The Issue The issue to be resolved in this proceeding concerns whether the Petitioner violated Florida Administrative Code Rules 64E-6.022(1)(b)2, 64E-6.022(1)(d), and 64E-6.022(1)(p) by making repairs to an on-site sewage disposal system without a permit, and by missing required inspections of the system, as outlined in the citation issued by the Respondent Agency dated August 29, 2005.
Findings Of Fact The State of Florida, Department of Health and Duval County Health Department (Department) is an Agency of the State of Florida, charged with enforcing the statutory and regulatory provisions regarding septic tank and drain field installations and repairs, in Florida, in accordance with Section 381.0065, Florida Statutes, and Florida Administrative Code Rule Chapter 64E-6. The Petitioner is the qualifying registered septic tank contractor for All Florida Septic Tank Service, Inc. (All Florida). He holds registration number SR00011389. He has 15 years of experience in the field of septic tank system construction and repair. All repairs of on-site sewage treatment and disposal systems (septic systems), are required to be performed under the supervision and control of a registered septic tank contractor. Mr. David Adeeb is president of United Properties of North Florida, Inc. He owned property (a residence) at 375 North Cahoon Road, in Duval County Florida. He was informed by his tenants at that residence that the septic tank and drain field were malfunctioning and needed to be repaired or replaced, sometime in April 2004. He therefore contacted All Florida, asking them to inspect the septic system at that residence and advise what repairs might be needed. He was advised by some representative of All Florida that the drain field needed to be replaced and was quoted a price of $2,000.00. All Florida requested that payment be made before the work was performed. Since Mr. Adeeb was out-of-town at the time he asked his tenant to temporarily pay All Florida for the cost of the repairs and/or installation, which they agreed to do. All Florida then issued a contract/proposal to United Properties on April 12, 2004. It was signed by a representative of All Florida, Michael Carver. Mr. Carver was an employee of All Florida. The contract/proposal indicated that a 360 square foot drain field would be installed at 375 Cahoon Road, for a price of $2,000.00, to be paid in cash. The contract/proposal was on All Florida letterhead and included a warranty. Mr. Adeeb was told by his tenant that the Petitioner, who is personally known to that tenant, was on the property while the work was being performed. No one applied for a permit to make any repairs to the septic system and the work was completed without a permit being obtained. Some five months later the system began leaking sewage from the new drain field. It had malfunctioned. Mr. Adeeb therefore again called All Florida to demand that they repair any malfunctions pursuant to the warranty. All Florida informed Mr. Adeeb that a new drain field with a mounded system and pump was needed. When Mr. Adeeb told a representative of All Florida that they had just replaced the drain field in April of that year, he was told that another $2,000.00 would be required to correct the drain field problem. Mr. Adeeb had just recently entered into a contract to sell the property at 375 Cahoon Road so, time being of the essence in closing the sale of the property, he felt he had no choice but to ask All Florida to go ahead with the repair work on the system which All Florida had been asked by him to repair five months previously in April of 2004. After the new system was installed Mr. Adeeb found that a permit had never been obtained for the first drain field work which he had requested from All Florida and that All Florida had done the work incorrectly. Mr. Adeeb objected to paying another $2,000.00 for the second repair job, performed in approximately September of 2004 and after much discussion with All Florida's representatives agreed to pay $1,000.00 dollars for the second stint of repair work. He made the payment and he received a warranty from All Florida for one year, good through September 22, 2005. The warranty was signed by Mr. Wayne Joyner, operations manager for All Florida. Mr. Joyner is also the qualifying registered septic tank contractor for AA Septic Tank Service, Inc., apparently a second corporation domiciled at the same facility and address as All Florida Septic Service, Inc. In May of 2005 Mr. Adeeb was again contacted by the now former tenant who had purchased the property from Mr. Adeeb. He was thus informed that the system had failed again and sewage was leaking onto the surface of the property from the drain field. Mr. Adeeb again contacted All Florida on May 23, 2005. A representative of All Florida informed him that he should fax a copy of the paid receipt and the warranty to them and that they would take care of the problem. On June 20, 2005, the home owner again contacted Mr. Adeeb and told him that no one from All Florida had repaired the drain field as yet. A faxed copy of the paid receipt and warranty was requested once again by All Florida. After numerous phone calls with representatives of All Florida, Mr. Adeeb was told that the problem was not due to All Florida's repair work and that Mr. Adeeb would need to get someone else to repair the system. The Petitioner, James L. Smith, the registered qualifying septic tank contractor for All Florida, testified that Michael Carver had performed the initial repair job in April of 2004 for Mr. Adeeb without the knowledge of the Petitioner or All Florida. He claims that Michael Carver never worked for All Florida. He introduced into evidence a letter purported to be from Michael Carver which was dated September 30, 2005, but signed on October 5, 2005. That letter states that Mr. Carver performed the first drain field repair job without the knowledge of All Florida and that he had created the receipt form which was apparently given to either the tenants at the residence in question, or to Mr. Adeeb, on All Florida letterhead without the