Findings Of Fact The Respondent, Hance B. Jones, is a registered septic tank contractor. The Petitioner is charged with regulating septic tanks, and may initiate charges against septic tank contractors which fail to comply with the statutes and rules regulating septic tanks. The Department's local inspector, Mr. Land, was asked by a representative of Best Septic Tank Contracting to meet with the Best representative and Ms. Inez Quiett at Ms. Quiett's home and confer about a proposed septic tank repair. On March 5, 1992, Mr. Land visited the site, observed water standing around an area which he was advised was the existing septic tank and drain field, and was asked what would have to be done. Mr. Land advised that they would have to obtain a permit, and that the new drain field would have to be separated by at least 24 inches from the wet season water table, and that this would entail placing the drain field in a mound. Mr. Land left the site expecting to have a representative of Best pick up a permit for the repairs within a few days. When Mr. Land did not see anyone come in about the permit, he drove by Quiett's, and observed disturbed soil in the area of the drain field. He stopped, went to the Quiett's house, and spoke with Ms. Quiett's son. The son advised that they had repaired the drain field. Mr. Land asked who had repaired the field, and the son advised him that Mr. Jones had repaired it. On April 22, 1992, Mr. Land then wrote a letter to the Respondent and advised Jones that he had violated the law by repairing Quiett's septic tank and not obtaining a permit for the repair. Mr. Jones spoke with Land at Land's office, and denied that he had repaired the septic tank. Mr. Jones stated he had provided the materials and equipment used to repair the tank. On April 22, 1992, Ms. Quiett called Mr. Land on the telephone, and told Land that Mr. Jones had helped her with the tank, but denied that Jones had been her contractor. The Respondent denied that he was the contractor of the job; denied he was on the site; denied he supervised the work; and denied he received any compensation from Quiett. He indicated that he knew Ms. Quiett's brothers, who were contractors, and admitted that he had provided the materials used on the job and had loaned them his backhoe. Ms. Quiett was asked about the repairs to the system and invoked her privilege against self-incrimination.
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 the Administrative Complaint against the Respondent be DISMISSED. DONE AND ENTERED this 26th day of August, 1992, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of August, 1992. COPIES FURNISHED: David West, Esquire District 3 Legal Office 1000 N.E. 16th Avenue Gainesville, FL 32609 Bobby Kirby, Esquire Route 2, Box 219 Lake Butler, FL 32054 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 John Slye, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
The Issue Whether Rules 10D-6.072(3)(d), (e), and (f), Florida Administrative Code, are an invalid exercise of delegated legislative authority on the ground that these three rules enlarge, modify, or contravene the specific provisions of law implemented, in violation of section 120.52(8)(c), Florida Statutes (Supp. 1996).
Findings Of Fact Petitioner applied for septic tank contractor registration in July 1996. On September 6, 1996, the Respondent issued its intent to deny his application on the grounds that he failed to meet the required qualifications listed in Rules 10D-6.072(3)(d), (e), and (f), Florida Administrative Code. Rule 10D-6.072(3)(d) provides that an applicant is not qualified to take the registration exam to become a licensed septic tank contractor if a previous registration issued by the Respondent has been revoked within the last 5 years. Rule 10D-6.072(3)(e) provides that an applicant is not qualified to take the registration exam to become a licensed septic tank contractor if he has a disciplinary case pending with the Respondent involving septic tank contracting. Rule 10D-6.072(3)(f) provides that an applicant is not qualified to take the registration exam to become a licensed septic tank contractor if he has been convicted of a crime in any jurisdiction which is directly related to the practice of contracting. Petitioner filed a request for a hearing, in which he alleged Rules 10D-6.072(3)(d), (e), and (f) constitute an invalid exercise of delegated legislative authority in that these rules enlarge, modify, or contravene the specific provisions of law implemented, in violation of section 120.52(8)(c), Florida Statutes (Supp. 1996). Rules 10D-6.072(3)(d), (e), and (f) formally took effect on January 3, 1995. There is no material failure to comply with the procedural requirements of Chapter 120, Florida Statutes, in the promulgation of these rules. 9. Sections 154.06, 381.0011, 381.006, 381.0065, 489.553, and 489.557, Florida Statutes, grant the Respondent specific authority to adopt rules implementing the statutes. Petitioner does not dispute the Respondent’s rulemaking authority. Rules 10D-6.072(3)(d), (e), and (f) implement sections 154.01, 381.001, 381.0011, 381.0012, 381.0025, 381.006, 381.0061, 381.0065, 381.00655, 381.0066, 381.0067, Part I of Chapter 386, and Part III of Chapter 489, Florida Statutes. Part III of Chapter 489, Florida Statutes (Supp. 1996), is the chapter governing septic tank contractor registration. Chapter 10D-6, Florida Administrative Code, are the rules pertaining to Standards for Onsite Sewage Treatment and Disposal Systems, which include septic tank systems. A person who becomes a registered septic tank contractor has the authority to install, maintain, repair, and perform site evaluations for repairs of onsite sewage treatment and disposal systems. There are an estimated 1.4 million septic systems in use in Florida. The onsite sewage treatment program impacts public health in that it prevents and corrects sanitary nuisances; prevents pollution to groundwater, which is the primary drinking water source in the state; prevents pollution to surface water; and eliminates risks to public health from exposure to improperly treated human waste. Untreated or improperly treated human waste contains many significant disease-causing organisms injurious to human health. A “sanitary nuisance” is the “commission of any act, . . . or the keeping, maintaining, propagation, existence, or permission of anything, . . . by which the health or life of an individual, or the health or lives of individuals, may be threatened or impaired, or by which or through which, directly or indirectly, disease may be caused.” Section 386.01, Florida Statutes (1995). “Improperly built or maintained septic tanks” and “untreated or improperly treated human waste” constitute “prima facie evidence of maintaining a nuisance injurious to health.” Section 386.041(1), Florida Statutes (1995). The training, regulation, and registration of septic tank contractors, who install and repair such systems, is directly related to public health. An improperly installed or repaired system may result in untreated human waste or raw sewage either surfacing on the ground, backing up in the owner’s house/business, contaminating groundwater, and contaminating nearby surface water. The Respondent regularly receives complaints from citizens detailing installation problems, including complaints regarding improper workmanship, the premature failure of their septic tank system resulting in sewage on the ground around their house, and the contractor’s failure to honor his/her warranty. The impetus behind regulating contractors came primarily from the industry itself (i.e., the Florida Septic Tank Association). The qualification outlined in Rule 10D-6.072(3)(d), which provides that an applicant is not qualified to become a registered septic tank contractor if the Respondent has revoked his prior septic tank registration within the last 5 years, protects the public from sanitary nuisances caused by the improper installation and repair of septic tank systems. This qualification is, moreover, an indicator of an applicant’s “good moral character.” The qualification outlined in Rule 10D-6.072(3)(e), which provides that an applicant is not qualified to