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 is whether Respondent's registration as a septic tank contractor should be disciplined for the reasons set forth in the Administrative Complaint.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background In this disciplinary proceeding, Petitioner, Department of Health (Department), on behalf of the Polk County Health Department (Health Department), seeks to impose an administrative fine on, and revoke the septic tank contractor registration of, Respondent, Barbara Thompson, doing business under the name of A-1 Septic Services. Respondent currently operates a septic tank business in Lakeland, Florida, and has held her registration for approximately two and one-half years. Her most recent address is 1616 Ritter Road, Lakeland, Florida. As a registrant, she is under the regulatory authority of the Department. On November 28, 2000, the Department entered into a Settlement Agreement (Agreement) with Respondent for numerous violations of various provisions within Chapter 64E-6, Florida Administrative Code. The Agreement was approved by the Department in a Final Order dated March 5, 2001. As a condition of that Agreement, Respondent agreed that her husband, Larry Thompson, would not be employed in the management of the business; would not solicit, negotiate, contract, contact, or communicate with any customers of the business; or represent the business as agent or principal in any way. Larry Thompson's registration as a septic tank contractor had been previously revoked by a Final Order of the Department of Health and Rehabilitative Services entered on January 23, 1995. Based on complaints received from three consumers, the Health Department began an investigation of Respondent in 2001. The investigation culminated in the issuance of an Administrative Complaint on June 29, 2001, which generally alleged that in February and June 2001, Respondent was fraudulent in her dealings with three customers by recommending unneeded work on septic tank systems that were in good working order; that she violated the terms of the Agreement by allowing her husband to participate in the business; that in 1998 and 2000, Respondent conspired with her husband to fraudulently purchase three vehicles under the name of her husband's brother (and without his consent) for use in her business; and that by using one of those vehicles in her business, she unlawfully obtained her registration through fraud, misrepresentation, and concealment of material facts, and she committed gross misconduct in her profession. Respondent denies the allegations and suggests that the complaint is the result of an on-going dispute between her and local Health Department officials, who want to put her out of business. Consumer complaints On February 27, 2001, William Mauer (Mauer), who lives at 5212 Messina Road, Lakeland, Florida, contacted Respondent's firm after experiencing a problem with his septic tank system "not draining right" and "sewage backing up." Two individuals, one of whom Mauer identified at the hearing as being Larry Thompson, arrived around 4 p.m. Larry Thompson began using a probing rod around the 900-gallon tank, popped the lid, and announced that the tank "was full." The two then pumped out the tank, for which Mauer was charged $150.00. At the same time, Larry Thompson recommended that Mauer install a new drainfield and quoted a price of "around $2,800.00." By allowing Larry Thompson to solicit business, contact and communicate with customers, and represent the business, Respondent violated the terms of the Agreement. That evening, Respondent came to Mauer's house and prepared a work order for a new drainfield. Because Mrs. Mauer wished to pay by credit card, Respondent advised her that she did not accept credit cards, but she could run the transaction through her brother's business for the normal credit card processing fee which was described by the witnesses as ranging from $165.00 to $300.00. In any event, the Mauers agreed and charged the work on their credit card. Within a day or two, but after Respondent had pulled a permit for the repair job, Mauer backed out of the deal since the problems went away after the tank had been pumped out. The charge on the credit card was cancelled, and Mauer paid only for the pumping of his tank ($150.00) and the cost of a repair permit. At hearing, Maurer indicated that he was not "mad at all" about the service, and he agreed that he was "not really out of anything," since the credit card charges were cancelled. Respondent contended that when the Mauers' tank was inspected, there was sewage seeping from the lid and flowing back into the tank from the drainfield line, thus indicating a need for drainfield repairs. A subsequent inspection of the system by a Health Department official a few days after