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 to be resolved in this proceeding concerns whether the Petitioner violated the provisions of Chapter 381, Florida Statutes, and Chapter 64E-6, Florida Administrative Code, referenced herein, by allegedly illegally connecting a second dwelling to an existing, approved septic system.
Findings Of Fact On January 17, 2002, the Petitioner was given a written Notice of Violation and advised that an illegal sewer connection from a new or second mobile home on her property to her existing sewer system, serving her primary residence would have to be disconnected. It was an illegal second connection on a single, permitted sanitary sewer system. The second home was not occupied and could not be legally occupied until the proper sewer connection and relevant permitting was obtained. On January 30, 2002, the inspector again visited the premises and determined the illegal connection to still exist and the Petitioner was then advised that the illegal connection would have to be disconnected. On February 28, 2002, the inspector returned and found that the illegal connection had been restored to the existing system. He observed a person hurriedly disconnect the system as he approached. The relevant pipe joint had been left un-glued so that it could be readily connected or disconnected. He again notified the Petitioner, in person, that the illegal connection would have to be disconnected. The Respondent cited the Petitioner for the illegally connected sewer system and seeks to impose a $500.00 fine. The Petitioner elected to formally dispute the position of the Respondent agency and pursued a formal hearing to contest the allegations. The Petitioner failed to actually appear at hearing and contest the evidence adduced by the Respondent agency. That evidence is credible and is accepted as unrefuted and supportive of the above Findings of Fact.
Recommendation RECOMMENDED that a final order be entered by the State of Florida Department of Health denying the Petition of Shirley Davis in its entirety and that a final order be entered imposing a $500.00, fine for the violations described in the above Findings of Fact and Conclusions of Law. DONE AND ENTERED this 16th day of September, 2002, 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 Clerk of the Division of Administrative Hearings this 16th day of September, 2002. COPIES FURNISHED: Shirley Davis 140 West Putnam Grove Road Oak Hill, Florida 32759 John D. Lacko, Esquire Department of Health 420 Fentress Boulevard Daytona Beach, Florida 32114 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue Whether Rules 10D-6.072(3)(d), (e), and (f), Florida Administrative Code, are an invalid exercise of delegated legislative authority on the ground that these three rules enlarge, modify, or contravene the specific provisions of law implemented, in violation of section 120.52(8)(c), Florida Statutes (Supp. 1996).
Findings Of Fact Petitioner applied for septic tank contractor registration in July 1996. On September 6, 1996, the Respondent issued its intent to deny his application on the grounds that he failed to meet the required qualifications listed in Rules 10D-6.072(3)(d), (e), and (f), Florida Administrative Code. Rule 10D-6.072(3)(d) provides that an applicant is not qualified to take the registration exam to become a licensed septic tank contractor if a previous registration issued by the Respondent has been revoked within the last 5 years. Rule 10D-6.072(3)(e) provides that an applicant is not qualified to take the registration exam to become a licensed septic tank contractor if he has a disciplinary case pending with the Respondent involving septic tank contracting. Rule 10D-6.072(3)(f) provides that an applicant is not qualified to take the registration exam to become a licensed septic tank contractor if he has been convicted of a crime in any jurisdiction which is directly related to the practice of contracting. Petitioner filed a request for a hearing, in which he alleged Rules 10D-6.072(3)(d), (e), and (f) constitute an invalid exercise of delegated legislative authority in that these rules enlarge, modify, or contravene the specific provisions of law implemented, in violation of section 120.52(8)(c), Florida Statutes (Supp. 1996). Rules 10D-6.072(3)(d), (e), and (f) formally took effect on January 3, 1995. There is no material failure to comply with the procedural requirements of Chapter 120, Florida Statutes, in the promulgation of these rules. 9. Sections 154.06, 381.0011, 381.006, 381.0065, 489.553, and 489.557, Florida Statutes, grant the Respondent specific authority to adopt rules implementing the statutes. Petitioner does not dispute the Respondent’s rulemaking authority. Rules 10D-6.072(3)(d), (e), and (f) implement sections 154.01, 381.001, 381.0011, 381.0012, 381.0025, 381.006, 381.0061, 381.0065, 381.00655, 381.0066, 381.0067, Part I of Chapter 386, and Part III of Chapter 489, Florida Statutes. Part III of Chapter 489, Florida Statutes (Supp. 1996), is the chapter governing septic tank contractor registration. Chapter 10D-6, Florida Administrative Code, are the rules pertaining to Standards for Onsite Sewage Treatment and Disposal Systems, which include septic tank systems. A person who becomes a registered septic tank contractor has the authority to install, maintain, repair, and perform site evaluations for repairs of onsite sewage treatment and disposal systems. There are an estimated 1.4 million septic systems in use in Florida. The onsite sewage treatment program impacts public health in that it prevents and corrects sanitary nuisances; prevents pollution to groundwater, which is the primary drinking water source in the state; prevents pollution to surface water; and eliminates risks to public health from exposure to improperly treated human waste. Untreated or improperly treated human waste contains many significant disease-causing organisms injurious to human health. A “sanitary nuisance” is the “commission of any act, . . . or the keeping, maintaining, propagation, existence, or permission of anything, . . . by which the health or life of an individual, or the health or lives of individuals, may be threatened or impaired, or by which or through which, directly or indirectly, disease may be caused.” Section 386.01, Florida Statutes (1995). “Improperly built or maintained septic tanks” and “untreated or improperly treated human waste” constitute “prima facie evidence of maintaining a nuisance injurious to health.” Section 386.041(1), Florida Statutes (1995). The training, regulation, and registration of septic tank contractors, who install and repair such systems, is directly related to public health. An improperly installed or repaired system may result in untreated human waste or raw sewage either surfacing on the ground, backing up in the owner’s house/business, contaminating groundwater, and contaminating nearby surface water. The Respondent regularly receives complaints from citizens detailing installation problems, including complaints regarding improper workmanship, the premature failure of their septic tank system resulting in sewage on the ground around their house, and the contractor’s failure to honor his/her warranty. The impetus behind regulating contractors came primarily from the industry itself (i.e., the Florida Septic Tank Association). The qualification outlined in Rule 10D-6.072(3)(d), which provides that an applicant is not qualified to become a registered septic tank contractor if the Respondent has revoked his prior septic tank registration within the last 5 years, protects the public from sanitary nuisances caused by the improper installation and repair of septic tank systems. This qualification is, moreover, an indicator of an applicant’s “good moral character.” The qualification outlined in Rule 10D-6.072(3)(e), which provides that an applicant is not qualified to become a registered septic tank contractor if the applicant has a disciplinary case pending with the Respondent involving septic tank contracting, fits into what the septic tank contracting program under chapter 489 and Chapter 10D-6 is designed to accomplish. This