The Issue The legal issue in this case is whether Respondent, as prime engineer of record for the owner, was negligent in the practice of engineering because he drafted performance specifications for a specialty contractor to hire an experienced wet sprinkler fire system engineer, who would, as the delegated engineer to the prime engineer, design, sign and seal a wet sprinkler fire system to be submitted to the prime engineer for his final approval.
Findings Of Fact Based upon observation of the witnesses and their demeanor while testifying, the documentary evidence received in evidence, the parties' stipulations of facts, and the entire record complied herein, the following relevant and material facts are found: Petitioner is charged with regulating the practice of engineering. See Chapters 455 and 471, Florida Statutes. Petitioner, in this case, is also charged with providing administrative, investigative, and prosecutorial services to the Board. See Section 471.038(3), Florida Statutes. Respondent is and has been at all times material hereto a licensed professional engineer in the State of Florida. He was first licensed in Florida in 1984, and his license number is 35071. His areas of engineering discipline include mechanical, electrical, and chemical engineering. Based upon his qualification and knowledge in the discipline of chemical engineering, Mr. Newton routinely designed dry fire systems which are traditionally used in construction of school projects. Mr. Newton is also licensed in Georgia, South Carolina, Texas, and Louisiana. In the 18 years Mr. Newton has been licensed as a professional engineer, this proceeding is the only disciplinary action taken against his license. Mr. Newton's professional affiliations include American Arbitration Association, where he acts as an arbitrator involving construction disputes. Mr. Newton provides engineering and related services as principal engineer and president through Engineering Matrix, a St. Petersburg-based engineering company he formed in 1985. Engineering Matrix regularly employs approximately 30 persons, consisting of engineers and technical support staff. The number of employees may increase up to 35 or more persons when business demands additional services. Approximately 40 percent of Engineering Matrix's past and present work is education-related and/or school projects from elementary and middle schools up to and including the university level. At the time of this proceeding, Engineering Matrix had at least 10 to 15 school projects on their boards, about half of which are new schools, all located within the area of Sarasota, Manatee, and Pinellas Counties. The Manatee County School Board (Owner) let for bid two elementary school construction projects. The Owner selected a Design Team consisting of architects, Allen Architects, Inc. (Allen Architects); a prime engineer, Engineering Matrix, Inc. (Engineering Matrix); and two construction managers, Creative Contractors for Ballard Elementary School and Willis A. Smith Construction, Inc., for Samoset Elementary School. Engineering Matrix, as the project's prime professional engineer, was responsible for all matters relating to electrical, mechanical, and fire protection engineering issues. At some undetermined point in time during finalization of the design phase of the projects, the Owner changed from the original proposed dry fire system to a wet sprinkler fire system. The Owner's design change resulted in Respondent's proposal that Engineering Matrix, his company, could accommodate the change for additional compensation over and above the contract price. The Owner rejected Respondent's proposal. As the prime engineer for the projects, Mr. Newton prepared performance specifications for a non-engineering specialty contractor to hire an experienced wet sprinkler fire system engineer. At the time Mr. Newton prepared the performance specifications, the identification of the wet sprinkler fire system engineer was not known. The performance specifications directed the wet sprinkler fire system engineer to design the wet sprinkler fire system documents. He would sign and seal the design documents and submit them to Mr. Newton for review and ultimate approval. Two fire protection specialty contractors were hired. James Curtis, P.E., was hired and designed the system for the Ballard Elementary School project. Frank B. Williams, P.E., was hired and designed the system for the Samoset Elementary School project. Each engineer signed, sealed, and submitted his respective designs to Mr. Newton for his review and approval. Both approved wet sprinkler fire systems were permitted by Manatee County's building department, approved by the county's fire marshal's office, installed and thereafter passed inspection. There is no evidence of record that a complaint was made regarding the wet sprinkler fire systems installed on these two projects. During or near the completion of the school wet sprinkler fire system construction, a disappointed bidder filed a complaint with the Board. As a result of the complaint, the Board mailed to Mr. Newton a letter of inquiry to which Mr. Newton made a written reply. Mr. Newton and Mr. Allen have worked together professionally on construction projects for over 15 years beginning in 1985. As a consequence, they have developed a comfortable and confident professional working relationship. Based upon their long relationship and their past successes, they will often seek the other's availability when projects are posted for bidding. Allen Architects, by and through Mr. Allen, was in direct contract privy with the Owner, so also were the construction managers, Creative Contractors of Clearwater, Florida, for Ballard Elementary School and Willis A. Smith Construction, Inc., for Samoset Elementary School. The Owner determined that a wet sprinkler fire system would be more economical than a dry fire system and directed Allen Architects to incorporate a design change. The original design plans included a dry fire system which Mr. Newton expected he would design as he had on other school projects.2 At this point in the design process, as the prime engineer and engineer of record for mechanical and electrical matters, Mr. Newton prepared performance specifications requirements for approval of a wet sprinkler fire system engineer. This 12-page document included requirements that the system conform to Sections 13 and 14 of the National Fire Protection Association (NFPA) standards.3 Mr. Newton's testimony reflects his sincere and professional efforts to comply with the design change and with his understanding, past experience, and interpretation of the spirit of his professional obligations as prime engineer for the project. Mr. Newton's performance specifications required that the specialty contractor provide a complete, approved wet sprinkler fire system, designed by a contractor who currently possessed five years of continuous experience, and that shop drawings, hydraulic calculations, etc., be signed and sealed by a Florida registered engineer and submitted to Mr. Newton for his final approval before construction. In Section B of his performance specifications document, Mr. Newton included the following: "Pursuant to FS 471.033(2) and Rules 61G15-30 and 32, the Fire Protection Contractor shall be required to provide detailed fire protection construct drawings to be signed and sealed by a Florida Registered Fire Protection System Design Engineer acting as the delegated Engineer to the Prime Engineer as part of this scope." This section of the performance specifications is the subject of the Board's Administrative Complaint. In accordance with Mr. Newton's performance specifications, signed and sealed wet sprinkler fire system designs were prepared. One system was prepared by Creative Construction and one system was prepared by Willis A. Smith Construction, Inc. Both systems were submitted to Engineering Matrix, approved, and installed in Ballard and Samoset Elementary Schools. Mr. Curtis and Mr. Williams, experienced professional engineers in wet sprinkler fire systems, testified without contradiction, that the language employed by Mr. Newton in Section B herein above regarding the wet sprinkler fire system specifications is common in the industry regarding construction and engineering practices in the local Manatee-Sarasota areas. Neither Mr. Curtis nor Mr. Williams experienced difficulty or confusion in understanding his engineering tasks. The Board's expert, Mr. Galvez, found no deficiency in the wet sprinkler fire system engineering for either the Ballard Elementary School project or the Samoset Elementary School project. This fact confirms the reasonable assumption that two experienced engineers understood the written communication from Mr. Newton without the benefit of face-to-face communication with him prior to their designing the wet sprinkler fire system for these two projects. All witnesses agreed that there are three traditional and accepted industry methods engineers have used on projects: the design approach in which the engineer of record prepares the plans and specifications, provides those documents to a contractor who prepares shop drawings that are then sent back to the engineer