become a registered septic tank contractor if the applicant has a disciplinary case pending with the Respondent involving septic tank contracting, fits into what the septic tank contracting program under chapter 489 and Chapter 10D-6 is designed to accomplish. This qualification protects the public by denying licenses to those persons who have demonstrated they are not complying with the rules or statutes. The qualification outlined in Rule 10D-6.072(3)(f), which provides that an applicant is not qualified to become a registered septic tank contractor if he has been convicted of a crime in any jurisdiction which is directly related to the practice of contracting, fits into what the septic tank contracting program under Chapter 489 and Chapter 10D-6 is designed to accomplish. This qualification protects the public by denying licenses to those persons who are not law abiding and do not follow the standards. “Good moral character” is not defined in Chapter 489, Florida Statutes. Each of the three qualifications established by Rules 10D-6.072(3)(d), (e), and (f) make specific or interpret an individual’s good moral character. The Department’s statutory authority for Rule 10D- 6.072(3)(d), Rule 10D-6.072(3)(e), and Rule 10D-6.072(3)(f) comes from: (a) section 489.553(2), which requires the Department to “provide qualifications for applicants;” (b) section 489.553(4)(a), which says the applicant “must be of good moral character’” (c) section 489.558(2), which says the Department may deny registration if it determines the applicant “has violated any provision of this part [Part III of Chapter 489];” and (d) section 489.556, which authorizes the Department to suspend and revoke licenses. The Joint Administrative Procedures Committee (JAPC) has neither filed an objection nor voted on an objection to the three rules at issue in this case. Although a staff member of JAPC, in response to Petitioner’s complaint, recently made a preliminary inquiry into the validity of these rules, the committee did not adopt the staff member’s recommendation.
The Issue Whether Respondent is guilty of creating, keeping, or maintaining a nuisance injurious to health in violation of Section 386.041(1)(b), Florida Statutes, as set forth in the Citation for Violation, dated August 19, 1996.
Findings Of Fact Petitioner, Department of Health, the successor agency to the Department of Health and Rehabilitative Services, is the state agency charged with the responsibility of investigating and correcting sanitary nuisances in this state. The Respondent, Hyacinth D. Wynter, now known as Hyacinth D. Wallace, has owned a private residence and kennels located at 2323 Tuscawilla Road, Winter Springs, Florida, from 1996 to the present. On or about June 19, 1996, the Seminole County Public Health Unit received a complaint of a possible sanitary nuisance existing on the Respondent’s property. On June 21, 1996, an inspection of Respondent’s property revealed that the property contained a large home with a septic tank and drain field in the front yard and another in the back yard. A kennel for small animals and an apartment was also located in the rear of the property. The septic tank and drain field in the rear of the property was located in a low spot which was subject to the accumulation of surface water runoff from the kennel and during periods of above-average rainfall. Observation revealed standing water in the back yard. The water showed discoloration and had a pungent odor. However, no solid waste was visible. Subsequent tests for sewage contamination was inconclusive. This observation indicated the drain field had failed. Respondent was given a Sanitary Nuisance form letter which recommended that the septic tank be pumped, the ground disinfected and the drainfield be repaired within ten days. Respondent contacted two septic tank companies in late June and received estimates on pumping the septic tank and on the repair and improvement of the septic system. Respondent retained one of the companies to pump the septic tank. The septic tank company was unable to complete the job prior to Petitioner’s reinspection on July 2, 1997, because of above normal rainfall and the inability to get its truck into the Respondent’s back yard. Petitioner reinspected Respondent’s property on July 2, 1997 and observed the same conditions as was observed on June 21, 1997. A three day extension was granted to Respondent, in order for the tank to be pumped. On July 3, 1997, Orlando Septic Tank Service, Inc. pumped the septic tank and disinfected the area. It also advised Respondent that the drainfield had failed and would need to be replaced. On July 8, 1997, Respondent inspected the area again and observed the same conditions as on the prior inspections. An Official Notice to Abate a Sanitary Nuisance and a Notice of Intended Action was issued by Respondent on July 11, 1997. It was served on Respondent, by posting and by certified mail, on July 12, 1997. Respondent was directed to abate the nuisance within 7 days of the notice or an administrative fine would be imposed. Respondent began to disinfect the area with lime on a daily basis, until the drainfield was repaired. The low area with the standing water was bordered off with visible construction type ribbon and visitors coming to the premises were advised to stay clear of the area. Respondent authorized Orlando Septic Tank Service to submit a permit application to replace the drainfield in accordance with the specifications approved by the Petitioner. The application was submitted on July 17, 1996. The permit was issued on July 24, 1996. On July 25, 1997, Respondent received a proposal from Orlando Septic Service to install an elevated drainfield on the site for the sum of $4,288.50. Respondent was not able to financially afford to authorize this work without obtaining financing for the project. When financing was obtained, Respondent accepted the proposal and then authorized the work on August 8, 1996. Due to other obligations, Orlando Septic was not able to give a proposed starting date for the project until August 26, 1996. On August 13, 1996, Petitioner inspected the Respondent’s property again and observed the same conditions as on previous inspections. Petitioner was informed of the projected starting date for repair of the drainfield, however, a Citation for Violation was issued on August 16, 1996 calling for corrective actions to abate the condition by 4:00 p.m. August 19, 1996. On August 27, 1996, the septic tank was pumped again. Orlando Septic Service was scheduled to begin work on the repair of the drainfield on August 26, 1996. On that same date, the company called Respondent and informed her that they were delayed on another job and could not begin repair of Respondent’s drainfield until sometime in September. Respondent immediately called another company and gave them the contract. The repair was completed on September 10, 1996. The evidence was insufficient to establish that a sanitary nuisance existed on Respondent’s property on August 16, 1996.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED as follows: The Respondent, Hyacinth D. Wynter, be found not guilty of violations Sections 386.041(b), Florida Statutes. The Notice of Intended Action be revoked. DONE and ENTERED this 30th day of May, 1997, in Tallahassee, Florida. DANIEL M. KILBRIDE 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 30th day of May, 1997. COPIES FURNISHED: Sonia Nieves Burton, Esquire Department of Health 400 West Robinson Street Orlando, Florida 32801 Michael D. Jones, Esquire Atrium II Building 301 West State Road 434, Suite 317 Winter Springs, Florida 32708 Catherine H. Berry Legal Office Duval County Health Department 515 West 6th Street Jacksonville, Florida 32206-4397 Gregory D. Venz, Agency Clerk Department of Children & Families Building 2 Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Pete Peterson, Esquire 1317 Winewood Boulevard Building 6 Room 102-E Tallahassee, Florida 32399-0700
The Issue The issues are (1) whether Respondent violated Chapters 381, 386, and 489, Florida Statutes; and if so, (2) whether Respondent is subject to an administrative fine; and if so, (3) what penalty should be imposed.
