The Issue Whether Petitioner's application for a septic tank permit application should be granted?
Findings Of Fact On July 29, 1987, Petitioner applied for a septic tank permit for a proposed individual sewage disposal system to serve a single family residence on Lot 40, Block P, Killearn Lakes Unit I (Unit 1), in Leon County, Florida. A septic tank system consists of a tank and a drainfield which is wholly or partly underground. The decision of whether to grant a septic tank system permit is greatly influenced by the elevation of the wet season water table in the area where the septic tank system will be located. Under normal circumstances, the elevation of the wet season water table can be determined by taking a boring of the ground in question using an auger. If water is found at the time the boring is conducted, that is an indication of where the water table is located. If no water is found, the elevation of the wet season water table can be determined by examining the soil removed from the ground for signs of mottling. Mottling is the discoloration of the soil caused by the interaction of water with the minerals in the soil. The process of mottling takes place over hundreds of years. Therefore, a rapid change in conditions may cause the elevation of the wet season water table to be different than what would be indicated by mottling. Because of the development of Unit I and the drainage method used in Unit I (sheetflow), the elevation of the wet season water table in Unit I is estimated to be between 12 and 20 inches higher than what is indicated by mottling. On July 7, 1987, a boring was taken on an indeterminate area on Lot 40, by Certified Testing, Inc., a private engineering firm. The evaluation of the boring resulted in mottling being present at a depth of 60 inches. On August 3, 1987, Ms. Teresa A. Hegg, an Environmental Health Specialist with HRS, took two borings on Lot 40. The first boring was taken in an area other than where the septic tank system's drainfield would be located. This boring resulted in mottling being present at a depth of 45 inches. The second boring was taken in the area where the septic tank system's drainfield would be located. This boring resulted in mottling being present at a depth of 22 inches. Based on the boring taken at the proposed site for the septic tank system, showing mottling at 22 inches, and the estimate that the wet season water table in Unit I is from 12 to 20 inches higher than mottling would indicate, the estimated wet season water table for Lot 40 is between 2 to 10 inches below the ground surface. Unit I has a history of septic tank system failures. Unit I was platted prior to January 1, 1972. There exists a very high probability that any septic tank system, even a mound system, installed in Lot P-40 will fail.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent issue a final order denying Petitioner's application for a septic tank permit. DONE and ENTERED this 28th day of July, 1988, in Tallahassee, Florida. JOSE A. DIEZ-ARGUELLES Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4085 The Respondent has submitted proposed findings of fact which are addressed below. Paragraph numbers in the Recommended Order are referred to as "RO ." The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection First phrase accepted. Remainder of paragraph supported by competent evidence but unnecessary to the decision reached. First two sentences accepted. Third sentence supported by competent evidence but unnecessary to the decision reached. Accepted. Accepted. 5,6,7,8,9,10 Supported by competent evidence but unnecessary to the decision reached. Accepted. Accepted. 13,14 Supported by competent evidence but unnecessary to the decision reached. 15. First sentence accepted. Second sentence rejected; the wet season water table on Lot P-40 is from 2-10 inches below grade. Third sentence accepted. COPIES FURNISHED: Salvatore A. Carpino, Jr., Esquire One Urban Centre, Suite 750 4830 West Kennedy Boulevard Tampa, Florida 33609 John R. Perry, Esquire Assistant District II Legal Counsel Department of Health and Rehabilitative Services 2639 North Monore Street Suite 200-A Tallahassee, Florida 32303 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
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 Whether Respondent’s license as a septic tank contractor should be disciplined.
Findings Of Fact Respondent is registered with Petitioner as a septic tank contractor and authorized to provide septic tank contracting services, holding Registration No. SR0890264 and Authorization No. SA0900453. David B. Grimes is employed by Bay County Health Department as an inspector responsible for the inspection of on- site sewage systems. On August 22, 2007, Mr. Grimes inspected an on-site sewage treatment disposal system (OSTDS) being constructed by Respondent at 5431 John Pitts Road, Panama City, Florida. The OSTDS failed to meet the minimum rule requirements due to a defective tank and improperly installed drainfield. The tank was defective because its dimensions were smaller than the dimensions required to enable the tank to have sufficient liquid capacity for the system being installed. Mr. Grimes told Respondent that he could not approve the system. Upon learning that the system would not be approved, Respondent, who is a large man and larger than the inspector, threatened to do bodily harm to Mr. Grimes and stated, “I am going to whip your ass”. He also used other profanity in a threatening and serious voice. The inspector began to put his tools into the tool container on the back of his truck. When the inspector attempted to close the container’s lid and leave, Respondent blocked the path of the inspector and would not let him close the truck-bed lid. Respondent insisted the system be inspected and approved so he could finish the job. Other than blocking his path, Respondent did not take any other physical action towards harming Mr. Grimes. Other than with his hands, the evidence did not show that Respondent had the means to cause serious harm to Mr. Grimes. However, Mr. Grimes felt some fear for his safety and was very uncomfortable. He refused to approve the system and left the premises. He called his supervisor to report the incident and request a second inspection by his supervisor. Later that day, Mr. Grimes and his supervisor inspected the OSTDS. Respondent was not present. The inspector concurred with Mr. Grimes’ findings and the system was not approved. On August 23, 2007, Mr. Grimes made a second visit to the property to continue the inspection of the OSTDS. The drainfield was corrected and a new and larger tank was installed. The dimensions of the tank were again smaller than required to meet the liquid capacity of the tank. Additionally, the tank had a gap in the seal around the intake feed line. It was, therefore, defective and could not be approved. Mr. Grimes told Respondent that he could not approve the system. Respondent again grew angry when he was told the new tank was also defective and would not be approved. Respondent stated that Mr. Grimes was the worst inspector in the area and made other derogatory remarks towards him. Respondent also threatened to make trouble with the inspector’s employment and/or “get him fired” unless the system was passed. The evidence did not show that Respondent made any physical moves toward Respondent or otherwise impeded his inspection. The inspector was again fearful for his personal safety although the evidence did not demonstrate a reasonable basis for such fear. The OSTDS was not approved and Mr. Grimes left the work site. There was no evidence that Respondent followed through with interfering with Mr. Grimes’ employment. At best, the evidence showed that Respondent’s threat to interfere with the inspector’s