of record for compliance specification review and approval, and if approved, documents are provided to the construction engineer for installation; (2) the performance approach in which the engineer of record prepares a set of complete, clear and sufficient criteria and provides those criteria to a contractor who prepares shop drawings that are returned to the engineer of record for compliance specifications review and approval, and if approved, then returned for construction installation; and (3) the design-build approach in which a company, possessing a certification of authorization to provide engineering services via a contracted professional engineer, its employees/consultants, provides both design and installation of engineering projects for the company. The witnesses further agree that none of the three approaches, however, are mandated by Florida Statutes or by administrative rule. Significant is the fact that the parties agree there are no reported cases that have held that an engineer of record cannot delegate fire protection engineering design entirely to a fire protection engineer or fire protection engineering company. Equally as significant is the fact that the parties agree that no reported case has held that an engineer of record cannot delegate any entire subset of a project to another engineer licensed in the delegated subset area of engineering. The effect of this significance is that it compels the Board to establish an accepted, recognized, and enforceable industry standard and prove that Mr. Newton's conduct violated that standard. Mr. Newton chose not to use the traditional design approach, the performance approach, or the design-build approach. He required the specialty contractor to seek and hire only a registered engineer, with specific experience in the engineering discipline of wet sprinkler fire systems. The selected engineer was required to design a wet sprinkler fire system. Mr. Newton's method of delegating the engineering responsibility to design a wet sprinkler fire system for his approval as the prime engineer resulted in a wet sprinkler fire system that was completed, installed, inspected, and found without fault at both the Ballard and the Samoset Elementary School projects. From design to completion, Mr. Newton was the prime engineer for the projects. In that capacity, Mr. Newton had responsible charge for the wet sprinkler fire system from its design to its installation. First, the design was required to be drafted only by an experienced wet sprinkler fire system engineer who would sign and seal his professional work product. Mr. Newton retained sole authority to review, suggest change, and, finally, approve the work product of the engineer of record prior to construction. The evidence of record reflects that at no time during the design to approval and construction process of these two projects was Mr. Newton not in responsible charge for the wet sprinkler fire system by maintaining final engineering authority. Petitioner's expert, Mr. Galvez, a licensed engineer since 1983, has extensive experience in fire protection as an employee of a professional engineering company, Schirmer Engineering, in Miami, Florida, and his professional industry experience has been restricted to the South Florida area. He is a member of the National Fire Protection Association; the American Society of Heating, Refrigeration, and Air Conditioning; Society of Fire Protection Engineers; and the American Society of Mechanical Engineers. Mr. Galvez, however, is not certified by examination in the sub-discipline of fire protection engineering. He has never delegated a wet sprinkler fire system to another engineer, but has had the discipline continuously delegated to him by his employer. In Mr. Galvez's opinion, Mr. Newton's written performance criteria to the specialty contractor to hire an experienced wet sprinkler fire system engineer to design, sign and seal plans did not provide enough direction in the field of delegated engineering because it was an improper delegation of engineering obligation and responsibility. Mr. Galvez opined that Mr. Newton improperly delegated the design responsibility to a non-engineering contractor. Second, in writing the performance specifications, Mr. Newton made himself the "single point of contact," a standard established by the National Society of Professional Engineers. According to Mr. Galvez, following Mr. Newton's "single point of contact" position as a result of writing the performance specifications, the moment Mr. Newton inserted the non-engineering specialty contractor between himself and the design engineer in the performance specifications, he violated the National Society of Professional Engineers' "single point of contact" standard. Mr. Galvez's opinion, however, is nullified by his acknowledgment and admission that the "single point of contact" standard enacted by the National Society of Professional Engineers does not govern Mr. Newton's professional engineering conduct in Florida. Mr. Galvez's second opinion of a "delusional standard"4 violated by Mr. Newton suffers a similar fate as his first "single point of contact" opinion standard. Mr. Galvez further opined that the method employed by Mr. Newton, delegation from himself to (1) a contractor, (2) who would hire an engineer to design, sign and seal, and (3) return to the contractor to (4) return to Newton for his review and approval, was a "delusional" delegation of the "single point of contact" engineering responsibility of the prime engineer of record for these projects. Again, Mr. Galvez's standard of "delusional" delegation is not found in the Florida Statutes nor in the Florida Administrative Code nor has it been accepted, adopted, and reported as an engineering standard by a Florida court. The record contains no evidence of any recognized professional engineering organization in Florida that recognized a standard of "delusional" delegation by a professional engineer. There was no evidence presented at the hearing which would suggest Mr. Newton acted on a false belief, in spite of invalidating evidence to the contrary in drafting the performance specifications. Viewed most favorably, the Board, by the presentation of the opinion testimony of Mr. Galvez regarding "standards" for the delegation of engineering design responsibilities from one engineer to another engineer, has failed to establish by clear and convincing evidence that Mr. Newton was guilty of negligence as alleged by the Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that the Board of Professional Engineers enter a final order finding Respondent, Stanley P. Newton, P.E., not guilty of negligence in the practice of engineering as alleged in the Administrative Complaint filed in this cause. DONE AND ENTERED this 20th day of December, 2002, in Tallahassee, Leon County, Florida. FRED L. BUCKINE 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 20th day of December, 2002.
The Issue The issues are whether the violations cited by the Division of Hotels and Restaurants during its inspection and re- inspection of Respondent's hotel existed, and, if so, what penalty should be imposed.
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following facts were established by clear and convincing evidence: Parties Petitioner is the state agency responsible for regulating hotels pursuant to Part I of Chapter 509, Florida Statutes (the Act). Respondent operates the Traveler's Inn hotel on West Irlo Bronson Highway (U.S. Route 192) in Kissimmee, Florida. The Hotel The hotel is near the intersection of U.S. Route 192 and State Road 535. The hotel has approximately 125 guest rooms and is three stories in height. The record does not reflect the year that the hotel was constructed. Only the first floor and half of the second floor of the hotel are currently in use. Respondent "closed" the third floor of the hotel as a result of the hotel's low occupancy rate (less than 30 percent), which is due in large part to the post-September 11 decline in the tourism industry. The record does not reflect whether the third floor rooms are in condition to be used if there was additional demand for rooms at the hotel, nor does it reflect whether those rooms were "closed" at the time of the Division's initial inspection in August 2001, or the re-inspection in October 2001. Hotel Inspection Process Followed by the Division The Division is required to routinely inspect hotels that are subject to the Act. If violations are identified, the hotel operator is given a period of time within which to correct the violation. The correction period varies based upon the severity of the violation. The period is typically shorter for "critical" violations (those which are life-threatening or present a safety hazard) than it is for "non-critical" violations (those which do not immediately affect life safety issues and which can be fixed or corrected on a routine basis). The Division's inspectors have the authority to extend the correction period as circumstances warrant. After the expiration of the correction period, the Division re-inspects the facility to determine whether the violation has been corrected. If the violation has not been corrected and the time for doing