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 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. /
The Issue The issue to be resolved in this proceeding concerns whether the Respondent installed certain septic tank and drainfield systems without having the appropriate permits from the Department of Health and Rehabilitative Services (HRS or Department) and without having the appropriate inspections performed before completing and being paid for the work in question. It is alleged, as well, that the Respondent engaged in advertising and performing septic tank contracting services under the name "Stone's Septic Services" without applying for and receiving an appropriate certificate of authorization from the Department to provide such services under that name.
Findings Of Fact On December 10, 1991, the Respondent installed a drainfield and septic system for Pam Matheny. He was paid $490.00 for that job, which was to include the cost of obtaining the required permit before the installation of the system. The Respondent obtained no such permit, but proceeded to install the system, which is currently operating. The Respondent performed drain line repair of a septic system for Mrs. Noel at 10 Royal Pines Drive, Pace, Florida. That job was also done without the required permit. A similar job was performed at 4844 Orleans Street, Pace, Florida, for a Mrs. Adams. No inspection of the work by the Department was obtained by the Respondent and no permit was issued to or obtained by the Respondent for the work, as established by the testimony of witness, Darla Ard, of the Santa Rosa County Health Unit of the Department. Mr. William Sirmans testified. He is Ms. Ard's supervisor in the Escambia County Health Unit of the Department. All permit applications for the installation and/or repair of septic tank and drainfield sewage disposal systems are processed and issued, if appropriate, by his office. He corroborated the testimony of Ms. Ard and witness, Pam Matheny, to the effect that no permits were ever issued for the three jobs in question which were performed by the Respondent. He discussed these matters with the Respondent during the investigation process underlying this complaint and the Respondent conceded that he had performed the three jobs in question without the required permits. The required inspections, as delineated above, were not obtained either.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that a Final Order be entered by the Department of Health and Rehabilitative services revoking the Respondent's septic tank contracting registration and authorization, as provided for in the above-cited legal authority. DONE AND ENTERED this 18th day of December, 1992, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 1992. COPIES FURNISHED: Robert L. Powell, Agency Clerk Department of HRS 1323 Winewood Boulevard Tallahassee, FL 32399-0700 John Slye, Esq. General Counsel Department of HRS 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Rodney M. Johnson, Esq. Department of HRS District One P.O. Box 8420 Pensacola, Florida 32505-0420 Marcus E. Stone 11601 Chemstrand Road Pensacola, FL 32514
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
Findings Of Fact Sapp is the owner of Lot 24, Tara Farms Subdivision, located at Doctor's Inlet, Clay County, Florida. Sapp's request for septic tank permit was denied by HRS in its letter of November 28, 1978, for the following reasons: Soils of unsatisfactory quality beginning at ground level and con- tinuing to entire depth of soil log. Impervious soils as identified under the "Unified Soil Classification System" as inorganic clays of high plasticity, fat clays, inorganic clays of low to medium plasticity, gravelly clays, sandy clays, silty clays, lean clays. Percolation test rate exceeds fifteen (15) minutes per inch run-off. History of septic tank failures in this subdivision. In its letter, HRS contends that the foregoing reasons for denial constitute a failure to meet the requirements of Chapter 10D-6, Florida Administrative Code, standards for individual sewage disposal facilities. Understanding that the soil was unacceptable in its natural condition, Sapp employed a consulting engineer, Mr. H. C. Stone, to design a plan that would conform to state regulations. Mr. Stone recommended that a 40' X 70' X 3' compacted free-draining sand fill be employed to provide an adequate filter bed for the septic tank. Mr. Stone further recommended that the drain field consist of not less than 300 feet of drain pipe (perforated or open joint) installed in the middle of the fill area. Stone further recommended that the laundry facilities be discharged through a separate 225 gallon tank with a separate drain field consisting of 75 feet of drain tile and a 15' x 40' X 3' compacted free draining sand fill. The depth of the water table during the wettest season of the year from the surface is 20 inches. Installation of the sandfill to a depth of 3 feet would create soils of satisfactory quality and characteristics from the surface to the water table at the wettest season of the year and would eliminate objectionable impervious soils from the system. The percolation test rate for the natural soils exceeds 15 minutes per inch run-off, but the proposed drain field would have a percolation rate of only 1.2 minutes per inch. While evidence of septic tank systems failures in the same subdivision was introduced, none of the examples of failure occurred in systems with the same specifications as those proposed by Sapp for use on his property. Of the three examples given, all contained a significantly lesser depth of free- draining sand fill.
