The Issue The issue is whether Petitioner created a sanitary nuisance in violation of Florida Administrative Code Rules 64E- 6.022(1)(l) and 64E-6.022(1)(q) and, if so, the proper penalty.
Findings Of Fact The Department of Health, Duval County Health Department (Department), is the state agency charged with enforcing the statutory and regulatory provisions pertaining to septic tank installations and repairs in Florida, pursuant to Section 381.0065, Florida Statutes, and Florida Administrative Code Sub-Chapter 64E-6. Mr. Hoag is registered as a Septic Tank Contractor pursuant to Florida Administrative Code Rule 64E-6.019. He was issued registration no. SR0911053. It was necessary to install a new septic tank at residences located at 8817 and 8821 Bellrose Avenue, in Duval County, during March 2004. The owner of the premises, Ben Lewis, contracted with Florida Septic Tank Service, Inc., to accomplish this work. A repair application was submitted to the Department on March 8, 2004, and was approved. Florida Septic Tank Service, Inc., engaged Mr. Hoag, of Plumbing and Contracting by Hoag, to accomplish the plumbing portion of the operation. Sometime on April 8, 2004, the exact time not being estimated, Mr. Hoag disconnected the stub from the residences that ran to the former septic tank. This was done so that pipes could be run to a new septic tank. He neither connected the line that he disconnected to the new septic tank nor capped the pipe. Mr. Hoag requested the occupants of the residences to refrain from using the sanitary facilities within the residences until he was able to continue his work on April 9, 2004. Despite this request, the facilities were used between April 8, 2004, and April 9, 2004. On April 9, 2004, sometime prior to 11:45 in the morning, Colleen Bierbach, an inspector with the Department, entered the premises of 8817 and 8821 Bellrose Avenue and observed household wastewater and human fecal matter on the ground at the terminus of the stub. Pictures were taken that memorialized the nature of the deposits. Inspector Scott Turner, of the Department, issued a citation to Mr. Hoag that indicated that the offense occurred at 11:45 a.m. on April 9, 2004. The citation reflected a violation of Section 386.041(1)(a), Florida Statutes, and Florida Administrative Code Rule 64E-6.022(1)(l) and (q). With regard to Florida Administrative Code Rule 64E-6.022(1)(l), the citation charged only that he committed, "Gross negligence, incompetence, or misconduct which causes no monetary harm to a customer." The citation was accepted by Mr. Hoag on April 15, 2004. Mr. Hoag's failure to either connect the line to the new septic tank or to cap the outflow line, caused an unsanitary and unsafe condition to exist at 8817 and 8821 Bellrose Avenue, Duval County, on April 9, 2004. No evidence was adduced as to the exact time that the pipe was opened on April 8, 2004, or as to the exact time that the pipe was closed and the area decontaminated on April 9, 2004.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Duval County Health Department, dismiss the citation issued to Mr. Hoag on April 9, 2004. DONE AND ENTERED this 15th day of February, 2006, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 15th day of February, 2006. COPIES FURNISHED: Catherine R. Berry, Esquire Department of Health 515 West Sixth Street Jacksonville, Florida 32206-4311 Robert J. Hoag Plumbing & Contracting by Hoag Post Office Box 7931 Jacksonville, Florida 32238 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Timothy M. Cerio, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Dr. John O. Agwunobi, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701
The Issue The issue in this case is whether Respondent created a sanitary nuisance by installing drainfield pipes too far apart in a septic tank drainfield and failing to seal the lid to a septic tank, failing to call for a required inspection before covering an onsite sewage disposal system, and engaging in gross misconduct by assaulting two of Petitioner's employees.