knowledge of any officer, employee, or representative of All Florida. That letter, however, was not authenticated because Mr. Carver was not present at the hearing and could not be examined concerning it, or the details of Mr. Carver's involvement with the initial repair project. Moreover, the Petitioner was unable to explain how Mr. Carver would have known about the job at all if he had never worked for All Florida. This is because Mr. Adeeb established that in obtaining all of the repair work during 2004-2005 he had only contacted representatives of All Florida. He had never had contact with Mr. Carver. The Petitioner denied ever telling counsel for the Department in a telephone conversation that Michael Carver had worked for him during the week (i.e. All Florida) but that he let Mr. Carver do "side jobs" on his own on weekends. He claimed that Mr. Carver did the job in question in April of 2004 because the tenants knew him personally and arranged for him to do the work. The testimony of Mr. Adeeb and the Department's evidence in the form of its composite exhibit, is accepted as more credible than the self-serving testimony of the Petitioner, and it is found that All Florida and the Petitioner were responsible for the repair jobs at issue in this case because Mr. Adeeb contracted with All Florida for the work in question. Even if the initial job was performed by Mr. Carver, it is determined that he did so as employee or agent of All Florida and the Petitioner. Under the authority cited herein the Petitioner was responsible, as the qualifying, registered septic system contractor for All Florida, with performance and supervision of the work in question.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Respondent Department finding that the violations charged have been established and that a fine of $2,500.00 dollars be imposed for the violations. DONE AND ENTERED this 30th day of March, 2006, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with Clerk of the Division of Administrative Hearings this 30th day of March, 2006. COPIES FURNISHED: James L. Smith 8300 West Beaver Street Jacksonville, Florida 32220 Catherine R. Berry, Esquire Department of Health 515 West Sixth Street Jacksonville, Florida 32206-4311 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Timothy M. Cerio, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue The issue is whether Petitioner created a sanitary nuisance in violation of Florida Administrative Code Rules 64E- 6.022(1)(l) and 64E-6.022(1)(q) and, if so, the proper penalty.
Findings Of Fact The Department of Health, Duval County Health Department (Department), is the state agency charged with enforcing the statutory and regulatory provisions pertaining to septic tank installations and repairs in Florida, pursuant to Section 381.0065, Florida Statutes, and Florida Administrative Code Sub-Chapter 64E-6. Mr. Hoag is registered as a Septic Tank Contractor pursuant to Florida Administrative Code Rule 64E-6.019. He was issued registration no. SR0911053. It was necessary to install a new septic tank at residences located at 8817 and 8821 Bellrose Avenue, in Duval County, during March 2004. The owner of the premises, Ben Lewis, contracted with Florida Septic Tank Service, Inc., to accomplish this work. A repair application was submitted to the Department on March 8, 2004, and was approved. Florida Septic Tank Service, Inc., engaged Mr. Hoag, of Plumbing and Contracting by Hoag, to accomplish the plumbing portion of the operation. Sometime on April 8, 2004, the exact time not being estimated, Mr. Hoag disconnected the stub from the residences that ran to the former septic tank. This was done so that pipes could be run to a new septic tank. He neither connected the line that he disconnected to the new septic tank nor capped the pipe. Mr. Hoag requested the occupants of the residences to refrain from using the sanitary facilities within the residences until he was able to continue his work on April 9, 2004. Despite this request, the facilities were used between April 8, 2004, and April 9, 2004. On April 9, 2004, sometime prior to 11:45 in the morning, Colleen Bierbach, an inspector with the Department, entered the premises of 8817 and 8821 Bellrose Avenue and observed household wastewater and human fecal matter on the ground at the terminus of the stub. Pictures were taken that memorialized the nature of the deposits. Inspector Scott Turner, of the Department, issued a citation to Mr. Hoag that indicated that the offense occurred at 11:45 a.m. on April 9, 2004. The citation reflected a violation of Section 386.041(1)(a), Florida Statutes, and Florida Administrative Code Rule 64E-6.022(1)(l) and (q). With regard to Florida Administrative Code Rule 64E-6.022(1)(l), the citation charged only that he committed, "Gross negligence, incompetence, or misconduct which causes no monetary harm to a customer." The citation was accepted by Mr. Hoag on April 15, 2004. Mr. Hoag's failure to either connect the line to the new septic tank or to cap the outflow line, caused an unsanitary and unsafe condition to exist at 8817 and 8821 Bellrose Avenue, Duval County, on April 9, 2004. No evidence was adduced as to the exact time that the pipe was opened on April 8, 2004, or as to the exact time that the pipe was closed and the area decontaminated on April 9, 2004.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Duval County Health Department, dismiss the citation issued to Mr. Hoag on April 9, 2004. DONE AND ENTERED this 15th day of February, 2006, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of February, 2006. COPIES FURNISHED: Catherine R. Berry, Esquire Department of Health 515 West Sixth Street Jacksonville, Florida 32206-4311 Robert J. Hoag Plumbing & Contracting by Hoag Post Office Box 7931 Jacksonville, Florida 32238 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Timothy M. Cerio, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Dr. John O. Agwunobi, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701