so is not extended by the inspector, the Division initiates the administrative process to impose sanctions on the hotel's license. Violations Documented at Respondent's Hotel Based Upon the Division's Inspection and Re-inspection The Division conducted a routine investigation of Respondent's hotel on August 31, 2001. The inspection was conducted by Michael Campbell. Mr. Campbell's inspection report documented a number of violations at Respondent's hotel, including (1) the certification for the hotel's boiler had expired; (2) the hotel's fire sprinkler system had not been inspected within the prior 12 months; (3) an advertising brochure contained a false statement regarding the travel time from the hotel to Walt Disney World and Sea World; and (4) the hotel's dock and approach walkway were not safe. Based upon his report, Mr. Campbell issued a written warning to Respondent. The warning gave Respondent until October 1, 2001, to correct the cited violations. Mr. Campbell performed a re-inspection of Respondent's hotel on October 3, 2001. Based upon that re-inspection, Mr. Campbell issued another report which documented that the four violations listed above had not been corrected. The other violations cited by Mr. Campbell in his initial inspection report had been corrected prior to the re-inspection. The inspection report forms designate the sprinkler system violation and the advertising brochure violation to be "critical violations" and "of critical concern." The boiler violation is designated as a "non-critical violation." Despite the forms' characterizations of the sprinkler system and advertising brochure violations as requiring immediate correction, Mr. Campbell gave Respondent a full month to correct the violations. This suggests that Mr. Campbell did not consider the violations to pose a threat to public health, safety, or welfare, and the evidence fails to establish that any of the violations posed such a threat (although, as discussed below, the evidence does clearly and conclusively establish the violations). Mr. Campbell's October 2001 report informed Respondent that the Division would be initiating the administrative process in order to assess sanctions against Respondent's license. The Division's Administrative Complaint and this proceeding followed. Only the first three violations remain at issue; the violation based upon the dock and approach walkway is no longer at issue. The circumstances related to each of the violations still at issue are described below. Boiler Respondent has a Lochinvar boiler which supplies hot water to the hotel. The boiler is rated at 570,000 BTU per hour (BTU/hr), which represents the maximum heat input. The boiler only operates at the maximum level. Thus, whether or not the boiler is heating water to serve all 125 guest rooms or only a portion of those rooms, it is operating at 570,000 BTU/hr. The boiler was first inspected by the State Fire Marshall in May 1999. The inspection was performed by John Norman. Mr. Norman placed an identification tag on the boiler with a May 1999 date. However, he did not recommend that a certificate be issued for the boiler at that time because of an insufficient safety valve on the boiler. Respondent fixed the safety valve and Mr. Norman re- inspected the boiler in September 1999. Based upon that re- inspection, Mr. Norman recommended that a certificate be issued. The 1999 certificate was not introduced at the hearing. However, Mr. Norman testified that upon issuance, the certificate would have been valid for two years from the date that the certificate was issued, or until September 2001. Neither the certificate, nor any of Mr. Norman's inspection reports were posted in the room where the boiler was located at the time of Mr. Campbell's inspections in August 2001 and October 2001. Mr. Norman inspected the boiler again in May 2002 and a boiler certificate was issued by the State Fire Marshall on June 11, 2002. The certificate is valid until May 9, 2004. Mr. Norman characterized the boiler as being in good condition, both in September 1999, and presently. He further testified that the state of the boiler at those times indicate that it would have been in good condition during the intervening period as well, which would include the times of Mr. Campbell's inspection and re-inspection. 2. Sprinkler System The fire sprinkler system in Respondent's hotel only covers the laundry room, the maintenance room, and the boiler room. The guest rooms are not covered by the sprinkler system. The tag on the sprinkler system indicated that it was last inspected on August 3, 2000. Because the system is required to be inspected annually, the inspection expired on August 3, 2001. Accordingly, at the time Mr. Campbell conducted his initial inspection, the fire sprinkler system's inspection had expired. The system was not inspected prior to Mr. Campbell's re-inspection, and, as of the date of the hearing, it still has not been inspected. The cost to inspect the sprinkler system is between $800.00 and $1,000.00. Respondent's owner failed to have the sprinkler system inspected because he could not afford the cost of the inspection as a result of the reduction in business at the hotel post- September 11, and because of his independent interpretation of Section 509.215, Florida Statutes, which prescribes fire safety requirements for hotels. Respondent's owner relied upon the 1993 version of Section 509.215, Florida Statutes, because that was the most current version of the statute in the hotel's "library." The current version of the statute is materially the same as the 1993 version. 3. Advertising Brochure At the time of Mr. Campbell's initial inspection, Respondent had a brochure advertising its hotel which included the following statement on the front cover: "Five minutes from Walt Disney World Resort and Sea World." The brochures were available at or near the hotel's front desk. The record does not reflect whether the brochures were distributed by Respondent in any other manner, e.g., mailing to prospective guests, placed in kiosks or advertising racks around the area. Mr. Campbell obtained a brochure from the hotel's front desk during his August 2001 inspection. That brochure was not introduced at the hearing. The brochures were printed in 1996 and, at that time, the statement on the brochure may have been accurate.1 However, as a result of the growth and additional traffic congestion in the area, Respondent's hotel is no longer five minutes from Disney or Sea World. It is now approximately 18 minutes from Sea World and a similar distance time-wise from Disney. In an effort to correct the brochure in response to the August 2001 inspection report, Respondent's owner directed his staff to strike through the words "Five minutes from" on each of the brochures with a black marker. The brochure introduced by Respondent at the hearing was marked-out in that manner. Division supervisor Jo Beekman confirmed at the hearing that marking-out those words on the brochure would be sufficient to address the cited violation. Apparently, however, all of the brochures were not marked-out because Mr. Campbell obtained an unmodified brochure during his October 2001 re-inspection. That brochure was not introduced at the hearing, but Respondent's owner acknowledged that his staff may have "missed a few" brochures when they marked through the others.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division of Hotels and Restaurants issue a Final Order which: finds that Respondent violated: Rule 61C-1.004(12), Florida Administrative Code, because it failed to have the boiler certificate posted in the boiler room; and Section 509.215(5), Florida Statutes, and the applicable NFPA standards incorporated into the State Fire Marshall's rules because Respondent failed to have the fire sprinkler system at its hotel inspected annually; and Rule 61C-3.002(3)(a), Florida Administrative Code, because its advertising brochure contained a false statement; and imposes an administrative fine in the total amount of $750.00, as calculated above; requires Respondent to have the fire sprinkler system inspected within 15 days of the date of the Final Order, and to provide proof thereof to the Division of Hotels and Restaurants; and requires Respondent's owner and/or general manager to attend an educational program sponsored by the Hospitality Education Program within 60 days of the date of the Final Order, and to provide proof thereof to the Division of Hotels and Restaurants. DONE AND ENTERED this 22nd day of January, 2003, in Tallahassee, Leon County, Florida. T. KENT WETHERELL, II 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 22nd day of January, 2003.
The Issue At issue in DOAH Case No. 04-4333 is whether Respondent committed the two violations of Florida Administrative Code Rule 64E-6.022 alleged in the citation issued on September 29, 2004, and, if so, whether the imposition of a $1,000.00 fine was properly imposed. At issue in DOAH Case No. 05-0695 is whether Respondent committed the three violations alleged in the Amended Administrative Complaint issued on February 21, 2005, and, if so, whether his septic tank contractor registration should be revoked or some lesser penalty imposed.