qualification protects the public by denying licenses to those persons who have demonstrated they are not complying with the rules or statutes. The qualification outlined in Rule 10D-6.072(3)(f), which provides that an applicant is not qualified to become a registered septic tank contractor if he has been convicted of a crime in any jurisdiction which is directly related to the practice of contracting, fits into what the septic tank contracting program under Chapter 489 and Chapter 10D-6 is designed to accomplish. This qualification protects the public by denying licenses to those persons who are not law abiding and do not follow the standards. “Good moral character” is not defined in Chapter 489, Florida Statutes. Each of the three qualifications established by Rules 10D-6.072(3)(d), (e), and (f) make specific or interpret an individual’s good moral character. The Department’s statutory authority for Rule 10D- 6.072(3)(d), Rule 10D-6.072(3)(e), and Rule 10D-6.072(3)(f) comes from: (a) section 489.553(2), which requires the Department to “provide qualifications for applicants;” (b) section 489.553(4)(a), which says the applicant “must be of good moral character’” (c) section 489.558(2), which says the Department may deny registration if it determines the applicant “has violated any provision of this part [Part III of Chapter 489];” and (d) section 489.556, which authorizes the Department to suspend and revoke licenses. The Joint Administrative Procedures Committee (JAPC) has neither filed an objection nor voted on an objection to the three rules at issue in this case. Although a staff member of JAPC, in response to Petitioner’s complaint, recently made a preliminary inquiry into the validity of these rules, the committee did not adopt the staff member’s recommendation.
Findings Of Fact At all times material to this proceeding, Respondent, James A. Tipton ("Tipton"), has been a registered professional engineer in the State of Florida, having been issued license number PE 0018147, which expires on January 31, 1987. Tipton employed the services of Robert Corno as a field man for taking samples to establish soil profiles, site characteristics and existing water tables for septic tank applications prepared and filed by Tipton. Corno had actual authority from Tipton to conduct tests, site examinations and evaluations and to submit his findings to Tipton. Sometime before April 8, 1985, Tipton was retained to perform professional engineering services in connection with the preparation and filing of an application for a septic tank on lot 168, block 3, Charlotte Ranchettes Subdivision in Charlotte County ("lot 168"), owned by Joseph Duseo. Tipton sent Corno to lot 168 on April 13, 1985, to examine and evaluate the site, take soil samples and make other observations that would have to be reported to Tipton in connection with Tipton's work. Corno completed his work and reported to Tipton. Corno did not bring Tipton the actual soil samples. On April 8, 1985, Duseo's general contractor told Corno about a well on lot 168. When Corno visited the site, he observed the well. The well is an artesian well, about 3 feet high and six inches in diameter. The well is an irrigation-type well and is non-potable. The well was within fifty feet of the drain field of the septic system Tipton proposed for lot 168. The well also is approximately 5 to 10 feet from the north property line. Corno knew at the time of his visit to the site that the well was not plugged. However, Corno understood that Duseo was in the process of arranging with the Southwest Florida Water Management District to have the well plugged. Corno did not tell Tipton about the well before Tipton prepared and filed the application for the proposed septic tank. Therefore, Tipton did not know there was a well on lot 168 when he was preparing the application for the septic tank permit. Tipton did not ask Corno any questions calculated to reveal whether there was a well on lot 168. Corno held the belief that non-potable wells, especially those that were to be plugged, did not have to be shown on septic tank permit applications. There was evidence about a survey of lot 168 certified by a land surveyor employed by a firm of professional engineers which did not show any well on lot 168. However, Tipton did not have access to the survey before he prepared the septic tank permit application on lot 168. (The survey bears two dates, April 17 and April 18, and was not signed until April 25, 1985.) On or about April 15, 1985, Tipton signed and certified the septic tank permit application for lot 168. The application was filed at the Charlotte County Public Health Unit (Health Department) on April 16, 1985. The application indicates "none" in the space provided to indicate the "location of wells within 75 feet of property lines." The well on lot 168 is an important consideration which should have been depicted on the application. Septic tank drain fields could pollute a well. Even if Tipton had known that the well was supposed to be plugged, it was not plugged until July 1985. Failure to show the well was a serious omission. Tipton was negligent for relying on Corno without having an understanding whether Corno would report to him the existence of non-potable wells within 50 feet of the drain field of a septic system or within 75 feet of a property line if the well was likely to be plugged. If he had used due care, Tipton would have either made explicit inquiry of Corno sufficient to reveal the existence of the well or ascertained from Corno in advance that he would report to Tipton the existence of any well within 50 feet of the drain field of a proposed septic system or within 75 feet of property lines. Having failed to exercise due care, Tipton did not realize that Corno would not be reporting to him the existence of a non-potable well which was supposed to be plugged in the future. A few days after he filed the application, Tipton learned about the well on lot 168. But at about the same time, Duseo and his contractor began discussing construction alternatives that would change the septic system and require a new septic tank application. Therefore, Tipton did not immediately amend the April 15 application to show the well. In mid-May, Tipton filed a new application for the different septic system. The new application, not in issue in this case, showed the well. The application also contained a soil profile which probably is not accurate. However, Tipton's soil profile simply reflects the information reported to him by Corno. While Tipton's soil profile does not correspond with soil profiles from other test holes dug in the area of the proposed drain field by the Health Department and an expert witness, the information Corno reported to Tipton was well within the realm of possibilities for soil in the area of lot 168. Corno generally seemed to be a qualified and experienced field man who used proper tools to do his job. There was nothing suspicious about Corno's information, and there was no reason for Tipton to suspect that it was false or fraudulent. While it is the better practice for a professional engineer to require his field man to deliver the actual soil sample to support a soil profile report, this is not required of professional engineers if there is no reason to suspect that a field man's soil profile report is false or fraudulent. On the application, Tipton estimated the high water table on lot 168 at 2.2 feet below existing grade. While other expert witnesses estimated a higher high water table, the evidence did not prove that Tipton was negligent in his estimate. Some of the conflicting estimates were Health Department estimates which, the evidence indicates, tend to be high to be on the safe side. Others were estimates on permit applications which may have been influenced by the Health Department's desires and which may not reflect the engineers' actual estimates. Of all the estimates, only Tipton's was supported by testimony how the estimate was derived. (Tipton used what he called Darcy's Law.) Finally, Petitioner's own expert witness testified that Tipton's high water table estimate could not be called negligent.