Findings Of Fact At all times material to this proceeding, Petitioner was registered with Respondent as a septic tank contractor, under the authorized name of LA Ford Septic Tank. As of March 1, 1995, single compartment septic tanks must be used in series or in conjunction with a outlet filter which has been approved by Respondent. An outlet filter is designed to prevent solid wastes from reaching the drainfield of a septic system. Removal of an outlet filter will cause the premature failure of a drainfield system and create a potential sanitary nuisance. In September of 1996, Rita Haynes contracted with Petitioner for the installation of a septic system for her mobile home. The system received construction approval from the Suwannee County Health Department on September 5, 1996. At that time, the outlet filter was attached to the system. On September 12, 1996, the Suwannee County Health Department re- inspected the system. The inspector discovered that the filter was missing. Ms. Haynes did not remove the filter or authorize anyone else to do so. Removal of the outlet filter constituted theft of Ms. Haynes' property. Allegations concerning the removal of the outlet filter on Ms. Haynes' property are included in the Administrative Complaint at issue here. In September of 1996, Tracy Fernandez contracted with Petitioner to install a septic system for her mobile home. The system received construction approval from the Suwannee County Health Department on September 4, 1996. At that time, the outlet filter was present. The filter was missing when the Suwannee County Health Department re-inspected the system on September 10, 1996. Ms. Fernandez did not remove the filter or authorize anyone else to do so. Removal of the outlet filter constituted theft of Ms. Fernandez's property. Allegations concerning the removal of the outlet filter on the property of Ms. Fernandez are included in the Administrative Complaint at issue here. In July of 1996, Laura Landen contracted with Ford to install a septic system for her mobile home. Petitioner told Ms. Landen that he would save her some money by removing the outlet filter after the initial inspection. The system received construction approval from the Suwannee County Health Department on July 24, 1996. At that time, the outlet filter was attached to the septic tank. The filter was missing when the Suwannee County Health Department re-inspected the system on September 11, 1996. Ms. Landen did not remove the filter or authorize anyone else to do so. Removal of the outlet filter constituted theft of Ms. Landen's property. Allegations concerning the removal of the outlet filter on Ms. Landen's property are included in the Administrative Complaint at issue here. In October of 1996, John and Mary Phillips contracted with Petitioner to install a septic system for their home. The system received construction approval from the Columbia County Health Department on October 23, 1996. At that time, the outlet tee filter was present. Subsequently, the Phillips' daughter saw Petitioner take something out of the septic tank. The filter was missing when the Columbia County Health Department re-inspected the system on October 25, 1996. Mr. and Mrs. Phillips did not remove the filter or authorize anyone else to do so. Removal of the outlet filter constituted theft of the Phillips' property. Allegations concerning the removal of the outlet filter on the Phillips' property are included in the Administrative Complaint at issue here. In April of 1996, Marshall and Karen Merriman contracted with Petitioner to install a septic tank system on their property. The outlet filter was attached to the septic tank at the time of an initial inspection by the Suwannee County Health Department on April 22, 1996. Subsequently, Mr. Merriman saw Petitioner drive up and remove the outlet filter from the septic tank. Petitioner's removal of the outlet filter constituted theft of the Merrimans' property. A re-inspection by the Suwannee County Health Department on April 23, 1996, revealed that the outlet filter was missing. The inspector also discovered that Petitioner had not placed enough rock in the Merrimans' drainfield. Accordingly, the system did not pass final inspection. Mr. Merriman stopped payment on his check made payable to Petitioner in the amount of $909.50. Another septic tank contractor was hired to properly install the septic system on the Merrimans' property. Mr. Merriman's complaint to the Suwannee County Health Department resulted in a citation for a $1,500 fine against Petitioner for violating the following rules: (1) Rule 10D-6.0751(1)(k), Florida Administrative Code, practicing fraud or deceit; (2) Rule 10D-6.0751(1)(l)2, Florida Administrative Code, misconduct causing harm to customer; and (3) Rule 10D-6.055(3)(a), Florida Administrative Code, removal of outlet filter. Petitioner acknowledged receipt of the citation on September 24, 1996. That same day he requested an informal administrative hearing to contest the citation. The Suwannee County Health Department referred Petitioner's request for an informal hearing concerning the above-referenced citation to Respondent on September 27, 1996. Respondent then requested its District 3 Administrator to conduct the necessary proceedings and submit a Recommended Order to Respondent. The record does not reveal the disposition of Petitioner's request for an informal hearing regarding the citation. The Administrative Complaint at issue here does not contain any allegations relative to Mr. Merriman's complaint. However, since Petitioner did not dispute the material allegations contained in the citation, they may be considered as true in aggravation of any penalty imposed in the instant proceeding. In addition to the missing filters referenced above, the Columbia County Health Department found filters missing from Petitioner's installations on property owned by Richard Johnson and David Timmerman in September of 1996. The filters had been present during prior inspections of Petitioner's installations on the Johnson and Timmerman properties. The removal of the outlet filters from the Johnson and Timmerman properties constituted theft of their property. The Administrative Complaint at issue here contains allegations concerning Petitioner's removal of these outlet filters. The Suwannee County Health Department and the Columbia County Health Department had many citizen complaints about Petitioner's work. They performed a random check of all recent septic tank installations in their respective counties. They re- inspected the septic tank installations of other registered septic tank contractors as well as Petitioner's installations. They found missing outlet filters only in Petitioner's installations. The two health departments began spray painting a spot on filters during initial inspections to stop anyone from using the filters at multiple installations and inspections. Petitioner habitually, and as a routine business practice, removed the outlet filter from the septic tanks he installed after the initial inspection but before he covered the tank with dirt. He was responsible for stealing the required outlet filters on the property of Rita Haynes, Tracy Fernandez, Laura Landen, John and Mary Phillips, David Timmerman, and Richard Johnson. In each of these instances, Petitioner acted fraudulently and deceitfully. His gross misconduct created a potential sanitary nuisance and caused his customers monetary harm. An outlet tee filter costs approximately $50. Petitioner was able to underbid his competitors by removing the filter from an inspected system and using the same filter on another installation. From time to time, septic tanks need to be pumped out to prevent the flow of sludge and solids from the tank into the drainfield. Sludge and solids will clog the drainfield causing the system to fail. A failed system is expensive to repair or replace. A failed system also creates a public health hazard. When a septic tank is pumped out, all of the sludge should be removed. After the tank is empty, it should be washed down with a hose and inspected for cracks. If the tank is in good condition, a septic tank contractor is supposed to sign an inspection slip. In