Findings Of Fact Petitioner and her husband jointly own a parcel of property in Ezell Beach, Taylor County, Florida, which lies contiguous to the Gulf of Mexico. On February 1, 1985, Petitioner made application to DER for a dredge and fill permit and water quality certification to construct a pile supported house with a mounded septic tank and drain field on her property. The 768 sq. ft. house was to be 32 ft. x 24 ft. and the mounded septic tank and drainfield would have covered a 2,250 sq. ft. area with approximately 300 cu. yds. of fill. For all practical purposes, Petitioner's property is covered entirely by salt marsh areas dominated by smooth cordgrass (Spartina alterniflora), black needlerush (Juncus roemerianus), salt grass (Distichlis spicata), sea daisy (Borrichia frutescens), and marsh elders (Iva frutescens). On November 25, 1985, DER issued its Intent to Deny the permit for both the house and the mounded septic tank system. After that date the house was constructed; the septic tank system was not. DER stipulated at hearing, based upon the particular facts of this case, that it no longer objected to the construction of the house. The proposed fill would permanently eliminate approximately 2,250 sq. ft. of tidal marsh within the landward extent of the Gulf of Mexico. This kind of salt marsh provides detritus for support of the aquatic based food chain and provides essential feeding and nursery grounds for fish and acuatic organisms. It is also important in maintaining water quality through the filtration uptake and transformation of pollutants from upland runoff, as a result of the assimilative capacity of the detrital microbial population and benthic micro-organisms, as well as the adsorptive and absorptive capacity of the soils. Elimination of the tidal marsh and its associated vegetation by filling would reduce the capability of the system to perform its vital functions and therefore the filling associated with the project could be expected to have a long-term detrimental impact on water quality and biological resources. The proposed filling would further result in water quality degradation by replacing the periodically inundated areas, which help maintain water quality in waters of the state, with uplands containing a septic tank with the potential for adding pollutants to waters of the state. Based on evidence provided by Petitioner, the proposed project does not provide reasonable assurances that turbidity, nutrient, dissolved oxygen, biological integrity, bacteriologioal quality and biochemical oxygen demand water quality standards will not be violated. To the contrary, the evidence presented by Respondent suggests that the immediate and long-term impact of the filling would result in violation of State Water Quality Standards. The placement of the fill and septic tank would result in turbidity and an overabundance of bacteria and nutrients. This overabundance would lead to depletion of the oxygen dissolved in the water and an increase in BOD, along with the production of algae or some other less desirable plant life than that ordinarily found in a fully functioning salt marsh. The filling would also adversely affect invertebrate and marine animals which negatively impacts the biological integrity of the marsh. Petitioner did not provide reasonable assurances that the project is not contrary to the public interest in accordance with Section 403.918(2), Florida Statutes. To the contrary, the evidence presented by Respondent suggests that the project will adversely affect certain of those criteria. Public health, safety and welfare would be negatively affected because septic tanks in wetlands become inundated and release improperly treated septage into the environment. Fish and wildlife are negatively affected by eliminating the habitant of juvenile fish, invertebrates and other creatures which are food chain constituents. Marine productivity will decrease to some degree since the filling will eliminate a productive area. The proposed project poses cumulative impact concerns. If others similarly situated to Petitioner also placed mounded septic tank systems in close proximity to the Gulf of Mexico, the total negative environmental impact would be very extensive. The only evidence presented by Ms. Gibson regarding her entitlement to the fill placement necessary for septic tank installation was her testimony that other similar houses in similar areas have septic tanks. She specifically discussed a house built by a Mr. Rogers in Dekle Beach, Florida, which she stated had a similar septic tank system. However, no evidence was presented to show that in fact the Rogers project was similar to this project. In fact, DER presented evidence that Rogers may have installed a septic tank and fill, but in fact Rogers had no permit to do so.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Regulation enter a Final Order granting Sallie P. Gibson a permit for construction of a house and denying the dredge and fill permit for installation of a mounded tank and drainfield. DONE AND ENTERED this 27th day of May, 1987, in Tallahassee, Florida. DIANE K. KIESLING 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 May, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-0818 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Sallie P. Gibsons Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(2); 2(4); 3(4); 4(5); 5(12); and 6(13). Proposed finding of fact 7 is rejected as irrelevant and immaterial. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, State of Florida, Department of Environmental Regulation Proposed findings of fact 1-13 are adopted in substance as modified in the Recommended Order in Findings of Fact 1-13. COPIES FURNISHED: Ms. Sallie P. Gibson 1003 North Washington Street Perry, Florida 32347 William Congdon, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301-82419 Dale Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Findings Of Fact At all times material to this proceeding, Respondent, James A. Tipton ("Tipton"), has been a registered professional engineer in the State of Florida, having been issued license number PE 0018147, which expires on January 31, 1987. Tipton employed the services of Robert Corno as a field man for taking samples to establish soil profiles, site characteristics and existing water tables for septic tank applications prepared and filed by Tipton. Corno had actual authority from Tipton to conduct tests, site examinations and evaluations and to submit his findings to Tipton. Sometime before April 8, 1985, Tipton was retained to perform professional engineering services in connection with the preparation and filing of an application for a septic tank on lot 168, block 3, Charlotte Ranchettes Subdivision in Charlotte County ("lot 168"), owned by Joseph Duseo. Tipton sent Corno to lot 168 on April 13, 1985, to examine and evaluate the site, take soil samples and make other observations that would have to be reported to Tipton in connection with Tipton's work. Corno completed his work and reported to Tipton. Corno did not bring Tipton the actual soil samples. On April 8, 1985, Duseo's general contractor told Corno about a well on lot 168. When Corno visited the site, he observed the well. The well is an artesian well, about 3 feet high and six inches in diameter. The well is an irrigation-type well and is non-potable. The well was within fifty feet of the drain field of the septic system Tipton proposed for lot 168. The well also is approximately 5 to 10 feet from the north property line. Corno knew at the time of his visit to the site that the well was not plugged. However, Corno understood that Duseo was in the process of arranging with the Southwest Florida Water Management District to have the well plugged. Corno did not tell Tipton about the well before Tipton prepared and filed the application for the proposed septic tank. Therefore, Tipton did not know there was a well on lot 168 when he was preparing the application for the septic tank permit. Tipton did not ask Corno any questions calculated to reveal whether there was a well on lot 168. Corno held the belief that non-potable wells, especially those that were to be plugged, did not have to be shown on septic tank permit applications. There was evidence about a survey of lot 168 certified by a land surveyor employed by a firm of professional engineers which did not show any well on lot 168. However, Tipton did not have access to the survey before he prepared the septic tank permit application on lot 168. (The survey bears two dates, April 17 and April 18, and was not signed until April 25, 1985.) On or about April 15, 1985, Tipton signed and certified the septic tank permit application for lot 168. The application was filed at the Charlotte County Public Health Unit (Health Department) on April 16, 1985. The application indicates "none" in the space provided to indicate the "location of wells within 75 feet of property lines." The well on lot 168 is an important consideration which should have been depicted on the application. Septic tank drain fields could pollute a well. Even if Tipton had known that the well was supposed to be plugged, it was not plugged until July 1985. Failure to show the well was a serious omission. Tipton was negligent for relying on Corno without having an understanding whether Corno would report to him the existence of non-potable wells within 50 feet of the drain field of a septic system or within 75 feet of a property line if the well was likely to be plugged. If he had used due care, Tipton would have either made explicit inquiry of Corno sufficient to reveal the existence of the well or ascertained from Corno in advance that he would report to Tipton the existence of any well within 50 feet of the drain field of a proposed septic system or within 75 feet of property lines. Having failed to exercise due care, Tipton did not realize that Corno would not be reporting to him the existence of a non-potable well which was supposed to be plugged in the future. A few days after he filed the application, Tipton learned about the well on lot 168. But at about the same time, Duseo and his contractor began discussing construction alternatives that would change the septic system and require a new septic tank application. Therefore, Tipton did not immediately amend the April 15 application to show the well. In mid-May, Tipton filed a new application for the different septic system. The new application, not in issue in this case, showed the well. The application also contained a soil profile which probably is not accurate. However, Tipton's soil profile simply reflects the information reported to him by Corno. While Tipton's soil profile does not correspond with soil profiles from other test holes dug in the area of the proposed drain field by the Health Department and an expert witness, the information Corno reported to Tipton was well within the realm of possibilities for soil in the area of lot 168. Corno generally seemed to be a qualified and experienced field man who used proper tools to do his job. There was nothing suspicious about Corno's information, and there was no reason for Tipton to suspect that it was false or fraudulent. While it is the better practice for a professional engineer to require his field man to deliver the actual soil sample to support a soil profile report, this is not required of professional engineers if there is no reason to suspect that a field man's soil profile report is false or fraudulent. On the application, Tipton estimated the high water table on lot 168 at 2.2 feet below existing grade. While other expert witnesses estimated a higher high water table, the evidence did not prove that Tipton was negligent in his estimate. Some of the conflicting estimates were Health Department estimates which, the evidence indicates, tend to be high to be on the safe side. Others were estimates on permit applications which may have been influenced by the Health Department's desires and which may not reflect the engineers' actual estimates. Of all the estimates, only Tipton's was supported by testimony how the estimate was derived. (Tipton used what he called Darcy's Law.) Finally, Petitioner's own expert witness testified that Tipton's high water table estimate could not be called negligent.
