The Issue The issues to be resolved in this proceeding concerns whether the Respondent installed a septic system without a permit; whether a permit was required for the installation; whether the installation was of inadequate size; whether the Respondent caused the disconnection of an existing system without a permit, and whether that system was improperly abandoned. A related issue is whether the proposed $1,500.00 fine should be imposed if the violations are proven or what, if any, fine is warranted.
Findings Of Fact The Petitioner is an agency of the State of Florida charged, in pertinent part, by its organic statutes and rules, with regulating the practice of septic tank contracting and the installation and repair of septic tank and drainfield waste disposal systems and with licensure of such contractors pursuant to Rule Chapter 64E, Florida Administrative Code. The Respondent, Trammel Fowler (Fowler), is a licensed septic tank contractor regulated by the statutes and rules cited herein. Fowler has never been issued any citations or been subjected to discipline under the relevant statutes and rules enforced by the Petitioner with regard to septic system design, construction, installation and repair. He has worked in the septic tank installation business for 19 years. The Respondent installed a septic tank and drainfield system at 5642 Old Bethel Road, Crestview, Florida, a residential construction project (home) in 1993. The original septic tank system installed by the Respondent was finally approved on June 11, 1993. The home site at issue was originally designed to have the septic tank and drainfield system located in the backyard of the residence. Plumbing errors by the general contractor and the plumbing sub-contractor caused the plumbing system to be "stubbed-out" to the front of the house so that the septic tank and drainfield system was installed in the front of the house rather than in the backyard as originally designed and approved by the Petitioner. Additional excavation work was required at the site, which caused the soil type to change in the front of the house where the septic tank and drainfield were to be installed. This in turn required the Okaloosa County Health Department to require additional drainfield square footage to be added to the previously approved 600 square feet of drainfield, so that the drainfield installed in the front of the house by the Respondent ultimately encompassed 800 square feet. Thus, although the original site plans approved by the Okaloosa County Health Department were not followed, subsequent modifications to the system resulted in the septic tank system being fully approved by the Petitioner (through the Okaloosa County Health Department), on June 11, 1993. In the ensuing months, landscaping problems at the site caused surface water to collect around and above the drainfield area. This, coupled with a continuous water flow from the residence caused by leaking appliances, and particularly the commode, resulted in raw or partially treated wastewater becoming exposed on the surface of the ground, as a sanitary nuisance. This was caused as the septic tank and drainfield system became saturated by the excess water from the two referenced sources. This caused the failure of that septic tank and drainfield system within nine months of its original installation, as was noted on March 4, 1994, by the Department's representative Mr. Sims. It is undisputed that the Respondent, Mr. Fowler, did not cause or contribute to this septic tank system failure. He constructed the system as designed and approved by the Department (or as re- approved by the Department in June 1993 with the relocation of the system to the front yard of the residence and with the augmentation of the drainfield referenced above). The Department was aware of the failure of the original system in the front yard of the residence as early as March 1994. There is no evidence that an actual permit for repair of that system was ever issued. Mr. Fowler maintains that the Department had a policy at that time of authorizing repairs to systems that failed within one year of original installation, as this one did, without a written, formal permit process, but rather by informal approval and inspection of the repair work. The Petitioner disagrees and Mr. Sims, the Petitioner's representative, states that a permit was required, although no fee was charged. Indeed in 1994 a rule was enacted authorizing issuance of a permit for repair work for systems that failed within one year of original installation without being accompanied by the charging of a fee for that permit. In any event, prior to the rule change, repairs were authorized for failures within one year by the Department without a permit, but were required to be inspected and a notation made in the permit file or in some cases on a "nuisance complaint card," so authorization and inspection was supposed to be documented. When by the time the repair was effected by the installation of the backyard septic tank and drainfield system or "overflow-system" in February 1995, the rule change requiring issuance of a repair permit without fee had become effective. There is evidence that the Respondent was aware of this since, sometime in 1994, he had obtained a permit authorizing repair of a septic tank and drainfield site on "Windsor Circle" as shown by the Petitioner's Exhibits 6 and 7 in evidence. Be that as it may, the Respondent contends that Mr. Brown, the environmental specialist and inspector for the Department, met with him at the repair site in question and at least verbally authorized the repair of the system by installation of the septic tank and drainfield in the backyard of the residence; to be connected to the sewer line which also was connected with the malfunctioning system in the front yard of that residence. Mr. Brown in his testimony purports to have no memory of authorizing the repair work or inspecting it and seems confused as to whether he met with the Respondent at the site. The Petitioner acknowledges, as does Mr. Brown, that he has had problems since that time with memory lapses, attendant to two life-threatening injuries, which have apparently caused problems with memory loss. He purportedly suffers from post-traumatic stress syndrome and is taking medication with regard thereto. There is no dispute that he has problems with recall. Moreover, there is evidence that Mr. Brown met with the Respondent at an address on Old Bethel Road for some reason, as shown by a notation in Department records in February 1995. Consequently, while there is no doubt that the repair work in question was done without a written permit, there is evidence to corroborate Mr. Fowler's testimony to the effect that Mr. Brown inspected and reviewed the repair system while it was actually being installed by Fowler and approved it. Thus, it is possible that Mr. Fowler was under a good faith impression that the Department had a policy of inspecting and approving repair work without there being a permit related to it at the time when he installed the secondary "overflow" system at the Old Bethel Road site in February of 1995, even though that impression may have been legally mistaken, because the rule requiring a permit at no fee for repair work was already in effect. In any event, Mr. Fowler installed the so-called "repair system" in February 1995, which he has termed an "overflow" system designed to augment the treatment capability of the previously-approved system installed in the front yard at that residence. That system, as found above, consisted of 800 square feet of drainfield. The "overflow" system installed in the backyard by Mr. Fowler in February 1995 without the permit, has only 300 square feet of drainfield. This is clearly well below the minimum required for such a system and tends to support Mr. Fowler's testimony that it was intended really as a repair job in the form of a overflow system to handle extra flow that the original system in the front yard would not be able to handle in performing the intended treatment function. It is unlikely that Mr. Fowler, with or without a permit, would have installed a system he clearly would know to be of only one-half (or less) of the adequate size and treatment capability for the residence, if it had been intended to be a separately functioning independent treatment system for the residence. In fact, the "overflow" system was connected through a "T" or "Y" fitting in the sewer line outfall pipe from the house with the original septic tank and drainfield system in the front yard of the residence, so that flow could go to both systems simultaneously from the residential sewer line. There is conflicting testimony as to whether such a dually draining system could work properly. One septic tank contractor testified that it could and could adequately split the flow between the two septic tank and drainfield systems so as to perform adequate treatment without backups or overflows, while a witness for the Department testified that such a split-fitting could cause stoppages and therefore sewage backups. Be that as it may, the installation of the system in a connected fashion to the original system supports Mr. Fowler's testimony and contention that the system installed in the backyard, with 300 square feet of drainfield, was intended as a repair system merely to augment the treatment function being provided by the poorly functioning original system in the front yard. In fact, the preponderant evidence shows that, with the elimination of leakage from the appliances in the house and the correction of the water-pooling problem caused by improper landscaping, that the system would function adequately thus connected. Indeed, when the plumber or the