Findings Of Fact The Department is the state agency charged with enforcing the statutory provisions pertaining to the practice of septic tank contracting in Florida pursuant to Chapter 489, Part III, and Section 381.0065, Florida Statutes (2004). At all times relevant to this proceeding, Respondent Matt Beebe, was a registered septic tank contractor, having been issued registration number SR0971283, and was the qualifying contractor for his business, Southern Sanitation, Inc. ("Southern Sanitation"), having been issued registration number SA0970864. On June 7, 2001, Mr. Beebe was cited for installing a septic system without a permit, in violation of Florida Administrative Code Rule 64E-6.022, and paid a fine of $500.00 without contest. At all times relevant to this proceeding, Mr. Beebe also operated a septage disposal service business under the Southern Sanitation name, having been issued operating permit number 11-QN-0054. Improper Septage Disposal and Sanitary Nuisance On September 29, 2004, Kenneth Rech, the Department's environmental health and engineering director for Collier County, received a telephone complaint that a Southern Sanitation septage hauling truck had been seen emptying its contents onto a vacant lot at 295 Brandy Lane in Naples. Mr. Rech and his assistant, James Miller, drove out to the location to investigate the complaint. When he arrived at the location, Mr. Rech first spoke to the complainant, who lived across the street from the vacant lot. The complainant estimated that the Southern Sanitation truck left the lot about 20 minutes before Mr. Rech arrived. Mr. Rech and Mr. Miller investigated the site. Mr. Rech described the area containing the dumped contents of the truck as a low-lying wetland. The property was about ten acres in size. The owner kept horses on the lot. Mr. Rech testified that there was a strong smell of septage, though the dumped contents were light gray in color. Raw septage is generally black. Based on the smell, Mr. Rech concluded that the dumped contents included septage mixed with some other material. Mr. Rech telephoned Erin Kurbec to meet him at the dump site. Ms. Kurbec is a Department employee responsible for oversight of septage hauling and disposal businesses. Ms. Kurbec in turn phoned Mr. Beebe and asked him to come to the site. Mr. Rech testified that Mr. Beebe was "very agitated" when he arrived at the dump site, calling Ms. Kurbec a "liar," and protesting that the Department did not have the right to ask for his company's hauling logs. Because of Mr. Beebe's aggressive behavior, Mr. Rech phoned to request a Sheriff's deputy to come to the site. Mr. Beebe conceded that he was somewhat agitated because Ms. Kubec asked him to come to the site, but would not tell him why she wanted to see his truck. She would only say that it was a "spot check," which Mr. Beebe did not believe. By the time the Sheriff's deputy arrived, the situation had calmed down. Mr. Beebe told Mr. Rech that he had dumped approximately 3,000 gallons of "drillers' mud" on the site. Drillers' mud, or bentonite clay, is a colloidal clay sold under various trade names that forms a slick slurry, or gel, when water is added. The appearance of the material dumped at the site was consistent with that of drillers' mud. Mr. Beebe testified that the owner of the vacant lot asked him to dump the drillers' mud to fill in a low-lying, hard to reach area of the property. The liquid-like consistency of the drillers' mud made it ideal for filling this difficult portion of the property. Mr. Beebe's testimony as to having permission to dump materials on the property is credited. Mr. Rech took two samples of the dumped material from a pooled area about six inches deep. He used sterile sample equipment and containers. Because Mr. Beebe had alerted him to the possibility that there could be horse manure under the dumped material, Mr. Rech was careful to scoop the contents from the top of the dumped material. Mr. Rech provided one of the samples to Mr. Beebe to allow Mr. Beebe to have a laboratory of his choice analyze the material. Mr. Rech sent the other sample to the Department's Tampa laboratory, which found the sample to contain a fecal coliform count of 4,800 colonies per gram. The laboratory's report was stamped with the disclosure stating, "Sample does not meet the following NELAC requirements: 1) exceeds 6 hr. hold time; 2) this matrix is not certified under NELAC." NELAC is the National Environmental Laboratory Accreditation Conference, a voluntary association of state and federal agencies, the purpose of which is to establish and promote mutually acceptable performance standards for the operation of environmental laboratories. NELAC certifies environmental laboratories such as the Department's Tampa facility, which was not certified for solid matrices such as the sample provided by Mr. Rech. Dr. Philip Amuso is the director of the Department's Tampa laboratory. Dr. Amuso testified as to the testing procedures and the disclosure statement included on the laboratory report. He concluded that neither of the disclosures affected the validity of the fecal coliform count found in the sample. Dr. Amuso testified that the applicable testing standard calls for a sample to be analyzed for fecal coliform within six hours of the sample collection time. The sample in question was not tested within six hours. However, Dr. Amuso testified that the longer a sample is held, the lower the fecal coliform count will be, because the fecal coliform colonies tend to die off over time. Thus, Dr. Amuso testified that the fecal coliform count in the sample was likely understated, due to the failure to analyze the sample within six hours. Dr. Amuso testified that his laboratory chose to classify the sample as solid. The Tampa laboratory was required to note on its report that it is not NELAC-certified for solid matrices. However, Dr. Amuso testified that the classification of the sample had no impact on the analysis performed or the validity of the result. He explained that the laboratory could have classified the sample as a non-potable liquid, a matrix for which the Tampa laboratory is NELAC-certified, and the same analysis would have been performed and would have yielded the same result. Mr. Beebe forwarded his sample of the dumped material to Sanders Laboratories, Inc. ("Sanders"), a private environmental testing service. The Sanders laboratory classified the sample as a non-potable liquid and performed its analysis within six hours of the sample's collection. The Sanders laboratory report dated September 30, 2004, found the fecal coliform count to be 1,600,000 colonies per 100 milliliters. Placed in comparable terms to the Tampa laboratory's report, this sample showed a fecal coliform count of 16,000 colonies per gram, or about three times higher than the Tampa laboratory's sample. Dr. Amuso attributed this higher reading to the fact that Sanders ran its test within six hours of collection. Dr. Amuso testified that the fecal coliform count of 4,800 colonies per gram found in the Tampa laboratory's sample constituted "pretty significant" contamination. Mr. Rech testified that a count of 4,800 colonies per gram is about one-half of the count found in raw, untreated septage from a septic tank, and that such a count is "bad" in terms of public health significance. Mr. Rech testified that the fecal coliform count in the Sanders sample was "in the range" for raw untreated septage. Mr. Rech stated that the laboratory analyses led to the conclusion that there was a substantial amount of untreated septage mixed with the drillers' mud in the dumped materials. He concluded there was more septage than could reasonably be attributed to residue from a previous dump of septage in Mr. Beebe's truck. He added that it would be impossible to clean the tank of a septage disposal truck sufficiently to prevent fecal contamination of a subsequent non-septage load. Mr. Beebe conceded that Mr. Rech told him that he should not use a septage hauling truck for any other kind of load, especially where that load would be dumped on the ground. Before leaving the dump site on September 29, 2004, Mr. Rech and Ms. Kurbec handed Mr. Beebe the citation for failure to properly treat or dispose of septage and the creation or maintenance of a sanitary nuisance. The citation directed Mr. Beebe to pay a fine of $500.00 for each of the two violations. Mr. Rech testified that he and Ms. Kurbec were able to conclude from their on-site observations that Mr. Beebe had improperly disposed of septage and had created a sanitary nuisance. Mr. Rech stated that the subsequent laboratory analysis served to confirm those conclusions. Mr. Rech testified that untreated septage consists of human waste containing high levels of fecal coliform and viruses, bacteria, and parasites that cause a wide range of gastrointestinal and neurological conditions in humans. Mr. Rech stated that untreated septage dumped anywhere other than at a properly regulated disposal site constitutes a public health nuisance. He noted that the materials were dumped by Mr. Beebe within roughly 100 feet of residential drinking water wells. Mr. Beebe admitted that he dumped the contents of his disposal truck on the vacant lot, though he denied that it contained septage. He theorized that the high fecal coliform counts in the laboratory analyses were caused by animal manure beneath the drillers' mud that he dumped on the property. Dr. Amuso conceded that no testing had been performed to establish the ambient level of coliform on the property, and further conceded that the laboratory tests do not distinguish human from animal feces in measuring the coliform count. However, as noted above, Mr. Rech knew that there were animals on the property and carefully took his sample from the top of the dumped material. Mr. Rech testified that the strong smell of septage, and the high coliform count found by the subsequent laboratory analyses