Findings Of Fact Respondent is registered with Petitioner as a septic tank contractor and authorized to provide septic tank contracting services. On May 4, 1994, pursuant to a previously issued permit, Respondent completed the installation of a new drainfield at 204 West DelMonte Avenue in Clewiston. He asked Petitioner's office for an inspection for approval to cover the system. Jim Rashley, an environmental specialist employed by Petitioner, inspected the system on the morning of May 4. No one was at the site during the inspection. Mr. Rashley discovered a violation concerning the type of header pipe. He also discovered that the drain lines were more than 36 inches apart and 18 inches from the side of the field. Mr. Rashley determined that the drainfield pipes were three feet and four inches apart. Examining the septic tank itself, which Respondent had pumped, Mr. Rashley found that the lid had not been properly resealed, which would allow rain or dirt to enter the tank or effluent to escape from the tank if the drainfield failed. Returning to his office, Mr. Rashley informed his supervisor, Steve Havig, that he was failing the system and called Respondent and told him the same thing. Respondent asked Mr. Rashley to come out to the site so they could both examine the system, and Mr. Rashley agreed. When they met at the site, Respondent asked Mr. Rashley to point out the three violations, which he did. Respondent's response was to tell him that he was sick and tired of college kids telling him how to install septic tank systems. Mr. Rashley said that he could not ignore violations of the rules. After Respondent became more upset, he moved to within inches of Mr. Rashley's face and asked him if he would approve the system. Mr. Rashley answered he would if Respondent fixed the violations. While Respondent yelled at Mr. Rashley only a few inches from his face, Mr. Rashley, feeling very uncomfortable, retreated to his vehicle and started to drive back to his office. Respondent got into his vehicle and tailgated Mr. Rashley the entire way. When they arrived at Mr. Rashley's office, Respondent told the secretary to call Mr. Rashley's boss. Claiming that Mr. Rashley had unfairly disapproved the system, Respondent asked Mr. Havig to visit the site himself. Mr. Havig agreed to do so. Mr. Havig visited the site on the morning of May 5 outside the presence of Respondent. He confirmed the violations. At their closest point, the drain lines were three feet four inches apart, and the septic tank lid was not sealed. Mr. Havig left a message for Respondent with this information. At Respondent's request, Mr. Havig agreed to meet Respondent at the site at 1:30 pm. Returning from lunch with two other men, Mr. Havig stopped off at the site to meet Respondent. He found that the header pipe violation had been corrected, but the other violations had not been. Mr. Havig and Respondent talked about the separation of the drain lines. Respondent said he could not move the pipe without disturbing the elevation, which is crucial to the functioning of the drainfield. Mr. Havig said he could either move the pipe or add another line so as to reduce the maximum separation between lateral lines to below 36 inches. Respondent complained that he could not maintain the position of the flexible pipe when pouring gravel over the pipes. Respondent became angry. He grabbed a section of the plastic pipe and said that he would show Mr. Havig. The gravel fell in behind the place where the pipe had rested. Respondent declared that he would get the homeowner's approval to cover up the system rather than modify it. Mr. Havig went to his car to get a camera, and Respondent began using a lot of vulgarity. As Mr. Havig took pictures of the installation, Respondent became angrier. His face turned red and he accused Mr. Rashley and Mr. Havig of harassing him. He warned Mr. Havig that, if they did not stop, they would have to suffer the repercussions. Moving very close to Mr. Havig and pounding his fist into his hand, Respondent asked Mr. Havig if he knew what Respondent meant. Mr. Havig said yes, that it was time for him to go. Respondent covered the system up shortly after Mr. Havig departed. Respondent did not allow a reinspection of the system to determine if he corrected either the separation of the drain lines, which he admits he did not correct, or if he sealed the septic tank lid, which he claims he did correct. Respondent has worked as a septic tank contractor in the area for 18 years. The likelihood of system failure is high if a septic tank lid is not properly sealed before the system is covered and placed into operation. Respondent appears to have been a responsible contractor. Based on these facts, there is enough doubt on the lid-sealing issue to preclude finding that Petitioner proved by clear and convincing evidence that Respondent did not seal the lid before covering the system. The pipes constituting the drain lines are manufactured to allow 18 inches of effluent to escape from either side of the pipe. By installing lines with more than 36 inches between each other or 18 inches between a line and a side, Respondent reduced the efficiency of the drainfield because parts of the drainfield, which lies beneath the lines, will not receive as much effluent as other parts of the drainfield. For awhile, due to safety concerns, Petitioner had to send two inspectors to inspect Respondent's work sites. Respondent never apologized to either Mr. Rashley or Mr. Havig until, acknowledging his unprofessional behavior, he apologized during the hearing. Respondent also noted that Petitioner has dealt with him professionally since the incidents in question. Petitioner and Respondent have had troubled dealings in the past. On one occasion, Petitioner insisted on the placement of a drainfield adjacent to an existing, failed drainfield, even though the existing and proposed drainfields drained directly into a canal. Respondent wanted to locate the drainfield well away from the canal. Unable to secure approval locally, Respondent took an appeal to Petitioner's representatives in Tallahassee, who approved Respondent's original, more sensible plan to relocate the drainfield. On the other hand, Respondent violated the minimum- separation rule for drain lines in 1993. Petitioner fined Respondent for the violation.
