Findings Of Fact On September 19, 1979, Lester Nelson, Hospital Consultant for the Petitioner, conducted a survey of Monticello Manor and discovered certain Class III deficiencies, one of which was roach infestation in the cabinets beneath the kitchen sink. Ms. Rhoades was present on that date and was aware of the deficiencies to be cited. The facility was notified by letter dated October 22, 1979, that the deficiencies cited were to be corrected by November 1, 1979. A revisit of the nursing home was made by Mr. Nelson on November 27, 1979, by which time all deficiencies had been corrected with the exception of the roach infestation. On that date, roaches were observed in three of the five cabinets inspected. At the time of the September 19 survey, Monticello Manor had in effect a Service Agreement with Truly Nolen for pest control services. In addition, a maintenance man was spraying the premises twice a week. On December 1, 1979, Respondent entered into a contract with a different exterminating company after cancelling its contract with Truly Nolen.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED THAT: The Department of Health and Rehabilitative Services enter its final order imposing a civil penalty in the amount of one hundred dollars against the Respondent. RECOMMENDED this 3rd day of June, 1980, in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings Department of Administration Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the clerk of the Division of Administrative Hearings this 3rd day of June, 1980. COPIES FURNISHED: Harold L. Braynon, Esquire District X Legal Counsel Department of Health and Rehabilitative Services 91 West Broward Boulevard Fort Lauderdale, Florida 33301 Ms. Carolyn Rhoades Administrator Monticello Manor 1701 North Federal Highway Fort Lauderdale, Florida 33308 Steven W. Huss, Esquire Staff Attorney Central Operations Services Department of Health and Rehabilitative Services 1317 Winewood Boulevard Tallahassee, Florida 32301 Mr. David H. Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue Whether Permit No. DO19-101251 issued to Mr. Vail on July 11, 1985 to construct and operate an on-site wastewater treatment and disposal system should be revoked?
Findings Of Fact Mr. Vail is the owner and operator of a business called the St. George Inn and Restaurant (hereinafter referred to as the "Inn"). The Inn is located at the southeast corner of the intersection of Franklin Boulevard and Pine Avenue on St. George Island, Florida. In May of 1984 Mr. Vail spoke with an employee of the Department of Health and Rehabilitative Services about obtaining a permit to construct a septic tank on his property for use by the Inn for the treatment and disposal of wastewater. Mr. Vail was instructed to submit a design of the septic tank for approval. Mr. Vail contracted with McNeill Septic Tank Company for the design and construction of the septic tank. The evidence failed to prove when Mr. Vail applied with the Department of Health and Rehabilitative Services for a permit. As of March, 1985, however, Mr. Vail had not received approval or disapproval of his application from the Department of Health and Rehabilitative Services. Mr. Vail, therefore, went to the Governor's office to seek help in getting a response. Shortly after contacting the Governor's office, the Department of Health and Rehabilitative Services informed Mr. Vail that he needed to obtain a permit from the Department and not from the Department of Health and Rehabilitative Services. On or about March 18, 1985, Mr. Vail filed an Application to Operate/Construct Industrial Wastewater Treatment and Disposal Systems (hereinafter referred to as the "Application"), with the Department. The Application was prepared by Brown and Associates Civil Engineers and Land Surveyors, Inc., Mr. Vail's engineering consultant. The Application was certified by Benjamin E. Brown, Professional Engineer. Mr. Vail signed the Application as "owner" and indicated that he was aware of the contents of the Application. In the Application, "St. George Inn Restaurant" is listed as the "Source Name." Under Part II, A of the Application, the applicant is asked to "[d]escribe the nature and extent of the project." In response to this request, the following answer was given: This project will provide a sewage disposal system for a one hundred and fifty (150) seat restaurant on St. George Island. Sizing of the septic tank system is based on 50 GPD/seat and secondary treatment will be provided by the design proposed. Under Part III, A of the Application, the applicant is asked to provide the following information and the following answers were given: Type of Industry Restaurant . . . . 3. Raw Materials and Chemicals Used Food preparation only. Normal Operation 12 hrs/day 7 days/week . . . . If operation is seasonal, explain This restaurant will be used the most during the summer months which corresponds with ocean/beach recreation & the tourist trade. Nowhere in the Application is it indicated that the permit applied for involved anything other than a restaurant. The Application gives no information from which the Department could have known that the proposed wastewater treatment and disposal system would handle waste from guest rooms or an apartment. In the Application Mr. Vail sought approval of a permit to construct and operate a wastewater treatment and disposal system to serve a 150 seat restaurant. In the Application Mr. Vail sought a permit for a system which was to have a design flow of 7,500 gallons per day based on 50 gallons, per seat, per day water usage. An employee of the Department wrote a memorandum dated May 5, 1985, recommending approval of the Application. The Department determined, however, that the size of the property on which the Inn was to be located was not large enough for the drain field necessary to accommodate a 150 seat restaurant. Therefore, Mr. Brown modified the proposed system and resubmitted application data indicating that a 108 seat restaurant would be constructed. The design flow of the new proposal was 2,160 gallons per day based on 20 gallons per seat per day. Mr. Brown had requested that the Department approve a system based upon the newly submitted design flow. The Department and Mr. Brown both agreed that this design flow was adequate; that it was reasonable to anticipate and provide for the treatment and disposal of a maximum of 2,160 gallons per day design flow. The effect of reducing the design flow and the number of seats was to allow a shortened drain field which could be accommodated by the size of the property the Inn was to be located on. On June 27, 1985, Mr. Vail arranged for a notice to be published in the Apalachicola Times. That notice provided, in pertinent part, the following: State of Florida Department of Environmental Regulation Notice of Proposed Agency Action on Permit Application The department gives notice of its intent to issue a permit to Jack Vail to construct a restaurant and on-site wastewater treatment and disposal system [sic] at Franklin Boulevard and Pine Avenue, St. George Island. The treatment consists of grease trap, septic tank, and sand filter followed by disposal into a drainfield. The project meets applicable standards and will not impair the designated use of the underlying ground water. There is no anticipated impact on surface waters or air quality. . . . . This notice was sent to Mr. Vail