left no doubt that untreated human waste had been dumped on the property by Mr. Beebe. The Department established, by clear and convincing evidence, that Mr. Beebe dumped a mixture of drillers' mud and untreated septage on the lot at 295 Brandy Lane in Naples. Holding Tank On or before January 6, 2005, Mr. Beebe placed a 900-gallon domestic wastewater holding tank into a pre-dug hole at the newly built residence of Edward Ehlen at 616 Crescent Street on Marco Island. Mr. Beebe did not dig the hole, nor did he connect the holding tank to Mr. Ehlen's house. Mr. Ehlen testified that he contracted with the City of Marco Island in July 2004 to connect his new residence, an $800,000 house, to the city sewer system. The connection was to be completed no later than November 2004, when Mr. Ehlen and his family expected to take occupancy of the house. The city did not complete the connection and, therefore, allowed Mr. Ehlen to install a holding tank to be used until the sewer connection was completed. After the holding tank was installed, the city inspected the tank and gave Mr. Ehlen a temporary certificate of occupancy. On January 6, 2005, after Mr. Ehlen and his family had moved into their house, the Department discovered that the Ehlen home was using a holding tank to collect its wastewater. On January 7, 2005, the Department issued to Mr. Ehlen an "Official Notice to Correct and Abate a Sanitary Nuisance," finding that Mr. Ehlen was in violation of "Florida Statutes Chapters 381 and 386" because "plumbing discharge from your home is connected to a sewage holding tank which has not been permitted or inspected by this department." The Notice also provided, in relevant part: You are hereby directed to correct this condition by complying with all the conditions listed below. Apply for a "temporary" Holding Tank permit by close of business on Monday, January 10, 2005. [This permit will be valid for a maximum of 120 days, Permit fee is $185.00] Apply for an abandonment permit for the temporary holding tank by close of business Monday, January 10, 2005. [This permit will be valid for a maximum of 120 days. Complete tank removal will be required within 10 days of hook up to public sewer. Permit fee is $40.00] Have a licensed septic contractor excavate the holding tank for inspection of all connections and seals by this department by Wednesday, January 12, 2005. Sign and maintain a pump-out agreement with a licensed septage hauler until the temporary holding tank is properly abandoned and inspected by this department. Provide a copy of this agreement to the department by Wednesday, January 12, 2005. [Minimum required pump-out frequency to be every other day]. Complete hookup to Marco Island Utilities sewer system within 120 days of receipt of this notice. Failure to comply may result in administrative and/or civil enforcement action, including administrative fines of up to $500 per day per violation of law. On January 12, 2005, the Department issued a 120-day temporary permit to Mr. Ehlen for his holding tank. Also on January 12, 2005, Mr. Ehlen signed a contract with Southern Sanitation pursuant to which Mr. Beebe's company agreed to pump out the holding tank three times per week. Mr. Beebe conceded that he did not obtain a permit from the Health Department before he placed the holding tank in the hole on Mr. Ehlen's property. Mr. Beebe relied on Mr. Ehlen's statement that the City of Marco Island had approved the installation of the holding tank. Florida Administrative Code Rule 64E-6.0101(7) provides that a construction permit must be obtained before the placement or installation of any holding tank. The Department established, by clear and convincing evidence, that Mr. Beebe placed a 900-gallon domestic wastewater holding tank into a pre-dug hole at the Ehlen's residence without obtaining a Department permit. Mr. Beebe's good faith belief that Mr. Ehlen had obtained approval for the placement of the tank is noted as a mitigating factor, but cannot operate as a defense for a registered septic tank contractor's admitted failure to confirm the status of any permit with the Department prior to commencing work on the project. Collection and Hauling Log Mr. Beebe's annual operating permit from the Department authorizes him to pump septage from septic tanks and holding tanks and haul it to an approved treatment site for disposal and treatment. Florida Administrative Code Rule 64E-6.010(7)(e) requires a septage hauler to maintain a collection and hauling log "at the treatment site or at the main business location" and to retain that log for a period of five years. The rule lists the following items for inclusion in the log: Date of septage or water collection; Address of collection; Indicate whether the point of collection is a residence or business and if a business, the type of business; Estimated volume, in gallons, of septage or water transported; Receipts for lime or other materials used for treatment; Location of the approved treatment facility; Date and time of discharge to the treatment facility; and Acknowledgement from treatment facility of receipt of septage or waste. On September 29, 2004, the date on which the Department investigated Mr. Beebe's dumping of drillers' mud and sewage on the lot at 295 Brandy Lane in Naples, the Department requested that Mr. Beebe provide his septage collection and hauling log. On September 30, 2004, Mr. Beebe faxed to the Department a single-page, typed document titled, "RE: Southern Sanitation, Inc. Truck Log for Trucks 1 and 2." The document stated that on September 29, 2004, "Truck #1" transported 3,000 gallons of "Well Drillers Mud" from Southern Well Drillers Services drilling site and disposed of it at 295 Brandy Lane. The document stated that "Truck #2" did not haul materials on September 29, 2004. Mr. Rech testified that this document did not satisfy the rule criteria for collection and hauling logs. He noted that this was not a log kept by the drivers of the trucks, but merely a statement from Mr. Beebe attesting to what the trucks had hauled on a single day. Mr. Rech also pointed out that the Department had inspected and authorized Mr. Beebe to haul septage in two trucks identified by their vehicle identification numbers, but that Mr. Beebe's single-page "log" provided no information specifically identifying the trucks in question. On February 3, 2005, the Department sent a letter to Mr. Beebe requesting that he produce, among other documentation, "your original collection and hauling logs for all domestic sewage and food establishment sludge and/or septage you collected and disposed of from January 1, 2004 through February 2, 2005." On February 11, 2005, Mr. Beebe responded to the Department's request, providing copies of "Septic Receiving Logs" maintained by the North County Water Reclamation Facility ("NCWRF"), the Collier County wastewater facility at which Mr. Beebe disposed of his loads. There were log pages for January through June 2004, and October through December 2004. The logs included the dates of disposal, the number of gallons and type of waste in the load (septic or grease), and the signature of the Southern Sanitation driver who dropped off the load. On March 8, 2005, Mr. Beebe submitted to the Department supplemental information covering January 2005. It includes a typed "Pump Job List" for January 2005, prepared on March 3, 2005. The list contains dates, addresses, and approximate gallons collected, including eight entries for pumping out Mr. Ehlen's holding tank. Individual trucks were not identified on this list. The supplemental information also included an NCWRF Septic Receiving Log for January 2005. Mr. Beebe testified that the Department had never asked him for an accounting during the eight years he has operated his business and that the Department did so in this case only after he contested the allegations in the Brandy Lane dumping case. Mr. Beebe appeared to believe that the Department was acting punitively in requesting documents that Mr. Beebe, as the owner of a permitted septage disposal business, was required to keep. Mr. Beebe did not contest the apparent fact that he did not keep collection and hauling logs for his trucks in the normal course of business. Such documentation as he provided was insufficiently detailed to meet the requirements of Florida Administrative Code Rule 64E-6.010(7)(e), and in some instances was cobbled together well after the fact in order to provide the Department with some documentation of Southern Sanitation's activities. Mr. Rech testified that the Department requires accurate logs of collections and disposals to allow it to monitor compliance and investigate complaints. An accurate, detailed, and contemporaneously-created log would have allowed the Department to discover what Mr. Beebe's truck had collected and dumped prior to the Brandy Lane dumping incident and would have allowed the Department to reconcile the amounts of septage collected by Mr. Beebe from January 2004 through February 2005, with the amounts of septage Mr. Beebe properly disposed of during the same period. The Department established, by clear and convincing evidence, that Mr. Beebe did not maintain a septage collection and hauling log as required by Florida Administrative Code Rule 64E-6.010(7)(e). Improper disposal of septage The terms of Mr. Beebe's septage disposal service permit required him to dispose of his collected septage at the NCWRF. Dale Waller, the plant manager of the NCWRF, testified as to the procedures followed by sewage haulers at the facility. Mr. Waller testified that the facility has a computer capable of generating reports as to the quantity of disposals made by haulers, but that the computer system often does not operate correctly. Therefore, the facility's chief means of monitoring disposals is the "Septic Receiving Logs" discussed above. The Septic Receiving Log requires the hauler to record the date of disposal, whether the disposal consisted