Recommendation It is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of violating Rule 10D-6.056(4)(b) and thus 10D- 6.075(2)(a) by installing a drainfield with excessive separation between drain lines, Rule 10D-6.075(4)(d) by failing to call for a required inspection, and Rule 10D-6.075(4)(l)1 by engaging in gross misconduct in his behavior toward two of Petitioner's employees. It is further recommended that the final order impose an administrative fine against Respondent in the amount of $500. ENTERED on July 14, 1995, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Floirda 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on July 14, 1995. APPENDIX Rulings on Petitioner's Proposed Findings All adopted or adopted in substance except that Respondent failed to seal the septic tank lid, which is rejected as unsupported by the appropriate weight of the evidence. COPIES FURNISHED: Susan Mastin Scott Senior Health Attorney Department of Health and Rehabilitative Services P.O. Box 60085 Ft. Myers, FL 33906 Attorney Melanie A. McGahee 333 S. Commercio, Suite B Clewiston, FL 33440 Robert L. Powell Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Martha Valiant, M. D. Director, Hendry County Public Health Unit P.O. Box 70 LaBelle, FL 33935
The Issue Whether Petitioner's application for a septic tank permit application should be granted?
Findings Of Fact On July 29, 1987, Petitioner applied for a septic tank permit for a proposed individual sewage disposal system to serve a single family residence on Lot 40, Block P, Killearn Lakes Unit I (Unit 1), in Leon County, Florida. A septic tank system consists of a tank and a drainfield which is wholly or partly underground. The decision of whether to grant a septic tank system permit is greatly influenced by the elevation of the wet season water table in the area where the septic tank system will be located. Under normal circumstances, the elevation of the wet season water table can be determined by taking a boring of the ground in question using an auger. If water is found at the time the boring is conducted, that is an indication of where the water table is located. If no water is found, the elevation of the wet season water table can be determined by examining the soil removed from the ground for signs of mottling. Mottling is the discoloration of the soil caused by the interaction of water with the minerals in the soil. The process of mottling takes place over hundreds of years. Therefore, a rapid change in conditions may cause the elevation of the wet season water table to be different than what would be indicated by mottling. Because of the development of Unit I and the drainage method used in Unit I (sheetflow), the elevation of the wet season water table in Unit I is estimated to be between 12 and 20 inches higher than what is indicated by mottling. On July 7, 1987, a boring was taken on an indeterminate area on Lot 40, by Certified Testing, Inc., a private engineering firm. The evaluation of the boring resulted in mottling being present at a depth of 60 inches. On August 3, 1987, Ms. Teresa A. Hegg, an Environmental Health Specialist with HRS, took two borings on Lot 40. The first boring was taken in an area other than where the septic tank system's drainfield would be located. This boring resulted in mottling being present at a depth of 45 inches. The second boring was taken in the area where the septic tank system's drainfield would be located. This boring resulted in mottling being present at a depth of 22 inches. Based on the boring taken at the proposed site for the septic tank system, showing mottling at 22 inches, and the estimate that the wet season water table in Unit I is from 12 to 20 inches higher than mottling would indicate, the estimated wet season water table for Lot 40 is between 2 to 10 inches below the ground surface. Unit I has a history of septic tank system failures. Unit I was platted prior to January 1, 1972. There exists a very high probability that any septic tank system, even a mound system, installed in Lot P-40 will fail.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent issue a final order denying Petitioner's application for a septic tank permit. DONE and ENTERED this 28th day of July, 1988, in Tallahassee, Florida. JOSE A. DIEZ-ARGUELLES Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4085 The Respondent has submitted proposed findings of fact which are addressed below. Paragraph numbers in the Recommended Order are referred to as "RO ." The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection First phrase accepted. Remainder of paragraph supported by competent evidence but unnecessary to the decision reached. First two sentences accepted. Third sentence supported by competent evidence but unnecessary to the decision reached. Accepted. Accepted. 5,6,7,8,9,10 Supported by competent evidence but unnecessary to the decision reached. Accepted. Accepted. 13,14 Supported by competent evidence but unnecessary to the decision reached. 15. First sentence accepted. Second sentence rejected; the wet season water table on Lot P-40 is from 2-10 inches below grade. Third sentence accepted. COPIES FURNISHED: Salvatore A. Carpino, Jr., Esquire One Urban Centre, Suite 750 4830 West Kennedy Boulevard Tampa, Florida 33609 John R. Perry, Esquire Assistant District II Legal Counsel Department of Health and Rehabilitative Services 2639 North Monore Street Suite 200-A Tallahassee, Florida 32303 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue in this case is whether Respondent, Connie H. Sanders ("Mrs. Sanders") violated provisions of Florida Administrative Code Chapter 64E-6, and, if so, whether revocation of her septic tank contractor's certification is warranted.