Respondent's visit revealed nothing "to indicate a bad drainfield." The representative acknowledged, however, that it was "not easy" to determine if a system was bad, and that a lack of visible signs of a problem did not mean that the system was in good working order. Even so, the lack of any further problems (after the pump-out) is a clear indication that Respondent recommended that unnecessary work be performed on the Mauers' system. On February 27, 2001, Patsy Brown, who lives in a duplex at 1014 Old South Drive, Lakeland, contacted Respondent's firm for a service call after she experienced "slow draining" in the master bathroom toilet of the second unit in the duplex. Two "young men" came out that evening around 9 p.m. One was Ricky Thompson, Respondent's brother- in-law; the other was identified at hearing as being Larry Thompson. After locating the tank, one of the two workers placed a shovel in the grass and found clear water without an odor around the drainfield. The older of the two workers (Larry Thompson) recommended that Brown replace (repair) the drainfield and quoted a price in the range of $2,400.00 to $2,700.00. Larry Thompson also instructed Ricky Thompson to pump out the tank. By allowing Larry Thompson to solicit work on her behalf, and act as a representative of the firm, Respondent contravened the terms of the Agreement. Believing that a new drainfield was needed, Brown signed a work order for $2,785.00 and gave Larry Thompson a check in the amount of $1485.00 as partial payment. At the request of Larry Thompson, Brown made out the check to Barbara Thompson, rather than A-1 Septic Tank Service. A day or so later, and after Respondent had pulled a permit for the job, Brown had second thoughts about replacing her drainfield and contacted the Health Department. A representative visited her home on March 2, 2001, and found no visible signs of a system breakdown. The representative gave Brown the names of five other septic tank companies to contact for estimates. An unnamed registrant then replaced Brown's distribution box for $238.00, which resolved all problems. While the representative acknowledged that "a failed drainfield is not always apparent," and that "[i]t's not always easy just by looking at it or telling if that's a good drainfield or not," the fact that Brown's problems were unrelated to the drainfield supports a finding that Respondent recommended that Brown have unneeded work performed on her system. After the distribution box was replaced, Brown contacted Respondent and requested a refund of her money. Because the request was made more than 3 days after she had signed the contract, Respondent took the position that no refund was warranted. Brown then filed a consumer complaint with a Tampa television station. Respondent says she offered to refund the money if Brown would withdraw her complaint with the television station, but Brown refused to do so, and the complaint ended up being aired on "national television." To date, the money has never been refunded, although Brown has never made another formal request for a refund of her money, nor has she taken legal action against Respondent to recover the money. On June 5, 2001, David Fleming, who lives with his wife, Zora, at 3319 Mt. Tabor Road, Lakeland, experienced "problems with [the toilet] flushing." Zora telephoned Respondent's firm, and Ricky Thompson and Respondent arrived later that day. After Ricky popped the lid on the tank and found a full tank, Respondent recommended that the tank be pumped out for a charge of $150.00. When around one-half of the tank was pumped, Respondent advised Fleming that the price would be $200.00 because it was so full; otherwise, she would be forced to pump the contents of the truck back into the tank. Fleming then agreed to pay Respondent $200.00 for a full pump-out, and he obtained a receipt for the payment. This fee was not unreasonable, and thus Respondent did not violate any Department rule or statute by charging that amount. Respondent also advised Fleming that he needed a new drainfield which would cost "over $2,000.00." Fleming declined to sign a contract for that service since he could not afford one. He experienced no further problems with his system after the pump-out. Respondent denies having advised Fleming that he needed a new drainfield and acknowledged at hearing that "there was nothing wrong with it." She further contended that because the house did not even have an air-conditioner, she knew that the Flemings could not afford any further repairs. This testimony is not deemed to be credible. A subsequent inspection of the tank by a Health Department official on June 8, 2001, revealed that there were no "obvious signs of failure the day [he] was out there." The system continues to function normally to this day. Purchase of vehicles The record