of septage or grease, the amount of disposed material in gallons, and the driver's signature and printed name. The number of gallons disposed is shown on a calibrated gauge when the waste is pumped out of the truck. Mr. Waller testified that this gauge is accurate within five per cent of the actual amount pumped. The county sends invoices each month to the hauler, based on the number of gallons and the type of waste disposed of at the facility. The Septic Receiving Log is maintained in the foyer of the NCWRF building, with a monthly sheet for each hauling company that uses the facility. No NCWRF employee monitors the haulers as they make their log entries. Mr. Waller testified that it is essentially an honor system for the haulers. Due to computer problems, the NCWRF had no computer records of disposals for the month of January 2005. The Septic Receiving Log for Southern Sanitation for that month showed six entries totaling 11,908 gallons of septage and grease, plus two early January 2005 entries of 3,450 gallons that were placed on the December 2004 log, for a total of 15,358 gallons. Mr. Waller testified that in March 2005, Mr. Beebe submitted a revised Septic Receiving Log for Southern Sanitation for the month of January 2005. Mr. Beebe also provided this revised log to the Department as part of his March 8, 2005, supplemental information for the month of January 2005. This revised log listed three additional disposals of septage in the month of January 2005: 2,550 gallons on January 17; 2,000 gallons on January 24; and 1,700 gallons on January 28. These additional 6,250 gallons brought the reported total disposals of septage and grease for January 2005 to 21,608 gallons. The NCWRF declined to accept the revised Septic Receiving Log as an official record of Southern Sanitation's disposals at the facility for the month of January 2005, because the NCWRF could not verify the additional disposals. Mr. Beebe was billed only for those disposals documented on the original Septic Receiving Log kept at the facility. As part of the March 8, 2005, submission of supplemental information, Mr. Beebe provided to the Department a "pump job list" for January 1 through 28, 2005. This list indicated that Southern Sanitation collected between 21,000 and 22,600 gallons of wastewater during the period specified, a number that roughly corresponds to the total number of gallons reported by Mr. Beebe in his revised Septic Receiving Log for the month of January 2005. At the hearing, the Department contended that because Mr. Beebe reported collecting between 21,000 and 22,600 gallons of waste, but could only verify the proper disposal of 15,358 gallons of waste, Mr. Beebe must have improperly disposed of at least 5,600 gallons and as much as 7,200 gallons of waste. In a similar fashion, the Department examined the amounts that Mr. Beebe reported pumping from Mr. Ehlen's holding tank, compared those amounts to the Ehlen household's water usage for the month of January 2005, and concluded that Mr. Beebe further underreported the amount of waste collected that month and, therefore, must have improperly disposed of even more than 5,600 to 7,200 gallons of waste. Mr. Beebe was forthright regarding the issues in these cases, even when his testimony was against his own interests. In light of his overall credibility, Mr. Beebe's denial that he made any improper disposals of waste is credited. No evidence was presented to show that Mr. Beebe actually made these improper disposals. The Department's contention was a surmise derived from discrepancies in Mr. Beebe's reports of collections and disposals. Based on all the evidence, the undersigned finds that the discrepancies in the reports were more likely due to Mr. Beebe's poor record-keeping and his after-the-fact efforts to create records complying with Florida Administrative Code Rule 64E-6.010(7)(e), rather than any illegal dumping of waste. The Department failed to establish by clear and convincing evidence that Mr. Beebe improperly disposed of septage during the month of January 2005.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, the Department of Health, enter a final order imposing a $1000.00 fine for the violations described above, relating to DOAH Case No. 04-4333, and imposing a fine of $1,500.00 and a 90-day suspension of Respondent's septage disposal operating permit for the violations described above, relating to DOAH Case No. 05-0695. DONE AND ENTERED this 7th day of July, 2005, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 7th day of July, 2005. COPIES FURNISHED: Michael F. Kayusa, Esquire Post Office Box 6096 Fort Myers, Florida 33911 Susan Mastin Scott, Esquire Department of Health 2295 Victoria Avenue, Room 206 Fort Myers, Florida 33901 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
Findings Of Fact Official recognition is taken of the contents of the file in DOAH case number 86-3477 and the following facts from that file: On July 31, 1986, the Respondent denied the renewal of the Petitioner's license for an adult congregate living facility at the Clinton Crest Retirement Hotel, and advised him of his right to a formal administrative hearing as to relicensure. On August 8, 1986, the Respondent amended its basis for the proposed denial of licensure, alleging that on April 11, 1986, May 14, 1986, and July 18, 1986, Petitioner did not have a fixed fire extinguisher at the cooking appliance, did not have a three compartment sink or other approved system in use for the purpose of proper sanitation of kitchen utensils, and did not have a week's supply of non-perishable food based upon the number of weekly meals the facility had contracted to serve, and alleging that these were violations of specified statutes and rules. It further alleged that the fire extinguisher and the three compartment sink had remained uncorrected since June 20, 1985. The amended notice of proposed agency action cited the following provisions as the basis for the fire extinguisher requirement: sections 400.414 and 400.441, Fla. Stat., rules 10A-5.23(15)(a) and 4A-40.05, Fla. Admin. Code, and NFPA (National Fire Protection Association) 101, section 7-7.3 and NFPA 96. On August 11, 1986, the Petitioner requested a formal administrative hearing to contest the proposed denial of licensure. One year later, on August 14, 1987, the Respondent granted a renewal of license to the Petitioner. The Petitioner filed a motion for summary final order based upon issuance of the license. No response was filed by the Respondent. The Hearing Officer entered an order to the Respondent to show cause and to require a response. The Respondent filed a voluntary dismissal. The Petitioner moved to strike the voluntary dismissal, noting that he had requested the hearing, and requested attorneys' fees. The Respondent's response characterized the voluntary dismissal as a motion to dismiss for mootness, agreeing that the license had been issued. The Hearing Officer entered a recommended order recommending dismissal due to mootness, and noting that a request for attorneys' fees pursuant to section 57.111, Fla. Stat. (1987) would result in a final order and thus must originate with a separate petition to the Division of Administrative Hearings. The Respondent entered a final order dismissing the Petitioner's request for hearing as moot. The Petitioner then filed the instant petition for attorneys' fees and costs with the Division of Administrative Hearings. On June 20, 1985, Petitioner's facility was inspected. Two of the three violations set forth in the amended basis for denial of relicensure of August 8, 1986, were cited in the inspection report on June 20, 1985, and were reported as having not been corrected in a reinspection on September 26, 1985. P. Ex. 5. Those were the fire extinguisher issue and the three compartment sink issue. In the June 20, 1985, inspection report, the Respondent classified the three compartment sink violation as a class III violation, and required the violation to be corrected at the end of two months. The Respondent classified the fire extinguisher violation also as a class III violation, and required it to be corrected in three months. R. Ex. 5. An earlier administrative complaint had been filed against the Petitioner's facility on January 2, 1986. One of the allegations in that complaint was failure to have a fixed fire extinguisher at the kitchen stove. The Department classified this violation in the administrative complaint as a class III violation. The Petitioner entered into a stipulation in that administrative action paying, in part, a fine for this allegation of a fire code violation, and agreeing that if the deficiency was not corrected in thirty days, the result would be further administrative action, which might include "revocation proceedings." The stipulation did not clearly provide that failure to correct the violation would result in revocation of the license. The stipulation became embodied in the final order of the Respondent on March 19, 1986. R. Ex., 6. On April 11, 1986, and on May 14, 1986, the facility was inspected. Among other citations, the facility was cited for not have enough nonperishables to feed the 7 persons then living at the facility for a week, for not having a three compartment sink, and for not having a fire extinguisher over the cooking appliance. All three were classified as class III violations. R. Ex. 8. On reinspection on July 18, 1986, these items were still not corrected. In DOAH case number 86-3477, the Respondent admitted to requests for admissions that the three compartment sink issue and the non-perishable food issue were corrected by the date of the request for admissions, November 26, 1986. Thus, when that case closed, the only pending issue was the fire extinguisher over the stove. Based upon the testimony of James F. Schroeder, the Respondent's expert witness with respect to fire safety, the denial of relicensure in the letter of August 8, 1986, was