general contractor for the residence disconnected the original front-yard septic tank system from the overflow system, so that all of the sewage in the house went to the overflow system with the smaller drainfield, that system still functioned adequately for one and one-half years until failure in approximately August 1997. It is undisputed that the Respondent had no part in the unreported and unapproved disconnection of the original front system from the overflow tank and drainfield system in the backyard. The evidence shows a preponderant likelihood that the total system would have functioned adequately indefinitely had the two remained connected so that sewage could flow to the front yard system with the 800 square feet of drainfield, with the excess water flow problems referenced above already corrected. Mr. Brown, the Department environmental specialist and inspector, did not recall specifically whether he had been at the Old Bethel Road site at issue, but testified that it was definitely possible. He testified that the time entry notation he made admitted into evidence as Exhibit No. 3, may have reflected an inspection for a repair job at the Old Bethel Road site. Mr. Brown admitted that he was present on Old Bethel Road in February 1995, but did not recall his purpose of being there. His testimony thus did not contradict the testimony of Trammel Fowler. Mr. Brown also testified that he was aware of problems at the Old Bethel Road site and testified that Mr. Wykle of the Department and Mr. Sims were also aware of problems at the Old Bethel Road site. Douglas Sims of the Department testified that the two systems, the original front tank and drainfield and the overflow tank and drainfield installed in the backyard by Mr. Fowler could not work together if they were connected. This is belied by testimony of a septic tank contractor, Ken Arnett, who was a rebuttal witness called by the Department. Mr. Arnett testified that he would expect a system of the type contemplated by Mr. Fowler and Mr. Brown to function properly. It thus seems from the preponderant weight of the evidence that the reason the Old Bethel Road residential system quit functioning properly, in approximately August 1997, is that the plumbing contractor, at the behest of the residential building contractor for the residence constructed there, disconnected the overflow system from the original front yard system, so that all the house effluent was going to the overflow system, which was never intended to have a complete, standard-sized drainfield for such a dwelling, prevalent soil conditions, elevations and the like. Mr. Brown, a long time employee of the Department was familiar with the statewide rules affecting septic tank contractors and installation and familiar with local department rules and policies relating to repairs. He testified that for a period of time in the early 1990's, there was an unwritten policy by the Okaloosa County Health Department that some repair permits would be waived for certain repairs provided a final inspection by the Department was made. He stated that if the septic tank system failed within one year under certain circumstances, a repair permit would be waived as long as the Department was aware of the repair. Mr. Brown could not recall when the policy ended, but estimated it to be sometime between 1995 and 1997. He called the discontinuation of the local policy to waive repair permits a "gradual phase out." Mr. Brown also recalled that the Okaloosa County Health Department's unwritten, local policy concerning waiver of repair permits was known and relied upon by septic tank contractors in certain situations. Cecil Rogers, a long-time septic tank contractor who dealt with the Okaloosa County Health Department regularly, testified that there was a standard policy to allow repairs to be made to septic tank systems that failed within one year without requiring a permit. There thus seems to have been an unwritten policy or practice among septic tank contractors and the Okaloosa County Health Department to the effect that if a system failed within one year and the contractor was willing to repair the system without cost to the homeowner, that the permit would be waived as long as the system or repair could be inspected by the Department. The system originally installed which failed appears to have been installed before the effective date of the rule requiring that a no-charge permit be obtained for repair work. The repair work in question, the installation of the overflow system, appears to have been effected after the effective date of the new rule. It also appears that Mr. Fowler knew of the new rule because of his obtaining a permit for repair work at the Windsor Circle repair site in 1994. It also would appear that Mr. Brown likely verbally approved and inspected the repair work at the subject site, giving Mr. Fowler the impression that he was authorized to go ahead and make the repair by installing the overflow system. Thus, although he may have technically violated the rule requiring a no-charge permit for repair work, it does not appear that he had any intent to circumvent the authority of the Department, since the preponderant evidence shows that Mr. Brown knew of and approved the installation. Thus, in this regard, a minimal penalty would be warranted. Moreover, after the original septic system at the Old Bethel Road site failed in March of 1994, through no fault of Fowler, Fowler paid to make the repair by installing the overflow system at his own expense. The original new home purchaser at that site, and Mr. Fowler's customer, Mr. Wayne Aaberg, thus did not sustain any personal expenses for the repair work performed by Fowler. The Petitioner did not present any evidence to establish that the repairs made by Fowler caused the septic tank system at Old Bethel Road to fail. The Petitioner, through the testimony of environmental manager Douglas Sims, itself established that the plumbing contractor actually disconnected the front system from the overflow system and made a physical connection only to the rear system installed by Mr. Fowler, rather than Fowler, and without Mr. Fowler's knowledge. The Petitioner, apparently through Douglas Sims, failed to conduct an investigation to determine which party actually was responsible for physically abandoning or disconnecting the original front system from the home and from the overflow system prior to the charges being filed against Mr. Fowler. Mr. Fowler did not cause the physical disconnection of the two systems and the residence and is not a licensed plumber. He did not, during the course of his contracting business for septic tanks and drainfields make physical connections or disconnections to dwelling units, but instead left that to the responsibility of the general contractor and/or the plumbing contractor. The Petitioner presented no evidence establishing any monetary harm to any customer of the Respondent. The disconnection of the systems which caused the failure was not shown to have been the responsibility nor fault of Mr. Fowler. Rather, any monetary harm to the homeowner who owned the residence when the failure occurred in August 1997, after the original repair installation had been paid for by Mr. Fowler was caused by the plumbing contractor and/or the general contractor, Kemp Brothers, who directed the plumbing contractor to disconnect the original front system from the overflow system. Consequently, any monetary damage caused by fixing the failure which occurred in August 1997, and which engendered the subject dispute, was not caused by Mr. Fowler. Finally, Mr. Douglas Sims of the Department, testified that he knew of two other un-permitted repairs by septic tank contractors which were known to the Department. In both of those cases, the contractors were only issued a Letter of Warning. Mr. Sims testified that if the Respondent herein had made repairs to the existing system at his own cost after the failure occurring in August of 1997, then the Department would have only issued a Letter of Warning. Mr. Fowler paid to fix the original system in February 1995, but felt that monetary responsibility for the August 1997 failure was not his fault and thus did not offer to pay for that.
Recommendation Accordingly, 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 finding that the Respondent effected repair work to a septic tank and drainfield system without the required written permit but that, in view of the above-found and concluded extenuating circumstances, that a minimal penalty of a letter of warning be issued to the Respondent by the Department and that the citation for violation, in all other respects, be dismissed. DONE AND ENTERED this 19th day of January, 2000, in Tallahassee, Leon County, Florida. 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 the Clerk of the Division of Administrative Hearings this 19th day of January, 2000. COPIES FURNISHED: Rodney M. Johnson, Esquire Department of Health Northwest Law Office 1295 West Fairfield Drive Pensacola, Florida 32501 Matthew D. Bordelon, Esquire 2721 Gulf Breeze Parkway Gulf Breeze, Florida 32561 Angela T. Hall, Agency Clerk Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1703 Dr. Robert G. Brooks, Secretary Department of Health Bin A00 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701 Pete Peterson, General Counsel Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701
The Issue Whether Respondent violated Section 381.0065 and Chapter 489, Part III, Florida Statutes (2004), and Florida Administrative Code Chapter 64E-6, by engaging in septic tank contracting without registration as alleged by Petitioner in the Administrative Complaint and Order to Crease Operations, dated January 26, 2005.