Recommendation Based upon the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Board of Professional Engineers enter a final order holding Respondent, James A. Tipton, guilty of negligence in the practice of engineering under Count I of the Amended Administrative Complaint (but dismissing Count II of the Amended Administrative Complaint) and imposing an administrative fine in the amount of five hundred dollars ($500.00). RECOMMENDED this 19th day of May, 1986, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of May, 1986. COPIES FURNISHED: Ms. Sarah Logan Executive Director Board of Professional Engineers 130 North Monroe Street Tallahassee, FL 32301 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 Salvatore A. Carpino, Esq. General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 Wings Slocum Benton, Esq. Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 John Charles Heekin, Esq. C-1 Ocean Plaza 21202 Ocean Blvd. Port Charlotte, FL 33952 APPENDIX The following are specific rulings on all the parties' proposed Findings of Fact as required by Section 120.59(2), Florida Statutes (1985). Rulings on Petitioner's Proposed Findings of Fact Petitioner's Proposed Findings of Fact 1 through 3, 9, 10, 13 through 16, 19, 21 and 22 are accepted as substantially factually accurate and are incorporated in the Findings Of Fact in the same or similar format to the extent necessary. Petitioner's Proposed Finding Of Fact 4 would have been included in paragraph 1 above except that the last sentence is unnecessary. Petitioner's Proposed Finding Of Fact 5 would have been included in paragraph 1 above except that the third sentence is unnecessary. Petitioner's Proposed Findings Of Fact 17, 18 and 27 would have been included in paragraph 1 above except that they are unnecessary. Petitioner's Proposed Finding Of Fact 26 would have been included in paragraph 1 above except that whether Alligator Creek is a "significant" drainage feature would depend on the definition of "significant" which was not established by the evidence. In addition, Petitioner's Proposed Finding Of Fact 26 is unnecessary. Petitioner's Proposed Findings Of Fact 6 through 8 are rejected as conclusions of law and because the last sentence of Proposed Finding Of Fact 6 is cumulative. Petitioner's Proposed Finding Of Fact 11 is rejected because the first sentence is contrary to the greater weight of the evidence and Findings Of Fact and the second sentence is, subordinate to Findings Of Fact. Petitioner's Proposed Findings Of Fact 12, 20, 23 and 24 are rejected as subordinate to Findings Of Fact. Petitioner's Proposed Finding Of Fact 25 is rejected because the first sentence is subordinate to Findings Of Fact and the second sentence is contrary to the greater weight of the evidence. Rulings on Respondent's Proposed Findings of Fact. Respondent's Proposed Findings Of Fact 1 through 3, 5 and 12 are accepted as substantially factually accurate and are incorporated in the Findings Of Fact in the same or similar format to the extent necessary. Respondent's Proposed Finding Of Fact 4 would have been included in paragraph 1 above except that the second sentence is unnecessary. Respondent's Proposed Finding Of Fact 8 would have been included in paragraph 1 above except that it is unnecessary. Respondent's Proposed Finding Of Fact 9 would have been included in paragraph 1 above except that it is in part unnecessary. Respondent's Proposed Finding Of Fact 11 would have been included in paragraph 1 above except that it is contrary to the greater weight of the evidence and Findings Of Fact that there is "no way" for an engineer to avoid relying on a field man's error such as Corno's error in omitting to report the existence of the well. Respondent's Proposed Finding Of Fact 14 would have been included in paragraph 1 above except that it is irrelevant. Respondent's Proposed Finding Of Fact 6 is rejected because it is subordinate to Findings Of Fact and is unnecessary. Respondent's Proposed Finding Of Fact 7 is rejected because it is simply a recitation of conflicting evidence, some of which is accepted but some of which is rejected as contrary to the greater weight of the evidence and Findings Of Fact. Specifically, it was found that Corno did not tell Tipton about the well and that Tipton did not have the survey in his possession at the time the application was filed. Respondent's Proposed Finding Of Fact 10 is rejected as contrary to the greater weight of the evidence and Findings Of Fact. Specifically, the evidence supported a finding of negligence on the part of Tipton for failure to utilize due care and to have due regard for acceptable standards of engineering principles whether or not practicing in Charlotte County. In addition, Mr. Murray's expert testimony must be disregarded because it was given upon a hypothetical assumption that an engineer had possession of a sealed survey showing no improvements on the property as the time of the application, a fact not proved by the evidence. Respondent's Proposed Finding Of Fact 13 is rejected as contrary to the greater weight of the evidence and Findings Of Fact. Specifically, personnel in the Health Department, part of the "general public," were misled. (The general public also reasonably could have been led to a fallacious conclusion, but there was no "misconduct" on Tipton's part. See Conclusions of Law.) ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF PROFESSIONAL ENGINEERS DEPARTMENT OF PROFESSIONAL REGULATION, FLORIDA BOARD OF PROFESSIONAL ENGINEERS Petitioner, vs. DOAH CASE NO. 85-2684 DPR CASE NO.0058289 JAMES A. TIPTON, Respondent. /
Findings Of Fact Rayco Properties, Inc. d/b/a Woody's Septic Tank Service is a company authorized by the State of Florida to perform septic tank construction and repair services. All of its contractors and other employees have practiced in the septic system business for many years. The registered contractor, who is the company qualifier, is the person responsible for all contracting services performed by the septic company and for compliance with the applicable regulatory statutes and rules. Donald P. Roberts is a registered septic tank contractor for Woody's Septic Tank Service. At all times material to these causes, he was the company's sole qualifier. At all times material, he was responsible for obtaining all necessary permits for the company. DHRS is the agency responsible for septic contractor registration, septic tank company authorization, and the enforcement of the statutes and rules pertaining to registration and authorization pursuant to Chapters 381 and 489, Part III, F.S. and Chapter 10D-6 F.A.C. This includes the authority to cite, fine, and to suspend or revoke registrations and authorizations. Donald P. Roberts has never previously been cited by the agency. Before 1991, permits were not required for repairs to septic systems. However, at all times material to these causes, repair, installation, and abandonment permits had to be obtained from DHRS, usually through its local units in the respective county public health unit offices. These offices take septic system permit applications, perform site evaluations, issue permits, and perform final inspections. At all times material, no permits were required for replacing dosing pumps, fixing cracked dosing tanks, maintenance of existing systems or service of existing systems. No permits were necessary for replacing a D (or distribution) box, which is a non-mechanical, non-electrical item that serves as a distribution point for pipes. At all times material, the act of installing a dosing tank was a repair that required a permit. At all times material, the act of abandoning a septic tank (pumping it out, punching a hole in it, filling it with dirt and covering it or hauling it away) also required a permit. The standard operating procedure for obtaining