September of 1996, Allen Donaway contracted with Petitioner to pump out his septic tank and install a new drainfield. Petitioner's employees arrived at Mr. Donaway's residence on or about September 18, 1996, to pump out the tank. They claimed they had completed the job even though they left 12 or more inches of sludge at the bottom of the tank. Despite Mr. Dunaway's demands, Petitioner's employees refused to pump any more septage from the tank. When Mr. Donaway contacted Petitioner to complain that his employees had only partially pumped the tank, Petitioner demanded immediate payment. Mr. Donaway gave Petitioner a check for $135 which Petitioner cashed immediately. Mr. Donaway had to pay another registered septic tank contractor to pump the rest of the sludge from the tank and to install the new drainfield. Allegations concerning Petitioner's failure to completely pump out the sludge from Mr. Donaway's septic tank are contained in the Administrative Complaint at issue here. In a Letter of Warning dated July 15, 1996, the Columbia County Health Department informed Petitioner that Debbie Gregory had filed a complaint against him for an unsatisfactory septic pump-out. This letter requested a response to an allegation that Petitioner, without good cause, had abandoned a project which he was under a contractual obligation to perform in violation of Rule 10D-6.0751(1)(g), Florida Administrative Code. Petitioner was advised that he could avoid the imposition of a $500 fine or a disciplinary action against his contractor's license by correcting the problem within five working days. As of August 6, 1996, Petitioner had not responded to the health department's inquiry. He made no attempt to correct the problem by completely removing the solids and greases from Ms. Gregory's septic tank. Petitioner was advised by letter that Respondent intended to initiate enforcement procedures. Allegations concerning the unsatisfactory septic pump-out on Debbie Gregory's property were included in the Administrative Complaint at issue here. Petitioner's failure to completely pump out all of the sludge from the septic tanks of Allan Donaway and Debbie Gregory created a potential health hazard. Additionally, his gross misconduct caused these customers monetary harm. They had to pay another septic tank contractor to complete Petitioner's work so that they could avoid the expense of prematurely replacing their drainfields. In August of 1996, Petitioner installed an onsite sewage treatment and disposal system on the property of Johnny Howard, Jr. The Suwannee County Health Department subsequently determined that Petitioner had installed the septic system on the wrong side of the Howard residence with the drainfield extending across the property line of the adjoining property. The inspector also discovered that the septic tank was installed next to a dryer vent opening in the Howard residence. When Petitioner refused to correct the problems at the Howard residence, the county health unit paid another septic tank contractor to correct the septic system. Respondent then filed an Administrative Complaint seeking revocation of Petitioner's septic tank contractor's registration and imposition of an administrative fine. On July 22, 1997, Respondent entered a Final Order in Department of Health Case Number 97-154 which revoked Petitioner's septic system contractor's registration and imposed a fine in the amount of $1000 due to the improper installation of the septic system at the Howard residence. This Final Order approved and adopted a Recommended Order in DOAH Case Number 96-5543, finding that Respondent was guilty of violating Rule 10D-6.0751(1)(b)2, Florida Administrative Code, for completing contracted work at the Howard residence without a permit and Rule 10D-6.0751(1)(l)2, Florida Administrative Code, gross misconduct causing monetary harm. Allegations concerning Petitioner's improper installation of the septic system on Mr. Howard's property were not contained in the instant Administrative Complaint. However, they may be considered in aggravation of any administrative fine imposed in the instant case. In the course of investigating citizen complaints against Petitioner, Respondent learned that Petitioner was advertising his business using the name of Ford Septic Tank and/or Ford Septic Tank Service(s) on his trucks and in the Yellow Pages. Petitioner's authorized business name is LA Ford Septic Tank. Respondent sent Petitioner a Letter of Warning dated August 27, 1996, advising him that advertising his services in a form other than his authorized business name violated part III of Chapter 489, Florida Statutes, and Rule 10D-6.0751(1)(a), Florida Administrative Code. The letter informed Petitioner that continued violations could result in an administrative fine of $500 per day. The letter stated that the violations might be cited in a future complaint based on repeat violations. Petitioner did not exercise his option to request an administrative hearing to contest the allegations contained in the Letter of Warning. On November 20, 1996, employees of the Suwannee County Health Department took photographs of Petitioner's business sign using an unauthorized name on a county road in Suwannee County. On November 22, the same employees took photographs of Petitioner's trucks bearing an unauthorized name. Petitioner's persistence in using an unauthorized business name was especially egregious because other septic tank contractors with the last name of Ford, who were not affiliated with Petitioner, worked in the same commercial and residential areas. For example, Mr. Merriman contracted with Wilbur Ford to correct the septic system that Petitioner improperly installed. North Florida Septic Tank was owned by Robert and Donna Ford. Their Yellow Page advertisement specifically disclaimed any affiliation with Petitioner. The instant Administrative Complaint contains allegations concerning Petitioner's use of an unauthorized name to advertise his business. Petitioner filed an application to become a registered septic tank contractor on August 6, 1991. Petitioner was convicted of grand theft and stopping payment on a check with intent to defraud on October 28, 1991, in the circuit court of Hernando County, Florida. Petitioner was convicted of these two felonies before he took the septic tank contractor's examination in November of 1991. Petitioner did not inform Respondent about the two convictions. Petitioner obtained his septic tank registration through fraud or misrepresentation by failing to disclose his felony convictions. The instant Administrative Complaint contains allegations concerning Petitioner's failure to disclose the two felony convictions. Respondent's efforts to persuade Petitioner to correct his improper installations and/or unsatisfactory pump-outs were not successful. He made no attempt to replace the filters he removed. He did not heed Respondent's warnings regarding his use of an unauthorized business name. He has failed to make any effort to rehabilitate himself or to mitigate the effects of his behavior despite the following: (1) the severity of his offenses; (2) the danger to the public that he created; (3) the number of times that he repeated the offenses; (4) the number of complaints filed against him; and (5) the monetary harm he caused his customers.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent enter a Final Order imposing an administrative fine in the amount of $7,000 against Petitioner. DONE AND ENTERED this 5th day of September, 1997, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 5th day of September, 1997. COPIES FURNISHED: Thomas D. Koch, Esquire Department of Health Building 6, Room 133 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Larry A. Ford 25295 CR 137 O'Brien, Florida 32071 Angela T. Hall, Agency Clerk Department of Health Building 6 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Pete Peterson, Esquire Department of Health Building 6, Room 102-E Tallahassee, Florida 32399-0700 James Howell, Secretary Department of Health Building 6, Room 306 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether the Petitioner is qualified for licensure as a septic tank system contractor.