Findings Of Fact Based upon observation and the demeanor of the witnesses while testifying, documentary materials received in evidence, stipulation of the parties, and evidentiary rulings during the hearings, and the record compiled, the following relevant and material facts are determined: The Department of Health ("Department"), Lee County Health 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 II and Section 381.0065, Florida Statutes (2004). Violators of these laws are subject to penalty assessments of Section 381.0061, Florida Statutes, and Florida Administrative Code Rule 64E-6.002. At all times relevant to these proceedings, Respondent, Keithon M. Patterson, has not been licensed as a plumber pursuant to Subsection 489.105(3)(m), Florida Statutes (2004). All times relevant to these proceedings, Respondent was doing business using the business name Full Spectrum Home Improvement, Inc. (Full Spectrum). The business is not nor has it ever been licensed under Subsection 489.105(3)(m), Florida Statutes (2004). All times relevant to these proceedings, the City of Cape Coral, Florida, has an ongoing utility expansion program extending city water services and city sewer services to properties within the limits of the city. All homeowners are required to connect or hookup to city water/sewer systems when such services become available in their respective location within the city. Each homeowner connection or hookup process to city- provided water and sewer, once completed, requires the homeowner to get the Department's abandonment permit to abandon their septic system after hookup to the city water/sewer system. Abandonment requires trenching from the street hookup to the water/sewer hookup. It requires disconnection from the home and the septic tank. It requires pumping or emptying of the septic tank followed by a crushing of the septic tank and filling in of soil. Vicki Adams lives in her home located at 3216 Southeast 1st Place, Cape Coral, Florida. When city services extended to her location, she was required to hookup to the city water/sewer system and have her septic tank system abandoned. To abandon a septic tank means to have a registered person, empty the septic tank, crush the septic tank, fill the septic tank space with clean fill, dig up the underground septic lines from the home to the septic tank, remove piping, and fill the trench with clean fill. For reasons of sanitation and safety, a Departmental permit is required for each property owner before they can abandon their private septic tank system. On or about November 22, 2004, Ms. Adams obtained her septic system abandonment permit from the Department. At some undetermined date but subsequent to November 22, 2004, Ms. Adams, for promise of monetary payment, hired Mr. Patterson to connect her home to the city sewer and to abandon her septic tank. When she was leaving for work, Ms. Adams observed Mr. Patterson doing trench work (i.e. digging, removing soil, hauling sod, etc.) and actually laying some pipe. Ms. Adams' son, Jeff, observed Mr. Patterson with a sledge hammer while in their front yard. Ms. Adams told Mr. Patterson where to park the trucks hauling the clean fill needed to fill the hole after the septic tank was crushed. Mr. Patterson rightly pointed out that neither Jeff nor Ms. Adams personally saw him crush the septic tank. However, when Ms. Adams returned home from work that afternoon she saw clean fill in the spot her crushed septic tank once occupied. Ace Septic Service, Inc. (Ace), a Department authorized septic tank contracting company, removed all residue from Ms. Adams' septic tank by pumping the tank contents into its truck. It invoiced Ms. Adams for pumping her tank. Carlos Casanova, manager of Ace at the time, gave undisputed testimony that his company only pumped out Ms. Adams' septic tank--they did not perform abandonment (i.e. crushing of the tank and filling the abandoned hole with fresh soil). Ms. Adams paid Mr. Patterson $790.00 for his work at her home, which included hooking-up her home to the city sewer line and abandoning her septic tank system. Mr. Patterson gave her a receipt indicating that she paid him in full, in cash, received by him, "K.M. Patterson's," on December 8, 2004, by his signature thereon. The receipt, however, is from "Full Spectrum Home Improvement," and under the "Description" states: "50' trench excavation, 50'4 DWV PVC pipe w/fitting, 6" X4" PVC DWV WVE, trench backfill and restoration (w/out sod)." It is abundantly clear from evidence of record that Ms. Adams' septic tank was abandoned, and, for the septic tank abandonment service rendered, Ms. Adams paid Mr. Patterson, who was not registered with the Department as required. Ace Septic Service, Inc. (Ace), a Department-authorized septic tank contracting company, did not abandon Ms. Adams' septic tank. On January 5, 2005, Department inspector, Ms. Pickerill (no first name in the record), went to the Adams' residence to inspect and confirm proper septic tank abandonment. Her inspection included probing the area where the tank had been located, confirming that the tank had been crushed and that clean fill was used to fill the hole. Satisfied by her inspection that Ms. Adams' septic tank had been properly abandoned, Ms. Pickerill signed the Department's abandonment permit for the Adams' property. Nicola Verna's home is located at 4117 Southwest 20th Avenue, Capt Coral, Florida. City sewer and water had been extended to his home, and he was required to hookup to the city water/sewer system and to abandon his septic system. Mr. Verna obtained the Department's septic system abandonment permit on May 7, 2004. At some undetermined time before September 27, 2004, Mr. Verna hired Mr. Patterson to connect his home to the city water/sewer system and to abandon his septic system. At his home site, Mr. Verna observed Mr. Patterson crush his septic tank with a sledgehammer and bring in a truckload of clean fill material that Mr. Patterson placed in the hole where he had crushed the septic tank. The arrangements to have Mr. Verna's septic tank pumped by Ace were made by Mr. Patterson, for which Mr. Verna paid Ace $165.00 for pumping only, evidenced by a September 27, 2004, invoice. As with Ms. Adams, Mr. Casanova gave undisputed testimony that his company only "pumped out the septic tank-- they did not perform septic tank abandonment," the issue in this cause. For services rendered (hooking-up home to city water, irrigation services, to city sewer, and abandoning the septic tank), Mr. Verna paid Mr. Patterson a total of $1,073.00. Mr. Patterson gave Mr. Verna two receipts. One August 16, 2004, receipt from Full Spectrum "for '120' trench for 120' water and irrigation lines, $619.00 paid in full ch# 1083 rec'd by K.M. Patterson." The second September 27, 2004 receipt "for '1 40' trenching sewer line" for a total of $454.00, with notation at the bottom, "deposit ch# 1086, Balance of $200.00 Rec'vd by K. Patterson ch# 1088." Mr. Verna is certain that the two receipts represented his payments to Mr. Patterson for a part of the work he performed in abandoning his sewer system, because Mr. Patterson is the only person who performed those services for him. As with Ms. Adams, Ms. Pickerill went to Mr. Verna's home on December 27, 2004, to conduct her inspection and to confirm Mr. Verna's septic system was abandoned properly. Her probing the area where the tank was located confirmed that it had been crushed and clean fill had been used to fill the hole. Satisfied by her inspection that Mr. Verna's septic tank had been properly abandoned, Ms. Pickerill signed the Department's abandonment permit for the Verna's property. The Department has taken previous enforcement actions for engaging in septic tank contracting without registration against Mr. Patterson. On June 4, 2004, the Department served an Administrative Complaint on Mr. Patterson seeking to impose a $1,500.00 fine for three separate episodes of tank contracting without being a registered septic tank contractor. Mr. Patterson settled the complaint for septic tank contracting without being a registered septic tank contractor with the Department by his agreement to pay a $750.00 fine. The Department memorialized the agreement in its Final Order Number DOH-04-1071-S-HST of September 15, 2004. Mr. Patterson paid his fine of $750.00 in January 2005, but not before the filing of the instant Cease Order entered by the Department in this proceeding. Based upon the above allegation of septic tank contracting without being a registered septic tank contractor with the Department, in the instant proceeding are "repeat violations" for penalty purposes as provided in disciplinary guidelines of Florida Administrative Code Rule 64E-6.002. The Department demonstrated by clear and convincing evidence that Mr. Patterson, did on two separate occasions violate Section 381.0065, and Chapter 489, Part III, Florida Statutes (2004), and Florida Administrative Code Chapter 64E-6, by engaging in septic tank contracting abandonment without registration as alleged by the Department in the Administrative Complaint and Order to Crease Operations, dated January 26, 2005. Mr. Patterson's protestations to the contrary are without merit and unworthy of belief.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final order affirming its January 26, 2005, Order to Crease Operations and imposing a $1,000.00 fine against Respondent, Keithon M. Patterson. DONE AND ENTERED this 28th day of July, 2005, in Tallahassee, Leon County, Florida. S 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 28th day of July, 2005.