Recommendation Based upon the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Board of Professional Engineers enter a final order holding Respondent, James A. Tipton, guilty of negligence in the practice of engineering under Count I of the Amended Administrative Complaint (but dismissing Count II of the Amended Administrative Complaint) and imposing an administrative fine in the amount of five hundred dollars ($500.00). RECOMMENDED this 19th day of May, 1986, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of May, 1986. COPIES FURNISHED: Ms. Sarah Logan Executive Director Board of Professional Engineers 130 North Monroe Street Tallahassee, FL 32301 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 Salvatore A. Carpino, Esq. General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 Wings Slocum Benton, Esq. Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 John Charles Heekin, Esq. C-1 Ocean Plaza 21202 Ocean Blvd. Port Charlotte, FL 33952 APPENDIX The following are specific rulings on all the parties' proposed Findings of Fact as required by Section 120.59(2), Florida Statutes (1985). Rulings on Petitioner's Proposed Findings of Fact Petitioner's Proposed Findings of Fact 1 through 3, 9, 10, 13 through 16, 19, 21 and 22 are accepted as substantially factually accurate and are incorporated in the Findings Of Fact in the same or similar format to the extent necessary. Petitioner's Proposed Finding Of Fact 4 would have been included in paragraph 1 above except that the last sentence is unnecessary. Petitioner's Proposed Finding Of Fact 5 would have been included in paragraph 1 above except that the third sentence is unnecessary. Petitioner's Proposed Findings Of Fact 17, 18 and 27 would have been included in paragraph 1 above except that they are unnecessary. Petitioner's Proposed Finding Of Fact 26 would have been included in paragraph 1 above except that whether Alligator Creek is a "significant" drainage feature would depend on the definition of "significant" which was not established by the evidence. In addition, Petitioner's Proposed Finding Of Fact 26 is unnecessary. Petitioner's Proposed Findings Of Fact 6 through 8 are rejected as conclusions of law and because the last sentence of Proposed Finding Of Fact 6 is cumulative. Petitioner's Proposed Finding Of Fact 11 is rejected because the first sentence is contrary to the greater weight of the evidence and Findings Of Fact and the second sentence is, subordinate to Findings Of Fact. Petitioner's Proposed Findings Of Fact 12, 20, 23 and 24 are rejected as subordinate to Findings Of Fact. Petitioner's Proposed Finding Of Fact 25 is rejected because the first sentence is subordinate to Findings Of Fact and the second sentence is contrary to the greater weight of the evidence. Rulings on Respondent's Proposed Findings of Fact. Respondent's Proposed Findings Of Fact 1 through 3, 5 and 12 are accepted as substantially factually accurate and are incorporated in the Findings Of Fact in the same or similar format to the extent necessary. Respondent's Proposed Finding Of Fact 4 would have been included in paragraph 1 above except that the second sentence is unnecessary. Respondent's Proposed Finding Of Fact 8 would have been included in paragraph 1 above except that it is unnecessary. Respondent's Proposed Finding Of Fact 9 would have been included in paragraph 1 above except that it is in part unnecessary. Respondent's Proposed Finding Of Fact 11 would have been included in paragraph 1 above except that it is contrary to the greater weight of the evidence and Findings Of Fact that there is "no way" for an engineer to avoid relying on a field man's error such as Corno's error in omitting to report the existence of the well. Respondent's Proposed Finding Of Fact 14 would have been included in paragraph 1 above except that it is irrelevant. Respondent's Proposed Finding Of Fact 6 is rejected because it is subordinate to Findings Of Fact and is unnecessary. Respondent's Proposed Finding Of Fact 7 is rejected because it is simply a recitation of conflicting evidence, some of which is accepted but some of which is rejected as contrary to the greater weight of the evidence and Findings Of Fact. Specifically, it was found that Corno did not tell Tipton about the well and that Tipton did not have the survey in his possession at the time the application was filed. Respondent's Proposed Finding Of Fact 10 is rejected as contrary to the greater weight of the evidence and Findings Of Fact. Specifically, the evidence supported a finding of negligence on the part of Tipton for failure to utilize due care and to have due regard for acceptable standards of engineering principles whether or not practicing in Charlotte County. In addition, Mr. Murray's expert testimony must be disregarded because it was given upon a hypothetical assumption that an engineer had possession of a sealed survey showing no improvements on the property as the time of the application, a fact not proved by the evidence. Respondent's Proposed Finding Of Fact 13 is rejected as contrary to the greater weight of the evidence and Findings Of Fact. Specifically, personnel in the Health Department, part of the "general public," were misled. (The general public also reasonably could have been led to a fallacious conclusion, but there was no "misconduct" on Tipton's part. See Conclusions of Law.) ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF PROFESSIONAL ENGINEERS DEPARTMENT OF PROFESSIONAL REGULATION, FLORIDA BOARD OF PROFESSIONAL ENGINEERS Petitioner, vs. DOAH CASE NO. 85-2684 DPR CASE NO.0058289 JAMES A. TIPTON, Respondent. /
The Issue The petition in this matter was filed pursuant to Section 57.111, Florida Statutes, seeking fees and costs arising from an underlying proceeding (DOAH Case No. 93-5526) in which the Department of Health and Rehabilitative Services entered a Final Order adopting the hearing officer's recommendation that the administrative complaint against Wayne H. Crotty, d/b/a Crotty Septic/Roto- Rooter, be dismissed. The parties have stipulated to the reasonableness of the fees and costs, the total of which exceeds the statutory $15,000.00 maximum. Respondent, Department of Health and Rehabilitative Services, contests entitlement to the award and argues that Petitioners are not prevailing small business parties and, further, that the agency had a reasonable basis in law and fact at the time its complaint was filed.