employment was mere hyperbole. Such comments are common. While silly and rude, the mere threat of an employment action does not rise to the level of being unlawful and does not demonstrate misconduct sufficient to impose discipline on Respondent’s license. On the other hand, the actions of Respondent towards the inspector when he threatened to do bodily harm to the inspector, and blocking his attempts to leave unless he approved the system, did constitute gross misconduct on the part of Respondent. Even though Respondent’s actions were unsuccessful, Respondent’s words coupled with his conduct go beyond mere hyperbole and constitute an unlawful threat towards a public official to influence the official’s actions. Respondent’s actions did not cause physical or monetary harm to any person. In the past, Respondent was disciplined by letter of warning in Case Number SC0478 in 2000, for covering a new installation in violation of the system construction standards and by citation in Case Number SC0591 in 2001, for creation of a sanitary nuisance, negligence, misconduct, and falsification of inspection report. The instant violation is a second violation for misconduct and a repeat violation of the rules of the Department.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that Respondent's license be disciplined for violations of the Florida Administrative Code Rule 64E-6.022 and that his Septic Tank Contractor License No. SR0890264 and Authorization No. SA0900453 be fined in the amount of $500.00 and suspended for 90 days. DONE AND ENTERED this 5th day of May, 2008, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 5th day of May, 2008. COPIES FURNISHED: Rodney M. Johnson, Esquire Department of Health Northwest Law Office 1295 West Fairfield Drive Pensacola, Florida 32501 G. D. Yon, Jr. Yon Septic Tank Co. 2988 Hwy 71 Marianna, Florida 32446 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701 Dr. Ana M. Viamonte-Ros, Secretary Department of Health 4052 Bald Cypress Way, Bin A-00 Tallahassee, Florida 32399-1701 Josefina M. Tamayó, General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701
The Issue The issues are whether Respondent has violated the standards of practice in septic tank contracting, Florida Administrative Code rule 64E-6.022, and, if so, the penalty. (All references to Respondent are to Arlender Miller. All references to Ms. Rooter are to Ms. Rooter, Inc.)
Findings Of Fact At the times of the alleged jobs, Respondent was registered as a septic tank contractor and served as the qualifying agent for Ms. Rooter. At the time of all three jobs, Respondent had apparent authority to serve as the agent of Ms. Rooter in contracting for and performing the septic tank contracting work described below. However, nothing in the record establishes any relationship between Respondent and Ms. Rooter at the time of the issuance of the Administrative Complaint, so as to justify treating the notice of this proceeding, when served upon Respondent, as notice to Ms. Rooter. Hans Seffer, who testified, is the son of the woman who owns the apartment complex located at 14950 North Miami Avenue, Miami. Mr. Seffer found Ms. Rooter on the internet and spoke with Carolyn Futch, operations manager of Ms. Rooter, about septic tank contracting services needed at the apartment complex. Respondent later met with Mr. Seffer at the property. Initially, Mr. Seffer believed that the existing septic tank needed only to be pumped out. However, upon inspection, Respondent determined that the system also required a new drainfield, pump, and dosing tank. Accordingly, on February 20, 2008, Respondent, as "technician," and either Mr. Seffer or his mother signed a one-page contract on a form identifying the contractor as Ms. Rooter, license number SA0071430. The contract describes the following work: Install 1,000 sq. ft. drainfield with 300 gallon dosing tank including immediate (2/21/08) tank pump out. Additionally if tank requires pumpout prior to securing all necessary permits, Ms. Rooter will perform pumpout at no additional cost. Manhole cover included. Respondent and either Mr. or Mrs. Seffer initialed this section of the contract. The contract states that the total due for this work is $10,500. Ms. Seffer paid $5,000 by check on February 21, 2008, leaving a $5,500 balance due. On March 1, 2008, Respondent, as agent for Ms. Rooter and on behalf of the property owner, submitted to Petitioner an application for a construction permit for an onsite sewage disposal system. The application describes the property improvements as a multifamily complex with ten bedrooms and 5,284 square feet of building space. The site plan attached to the application states: "Replace drainfield only." On April 2, 2008, Ms. Futch emailed Mr. Seffer to confirm an earlier discussion between them. The discussion addressed a requirement of Petitioner that Ms. Rooter install a second tank. The email states that the property owner will pay $5,600 for the installation of a "2nd tank (1,050-gal)," so the new total contract price is $11,100. This email restates the scope of the work as the installation of a 1,000-square-foot drainfield and 300-gallon dosing tank. By return email two days later, Mr. Seffer agreed to the additional work. On April 11, 2008, Petitioner issued to the property owner a construction permit that specifies a 2,575-gallon septic tank and a 1,000 square-foot drainfield. The permit states: "The licensed contractor installing the system is responsible for installing the minimum category of tank in accordance with sec. 64E-6.013(3)(f), F.A.C." This rule does not refer to tank capacities. On April 23, 2008, Petitioner issued a "construction inspection and final approval" form that shows the installation of two 1,200-gallon septic tanks and a 1,005-square-foot drainfield. The form states that items bearing an "X" are "not in compliance with statute or rule and must be corrected." The construction and final system are approved by Petitioner's inspector. During the course of the work, Respondent told Mr. Seffer that the existing tank was damaged and needed to be replaced, at an additional cost of $5,000, so the remaining balance rose to $16,100. Mr. Seffer agreed to this change. By email dated April 30, 2008, to Mr. Seffer, Ms. Futch confirmed the additional cost of $5,000 for the second septic tank and expressed "hope [that] Ms. Rooter has met your expectations." The email acknowledges, however, that "we must complete the electrical portion of the job." On May 2, 2008, Mr. Seffer sent Ms. Rooter two checks totaling $15,000, leaving a balance of $1,100. On the same date, Mr. Seffer sent Ms. Futch an email that, pursuant to their agreement, he would retain this amount for the "electric and final raking work." By email dated May 27, 2008, to Ms. Futch, Mr. Seffer noted that the manhole that Ms. Rooter had installed in the middle of the lawn was not level and was sunken, presenting a tripping hazard; the final grading was incomplete, leaving low spots and holes; a large rock remained near the palm tree and needed to be removed. Mr. Seffer sent Ms. Futch a reminder email on June 4, 2008, that resent the May 27 email. Mr. Seffer sent another email to Ms. Futch on June 21, 2008. In it, he notes that a Ms. Rooter employee worked on digging an electrical trench on June 13, but left mid-day, and no work had been performed since that day. In the meantime, recent rains had revealed a lack of compaction in the backfilling done by Ms. Rooter, as the fill had settled and undermined a sidewalk. After failing to obtain a response, on July 26, 2008, Mr. Seffer sent a final email to Ms. Futch warning her that he would file complaints with governmental agencies and advising that the unconnected pump was not pumping sewage throughout the entire system. The