Findings Of Fact The Petitioner applied for Septic Tank Contractor Registration on or about June 1, 1993. Mr. Gerald Briggs, Environmental Health Specialist III for the Department, notified the Petitioner that his application was not complete on or about July 7, 1993, and returned the Petitioner's application to the Petitioner. In November 1993, the Petitioner refiled his application with the Department. By letter dated December 9, 1993, the Department notified the Petitioner of its decision to deny his application for septic tank contractor's registration because the Petitioner lacked the required three years of active experience as a worker who has learned the trade as an apprentice under a registered septic tank contractor. William A. Kerce, a registered septic tank contractor in Florida, testified at the hearing. He stated that he had employed the Petitioner prior to the Petitioner's graduation from high school in 1985, and continued to employ him up until he sold the business to Donald Rose. The Petitioner's duties for installation of new septic tanks and for repairs of existing systems were to dig up an area, prepare it to install a septic tank in the ground, prepare the drainfield, and recover the tank and drainfield with soil. In addition, Mr. Kerce used the Petitioner to assist him in pumping septic tanks. Mr. Kerce stated that he did not consider the Petitioner an employee, but considered him an independent contractor. Mr. Kerce would have had to pay social security and provide worker's compensation benefits if he had considered the Petitioner an employee. Mr. Kerce provided all the materials and equipment used on the job. Mr. Kerce used the Petitioner's services five or six days a week for well over three years. Petitioner did not work for Mr. Kerce when Mr. Kerce did not have work to do, about two weeks per year. Mr. Kerce paid the Petitioner by the job, $200-$300 for installing a system, and $15-20 for helping him pump a system. The Petitioner worked for Mr. Kerce, except when he was working for another septic tank contractor doing the same type of work. If the Petitioner was working for another man, Mr. Kerce waited and scheduled his work until the Petitioner was available. While Mr. Kerce was not present on the job constantly, Mr. Kerce did supervise and approve all work done by the Petitioner. He was required by law to do so. Mr. Kerce sold his business to Donald Rose in 1992. To Mr. Kerce's knowledge, Mr. Rose continued to use the Petitioner. Mr. Rose could not get qualified as a contractor with the Department. As a result, Mr. Kerce had to step back in and run the business. The Petitioner assisted Mr. Rose in installing unpermitted systems. When confronted, the Petitioner assisted in the investigation of Mr. Rose, under threat of prosecution. As a result, the court withheld adjudication in the Petitioner's case and placed him on probation which he has not completed. The Petitioner was employed by Rotor Rooter in Jacksonville, Florida, for six months, installing and repairing septic systems. The Petitioner has been employed by AA Septic since April 15, 1994. The Petitioner took steps in June, 1993, to start a septic tank business as C&J, including listing in the Yellow Pages. However, his application was not approved. He did install a system for Eleanor Rake at about that time without a permit; however, he later returned Ms. Rake's money when confronted by the authorities. The Petitioner was on probation when he did the work for Ms. Rake.
Recommendation Based upon the consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That the Department deny the Petitioner certification until he completes his probation for violations of laws directly related to installation of septic systems; and further, that upon the completion of that probation and reapplication, the Department register the Petitioner, who has established that he met the work experience requirements. DONE and ENTERED this 27th day of June, 1994, in Tallahassee, Florida. STEPHEN F. DEAN, 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 27th day of June, 1994. APPENDIX TO RECOMMENDED ORDER CASE NO. 94-0954 The following findings were adopted or rejected for the reason stated: Respondent's Findings Recommended Order Paragraph 1 Paragraph 1 Paragraph 2 Paragraph 2 Paragraph 3 Paragraph 3, 4 Paragraph 4 Subsumed in paragraph 4 and Preliminary Statement. Paragraph 5 Subsumed in paragraphs 5 and 6 which are based upon best evidence. Paragraph 6 Subsumed in paragraphs 8 - 11, which are based on best evidence. Paragraph 7 Subsumed in Preliminary Statement. COPIES FURNISHED: Edward Jackson, Esquire 515 W. Adams Street Jacksonville, FL 32202 Teresa Donnelly, Esquire Department of Health and Rehabilitative Services 1000 N.E. 16th Avenue Building H Gainesville, FL 32601 Robert L. Powell, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Kimberly J. Tucker, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
The Issue The issue in this case is whether Respondent should deny the request for an increase in licensed capacity, from 12 to 65 children, because Petitioner's septic system is inadequate for the increased capacity.