Findings Of Fact The Respondent, Hance B. Jones, is a registered septic tank contractor. The Petitioner is charged with regulating septic tanks, and may initiate charges against septic tank contractors which fail to comply with the statutes and rules regulating septic tanks. The Department's local inspector, Mr. Land, was asked by a representative of Best Septic Tank Contracting to meet with the Best representative and Ms. Inez Quiett at Ms. Quiett's home and confer about a proposed septic tank repair. On March 5, 1992, Mr. Land visited the site, observed water standing around an area which he was advised was the existing septic tank and drain field, and was asked what would have to be done. Mr. Land advised that they would have to obtain a permit, and that the new drain field would have to be separated by at least 24 inches from the wet season water table, and that this would entail placing the drain field in a mound. Mr. Land left the site expecting to have a representative of Best pick up a permit for the repairs within a few days. When Mr. Land did not see anyone come in about the permit, he drove by Quiett's, and observed disturbed soil in the area of the drain field. He stopped, went to the Quiett's house, and spoke with Ms. Quiett's son. The son advised that they had repaired the drain field. Mr. Land asked who had repaired the field, and the son advised him that Mr. Jones had repaired it. On April 22, 1992, Mr. Land then wrote a letter to the Respondent and advised Jones that he had violated the law by repairing Quiett's septic tank and not obtaining a permit for the repair. Mr. Jones spoke with Land at Land's office, and denied that he had repaired the septic tank. Mr. Jones stated he had provided the materials and equipment used to repair the tank. On April 22, 1992, Ms. Quiett called Mr. Land on the telephone, and told Land that Mr. Jones had helped her with the tank, but denied that Jones had been her contractor. The Respondent denied that he was the contractor of the job; denied he was on the site; denied he supervised the work; and denied he received any compensation from Quiett. He indicated that he knew Ms. Quiett's brothers, who were contractors, and admitted that he had provided the materials used on the job and had loaned them his backhoe. Ms. Quiett was asked about the repairs to the system and invoked her privilege against self-incrimination.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that the Administrative Complaint against the Respondent be DISMISSED. DONE AND ENTERED this 26th day of August, 1992, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of August, 1992. COPIES FURNISHED: David West, Esquire District 3 Legal Office 1000 N.E. 16th Avenue Gainesville, FL 32609 Bobby Kirby, Esquire Route 2, Box 219 Lake Butler, FL 32054 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 John Slye, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
The Issue Whether Respondent violated Rule 64E-6.003, Florida Administrative Code, by repairing a septic tank and/or drainfield without a permit and, if so, what penalty should be imposed on him.
Findings Of Fact Petitioner, the Department of Health (Department), is the state agency charged with administering and enforcing laws and rules relating to sanitation. Section 381.0011(4), Florida Statutes. Respondent failed to appear at the duly-appointed time and place for the administrative hearing in this matter. On April 22, 1999, Gregory Crumpton, Environmental Specialist with the Pasco County Health Department, responded to a sanitary nuisance complaint regarding Respondent's property located at 7111 Lofty Drive, Port Richey, Florida. Based on that complaint, on April 22, 1999, Mr. Crumpton inspected Respondent's property. His inspection revealed the presence of untreated or improperly treated human waste from an improperly maintained septic tank. Based on his April 22, 1999, inspection of Respondent's property and his determination that the condition existing on Respondent's property constituted a sanitary nuisance, Mr. Crumpton issued an Official Notice to Abate a Sanitary Nuisance. The notice was left on Respondent's property. Moreover, on April 22, 1999, a copy of the notice was mailed to Respondent by certified mail. Respondent signed the return receipt acknowledging that he had received the notice. On April 26, 1999, Mr. Crumpton received a second complaint from a neighbor of Respondent who reported that Respondent's septic tank was being repaired without a permit. Upon inspecting Respondent's property on April 27, 1999, Mr. Crumpton observed that repair work was being performed on Respondent's septic tank without a permit. On April 27, 1999, Mr. Crumpton met with Respondent regarding the inspection and issued to Respondent a second Official Notice to Abate a Sanitary Nuisance, which was sent by certified mail. This notice was issued to Respondent because of the installation and/or repair to septic tank and/or drainfield without a permit. The April 27, 1999, notice advised Respondent that his failure to secure a septic tank repair permit could result in his being fined up to $500.00 per day until he obtained the required permit. Although Respondent was advised that he could be fined up to $500.00 per day for failing to secure a permit to repair his septic tank, as of May 18, 1999, Respondent had not secured the permit. On May 18, 1999, Mr. Crumpton issued a citation alleging that Respondent had installed and/or repaired a septic tank and/or drainfield without a permit. As of the date of the final hearing in this matter, October 19, 1999, Respondent had failed to secure a septic tank repair permit.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Respondent be ordered to pay a fine in the amount of $500.00, obtain a septic tank repair permit, and effect repairs. DONE AND ENTERED this 2nd day of December, 1999, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of December, 1999. COPIES FURNISHED: Barbara A. McPherson, Esquire Department of Health 300 31st Street North Suite 338 St. Petersburg, Florida 33713 Shane Whitfield 7111 Lofty Drive Port Richey, Florida 34668 Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1701 Pete Peterson, General Counsel Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1701 Dr. Robert G. Brooks, Secretary Department of Health 2020 Capital Circle, Southeast Bin A00 Tallahassee, Florida 32399-1701
The Issue 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 committed the violations as set forth in the Citation for Violation, Onsite Sewage Program/Sanitary Nuisance dated April 28, 2000.
Findings Of Fact Petitioner is authorized and given the jurisdiction to regulate the construction, installation, modification, abandonment, or repair of onsite sewage treatment and disposal systems, including drainfields, by septic tank contractors. At all times material hereto, Respondent was a registered septic tank contractor and, as such, he was authorized to provide septic tank contracting services, including the installation and repair of drainfields. On or about November 2, 1995, Petitioner issued a permit (Permit No. RP648-95) to Wilmar Rodriguez for the repair of a septic tank system at 417-421 Perry Avenue, Greenacres, Florida. The property was a triplex, which was purchased by Mr. Rodriquez in 1981. Mr. Rodriguez has no knowledge as to whether any drainfields were installed or replaced on the property, prior to 1981. The Permit included the installation of a new multi- chambered septic tank, a dosing tank, a lift station, and a new drainfield. The Permit was also for a filled system and called for the drainfield to be 700 square feet. Respondent was indicated as the "agent" on the Permit. Respondent and/or his employees performed the work under the Permit. Respondent was the septic tank contractor for the repair of the septic tank system under the Permit. On November 9, 1995, the construction of the septic tank system was approved by one of Petitioner's inspectors, who was an Environmental Specialist I. Petitioner's inspectors are not present during the entire construction or repair of a septic tank system or drainfield. Usually, inspections are made after the completion of the construction or repair of the septic tank system. Additionally, the inspection of a drainfield is usually performed after the rock has been placed on top of the drainfield. On February 2, 1996, the same inspector performed the inspection after the completion of the construction of the septic tank system, including after the placing of the rock on top of the drainfield. Even though the Permit reflects a filled system, the filled/mound system section on the inspection sheet was crossed out. The inspector considered the system to be a standard system, not a filled or mound system, and, therefore, inspected it as a standard system. In inspecting a drainfield, the inspection by an inspector includes checking to ensure that a drainfield has 42 inches of clean soil below the drainfield. An inspector uses an instrument that bores down through the rock and brings up a sample of the soil, which is referred to as augering. Augering is randomly performed at two locations. For the instant case, the inspector performed the augering in two random locations of the drainfield, which were in the area of the middle top and the middle bottom. The samples failed to reveal anything suspect; they were clean. On February 2, 1996, the inspector issued a final approval for the septic tank system. Final approval included the disposal of "spoil" and the covering of the septic tank system with "acceptable soil". The inspector mistakenly inspected the system as a standard system. He should have inspected the system as a filled system.1 After the repair and installation of the septic tank system by Respondent, Mr. Rodriguez continued to have problems with the septic tank system. He contacted Respondent three or four times regarding problems with the system, but the