by the Department and he made arrangements for it to be published. Nowhere in the notice is it indicated that the system to be approved by the Department is for anything other than a restaurant. On July 11, 1985, less than four months after the Application was filed with the Department, the Department issued Permit Number DO19-101251 (hereinafter referred to as the "Permit"). In the cover letter sent with the Permit the Department indicated that the Permit allowed Mr. Vail "to construct and operate a 2,160 gallon per day, on-site wastewater treatment and disposal system serving St. George Inn Restaurant. . . ." The Department also indicates in the Permit that it is for the "St. George Inn Restaurant." The Permit also provides, in pertinent part, the following with regard to the purpose of the Permit: The above named applicant, hereinafter called Permittee, is hereby authorized to perform the work or operate the facility shown on the application and approved drawing(s), plans, and other documents attached hereto or on file with the department and made a part hereof and specifically described as follows: Construct and operate a 108 seat restaurant with an on-site wastewater treatment and disposal system. Wastewater flows shall be a maximum of 2,160 gallons per day generated by domestic facilities and kitchen wastes . . . Construction shall be in accordance with application dated March 18, 1985 and additional information submitted April 29, 1985, specifications and other supporting documents prepared by Brown and Associates and certified by Benjamin E. Brown, P.E. and submitted to the Department on June 5, June 17, and June 20, 1985. The Permit also contains the following "General Condition" number 2 and "Specific Condition" number 15: . . . . 2. This permit is valid only for the specific processes and operations applied for and indicated in the approved drawings and exhibits. Any unauthorized deviation from the approved drawings, exhibits, specifications, or conditions of this permit may constitute grounds for revocation and enforcement action by the department. . . . . 15. The Department shall be notified and prior approval shall be obtained of any changes or revisions made during construction. . . . . The Permit provides the following with regard to the effect of the conditions of the Permit: The terms, conditions, requirements, limitations, and restrictions set forth herein are "Permit Conditions", and as such are binding upon the permittee and enforceable pursuant to the authority of sections 403.161, 403.727, or 403.859 through 403.861, Florida Statutes. The permittee is hereby placed on notice that the Department will review this permit periodically and may initiate enforcement action for any violation of the "Permit Conditions" by the permittee . . . . During the week after the Permit was issued, Mr. Vail obtained a building permit from Franklin County for the construction of the "inn." In February, 1986, after construction of the Inn had begun, Department inspectors went to the construction site of the Inn. The Permit authorized this inspection and other inspections carried out by the Department. The Department determined that the Inn being constructed by Mr. Vail included a restaurant, an apartment on the third floor of the Inn with two bathrooms, and eight guest rooms on the second floor, each containing a bathroom. This was the first time that the Department knew that Mr. Vail's facility was to include guest rooms and living quarters in addition to containing a 108 seat restaurant. In March of 1986, the Department sent a warning letter to Mr. Vail notifying him of the violation of the General Conditions of his Permit: the use of the approved system for the treatment and disposal of wastewater from the ten bathrooms in the guest rooms and the two bathrooms in the apartment in addition to the 108 seat restaurant. On April 1, 1986, Department personnel met with Mr. Vail and Mr. Brown. The Department reminded Mr. Vail and Mr. Brown that the Permit requested and approved by the Department was for a 108 seat restaurant only. The Department had not authorized a system which was to be used for a 108 seat restaurant and ten additional bathrooms. Pursuant to General Condition 14, the Department informed Mr. Vail that it needed an engineer's evaluation of the ability of the system which had been approved to handle the additional flow which could be expected from the additional ten bathrooms. By letter dated April 1, 1986, the Department memorialized the meeting and indicated that Mr. Vail could operate a 100 seat restaurant and the apartment during the interim. By letter dated May 8, 1986, Mr. Brown asked for additional time to submit the evaluation requested by the Department. The Department approved this request by letter dated May 14, 1986. By letter dated May 16, 1986, Mr. Brown submitted an engineering evaluation which proposed modifications to the approved system to handle the additional ten bathrooms. By letter dated June 13, 1986, the Department indicated that the evaluation was generally acceptable" but requested additional information. In January, 1987, before the additional information was submitted, Mr. Brown died in an airplane accident. No evidence was presented to explain why the information requested by the Department in June of 1986 had not been submitted before January, 1987. In March, 1987, the Department inspected Mr. Vail's facility again. In April, 1987, the Department informed Mr. Vail that the Department would take action to revoke the Permit. Before the Administrative Complaint was issued, the Department requested that certain information be provided on behalf of Mr. Vail by an engineer in an effort to resolve the dispute. Mr. Vail did not, however, obtain the services of an engineer. Instead, Mr. Vail sent the Department information purporting to show the amount of water which had been used at the Inn. That information failed to prove the ability of the system that the Department had approved to handle the maximum wastewater which could be expected from maximum use of the 108 seat restaurant and ten additional bathrooms. At best, the information submitted by Mr. Vail is partial proof that the system is capable of handling the wastewater that has been generated at the Inn for the period of time for which the information relates. No competent substantial proof has been submitted to indicate that the system is capable of handling the maximum wastewater flows which may be experienced or even that the system is adequately handling the current flow. All that has been proved is that there is no apparent problem with the system in handling the current flow. In September, 1987, the Department issued the Administrative Complaint. Pursuant to this Complaint, the Department has sought the revocation of the Permit and prescribed certain orders for corrective action. No application has been submitted by or on behalf of Mr. Vail to the Department to construct and operate a wastewater treatment facility designed to accommodate the sewage flows which may be generated by the Inn as it has been constructed. Although the Department of Health and Rehabilitative Services and other agencies were aware that the Inn includes a restaurant and guest rooms, the Department was never so informed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a Final Order requiring that Mr. Vail comply with all of the corrective orders, except Paragraph 18, contained in the Administrative Complaint. DONE and ORDERED this 11th day of March, 1988, in Tallahassee, Florida. LARRY J. SARTIN 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 11th day of March, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NUMBER 87-4242 The parties have submitted proposed findings of fact. It has been noted below which Proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Department's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact of Acceptance or Reason for Rejection 1 Conclusion of law. 2 1. 