Findings Of Fact Petitioner is a child care facility licensed for 12 children in accordance with relevant provisions in Chapter 402, Florida Statutes.1 Petitioner seeks to increase its licensed capacity from 12 to 65 children. Respondent is the state agency responsible for licensing child care facilities. Respondent stipulates that Petitioner satisfies all relevant licensing requirements except those pertaining to the capacity of the septic system at the facility. The child care facility is on the same property and is part of the O'Neal Memorial Baptist Church. The church has 25 members and shares the same septic system. Respondent is statutorily required to enforce minimum standards for licensing child care facilities, including standards for the health, sanitation, and safety of the children. Respondent did not delegate its statutory authority to a local governmental agency. The local governmental agency did not exercise licensing authority over Petitioner. Respondent properly relied on the Nassau County Health Department (the "Health Department") to determine whether the existing septic system is adequate for 65 children. Since 1990, the Health Department has performed local inspections for Respondent pursuant to Florida Administrative Code Rule 10D-6,2 Chapter 386, and valid inter-agency agreements.3 The Health Department properly determined that the current septic system is adequate for only 12 children. The Health Department correctly applied the formula prescribed in Rule 10D-6, including Rules 10D-6.048 and 10D-6.049. The capacity of a septic system is determined by flow rates prescribed by rule, the size and design of the septic tank, the type and size of the drainfield, and soil conditions. The current system consists of a 1200 gallon tank, a mound drainfield of 287 square feet, and adverse soil conditions.4 Flow rates are not limited to toilet flushes. Flow rates include toilet flushes, kitchen use, hand washing, and any other demand on the septic system. The flow rates prescribed by rule are 3 gallons for each member of the church, 10 gallons for each child, and 15 gallons for each worker in the child care facility. The current facility has three workers for 12 children. The facility serves food to the children. The flow rate prescribe for children must be increased by four gallons whenever food is served. The total flow for the existing capacity of the facility is 363 gallons. Church members produce a total flow of 150 gallons. Children and workers, respectively, produce a total flow of 168 and 45 gallons. The existing septic system is more than adequate for an a total flow of 363 gallons. A 900 gallon tank is the smallest tank allowed by rule for a total flow of 0-300 gallons. A 1050 gallon tank is the smallest tank allowed for a total flow of 301- 400 gallons. The existing 1200 gallon tank is more than adequate for 12 children and 50 church members. The evidence did not establish whether the existing 1200 gallon tank is a single compartment tank. A 1200 gallon single compartment tank, by rule, will accommodate 401 to 500 gallons of total flow. If the existing tank is a single compartment tank, it is more than adequate for 12 children. Petitioner argues that the actual membership of the church is only 25 and not 50. Even if the actual membership is 50, the existing septic system is adequate. The existing septic system is not adequate for 65 children with a total flow of 910 gallons. Assuming the number of workers would increase to 5 and that there are only 25 church members, the total flow for workers and members, respectively, would be 150 gallons. Total flow would be 1060 gallons. A 2200 gallon tank is the smallest tank allowed by rule for a total flow of 1060 gallons. The current 1200 gallon tank does not comply with applicable rules and is inadequate for a total flow of 1060 gallons. Even if the existing tank were designed as a single compartment tank, it would not be adequate for 65 children. A 1200 gallon single compartment tank is adequate for a total flow of only 401 to 500 gallons. Petitioner argues that the church members use the septic system on the weekends when the child care facility is not in operation. Petitioner argues that the flow rates for church members should be excluded from total flow when determining capacity of the existing system. Petitioner's argument is not dispositive even if it were correct. Even if 50 church members were excluded, total flow is 910 gallons. The maximum flow prescribed by rule for a 1200 gallon single compartment tank is 401-500 gallons. The inadequacy of the current septic system is exacerbated by the paucity of the existing drainfield. The smallest tank allowed by rule for the projected total flow of 1060 gallons is a 2200 gallon tank. However, a 2200 gallon tank is allowed only if it is used with a drainfield of 1,746 square feet. Petitioner's drainfield is only 287 square feet. Petitioner's drainfield is a mound. A mound has less capacity than an in-ground drainfield due to differences in loading rates. Moreover, soil conditions surrounding the drainfield further reduce its capacity. Petitioner can obtain the desired licensing capacity if it increases the capacity of the current septic system. Petitioner would need to obtain a repair permit to redesign the drainfield, increase its area, increase the size of the septic tank, or to perform all of the foregoing repairs.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order and thereinDENY Petitioner's application for a license for 65 children. DONE AND ENTERED this 28th day of April, 1997, in Tallahassee, Florida. DANIEL MANRY 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 28th day of April, 1997.
The Issue The issues, as framed by the Administrative Complaint, are twofold: Whether Respondent committed gross negligence, incompetence, or misconduct which caused monetary harm to a customer, in violation of Florida Administrative Code Rule 64E-6.022(1)(l)2; and Whether Respondent practiced fraud or deceit by making a misleading or untrue representation to a home purchaser, or the home purchaser's agents, incident to a loan application, in violation of Florida Administrative Code Rule 64E-6.022(1)(k).
Findings Of Fact Petitioner, Department of Health, is an agency of the State of Florida as defined in Section 120.52, Florida Statutes. Petitioner's actions in this matter are governed in part by Chapters 381 and 489, Florida Statutes, as well as Florida Administrative Code Chapter 64E-6. Respondent, at all times material to this matter, was licensed by Petitioner under Part III of Chapter 489, Florida Statutes, entitled, "Septic Tank Contracting." Respondent is subject to the regulatory jurisdiction of Petitioner, having been issued Registration Number SR0931141 to engage in septic tank contracting, and Certificate of Authorization Number SA0890161 to do business as Superior Septic and Sewer, Inc. Petitioner seeks to impose revocation of Respondent's License and Certificate of Authorization for violations of Florida Administrative Code Rule 64E-6.022(1)(l)2. and (1)(k), with aggravation pursuant to Rule 64E-6.022(2). Air Force Captain Timothy Billings made an offer that was accepted to purchase a home located at 1938 Quail Run, Lynn Haven, Florida, prior to September 12, 2008. Captain Billings worked with a realtor, Bonnie Milstead, and arranged the various steps required to secure a Veterans Administration loan with the seller's realtors, Ben and John Harrell. A septic tank inspection and certification was one of the loan requirements. On behalf of Captain Billings, Ms. Milstead arranged to have Respondent's company inspect and certify the septic tank at 1938 Quail Run at a price of $250. The price included the pumping of the tank for $225 and a $25 charge for the certification. Captain Billing paid the $250 charge at the closing on the purchase of the home. John E. McDaniel is the licensed septic tank contractor for Superior Septic and Sewer, Inc., and is the qualifying contractor for a Certificate of Authorization to do business as Superior Septic and Sewer, Inc. On September 15, 2008, one of Respondent's employees, Phillip Fetner, went to 1938 Quail Run where he was met by Ben and John