The Issue The issues, as framed by the Administrative Complaint, are twofold: Whether Respondent committed gross negligence, incompetence, or misconduct which caused monetary harm to a customer, in violation of Florida Administrative Code Rule 64E-6.022(1)(l)2; and Whether Respondent practiced fraud or deceit by making a misleading or untrue representation to a home purchaser, or the home purchaser's agents, incident to a loan application, in violation of Florida Administrative Code Rule 64E-6.022(1)(k).
Findings Of Fact Petitioner, Department of Health, is an agency of the State of Florida as defined in Section 120.52, Florida Statutes. Petitioner's actions in this matter are governed in part by Chapters 381 and 489, Florida Statutes, as well as Florida Administrative Code Chapter 64E-6. Respondent, at all times material to this matter, was licensed by Petitioner under Part III of Chapter 489, Florida Statutes, entitled, "Septic Tank Contracting." Respondent is subject to the regulatory jurisdiction of Petitioner, having been issued Registration Number SR0931141 to engage in septic tank contracting, and Certificate of Authorization Number SA0890161 to do business as Superior Septic and Sewer, Inc. Petitioner seeks to impose revocation of Respondent's License and Certificate of Authorization for violations of Florida Administrative Code Rule 64E-6.022(1)(l)2. and (1)(k), with aggravation pursuant to Rule 64E-6.022(2). Air Force Captain Timothy Billings made an offer that was accepted to purchase a home located at 1938 Quail Run, Lynn Haven, Florida, prior to September 12, 2008. Captain Billings worked with a realtor, Bonnie Milstead, and arranged the various steps required to secure a Veterans Administration loan with the seller's realtors, Ben and John Harrell. A septic tank inspection and certification was one of the loan requirements. On behalf of Captain Billings, Ms. Milstead arranged to have Respondent's company inspect and certify the septic tank at 1938 Quail Run at a price of $250. The price included the pumping of the tank for $225 and a $25 charge for the certification. Captain Billing paid the $250 charge at the closing on the purchase of the home. John E. McDaniel is the licensed septic tank contractor for Superior Septic and Sewer, Inc., and is the qualifying contractor for a Certificate of Authorization to do business as Superior Septic and Sewer, Inc. On September 15, 2008, one of Respondent's employees, Phillip Fetner, went to 1938 Quail Run where he was met by Ben and John Harrell, realtors for seller of the home. Mr. Fetner was there to inspect only the septic tank, not being equipped or trained to inspect the entire system and drainfield. Mr. Fetner opened the tank after cutting through roots that had grown into it. He noted a large amount of roots in the tank that was also seen by the realtor, Ben Harrell. In spite of the roots, Realtor John Harrell instructed Mr. Fetner to "go ahead and pump the tank," which he did. He told John Harrell there were still a lot of roots in the tank. Mr. McDaniel discussed with John Harrell an additional charge of $400 to remove the roots from the tank. Mr. Harrell did not order the additional work. Mr. McDaniel believed that enough roots had been removed from the tank by Mr. Fetner for a certification to be issued, but Mr. Fetner did not confirm this. Debbie Bass, a clerical staff member of Respondent, completed the certification form prior to the inspection being complete. This was her custom so that she could stay ahead of the work load. The form was left in the inbox to be signed by Mr. McDaniel. Ms. Bass did not falsify any records nor had she ever been asked to do so in her four-and-a-half years with Respondent. The certification form was signed by Mr. McDaniel without the additional root work having been done by his company. The mortgage lender relied upon the certification to make the loan to Captain Billings. Mr. McDaniel did not directly inform Captain Billings or his realtor, Ms. Milstead, that the septic tank was full of roots. He believed that the root situation had been disclosed since the seller's realtors, the Harrells, had been on-site at the time of the inspection. Captain Billings testified that had he been fully aware of the root situation, he would have probably walked away from the deal because he did not want to have to deal with problems in the future. Mr. McDaniel allows his wife, Lisa McDaniel, to sign his name in his capacity as a licensed septic tank contractor. Lisa McDaniel actually signed the certification on the 1938 Quail Run property. Respondent's position is that the certification was sent out by mistake because the root removal work had not been performed on the tank. Mr. McDaniel does not dispute the fact that the certification form was prepared and signed. Captain Billings experienced problems