record does not contain the contracts for the septic tank contracting services involved in the second and third jobs alleged in the Administrative Complaint. Also, Petitioner did not present the testimony of the property owners involved in these jobs. The record for these jobs is limited to the permitting documentation. On September 26, 2008, as agent of Ms. Rooter and on behalf of the property owner, Shoreview Properties, Respondent submitted an application for a construction permit for an onsite sewage disposal system for 9999 Northeast 2nd Avenue, Miami Shores. This application describes the property as commercial with a 47,771 square-foot building. On October 1, 2008, Petitioner's inspector inspected the property. The inspector found an opened drainfield area with contaminated material and other conditions capable of hosting various disease vectors. He also found a backhoe and worker, who claimed that someone else had excavated the drainfield. The inspector immediately posted an ONASN, pursuant to the authority of chapter 386, Florida Statutes, that required the immediate abatement of the listed insanitary conditions. The inspector also determined that the existing onsite sewage disposal system exceeded Petitioner's jurisdictional threshold of 5,000 gallons per day. On September 10, 2008, as agent of Ms. Rooter and on behalf of the property owner, Lisa Mullin, Respondent submitted to Petitioner an application for a construction permit for an onsite sewage disposal system for 101 Northeast 195th Street, Miami. This application describes the property as 0.19 acres, on which is situated a single family residence comprising 1,663 square feet and three bedrooms. On September 22, 2008, an agent of the property owner called Petitioner and complained that Ms. Rooter had commenced the work without having first obtained a permit. Petitioner's inspector visited the site on the same day and found "very recent" earthwork. The owner informed the inspector that the contractor had installed three drainlines, cut an old water line, and installed a new water line over the drainfield. However, the record fails to establish the amount of time that elapsed between the work claimed to have been performed by Ms. Rooter and the report by the property owner. Respondent has paid numerous fines imposed by Petitioner for improper septic tank contracting. In 1999, Respondent paid a fine in an unspecified amount for performing an unpermitted drainfield repair and making the repair without the required filter sand. On January 27, 2000, Respondent paid a fine of $250 for performing unpermitted system repairs. On February 4, 2000, Respondent was assessed a fine of $1,000 for performing unpermitted and uninspected system repairs and failing to honor a warranty. On January 8, 2004, Respondent received a cease and desist order for qualifying more than one septic tank contracting business. In 2007, Respondent paid separate fines of $1,500 and $1,000 for illegal septic tank contracting work in Dade and Monroe counties, respectively.
Recommendation It is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of the three violations identified in paragraphs 26, 27, and 29 above, dismissing the remaining charges against him, dismissing any charges against Ms. Rooter, and revoking Respondent's septic tank contracting registration. DONE AND ENTERED this 31st day of January, 2011, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 2011. COPIES FURNISHED: Arlender Miller 640 Northwest 129th Street Miami, Florida 33168 Jenea Reed, Esquire Miami Dade County Health Department 8323 Northwest 12th Street, Suite 214 Miami, Florida 33126 R.S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 E. Renee Alsobrook, Acting General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Shairi Turner, Deputy Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701 Kim Berfield, Deputy Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701
Findings Of Fact At all times material to this proceeding, Respondent, James A. Tipton ("Tipton"), has been a registered professional engineer in the State of Florida, having been issued license number PE 0018147, which expires on January 31, 1987. Tipton employed the services of Robert Corno as a field man for taking samples to establish soil profiles, site characteristics and existing water tables for septic tank applications prepared and filed by Tipton. Corno had actual authority from Tipton to conduct tests, site examinations and evaluations and to submit his findings to Tipton. Sometime before April 8, 1985, Tipton was retained to perform professional engineering services in connection with the preparation and filing of an application for a septic tank on lot 168, block 3, Charlotte Ranchettes Subdivision in Charlotte County ("lot 168"), owned by Joseph Duseo. Tipton sent Corno to lot 168 on April 13, 1985, to examine and evaluate the site, take soil samples and make other observations that would have to be reported to Tipton in connection with Tipton's work. Corno completed his work and reported to Tipton. Corno did not bring Tipton the actual soil samples. On April 8, 1985, Duseo's general contractor told Corno about a well on lot 168. When Corno visited the site, he observed the well. The well is an artesian well, about 3 feet high and six inches in diameter. The well is an irrigation-type well and is non-potable. The well was within fifty feet of the drain field of the septic system Tipton proposed for lot 168. The well also is approximately 5 to 10 feet from the north property line. Corno knew at the time of his visit to the site that the well was not plugged. However, Corno understood that Duseo was in the process of arranging with the Southwest Florida Water Management District to have the well plugged. Corno did not tell Tipton about the well before Tipton prepared and filed the application for the proposed septic tank. Therefore, Tipton did not know there was a well on lot 168 when he was preparing the application for the septic tank permit. Tipton did not ask Corno any questions calculated to reveal whether there was a well on lot 168. Corno held the belief that non-potable wells, especially those that were to be plugged, did not have to be shown on septic tank permit applications. There was evidence about a survey of lot 168 certified by a land surveyor employed by a firm of professional engineers which did not show any well on lot 168. However, Tipton did not have access to the survey before he prepared the septic tank permit application on lot 168. (The survey bears two dates, April 17 and April 18, and was not signed until April 25, 1985.) On or about April 15, 1985, Tipton signed and certified the septic tank permit application for lot 168. The application was filed at the Charlotte County Public Health Unit (Health Department) on April 16, 1985. The application indicates "none" in the space provided to indicate the "location of wells within 75 feet of property lines." The well on lot 168 is an important consideration which should have been depicted on the application. Septic tank drain fields could pollute a well. Even if Tipton had known that the well was supposed to be plugged, it was not plugged until July 1985. Failure to show the well was a serious omission. Tipton was negligent for relying on Corno without having an understanding whether Corno would report to him the existence of non-potable wells within 50 feet of the drain field of a septic system or within 75 feet of a property line if the well was likely to be plugged. If he had used due care, Tipton would have either made explicit inquiry of Corno sufficient to reveal the existence of the well or ascertained from Corno in advance that he would report to Tipton the existence of any well within 50 feet of the drain field of a proposed