Findings Of Fact The Department is the State agency responsible for, inter alia, enforcing the provisions of chapter 381 and chapter 489, Part III, Florida Statutes, and the rules contained in chapter 64E-6, as those statutes and rules relate to septic tank contractor registrations. Mrs. Sanders has been a registered septic tank contractor since 1993. She has been in the septic tank business since 1982. At all times relevant to this proceeding, Mrs. Sanders operated under the name Lehigh Septic, Inc. She has since begun operating under the name AAA Lehigh Septic Tank Service. Mrs. Sanders' husband is also a registered septic tank contractor. When Mrs. Sanders began operating her new business, Mr. Sanders took over Lehigh Septic, Inc. Both Mrs. Sanders' business and Mr. Sanders' business operate from the same office and share administrative staff. Mrs. Sanders generally remains in the office to handle the business aspects of the two entities. Mr. Sanders goes into the field and conducts the hands-on, practical aspects of the businesses. The charges against Mrs. Sanders arose from the provision of services to a group home or assisted living facility (the testimony at final hearing referenced it both ways) located at 413 Richmond Avenue, Lehigh Acres, Florida, and referred to herein as the "Property." On January 18, 2011, George Harris called Mrs. Sanders' office seeking septic services at the Property. He said he had a problem with "smells" at the Property, which he attributed to the septic system. Mrs. Sanders, or her secretary, took the message and gave it to Mr. Sanders for follow-up. Harris called back the following day as well. On that day, a note was made on the phone log that someone was to do the work "today." A price of $350.00 was written in the margin of the note. Mr. Sanders went to the Property on or around the period including January 18 through 21, 2011, and pumped out a 900-gallon septic tank. Mr. Sanders had actually done septic tank work at the Property in 2008, but he has done work on thousands of tanks and does not have a specific memory as to what he did at the Property three years earlier. On January 24, 2011, Mrs. Sanders' telephone log indicated receipt of another call from Harris. This time, Harris said there was a problem with the septic tank "we [pumped out] last week." Harris said there was a defective drain field associated with the septic tank and wanted to know the "next step" and how much it would cost to repair it. On the following day, there was a note in the telephone log concerning the Property. The note indicated the call was about a "tank cert[ification]" and that someone needed to call the County Health Department regarding the size of the tank at the Property. On or about January 31, 2011, a DH Form 4015, entitled Department of Health Onsite Sewage Treatment and Disposal System Existing System and System Repair Evaluation, was completed, in part, by Mr. Sanders. Specifically, the certification section of the form was filled out by Mr. Sanders. He listed the following existing tank information: 1350 gallons septic tank, made of concrete and baffled; and An approximately 350 gallons dosing tank, made of concrete. Mr. Sanders also certified that "[t]he listed tanks were pumped on 1/24/11 by Lehigh Septic, Inc., have the volumes specified as determined by [method of determination left unchecked], are free of observable defects or leaks, and have a [type of filter not checked] installed." The certification was then signed as Connie H. Sanders, Lehigh Septic, Inc., but Mr. Sanders actually wrote the signature. Under the signature were the words, "[i]nstalled in series,"2/ and then the form is dated January 31, 2011. This form will be referred to herein as the "January 31 Certification." Mr. Sanders was authorized by Mrs. Sanders to sign documents on her behalf, so the January 31 Certification is essentially Mrs. Sanders' certified statement. Mr. Sanders delivered the January 31 Certification to Harris, assuming the certification was needed as part of Harris' licensure application for his assisted living facility or group home. Mr. Sanders believed he had provided such a certification for the Property in the past, and he often provided certifications to other group home type facilities. Mr. Sanders avers that he was not hired to do any additional work on the septic system at the property. Harris then apparently had some repair work done on his septic system by another company, Southwest Environmental, LLC. A permit application was filed at the Department on or about February 4, 2011, by Trinity Property, Inc. (apparently the entity which owns the Property), which sought approval to replace the drain field at the Property. Attached to the application was the January 31 Certification completed by Mr. Sanders. Neither Mr. Sanders, nor Mrs. Sanders, had knowledge the permit application was going to be filed at the Department as part of a repair permit application. Upon receipt of the permit application by the Department, it