3 6. 4 10. 5 12 and 13. 6 14. 7 15. 8 18. 9 19. 10 20. 11-12 16. 13 21. 14 23. 15 24. 16 25. 17 26. 18-19 27. 20 28. 21 29 22 Hereby accepted. Mr. Vail's Proposed Findings of Fact 1A 15. Not supported by the weight of the evidence and irrelevant. Hearsay and irrelevant. Although technically true, this is not the issue in this case. The evidence did not prove that the system "can in actuality handle three times the amount permitted." Not supported by the weight of the evidence and irrelevant. 2A Not supported be the weight of the evidence. Exhibit 6 indicates that the Department was aware that the Inn included "hotel rooms" but not the number. Irrelevant. The evidence did not prove that the Department was aware of the scope of the project. Not supported by the weight of the evidence. 3A Irrelevant. Not supported by the weight of the evidence and irrelevant. Even if this were true, the fact remains that the Department was unaware that the Inn included guest rooms or an apartment. Irrelevant. 4A-B Irrelevant. 5A-B Irrelevant. 6A 2-4. B 5. 6 and 11. Not supported by the weight of the evidence. See 12. 13 and 15. Not supported by the weight of the evidence and irrelevant. Not supported by the weight of the evidence. 7A-C Not supported by the weight of the evidence and irrelevant. 8A-D Not supported by the weight of the evidence and irrelevant. 9A-B Not supported by the weight of the evidence and irrelevant. 10-12 Not supported by the weight of the evidence and irrelevant. COPIES FURNISHED: Richard L. Windsor, Esquire State of Florida Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Mr. John Vail St. George Inn Post Office Box 222 St. George Island, Florida 32328 Dale Twachtmann, Secretary State of Florida Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, Esquire General Counsel State of Florida Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue Did Petitioner violate Section 386.041 and Section 381.0065, Florida Statutes, as alleged in the Citation for Violation Onsite Sewage Program/Sanitary Nuisance?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times pertinent to this proceeding, the Department, through the Polk County Health Department, was the agency of the State of Florida charged with the responsibility of issuing permits for the construction, installation, modification, abandonment, or repair of onsite sewage treatment and disposal systems. The property in question is a duplex apartment building owned by Respondent and located at 1101-1103 Old South Drive, Lakeland, Florida. The two apartments in the duplex are serviced by a single septic tank and drainfield. In the summer of 1997, Petitioner determined that the drainfield needed repair and engaged the services of an individual who was not licensed to repair drainfields. Additionally, Petitioner did not obtain a permit for the repair to the drainfield. During the fall of 1997, Petitioner continued to experience trouble with the drainfield. Thereafter, on two separate occasions, Petitioner engaged the services of Burns Septic Tank Company (Burns) and Central Fla. Septic Tank Co. (Central) to pump-out the septic tank. Both Burns and Central indicated on their invoices for pumping out the septic tank that the drainfield was in need of repair. On December 9, 1997, after receiving a complaint from one of Petitioner’s tenants, the Department’s Environmental Specialist, Wade Schulz, made an inspection of the septic tank and drainfield at 1101-1103 Old South Drive, Lakeland, Florida. Schulz’s inspection revealed that the septic tank was backing up at the duplex apartments and that the septic tank D-box, old rock, and the drainfield pipe were exposed to the ground. Additionally, it was discovered that septage was flowing directly from the system to a wet drainage ditch. On December 9, 1997, Schulz verbally notified Petitioner that the system was in violation of: (a) Section 386.041, Florida Statutes (Nuisance injurious to health); (b) Section 381.0065, Florida Statutes (Prior approved system shall remain in operating condition); and (c) Section 381.0065, Florida Statutes (No person shall repair without permit). A written copy of the Citation for Violation Onsite Sewage Program/Sanitary Nuisance (Citation) was mailed to Petitioner but was returned as undeliverable. A copy of the Citation was personally served on Petitioner on January 23, 1998. After receiving the verbal citation from Schulz, Petitioner engaged Robby’s Septic Tank Service and had the septic tank pumped out. Other than pumping out the septic tank, Petitioner has made no other effort to correct the problem. After receiving the Citation, Petitioner met with the Department’s representative in an attempt to work out a solution. However, Petitioner contended that there was nothing wrong with the drainfield and refused to pay any fine. On July 9, 1998, the Department visited the site again and found that nothing had been done to correct the problem. Furthermore, the Department found that the system was still being improperly maintained. It was the opinion of both Schulz and Tony Warr, the Department’s Environmental Supervisor, that the only way to correct the problem was to completely repair the drainfield. It was Petitioner’s contention that the drainage ditch was clogged up resulting in a high water table around the drainfield and that if Polk County cleaned out the drainage ditch, allowing the water to flow off, it would resolve the problem of the drainfield. While the drainage ditch may be a problem, there was insufficient evidence to show that unclogging the drainage ditch would resolve the problem of the drainfield. It is clear that Petitioner’s drainfield is not operating properly and is in need of repair.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order finding the Petitioner guilty of the violations as charged and requiring Petitioner to pay a fine in the amount of $1,500.00 as set forth in the Citation for Violation Onsite Sewage Program/Sanitary Nuisance, Part 6. DONE AND ENTERED this 11th day of August, 1998, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 1998. COPIES FURNISHED: Angela T. Hall, Agency Clerk Department of Health Bin AO2 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1703 Dr. James Howell, Secretary Department of Health 1317 Winewood Boulevard Building 6 Room 306 Tallahassee, Florida 32399-0700 Glenn E. Woodard, pro se Post Office Box 2000 Eaton Park, Florida 33801 Roland Reis, Esquire Department of Health 1290 Golfview Avenue, Fourth Floor Bartow, Florida 33830