problems persisted. Each time, Respondent was paid by Mr. Rodriguez. Sewage water was flowing into the street where the property was located and backing-up into the inside of the triplex. Having gotten no relief from Respondent, Mr. Rodriguez decided to contact someone else to correct the problem. Mr. Rodriguez contacted Richard Gillikin, who was a registered septic tank contractor. On October 14, 1999, a construction permit was issued to Mr. Rodriguez for the repair of the septic tank system. Mr. Gillikin was indicated as the agent. Mr. Gillikin visited the property site of the triplex and reviewed the problem. He determined that the drainfield was not properly functioning, but he did not know the cause of the malfunctioning. With the assistance of Petitioner's inspectors, Mr. Gillikin and Mr. Rodriguez attempted to determine the best method to deal with the problem. After eliminating options, Mr. Rodriguez decided to replace the drainfield. To replace the drainfield, Mr. Gillikin began excavating. He began removing the soil cover and the rock layer of the drainfield. Mr. Gillikin also wanted to know how deep he had to dig to find good soil. After digging for that purpose and for 10 to 12 inches, he discovered a drainfield below Respondent's drainfield. The drainfield that Mr. Gillikin discovered was a rock bed 12 inches thick in which pipes were located and, as indicated, 10 to 12 inches below Respondent's drainfield. Mr. Gillikin also dug a hole two to three feet deep, pumped the water out of the hole, and saw the old drainfield. Mr. Gillikin determined that the old drainfield extended the full length of Respondent's drainfield. As a result of Mr. Gillikin's determining that the old drainfield was below Respondent's drainfield, both drainfields had to be removed and the expense of a new drainfield increased. Leon Barnes, an Environmental Specialist II for Petitioner, who was also certified in the septic tank program, viewed the drainfield site. He determined that the old drainfield was below Respondent's drainfield and that, therefore, Respondent had not removed the old drainfield. On or about November 6, 1999, Mr. Barnes' supervisor, Jim Carter, and co-worker, Russell Weaver, who is an Engineer, also visited the drainfield site. Mr. Weaver determined that the old drainfield covered a little more than 50 percent of the area under Respondent's drainfield. On November 8, 1999, a construction inspection and a final inspection of the system installed by Mr. Gillikin were performed. The system was approved. Respondent admits that a new drainfield is prohibited from being installed over an old drainfield. However, Respondent denies that he installed a new drainfield over the old drainfield on Mr. Rodriguez's property. In 1995, Respondent failed to completely remove the old drainfield before he installed the new drainfield. The soil and rocks from the old drainfield, which was not functioning, were contaminated spoil material. Because the old drainfield was not completely removed, the contaminated spoil material remained in the drainfield and was used as part of the material in the installation of the new drainfield. Leaving the contaminated spoil material in the new drainfield, prevented the sewage water from being able to percolate through the ground, which is a method of cleansing the sewage water. Without being able to percolate through the ground, the sewage water remained on the surface of the drainfield, creating a serious sanitary nuisance and health hazard. The sewage water spilled onto the street and backed-up into the triplex. Respondent was issued a Citation for Violation, Onsite Sewage Program/Sanitary Nuisance by Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Palm Beach County Health Department, enter a final order: Affirming the Citation for Violation, Onsite Sewage Program/Sanitary Nuisance and finding that Noel Sanfiel violated Section 381.0065, Florida Statutes (1995), and Rule 10D- 6.0571(4), now Rule 64E-6.015(6), and Rule 10D-6.0751(1)(l)1, now 64E-6.022(1)(l)1, Florida Administrative Code. Imposing a fine of $500. DONE AND ENTERED this 13th day of February, 2001, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 13th day of February, 2001.
The Issue Whether Respondent, Virgil Cardin, d/b/a Virgil Cardin Septic Tank Service (Respondent or Cardin), committed the violations alleged in the Administrative Complaint for Imposition of Administrative Fines and Revocation of Septic Tank Contractor License and Business Authorization, dated December 28, 2012, and, if so, what penalty should be imposed.
Findings Of Fact The Parties Petitioner is the state agency charged with the responsibility of administering the Standards for Onsite Sewage Treatment and Disposal Systems (SOSTDS). The installation, repair, and/or alteration of any septic tank system fall within the purview of Petitioner's authority. Public health concerns mandate that all septic tank systems be operated according to governing laws and rules. Respondent is a resident of the State of Florida and is registered by Petitioner to provide septic tank contracting services within the state. Respondent's registration number is SR0890865. Respondent owns and operates Virgil Cardin Septic Tank Service located in Lakeland, Florida, and the company is authorized to provide septic tank contracting services. The company's authorization number is SE093690. Septic tank contracting services are governed by SOSTDS. The Controversy It is undisputed that a permit must be obtained prior to performing repairs to a septic tank system. In Polk County (where all actions complained of occurred), a septic tank service company is required to apply for a permit before work is performed, obtain an inspection by appropriate authorities before beginning work, and complete all work in accordance with designated standards. A septic tank pump-out does not require a permit. Any work that would involve the exposure of the drain fields and/or the refitting of portions of the septic system would require a permit. The controversy in this case stems from Respondent's failure to obtain a permit before beginning repairs to a septic tank system located at 4931 Rolling Meadows Drive, Lakeland, Florida. It is undisputed that Respondent did not, in advance of starting work at the home, obtain a permit. The Arguments The Digans own a home located at 4931 Rolling Meadows Drive, Lakeland, Florida. For several years, the Digans have experienced problems with their septic tank system to the point that waste from the septic system has backed up into their home. Previously, Respondent addressed the Digans' septic tank system problems by pumping the waste from the tank, thereby eliminating pressure on the overwrought system. On or about August 24, 2012, Respondent went to the Digans' home and pumped out the septic tank. A permit for the work done that date was not required. Given the history of the problems with the Digans' system, it became apparent to the owners and Respondent that comprehensive repairs to the system were necessary. As there was no way to predict when another pump-out might be required, it was not surprising that approximately one week later Respondent returned to the Digans' property for additional work. On that date, September 1, 2012, Respondent could not pump out the Digans' tank, because his truck was already full. Instead, Respondent took a backhoe to the Digans' property and began to dig trenches for the drain field. Respondent's employee began to construct a septic drain line header pipe with drain field chamber end plates attached. Respondent exposed the Digans' septic system as if he were going to make repairs to the system. When confronted by two environmental supervisors who observed Respondent's actions, Respondent readily admitted he did not have a permit for the work. At first, Respondent stated that the homeowners could not afford permits. Later, Respondent maintained that the work he performed on September 1, 2012, did not require a permit. Petitioner maintains that Respondent went to the Digans' home on September 1, 2012, to make repairs to the septic tank system without prior inspection or a required permit. The Analysis Prior to September 1, 2012, Respondent knew or should have known that the Digans' septic tank system needed extensive repairs. Respondent had pumped out the tank several times and should have known that the system was not functioning as intended. Prior to September 1, 2012, Respondent knew or should have known that repairs to any septic tank system require an inspection and permit. On September 4, 2012, after being caught the prior Saturday on the Digans' property, Respondent applied for a permit for the repairs to the Digans' septic tank system. On September 5, 2012, a repair permit was issued for the Digans' property. On September 7, 2012, the repairs to the Digans' system were inspected and approved. There was no emergency on September 1, 2012, that necessitated repairs to the Digans' septic tank system on that date. Pumping out the Digans' tank on that date would have addressed any immediate concern. On-site inspections before septic tank systems are repaired are critical to public health because they assure that groundwater contamination is avoided, that the existing tank is sound and will function as intended, and that setbacks to other properties, wells, or systems are adequate. Respondent knew or should have known that performing any work before an inspection negates the safeguards to public health concerns. Respondent knew or should have known that the materials needed to adequately repair the Digans' septic tank system exceeded the chambers he took to the site on September 1, 2012. Digging up the Digans' system on September 1, 2012, created a sanitary nuisance. Respondent's History In the event a violation is found in this case, Respondent's disciplinary history would be relevant in considering what penalty, if any, should be imposed. To that end the following findings are made: Respondent has previously been found in violation of failing to call for a required inspection; and Respondent has previously been found in violation of practicing fraud or deceit, making misleading or untrue misrepresentations, or misconduct that causes no monetary harm to a customer.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent's authorizations to perform septic tank services be suspended for a period not less than 90 days. Additionally, it is RECOMMENDED that Respondent be required to pay an administrative fine in an amount not less than $2,000.00. DONE AND ENTERED this 6th day of May, 2013, in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 6th day of May, 2013. COPIES FURNISHED: John H. Armstrong, M.D., F.A.C.S. State Surgeon General Department of Health Bin A00 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 Jennifer A. Tschetter, General Counsel Department of Health Bin A02 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 Althea Gaines, Agency Clerk Department of Health Bin A02 4052 Bald Cypress Way Tallahassee, Florida 32399-1703 Tony C. Dodds, Esquire Law Office of Tony C. Dodds 904 South Missouri Avenue Lakeland, Florida 33803-1034 Roland Reis, Esquire Polk County Health Department 1290 Golfview Avenue, Fourth Floor Bartow, Florida 33830-6740