a septic system permit is as follows: 1) the contractor or landowner submits a permit application with a plot/site plan to the agency's county office; 2) the agency conducts a site evaluation, sometimes including soil borings and/or a percolation test; 3) the agency reviews and issues the permit; 4) the contractor performs the permitted work; 5) the contractor calls the agency for inspection before covering up with earth; 6) agency inspection occurs and the project is approved OR the contractor is told of a violation, perhaps cited therefor, and must fix any problems pointed out by the agency inspector. If there is a violation to be corrected, the contractor is supposed to call DHRS for re-inspections until the problem is solved and the job is approved by the agency. Some jobs are so routine that some county offices do not do a site inspection before septic system work is done or reinspect after septic system work is done. This appears to be discretionary within the local office. However, if a violation is noted, the problem must be corrected and reinspected or negotiated out. See Finding of Fact 15. An approved plot/site plan becomes part of the permit when the permit is issued, and contractors are expected to adhere to the combined items. Permits state the requirements for the project or job. If a contractor experiences problems on a particular job, such as a well that does not show up on the plot/site plan, he is expected to contact the local public health unit to try to resolve the issue. "Resolution" has traditionally been to revise the plot/site plan or modify the permit. In past years, this has been an informal procedure, sometimes accomplished by telephone calls from the field, sometimes by negotiations in the public health office. All but one of the alleged violations (the Mahalik property) in these causes arose after DHRS decided to strictly require contractors to stop work and apply for and receive a formal modification of the permit or a new permit when unforeseen problems were encountered on any particular job. This procedure was codified in new Rule 60D-6.044(5) F.A.C., effective January 3, 1995. At approximately the same time, DHRS also adopted a policy of forbidding its personnel to discuss such field problems with, or to issue permits to, anyone other than the qualifying registered contractor for each authorized septic tank company. The agency has pointed to no specific statute or rule which provides that only a qualifying registered contractor may pull a DHRS permit or which forbids DHRS personnel discussing modifying a permit with any other company employees. However, it is clear that only registered contractors may pull permits. Two exceptions are recognized: A landowner or homeowner may pull a permit for septic system work with septic system contractors as their "agents"; and in locations where DHRS has an agreement with a city or county plumbing permit office, DHRS acknowledges the local plumbing permits and does not require owners or plumbers to also pull a separate septic system permit from DHRS's local public health unit. I. Case No. 95-5973 Deltona Hills Golf & Country Club Respondents applied for a permit to do repairs to a septic system for Deltona Golf & Country Club on August 7, 1995. A dosing tank is a mechanical device which lifts wastewater to a drainfield. DHRS issued a permit to Respondent to replace the dosing tank with a 900 gallon tank. The original tank being replaced was a 50 gallon tank. Respondents properly abandoned the existing 50 gallon dosing tank and installed the high water alarm, but they installed a 750 gallon tank, contrary to the express terms of the permit. Travis Vickers, then DHRS's Environmental Specialist in the Volusia County Health Unit, ultimately cited Respondents for not complying with the permit and for not calling for re-inspection after the discrepancy in tank size was brought to their attention. Respondents' reason for installing the 750 gallon tank was that they had used a 3:1 ratio to the drainfield which is codified in the agency rules. Thereby, they determined that a 714 gallon tank would be the ideal size tank to install. Then they simply installed the next largest size tank without reference to the permit. Respondents' employees also maintained that when Mr. Vickers notified them they had installed the wrong size tank, they contacted someone else in the local county public health unit and that person orally approved the smaller size tank they had already installed. Therefore, they did not call Mr. Vickers again for re-inspection. The person who supposedly gave the oral authorization was not called to testify, and no written permit modifications or amendment were made, as required by the agency rules then in effect. In this light, Respondents' excuses for failing to install the 900 gallon tank according to permit specifications and failure to call for a re-inspection are not credible. Therefore, it is clear that Respondents installed a smaller tank contrary to the permit specifications and received no modification of permit as required by agency rules in effect at the material time. In making the foregoing findings of fact, I have not overlooked the fact that there are several ways to calculate the appropriate size of a dosing tank; that during his testimony, Mr. Vickers, himself, demonstrated at least two ways of calculating; or that Mr. Vickers' 900 gallon figure on the permit arose in part from considerations in addition to the published agency rules, which additional considerations were the result of workshops with septic system contractors and DHRS personnel which had been reduced to written form in a document nicknamed "the memo from hell," to which Respondent had no access in August 1995. However, that memorandum was designed to help DHRS personnel interpret the code and issue the permit. Its use by agency personnel in issuing a permit does not absolve the contractor of the responsibility to install the system according to the permit as issued, nor does it allow the contractor to unilaterally recalculate tank capacity at will on some other basis. At Deltona Golf & Country Club, Respondents simply did not follow the permit requirements or replace the wrong size tank and call for re-inspection. The fact that Respondents were able to demonstrate alternative methodologies of computation does not change those salient facts. Case No. 95-5973 Pine Street, Enterprise Florida a/k/a the Gleasons' Job Respondents applied for a repair permit for 450 Pine Street, Enterprise, Florida. Mr. and Mrs. Gleason, referred to by some witnesses as "the homeowners," were actually leasing the property. DHRS issued the permit to Respondents on October 3, 1995. It was valid for 90 days. The repair job occurred during a rainy period when the water table was high. Respondents had to drill wellpoints to lower the water table. Further, they were hindered by rain, mud, muck, and debris on the property. A two days' job turned into 15 days' work. Respondents finally installed the drainfield in a slightly different location than the approved location shown on the plot/site plan. Although contrary to the permit, Respondents' installation met minimum 10D-6 F.A.C. requirements, including those for setbacks. Respondents' employees testified that they chose to place the drainfield in an unpermitted location so as accommodate the Gleasons' urgent need for a septic system, because they considered the different location necessary to comply with Chapter 10D-6 F.A.C.'s setback requirements, and because the northeast corner where the drainfield had been permitted was covered with too much muck, and too many stumps, old tires, and pieces of tin and fencing to proceed there. In the experience of Respondent Donald P. Roberts, and Willie Suggs and Jerry Thompson, who also are registered septic contractors, drainfields are