Findings Of Fact Petitioners operate an adult congregate living facility, meeting the definition set forth in Part II of Chapter 400, Florida Statutes, for such a facility. The facility is known as "Florida Happiness" and is located at 174 N.W. Second Avenue, Homestead, Florida. On February 22, 1988, Respondent notified Petitioners that their application for increased capacity and application for license renewal were denied due to multiple and repeated violations of minimum standards governing the operation of such facilities. Certain violations with regard to Petitioners' facility were discovered during the course of inspections conducted by Respondent's employees in January, April and August of 1987. Some of the violations found in January, 1987, were related to food service requirements and were uncorrected by Petitioners at the time of subsequent visits by Respondent employees in April and August of that year. The noted deficiencies were determined by Respondent to have been corrected as the result of another survey conducted on October 23, 1987, but Respondent's subsequent inspections conducted on January 11, 15 and 19, 1988, revealed some of those violations were again in existence. Among the violations found were: Facility income and expense records were not available for review. Also, resident contracts did not contain a refund policy addressing disposition of resident prepayments in the event of transfer of ownership of Petitioners' facility, closing of the facility or discharge of a resident. Petitioners did not provide evidence demonstrating that food service personnel received orientation, training or supervision in regard to their duties, or that such duties were performed in a safe and sanitary manner. Evidence also was not provided that the food service personnel participated in required in service education or possessed requisite knowledge of food and dietary requirements. With regard to therapeutic diets, no evidence existed that documentation of meal patterns, including types and amounts to be served, were properly filed, or that diets were served as ordered. Petitioners did not demonstrate that regular diets were planned or served to meet the nutritional needs of residents in accordance with current recommended dietary allowances. Existing menus did not depict realistic portion amounts or document availability of basic food groups. Menus presented did not show that the food served supplied sufficient calories or quantities. There was no documentation that dietary allowances were met by offering a variety of foods adapted to the food habits, preferences and physical abilities of residents. Petitioners made no showing that substitute foods with comparable nutritive value were planned and offered to residents who refused the normal fare. Menus were not dated and planned one week in advance. The required one week's supply of emergency food and water was not maintained at the facility. The fire alarm system was found to be inoperative and laundry rooms did not have self closing doors. Live roaches were found on kitchen shelves, thermometers in the refrigeration facilities of the kitchen were not functioning correctly, generally refrigeration facilities were soiled and roach infestations were evident. Pots and pans evidenced poor sanitation in that particles of foreign matter were found adhered to many of the containers. Written schedules for cleaning of dietary equipment were not in evidence or supplied to Respondent inspectors. Repeated food service sanitary code violations were corroborated by a Dade County Health Department inspector who found consistent problems with roaches, cleanliness and refrigeration thermometer equipment malfunctions at Petitioners' facility from later 1986 through the beginning of 1988.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying Petitioners' application for increased capacity and relicensure. DONE AND ENTERED this 27th day of September, 1988, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 27th day of September, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1880 The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. PETITIONER'S PROPOSED FINDINGS. 1.-2. Addressed in findings 1 and 2. 3.-5. Rejected, not supported by the greater weight of the evidence. RESPONDENT'S PROPOSED FINDINGS. 1.-2. Addressed in findings 1 and 2. Addressed in finding 3. Addressed in finding 4. Addressed in finding 3. COPIES FURNISHED: Leonard T. Helfand, Esquire Department of Health and Rehabilitative Services North Tower, Room 526 401 North West Second Avenue Miami, Florida 33128 S. Skip Taylor, Esquire 239 North East 20th Street Miami, Florida 33137 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Sam Power, HRS Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Petitioner is charged pursuant to a Citation for Violation, Onsite Sewage Program/Sanitary Nuisance with a violation of Section 386.04(1)(a) and (b), Florida Statutes (1997), which describes conditions that are prima facie evidence of a sanitary nuisance injurious to health.
Findings Of Fact It was stipulated that Petitioner, Ann B. Harvey, through her company Harvey Enterprises and Company, Inc., owns the home at 102 Williams Street, Palatka, Florida. At all times relevant to the alleged violation, the home was occupied by tenants. The tenants vacated the house on or about October 13, 1998. Kenneth F. Burnett, Environmental Specialist I, with the Putnam County Health Department, first investigated a complaint regarding the property at 102 Williams Street, Palatka, Florida, on August 5, 1998. He witnessed faulty plumbing in the home and ponded wastewater at the back of the home. On August 11, 1998, Mr. Burnett drafted and mailed a Notice to Abate. The notice was mailed by certified mail return receipt requested and received by Ann B. Harvey on August 25, 1998. Ann B. Harvey signed the return receipt for the Notice to Abate on August 25, 1998. Mr. Burnett again inspected the property on September 2, 1998, and found no change in the status of the faulty plumbing and ponded wastewater. On September 9, 1998, Mr. Burnett again inspected the property and determined there had been no changes. David Flowers, Environmental Specialist II, became involved in the case on September 18, 1998, when he inspected the property. Mr. Flowers observed that wastewater ponded on the ground at the back of the home, and that the plumbing inside the home was in disrepair. Ms. Laurey Gauch, Environmental Health Director for Putnam County Health Department testified. She inspected the property in question on September 18, 25, and 28, 1998. Ms. Gauch observed ponded wastewater in the backyard and plumbing in disrepair inside the home on each visit. Ms. Gauch opined that the condition of the property was a sanitary nuisance in violation of Section 386.041(1)(a) and (b), Florida Statutes (1997), because the ponded wastewater would breed disease (bacteria, viruses, etc.) and contamination. A Citation for Violation was received and signed for by Ronald Harvey on September 25, 1998, pursuant to statutory authority at Section 381.0065, Florida Statutes (1997). The citation cites the Petitioner for violation of Section 386.041(1)(a) and (b), Florida Statutes (1997). On September 25, 1998, Mr. Flowers again inspected the property, and observed that the sewage remained on the ground at the rear of the home. Mr. Flowers flushed dye in the toilet to determine if the standing water was coming from the toilet inside the home. The dye would run out onto the ground if the ponded water was from the toilet. Mr. Flowers inspected the problem on September 28, 1998. Sewage remained ponded on the ground at the rear of the home and the water bubbled when the toilet was flushed. Mr. Flowers re-inspected the property on