was quickly ascertained that the January 31 Certification was in error concerning the septic tank information. The 1350-gallon septic tank identified by Mr. Sanders did not exist. In fact, the Property had a 900-gallon septic tank, a 450-gallon septic tank, and a 400-gallon dosing tank. On February 10, 2011, Sabins contacted Mr. Sanders to let him know about the discrepancies on his DH Form 4015 related to the Property. Mr. Sanders indicated he would go out and pump the other two tanks, then submit a corrected certification form.3/ Mr. Sanders pumped the remaining tanks the very next day. Mr. Sanders also called the Department and spoke to Whelan. It was at that time that Mr. Sanders was advised that he could use the tank certifications he had done in 2008, because the certifications are good for up to three years. Mr. Sanders then submitted two more certifications to the Department. He submitted the certification from his 2008 visit (the "2008 Certification") and a revised certification dated February 11, 2011 (the "February 11 Certification"). The 2008 Certification identifies the two septic tanks and one dosing tank that existed on the Property. Mr. Sanders had pumped out at least one of those tanks on October 6, 2008. Invoices for that work indicated that Mr. Sanders had pumped the 900-gallon tank, but had not pumped the other two tanks. He went back on October 8, 2008, and pumped the remaining tanks. The invoice for the additional work says, "Pump dosing tank & cleaned sludge [no charge] per David/Driver. Didn't know other tanks were there." Under the quantity column on the invoice, however, 500 gallons is listed for the October 8, 2010, visit, even though there was a 450-gallon septic tank and a 400-gallon dosing tank that were allegedly pumped. The 2008 Certification is then signed and dated as of February 11, 2011, the same day as the other corrected certification. The February 11 Certification indicated that the Property had a 900-gallon septic tank, a 450-gallon septic tank, and a 400-gallon dosing tank. The certification said that all three tanks were pumped on February 11, 2011; however, Mr. Sanders actually pumped out the 900-gallon tank earlier (in the January 18 through 21, 2011, time period) and pumped the other two tanks on February 11, 2011. Neither the February 11 Certification, nor the 2008 Certification, is completely accurate in all respects, but they are sufficiently accurate to provide the Department the information it required. The purpose of a septic tank certification is to ensure that the tank is free from observable defects or leaks. As of October 6 through 8, 2008, Mr. Sanders believed the three tanks at the Property were in good condition. He did not have any knowledge whether they were in good condition as of the date he provided the January 31 Certification to the owner of the Property. However, Mr. Sanders could have relied upon his 2008 Certification at that time, thus, no further inspection was absolutely necessary. There is no evidence that Mrs. Sanders was personally aware of the errors made by Mr. Sanders concerning the activities at the Property; nor is there evidence that Mrs. Sanders had any knowledge that Mr. Sanders had prepared a certification (or three of them) containing her signature. However, Mrs. Sanders authorized Mr. Sanders to act on her behalf and must be held accountable for his actions in that regard. There were three prior disciplinary actions taken against Mrs. Sanders by the Department: In July 2003, the Department entered a Final Order imposing a fine of $1,000.00 for failing to properly abandon a septic tank and creating a sanitary nuisance; in May 2009, a Final Order was entered fining Mrs. Sanders $1,000.00 for failing to remove the entire contents of an onsite septic sewage treatment and disposal system and for doing business under an unauthorized name; and in June 2007, a Final Order imposed a fine of $1.000.00 for failing to remove the entire contents of an onsite septic treatment and disposal system. There is no evidence in this case that consideration of the three prior offenses would be necessary in order to prove a material fact in the present action. Mrs. Sanders became a septic tank contractor after marrying her husband. It has become her life's work and is the only thing she is qualified to do in order to make a living. She is responsible for operations of both her and her husband's businesses, and if she is not certified, both businesses could fail. Her husband is not in good health, and Mrs. Sanders is concerned that loss of her certification would be financially devastating for her and Mr. Sanders.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Department of Health, imposing a fine against Respondent, Connie H. Sanders, in the amount of $500.00 and that a letter of warning be issued stating the potential penalty for any repeat violation. DONE AND ENTERED this 8th day of September, 2011, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 8th day of September, 2011.