septic system or within 75 feet of property lines. Having failed to exercise due care, Tipton did not realize that Corno would not be reporting to him the existence of a non-potable well which was supposed to be plugged in the future. A few days after he filed the application, Tipton learned about the well on lot 168. But at about the same time, Duseo and his contractor began discussing construction alternatives that would change the septic system and require a new septic tank application. Therefore, Tipton did not immediately amend the April 15 application to show the well. In mid-May, Tipton filed a new application for the different septic system. The new application, not in issue in this case, showed the well. The application also contained a soil profile which probably is not accurate. However, Tipton's soil profile simply reflects the information reported to him by Corno. While Tipton's soil profile does not correspond with soil profiles from other test holes dug in the area of the proposed drain field by the Health Department and an expert witness, the information Corno reported to Tipton was well within the realm of possibilities for soil in the area of lot 168. Corno generally seemed to be a qualified and experienced field man who used proper tools to do his job. There was nothing suspicious about Corno's information, and there was no reason for Tipton to suspect that it was false or fraudulent. While it is the better practice for a professional engineer to require his field man to deliver the actual soil sample to support a soil profile report, this is not required of professional engineers if there is no reason to suspect that a field man's soil profile report is false or fraudulent. On the application, Tipton estimated the high water table on lot 168 at 2.2 feet below existing grade. While other expert witnesses estimated a higher high water table, the evidence did not prove that Tipton was negligent in his estimate. Some of the conflicting estimates were Health Department estimates which, the evidence indicates, tend to be high to be on the safe side. Others were estimates on permit applications which may have been influenced by the Health Department's desires and which may not reflect the engineers' actual estimates. Of all the estimates, only Tipton's was supported by testimony how the estimate was derived. (Tipton used what he called Darcy's Law.) Finally, Petitioner's own expert witness testified that Tipton's high water table estimate could not be called negligent.
Recommendation Based upon the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Board of Professional Engineers enter a final order holding Respondent, James A. Tipton, guilty of negligence in the practice of engineering under Count I of the Amended Administrative Complaint (but dismissing Count II of the Amended Administrative Complaint) and imposing an administrative fine in the amount of five hundred dollars ($500.00). RECOMMENDED this 19th day of May, 1986, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of May, 1986. COPIES FURNISHED: Ms. Sarah Logan Executive Director Board of Professional Engineers 130 North Monroe Street Tallahassee, FL 32301 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 Salvatore A. Carpino, Esq. General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 Wings Slocum Benton, Esq. Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 John Charles Heekin, Esq. C-1 Ocean Plaza 21202 Ocean Blvd. Port Charlotte, FL 33952 APPENDIX The following are specific rulings on all the parties' proposed Findings of Fact as required by Section 120.59(2), Florida Statutes (1985). Rulings on Petitioner's Proposed Findings of Fact Petitioner's Proposed Findings of Fact 1 through 3, 9, 10, 13 through 16, 19, 21 and 22 are accepted as substantially factually accurate and are incorporated in the Findings Of Fact in the same or similar format to the extent necessary. Petitioner's Proposed Finding Of Fact 4 would have been included in paragraph 1 above except that the last sentence is unnecessary. Petitioner's Proposed Finding Of Fact 5 would have been included in paragraph 1 above except that the third sentence is unnecessary. Petitioner's Proposed Findings Of Fact 17, 18 and 27 would have been included in paragraph 1 above except that they are unnecessary. Petitioner's Proposed Finding Of Fact 26 would have been included in paragraph 1 above except that whether Alligator Creek is a "significant" drainage feature would depend on the definition of "significant" which was not established by the evidence. In addition, Petitioner's Proposed Finding Of Fact 26 is unnecessary. Petitioner's Proposed Findings Of Fact 6 through 8 are rejected as conclusions of law and because the last sentence of Proposed Finding Of Fact 6 is cumulative. Petitioner's Proposed Finding Of Fact 11 is rejected because the first sentence is contrary to the greater weight of the evidence and Findings Of Fact and the second sentence is, subordinate to Findings Of Fact. Petitioner's Proposed Findings Of Fact 12, 20, 23 and 24 are rejected as subordinate to Findings Of Fact. Petitioner's Proposed Finding Of Fact 25 is rejected because the first sentence is subordinate to Findings Of Fact and the second sentence is contrary to the greater weight of the evidence. Rulings on Respondent's Proposed Findings of Fact. Respondent's Proposed Findings Of Fact 1 through 3, 5 and 12 are accepted as substantially factually accurate and are incorporated in the Findings Of Fact in the same or similar format to the extent necessary. Respondent's Proposed Finding Of Fact 4 would have been included in paragraph 1 above except that the second sentence is unnecessary. Respondent's Proposed Finding Of Fact 8 would have been included in paragraph 1 above except that it is unnecessary. Respondent's Proposed Finding Of Fact 9 would have been included in paragraph 1 above except that it is in part unnecessary. Respondent's Proposed Finding Of Fact 11 would have been included in paragraph 1 above except that it is contrary to the greater weight of the evidence and Findings Of Fact that there is "no way" for an engineer to avoid relying on a field man's error such as Corno's error in omitting to report the existence of the well. Respondent's Proposed Finding Of Fact 14 would have been included in paragraph 1 above except that it is irrelevant. Respondent's Proposed Finding Of Fact 6 is rejected because it is subordinate to Findings Of Fact and is unnecessary. Respondent's Proposed Finding Of Fact 7 is rejected because it is simply a recitation of conflicting evidence, some of which is accepted but some of which is rejected as contrary to the greater weight of the evidence and Findings Of Fact. Specifically, it was found that Corno did not tell Tipton about the well and that Tipton did not have the survey in his possession at the time the application was filed. Respondent's Proposed Finding Of Fact 10 is rejected as contrary to the greater weight of the evidence and Findings Of Fact. Specifically, the evidence supported a finding of negligence on the part of Tipton for failure to utilize due care and to have due regard for acceptable standards of engineering principles whether or not practicing in Charlotte County. In addition, Mr. Murray's expert testimony must be disregarded because it was given upon a hypothetical assumption that an engineer had possession of a sealed survey showing no improvements on the property as the time of the application, a fact not proved by the evidence. Respondent's Proposed Finding Of Fact 13 is rejected as contrary to the greater weight of the evidence and Findings Of Fact. Specifically, personnel in the Health Department, part of the "general public," were misled. (The general public also reasonably could have been led to a fallacious conclusion, but there was no "misconduct" on Tipton's part. See Conclusions of Law.) ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF PROFESSIONAL ENGINEERS DEPARTMENT OF PROFESSIONAL REGULATION, FLORIDA BOARD OF PROFESSIONAL ENGINEERS Petitioner, vs. DOAH CASE NO. 85-2684 DPR CASE NO.0058289 JAMES A. TIPTON, Respondent. /