not always installed according to the plot/site plan, but the location may be negotiated with DHRS prior to inspection. Respondents claimed to have received oral authorization to relocate the drainage field from an official in the local public health unit, but that person did not testify. Also, Respondents admitted they never applied for a permit modification in writing or obtained an amended permit, as required after January 3, 1995. Therefore, the concept of an oral permit modification is not credible. See, Findings of Fact 15-16. Mr. Vickers inspected the work performed by Respondents on October 17, 1995. He arrived five hours late, creating bad feelings in Respondents. On October 18, 1995, Mr. Vickers notified Respondents that they had located the drainfield in a different area than the area shown on the plot/site plan and approved by the permit. After the violation notice was issued, Mr. Vickers refused to talk to anyone associated with the Respondent company except Donald P. Roberts, the qualified registered contractor, thereby creating further bad feelings in Respondents. To put it mildly, communication between the parties broke down completely. The Gleasons had sent a demand that Respondents complete the Pine Street project by October 25, 1995, but then, approximately October 18, 1995, they hired Acme Septic to complete the project. On October 19, 1995, Acme pulled a DHRS permit for the same repair project in which Respondents were mired at the Pine Street location. Acme then installed the drainfield in the same general area as shown on Respondents' permit's original plot/site plan. In doing so, Acme used Respondents' materials and built on their prior work. Acme successfully installed the drainfield as required by the permit and all agency rules. Under the circumstances, Respondents felt they had no duty to call Mr. Vickers for re-inspection of their discarded work. Despite considerable use of the word "abandonment," Respondents technically remain charged only with failure to comply with the permit and failure to call for re-inspection on the Pine Street Job. Case No. 96-0573 Avocado Street a/k/a The Hale Project The Avocado Street Project was a private residence to which Respondents were originally called to do repair work on a septic system. Many septic repairs do not require a permit. See Findings of Fact 8- Also, repair permits are not required where a problem is discovered on a larger project which has already been permitted, but if contractors discover a problem during the course of an unpermitted repair, which problem would otherwise require its own permit, contractors were expected, post-January 3, 1995, to stop work and obtain an (amended) permit. See Rule 10D-6.044(5) F.A.C. and Finding of Fact 16. Replacement of "like kind" parts of a dosing tank such as a pump, do not require a permit. Repair of a crack in a dosing or septic tank does not require a permit. Replacement of an entire dosing tank or septic tank unless there is already an umbrella permit does require a new permit. See above, Findings of Fact 9 and 10. It is not standard practice for DHRS to inspect/evaluate the site before a replacement permit or an abandonment permit is issued. Such inspections are discretionary in practice and such permits are often issued on the spot at the time of application. See Findings of Fact 12 and 13. At Avocado Street, Respondents pumped out the Hales' septic tank and discovered that the dosing pump was not working. Respondents replaced the pump, but also discovered that the existing dosing tank was inadequate. Due to the inadequacy of the existing dosing tank, dosing pumps repeatedly had burned up. Respondents sent an employee to pull a DHRS permit for replacement of the existing dosing tank, which permit they felt could be pulled immediately. Then they proceeded, without permit in hand, to replace the dosing pump and install a larger dosing tank. Andrew Trapp, DHRS' Environmental Health Specialist in the Orange City office, became aware of the Avocado Street situation only because of a phone call from an employee of the Respondent company asking if a permit had ever been issued. Because a permit never had been issued, Trapp's suspicion was aroused. Therefore, he performed the discretionary onsite inspection and found the new dosing tank. The Avocado Street work of Respondents did not represent a public nuisance. The agency intentionally and violationally issued an after-the-fact permit to Mr. Hale with an employee of Respondent as Mr. Hale's agent on August 23-24, 1995. Any other suggested dates for this permit application are rejected as computer error. The project was reinspected by agency personnel who oversaw Respondents' employees repair a tank leak. DHRS finally approved the whole project. II. Case 96-0573 Clyde Morris Boulevard a/k/a The IWS or BFI Job The Clyde Morris Boulevard property was leased by IWS/BFI from the City of Daytona Beach. Mastercraft Plumbing was the prime contractor responsible for connecting an existing septic system on the Clyde Morris Boulevard property to a public sewer system. Mastercraft hired Respondents to handle the abandonment of a septic tank which Mastercraft was replacing. Abandonment is more fully described above in Finding of Fact 10. Although DHRS presented some hearsay to the effect that Mastercraft expected Respondents to obtain the DHRS abandonment permit, there is no direct evidence for such hearsay to support or explain. Contrary evidence was presented that persons within the IWS/BFI hierarchies had led Respondents to believe that Mastercraft had pulled the necessary DHRS permit or an umbrella plumbing permit which would cover Respondents' abandonment activities. See, Finding of Fact 19. However, there is no direct, competent, or conclusive evidence one way or the other. Respondents' actual abandonment work was completed on or about April 10, 1995. Respondents charged Mastercraft for the work but not for pulling any abandonment permit from DHRS, because Respondents did not pull any such permit. Once Respondents discovered that Mastercraft had not pulled the DHRS septic permit, Jerry Thompson, as an employee of Respondent company, pulled a permit as Mastercraft's agent on May 9, 1995. As previously stated, pre- inspection is not standard practice and DHRS abandonment permits are often issued in a single day. II. Case No. 96-0573 Bridal (or Briddle) Path Lane a/k/a Oakridge Acres a/k/a Mrs. Mahalik's Property Respondents were called to repair a septic tank at Mrs. Mahalik's home on Bridal Path Lane in October 1994. Most of the work did not require DHRS permits. See Findings of Fact 8-10. Respondents charged Mrs. Mahalik, among other things, for installing a new 300 gallon dosing tank. Approximately four months later, in February 1995, Mrs. Mahalik telephoned the Flagler County Public Health Unit and asked whether Respondents' repair had been permitted. DHRS had no record of it. An after-the-fact application was made for the job and a permit for the Mahalik job was issued in March 1995 to Mrs. Mahalik with Respondent company as her agent. Replacement of a dosing tank required a permit under Rule 10D-6.043 F.A.C. in 1994 but Rule 10D-6.044(5) F.A.C., requiring the stoppage of work while applying for an amended permit, did not exist until January 3, 1995.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order finding Respondents Donald P. Roberts and Rayco Properties, Inc. d/b/a Woody's Septic Tank Service guilty as set out in the Conclusions of Law and assessing against both Donald P. Roberts and the company, jointly and severally a total fine of $4,450 and suspending both for 120 days from the date of the final order. DONE and ENTERED this 1st day of November, 1996, at Tallahassee, Florida. ELLA JANE P. DAVIS 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 1st day of November, 1996.