September 29, 1998, and flushed dye in the toilet. He documented that the dye came to the ground surface. During the visit, Mr. Flowers was accompanied by a County Codes Enforcement Officer who condemned the home. On October 6, 1998, Mr. Flowers returned to the property with his supervisor, Geoff Batteiger. The tenants were still living in the home, but were reported to be leaving. The plumbing in the home remained unrepaired. When the toilet was flushed, water bubbled onto the ground surface. The problem had neither been abated, nor were there any signs that the problem was being corrected. No repairs were made to the premises between August 25, 1998, and October 6, 1998, a period of one and one-half months during which tenants lived in the home. On November 17, 1998, the property was reinspected by Mr. Burnett and Mr. Batteiger. They observed that the sanitary nuisance had been remedied. Ms. Lucille Harvey, property manager and sister-in-law to the Petitioner, testified for Petitioner. She collects rents and arranges for repairs. She had contacted one handyman who came to the home, but refused to do the work because of foul odor in the yard and fleas. Ms. Lucille Harvey did not contact anyone else for repairs until after the tenants had vacated the premises. The tenants kept dogs in the backyard where the problem was, and were uncooperative with the landlord. Ms. Lucille Harvey testified that she notified the Petitioner of the sanitary nuisance at the end of August 1998, and the problems she was having making repairs. Petitioner, Ann Harvey, testified she commenced eviction proceedings for the tenant at 102 Williams Street on or about July 12, 1998. The proceedings were on-going due to various legal exigencies until the tenants vacated the premises on or about October 13, 1998. Ms. Harvey was out-of-town from approximately July 22, 1998, through August 15, 1998, during which time a judge dismissed the eviction action. The action was recommenced. The tenant made a partial payment of one month, which Petitioner accepted. The judge again dismissed the eviction action. The sanitary nuisance at the property in question was not remedied until the Petitioner evicted the tenants and gained access to the premises. Mr. Thomas Harvey, handyman and brother Ron Harvey, testified that he began working on the repairs at the home at 102 Williams Street, on November 2, 1998. He testified that he replaced broken lines, cleaned a grease trap, and snaked the kitchen and bathroom. These repairs concluded on or about November 12, 1998.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law reached, it is RECOMMENDED: That the Department of Health enter a final order waiving the fine and payment as stated in the Citation for Violation. DONE AND ENTERED this 9th day of April, 1999, 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 (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 9th day of April, 1999. COPIES FURNISHED: Ron Harvey Route 2, Box 1650 Palatka, Florida 32177 Ann B. Harvey 102 Williams Street Palatka, Florida 32177 Susan E. Lindgard, Esquire Department of Health 1000 Northeast 16th Avenue Box 19 Gainesville, Florida 32601 Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1701 Dr. Robert G. Brooks, Secretary Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1701
The Issue The issues are whether Respondent violated Rule 62-532.500(2)(d)1., Florida Administrative Code, by failing to seat a well casing in a rock layer or other such consolidated formation, and if so, what penalty should be imposed.
Findings Of Fact Respondent is charged with the responsibility to conserve, protect, manage, and control water resources within its boundaries. Respondent's duties include the regulation of water wells and water well contractors. Respondent is a water well contractor. As such, he holds Water Well Contractor License No. 2215. On September 25, 1997, Petitioner issued Respondent Well Construction Permit No. 597679.01. The permit gave Petitioner permission to construct a water well, four-inches in diameter, on property owned by Rex Hobbs in Pasco County. Respondent subsequently constructed the water well on the property owned by Mr. Hobbs, using the cable tool construction method. Respondent completed construction of the well on or about October 20, 1997. After the well was constructed, Mr. Hobbs complained to Respondent on several occasions that the well was producing sand, rock, and other debris. Respondent made no attempt to repair the well. In May or June of 1998, Mr. Hobbs filed a complaint with Petitioner regarding the construction of the well on his property. Petitioner's subsequent field investigation did not reveal a significant amount of sediment in the well water. Mr. Hobbs filed a second complaint with Petitioner in the summer of 1998, insisting that the water from his well contained an excess amount of sediment. Petitioner's second field investigation revealed an abnormal amount of sediment in the well water. On July 9, 1998, Petitioner issued a Notice of Violation, advising Respondent that he had violated Rule 40D-3.037(1), Florida Administrative Code, by failing to seat the casing of the Hobbs well into a consolidated formation. Water from the Hobbs well contains sediments including sand, rock, and other debris. These sediments interfere with the operation of plumbing, appliances, and irrigation devices, which utilize water supplied by the well. The quality of the well water produced by the Hobbs water well is unacceptable. The total depth of the Hobbs well is 131 feet below land surface. The well is cased to 42 feet below land surface. The water pump is set at 84 or 86 feet below land surface. The static water level was 58.2 feet below the land surface. The geologic formation at the end of the casing of the well contains gray clay, yellow clay, limerock, and sand. The end of the casing is not seated in a layer of rock or other consolidated formation. There is no persuasive testimony to the contrary. The area in which the well is located is geologically unstable. Wells in that area generally require 84 feet of casing. Respondent admitted at the hearing that the well is producing sand and needs more "pipe." Failure to seat a well casing into a consolidated formation is a major violation under the Florida Department of Environmental Protection's Water Well Contractor Disciplinary Guidelines and Procedures Manual. Respondent has entered into three previous Consent Orders with Petitioner to resolve permitting and construction violations.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Petitioner enter a final order requiring Respondent to pay an administrative fine in the amount of $500 and assessing five points against his water well contractor's license. DONE AND ENTERED this 18th day of August, 1999, 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 (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 18th day of August, 1999. COPIES FURNISHED: Margaret M. Lytle, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Tony Holt 6145 Durant Road Durant, Florida 33530 E. D. Sonny Vegara, Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899
The Issue Whether Respondents' Division of Hotel and Restaurants' license should be suspended or revoked, or a civil penalty assessed for alleged violation of Division Rule 7C-4.01(5)(c) and Florida Statute s. 509.221, as set forth in Notice to Show Cause issued by the Petitioner.