Findings Of Fact On May 6, 1986, George Bailey, doing business as Bailey's Septic Tank Service pursuant to a permit to operate a septic tank cleaning service, pumped out and cleaned the septic tank located at 474 Hinton Street, Port Charlotte, Florida, owned by Davina Hall. On May 21, 1986, upon inspection of that septic tank by Warren McDougall and Dale Holcomb on the complaint of the owner, it was determined that the septic tank inspection hatch lid was not properly sealed. There was a hole where the corner of the inspection hatch lid had been broken off and the soil over the tank was not properly replaced and compacted. The only evidence as to whether anyone else did work on that septic tank after Bailey's and before the inspection was the testimony of the inspectors and Bailey about what they were told by others. That evidence is all hearsay and cannot be relied upon to base a finding under these circumstances. Accordingly, it cannot be found that Bailey's left this tank unsealed and damaged. On September 26, 1985, Bailey's serviced the septic tank located at 1043 Webster Avenue, Port Charlotte, Florida, at the request of Robert Keniston acting as agent for the owners, Mr. and Mrs. Caggiano. The house was vacant when the work was done, but Keniston observed the work in progress. On May 27, 1986, an inspection of the septic tank by Warren McDougall and Emmery Wuthrich of the Charlotte County Health Department revealed that the access lid was broken and had not been sealed. David Sandefer, the employee of Bailey's who performed the work, acknowledged that he left the tank with a broken lid and unsealed because Keniston told him to do so and would not pay the $40 to replace the lid. Keniston denies this and says he did not know of the broken lid until the inspection. Having observed the demeanor of the witnesses, it is found that Keniston's testimony is more reliable and credible in this regard. On June 10, 1986, the Sarasota County Health Department received a complaint that a Chevrolet pump truck, white cab with a red tank, was dumping sewage and had magnetic signs saying it was a pressure cleaning service. The complaint was being investigated by John Madrak that same day when he saw a truck fitting the description parked at the Frosted Mug, a restaurant in Venice, Florida. There were no signs on the truck. Madrak also observed a puddle under the tank caused by a leak from the outlet valve on the tank. Madrak saw work order forms in the cab of the truck saying Bailey's Septic Tank Service. Madrak talked to the driver of the truck, David Sandefer, and was told that the truck was owned by Bailey, but was not being used for septic tank cleaning. Sandefer said it had just been repainted. The driver left the Frosted Mug and Madrak followed at the instruction of his supervisor. After a lengthy chase, the truck stopped at a convenience store and Bailey, Madrak, Venice Police Officer Dodd and Sheriff's Deputy Lowen converged on the scene. Bailey acknowledged ownership of the truck, but indicated that it was being used as a water tank truck in a pressure cleaning business and not as a septic tank pump truck. It had been repainted and had not been used for septic tank service for 4 to 6 weeks prior thereto. Bailey owns two other pump trucks that were being used in the septic tank business. The truck had hoses and shovels consistent with use for pumping septic tanks. The truck had no signs indicating by whom it was being used. The truck was leaking from the outlet valve, but no evidence was presented as to the substance leaking from the truck. No one sampled, touched or smelled the leaking material and no one looked in the tank to see what was inside. At no time did anyone observe the truck in the act of pumping sewage.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter a Final Order and therein Dismiss the complaint in Case No. 86-2107. Find the Respondent guilty of the violations alleged in Case No. 86- 2633. Dismiss the complaint in Case No. 86-2624. Suspend the septic tanking cleaning service permits of George E. Bailey, doing business as Bailey's Septic Tank Service, for a period of one year and impose a fine of $500.00. DONE and ORDERED this 15th day of October, 1986, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of October, 1986. APPENDIX TO RECOMMENDED ORDER The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all proposed findings of fact submitted by the parties to this case. Specific rulings on proposed findings of fact of Petitioner Case No. 86- 2107 Each of the following proposed findings of fact are adopted in substance or 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); 2(2); 3(2). Proposed findings of fact 4 and 5 are unnecessary. Specific rulings on proposed finding of fact of Petitioner Case No. 86-2623 Each of the following proposed findings of fact are adopted in substance or as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(5); 3(5); 5(4); 6(4); 7(5); 8(4). Proposed findings of fact 4, 9 and 10 are unnecessary. Proposed finding of fact 2 is subordinate to the facts actually found. Specific rulings on proposed finding of fact of Petitioner Case No. 86-2624 Each of the following proposed finding of fact are adopted in substance or as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(7); 1(7); 3(7); 4(8); 5(8); 6(8); 8(9); 9(10); 10(11); 11(11); 12(12). Proposed findings of fact 13, 14, 15, and 17 are unnecessary. Proposed findings of fact 7 and 16 are subordinate to the fact actually found. Specific rulings on proposed findings of fact of Respondent Case No. 86- 2107 Proposed finding of fact 1 is adopted in substance as modified in Finding of Fact 1 and proposed finding of fact 2 is similarly adopted in Finding of Fact 2. Proposed findings of fact 3, 4, 5, 6 and 7 are subordinate to the facts actually found. Proposed finding of fact 8 is unnecessary. Specific rulings on proposed findings of fact of Respondent Case No. 86- 2623 Each of the following proposed findings of fact are adopted in substance or as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(4); 2(4);; 3(4); 4(5). Proposed findings of fact 5, 6, 7, 8, 9, and 10 are subordinate to the facts actually found. Proposed findings of fact 11 and 12 are unnecessary. Specific rulings on proposed findings of fact of Respondent Case No. 86- 2624 Each of the following proposed findings of fact are adopted in substance or as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(7); 3(13); 4(12); 6(8); 7(13); 8(13); 10(11); 11(11); 12(11). Proposed findings of fact 2 and 9 are subordinate to the facts found. Proposed finding of fact 5 is rejected as not supported by the credible evidence. Proposed finding of fact 13 is unnecessary. COPIES FURNISHED: Anthony N. DeLuccia, Jr., Esquire Post Office Box 06085 Fort Myers, Florida 33906 Robert B. Bennett, Jr., Esquire 46 N. Washington Boulevard, Suite 13 Sarasota, Florida 33577 William Page, Jr., Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
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 in this case is whether Petitioner failed to obtain a permit for abandoning an on-site sewage treatment and disposal system septic tank, and failed to notify Respondent so that Respondent could inspect the system prior to abandonment, in violation of Section 386.0065, Florida Statutes (1997), and, if so, whether Petitioner should pay a $500 fine. (All Chapter and Section references are to Florida Statutes (1997) unless otherwise stated.)