The Issue Whether Petitioner should take disciplinary action against Respondents for the reasons alleged in the Administrative Complaint?
Findings Of Fact On behalf of his brother, Mr. Howell Parish, who lives in Orange Park, Florida, Mr. James A. Parish contracted with Respondents to restore efficient of operation the septic tank system at 5469 Soundside Drive in Santa Rosa County, premises owned by Howell Parish. Respondents agreed to make the restoration by providing a fiberglass approved tank with a fiberglass lid, install a new drain field and haul in dirt to build up a low area of the existing drain field. Respondents undertook repair activities but without a permit. Respondents did not obtain an inspection of their work after they had finished. On June 10, 1992, after the repairs were supposed to have been done, James Parish paid Respondent Harmon for the job with a personal check in the amount of $1,498.48. On the same date, Respondent Harmon signed a receipt for payment. The receipt shows as work performed, "Demucking and Installing one 1050 Gal Tank & 200 Sq.' Drain Field." Ms. Jo Ann Parish, spouse of Howell Parish, reimbursed James Parish for the work done on Soundside Drive. Shortly thereafter, the septic tank "caved in and the waste was boiling to the surface." (Tr. 16.) Howell Parish met with Larry W. Thomas, Environmental Health Supervisor for the Santa Rosa County Health Department, to discuss the situation. Following the meeting, Mr. Parish called Respondent Harmon and told that him that the problem needed to be straightened out and that he should contact Mr. Thomas promptly because his license could be in danger. Respondent promised to correct the problem and to reimburse Mr. Parish for the job but he did neither. He did not contact Mr. Thomas either. Mr. Thomas, on behalf of the County, investigated the site of the septic tank repair. He found that Respondents had installed a broken fiber glass tank when fiberglass tanks are not allowed at all in Santa Rosa County because of their structural inadequacy. In addition to the tank being cracked, it had a cracked lid. Another hole in the tank that should have been covered with a lid was covered with a piece of plywood. The plywood was kept in place by dirt fill. The drain field did not meet the minimum standards required by the County. Most significantly, it was installed beneath the water table. There was a laundry discharge pipe which was not connected to the tank as required. The site of the septic tank repair by Respondents was a sanitary nuisance. The broken condition of the tank allowed raw sewage to overflow. The drain field was emptying raw sewage directly into ground water. The laundry discharge was discharging into the ground rather than being hooked up to the septic tank. Mr. Parish was forced to hire another septic tank service to restore the system to good working order. The work, performed by Bettis Septic Tank Service, was billed to Mr. Parish at a cost of $6400.00.
Recommendation It is, accordingly, RECOMMENDED, that Respondents' certificates of registration be revoked and that the Department impose on Respondents a fine of $2000.00. DONE and ENTERED this 28th day of October, 1994 in Tallahassee, Florida. COPIES FURNISHED: Frank C. Bozeman, III Asst. District Legal Counsel D H R S 160 Governmental Center Pensacola, FL 32501 Kenneth P. Walsh Attorney at Law P. O. Box 1208 Shalimar, FL 32505-0420 Robert L. Powell, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, FL 32399-0700 Kim Tucker General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, FL 32399-0700 DAVID M. MALONEY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of October, 1994.
The Issue Whether the Petitioner is qualified for licensure as a septic tank system contractor.