with the septic tank system of his newly purchased home at 1938 Quail Run. In March 2009, he discovered the septic tank and system were full of roots and not functioning when Roto-Rooter, owned and operated by Glenn Salyer, removed the manhole access for a pump out and saw the massive roots. After learning from his realtor that Respondent had been hired to inspect the septic tank, Captain Billings contacted Mr. McDaniel, who refused to do anything about the situation. Even after the filing of the Administrative Complaint, Mr. McDaniel refused to remedy the situation. Glenn Salyer of Roto-Rooter, a licensed master septic tank contractor and master plumber, would not have certified the septic tank at 1938 Quail Run in its September 15, 2008, condition. Lyle Ake, another licensed septic tank contractor, would not have certified the septic tank at 1938 Quail Run in its September 15, 2008, condition. The septic tank should not have been certified in its September 15, 2008, condition. Roots intruding into the septic tank indicate it is not watertight. However, a system having roots can perform properly without incident for many years. When the entire system was inspected by Mr. Salyer, it was non-functional and needed replacement. Roto-Rooter replaced the septic tank system, consisting of a new septic tank and drainfield, at 1938 Quail Run on October 12, 2009. Captain Billings paid $4,500 for the replacement system. According to David Hammonds, an expert on the rules and functioning of septic tank systems, the system was being inspected and evaluated pursuant to Florida Administrative Code Rule 64E-6.001(5), the Procedure for Voluntary Inspection and Assessment of Existing Systems. The Rule provides specific items to be inspected unless the requesting party, in writing, states that specific items are not to be inspected. Mr. Hammonds testified that after his review of the exhibits and the site, he concluded that the septic tank system at 1938 Quail Run was "a failing system." Mr. Hammonds concluded that the pump-out procedure could have been completed once enough roots were removed to get the pump into the tank. Mr. Hammonds noted that the roots had been in the tank for a very long time, maybe years. Roots in the tank can lead to many problems. Roots affect capacity; they damage the tank itself, leading to cracks and leaks; and can lead to the leaking of sewage around the tank cover and seams. Mr. Hammonds noted that the high fluid level in the tank, almost up to the lid, is an indication of the entire system not working properly. The reporting requirements in the Voluntary Assessment Rule do not require the use of a particular inspection form. The Rule does specify what must be inspected and reported. Respondent accurately listed the features of the tank on the certification form: the tank was 1,050 gallons; the tank had neither a baffle nor a filter; and the tank was structurally sound. Mr. McDaniel believes this matter is all the result of an office error and that he should not be held responsible. Mr. McDaniel has a history of disciplinary matters with Petitioner. He has been cited for 18 violations in six cases as well as a non-disciplinary letter of concern. On September 13, 1996, he was fined $50 for inspecting a system without a permit. On September 13, 1996, he was fined $100 for two repairs to a system without a permit and for violating water table separation and setback from a potable well. DOAH Case No. 99-2474 resulted in a Final Order imposing an administrative fine of $3,300 for the removal of tank filters after final inspection by department personnel. Judge P. Michael Ruff found in that case that Respondent's actions "show a clear intent to mislead regulatory authorities." DOAH Case No. 04-1636 was settled by stipulation and resulted in a letter of warning with amelioration of a new drainfield installed by Respondent for an original drainfield that was improperly installed. On December 2, 2005, Respondent was issued a Letter of Warning for improper disposal of sewage. DOAH Case No. 07-1651 resulted in jurisdiction in the matter being relinquished to Petitioner based upon Respondent's non-appearance at the final hearing. The result was a fine of $500 for submitting a repair permit application with an incorrect site plan not showing a shed and a fence positioned over and in an existing drainfield. A Letter of Concern was issued July 23, 2007, to Respondent for improperly reporting a larger than actual capacity of a septic tank. A Letter of Concern is not a formal discipline under Florida Administrative Code Rule 64E-6.022, but demonstrates substandard performance by a licensee. Mr. McDaniel believes that other septic tank contractors have received lighter treatment for their offenses than he has. Bob Glenn, Petitioner's Environmental Manager for the Bureau of Onsite Management Program, gave some credence to Respondent's perception.