr. James Howell, Secretary Department of Health Building 6, Room 306 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