Findings Of Fact Respondent is the state agency responsible for issuing citations under Chapter 386 and is the licensing authority for Petitioner. The Osceola County Health Department (the "Department") is an agency of Respondent. All Pro Services ("All Pro") practices septic tank contracting in Osceola, Orange, and Seminole counties. All Pro is a Florida corporation wholly-owned by Mr. Wayne H. Crotty. Mr. Crotty is licensed in the state as a septic contractor pursuant to Chapter 386. Mr. Crotty has been in the septic tank business for over 25 years. He has extensive experience in septic tank repair and contracting. Mr. Crotty also has had experience in the rule-making process conducted by Respondent pursuant to Florida Administrative Code Chapter 10D-6. He has participated in various committees and held offices in the Florida Septic Tank Association. (Unless otherwise stated, all references to rules are to rules promulgated in the Florida Administrative Code in effect on the date of this Recommended Order.) In the summer of 1996, Petitioner submitted an application to the Department for a repair permit. Petitioner sought to install a standard drainfield utilizing gravity fall from the existing septic tank of a mobile home owner who used the mobile home facility as a day-care center. The existing drainfield was antiquated, clogged, and had ceased disposing effluent properly. Petitioner made arrangements for the day-care center to refrain from using water or sewage for a period of hours so that the drainfield could be repaired. The application came to the attention of Mr. Thomas Franklin Wolf, Director of the Department's Environmental Health Section. Mr. Wolf did not accept the site evaluation in the application. He chose to perform his own evaluation of the repair site. When Mr. Wolf performed a site evaluation, he placed the seasonal high water table two inches higher than the high water table stated by Petitioner in the application for a repair permit. As a result, Mr. Wolf issued the permit at an elevation that would have required either the use of a pump system or elevated plumbing lines in the existing septic tank to meet the higher elevation deemed necessary by Mr. Wolf. The higher elevation established in the permit could be accommodated in either of two ways. The plumbing underneath the mobile home, along with the septic tank, could be raised. Alternatively, a new pump, and other equipment meeting the requirements of Chapter 10D-6, could be installed. The repair permit issued by Mr. Wolf contemplated the use of a new pump chamber complete with alarm. Pumps fail, are problematic, and are expensive. A conventional gravity-fed drainfield line is preferable, whenever feasible, to the use of a pump chamber system and is less expensive. Petitioner determined that the plumbing and septic tank could be elevated to meet the higher elevation requirements thereby avoiding the need for a pump system and its increased cost. This lower-cost alternative satisfied the requirements of Chapter 10D-6 for a septic tank drainfield. Based on past experience, Mr. Crotty believed he could obtain the Department's approval of this alternative to the pump chamber requirements of the permit. The Department had no objection to an alternative that achieved the higher elevation requirement with a gravity-fed system. One risk associated with Petitioner's alternative was that the existing septic tank might not withstand the rigors of being excavated and raised and could break during the repair process. After conferring with the homeowner about the matter, Petitioner proceeded to elevate the existing plumbing lines and septic tank. Petitioner began excavation and removed the lid from the existing septic tank. Petitioner then determined that it would not be feasible to lift the tank up and reinstall it at the higher elevation due to the age and style of the tank. Petitioner determined that the best way to proceed was to abandon the old tank and to install a new tank at the higher elevation. Petitioner replaced the existing septic tank without obtaining a separate abandonment permit. Petitioner did not need a separate abandonment permit. The repair permit was inclusive of the abandonment of the existing tank. In a previous repair effort for another customer, Petitioner broke the existing septic tank while attempting to elevate the tank to a higher location. The prior incident led to a disagreement between Petitioner and the Department over whether a separate abandonment permit was required for replacing a tank in the course of a repair. Petitioner wrote a certified letter to the Department and Department's counsel memorializing an understanding reached during discussions with Department representatives. Any requirement for a separate abandonment permit in the course of a repair was tabled pending further review by the state health office in Tallahassee. The letter further stated Petitioner's understanding that under Chapter 10D-65, the replacement of an existing tank was provided for through a repair permit, and that no separate abandonment permit is necessary for an abandonment which occurs in conjunction with a repair effort. The letter was received by Mr. Wolf on behalf of the Department. In response, the Department specifically informed Petitioner that the replacement of an existing tank is provided for through the repair permit. Mr. Wolf never retracted this position in his dealings with Petitioner. At about the same time, the state health office, through its acting Health Officer for Environmental Health, issued an interoffice memorandum advising every district administrator in the state that a separate abandonment permit is not required when an existing tank is abandoned during repair. The interoffice memorandum stated, in relevant part: This addresses permitting procedures when a septic tank is abandoned in conjunction with a system repair. Since the repair and tank abandonment inspections can be conducted at the same time, a separate permit and fee is not required if a tank is abandoned in conjunction with a repair permit. The repair permit should specify the abandonment requirements from s. 10D-6.053, F.A.C., and the requirements to have the abandonment inspected. If an additional inspection visit is required for either the repair or abandonment, the unit should charge the $25.00 re-inspection fee. Respondent's memorandum served as the Department's official interpretation of its rules relating to abandonment procedures. The memorandum made a separate