is somewhat confusing regarding the vehicles owned and used by Respondent and registered with the Department. Under Rule 64E-6.010(2)(a), Florida Administrative Code, a registrant must make application for a service permit with the Health Department each year and provide evidence that he or she "possesses adequate equipment . . . necessary to perform the work intended." At hearing, Respondent stated that she currently has three trucks, two of which (a Chevrolet and a Ford) are now registered with the Health Department, but only one of which (the Chevrolet Kodiac) is actually used in the business. As discussed in greater detail below, the Chevrolet Kodiac was purchased from Bartow Chevrolet Company, Inc. The second vehicle (either a Ford or another undisclosed make and model) is one she has "had for several years" that was purchased from an individual named Howard Nieft (the father- in-law of Ricky Thompson); however, the title still remains in Nieft's name. The third vehicle (an unknown make and model consisting of a cab and chassis only with a blown motor) is "one that [she is] putting together" that was purchased around a year ago in Zephyrhills from a person whose name she cannot recall. Like the second vehicle, Respondent says the "title work [on the third vehicle] has not been transferred yet," because she cannot "get hold of the owner" to sign an affidavit to transfer the title. However, Respondent also indicated that the third vehicle which she is "putting together" is titled in the name of her niece, Christina Wood. The conflicting testimony regarding the ownership of the third vehicle was never clarified by the parties. In August 1998, an individual who identified himself as Ray M. Thompson ("Ray"), approached Mark Pike (Pike), a commercial salesman with Bartow Chevrolet Company, Inc., for the purpose of purchasing a medium duty truck for his septic tank business. "Ray" gave a local address of 1400 Spivey Road, Lakeland, Florida. "Ray" eventually agreed to purchase (and finance through the dealership) a 1998 Chevrolet Kodiac truck on September 10, 1998, for approximately $35,000.00. In the course of the transaction, Pike requested a driver's license and insurance card from "Ray" to verify his identity. "Ray" gave Pike a North Carolina driver's license issued on August 18, 1997, to Ray M. Thompson. The Chevrolet Kodiac was later titled by the State to Ray M. Thompson. Ray M. Thompson is the brother of Larry Thompson, and the brother-in-law of Respondent. At the hearing, Pike identified Larry Thompson as the person who actually purchased the vehicle in September 1998 and used the name and identification of Ray M. Thompson. At hearing, the real Ray Thompson denied that he had purchased the vehicle, and after learning about the transaction, he filed paperwork with the Department of Highway Safety and Motor Vehicles (DHSMV) cancelling his name on the registration of the vehicle. The same vehicle is now being used by Respondent in her business. Although a "blond-haired lady" was with "Ray" when he signed the paperwork to purchase the truck, and Respondent has that color of hair, Pike could not identify Respondent as being that person. Therefore, it is found that there is less than clear and convincing evidence that Respondent participated in the transaction or conspired with her husband to deceive the dealership or her brother-in-law. On September 27, 2000, an individual who identified himself as Ray M. Thompson ("Ray") visited Bartow Ford Company and spoke with Gregory Wade, a salesman, about the purchase of a new Ford F350 pickup truck for his septic tank business. "Ray" was accompanied by an unidentified female and gave an address of 1616 Ritter Road, Lakeland, Florida, the address of the mother of Ray and Larry Thompson, as well as Respondent and her husband. The same day, "Ray" traded in a 1999 Dodge Durango on a new 2001 F350 Ford pickup truck for approximately $41,000.00, less the net value of the trade-in. During the course of the transaction, "Ray" produced an out-of-state driver's license identifying himself as Ray M. Thompson, and an insurance identification card bearing the same name. At the hearing, although both Respondent and her husband were in the hearing room, Wade was unable to identify either one as the individuals who participated in the transaction on September 27, 2000. The vehicle was later titled by the State to Ray M. Thompson. After learning about the transaction, the real Ray M. Thompson filed paperwork with the DHSMV to cancel the registration. Given these circumstances, there is less than clear and convincing evidence that Respondent conspired with her husband to fraudulently purchase the vehicle under the name of her husband's brother, as alleged in Count VI of the complaint. Count V of the complaint also alleges that "sometime during 