Findings Of Fact David D. Boak, Petitioner, owns a 3/4 acre lot at 9602 East Flora Street on which he proposes to put a two-bedroom house trailer. The area is rural in nature. There is no sewage service to the area and none is currently planned. Soil samples taken at the site show that from 9 inches to 48 inches below the surface the soil is a mixture of Manatee and Pompano fine sands which have poor percolation qualities. Soil Survey for Hillsborough County (Exhibit 1) describes the limitations of these soils for septic tank use as severe with wetness. Petitioner contends that he has lived on this property for 21 years and has had his septic tank pumped out once, 11 years ago; that he has never seen this property flooded; nor has he seen water standing on the property more than minutes following a heavy rain. Respondent's witnesses testified the water table at this site is 13 inches below the surface and septic tanks will not work properly in this area. When Petitioner's initial application for a permit was denied, he applied for a waiver. The application for waiver was presented to the review group pursuant to the provisions of Rule 10D-6.45(1), Florida Administrative Code, and the review group recommended the waiver be granted. However, the Staff Director, Health Program Office, denied the waiver and this appeal followed. The Hillsborough County Aviation Authority has condemned the land in this area, including that owned by Petitioner, for use as a county airport site. That condemnation proceeding is currently in litigation. If this property is ultimately taken for airport purposes, Petitioner will have no use for the variance here sought. Testimony was presented that the soil conditions plus the wetness factor make the site unsuitable for the installation of a septic tank. No evidence was presented regarding the pollution of surface waters by a septic tank in this area or whether public health will or will not be impaired if a septic tank is installed.
The Issue The issues to be resolved in this proceeding concern whether the Respondent has committed a violation of the "physical plant standards" contained in Rule 58A-5.023, Florida Administrative Code, contended by AHCA to be a Class II violation.
Findings Of Fact The Petitioner is an agency of the State of Florida charged with licensing and regulating adult living facilities. The Respondent, Blue Haven Retirement, Inc., owns and operates a 16 bed adult living facility, The Blue Haven Retirement Center, in Panama City, Florida. It was licensed by AHCA at all times material to this proceeding. On or about May 6, 2002, the Agency received a complaint regarding events and circumstances existing at the Respondent's facility. On May 7, 2002, the Agency surveyor, Ed Melvin, began investigating the complaint and spent approximately seven hours at the Blue Haven facility conducting an investigation by reviewing records, interviewing residents and others, and observing the operation and grounds of the facility. Mr. Melvin executed a survey report on May 7, 2002, detailing his findings. He cited the respondent for deficiencies including two deficiencies related to a hole in the backyard over the septic tank (where it had been pumped out in the past). These two deficiencies were for alleged failure to comply with "resident care standards" and with "physical plant standards". Although AHCA's pleadings charge that the Respondent had violated both specified regulatory resident care standards and the physical plant standards as observed by Mr. Melvin, on May 6 and May 7, 2002, the Agency withdrew the allegations regarding the resident care standards. Thus, the Agency continues to prosecute this case based upon violation of the physical plant standards only with regard to the circumstances and perceived effects of the hole in the backyard of the Blue Haven facility over its septic tank. The testimony and evidence adduced at hearing clearly focused on facts surrounding the existence of, and the circumstances pertaining to, the hole over the septic tank and its alleged danger or potential danger to residents of the facility. In the course of his investigation on May 7, 2002, Mr. Melvin observed a depression or hole in the ground over the lid to the facility septic tank. He believes the hole to be somewhere between a foot deep to 18 inches deep at its maximum depth. Mr. Fretwell, of the septic tank service company who had pumped the tank out, testified that the hole was already existing when he arrived to pump the septic tank out and he could see the top of the tank in the bottom of the hole about a foot to 14 inches below the ground surface. The hole over the septic tank lid had sloped sides so that the holes depth varied from a few inches to a foot or more at its deepest point. There is no photograph in evidence showing the exact configuration of the hole as it existed on May 7, 2002, when Mr. Melvin made his inspection. Thus the hole was between a foot and a foot and one-half deep at its deepest point, but was certainly more than a depression only two or three inches in depth as the Respondent seemed to claim at one point in the Respondent's case. The hole was between two feet square and three feet by two feet at the top or where the depression or hole began to descend from the grade level or ground surface of the yard surrounding the area in question. The hole was approximately 18 inches square at the bottom. There was a slope from the ground surface to the bottom of the hole. There is no evidence to clearly establish what degree of slope existed, but it was more than a gentle slope. There was no obstruction, shrubbery, brush, or structure blocking access to the hole although there were four to six boards or wooden slats covering the top of the hole, placed about four inches apart. There is no dispute that the septic tank lid was intact and in place and that there was no sewage leaking in the hole itself, even though the top of the concrete septic tank could