abandonment permit unnecessary because the repair permit "is inclusive of the abandonment if the abandonment is necessary." The repair permit in this case suffices as an abandonment permit. Petitioner relied upon the representations of Mr. Wolf personally as well as the Department memorandum of February 18, 1996. Based upon Department policy, Petitioner was not required to amend its permit application to seek specific approval for abandonment of the existing tank, because the tank was being abandoned in conjunction with a repair permit. Petitioner pumped out, ruptured, and demolished the old septic tank with the exception of the inlet end wall and the sidewall closest to the tank. Petitioner left intact the latter portions of the old septic tank for inspection purposes and for stabilization. Petitioner placed the lids and the broken pieces of concrete from the tank alongside the new septic tank that was installed. Mr. Crotty requested an inspection by the Department. Inspector Garner arrived on the scene with a standard probe. The probe is a tool useful for inspecting on-site sewage disposal systems. Mr. Crotty informed Mr. Garner that Petitioner had abandoned the old tank and replaced it with a new one. Mr. Crotty took Mr. Garner over to the site and specifically pointed out the remaining sidewall of the old tank and the lids piled up on-site and remaining from the old tank. Mr. Garner inspected the repairs and satisfied himself that Petitioner had installed a new septic tank in the place of the old tank and had done it in a way that would allow gravity feeding to the new drainfield. The repairs dispensed with the need for a pump and were accomplished at a lower cost to the customer. After the inspection on August 13, 1998, and a subsequent review on August 14, Inspector Garner approved the installation by Petitioner. The approval specifically approved the use of a gravity-fed line rather than the use of the pump contemplated in the permit. The approval constituted the "construction final" approval for the septic system that was repaired. Rule 10D-6 does not specify when the inspection for an abandonment of a septic tank in conjunction with a repair is to occur. Nor does it say anything about requesting an inspection before the tank is filled with sand or other suitable material and covered. It was Inspector Garner's practice, and the unwritten policy of the Department, to conduct inspections of damaged septic tanks at the same time the Department inspected repair constructions. The practice of the Department in such an inspection was to inspect the abandoned tank after it had been pumped and the bottom ruptured, but before a new tank was installed. According to Department practice, the inspection of an abandonment in conjunction with a repair must determine that the tank had been pumped and that the bottom of the tank had been opened or ruptured or collapsed to prevent the tank from retaining water. The inspection can only occur after the tank has been pumped out, opened, ruptured or collapsed. Inspector Garner arrived for the inspection after abandonment of the old tank. Mr. Garner does not dispute that Petitioner abandoned the old tank, but maintains that the abandonment was accomplished without proper notification to the Department. Mr. Garner approved the construction, but recorded x- marks on the approval form adjacent to a box for abandonments and next to "tank pumped" and "tank flushed and filled." Mr. Garner also recorded on the form under "explanation of violations" a notation that the old septic tank "was abandoned without any inspection of [sic] verification." The promulgated rules of the Department and Respondent do not require an inspection before an abandoned tank is filled with sand, or other suitable material, and covered. It was the Department's unwritten policy, evidenced by its practice, to insist that inspection of the abandoned septic tank occurred before the tank is actually crushed. The promulgated rules of Seminole and Orange counties do not require inspection prior to abandonment of an existing tank. The unwritten policies of Seminole and Orange counties deviate from those of the Department. The Seminole County Health Department ("Seminole") also received the Department's interpretive memorandum regarding abandonment of septic tanks in conjunction with repairs. Seminole concluded that abandonment inspections should be conducted simultaneously with the final inspection for repairs. At that point, the old septic tank is already ruptured and filled with sand. Seminole adopted the practice of inspecting abandoned septic systems with a probe to verify the pump-out and the rupturing of the old tank. It is the same type probe used by Mr. Garner and the Department. The probe allows a department employee to verify all of the requirements of Rule 10D-6.053 for abandonment. The Orange County Health Department ("Orange County") also received the interpretive memorandum concerning abandonment of septic tanks in the course of repair procedures. By the time the memo was received, however, it was already the practice of Orange County not to require a separate abandonment permit for an abandonment as part of a repair. In Orange County, inspectors permitted abandonment inspections to occur at the point where the tank was already collapsed and covered with sand. The inspection was accomplished with the use of a probe.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent enter a final order finding Petitioner not guilty of the allegations against it and dismissing the citations. DONE AND ENTERED this 24th day of November, 1998, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 24th day of November, 1998. COPIES FURNISHED: Marya Reynolds Latson Marion County Health Department Post Office Box 2408 Ocala, Florida 34478-2408 Stephen D. Milbrath, Esquire Allen, Dyer, Doppelt, Milbrath and Gilchrist, P.A. Post Office Box 3791 Orlando, Florida 32802-3791 Dr. James Howell, Secretary Department of Health 1317 Winewood Boulevard Building 6, Room 306 Tallahassee, Florida 32399-0700 Pete Peterson Department of Health 2020 Capital Circle, Southeast Bin A 02 Tallahassee, Florida 32399-1703
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner violated Florida Administrative Code Rules 64E-6.022(1)(b)2, 64E-6.022(1)(d), and 64E-6.022(1)(p) by making repairs to an on-site sewage disposal system without a permit, and by missing required inspections of the system, as outlined in the citation issued by the Respondent Agency dated August 29, 2005.