1998" Respondent conspired with her husband to "fraudulently purchase a pick-up truck, a Dodge Durango, from Bartow Chevrolet [Company, Inc.] under the name of Ray Thompson and without his permission." Except for the evidence which shows that a Dodge Durango was traded in on the Ford F350 truck in September 2000, as noted in Finding of Fact 21, there is no other evidence to support this allegation. Violation of Agreement At hearing, Larry Thompson maintained that after the Agreement was executed in November 2000, he has limited his participation with his wife's business to merely gassing up vehicles and performing maintenance work on the firm's vehicles, when necessary. He denies being employed by his wife or having any contact with customers. In addition, Ricky Thompson, Larry's brother, also denied that Larry Thompson ever accompanied him on service calls. However, the more credible evidence, as detailed in Findings of Fact 4 and 8, is that Larry Thompson performed work for his wife on two occasions in violation of the Agreement. Obtaining Registration by Fraudulent Means Count IV of the complaint alleges that by continuing to use the 1998 Kodiac truck in her business without the permission of the real Ray Thompson, Respondent "falsely indicated and represented to the Department that [she] had means, ability and equipment necessary for the operation of [her] business," that she obtained her registration through fraud or misrepresentation, concealment of material facts, and she committed gross misconduct in the pursuit of her profession. In this regard, Respondent's application for registration, date of licensure, and annual application for a service permit are not of record. While Respondent admitted that she is using the Kodiac in her business, there is less than clear and convincing evidence in the record to support this allegation. This is especially true since there was no evidence that a registrant must own (or have titled in his or her name) every vehicle used in the contracting business, or that Respondent did not have the financial means, ability, or equipment to engage in the business.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final order imposing a $500.00 fine and revoking Respondent's registration as a septic tank contractor. DONE AND ENTERED this 5th day of February, 2002, in Tallahassee, Leon County, Florida. ___________________________________ DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (850) 488-9675, SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of February, 2002. COPIES FURNISHED: Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703 Roland Reis, Esquire Polk County Health Department Department of Health 1290 Golfview Avenue, Fourth Floor Bartow, Florida 33830-6740 Jack T. Edmund, Esquire 1125 East Main Street Bartow, Florida 33830-5004
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 issue is whether Respondent should have his license suspended and an administrative fine imposed for allegedly committing fraud and deceit in the practice of contracting, providing septic tank contracting services without an operating permit, and submitting a fabricated building permit number to obtain a final inspection approval of a job.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Generally When the events herein occurred, Respondent, Willie A. Harmon, operated a septic tank business in Santa Rosa County, Florida, under the name of Willie Harmon's Septic Tank Service. That profession is regulated by Petitioner, Department of Health (Department). In this proceeding, the Department alleges that Respondent violated its rules law on three separate occasions in 1995, 1996, and 1997. Each alleged violation is discussed below. The Iris Lane Citation In April 1997, William M. Newell, who manages various rental properties in Santa Rosa County (County), hired Respondent to pump out a backed up septic tank system located at 1824 Iris Lane, Navarre, Florida. The system was an older one with a sand bottom, a type sometimes found in the southern part of the County. The job was performed by Respondent on April 21, 1997, and it called for Respondent to pump the tank dry. Respondent received payment from Newell for these services. On the evening of April 22, 1997, Newell returned to the premises and found the lid back on the system. Assuming that the job was completed, he telephoned the Santa Rosa County Health Department to request an inspection of the tank, as required by law. Larry Thomas, an environmental supervisor, inspected the tank on April 23, 1997, and found approximately five inches of solids still remaining in the tank and the remainder of the tank full of water. A properly pumped out tank would be dry. Newell immediately contacted Superior Septic Tank Service in Crestview, Florida, to repump the tank. Earl Raybon, an employee