primarily based upon the issue of fire extinguisher over the stove. The Petitioner's kitchen is small, approximately 6 to 8 feet in width and 10 to 12 feet in length. The stove is a residential electric stave having four burners. By design and construction, it is a domestic stove rather than what typically is thought of as a "commercial" stove. The stove is used commercially to prepare meals for residents of the adult congregate living facility for a fee. The stove is not located below a normal ceiling parallel with the floor, but is located under a lower slanted ceiling. The ceiling is only 4 to 6 feet above the front of the stove, and slants to within a few feet of the back of the stove. The ceiling is combustible, and a fire in the ceiling would spread to the rest of the adult congregate living facility unless extinguished by the automatic sprinkler system. The stove is near a window which could feed a stove fire with oxygen. The building is a wood frame building, and is highly susceptible to fire. There was a portable fire extinguisher at the stove. Additionally, the Petitioner installed fire sprinklers throughout the building at a cost of over $4,000. The automatic fire sprinklers were installed by the Petitioner to comply with the stipulated settlement dated March 19, 1986, and were installed after May 20, 1986. P. Ex. 3. The Petitioner thought he had been told by the Respondent that by installing the fire sprinkler system, he would satisfy the requirement that the stove have an automatic fire extinguisher. The fire sprinkler system that is installed included one in the kitchen, but the sprinkler in the kitchen is not located over the stove. R. Ex. 2. The kitchen fire sprinkler, which may be effective to impede a general fire in the kitchen, is not effective to smother a stove fire at the stove. Moreover, the one automatic sprinkler in the kitchen ceiling is not the same as an extinguisher at the stove because the stove fire extinguisher must have a manual operation capability as well as automatic capability, and must operate to shut off current to the stove in the event of fire. The lack of a fire extinguisher and hood at the stove poses a potential threat to the physical safety of the residents at the Petitioner's facility. The expert testimony presented was not sufficient to conclude as a matter of fact that the lack of a fire extinguisher and hood at the stove presents an imminent danger to residents or a substantial probability that death or serious physical injury would result there from, or that the lack of this equipment is a direct threat to the physical safety of the residents. The expert testimony was consistent with the classification by the Respondent of this violation as a class III violation. Petitioner's facility is licensed for 14 residents. On May 15, 1986, the Petitioner wrote to the Respondent asking that his license be reduced to 12 when it was reissued so that he would have time to obtain a three compartment sink. The Petitioner was having difficulty locating such a sink to purchase. The Petitioner intended to apply for a license for 14 residents when he had installed the sink. The Petitioner made this offer to the Respondent again in his letter of August 6, 1986, P. Ex. 4, and a letter from his attorney, P. Ex. 5, dated September 26, 1986. It was stipulated by the parties that rules 4A-40.05 and 4A-40.10, as embodied in R. Ex. 3, were applicable to the Petitioner on August 8, 1986. Conclusions of law 14 through 17 concern the contents of certain rules and provisions of the National Fire Protection Association (NFPA) standards, and are adopted as findings of fact. The Petitioner is the sole proprietor of the unincorporated business known as the Clinton Crest Retirement Hotel, which is the licensee in this case. The Petitioner is and was domiciled in the State of Florida, his principal office is and was in the State of Florida, he has not employed more than 25 full-time employees, and his net worth is not more than $2 million, including both personal and business investments. If attorneys' fees and costs are to be awarded in this proceeding, the unrebutted evidence justifies an award of $4,697.75 as reasonable attorneys' fees and $62.50 as reasonable costs.
The Issue The issue in this case is whether Respondent, Larry C. Garner, should be fined $500 for misstating the size of a septic tank and drain field.
Findings Of Fact Respondent, Larry C. Garner, is the licensed septic tank contractor who owns and operates A. Carver Septic Tank. (The Citation for Violation erroneously referred to the company as “E. Carver Septic Tank,” but the error was corrected without objection at final hearing. There was no evidence to support Respondent’s suggestion that the Department may have taken disciplinary action against him because it erroneously thought Respondent was another licensee.) On December 6, 2001, an employee of Respondent pumped out a septic tank and measured a drain field located at 847 Matthews Road, Maxville, Florida. The resident there wanted to enlarge her residence and needed Respondent's services in order to obtain Department approval of the existing septic tank system for the enlarged residence. After services were provided, Respondent's office gave the resident a receipt stating that Respondent's company had pumped out a 900 gallon septic tank and that the drain field measured 360 square feet. (Respondent's office actually dealt with the resident's adult daughter.) Respondent's office staff also prepared Form 4015 (a Department form entitled “Onsite Sewage Treatment and Disposal System Existing System and System Repair Evaluation”) and gave it to the resident for use in getting approval of the system for the enlarged residence. The form stated that the septic tank was 900 gallons and that the drain field was 360 square feet. When the resident applied for approval of her septic tank system for her enlarged residence, the Department inspected the system and found that the septic tank actually was 750 gallons and the drain field actually was only approximately 110 square feet. The Department issued the Citation for Violation based on the magnitude of the discrepancy. Respondent denied that he personally had any contemporaneous knowledge of the services provided by his employee or the receipt of Form 4015 prepared by his office, and there was no evidence that he did. Respondent personally investigated after issuance of the Citation for Violation. At final hearing, Respondent questioned whether the Form 4015 actually stated that the septic tank was 900 gallons. From the handwriting on the form itself, it appears possible that the number could read 700, not 900. But based on the written receipt, which either was prepared contemporaneously with the Form 4015 or was the basis for preparation of the Form 4015 by Respondent's office staff, the greater weight of the evidence was that the Form 4015 stated and was intended to state 900 gallons as the size of the septic tank. As further support for this finding, Respondent himself testified to a conversation he had with his employee during which the employee explained that he sized the septic tank at 700 gallons based on its apparent depth and Respondent admonished him that the employee knew better--i.e., knew it was necessary to measure height, width, and depth to accurately measure the size of a septic tank. Respondent also attempted to explain how his employee may have made a forgivable error in measuring the drain field. According to the Form 4015, the employee measured the drain field as a rectangular bed, 12 feet by 30 feet. Actually, the drain field consists of two trenches (one 26 feet long and the other 29 feet long), which the Department's inspector measured as being two feet wide. Respondent testified that the drain field began at a distribution box and was approximately ten feet wide within a few feet of the distribution box. Respondent testified that it would be easy to incorrectly assume that the approximate ten-foot width continued as a bed for the entire length of the drain field, as his employee apparently did. However, the greater weight of the evidence was that the employee's error was not reasonable; to the contrary, to determine the configuration and size of a drain field, it is necessary to probe the ground at more than just one distance close to the distribution box. When Respondent himself went to the site to investigate the allegations against him, he probed both near the distribution box and further away southeast of the distribution box. He testified that he found solid rock ten feet in width near the distribution box; to the southeast, his probing revealed a trench which Respondent measured at between three and a half and four feet in width. Based on those measurements, Respondent assumed two trenches approximately 30 feet long and four feet in width each, for a total of approximately 240 square feet. It is difficult to reconcile Respondent’s testimony as to the width of the southeast trench with the testimony of the Department's inspector. The Department's inspector probed approximately ten feet and 20 feet from the septic tank and found two-foot wide trenches in four different places. The Department's inspector also testified without contradiction in response to Respondent's questions on cross-examination that backhoes used at the time this drain field was installed in 1973 generally had two-foot wide excavation buckets. Based on the greater care taken by the Department's inspector in measuring the drain field, and the kind of backhoe in general use in 1973, it is found that the Department's inspector's measurements were more accurate. Even if Respondent's measurements were accurate, and the Department inspector's were inaccurate, the measurements recorded on the receipt and on Form 4015 still would have been seriously overstated. While not seriously disputing the inaccuracy of the Form 4015 submitted in this case, Respondent stated "anyone