Findings Of Fact The Parties Wayne H. Crotty is, and at all relevant times has been a licensed septic tank contractor in the State of Florida. Crotty Unlimited, Inc. was formed in 1987 as a holding and management company for several small, diversified corporations held by the Crotty family. One of those companies was Crotty Septic Service, Inc., which was involved in septic contracting and related businesses since 1972. In the early 1990's the other small corporations were sold, and when only Crotty Septic Service, Inc. was left, it was dissolved and was later registered as a fictitious name under which Crotty Unlimited, Inc. was doing business. From March 1992 until approximately June 1994, Crotty Septic Roto- Rooter was registered as a fictitious name owned by the corporation, Crotty Unlimited, Inc. Wayne H. Crotty is currently a director and president of Crotty Unlimited, Inc. Prior to Fall of 1994 he was vice president and secretary of the corporation. He is now, and was at all relevant times, a minority shareholder. In 1992 and 1993, Wayne H. Crotty filed applications for septic tank contracting authorization pursuant to Chapter 489, part III, Florida Statutes, for the business "Crotty Septic/Roto-Rooter." The certificates were issued by the Department of Health and Rehabilitative Services under that designated business name. Wayne Crotty never applied for or received a certificate of authorization for septic tank contracting under the name, "Crotty Unlimited, Inc." Prior to 1992 the business authorization was in the name, Crotty Septic Services, Inc. The Department of Health and Rehabilitative Services (HRS), through its state health program officer, is the state agency with statutory responsibility for licensing septic contractors, and monitoring and disciplining those contractors. The program office relies on the field staff in local county health units to conduct inspections and investigate complaints. The Underlying Proceeding In 1993 Wayne Crotty had an application pending for a permit from HRS for a septage disposal service, temporary system service and septage treatment and disposal facility. The application designates the business as "Crotty Septic/Roto-Rooter" and the owner as "Crotty Unlimited, Inc." The application describes a lime stabilization facility on Southport Road in Osceola County (the Southport facility). The purpose of the facility was to receive pumped-out sewage effluent, treat the effluent through lime stabilization and spread the treated effluent in a designated field at the facility. Michael Napier, assistant director of environmental health in Osceola County conducted a series of inspections of the Southport facility in April, May and June of 1993. Mr. Napier noted what he considered were violations of Chapter 386, Florida Statutes, relating to sanitary nuisances and rule chapter 10D-6, Florida Administrative Code, relating to the treatment and disposal of septage and the standards of practice of septic tank contracting. He spoke with Wayne Crotty and corresponded with him regarding the inspection findings and he also consulted with Gerald Briggs, an environmental manager with HRS' state health program office in Tallahassee. Gerald Briggs drafted the administrative complaint in July 1993 based on the consultations with Michael Napier, the correspondence between the Osceola County health unit and Wayne Crotty and the inspection reports, photographs, or other supporting documentation. Throughout several months' time period Briggs felt from the tone of the letters that the corrections would be made. By July when Michael Napier said that the plant was handling a large quantity of septage in a very unsanitary and sloppy manner, Briggs agreed the facility should not be permitted as he was concerned about the impact on public health and the threat to ground and surface water in the area. Once Gerald Briggs decided to pursue an administrative complaint he determined that the respondent should be Wayne Crotty as the licensed septic tank contractor. The file on Wayne Crotty's certificate of authorization indicated that Crotty Septic/Roto-Rooter was the authorized business name. Wayne Crotty had in early 1992 informed Gerald Briggs that he had purchased a Roto-Rooter franchise and wanted to be able to advertise under that name. Briggs advised that as an individual septic tank contractor he could only qualify one authorized business and the business he advertised would have to be the one that was authorized by the agency. Briggs advised that Wayne Crotty could amend his authorization to change the business name from Crotty Septic Service, Inc. to Crotty Septic/Roto-Rooter. When Gerald Briggs drafted the administrative complaint alleging violations found by Michael Napier and the Osceola County field staff, he relied on the information in his files and named Wayne Crotty as the responsible septic tank contractor and what he understood was Crotty's business: Crotty Septic/Roto-Rooter. The respondent throughout the underlying proceeding was designated as "Wayne H. Crotty, d/b/a Crotty Septic/Roto-Rooter." No corporate party appeared in that underlying case (DOAH number 93-5526) by intervention or otherwise. Richard G. Hunter, Ph.D., HRS Health Officer for Environmental Health