Harrell, realtors for seller of the home. Mr. Fetner was there to inspect only the septic tank, not being equipped or trained to inspect the entire system and drainfield. Mr. Fetner opened the tank after cutting through roots that had grown into it. He noted a large amount of roots in the tank that was also seen by the realtor, Ben Harrell. In spite of the roots, Realtor John Harrell instructed Mr. Fetner to "go ahead and pump the tank," which he did. He told John Harrell there were still a lot of roots in the tank. Mr. McDaniel discussed with John Harrell an additional charge of $400 to remove the roots from the tank. Mr. Harrell did not order the additional work. Mr. McDaniel believed that enough roots had been removed from the tank by Mr. Fetner for a certification to be issued, but Mr. Fetner did not confirm this. Debbie Bass, a clerical staff member of Respondent, completed the certification form prior to the inspection being complete. This was her custom so that she could stay ahead of the work load. The form was left in the inbox to be signed by Mr. McDaniel. Ms. Bass did not falsify any records nor had she ever been asked to do so in her four-and-a-half years with Respondent. The certification form was signed by Mr. McDaniel without the additional root work having been done by his company. The mortgage lender relied upon the certification to make the loan to Captain Billings. Mr. McDaniel did not directly inform Captain Billings or his realtor, Ms. Milstead, that the septic tank was full of roots. He believed that the root situation had been disclosed since the seller's realtors, the Harrells, had been on-site at the time of the inspection. Captain Billings testified that had he been fully aware of the root situation, he would have probably walked away from the deal because he did not want to have to deal with problems in the future. Mr. McDaniel allows his wife, Lisa McDaniel, to sign his name in his capacity as a licensed septic tank contractor. Lisa McDaniel actually signed the certification on the 1938 Quail Run property. Respondent's position is that the certification was sent out by mistake because the root removal work had not been performed on the tank. Mr. McDaniel does not dispute the fact that the certification form was prepared and signed. Captain Billings experienced problems with the septic tank system of his newly purchased home at 1938 Quail Run. In March 2009, he discovered the septic tank and system were full of roots and not functioning when Roto-Rooter, owned and operated by Glenn Salyer, removed the manhole access for a pump out and saw the massive roots. After learning from his realtor that Respondent had been hired to inspect the septic tank, Captain Billings contacted Mr. McDaniel, who refused to do anything about the situation. Even after the filing of the Administrative Complaint, Mr. McDaniel refused to remedy the situation. Glenn Salyer of Roto-Rooter, a licensed master septic tank contractor and master plumber, would not have certified the septic tank at 1938 Quail Run in its September 15, 2008, condition. Lyle Ake, another licensed septic tank contractor, would not have certified the septic tank at 1938 Quail Run in its September 15, 2008, condition. The septic tank should not have been certified in its September 15, 2008, condition. Roots intruding into the septic tank indicate it is not watertight. However, a system having roots can perform properly without incident for many years. When the entire system was inspected by Mr. Salyer, it was non-functional and needed replacement. Roto-Rooter replaced the septic tank system, consisting of a new septic tank and drainfield, at 1938 Quail Run on October 12, 2009. Captain Billings paid $4,500 for the replacement system. According to David Hammonds, an expert on the rules and functioning of septic tank systems, the system was being inspected and evaluated pursuant to Florida Administrative Code Rule 64E-6.001(5), the Procedure for Voluntary Inspection and Assessment of Existing Systems. The Rule provides specific items to be inspected unless the requesting party, in writing, states that specific items are not to be inspected. Mr. Hammonds testified that after his review of the exhibits and the site, he concluded that the septic tank system at 1938 Quail Run was "a failing system." Mr. Hammonds concluded that the pump-out procedure could have been completed once enough roots were removed to get the pump into the tank. Mr. Hammonds noted that the roots had been in the tank for a very long time, maybe years. Roots in the tank can lead to many problems. Roots affect capacity; they damage the tank itself, leading to cracks and leaks; and can lead to the leaking of sewage around the tank cover and seams. Mr. Hammonds noted that the high fluid level in the tank, almost up to the lid, is an indication of the entire system not working properly. The reporting requirements in the Voluntary Assessment Rule do not require the use of a particular inspection form. The Rule does specify what must be inspected and reported. Respondent accurately listed the features of the tank on the certification form: the tank was 1,050 gallons; the tank had neither a baffle nor a filter; and the tank was structurally sound. Mr. McDaniel believes this matter is all the result of an office error and that he should not be held responsible. Mr. McDaniel has a history of disciplinary matters with Petitioner. He has been cited for 18 violations in six cases as well as a non-disciplinary letter of concern. On September 13, 1996, he was fined $50 for inspecting a system without a permit. On September 13, 1996, he was fined $100 for two repairs to a system without a permit and for violating water table separation and setback from a potable well. DOAH Case No. 99-2474 resulted in a Final Order imposing an administrative fine of $3,300 for the removal of tank filters after final inspection by department personnel. Judge P. Michael Ruff found in that case that Respondent's actions "show a clear intent to mislead regulatory authorities." DOAH Case No. 04-1636 was settled by stipulation and resulted in a letter of warning with amelioration of a new drainfield installed by Respondent for an original drainfield that was improperly installed. On December 2, 2005, Respondent was issued a Letter of Warning for improper disposal of sewage. DOAH Case No. 07-1651 resulted in jurisdiction in the matter being relinquished to Petitioner based upon Respondent's non-appearance at the final hearing. The result was a fine of $500 for submitting a repair permit application with an incorrect site plan not showing a shed and a fence positioned over and in an existing drainfield. A Letter of Concern was issued July 23, 2007, to Respondent for improperly reporting a larger than actual capacity of a septic tank. A Letter of Concern is not a formal discipline under Florida Administrative Code Rule 64E-6.022, but demonstrates substandard performance by a licensee. Mr. McDaniel believes that other septic tank contractors have received lighter treatment for their offenses than he has. Bob Glenn, Petitioner's Environmental Manager for the Bureau of Onsite Management Program, gave some credence to Respondent's perception.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued by the Department of Health suspending Respondent for six months; suspending Respondent's Septic Tank Contractor Registration Number SR0931141 and Certificate of Authorization Number SA0890161 to do business as Superior Septic and Sewer, Inc.; and imposing a fine in the amount of $1,000.00, on Respondent. DONE AND ENTERED this 25th day of February, 2010, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of February, 2010. COPIES FURNISHED: Rodney Marcum Johnson, Esquire Department of Health 1295 West Fairfield Drive Pensacola, Florida 32501 John E. McDaniel Superior Septic and Sewer, Inc. 7315 Highway 231 North Panama City, Florida 32404 Dr. Ana M. Viamonte Ros, Secretary State Surgeon General Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
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 Whether Petitioner should take disciplinary action against Respondents for the reasons alleged in the Administrative Complaint?