Findings Of Fact The Petitioner applied for Septic Tank Contractor Registration on or about June 1, 1993. Mr. Gerald Briggs, Environmental Health Specialist III for the Department, notified the Petitioner that his application was not complete on or about July 7, 1993, and returned the Petitioner's application to the Petitioner. In November 1993, the Petitioner refiled his application with the Department. By letter dated December 9, 1993, the Department notified the Petitioner of its decision to deny his application for septic tank contractor's registration because the Petitioner lacked the required three years of active experience as a worker who has learned the trade as an apprentice under a registered septic tank contractor. William A. Kerce, a registered septic tank contractor in Florida, testified at the hearing. He stated that he had employed the Petitioner prior to the Petitioner's graduation from high school in 1985, and continued to employ him up until he sold the business to Donald Rose. The Petitioner's duties for installation of new septic tanks and for repairs of existing systems were to dig up an area, prepare it to install a septic tank in the ground, prepare the drainfield, and recover the tank and drainfield with soil. In addition, Mr. Kerce used the Petitioner to assist him in pumping septic tanks. Mr. Kerce stated that he did not consider the Petitioner an employee, but considered him an independent contractor. Mr. Kerce would have had to pay social security and provide worker's compensation benefits if he had considered the Petitioner an employee. Mr. Kerce provided all the materials and equipment used on the job. Mr. Kerce used the Petitioner's services five or six days a week for well over three years. Petitioner did not work for Mr. Kerce when Mr. Kerce did not have work to do, about two weeks per year. Mr. Kerce paid the Petitioner by the job, $200-$300 for installing a system, and $15-20 for helping him pump a system. The Petitioner worked for Mr. Kerce, except when he was working for another septic tank contractor doing the same type of work. If the Petitioner was working for another man, Mr. Kerce waited and scheduled his work until the Petitioner was available. While Mr. Kerce was not present on the job constantly, Mr. Kerce did supervise and approve all work done by the Petitioner. He was required by law to do so. Mr. Kerce sold his business to Donald Rose in 1992. To Mr. Kerce's knowledge, Mr. Rose continued to use the Petitioner. Mr. Rose could not get qualified as a contractor with the Department. As a result, Mr. Kerce had to step back in and run the business. The Petitioner assisted Mr. Rose in installing unpermitted systems. When confronted, the Petitioner assisted in the investigation of Mr. Rose, under threat of prosecution. As a result, the court withheld adjudication in the Petitioner's case and placed him on probation which he has not completed. The Petitioner was employed by Rotor Rooter in Jacksonville, Florida, for six months, installing and repairing septic systems. The Petitioner has been employed by AA Septic since April 15, 1994. The Petitioner took steps in June, 1993, to start a septic tank business as C&J, including listing in the Yellow Pages. However, his application was not approved. He did install a system for Eleanor Rake at about that time without a permit; however, he later returned Ms. Rake's money when confronted by the authorities. The Petitioner was on probation when he did the work for Ms. Rake.
Recommendation Based upon the consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That the Department deny the Petitioner certification until he completes his probation for violations of laws directly related to installation of septic systems; and further, that upon the completion of that probation and reapplication, the Department register the Petitioner, who has established that he met the work experience requirements. DONE and ENTERED this 27th day of June, 1994, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of June, 1994. APPENDIX TO RECOMMENDED ORDER CASE NO. 94-0954 The following findings were adopted or rejected for the reason stated: Respondent's Findings Recommended Order Paragraph 1 Paragraph 1 Paragraph 2 Paragraph 2 Paragraph 3 Paragraph 3, 4 Paragraph 4 Subsumed in paragraph 4 and Preliminary Statement. Paragraph 5 Subsumed in paragraphs 5 and 6 which are based upon best evidence. Paragraph 6 Subsumed in paragraphs 8 - 11, which are based on best evidence. Paragraph 7 Subsumed in Preliminary Statement. COPIES FURNISHED: Edward Jackson, Esquire 515 W. Adams Street Jacksonville, FL 32202 Teresa Donnelly, Esquire Department of Health and Rehabilitative Services 1000 N.E. 16th Avenue Building H Gainesville, FL 32601 Robert L. Powell, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Kimberly J. Tucker, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
Findings Of Fact On May 6, 1986, George Bailey, doing business as Bailey's Septic Tank Service pursuant to a permit to operate a septic tank cleaning service, pumped out and cleaned the septic tank located at 474 Hinton Street, Port Charlotte, Florida, owned by Davina Hall. On May 21, 1986, upon inspection of that septic tank by Warren McDougall and Dale Holcomb on the complaint of the owner, it was determined that the septic tank inspection hatch lid was not properly sealed. There was a hole where the corner of the inspection hatch lid had been broken off and the soil over the tank was not properly replaced and compacted. The only evidence as to whether anyone else did work on that septic tank after Bailey's and before the inspection was the testimony of the inspectors and Bailey about what they were told by others. That evidence is all hearsay and cannot be relied upon to base a finding under these circumstances. Accordingly, it cannot be found that Bailey's left this tank unsealed and damaged. On September 26, 1985, Bailey's serviced the septic tank located at 1043 Webster Avenue, Port Charlotte, Florida, at the request of Robert Keniston acting as agent for the owners, Mr. and Mrs. Caggiano. The house was vacant when the work was done, but Keniston observed the work in progress. On May 27, 1986, an inspection of the septic tank by Warren McDougall and Emmery Wuthrich of the Charlotte County Health Department revealed that the access lid was broken and had not been sealed. David Sandefer, the employee of Bailey's who performed the work, acknowledged that he left the tank with a broken lid and unsealed because Keniston told him to do so and would not pay the $40 to replace the lid. Keniston denies this and says he did not know of the broken lid until the inspection. Having observed the demeanor of the witnesses, it is found that Keniston's testimony is more reliable and credible in this regard. On June 10, 1986, the Sarasota County Health Department received a complaint that a Chevrolet pump truck, white cab with a red tank, was dumping sewage and had magnetic signs saying it was a pressure cleaning service. The complaint was being investigated by John Madrak that same day when he saw a truck fitting the description parked at the Frosted Mug, a restaurant in Venice, Florida. There were no signs on the truck. Madrak also observed a puddle under the tank caused by a leak from the outlet valve on the tank. Madrak saw work order forms in the cab of the truck saying Bailey's Septic Tank Service. Madrak talked to the driver of the truck, David Sandefer, and was told that the truck was owned by Bailey, but was not being used for septic tank cleaning. Sandefer said it had just been repainted. The driver left the Frosted Mug and Madrak followed at the instruction of his supervisor. After a lengthy chase, the truck stopped at a convenience store and Bailey, Madrak, Venice Police Officer Dodd and Sheriff's Deputy Lowen converged on the scene. Bailey acknowledged ownership of the truck, but indicated that it was being used as a water tank truck in a pressure cleaning business and not as a septic tank pump truck. It had been repainted and had not been used for septic tank service for 4 to 6 weeks prior thereto. Bailey owns two other pump trucks that were being used in the septic tank business. The truck had hoses and shovels consistent with use for pumping septic tanks. The truck had no signs indicating by whom it was being used. The truck was leaking from the outlet valve, but no evidence was presented as to the substance leaking from the truck. No one sampled, touched or smelled the leaking material and no one looked in the tank to see what was inside. At no time did anyone observe the truck in the act of pumping sewage.