Findings Of Fact On April 19, 1977, Johnny Bell, inspector for petitioner's Division of Hotels and Restaurants, received notification from the Health Department of Sarasota County that respondents' place of business, Port-of-Call, resort apartments located at Longboat Key, Florida, was not connected to the sewerage system of Longboat Key. Bell inspected respondents' premises and discovered that a septic tank system was in use at the Port-of-Call. He informed respondents that they must connect to an "approved" sewerage system within sixty (60) days. On June 20, 1977, Bell returned to the premises and found that no action had been taken to connect to the Longboat Key system. Respondent Edward W. Henderson informed him that he should not have to go on such a system because his septic tanks were adequate and functioning properly. Bell did not examine the septic tanks or ascertain if they were, in fact, in proper condition and operating satisfactorily. He proceeded to issue a Notice to Show Cause as to why respondents' license No. 68-606H should not have a civil penalty assessed against it or be suspended or revoked. The stated cause for such intended action was as follows: "Division Rule 7C-4.01(5)(c) ; Florida Statutes 509.221 -- Failure to have sewage system hooked into public sewerage system." The Notice to Show Cause also informed respondents of their right to an Administrative Hearing under Chapter 120, Florida Statutes. Respondents thereafter requested such a hearing. There is no food operation at the Port-of- Call. (Testimony of Bell, Exhibit 1)
Recommendation That the charges against respondents be dismissed. Done and Entered this 10th day of October, 1977, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Lawrence C. Winson, Esquire Department of Business Regulation The Johns Building, Suite 210 725 South Bronough Street Tallahassee, Florida 32304 John W. Meshad, Esquire 100 South Washington Boulevard Sarasota, Florida 33577
Findings Of Fact The Petitioner is a wholly owned subsidiary of Queens Cove Properties, Inc. Mr. Alex B. Cardenas is president of the parent development company as well as the utility. The water system was constructed for the sole purpose of providing water to purchasers of lots in the Queens Cove subdivision. However, the Petitioner obtained certification as a public utility to serve the general area in the belief that it was required to do so. See Section 367.031, Florida Statutes. Lots in this subdivision have sold for $15,000 to $24,000, which includes undifferentiated amounts for availability of water service. The water service is part of a "bundle of rights" which the purchaser obtains with his lot. (e.g. bridge, roads, underground utilities). In addition, existing lot owners have purchased the "bundle of rights" separately from their land (where Queens Cove was not the original property seller) at prices ranging from $4,000 to $8,000. Again, the charge for water service availability was not differentiated from other rights. At the time of the second hearing, the utility had 45 connections--42 single family residences, one developer's office, one model home, and an irrigation outlet. Ten customers testified (five by adoption) at these hearings as to service problems. The water treatment plant is of the reverse osmosis type. This system is complex and costly to maintain, but is useful where as here the raw water contains a high level of natural impurities. The utility has not properly maintained this system and water taste, smell and clarity are generally poor. The customers also experience frequent periods of very low water pressure. Furthermore, they are unable to contact the utility when outages occur after business hours since there is no emergency phone number provided. The testimony of a Department of Environmental Regulation (DER) representative also established that chlorine residuals are not properly maintained and a high coliform reading in June, 1980, will require monitoring by DER. Thus, overall service is unsatisfactory and must be improved before the Petitioner is allowed to receive a return on its investment. See Section 367.081(2), Florida Statutes, which requires the Commission to consider service in setting rates. Profits earned by a utility with service deficiencies such as these would normally be placed in escrow until the problems were corrected. Here, however, the utility does not seek to earn a return on its investment, but only to break even. In addition, there was no competent, substantial evidence adduced by either Petitioner or Respondent to demonstrate what the utility's investment is. Therefore, rate base cannot be determined in this proceeding, and consequently no return can be established. Appendix one hereto details Petitioner's test year expenses as set out in its rate application, with adjustments to correct erroneous entries and to delete or reduce expenses which were not shown to be reasonable and prudent. No controversy exists with the exception of allowances for plant manager compensation, office rent and rate case expense. The Petitioner's request for an annual manager's salary of $20,000 was not supported by the evidence. No salary is currently paid for this function, nor is a plant manager as such required or utilized. Rather, the limited functions of a plant manager can be handled by one of the full time maintenance or administrative employees. This procedure is consistent with management practices in other small, developer-owned water utilities. Such delegation does not, however, relieve the owner from his duty to hire qualified personnel and provide adequate resources. A separate allowance for office rent is not justified. The Petitioner has no office in the immediate area but uses the owner-developer's office in Stuart. There is no need for a separate office under the present organizational structure, and therefore no expense for this item should be authorized. Evidence on rate case expense (attorney and accountant fees) was submitted by post-hearing pleadings pursuant to agreement of the parties. The Petitioner seeks $9,702 rate case expense, amortized over three years, or $3,234 annually. The Respondent proposes to allow $6,000 amortized over five years, or $1,200 annually. As with other expenses, the amount authorized will be paid by customers and any portion disallowed will be borne by the owner of the utility. The rate case expense sought here is $215 per customer, which far exceeds the average water/sewer utility rate case expense of $6.92 per customer. A substantial portion of these expenses were incurred as a result of Petitioner's failure to keep adequate records and its initial decision to proceed without counsel. Therefore, the reduction of authorized expenses to $6,000 proposed by Respondent is appropriate. However, Petitioner's proposed three-year amortization period better represents industry experience and is consistent with current Commission policy. Therefore, the rate case expense authorized is $6,000 amortized over three years, or $2,000 annually. The Petitioner currently bills its customers on a monthly basis using a minimum gallonage charge. This rate design neither encourages conservation of water nor accurately reflects the cost of providing service. Therefore, the utility should be required to adopt the base facility charge rate structure. This charge includes a fixed amount for the customer's share of the utility's fixed costs, as well as a gallonage charge to represent the variable expenses associated with water consumption. Petitioner requested authority to increase its tap-in or meter installation fee from $100 to $200. This increase was authorized on an interim (escrow) basis by Order 9140. The utility has now withdrawn its request for the increase and should return the escrowed amounts to all customers who have paid the $200. In addition, Petitioner should be required to pay interest on customer deposits at the rate of 6 percent prior to July 1, 1980, and 8 percent after that date. See Section 25-10.72, Florida Administrative Code. Since no interest on deposits has ever been paid, the credit must be retroactive to the date of each customer's deposit. Proposed findings of fact were submitted by the Petitioner and the Public Service Commission. To the extent these proposed findings have not been adopted herein or are inconsistent with the above findings, they have been specifically rejected as irrelevant or not supported by the evidence.