of that firm, inspected the tank and assumed it had not been pumped out since it was full of water and had a layer of sludge at the bottom. Raybon observed that the walls and lid of the system were "in good shape," but it needed a replacement liner. Raybon then repumped the tank until the system was dry. When Respondent was later asked by Newell and Thomas why the tank had sludge and water, Respondent advised them that water and solids must have bled (leached) back into the tank through the sand bottom. Although it is not uncommon for groundwater to seep back into a tank through a sand bottom, it is highly unlikely that the tank would completely refill with water within two days, unless the area experienced heavy rains. There was no evidence that this occurred. Further, it is not possible for solids to seep back into the tank under any circumstances. Respondent's explanation that this accounted for the solids in the tank is not deemed to be credible. Respondent also explained that in order to prevent the ingestion of sand into his equipment, he had to leave some sludge at the bottom of the tank. Raybon established, however, that under current industry standards, it is the responsibility of the contractor to pump a tank dry, even if one gets sand in his equipment. Consistent with that practice, Raybon pumped the tank dry. Respondent finally contended that if he had pumped the tank dry, the sides of the system might have collapsed. This occurs, however, only when there is water pressure on both sides of the system. Because the second contractor pumped the system dry without incident, it is found that a collapsing system was not a valid concern. By failing to pump the tank dry, as required by industry standards, Respondent committed fraud and deceit on the customer. In addition, this misconduct caused the customer to incur monetary harm in that the customer had to pay a second contractor to finish the job. The Deer Lane Citation In early December 1995, Respondent installed a new septic tank system on a mobile home lot at 9050 Deer Lane, Navarre, Florida. Before the final written inspection approval for a new septic tank system can be given by the Department, the building permit must be attached to the application. It is the responsibility of the owner, and not the septic tank contractor, to obtain the building permit. Alternatively, if the lot is still undeveloped, as it was here, approval of the system may be obtained without a building permit by simply securing a yellow- green temporary sticker from the Department. On December 5, 1995, Respondent submitted paperwork to the Santa Rosa County Health Department reflecting that building permit number 95-608 had been issued to the owner. He contended that this number was obtained over the telephone from the owner, and this claim was not contradicted. However, a building permit was not issued to the owner until December 7, 1995, and it carried permit number 95-4144. The local department immediately discovered the difference in the two numbers and charged Respondent with fraud and deceit. There was no intent on the part of Respondent to commit fraud or deceit on the Department. Indeed, he could have obtained an inspection and final approval without a building permit being issued since the lot was still undeveloped. Moreover, he had no financial incentive to fabricate the permit number. Therefore, it is found that he did not commit fraud or deceit in the practice of contracting. The Webster Street Citation In order to perform septic tank services, a contractor must be registered with a county health department. By having an operating permit from one county health department, a contractor may perform services in other counties as well. Therefore, an operating permit in Okaloosa County would enable Respondent to perform services in Santa Rosa County. On June 27, 1996, Respondent partially pumped a tank at 7843 Webster Street, Navarre, Florida. At that time, he held no active registrations to perform the work. He eventually obtained an operating permit from the Okaloosa County Health Department on July 29, 1996. According to a representative of the Okaloosa County Health Department, it allows contractors who have previously had permits issued by that Department to work without a valid registration while their applications are being processed. This process usually, but not always, takes no more than two or three weeks. Whether Respondent had previously been issued a registration by the Okaloosa County Health Department is not of record. It is also unknown when Respondent filed his application with that Department, although he says that he had an application pending when the questioned job was performed. Because of these record deficiencies, it is found that, even though Respondent had no valid operating permit on June 27, 1996, he