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter a Final Order and therein Dismiss the complaint in Case No. 86-2107. Find the Respondent guilty of the violations alleged in Case No. 86- 2633. Dismiss the complaint in Case No. 86-2624. Suspend the septic tanking cleaning service permits of George E. Bailey, doing business as Bailey's Septic Tank Service, for a period of one year and impose a fine of $500.00. DONE and ORDERED this 15th day of October, 1986, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of October, 1986. APPENDIX TO RECOMMENDED ORDER The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all proposed findings of fact submitted by the parties to this case. Specific rulings on proposed findings of fact of Petitioner Case No. 86- 2107 Each of the following proposed findings of fact are adopted in substance or as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 2(2); 3(2). Proposed findings of fact 4 and 5 are unnecessary. Specific rulings on proposed finding of fact of Petitioner Case No. 86-2623 Each of the following proposed findings of fact are adopted in substance or as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(5); 3(5); 5(4); 6(4); 7(5); 8(4). Proposed findings of fact 4, 9 and 10 are unnecessary. Proposed finding of fact 2 is subordinate to the facts actually found. Specific rulings on proposed finding of fact of Petitioner Case No. 86-2624 Each of the following proposed finding of fact are adopted in substance or as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(7); 1(7); 3(7); 4(8); 5(8); 6(8); 8(9); 9(10); 10(11); 11(11); 12(12). Proposed findings of fact 13, 14, 15, and 17 are unnecessary. Proposed findings of fact 7 and 16 are subordinate to the fact actually found. Specific rulings on proposed findings of fact of Respondent Case No. 86- 2107 Proposed finding of fact 1 is adopted in substance as modified in Finding of Fact 1 and proposed finding of fact 2 is similarly adopted in Finding of Fact 2. Proposed findings of fact 3, 4, 5, 6 and 7 are subordinate to the facts actually found. Proposed finding of fact 8 is unnecessary. Specific rulings on proposed findings of fact of Respondent Case No. 86- 2623 Each of the following proposed findings of fact are adopted in substance or as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(4); 2(4);; 3(4); 4(5). Proposed findings of fact 5, 6, 7, 8, 9, and 10 are subordinate to the facts actually found. Proposed findings of fact 11 and 12 are unnecessary. Specific rulings on proposed findings of fact of Respondent Case No. 86- 2624 Each of the following proposed findings of fact are adopted in substance or as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(7); 3(13); 4(12); 6(8); 7(13); 8(13); 10(11); 11(11); 12(11). Proposed findings of fact 2 and 9 are subordinate to the facts found. Proposed finding of fact 5 is rejected as not supported by the credible evidence. Proposed finding of fact 13 is unnecessary. COPIES FURNISHED: Anthony N. DeLuccia, Jr., Esquire Post Office Box 06085 Fort Myers, Florida 33906 Robert B. Bennett, Jr., Esquire 46 N. Washington Boulevard, Suite 13 Sarasota, Florida 33577 William Page, Jr., Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue The issue in this case is whether the Department of Health properly denied Petitioner’s application for a master septic tank contractors (MSTC) registration.
Findings Of Fact The Department of Health is the agency responsible for the registration of septic tank contractors, the authorization of septic tank companies, and the enforcement of the statutes of rules pertaining to the registration and authorization of septic tank contractors and companies pursuant to Chapters 381 and 489, Part 3, Florida Statutes and Chapter 10D-6, Florida Administrative Code. The registration as a master septic tank contractor was recently enacted by the Legislature. Master septic tank contractor is held to a higher standard of scrutiny by the Department because a MSTC can perform certain functions in the field without Department of Health supervision. Further, a MSTC can advertise his special certification to the public. Gregory Thompson, Petitioner, applied to the Department of Health to be registered as a MSTC. At the time of his application, Petitioner was registered with the Florida Department of State as the president of Rayco Properties, Inc. At the time the cases against the corporation referenced above were brought, the Petitioner was the president of Rayco; however, the requested contractor who was the company’s qualifier was Donald P. Roberts, who was the sole qualifier for the company. See paragraphs 2 and 3 of the Recommended Order in Case Numbers 95-5973 and 96-0573 Final Order issued 2/28/97. At the time of the Petitioner’s application for MSTC, Rayco had been found guilty of several septic tank contracting violations and an enforcement action was taken by the Department against Rayco and Donald R. Roberts. See DOAH Case Numbers 95-5973 and 96-0573. Pursuant to the Final Order, penalties were assessed against Rayco including a fine of four thousand four hundred fifty dollars ($4,450.00) and suspension of the corporation's Certificate of Authorization for one hundred-twenty (120) days. At the time of the application by the Petitioner, neither of these penalties had been resolved. The previous action was against Rayco and its qualifier, Donald R. Robert. As the Administrative Law Judge concluded in paragraph 82 of her order, “Revocation of the company’s authorization would effect the livelihood of numerous company principals and employees not directly involved in any of the proven violations.” The Department denied the Petitioner’s application for MSTC for three (3) reasons. The Petitioner’s corporation had been adjudicated guilty of minor or moderate infractions pertaining to on site sewage treatment and disposal systems (See paragraph 82 of the Recommended Order in Case Numbers 95-5973 and 96-0573), a copy of which is attached as Appendix 1. There was an outstanding fined assessed against Rayco Properties and the one hundred-twenty (120) day suspension of Rayco had not been resolved as required by the Florida Administrative Code. At the time of the formal hearing, the fine had been paid and the corporation had served and completed the one hundred-twenty (120) days' suspension.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Department grant the request for certification by the Petitioner for master septic tank contractor. DONE AND ENTERED this 3rd day of November, 1997, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 3rd day of November, 1997. COPIES FURNISHED: Gregory B. Thompson Post Office Box 251307 Holly Hill, Florida 32135 Charlene Petersen, Esquire Volusia County Health Department 420 Fentress Boulevard Daytona Beach, Florida 32114 Angela T. Hall, Agency Clerk Department of Health Building 6 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Dr. James Howell, Secretary Department of Health Building 6, Room 306 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