Recommendation Based on tide foregoing findings of fact and conclusions of law, it is RECOMMENDED that the petition of Island Services, Inc. be granted in part, and that Petitioner be authorized to file new rates structured on the base facility charge concept, designed to generate gross water revenue of $12,823 annually, based on the average number of customers served during the test year. It is further RECOMMENDED that Petitioner be required to refund $100 to all customers who have paid the interim $200 water connection charge and that its tariff be amended to show that $100 is the authorized charge for this service. It is further RECOMMENDED that Petitioner pay interest on deposits at the annual rate of 6 percent through June 30, 1980, and at 8 percent thereafter, with such payments retroactive to the dates of deposit. DONE and ORDERED this 6th day of August, 1980, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: R. M. C. Rose, Esquire 1020 East Lafayette Street Tallahassee, Florida 32301 Marta M. Crowley, Esquire Florida Public Service Commission Fletcher Building, 101 E. Gaines St. Tallahassee, Florida 32301 Douglas E. Gonano, Esquire Citizens Federal Building Suite 200 1600 South Federal Highway Fort Pierce, Florida 33450
Findings Of Fact Petitioner sat for the Civil/Sanitary Engineer Examination on April 15, 1988. He received a failing grade with an original score of 41 raw points. Since that time, he has been awarded an additional 3 raw points and has a score of 44 raw points. A passing grade is 48 raw points and is, therefore, 4 raw points from passage. Petitioner contests the score given him on three of the problems on the examination. They are problems 120, 122, and 421. He did not have the test booklet he used at the examination available to him at the hearing. Though he recognizes that the grader who assessed his scores was not allowed to look at his test booklet during the scoring process, many of his calculations for problems 120 and 122 were made in it. Problem 120 requires the examinee to compute 6 stations and the coordinates of the 6 points of the two involved curves on a railroad spur line. Petitioner computed the six points to what he considers an acceptable tolerance and had also started to compute the coordinates as required by Requirement (b). His solution page for Requirement (a) of this problem reflects only the six points, of which 5 are marked incorrectly, and bears the grader comment, "show computations." The second page, relating to Requirement (b), on which the first 3 calculations are marked as incorrect, reflects only cursory calculations and bears the grader comment, "Incomplete." Petitioner was awarded a score of "4" for his solution to problem 120. According to the National Council of Engineering Examiners Standard Scoring Plan Outline, the guideline relating to "4", "BORDERLINE UNQUALIFIED", reads: Applicant has failed to demonstrate adequate knowledge in one or more categories. For example, approach may be correct but the solution is unreasonable. Significant constraints may have been overlooked. Solution is unacceptable but marginally so. The scorer's remarks concerning Petitioner's solution state: A solution which fails to demonstrate an adequate understanding of horizontal curve geometry as a result of logic errors, math errors, and failure to complete several parts. According to Petitioner, he used the Civil Engineering Reference Manual in his calculations. He also contends that Requirement (a) is far more important to the problem than is Requirement (b). Once the former is achieved, it is easy to achieve the latter. Admittedly, Petitioner did not complete Requirement (b) and, therefore, does not expect credit for it. However, he contends that having completed Requirement (a) correctly, he should have been awarded more than 40% credit. Petitioner also contends that the use of the term, "Not To Scale" in the test problem was deliberately deceptive which was not necessary to test engineers at this level of achievement. In this case, Petitioner contends the lack of availability of the examination test booklet in which he did many of his calculations hinders him in demonstrating the correctness of his solution. These computations, he contends, would show his computations in Requirement (a) were "close enough" to be graded correctly and without these computations, the scorer would not know if he did them or merely copied the answers. He would not, also, have any way of knowing if Petitioner has knowledge of horizontal curve geometry. Mr. Lippert, a licensed registered engineer testifying on behalf of Petitioner, believed that the answers to the problems to be more important than the computations. In a practical application he may be correct. However, in the instant case Petitioner is a candidate for certification as a Professional Engineer and was being examined on his qualifications for that status. In such a situation, it is not at all unreasonable to expect the candidate to demonstrate his method of arriving at his solution to demonstrate his understanding of the concept sufficiently to indicate his answer was neither copied nor a fluke. Since the candidate is seeking a higher degree of recognition, a requirement that he demonstrate a higher degree of professional skill is not unreasonable. Under the fact situation demonstrated here, the award of a "4" as a grade for Petitioner's solution to this problem is appropriate. In Problem 122, the candidate was required to use and show equations for his calculations of (a), the average maximum and minimum sanitary wastewater flows expected, in gallons per day, for the total complex in issue; (b), the theoretical full flow capacity and velocity with no surcharge; and (c), depth and velocity of flow for the estimated maximum flow rate. The candidate was instructed to conclude, if possible, that the sewer is not overloaded. The problem deals with a troublesome wastewater disposal system for a retirement community of 490 units with a population of 1,475. Here, Petitioner was awarded an a score of "8" and feels he should have received more. As to (a), Petitioner cited in his answer the reference manual he was using, a manual used by many engineers and one accepted in the profession, yet the grader apparently felt that the use of only the title was insufficient. He wanted the author's name, publisher, date of publication, and other salient information. Petitioner felt this was unnecessary in light of the well known status of the book. In (b), the problem calls for 10" UCP pipe. All pipe, depending upon the material from which constructed, has a different diameter. Petitioner's solution was marked at least partially incorrect because he assumed the interior diameter of the pipe as .83' when the problem stated the interior diameter was 10". Petitioner contends that even with that unnecessary calculation based on an incorrect assumption, his solution of 2.295 feet/second velocity was sufficiently close to the grader's solution of 2.35 feet/second to be marked correct. Similarly, Petitioner contends his velocity in (c) was within a "tolerable" margin and that his conclusions is "OK". While the grader considered his method in this section as "OK", he marked the calculation almost entirely wrong. This may be related to the formula used by Petitioner in (b) which, he admits, is wrong. He contends he must have brought the wrong number over from his calculations which he accomplished in his test booklet. This booklet is not now available, but, in any case, would not have been seen by the scorer. Petitioner also claims that the gallons per capita per day figure of 100 is the standard "everyone uses" to calculate problems involving sewage. Here, because he was taking an examination, he used a figure of 112.5 gallons per day, a compromise between 100 and 125, which he took from the reference manual without citing page number from which taken. Consequently, he contends the grader's comment that his figure is too high is in error but even if it was too high, he ran the calculations correctly and should be given full credit. It is his position that in a case like this, error on this high side, which would give greater capacity, is better than being short. Being correct would be even better, and Petitioner's solutions was not correct. In the scoring plan outline for this problem, an "8" is