Findings Of Fact On December 28, 1984, Respondents Newton and Taylor applied to the Franklin County Public Health Unit for permits authorizing construction of septic tanks and drain field systems on properties they own adjoining the Apalachicola River. Respondent Newton filed two applications for two contiguous lots he owned on the river, while Taylor's application was for a parcel of property approximately 200 feet north of Newton's property, also adjoining the river. Sometime during the following two weeks, Donald Shirah, then environmental health specialist with the Franklin County Public Health Unit, a subdivision of HRS, performed a site evaluation of the sites referred to in the permit applications. The site evaluation performed by Mr. Shirah indicated that on each lot soil composition consisted of gray sand down to 45 inches, with "mottling" at 45 inches and wet soil from 46 inches to 60 inches. The soil composition reflected a wet season high water table lying at 45 inches below the ground surface. The soil report further indicated that the percolation rate of 2 units per minute was "an excellent percolation rate." Based on these tests, Shirah approved the sites for construction of the septic tanks and drain fields and established the points on the property where the septic tanks should be located. Thereafter, in May, 1985, the District II office of HRS, which directs the Franklin County Public Health Unit in matters concerning septic tanks and their installation, directed the Public Health Unit to reevaluate certain septic tank construction permits. Consequently, a letter from the Department went to all permit holders in Franklin County on August 5, 1985, including the Respondents. This letter informed them that their permits were subject to reevaluation. A considerable public furor ensued and, in an attempt to abate the discord and explain its intended action, HRS arranged a meeting with some of its public health officials and the Franklin County Commission on August 14, 1985. Respondent Newton attended this public hearing and exhibited his existing permit to HRS personnel in attendance. E. Charlton Prather, M.D., the state health officer for HRS, in attendance at this meeting, assured Respondent Newton that because his application had been made in 1984, prior to the designation of Franklin County as an "area of critical state concern," (effective July 1, 1985) and prior to the amendments to Chapter 10D-6, Florida Administrative Code, effective February 5, 1985, that his septic tank permits were still valid. Thereafter, Newton arranged with a contractor, to have the septic tanks installed, which was accomplished in approximately late October, 1985. Newton had received a letter on October 11, 1985, from the Franklin County Public Health Unit, instructing him to contact the County Public Health Unit before proceeding with construction of his septic tank systems. Notwithstanding this letter, and in reliance on Dr. Prather's assurance that his permits were valid, Newton proceeded to install his septic tank systems. The installations were completed, and Newton paid the installer for the work on or before November 5, 1985, some two weeks after installation. The installation of the systems came to the attention of the Franklin County Public Health Unit on approximately December 10, 1985, when the septic tank installer informed Gerald Briggs, the environmental health specialist with the Franklin County Public Health Unit, that Newton's septic tank systems had been installed and were ready for inspection. Mr. Briggs gave the final inspection and informed the installer that the tanks were installed in accordance with the specifications contained in the permits. He also informed the installer that he could not issue final approval of the systems because they were located within 20 feet of "marsh land" and that, because he observed standing water on or about the site, the soil conditions were such that the system would not operate properly. Mr. Briggs discussed the situation with environmental health director, John Kinlaw, who decided that the permits should be revoked because they were located within a "wetland" area as defined by the rules of the Department of Environmental Regulation; so called "jurisdictional wetlands." Mr. Briggs made measurements and examination of the soil and water conditions at the site and his measurements revealed standing water at a depth of 12 to 15 inches below the surface, contrary to the findings of Mr. Shirah, who performed the inspection which resulted in the issuance of the permits. Mr. Briggs also observed a "marsh are all visible within 20 feet of the systems characterized by a growth of "marsh grass." Mr. Briggs' inspection was made at a time shortly after the hurricane which struck this area in late November of 1985, characterized by a severe and extensive period of rainfall. Mr. Briggs also observed mottling near the surface of the soil, at all three sites, which indicates water being present intermittently, such that the soil, being alternately wet and exposed to air, oxidizes, leaving a rust colored stain. The septic tanks were installed at about a 5 1/2 or 6 foot depth. There is about 2 to 3 feet of fill sand at the site, below which the installer had to dig to place the tanks. The fill sand is underlain by muck at a depth of 4 to 6 feet below the ground surface. As a necessary part of the installation of the tanks, some of that muck had to be excavated and placed on top of the ground in the vicinity of the tanks and remained on or near the surface of the ground at the time of Mr. Briggs' inspection. The water table exists at a level of approximately 4 feet below the ground surface and when that wet muck was excavated, some of it necessarily remained visible on the surface of the sites in question. The systems constructed on Newton's lots are between 110 and 115 feet from the mean high water line of the Apalachicola River. The site description contained in the applications for the systems stated that the sites were to be 152 feet from the river. Nevertheless, there is no question that the sites are more than 75 feet from the Apalachicola River and that inspector Shirah assured the respondents that their sites were appropriately located. Indeed, he assisted in the location of them and informed the Respondents that the systems met pertinent regulatory requirements. That decision resulted in the issuance of the construction permits. Mr. Shirah established that the septic tank systems met all pertinent criteria concerning setback distances from lakes, streams, canals or other surface water bodies, including the Apalachicola River. Roger Newton, a Respondent and Bob Engle, former director of research for the Department of Natural Resources, both testified concerning their familiarity with the property in question and the general physical description and topography of the land. The general physical nature of the property in 1987 was the same as it was prior to and at the time of the issuance of the permits on January 14, 1985. They established that there was no lake, canal, stream or surface water within 75 feet of the septic tank systems or sites in question. A consent order was introduced into evidence which reveals, as a result of prior litigation in Franklin County Civil Case No. 75-55, that the Department of Environmental Regulation and the Army Corp of Engineers issued permits to the former owners of the property, which authorized them to fill the land at issue to a depth of 150 feet from the bank of the Apalachicola River westward. That fill was placed over the westward portion of this property, including the septic tank and drain field sites in question, to a depth of 2 to 3 feet. This had the result of raising the property to an elevation of approximately 10 feet above the surface waters of the Apalachicola River, which elevation dropped slightly to a road going through the middle of the lots, and remaining level thence westward to a point where the lots terminate in a marsh area. The consent order in evidence does not establish on its face that the fill was actually placed in a jurisdictional wetland area, for purposes of the Department of Environmental Regulation's jurisdiction over the landward extent of state water as defined by the vegetative index contained in Chapter 17-4, Florida Administrative Code. The testimony of a representative of the DER does not establish what dominant vegetational species might prevail on the sites in question which would render those sites within jurisdictional wetlands of the DER. The representative of the DER established that a jurisdictional wetland may be commonly referred to as a "swamp" or "marsh" and that, under prevailing policy of the DER, the fact that fill dirt has been placed on land does not render such land non-jurisdictional. Although this witness described DER's policy that issuance of a dredge and fill permit implies that the land in question is jurisdictional wetland, the fact remains that the face of the circuit court consent order in evidence does not establish that this indeed was jurisdictional wetland at the time the consent order was entered, nor at the present time. The consent order was the result of a settlement of that litigation, in effect a negotiated contract between the parties by which the dredge and fill permit was issued, in 1978. Further, although HRS purportedly has a policy that the term "surface waters," for purposes of the rules cited herein, includes within its ambit "swamps and marshes," the fact remains that in Rule 10D-6.42(38), the admitted 1985 clarification of that policy, surface water is defined as "...a recognizable permanent body of water, including swamp or marsh areas, contained within a recognizable boundary or bank..."