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued by the Department of Health suspending Respondent for six months; suspending Respondent's Septic Tank Contractor Registration Number SR0931141 and Certificate of Authorization Number SA0890161 to do business as Superior Septic and Sewer, Inc.; and imposing a fine in the amount of $1,000.00, on Respondent. DONE AND ENTERED this 25th day of February, 2010, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 25th day of February, 2010. COPIES FURNISHED: Rodney Marcum Johnson, Esquire Department of Health 1295 West Fairfield Drive Pensacola, Florida 32501 John E. McDaniel Superior Septic and Sewer, Inc. 7315 Highway 231 North Panama City, Florida 32404 Dr. Ana M. Viamonte Ros, Secretary State Surgeon General Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701 Josefina M. Tamayo, 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
The Issue The issues are whether Respondent has violated the standards of practice in septic tank contracting, Florida Administrative Code rule 64E-6.022, and, if so, the penalty. (All references to Respondent are to Arlender Miller. All references to Ms. Rooter are to Ms. Rooter, Inc.)
Findings Of Fact At the times of the alleged jobs, Respondent was registered as a septic tank contractor and served as the qualifying agent for Ms. Rooter. At the time of all three jobs, Respondent had apparent authority to serve as the agent of Ms. Rooter in contracting for and performing the septic tank contracting work described below. However, nothing in the record establishes any relationship between Respondent and Ms. Rooter at the time of the issuance of the Administrative Complaint, so as to justify treating the notice of this proceeding, when served upon Respondent, as notice to Ms. Rooter. Hans Seffer, who testified, is the son of the woman who owns the apartment complex located at 14950 North Miami Avenue, Miami. Mr. Seffer found Ms. Rooter on the internet and spoke with Carolyn Futch, operations manager of Ms. Rooter, about septic tank contracting services needed at the apartment complex. Respondent later met with Mr. Seffer at the property. Initially, Mr. Seffer believed that the existing septic tank needed only to be pumped out. However, upon inspection, Respondent determined that the system also required a new drainfield, pump, and dosing tank. Accordingly, on February 20, 2008, Respondent, as "technician," and either Mr. Seffer or his mother signed a one-page contract on a form identifying the contractor as Ms. Rooter, license number SA0071430. The contract describes the following work: Install 1,000 sq. ft. drainfield with 300 gallon dosing tank including immediate (2/21/08) tank pump out. Additionally if tank requires pumpout prior to securing all necessary permits, Ms. Rooter will perform pumpout at no additional cost. Manhole cover included. Respondent and either Mr. or Mrs. Seffer initialed this section of the contract. The contract states that the total due for this work is $10,500. Ms. Seffer paid $5,000 by check on February 21, 2008, leaving a $5,500 balance due. On March 1, 2008, Respondent, as agent for Ms. Rooter and on behalf of the property owner, submitted to Petitioner an application for a construction permit for an onsite sewage disposal system. The application describes the property improvements as a multifamily complex with ten bedrooms and 5,284 square feet of building space. The site plan attached to the application states: "Replace drainfield only." On April 2, 2008, Ms. Futch emailed Mr. Seffer to confirm an earlier discussion between them. The discussion addressed a requirement of Petitioner that Ms. Rooter install a second tank. The email states that the property owner will pay $5,600 for the installation of a "2nd tank (1,050-gal)," so the new total contract price is $11,100. This email restates the scope of the work as the installation of a 1,000-square-foot drainfield and 300-gallon dosing tank. By return email two days later, Mr. Seffer agreed to the additional work. On April 11, 2008, Petitioner issued to the property owner a construction permit that specifies a 2,575-gallon septic tank and a 1,000 square-foot drainfield. The permit states: "The licensed contractor installing the system is responsible for installing the minimum category of tank in accordance with sec. 64E-6.013(3)(f), F.A.C." This rule does not refer to tank capacities. On April 23, 2008, Petitioner issued a "construction inspection and final approval" form that shows the installation of two 1,200-gallon septic tanks and a 1,005-square-foot drainfield. The form states that items bearing an "X" are "not in compliance with statute or rule and must be corrected." The construction and final system are approved by Petitioner's inspector. During