described as: QUALIFIED; All categories satisfied, errors attributable to misread tables or calculating devices. Errors would be corrected by routine checking, Results reasonable though not correct. and a "9" is described as: QUALIFIED: All categories satisfied, correct solutions but excessively conservative in choice of working values; or presentation lacking in completeness of equations, diagrams, orderly steps in solution, etc. The scorer's comments were: CQ. Fundamentals are correct. Solutions are basically correct and complete but contain math, unit, or tolerance errors making answers unacceptable; or the record is different, or in combination. Here, Petitioner contends that his ultimate solution, only .05 feet/second off in velocity is so close that the error is insignificant. It is close but the difference between an "8" and a "9" lies in the correctness of the ultimate solutions. "Close" is not "correct" and Petitioner's errors are not attributable to misread equations or devices but to his own improper assumptions. Because his calculations were done in a test booklet which is not now available it cannot be determined where the error originates which caused (c) to be marked as it was. Under the circumstances shown here, the score of "8" awarded is not inappropriate. Problem 421 calls for the candidate to find the required volume in cubic feet of on site storage so that post development flows on the parcel of land in question do not exceed the pre-development flows to the existing stream for the 25 year frequency rainfall. Petitioner determined the pre and post development numbers correctly but did the retention area in the old fashioned way resulting in his solution equating to 1/2 of the correct solution. The grader indicated that Petitioner's "procedures [sic] [were] in error here." Petitioner has a one page solution to the problem and got credit for his answer of "4.22" to the first stage of the problem as well as his answer to the second part. He admits, however, that his third step was wrong and that threw the problem answer off. He contends, however, that he was undergraded when awarded a "4" and while he admits to not deserving a "6", feels he should have received a "5". Grades for this problem were awarded on a 2-4-6-8-10 point scale. A "5" was not an authorized score. The scoring plan for this problem describes a "4" as: BORDERLINE UNQUALIFIED; Applicant has failed to demonstrate adequate knowledge in one or more categories. For example, approach may be correct but the solution is unreasonable. Significant constraints may have been overlooked. Solution is unacceptable but marginally so. A grade of "6" is described as: MINIMALLY QUALIFIED: All categories satisfied at a minimally adequate level. Here the scorer indicated: Pre and post calculation OK. An attempt at detention calculation made but no significant progress toward conclusion. Fails to demonstrate knowledge necessary to calculate detention as existing. Detention calculations fail to demonstrate knowledge of hydrograph [sic] nature of storage calculations. Only one data point obtained. The comments of the grader on the Petitioner's answer sheet clearly indicate that the answer given was incorrect and that the Petitioner failed to demonstrate adequate knowledge of the procedures in issue. Since there is no provision made to award any grade between "4" and "6", and since Petitioner's answer clearly, and by his own admission, does not qualify for a "6", the awarded score of "4" is appropriate. Based on the above, it is found that Petitioner has failed to demonstrate that the scores given him on the problems in issue were incorrect, unsupported, or inappropriate.
Recommendation Based on the foregoing Findings of Fact and conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered affirming the score awarded to Petitioner on questions 120, 122, and 421, respectively, of the Civil/Sanitary Engineer Examination administered to him on April 15, 1988. RECOMMENDED this 4th day of April, 1989 at Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of April, 1989. COPIES FURNISHED: Leonard A. Smally Longboat Key, Incorporated 501 Bay Isles Road Longboat Key, Florida 33548 H. Reynolds Sampson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Allen R. Smith, Jr. Executive Director Board of Professional Engineers 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint. If so, what action should be taken against him.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: The Department is a state government licensing and regulatory agency. Respondent is registered with the Department as a septic tank contractor. Gayle Gibson owns and resides in a three-bedroom, two- bath single-family home located at 2425 Riverlane Terrace in Fort Lauderdale, Florida (Gibson's property). In late 1993 or early 1994, Gibson was experiencing problems with the septic system on her property (in the form of sewage backup and resultant unpleasant odors). Gibson contacted Respondent (who is the son of Gibson's former mailman) and asked him to come to her property to ascertain what was wrong and to take whatever remedial action was necessary. Respondent complied with Gibson's request and went to her property. After examining the situation, he told Gibson that she needed to have the septic tank on the property pumped and a new drainfield installed. Respondent recommended that the new drainfield be installed on the side of Gibson's home, instead of in the front yard (where the existing drainfield was located). Gibson made arrangements for Respondent to perform these services in exchange for money and art work. These arrangements between Gibson and Respondent were not reduced to writing. On or about January 20, 1994, Respondent pumped out the septic tank on Gibson's property and Gibson paid him $200.00, by check, for having performed such work. In late February of 1994, Respondent installed a new drainfield on the side of Gibson's home and Gibson paid him $500.00, by check, for having performed such work. At no time did Respondent obtain a permit to install the drainfield. The heavy equipment that Respondent used to perform the work was unloaded in Gibson's front yard. The unloading of the heavy equipment damaged the front yard. It cost Gibson a total of $175.00 to have the damage repaired. The drainfield that Respondent installed was an EEE ZZZ Lay Drain system comprised of Styrofoam material. Considering the size of Gibson's home, the drainfield was grossly undersized, as Respondent should have realized. It was approximately one-third the size it should have been. Predictably, shortly after this undersized drainfield was installed, Gibson again experienced sewage backup and related problems on her property. Gibson informed Respondent of the reoccurrence of these problems. Respondent told Gibson that he would take remedial action if Gibson paid him another $500.00. Gibson refused to make any additional payments to Respondent. Respondent never returned to Gibson's property to correct the error he had made in installing an undersized drainfield. Gibson contacted the Department and advised it of the problems she was experiencing with her septic system. Following an investigation of the matter, the Department issued the Administrative Complaint described in Preliminary Statement of this Recommended Order. Subsequently, on January 13, 1998, in an unrelated case, the Department issued and served on Respondent a citation imposing a $500.00 fine against Respondent for abandoning, without good cause, a septic system installation project he was contractually obligated to complete. The citation contained a "Notice of Appellate Rights," which indicated that "[t]his citation becomes a Final Order of the Department if you have not contested the Citation within thirty (30) days of the date which the Citation was served upon you." Respondent has neither "contested" the citation, nor paid the $500.00 fine it directed him to pay.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order finding Respondent guilty of the unlawful conduct alleged in the Administrative Complaint and disciplining him therefor by suspending his septic tank contractor's registration for 90 days and fining him in the amount of $1,000.00. DONE AND ENTERED this 29th day of June, 1998, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 29th day of June, 1998.