be seen at the bottom of the hole. The residents of the facility are ambulatory and free to walk about the premises, including the backyard where the hole was located. The residents are a mix of people, some with mental disabilities who had previously been residents of the state hospital or various psychiatric facilities. There is no question that the residents are not of sufficient disability as to require immediate close supervision. There is no requirement that they be assisted in the normal activities of walking in a safe fashion. Although the residents have a variety of either psychological or physical problems or both, all are independent ambulators who are able to walk unassisted. The area of the hole was open, visible and well-enough marked because the boards were so placed over the hole as to draw anyone's attention who was walking in the area to the existence of the hole or at least the boards and to alert people of the hole's existence. There is no evidence that suggests that any person has stepped into this space and suffered any injury, or that there has been any complaint about the hole in the vicinity of the septic tank access point. Mr. Melvin opined that the risk of the hole's existence would be greater in hours of darkness or at night time because of the lack of light. The evidence showed, however, that there was ample light from two large overhead lights in the vicinity of this area in the backyard of the facility. Mr. Max Fretland who works for Hall Septic Tank Company pumped out the septic tank in April of 2002. He testified that he replaced the septic tank lid and covered the access point with some dirt and the boards. He testified that when he left in early April he did not perceive this area as a danger. Cham Hewitt is a case manager with the "Life Management Center." He had clients at Blue Haven and was familiar with the area and a frequent visitor to the facility. He testified that he was familiar with the boards across the hole area and had seen them. He did not perceive the area as a danger. Keith Peacock is a resident of Blue Haven retirement center and has lived there for approximately four years. Mr. Peacock was aware of the space or the hole but did not perceive it as a danger nor had he had any problems slipping or tripping or falling in this vicinity. He was unaware of anyone else having a problem with the area in dispute (i.e. the hole). Immanuel Connor is the husband of Verna Connor and is a co-owner and worker at the Blue Haven retirement center. He corroborated the fact that there were boards covering the septic tank access point or hole. He also established that when Mr. Melvin discovered the hole or deficiency involving the hole that Mr. Melvin insisted that a concrete block structure be built around the access point. Mr. Connor, with the assistance of another worker promptly accomplished this, blocking access to the hole (one wonders why the hole was not simply filled up and the location of the septic tank access point marked so that any future worker who was attempting to pump out the septic tank would readily find the access point). There is no question that, although a person could step into the hole and possibly suffer a foot, or ankle or leg injury, that an intervening event, such as a person failing to see the boards covering the hole, stepping into the area and turning their foot so that it would go between the four inch intervals of the boards would be a required event in order to cause any harm to a resident. There is no substantial evidence to clearly and convincingly suggest that the residents were not properly supervised with regard to use and access to this portion of the premises.
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 Agency for Health Care Administration finding that a Class III violation in the above particulars has occurred but, because the matter has been corrected, that no fine be imposed. DONE AND ENTERED this 30th day of May, 2003, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of May, 2003. COPIES FURNISHED: Thomas R. Moore, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Alvin L. Peters, Esquire Peters & Scoon 25 East Eighth Street Panama City, Florida 32401 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308
Findings Of Fact Respondent is registered with Petitioner for performing septic tank contracting services. In early 1991, Mr. Dennis Scott purchased a single family residence at 19169 Acorn Road in Ft. Myers. He purchased it as a rental property. About a year later, he began having problems with the septic tank system. He had the tank pumped out, but the problem returned a short time later. Mr. Scott told his maintenance man to contract with someone to fix the septic tank system. The maintenance man contacted Respondent. They agreed that Respondent would repair the system for $925. The record is silent as to specifically what the maintenance man told Respondent or what he told the maintenance man. In any event, Respondent and Mr. Scott did not converse. Respondent enlarged the existing drainfield, although the record does not indicate that he did so because he was asked to do so by the maintenance man or because Respondent thought that this repair would fix the problem. On May 28, 1992, Respondent and a team of employees appeared at the Acorn Road address to repair the septic tank system. Respondent left the site shortly after the men began work. Mr. Scott had nothing to do with the hiring of Respondent or even with paying him. Because Mr. Scott was unavailable, a friend wrote Respondent a check when the job was finished, and Mr. Scott later repaid the friend. On August 25, 1992, the system backed up again. Mr. Scott was not alarmed because of recent heavy rains. When the system backed up again a month later, Mr. Scott called Respondent, but could not get a call returned at first. Eventually, someone at Respondent's business said that he would come out and take a look at the system. In early December, 