the course of the work, Respondent told Mr. Seffer that the existing tank was damaged and needed to be replaced, at an additional cost of $5,000, so the remaining balance rose to $16,100. Mr. Seffer agreed to this change. By email dated April 30, 2008, to Mr. Seffer, Ms. Futch confirmed the additional cost of $5,000 for the second septic tank and expressed "hope [that] Ms. Rooter has met your expectations." The email acknowledges, however, that "we must complete the electrical portion of the job." On May 2, 2008, Mr. Seffer sent Ms. Rooter two checks totaling $15,000, leaving a balance of $1,100. On the same date, Mr. Seffer sent Ms. Futch an email that, pursuant to their agreement, he would retain this amount for the "electric and final raking work." By email dated May 27, 2008, to Ms. Futch, Mr. Seffer noted that the manhole that Ms. Rooter had installed in the middle of the lawn was not level and was sunken, presenting a tripping hazard; the final grading was incomplete, leaving low spots and holes; a large rock remained near the palm tree and needed to be removed. Mr. Seffer sent Ms. Futch a reminder email on June 4, 2008, that resent the May 27 email. Mr. Seffer sent another email to Ms. Futch on June 21, 2008. In it, he notes that a Ms. Rooter employee worked on digging an electrical trench on June 13, but left mid-day, and no work had been performed since that day. In the meantime, recent rains had revealed a lack of compaction in the backfilling done by Ms. Rooter, as the fill had settled and undermined a sidewalk. After failing to obtain a response, on July 26, 2008, Mr. Seffer sent a final email to Ms. Futch warning her that he would file complaints with governmental agencies and advising that the unconnected pump was not pumping sewage throughout the entire system. The record does not contain the contracts for the septic tank contracting services involved in the second and third jobs alleged in the Administrative Complaint. Also, Petitioner did not present the testimony of the property owners involved in these jobs. The record for these jobs is limited to the permitting documentation. On September 26, 2008, as agent of Ms. Rooter and on behalf of the property owner, Shoreview Properties, Respondent submitted an application for a construction permit for an onsite sewage disposal system for 9999 Northeast 2nd Avenue, Miami Shores. This application describes the property as commercial with a 47,771 square-foot building. On October 1, 2008, Petitioner's inspector inspected the property. The inspector found an opened drainfield area with contaminated material and other conditions capable of hosting various disease vectors. He also found a backhoe and worker, who claimed that someone else had excavated the drainfield. The inspector immediately posted an ONASN, pursuant to the authority of chapter 386, Florida Statutes, that required the immediate abatement of the listed insanitary conditions. The inspector also determined that the existing onsite sewage disposal system exceeded Petitioner's jurisdictional threshold of 5,000 gallons per day. On September 10, 2008, as agent of Ms. Rooter and on behalf of the property owner, Lisa Mullin, Respondent submitted to Petitioner an application for a construction permit for an onsite sewage disposal system for 101 Northeast 195th Street, Miami. This application describes the property as 0.19 acres, on which is situated a single family residence comprising 1,663 square feet and three bedrooms. On September 22, 2008, an agent of the property owner called Petitioner and complained that Ms. Rooter had commenced the work without having first obtained a permit. Petitioner's inspector visited the site on the same day and found "very recent" earthwork. The owner informed the inspector that the contractor had installed three drainlines, cut an old water line, and installed a new water line over the drainfield. However, the record fails to establish the amount of time that elapsed between the work claimed to have been performed by Ms. Rooter and the report by the property owner. Respondent has paid numerous fines imposed by Petitioner for improper septic tank contracting. In 1999, Respondent paid a fine in an unspecified amount for performing an unpermitted drainfield repair and making the repair without the required filter sand. On January 27, 2000, Respondent paid a fine of $250 for performing unpermitted system repairs. On February 4, 2000, Respondent was assessed a fine of $1,000 for performing unpermitted and uninspected system repairs and failing to honor a warranty. On January 8, 2004, Respondent received a cease and desist order for qualifying more than one septic tank contracting business. In 2007, Respondent paid separate fines of $1,500 and $1,000 for illegal septic tank contracting work in Dade and Monroe counties, respectively.