(emphasis supplied). The septic tanks in question are not within 50 feet (for purposes of the pre-February 1985 rules) nor even within 75 feet of a swamp or marsh area which is contained within a recognizable boundary or bank. Even if marsh grass, (the species of grass has not been established) was observed growing within 20 feet of the septic tanks in question, it has not been established that was the boundary of a swamp or marsh area or other form of surface water body for purposes of the HRS rules in question. The testimony of the Petitioner's witnesses that marsh grass was observed growing close to the septic tanks does not overcome the showing by witnesses Newton and Engle that the actual water body, consisting of the marsh lying westward of the lots and disposal systems in question, was not within 75 feet of those systems. In addition to the question of the setback distance of the septic tank systems from the surface waters in question, it has not been established that this property is wetland within the DER's jurisdiction. The Petitioner purports to regulate the location of the systems by reference to Chapter 17-4, Florida Administrative Code, whereby the DER, by the use of the vegetative index, defines wetlands or the landward extent of state waters. Thus HRS seeks also to justify revocation of the permits on the basis that these tanks are located not 50 feet or less from a marsh, but rather in it. As found above however, such has not been proven to be the case. Although HRS purports to have a policy that any change which takes place on a piece of property, for which a septic tank permit has been issued, which creates a discrepancy between the actual state of the land and that represented on the permit application, renders the permit invalid, that situation has not occurred. In fact, it was shown that the fill in question has been on the property much longer than the period of time since the permit application and that the configuration and topography of the property remains the same as prior to December, 1984. Finally, it has not been proven that the surface waters observed standing on the lands of Newton and Taylor, shortly after the extensive rainfall associated with the hurricane in November, 1985, are such waters as contemplated by Rule 10D-6.046(3) or 10D-6.042(38). There has been no proof that this was other than rainfall nor that the water remained on the surface of the land in question for more than 24 hours. See Rule 10D-6.046(3), Florida Administrative Code.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is, therefore RECOMMENDED that the administrative complaints filed by the Department of Health and Rehabilitative Services seeking revocation of the septic tank construction permits issued to Jack Taylor and Roger Newton be dismissed in their entirety. DONE and ORDERED this 5th day of January, 1988, in Tallahassee, Florida. P. MICHAEL RUFF 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 5th day of January, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 86-0922, 86-1528 Petitioner's Proposed Findings of Fact: Accepted. Accepted. Accepted. 4-6. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter and contrary to the preponderant weight of the evidence. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter and not in its entirety supported by competent substantial evidence. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted, but not dispositive of material issues presented. 12-15. Rejected as irrelevant and immaterial. Accepted, but not in itself dispositive of any material issue presented. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter and contrary to the competent substantial evidence of record. Respondent's Proposed Findings of Fact: 1-6. Accepted. Accepted in part, but subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted, but not dispositive of any material issues presented. Accepted, but not in itself dispositive of any material issue presented. Accepted, but not dispositive of any material issue presented and subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted. Rejected as contrary to competent substantial evidence of record and subordinate to the Hearing Officer's findings of fact on this subject matter. 13-14. Accepted. Rejected as irrelevant and immaterial. Accepted. Accepted. Rejected as constituting a conclusion of law and not a finding of fact. Accepted. Accepted. COPIES FURNISHED: John L. Pearce, Esquire HRS District II Legal Counsel Suite 200-A 2639 North Monroe Street Tallahassee, Florida 32303 John R. Perry, Esquire Suite 200-A 2639 North Monroe Street Tallahassee, Florida 32303 J. Ben Watkins, Esquire 41 Commerce Street Apalachicola, Florida 32320 John A. Kinlaw Environmental Health Director Franklin County Public Health Unit Post Office Box 490 Apalachicola, Florida 32320 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Mr. Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 ================================================================= AGENCY REMAND ================================================================= STATE OF FLORIDA DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Petitioner, vs. CASE NO.: 86-0922 ROGER R. NEWTON, Respondent. / DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Petitioner, vs. CASE NO.: 86-1528 JACK TAYLOR, Respondent. / ORDER REMANDING TO THE DIVISION OF THE ADMINISTRATIVE HEARINGS I conclude that this case should be remanded to the Division of Administrative Hearing for a reweighing of the evidence. In Friends of Children vs. HRS, 504 So2d 1345 at 1348 (Fla. 1st DCA 1987), the Court held that where a Hearing Officer erroneously excluded evidence, the case should be remanded for the Hearing Officer to reweigh the evidence and make findings of fact on the basis of all admissible evidence. Returning to the present case, the Hearing Officer did not consider HRS exhibit Y, which he excluded as irrelevant, and the testimony of Larry Olney, an environmental specialist with the Department of Environmental Regulations, on the issue of whether the subject lots were jurisdictional land (for explanation see the rulings on exceptions number nine 9 and 11 to the findings of fact and exception number 1 to the conclusion of law). This evidence is relevant; thus, the evidence as a whole must be reweighed and findings made on whether the 75 foot setback requirement of Section 381.272(6)(c), Florida Statutes (1983) is satisfied. RULINGS ON EXCEPTIONS FILED BY THE DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES HRS excepts to the findings on page 5 of the Recommended Order concerning the statements of Dr. Prather at a meeting in August, 1985, on the grounds the statements are irrelevant. Exception number one (1) is denied as this finding simply Provides background for the case. HRS excepts to the finding in the paragraph spanning pages 6 and 7, regarding standing water. On this point as well as many others throughout the case the evidence is conflicting The Hearing Officers findings of fact are entitled to the same weight as the verdict of a jury. Gruman vs. State, 379 So2d 1313 (Fla. 2nd DCA 1980). It is the Hearing Officers function to resolve conflicts in the evidence, judge the credibility of witnesses, draw permissible inferences from the evidence, and make findings of fact; and the agency may not reject a finding unless there is no competent, substantial evidence from which the finding could reasonably be inferred. Heifetz vs. Department of Business Regulation, 475 So2d 1277 at 1281 (Fla. 1st DCA 1985). The finding to which HRS objects is supported by competent, substantial evidence; therefore, it cannot be rejected. This Order requires that the evidence be reweighed. In exception number three (3) HRS asks that the Hearing Officer's findings regarding "mottling" be clarified. Exception number three (3) is granted. The presence of mottling indicates that water stays at a certain level for a considerable length of time on a regular basis. HRS excepts to the finding on page 7 of the Recommended Order, that "the water table exists at a level of approximately 4 feet below the ground surface." The finding is based on competent, substantial evidence; therefore, it cannot be rejected. This Order requires that the evidence be reweighed. HRS excepts to the finding on page 8 of the Recommended Order, that no surface water existed within 75 feet of the septic tank systems in question. The finding is based on competent, substantial evidence; therefore, it cannot be rejected. This Order requires that the evidence be reweighed. HRS excepts to the finding that the subject lots were not DER jurisdictional wetlands. This finding cannot be rejected as it was the subject of contradictory evidence. There was evidence that the lots had been filled and were no longer