Findings Of Fact On behalf of his brother, Mr. Howell Parish, who lives in Orange Park, Florida, Mr. James A. Parish contracted with Respondents to restore efficient of operation the septic tank system at 5469 Soundside Drive in Santa Rosa County, premises owned by Howell Parish. Respondents agreed to make the restoration by providing a fiberglass approved tank with a fiberglass lid, install a new drain field and haul in dirt to build up a low area of the existing drain field. Respondents undertook repair activities but without a permit. Respondents did not obtain an inspection of their work after they had finished. On June 10, 1992, after the repairs were supposed to have been done, James Parish paid Respondent Harmon for the job with a personal check in the amount of $1,498.48. On the same date, Respondent Harmon signed a receipt for payment. The receipt shows as work performed, "Demucking and Installing one 1050 Gal Tank & 200 Sq.' Drain Field." Ms. Jo Ann Parish, spouse of Howell Parish, reimbursed James Parish for the work done on Soundside Drive. Shortly thereafter, the septic tank "caved in and the waste was boiling to the surface." (Tr. 16.) Howell Parish met with Larry W. Thomas, Environmental Health Supervisor for the Santa Rosa County Health Department, to discuss the situation. Following the meeting, Mr. Parish called Respondent Harmon and told that him that the problem needed to be straightened out and that he should contact Mr. Thomas promptly because his license could be in danger. Respondent promised to correct the problem and to reimburse Mr. Parish for the job but he did neither. He did not contact Mr. Thomas either. Mr. Thomas, on behalf of the County, investigated the site of the septic tank repair. He found that Respondents had installed a broken fiber glass tank when fiberglass tanks are not allowed at all in Santa Rosa County because of their structural inadequacy. In addition to the tank being cracked, it had a cracked lid. Another hole in the tank that should have been covered with a lid was covered with a piece of plywood. The plywood was kept in place by dirt fill. The drain field did not meet the minimum standards required by the County. Most significantly, it was installed beneath the water table. There was a laundry discharge pipe which was not connected to the tank as required. The site of the septic tank repair by Respondents was a sanitary nuisance. The broken condition of the tank allowed raw sewage to overflow. The drain field was emptying raw sewage directly into ground water. The laundry discharge was discharging into the ground rather than being hooked up to the septic tank. Mr. Parish was forced to hire another septic tank service to restore the system to good working order. The work, performed by Bettis Septic Tank Service, was billed to Mr. Parish at a cost of $6400.00.
Recommendation It is, accordingly, RECOMMENDED, that Respondents' certificates of registration be revoked and that the Department impose on Respondents a fine of $2000.00. DONE and ENTERED this 28th day of October, 1994 in Tallahassee, Florida. COPIES FURNISHED: Frank C. Bozeman, III Asst. District Legal Counsel D H R S 160 Governmental Center Pensacola, FL 32501 Kenneth P. Walsh Attorney at Law P. O. Box 1208 Shalimar, FL 32505-0420 Robert L. Powell, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, FL 32399-0700 Kim Tucker General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, FL 32399-0700 DAVID M. MALONEY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of October, 1994.
The Issue The issues in this case are whether the allegations set forth in the Administrative Complaint are correct, and, if so, what penalty should be imposed.
Findings Of Fact At all times material to this case, the Respondent was a registered septic tank contractor, registration number SR0041456. At all times material to this case, the Respondent was authorized to provide septic tank contracting services through the corporation "Anytime Septic Enterprise, Inc.," authorization number SA0091662. The Respondent has advertised his services to the public as a septic tank contractor and has engaged in the business of providing septic tank services since at least September 2010. At all times material to this case, the Respondent was permitted to provide septage disposal services via permit number 36-QA-28986 issued by the Lee County Health Department. On or about September 13, 2010, the Respondent was hired to pump a septic system located at 2710 Northwest 5th Street, Cape Coral, Lee County, Florida, by another septic tank contractor. The employing contractor had been hired to service and repair the septic system, but did not have the ability to pump the tanks. On September 13, 2010, the Respondent pumped out the septic tank. The Respondent did not pump out the "dosing tank," a part of the septic system connected to the septic tank. After pumping out the septic tank, the Respondent completed a "DH Form 4015," signed and dated on September 13, 2010. The form collected information on the evaluation and repair of the septic system, including identification of system components and tank capacities. The contractor servicing the system is required to complete the form and identify the services provided. The Respondent identified the components of the referenced septic system and the capacities of both the septic and dosing tanks. The Respondent signed and dated the certification statement. As completed by the Respondent, the certification statement stated as follows: I certify that the listed tanks were pumped on 9/13/10 by Anytime Septic, have the volumes specified as determined by legend are free of observable defects or leaks, and have a [solids deflection device/outlet filter device] installed. Although the Respondent certified that he pumped the dosing tank on September 13, 2010, he did not pump the dosing tank on that date. The Respondent certified the dosing tank to be free of observable defects or leaks; however, the failure to pump the dosing tank prevented proper observation of the dosing tank, and it is highly unlikely that an accurate evaluation of the condition of the dosing tank was possible under the circumstances. Under the applicable rule, a pumper may perform an incomplete pumpout under certain circumstances, but the rule requires that the pumper must provide written documentation to the system owner identifying the reason for the incomplete pumpout, the gallonage pumped from the system, and the material left in the tank. The Respondent failed to provide such documentation to the system owner. An inspection by an employee of the Petitioner on September 16, 2010, revealed that the dosing tank had not been pumped and that the tank lids had not been sealed after the service. The Respondent was notified on September 20, 2010, that the dosing tank should have been pumped at the same time as the septic tank. On that same date, the Respondent returned to the site, pumped the dosing tank, and then completed, signed and dated a second "DH Form 4015" certifying that the dosing tank had been pumped. The Respondent recorded additional information on the form to indicate that the remaining work would be performed by the septic tank contractor who had employed the Respondent. At the hearing, the Respondent asserted that upon the initial inspection of the property, the Respondent observed that the septic tank conditions were non-standard, that he communicated such information to the contractor who had hired him, and that the Respondent's services, including certification of the tanks, were provided in accordance with the requests of the contractor.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final order imposing a $1,500 fine against the Respondent for falsely certifying the work performed on September 13, 2010, and the condition of the dosing tank; for failing to fully pump the system without providing appropriate documentation; and for failing to properly seal the tank lids. DONE AND ENTERED this 24th day of February, 2011, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 2011. COPIES FURNISHED: Denise Duque, Esquire Southwest Alliance of County Health Departments 2295 Victoria Avenue, Room 206 Fort Myers, Florida 33901 Stephen M. Maher, Esquire Stephen M. Maher, Attorney at Law, P.A. 2077 First Street, Suite 206 Fort Myers, Florida 33901 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, FL 32399-1701 E. Renee Alsobrook, Acting General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701 Secretary, State Surgeon General Department of Health 4052 Bald Cypress Way, Bin A-00 Tallahassee, Florida 32399-1701