Recommendation It is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of the three violations identified in paragraphs 26, 27, and 29 above, dismissing the remaining charges against him, dismissing any charges against Ms. Rooter, and revoking Respondent's septic tank contracting registration. DONE AND ENTERED this 31st day of January, 2011, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 2011. COPIES FURNISHED: Arlender Miller 640 Northwest 129th Street Miami, Florida 33168 Jenea Reed, Esquire Miami Dade County Health Department 8323 Northwest 12th Street, Suite 214 Miami, Florida 33126 R.S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 E. Renee Alsobrook, Acting General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Shairi Turner, Deputy Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701 Kim Berfield, Deputy Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701
The Issue The issue in this case is whether the Petitioner, the Department of Health and Rehabilitative Services (HRS), should fine the Respondent, William Loiacano, d/b/a Gulf Coast Food Distributors, Inc., for maintaining a sanitary nuisance.2/
Findings Of Fact In 1990,6/ the Respondent, William Loiacano, d/b/a Gulf Coast Food Distributors, Inc., purchased property at 8402 Lemon Road, Port Richey, Florida, for purposes of relocating his on-going food distributing business. The prior owner operated a carpet business, with approximately five employees, at the location. The Respondent had about 45-50 employees. Shortly after the Respondent started doing business at the new location, he began to have problems with the existing septic tank system. The problem seemed to relate to the increased use of the toilets in the building by the added number of the Respondent's employees. In September, 1990, an HRS environmental health specialist inspected the premises and observed evidence of raw sewage bubbling to the surface from the septic system's drain field and flowing into a stormwater retention pond on the property.7/ The Respondent was directed to abate the nuisance, and a discussion of the Respondent's alternatives ensued. The Respondent rejected the first proposed alternative of connecting to a central public sewer. The nearest connection was over 1000 feet away and would entail significant cost to the Respondent. (The cost would have been even higher if gravity flow was not possible, and it became necessary to pump to the connection point.) The Respondent chose, with HRS' permission, the next alternative of trying to solve the problem by installing a second septic tank system on the property. The second septic tank system for which the Respondent applied, and which he had built, was designed for domestic use by 15 employees. In addition, after installation of the second septic tank system, the Respondent began processing a relish pack and a salad mix on the premises. The processing method for these products required the use of a great deal of water. On or about February 7, 1991, another HRS environmental health specialist inspected the premises and again found evidence of raw sewage bubbling to the surface, this time from the new septic system's drain field, and flowing into the stormwater retention pond. The amount of water flowing into the drainfields, from a combination of the use of the toilets in the building, together with the new processing operations taking place in the building, had overtaxed the double septic tank system, and the system failed. Given the quantities of water needed to process the new products, the Respondent should have anticipated, and probably was aware of, the system failure. The Respondent was directed to fix the problem within a week or stop the processing the new products on the premises. The Respondent tried several water conservation methods in an attempt to address the problem without having to either stop processing the new products or incur the cost of connecting to the central public sewer system. He knew, or should have known, that his efforts were futile, given the quantities of water needed to process the relish pack and salad mix. HRS also referred the matter to the Florida Department of Environmental Regulation. DER inspected on or about February 18, 1991, and told the Respondent that he could not dispose of the industrial waste from the operation of his business in the on-premises septic system without an industrial waste disposal permit. In connection with this, DER apparently advised the Respondent that he would be required to test the water in the stormwater retention pond for certain contaminants. The Respondent was unable to understand what he needed to test for, and how, and sought assistance from DER and HRS. Although there is evidence that HRS tried to help the Respondent by referring him to certain individuals employed by the DER for answers, the Respondent did not follow HRS' guidance. In any case, the efforts would have been futile, as the Respondent did not have enough property to dispose of