and Statewide Services signed the administrative complaint based on his examination of the packet prepared by his program and legal staff and the information from the field. The complaint sought to impose $2,500 in administrative fines on Wayne H. Crotty for violating regulations concerning disposal of stabilized septage and for creating or maintaining a sanitary nuisance. Wayne Crotty denied the allegations and requested a formal hearing. The case was referred to the Division of Administrative Hearings, was assigned DOAH number 93-5526 and was heard on February 3-4, 1994. Included in the recommended order was this ultimate conclusion: 94. At most, the department established some intermittent sloppy practices by the Respondent -- practices that resulted primarily from the failure to have proper equipment available (the dumpster), and from untrained staff (Norm's admission about the cows). In the absence of clear advance notice of violations and an opportunity to correct the violations as provided by section 386.03, Florida Statutes, and with Respondent's evidence of reasonable attempts to cooperate and to obtain more appropriate equipment and train staff, those isolated practices should not be subject to penalty. (Recommended Order entered 6/28/94) In a Final Order entered on August 22, 1994, the Department of Health and Rehabilitative Services adopted the findings, conclusions and recommendation of the hearing officer and dismissed the administrative complaint against Wayne H. Crotty, d/b/a Crotty Septic/Roto-Rooter. The Elements Required for an Award of Fees and Costs Respondent, Wayne H. Crotty, thus prevailed in the underlying action. Wayne Crotty was an officer, minority shareholder and, according to his testimony, an employee of Crotty Unlimited, Inc. (transcript, p. 58). He was not a sole proprietor of an unincorporated business; he was not a small business party. At the time that the complaint was filed the agency had a reasonable basis to claim that violations were occurring or had occurred. However, its initiation of the proceeding was fatally flawed by its failure to provide statutory notice and an opportunity to correct the violations. When the complaint was filed the parties were still engaged in free-form discussion and correspondence regarding operations at the lime stabilization facility.
The Issue Whether or not Respondent failed to reasonably honor a warranty relating to the installation and repair of a septic tank system.
Findings Of Fact Petitioner, the Department of Health and Rehabilitative Services, is the regulatory agency which regulates the installation and prescribed standards for on-site sewage disposal systems. Respondent, Alan Billings d/b/a Billing's Liquid Waste Removal, is a Florida entity registered and authorized by Petitioner to provide septic tank contracting services. On or about February 12, 1992, Respondent performed a septic tank repair at a two bedroom residential home located at 13904 Summers Avenue, in Hudson, Pasco County, Florida. Respondent's repairs consisted of adding 100 square foot of drainfield to the existing system, three yards of rock, cover paper, pipe, and a distributor box. Respondent provided the repairs as he agreed to on or about February 11, 1992. Installation of the additional drainfield by Respondent was proper and based on the size of the home (a two bedroom house), it was adequate for the building's normal requirement. Petitioner's expert, Van Kampen, testified without contradiction that the septic tank system repairs by Respondent were proper and was attached to an existing system which further added to the capacity of the system. The added capacity was far in excess of the particular purpose required for the home if used by a family of four. Based on the size of the home in which Respondent made the repairs, the maximum water usage anticipated would have been 4500 gallons of water per month. Documentary evidence introduced herein indicates that during the months in question, the average water usage at the subject home exceeded 11,000 gallons per month. The unexpected usage caused a "hydraulic overload" of the system, and was not within Respondent's expectations when he repaired it. Van Kampen related that the family that resided in the home consisted of seven (7) members. Respondent was unaware of that fact nor was he apprised of this fact until subsequent to the repairs when the system failed due to a hydraulic overload. Respondent did not offer a warranty to cover the "hydraulic overload" which is at issue herein.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Petitioner enter a final order dismissing the administrative complaint filed herein. DONE AND ENTERED this 4th day of February, 1994, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 1994. COPIES FURNISHED: Robert Powell, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Kim Tucker, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Ron Smith, Esquire 12360 66th Street North Largo, Florida 34643 Shirley K. Hart, Esquire HRS District V Legal Office 11351 Ulmerton Road, Suite 407 Largo, Florida 34648-1630