rightly assumed that such work was permissible under then existing policy of the Okaloosa County Health Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a Final Order finding Respondent guilty of violating Rules 64E-6.022(1)(k) and (l)2., Florida Administrative Code, and that Respondent be assessed a $500.00 administrative fine. The charges in the two citations should be dismissed. DONE AND ENTERED this 21st day of January, 1998, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 21st day of January, 1998. COPIES FURNISHED: Angela T. Hall, Agency Clerk Department of Health Building 6, Room 102 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Rodney M. Johnson, Esquire 1295 West Fairfield Drive Pensacola, Florida 32501 Willie A. Harmon Post Office Box 733 Fort Walton Beach, Florida 32548 Pete Peterson, Esquire Department of Health Building 6, Room 102 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact At all times material to this proceeding, Sandra B. Frazier was a licensed real estate broker-salesman in the State of Florida, License No. 0185565, as an associate with Property Associates, Inc., Tallahassee, Florida. On July 1, 1989, Howard M. Burkholz, Leslie Burkholz, and Jacob H. Schiff entered into an Exclusive Right of Sale Agreement with Property Associates, through its agent, Frazier, for the sale of a house located in Forest Green Subdivision, at 2062 Pepperidge Way, Tallahassee, Florida. The Exclusive Right of Sale Agreement states in part: Seller further certifies and represents that the property has no latent defects except the following: septic tank is pumped monthly at Sellers request. [sic] Mr. and Mrs. Burkholz both told Frazier that the septic tank was not a problem, but Frazier had previous knowledge of septic tank problems in the vicinity and of the significance of needing septic tank pumping. Frazier sold the house across from the Burkholz's house. That house, at 2061 Pepperidge Way, was bought by Marcie Doolittle in December of 1988. The listing information and Notice to Prospective Buyers showed that, due to the composition of the soil and heavy rains, it was necessary to have the septic tank pumped. The seller offered an offset to the buyer for the cost of additional drainfield. Only after Doolittle bought the house did Frazier learn of the severity of the problems and the necessity for pump outs every two weeks. In a letter written by Frazier to Doolittle on February 9, 1989, Frazier indicated that "once a septic tank fails it does not correct itself. It then requires regular pumping." Frazier suggested that the only resolution was more drainfield or regular pumping. After Frazier listed the Burkholz house, she mentioned to Mrs. Doolittle that she could not show the Burkholz house during wet weather because the backyard, in which the septic tank and drainfield was located, was too boggy. Further, Frazier discussed with Mrs. Doolittle that the city was going to install sewer in the area because of the septic tank failures. In conformance with the Exclusive Right of Sale agreement with the Burkholzs, Frazier listed the house through the Multiple Listing Service. The data on the house was input on an input sheet. If there are defects, they can be listed on lines RE1-RE4 on the input form. Despite her knowledge about the Burkholz's septic tank and the Doolittle's septic tank, Frazier did not list this as a defect. Mary Wheatley, a sales associate with Bob Wolfe Real Estate, worked with Jesse and Susan Day to locate a house to purchase. She showed the Days the Burkholz house. Her only knowledge of that house came from the MLS listing, the brochure entitled Highlights of this Home prepared by Frazier, and from information verbally given by Frazier. Wheatley had no knowledge of the septic tank problems and Frazier did not tell her anything about the septic tank or the potential hook up to city sewer. After various offers and counteroffers, the Days and the Burkholtzs signed a contract for the sale and purchase of the house on November 24, 1989. The Contract states in paragraph 14: CONDITION OF PROPERTY: BUYER ACKNOWLEDGES THAT HE HAS NOT RELIED UPON ANY REPRESENTA- TIONS MADE BY A REALTOR(S) AS TO THE CONDI- TION OF THE PREMISES. . . .SELLER warrants that the . . . septic tank . . . shall be in working order on the date of closing. SELLER agrees to repair any of the preceding items not in working order. BUYER agrees to inspect the property prior to closing to determine condition of said items; . . . If BUYER fails to make inspections as required, BUYER agrees to accept property in "as is" condition. BUYER and SELLER will diligently learn and disclose to each other prior to closing all facts affecting the value of the property. On December 26, 1989, the night before the closing, the Days, the Burkholzs, Frazier, and Wheatley did the final