the industrial wastes from the operation of his business on-site using a septic tank system. On or about June 19, 1991, a neighbor complained to the Respondent about the smell of raw sewage coming from the Respondent's septic system. The Respondent did not receive his neighbor's observations kindly. The neighbor complained to HRS and the Pasco County Sheriff's office. An HRS inspection on June 20, 1991, confirmed the existence of a sanitary nuisance on the premises. Again, raw sewage was bubbling to the surface from the new septic system's drain field and was flowing into the stormwater retention pond. HRS arranged for another meeting with the Respondent on June 27, 1991. At the June 27, 1991, meeting, HRS required that the Respondent stop processing the relish pack and the salad mix until he could hook up to the central public sewer. It was felt that the septic tank systems might be adequate pending connection to the central public sewer if the quantities of water required for processing those products on the premises were eliminated and if other preventive measures were taken. From June 27, 1991, forward to the date of the hearing, the Respondent purchased relish pack and salad mix from other suppliers rather than process them on the premises at 8402 Lemon Road. In addition, the Respondent continued to attempt to conserve water, had the septic tanks pumped out as frequently as required (sometimes practically daily), and had his employees utilize portable toilets in an attempt to avoid additional septic tank failures. After learning that excessive water use at the premises was partially a result of plumbing leaks, the Respondent also had the plumbing fixed. The Respondent also immediately initiated the long process of connecting to the central public sewer. He had a meeting with the assistant county administrator for utilities service for Pasco County on July 3, 1991. They discussed alternatives for connecting the Respondent's business. Initially, the County wanted the Respondent to pay to run a sewer line over 1000 feet to the south of his property to enable the County to efficiently connect other businesses and property owners in that area. But this option would have been costly to the Respondent, and there was no guarantee that gravity flow was possible between the Respondent's property and the connection point. If not, the Respondent also would have to pay the cost of pumping to the connection point. The Respondent hired an engineer to design an alternative that would be less costly. He also sought the cooperation of his neighbors, who would be required to connect to central sewer when the Respondent did. The engineer also worked with those neighbors in designing an alternate connection. On or about September 9, 1991, another meeting was held among the Respondent and his engineer and the county's utilites construction team. As a result of this meeting, the County agreed to modify the connection route in accordance with the Respondent's proposal. The Respondent's engineer continued his work on the design of the connection. HRS inspections on or about September 11 and 25, 1991, revealed that the Respondent's septic system was failing again and that raw sewage again was bubbling to the surface from the new septic system's drain field and flowing into the stormwater retention pond. HRS arranged to meet with the Respondent again on October 4, 1991, along with a Pasco County deputy sheriff and a DER industrial wastewater compliance inspector. At this meeting, the Respondent felt that the deputy sheriff was threatening to arrest him for violation of the law, and he angrily terminated the meeting and asked all of them to leave the premises. In December, 1991, the Respondent arranged a meeting with the County and his neighbors to discuss sharing the cost of the connection route the Respondent was proposing to build. The neighbors, realizing the Respondent's weak bargaining position, refused to share the Respondent's costs. At this point, the County conceded to pay the approximate $9,000 to jack and bore under the road, but the Respondent was required to pay to run a sewer line approximately 300 feet to the south and to construct a manhole on his neighbors' side of the road, as well as on his side of the road. (The second manhole would be used by the neighbors to connect their properties to the line the Respondent was building when the County required them to connect.) The total cost to the Respondent for his part of the construction of the connection to the public sewer will be approximately $24,000. On January 17, 1992, the Respondent paid a $3,428 impact fee for connecting to the central public sewer, based on projected water use. On January 23, 1992, the Respondent applied for a force main interconnect permit. At the time of the final hearing, the jack and bore and the construction of the new sewer line connecting the Respondent's property to the central sewer were about to begin. The evidence indicates that, once HRS made it clear