1992, the system backed up again and no one had come out to look at it from Respondent's business. At the request of Mr. Scott, another contractor visited the site and, on December 14, 1992, dug up the drainfield. The original drainfield had been installed improperly so as to run slightly uphill. This caused the system to operate inefficiently, although hydraulic pressure was evidently strong enough to draw the sewage through the drainfield. The record is unclear whether the extension installed by Respondent also ran uphill or whether Respondent improperly designed the extension. Mr. Scott and the second contractor testified that the extension ran uphill. However, one of Petitioner's inspectors inspected the drainfield addition before it was covered and certified that it was acceptable, which meant that it did not run uphill. The source of conflicting evidence, inasmuch as it comes from an employee of Petitioner, undermines Petitioner's case. The record is equally deficient to hold Respondent liable for poor design of the Acorn Road drainfield. There is no indication of what Mr. Scott wanted or, more importantly, what the maintenance man told Respondent. In any event, the evidence does not establish that Respondent installed an uphill drainfield. In early 1994, a house was listed for sale at 817 Gleason Parkway in Cape Coral. The listing agent informed the agent who had found a prospective buyer that there might be a problem with the septic tank system. The agent called Respondent's business and asked for a preclosing inspection of the septic tank system. The parties postponed the closing until the inspection could be completed and any necessary funds reserved to fix the system. The drainfield for the septic tank system at 817 Gleason Parkway was elevated due to the relatively high water table in the area. Even so, the system was poorly designed because the drainfield was too low and too small, based upon applicable requirements of law at the time of the original construction of the system and its renovation five years ago. Respondent was familiar with the system. He had reconstructed the system in 1990, although he did not redesign the new system, and had maintained the system since. He was aware that the tank had an automatic alarm that sounded when the fluid level became too high. In fact, Respondent conducted a cursory inspection due to his reliance on the automatic alarm in the tank, the imminent availability of centralized sewer service in the area, and possibly his unwillingness to disappoint a real estate agent by jeopardizing a pending sale. Among other omissions was his failure to probe the drainfield to determine its condition. Had Respondent conducted a competent inspection, he would have found that the stones in the drainfield were greasy, indicative of a failing system. Much of the time sewage water stagnated beside the drainfield mound. If pooled water were not present at the time of his inspection, the tall dollarweed growing on the mound should have alerted him to the prevailing damp conditions. Additionally, Respondent should have noticed lawnmower tracks through the typically soaked areas around the drainfield, as well as the thick grass that was uncut due to the soaked ground under it. Although water may not have been erupting from the drainfield mound at the time of Respondent's inspection, a reasonably close examination of the area would have revealed a small hole where sewage had erupted in the recent past from the mound. Instead, Respondent certified on April 4, 1994, that the "septic tank was in good working order." Respondent had been contacted to inspect the septic tank system, including the drainfield. Respondent was aware of the scope of his assignment, and his certification implied that the entire system was in good working order. Within two weeks after Respondent's certification, the system failed completely. Petitioner ordered the new owner to incur substantial expenses to repair the onsite system until he could tie into centralized sewer services.
Recommendation It is hereby RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order imposing against Respondent a $500 administrative fine and suspending his license for 90 days. ENTERED on March 30, 1995, in Tallahassee, Florida. ROBERT E. MEALE 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 on March 30, 1995. APPENDIX Rulings on Petitioner's Proposed Findings 1-2: adopted or adopted in substance. 3: rejected as recitation of evidence and subordinate. 4-5: adopted or adopted in substance. 6-15: rejected as recitation of evidence and subordinate. 16: adopted or adopted in substance. 17-19: adopted or adopted in substance. 20: rejected as unsupported by the appropriate weight of the evidence. Rulings on Respondent's Proposed Findings 1-2: adopted or adopted in substance. 3-4: rejected as unsupported by the appropriate weight of the evidence, recitation of evidence, and subordinate. 5: rejected as irrelevant. 6: rejected as unsupported by the appropriate weight of the evidence, recitation of evidence, and subordinate. 7-9: rejected as subordinate and irrelevant. 10: rejected as irrelevant. The rule speaks of harm to any "person," not to a customer or other person in privity with the contractor. 11: rejected as unsupported by the appropriate weight of the evidence. 12: adopted or adopted in substance, but Petitioner's indirect responsibility does not excuse Respondent's grossly incompetent inspection of the system. 13-14: adopted or adopted in substance. 15: rejected as unnecessary. 16-17: rejected as subordinate. COPIES FURNISHED: Susan Mastin Scott, Senior Attorney Department of Health and Rehabilitative Services P.O. Box 60085 Ft. Myers, FL 33906 Thomas B. Hart Humphrey & Knott, P.A. P.O. Box 2449 Ft. Myers, FL 33902-2449 Kim Tucker, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Robert L. Powell Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
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