can make a mistake" and that the Department should have asked Respondent to re-check the measurements instead of issuing a citation, especially in view of Respondent's disciplinary record in 29 years in the business in Clay County. (Respondent testified that his only "issues in Tallahassee" were one incident--not fully explained--involving a cow on someone's property and another when he had someone take a re- certification examination for him at a time when his mother was ill. The Department did not controvert this testimony. As already mentioned, there was no evidence to support Respondent's initial suggestion that the Department may have taken disciplinary action against him because it erroneously thought he was another licensee.) But the Department's witness testified that issuance of the citation was appropriate and consistent with agency policy because of the magnitude of the discrepancies on the Form 4015. Respondent testified that the employee involved in this case was his stepson, who has worked for Respondent for 14 years, since he was 11 years old, seven to eight years as a full-time employee. Respondent also testified that he recently fired his stepson, but the reasons for firing him were not directly related to his conduct in this case. Respondent also testified that he felt compelled to insist on a hearing although he knew the Form 4015 was inaccurate because he perceived the Department to be acting in this case as if it had "absolute power" over him. He apparently viewed his request for a hearing as a necessary challenge to government's assertion of "absolute power" over him.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final order finding Respondent guilty as charged and imposing a fine in the amount of $500. DONE AND ENTERED this 24th day of May, 2002, in Tallahassee, Leon County, Florida. ______________________________ J. LAWRENCE JOHNSTON 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 24th day of May, 2002. COPIES FURNISHED: Dr. John O. Agwunobi, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 John D. Lacko, Esquire Department of Health 420 Fentress Boulevard Daytona Beach, Florida 32114 Larry C. Garner 13950 Normandy Boulevard Jacksonville, Florida 32221
The Issue The central issue in this case is whether Respondents committed the violations alleged in the amended administrative complaint, and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged with the responsibility of regulating fire extinguisher dealers. Respondent, Ricardo Cabrera, holds a fire extinguisher permit class 03 license (No. 109176000192) and is the qualifier for the company, B.C. & A.B.C. Fire Extinguisher Maintenance (license No. 702193000190 - Fire Extinguisher Dealer Class "C"). At all times material to the amended administrative complaint, Carlos Javier Gonzalez-Clavell was employed by Respondent but was not licensed or permitted to service fire extinguishers. In August, 1995, Respondents were placed on probation for a period of two (2) years. A special condition of Respondents' probation required Ricardo Cabrera to supervise all activities undertaken by the company to insure its employees complied with all regulations. In response to a complaint unrelated to the quality of Respondent's work performance, Ms. Barrow directed an investigation of the Respondent's business premises. Mr. Parks was assigned the investigation of whether Respondents were employing unlicensed workers to perform servicing or recharge of fire extinguishers. On January 29, 1996, Mr. Parks went to Respondent's place of business and observed someone loading a vehicle with fire extinguisher equipment and supplies. He also observed the male near a tank which he presumed was nitrogen. He assumed the person was recharging a fire extinguisher. During the described activity Respondent was not in sight. The person described in paragraph 7 later identified himself as Carlos Javier Gonzalez-Clavell. The vehicle being loaded belonged to Mr. Clavell. Respondent was on the business premises at all times noted above. He was out of view but supervising Mr. Clavell's activities. Mr. Clavell did not recharge fire extinguishers and was not permitted to perform license activities.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Insurance and Treasurer enter a final order dismissing the amended administrative complaint. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 5th day of February, 1997. JOYOUS D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 5th day of February, 1997. COPIES FURNISHED: Joe Demember, Esquire Division of Legal Services 512 Larson Building Tallahassee, Florida 32399-0300 Ricardo Cabrera 3340 South Lake Drive Miami, Florida 33155 Bill Nelson State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Daniel Y. Sumner General Counsel Department of Insurance and Treasurer The Capitol, LL-26 Tallahassee, Florida 32399-0300
The Issue The issues in this case are whether the allegations set forth in the Administrative Complaint are correct, and, if so, what penalty should be imposed.
Findings Of Fact At all times material to this case, the Respondent was a registered septic tank contractor, registration number SR0041456. At all times material to this case, the Respondent was authorized to provide septic tank contracting services through the corporation "Anytime Septic Enterprise, Inc.," authorization number SA0091662. The Respondent has advertised his services to the public as a septic tank contractor and has engaged in the business of providing septic tank services since at least September 2010. At all times material to this case, the Respondent was permitted to provide septage disposal services via permit number 36-QA-28986 issued by the Lee County Health Department. On or about September 13, 2010, the Respondent was hired to pump a septic system located at 2710 Northwest 5th Street, Cape Coral, Lee County, Florida, by another septic tank contractor. The employing contractor had been hired to service and repair the septic system, but did not have the ability to pump the tanks. On September 13, 2010, the Respondent pumped out the septic tank. The Respondent did not pump out the "dosing tank," a part of the septic system connected to the septic tank. After pumping out the septic tank, the Respondent completed a "DH Form 4015," signed and dated on September 13, 2010. The form collected information on the evaluation and repair of the septic system, including identification of system components and tank capacities. The contractor servicing the system is required to complete the form and identify the services provided. The Respondent identified the components of the referenced septic system and the capacities of both the septic and dosing tanks. The Respondent signed and dated the certification statement. As completed by the Respondent, the certification statement stated as follows: I certify that the listed tanks were pumped on 9/13/10 by Anytime Septic, have the volumes specified as determined by legend are free of observable defects or leaks, and have a [solids deflection device/outlet filter device] installed. Although the Respondent certified that he pumped the dosing tank on September 13, 2010, he did not pump the dosing tank on that date. The Respondent certified the dosing tank to be free of observable defects or leaks; however, the failure to pump the dosing tank prevented proper observation of the dosing tank, and it is highly unlikely that an accurate evaluation of the condition of the dosing tank was possible under the circumstances. Under the applicable rule, a pumper may perform an incomplete pumpout under certain circumstances, but the rule requires that the pumper must provide written documentation to the system owner identifying the reason for the incomplete pumpout, the gallonage pumped from the system, and the material left in the tank. The Respondent failed to provide such documentation to the system owner. An inspection by an employee of the Petitioner on September 16, 2010, revealed that the dosing tank had not been pumped and that the tank lids had not been sealed after the service. The Respondent was notified on September 20, 2010, that the dosing tank should have been pumped at the same time as the septic tank. On that same date, the Respondent returned to the site, pumped the dosing tank, and then completed, signed and dated a second "DH Form 4015" certifying that the dosing tank had been pumped. The Respondent recorded additional information on the form to indicate that the remaining work would be performed by the septic tank contractor who had employed the Respondent. At the hearing, the Respondent asserted that upon the initial inspection of the property, the Respondent observed that the septic tank conditions were non-standard, that he communicated such information to the contractor who had hired him, and that the Respondent's services, including certification of the tanks, were provided in accordance with the requests of the contractor.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final order imposing a $1,500 fine against the Respondent for falsely certifying the work performed on September 13, 2010, and the condition of the dosing tank; for failing to fully pump the system without providing appropriate documentation; and for failing to properly seal the tank lids. DONE AND ENTERED this 24th day of February, 2011, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 2011. COPIES FURNISHED: Denise Duque, Esquire Southwest Alliance of County Health Departments 2295 Victoria Avenue, Room 206 Fort Myers, Florida 33901 Stephen M. Maher, Esquire Stephen M. Maher, Attorney at Law, P.A. 2077 First Street, Suite 206 Fort Myers, Florida 33901 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, FL 32399-1701 E. Renee Alsobrook, Acting General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701 Secretary, State Surgeon General Department of Health 4052 Bald Cypress Way, Bin A-00 Tallahassee, Florida 32399-1701