to the Respondent on or about June 27, 1991, that connection to the central public sewer was the Respondent's only remaining option, the Respondent moved with reasonable dispatch. The time it took to arrange to be connected to the public sewer was within normal ranges, and there is no evidence that the Respondent did anything to cause unnecessary delays. (Delays, if any, were caused by the need for the Respondent's engineer to work with and get cooperation from the Respondent's neighbors, who were not as anxious as the Respondent to have the new sewer line built.) There also is no evidence that the Respondent processed relish pack or salad mix on the premises after June 27, 1991. In addition, the Respondent continued to attempt to conserve water, had the septic tanks pumped out frequently (sometimes practically daily), and had his employees utilize portable toilets in an attempt to avoid additional septic tank failures. The evidence also indicates that, after June 27, 1991, all concerned were hopeful that the measures the Respondent was taking would prevent, or at least minimize, septic system failures pending connection to the public sewer. After June 27, 1991, HRS presented direct evidence of septic tank system failures only on two occasions in September, 1991. The evidence is that, after becoming aware of the system failures in September, 1991, HRS sought the imposition of a fine against the Respondent. The evidence suggests two other important motivating reasons for HRS' action: first, not being aware of the actions the Respondent took between June 27 and September, 1991, to connect to the central sewer, HRS mistakenly believed that the Respondent was ignoring its instructions; and, second, HRS mistook the Respondent's angry outburst at the meeting at the Respondent's place of business in September, 1991, when he felt he was being threatened with arrest for violation of the law, as being evidence that the Respondent was not genuine in his apparent concern and efforts to respond to HRS' guidance and instruction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Health and Rehabilitative Services (HRS) enter a final order fining the Respondent, William Loiacano, d/b/a Gulf Coast Food Distributors, Inc., in the amount of $5,000. RECOMMENDED this 29 day of April, 1992, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 day of April, 1992.
The Issue The issue is whether Respondent should approve Petitioner's application for a septic tank contractor registration, pursuant to Chapter 489, Florida Statutes.
Findings Of Fact Respondent granted Petitioner a septic tank contracting registration on or about January 8, 1990. On August 23, 1993, Respondent's predecessor served Petitioner with an Administrative Complaint. Said complaint alleged that Petitioner was guilty of committing the following violations: (a) violating Rule 10D-6.075(4)(m), Florida Administrative Code, by pumping a septic tank without a valid operating permit, after receiving notice that his company's operating permit had expired; and (b) violating Rule 10D-6.075(4)(n), Florida Administrative Code, by improperly disposing of septage. The complaint proposed a $1000 fine and revocation Petitioner septic tank contractor registration and authorization. The complaint advised Petitioner of his right to request an administrative hearing pursuant to Chapter 120, Florida Statutes. Petitioner did not request a hearing. On November 18, 1993, Respondent's predecessor entered a final order, case number 93-0038S, revoking Petitioner's registration and authorization to provide septic tank contracting services and imposing a fine in the amount of $1,000. Petitioner made the last payment on his administrative fine on February 10, 1995. On February 22, 1996, Petitioner submitted the instant application for septic tank contractor registration. Respondent denied Petitioner's application by letter dated March 13, 1996. The basis of Respondent's denial was Petitioner's failure to meet the minimum registration eligibility requirements as set forth in Chapter 10D-6, Florida Administrative Code. The letter cited Rule 10D-6.072(3)(d), Florida Administrative Code, which prohibits a person from being eligible to take the registration examination if he or she has had a septic tank contractor registration revoked by Respondent within the last five years.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent enter a final order denying Petitioner's application for septic tank contractor registration. DONE AND RECOMMENDED this 22nd day of July, 1997, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 22nd day of July, 1997. COPIES FURNISHED: David A. West, Esquire Department of Health 1000 Northeast 16th Avenue, Box 3 Gainesville, Florida 32601 Wayne Carroll, Esquire 4010 Newberry Road, Suite A Gainesville, Florida 32607 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Pete Peterson, Esquire Department of Health Building 6, Room 102-E 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