walk through. While Wheatley and Susan Day were in another room measuring for curtains, Mr. Day flushed a toilet and noted that it went down very slowly. He asked if there were septic tank problems. Mr. Burkholz indicated that there were, but that sewer hookup was coming and the septic tank was pumped out monthly by the city at no cost. Mr. Day asked about the costs and was told that the pumpouts were free and the sewer would cost several hundred dollars. There is a clear conflict in the testimony of the various witnesses about the sewer cost estimate given to Mr. Day, but the exact figure is of no consequence to the ultimate outcome of the case. Therefore the conflict is not resolved. The Days discussed the septic tank and sewer hookup and decided to go through with the closing. After the walk through, they signed an inspection sheet in which they accepted the premises as inspected, without any noted exceptions, and they relieved the sellers and the realtor from further warranty or responsibility for the condition of the property. According to Thomas Bryant, an engineer with the City of Tallahassee, in December, 1989, no one knew whether there would be sewer installed in Forest Green or the potential cost of sewer hookup. No one knew that even on the date of hearing. The city did enter into an agreement to charge $650 for sewer hookup in Forest Green, but there are additional charges and costs to the homeowner which are as yet undetermined. The septic tank problems constitute a latent defect which should have been disclosed to the buyers before a contract was agreed upon. The failure to disclose is not egregious since the regular pumping of the septic tank is done at no cost to the homeowner and results in no liability to the homeowner. The projected sewer hook up was too uncertain to have required such disclosure.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Real Estate Commission enter a Final Order and therein: Find Sandra B. Frazier guilty of one Count of concealment in violation of Section 475.25(1)(b), Florida Statutes. Based on the mitigating factors set forth above and on the relatively minor nature of the offense, impose a fine of $100.00 on Sandra B. Frazier. Issue a written reprimand to Sandra B. Frazier. RECOMMENDED this 27th day of March, 1991, in Tallahassee, Florida. DIANE K. KIESLING 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 27th day of March, 1991. APPENDIX TO THE RECOMMENDED ORDER, CASE NO. 90-6189 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted in this case. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Sandra B. Frazier Each of the following proposed findings of fact is 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(1). Proposed findings of fact 2-9 are subordinate to the facts actually found in this Recommended Order. COPIES FURNISHED: Janine B. Myrick Senior Attorney Department of Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32801-1772 William J. Haley Attorney at Law Post Office Box 1029 Lake City, FL 32056-1029 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Darlene F. Keller Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32801
The Issue Whether Respondent violated Rule 64E-6.003, Florida Administrative Code, by repairing a septic tank and/or drainfield without a permit and, if so, what penalty should be imposed on him.
Findings Of Fact Petitioner, the Department of Health (Department), is the state agency charged with administering and enforcing laws and rules relating to sanitation. Section 381.0011(4), Florida Statutes. Respondent failed to appear at the duly-appointed time and place for the administrative hearing in this matter. On April 22, 1999, Gregory Crumpton, Environmental Specialist with the Pasco County Health Department, responded to a sanitary nuisance complaint regarding Respondent's property located at 7111 Lofty Drive, Port Richey, Florida. Based on that complaint, on April 22, 1999, Mr. Crumpton inspected Respondent's property. His inspection revealed the presence of untreated or improperly treated human waste from an improperly maintained septic tank. Based on his April 22, 1999, inspection of Respondent's property and his determination that the condition existing on Respondent's property constituted a sanitary nuisance, Mr. Crumpton issued an Official Notice to Abate a Sanitary Nuisance. The notice was left on Respondent's property. Moreover, on April 22, 1999, a copy of the notice was mailed to Respondent by certified mail. Respondent signed the return receipt acknowledging that he had received the notice. On April 26, 1999, Mr. Crumpton received a second complaint from a neighbor of Respondent who reported that Respondent's septic tank was being repaired without a permit. Upon inspecting Respondent's property on April 27, 1999, Mr. Crumpton observed that repair