Findings Of Fact The State of Florida, Department of Health and Duval County Health Department (Department) is an Agency of the State of Florida, charged with enforcing the statutory and regulatory provisions regarding septic tank and drain field installations and repairs, in Florida, in accordance with Section 381.0065, Florida Statutes, and Florida Administrative Code Rule Chapter 64E-6. The Petitioner is the qualifying registered septic tank contractor for All Florida Septic Tank Service, Inc. (All Florida). He holds registration number SR00011389. He has 15 years of experience in the field of septic tank system construction and repair. All repairs of on-site sewage treatment and disposal systems (septic systems), are required to be performed under the supervision and control of a registered septic tank contractor. Mr. David Adeeb is president of United Properties of North Florida, Inc. He owned property (a residence) at 375 North Cahoon Road, in Duval County Florida. He was informed by his tenants at that residence that the septic tank and drain field were malfunctioning and needed to be repaired or replaced, sometime in April 2004. He therefore contacted All Florida, asking them to inspect the septic system at that residence and advise what repairs might be needed. He was advised by some representative of All Florida that the drain field needed to be replaced and was quoted a price of $2,000.00. All Florida requested that payment be made before the work was performed. Since Mr. Adeeb was out-of-town at the time he asked his tenant to temporarily pay All Florida for the cost of the repairs and/or installation, which they agreed to do. All Florida then issued a contract/proposal to United Properties on April 12, 2004. It was signed by a representative of All Florida, Michael Carver. Mr. Carver was an employee of All Florida. The contract/proposal indicated that a 360 square foot drain field would be installed at 375 Cahoon Road, for a price of $2,000.00, to be paid in cash. The contract/proposal was on All Florida letterhead and included a warranty. Mr. Adeeb was told by his tenant that the Petitioner, who is personally known to that tenant, was on the property while the work was being performed. No one applied for a permit to make any repairs to the septic system and the work was completed without a permit being obtained. Some five months later the system began leaking sewage from the new drain field. It had malfunctioned. Mr. Adeeb therefore again called All Florida to demand that they repair any malfunctions pursuant to the warranty. All Florida informed Mr. Adeeb that a new drain field with a mounded system and pump was needed. When Mr. Adeeb told a representative of All Florida that they had just replaced the drain field in April of that year, he was told that another $2,000.00 would be required to correct the drain field problem. Mr. Adeeb had just recently entered into a contract to sell the property at 375 Cahoon Road so, time being of the essence in closing the sale of the property, he felt he had no choice but to ask All Florida to go ahead with the repair work on the system which All Florida had been asked by him to repair five months previously in April of 2004. After the new system was installed Mr. Adeeb found that a permit had never been obtained for the first drain field work which he had requested from All Florida and that All Florida had done the work incorrectly. Mr. Adeeb objected to paying another $2,000.00 for the second repair job, performed in approximately September of 2004 and after much discussion with All Florida's representatives agreed to pay $1,000.00 dollars for the second stint of repair work. He made the payment and he received a warranty from All Florida for one year, good through September 22, 2005. The warranty was signed by Mr. Wayne Joyner, operations manager for All Florida. Mr. Joyner is also the qualifying registered septic tank contractor for AA Septic Tank Service, Inc., apparently a second corporation domiciled at the same facility and address as All Florida Septic Service, Inc. In May of 2005 Mr. Adeeb was again contacted by the now former tenant who had purchased the property from Mr. Adeeb. He was thus informed that the system had failed again and sewage was leaking onto the surface of the property from the drain field. Mr. Adeeb again contacted All Florida on May 23, 2005. A representative of All Florida informed him that he should fax a copy of the paid receipt and the warranty to them and that they would take care of the problem. On June 20, 2005, the home owner again contacted Mr. Adeeb and told him that no one from All Florida had repaired the drain field as yet. A faxed copy of the paid receipt and warranty was requested once again by All Florida. After numerous phone calls with representatives of All Florida, Mr. Adeeb was told that the problem was not due to All Florida's repair work and that Mr. Adeeb would need to get someone else to repair the system. The Petitioner, James L. Smith, the registered qualifying septic tank contractor for All Florida, testified that Michael Carver had performed the initial repair job in April of 2004 for Mr. Adeeb without the knowledge of the Petitioner or All Florida. He claims that Michael Carver never worked for All Florida. He introduced into evidence a letter purported to be from Michael Carver which was dated September 30, 2005, but signed on October 5, 2005. That letter states that Mr. Carver performed the first drain field repair job without the knowledge of All Florida and that he had created the receipt form which was apparently given to either the tenants at the residence in question, or to Mr. Adeeb, on All Florida letterhead without the knowledge of any officer, employee, or representative of All Florida. That letter, however, was not authenticated because Mr. Carver was not present at the hearing and could not be examined concerning it, or the details of Mr. Carver's involvement with the initial repair project. Moreover, the Petitioner was unable to explain how Mr. Carver would have known about the job at all if he had never worked for All Florida. This is because Mr. Adeeb established that in obtaining all of the repair work during 2004-2005 he had only contacted representatives of All Florida. He had never had contact with Mr. Carver. The Petitioner denied ever telling counsel for the Department in a telephone conversation that Michael Carver had worked for him during the week (i.e. All Florida) but that he let Mr. Carver do "side jobs" on his own on weekends. He claimed that Mr. Carver did the job in question in April of 2004 because the tenants knew him personally and arranged for him to do the work. The testimony of Mr. Adeeb and the Department's evidence in the form of its composite exhibit, is accepted as more credible than the self-serving testimony of the Petitioner, and it is found that All Florida and the Petitioner were responsible for the repair jobs at issue in this case because Mr. Adeeb contracted with All Florida for the work in question. Even if the initial job was performed by Mr. Carver, it is determined that he did so as employee or agent of All Florida and the Petitioner. Under the authority cited herein the Petitioner was responsible, as the qualifying, registered septic system contractor for All Florida, with performance and supervision of the work in question.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Respondent Department finding that the violations charged have been established and that a fine of $2,500.00 dollars be imposed for the violations. DONE AND ENTERED this 30th day of March, 2006, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with Clerk of the Division of Administrative Hearings this 30th day of March, 2006. COPIES FURNISHED: James L. Smith 8300 West Beaver Street Jacksonville, Florida 32220 Catherine R. Berry, Esquire Department of Health 515 West Sixth Street Jacksonville, Florida 32206-4311 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Timothy M. Cerio, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