Findings Of Fact David D. Boak, Petitioner, owns a 3/4 acre lot at 9602 East Flora Street on which he proposes to put a two-bedroom house trailer. The area is rural in nature. There is no sewage service to the area and none is currently planned. Soil samples taken at the site show that from 9 inches to 48 inches below the surface the soil is a mixture of Manatee and Pompano fine sands which have poor percolation qualities. Soil Survey for Hillsborough County (Exhibit 1) describes the limitations of these soils for septic tank use as severe with wetness. Petitioner contends that he has lived on this property for 21 years and has had his septic tank pumped out once, 11 years ago; that he has never seen this property flooded; nor has he seen water standing on the property more than minutes following a heavy rain. Respondent's witnesses testified the water table at this site is 13 inches below the surface and septic tanks will not work properly in this area. When Petitioner's initial application for a permit was denied, he applied for a waiver. The application for waiver was presented to the review group pursuant to the provisions of Rule 10D-6.45(1), Florida Administrative Code, and the review group recommended the waiver be granted. However, the Staff Director, Health Program Office, denied the waiver and this appeal followed. The Hillsborough County Aviation Authority has condemned the land in this area, including that owned by Petitioner, for use as a county airport site. That condemnation proceeding is currently in litigation. If this property is ultimately taken for airport purposes, Petitioner will have no use for the variance here sought. Testimony was presented that the soil conditions plus the wetness factor make the site unsuitable for the installation of a septic tank. No evidence was presented regarding the pollution of surface waters by a septic tank in this area or whether public health will or will not be impaired if a septic tank is installed.
The Issue The issue addressed in this proceeding is whether Respondents should be disciplined for violating provisions of Chapters 381, 386 and 489, Florida Statutes, governing septic tank installation and licensure.
Findings Of Fact Respondent, Susan Burkett, is registered with the Department as a septic tank contractor. She is registered to provide such contracting services under the name U.S.A. Septic Tank Company. Respondent, Ron Burkett, is married to Susan Burkett. She employs her husband in her septic tank business. In the past, Ron Burkett, has done business as Working Man Septic Tank. Neither Ron Burkett nor Working Man Septic Tank have ever been registered septic tank contractors. Mr. Burkett was previously disciplined for the unregistered practice of septic tank contracting. However, there was no non-hearsay evidence presented in this case which demonstrated that Mr. Burkett continues to perform unregistered septic tank work. Likewise there was no substantive evidence which demonstrated that Susan Burkett aided her husband in practicing as an unregistered septic tank contractor. Around March 29, 1995, U.S.A. Septic Tank was hired by Architectural Trends, Inc. to install an on-site 1500 gallon septic tank system for $1500.00. Respondent, Ron Burkett, dug the hole for the septic tank. The septic tank was delivered to the site and was actually placed in the ground by another company. The placement of the tank was difficult because of the layout of the structures on the lot and the soft sandy soil of the lot. Neither Respondent was present when the septic tank was placed in the hole. The company who placed the tank in the ground placed the tank backwards. Additionally, at some point in the process from the tanks supplier to its placement in the hole dug by Mr. Burkett the tank was cracked. For reasons not established by the evidence, the contractor contracted with the company who installed the tank to re-install a new tank and complete additional sewage work necessitated by the tanks elevation. The contractor paid $5081.00 for the second company's work. However, the evidence did not show that either Respondent walked off the job. Likewise, the evidence did not show that either Respondent was negligent in the installation of the tank or caused their employer any monetary harm. This lack of evidence was caused by the fact that the Respondents' employer for the job who had personal knowledge of the facts, could not be found and, therefore, did not testify at the hearing. Given the facts of this case, the Administrative Complaint against Respondents should be dismissed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is, accordingly, RECOMMENDED, that the Department dismiss the Administrative Complaint. DONE and ENTERED this 23rd day of October, 1996, in Tallahassee, Leon County, Florida. DIANNE CLEAVINGER 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 23rd day of October, 1996. COPIES FURNISHED: Ron Ringo, Esquire Department of Health and Rehabilitative Services 160 Governmental Center Pensacola, FL 32501 Susan Burkett U.S.A. Septic Tank Company Working Man Post Office Box 3648 Pensacola, FL 32516 Gregory D. Venz, Agency Clerk Department of Health and Rehabilitative Services Building 7, Suite 204-X 1317 Winewood Boulevard Tallahassee, FL 32399-0700 Richard Doran, Esquire Department of Health and Rehabilitative Services Building 7, Room 204 1317 Winewood Boulevard Tallahassee, FL 32399-0700