work was being performed on Respondent's septic tank without a permit. On April 27, 1999, Mr. Crumpton met with Respondent regarding the inspection and issued to Respondent a second Official Notice to Abate a Sanitary Nuisance, which was sent by certified mail. This notice was issued to Respondent because of the installation and/or repair to septic tank and/or drainfield without a permit. The April 27, 1999, notice advised Respondent that his failure to secure a septic tank repair permit could result in his being fined up to $500.00 per day until he obtained the required permit. Although Respondent was advised that he could be fined up to $500.00 per day for failing to secure a permit to repair his septic tank, as of May 18, 1999, Respondent had not secured the permit. On May 18, 1999, Mr. Crumpton issued a citation alleging that Respondent had installed and/or repaired a septic tank and/or drainfield without a permit. As of the date of the final hearing in this matter, October 19, 1999, Respondent had failed to secure a septic tank repair permit.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Respondent be ordered to pay a fine in the amount of $500.00, obtain a septic tank repair permit, and effect repairs. DONE AND ENTERED this 2nd day of December, 1999, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 2nd day of December, 1999. COPIES FURNISHED: Barbara A. McPherson, Esquire Department of Health 300 31st Street North Suite 338 St. Petersburg, Florida 33713 Shane Whitfield 7111 Lofty Drive Port Richey, Florida 34668 Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1701 Pete Peterson, General Counsel Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1701 Dr. Robert G. Brooks, Secretary Department of Health 2020 Capital Circle, Southeast Bin A00 Tallahassee, Florida 32399-1701
The Issue The issue to be resolved in this proceeding concerns whether the Respondent installed certain septic tank and drainfield systems without having the appropriate permits from the Department of Health and Rehabilitative Services (HRS or Department) and without having the appropriate inspections performed before completing and being paid for the work in question. It is alleged, as well, that the Respondent engaged in advertising and performing septic tank contracting services under the name "Stone's Septic Services" without applying for and receiving an appropriate certificate of authorization from the Department to provide such services under that name.
Findings Of Fact On December 10, 1991, the Respondent installed a drainfield and septic system for Pam Matheny. He was paid $490.00 for that job, which was to include the cost of obtaining the required permit before the installation of the system. The Respondent obtained no such permit, but proceeded to install the system, which is currently operating. The Respondent performed drain line repair of a septic system for Mrs. Noel at 10 Royal Pines Drive, Pace, Florida. That job was also done without the required permit. A similar job was performed at 4844 Orleans Street, Pace, Florida, for a Mrs. Adams. No inspection of the work by the Department was obtained by the Respondent and no permit was issued to or obtained by the Respondent for the work, as established by the testimony of witness, Darla Ard, of the Santa Rosa County Health Unit of the Department. Mr. William Sirmans testified. He is Ms. Ard's supervisor in the Escambia County Health Unit of the Department. All permit applications for the installation and/or repair of septic tank and drainfield sewage disposal systems are processed and issued, if appropriate, by his office. He corroborated the testimony of Ms. Ard and witness, Pam Matheny, to the effect that no permits were ever issued for the three jobs in question which were performed by the Respondent. He discussed these matters with the Respondent during the investigation process underlying this complaint and the Respondent conceded that he had performed the three jobs in question without the required permits. The required inspections, as delineated above, were not obtained either.
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 Department of Health and Rehabilitative services revoking the Respondent's septic tank contracting registration and authorization, as provided for in the above-cited legal authority. DONE AND ENTERED this 18th day of December, 1992, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 18th day of December, 1992. COPIES FURNISHED: Robert L. Powell, Agency Clerk Department of HRS 1323 Winewood Boulevard Tallahassee, FL 32399-0700 John Slye, Esq. General Counsel Department of HRS 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Rodney M. Johnson, Esq. Department of HRS District One P.O. Box 8420 Pensacola, Florida 32505-0420 Marcus E. Stone 11601 Chemstrand Road Pensacola, FL 32514