swamp or marsh. This Order requires that the evidence be reweighed. In exception number seven (7), HRS maintains that the subject lands were wetlands and that there was no conflicting evidence on this point. This issue was the subject of sharply conflicting evidence. As Pointed out in exception number two (2), it is the function of the Hearing Officer to resolve conflicting evidence. This Order requires that the evidence be reweighed. HRS excepts to the finding on page 10 of the Recommended Order, that the species of marsh grass which HRS personnel identified as such were not established. Again, this Order requires that the evidence be reweighed. It is noted that several species were identified in HRS exhibit Y which the Hearing Officer ruled was irrelevant. HRS excepts to the Hearing Officer's finding with respect to HRS' reliance on the jurisdictional evaluation by DER authorized by Chapter 17-4, Florida Administrative Code. HRS does not regulate the location of on-site sewage disposal systems by reference to this chapter. Rather, HRS regulates the location of such systems by reference to Chapter 10D-6, Florida Administrative Code, and in this instance reads the terms "swamp" and "marsh", which were undefined in Chapter 10D-6, Florida Administrative Code, in pari materia with the definitions of wetlands in Chapter 17-4, Florida Administrative Code. Exception number nine (9) is granted. A determination by DER that property is wetlands under its rule is highly relevant to whether the property is swamp or marsh under the HRS rule. HRS excepts to the statement in the Recommended Order that HRS has a policy that any change which takes place on a piece of property, for which a septic tank permit has been issued, which creates a discrepancy between the actual state of the land and that represented on the permit applicant, renders the permit invalid. This is not HRS' policy. This portion of exception number ten (10) is granted. Regarding the Hearing Officer's finding on the extent of surface water, again the evidence was conflicting. HRS objects to the finding in the conclusions of law section, that HRS has "changed" its interpretation of the rules regarding permitting of on-site sewage disposal systems in DER jurisdictional areas. It has been and remains HRS' policy to deny the permitting of such systems in DER jurisdictional areas. This is a sound policy as it is likely to be very unusual that land which is "wetlands" under the DER rule would nevertheless meet the criteria for installation of a septic tank under HRS rules. HRS is obligated to enforce its own rules, Section 120.68(12)(b), Florida Statutes; and if the facts are such that a septic tank is lawful under HRS statutory and rule authority it must be approved. While not applicable to this case, I direct that serious consideration be given to amending the HRS rule to adopt by reference the DER rule. The Apalachicola River is a fragile and irreplacable jewel in Florida's ecological crown. If that river and the bay nourished by it are destroyed it is likely to be caused by the cumulative effect of many small decisions, each of which, individually have an almost imperceptible effect. The enforcement of HRS' septic tank rules will hopefully help prevent loss of the river. Exception number eleven (11) is granted. EXCEPTIONS TO CONCLUSIONS OF LAW HRS excepts to the Hearing Officer's ruling excluding from evidence HRS exhibit Y, the DER jurisdictional report. This exception is granted as the exhibit is highly relevant on the issue of whether the septic tanks were installed in or within 75 feet of marsh or swamp surface water areas. HRS excepts to the conclusion that under the rules prevailing at the time the applications for permits were filed, a 50 foot setback was required. The statutory requirement was 75 feet; thus, the rule was repealed by implication. Section 381.272(6)(c), Florida Statutes (1983). This exception is granted. HRS excepts to the conclusion that HRS was attempting to expand its jurisdiction of wetlands. See the ruling on exception number eleven (11) to the findings of fact. Here HRS further argues the jurisdictional issue. See the ruling on exception number eleven (11) to the findings of fact. HRS maintains that the Hearing Officer concluded that the high water line of the swamp or marsh could not be determined. From a review of the transcript and exhibits it is clear that conflicting evidence was received on the setback issue and that findings were made. This Order requires that the evidence be reweighed. HRS excepts to the conclusion that the permits must be honored because they were not shown to contain knowingly false or misleading information. The decision on these permits must be based on application of the setback law; thus, this exception is granted. Here HRS further argues the jurisdictional issue. See the ruling on exception number eleven (11) to the findings of fact. Based on the foregoing, it is adjudged that this case be remanded to the Division of Administrative Hearing for further proceedings consistent with this Order. DONE and ORDERED this 15th day of February, 1988, in Tallahassee, Florida. Gregory L. Coler Secretary Department of Health and Rehabilitative Services Assistant Secretary for Programs COPIES FURNISHED: John R. Perry, Esquire District 2 Legal Counsel 2639 North Monroe Street Suite 200-A Tallahassee, Florida 32303 J. Ben Watkins, Esquire WATKINS & RUSSELL 41 Commerce Street Apalachicola, Florida 32320 Michael Ruff Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 John L. Pearce, Esquire District 2 Legal Counsel 2639 North Monroe Street Suite 200-A Tallahassee, Florida 32303 John A. Kinlaw Environmental Health Director Franklin County Public Health Unit Post Office Box 490 Apalachicola, Florida 32320 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing was sent to the above-named people by U.S. Mail this 16th day of February, 1988. R. S. Power, Agency Clerk Assistant General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32299-0700 (904)488-2281 ================================================================= ORDER DECLINING REMAND =================================================================
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 issue addressed in this proceeding is whether Respondent should be fined for violating provisions of Chapters 381, 386 and 489, Florida Statutes, governing septic tank installation and licensure.
Findings Of Fact On August 3, 1989, and again in March, 1992, Respondent was hired by Janet Thompson to perform septic tank work on her septic tank system located at her home at 3168 Pins Lane, Gulf Breeze, Santa Rosa County, Florida. Her system was backing up into her house. Ms. Thompson contacted Mr. Burkett through his advertisement for Working Man Septic Tank in the Southern Bell Yellow Pages. Mr. Burkett recommended that a new drainline or finger be added to her septic system. Mr. Burkett did put in a new finger. However, the new finger was incorrectly installed, in that the drainline exceeded the maximum allowable width and did not have the minimum depth of aggregate in violation of the Rules of the Department regarding the installation of drainlines for septic tank systems. Mr. Burkett's work seemed to solve Ms. Thompson's backup problem. However, a few months later her septic tank system began backing up again. Ms. Thompson again called Mr. Burkett to come and fix the problem. Mr. Burkett recommended another drainline in an "L" shaped configuration. Mr. Burkett installed the new finger. However, he again installed the line incorrectly and violated the Department's Rules, in that the drainline exceeded the maximum allowable width and did not have the minimum depth of aggregate. Ms. Thompson's septic tank problem was corrected for a few months and then began backing up once more. Ms. Thompson called another contractor who finally solved the problem by properly installing an extensive drainline system by building the low area of the drainfield and utilizing three truckloads of aggregate. In May, 1990, William Davenport hired Respondent to do some preventive installation of a new drainfield to the septic tank system located at his home at 6220 East Bay Boulevard, Gulf Breeze, Santa Rosa County, Florida. Mr. Burkett only performed part of the work for which he was hired. The work Respondent did perform was incorrect and violated the Department's Rules regarding the installation of drainfields and lines for septic tank systems. Specifically, the work performed by Respondent was incorrect in that the drainfield exceeded the maximum allowable width, no barrier of building paper or other suitable material was installed to protect the infiltration bed and the aggregate did not meet the minimum depth required. Rules 10D-6.056(4)(a), (d) and (e), Florida Administrative Code. Finally, throughout the time period of the repair work on the Thompson and Davenport properties Respondent was not registered or licensed by the Department to perform such services and was advertising to provide such services under the name "Working Man Septic Tank Co." in the Southern Bell Yellow Pages. Both the lack of a registration and the advertisement of an unlicensed business violate the Rules of the Department. Rule 10D-6.075(4)(a), Florida Administrative Code.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is, accordingly, RECOMMENDED, that the Department impose on Respondent a fine of $2,000.00. DONE and ORDERED this 9th day of November, 1994, in Tallahassee, Florida. COPIES FURNISHED: Frank C. Bozeman, III Asst. District Legal Counsel D H R S 160 Governmental Center Pensacola, FL 32501 Kenneth P. Walsh Attorney at Law P. O. Box 1208 Shalimar, FL 32505 Robert L. Powell, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, FL 32399-0700 Kim Tucker General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, FL 32399-0700 DIANNE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of November, 1994.
