The Issue Whether Respondent, Virgil Cardin, d/b/a Virgil Cardin Septic Tank Service (Respondent or Cardin), committed the violations alleged in the Administrative Complaint for Imposition of Administrative Fines and Revocation of Septic Tank Contractor License and Business Authorization, dated December 28, 2012, and, if so, what penalty should be imposed.
Findings Of Fact The Parties Petitioner is the state agency charged with the responsibility of administering the Standards for Onsite Sewage Treatment and Disposal Systems (SOSTDS). The installation, repair, and/or alteration of any septic tank system fall within the purview of Petitioner's authority. Public health concerns mandate that all septic tank systems be operated according to governing laws and rules. Respondent is a resident of the State of Florida and is registered by Petitioner to provide septic tank contracting services within the state. Respondent's registration number is SR0890865. Respondent owns and operates Virgil Cardin Septic Tank Service located in Lakeland, Florida, and the company is authorized to provide septic tank contracting services. The company's authorization number is SE093690. Septic tank contracting services are governed by SOSTDS. The Controversy It is undisputed that a permit must be obtained prior to performing repairs to a septic tank system. In Polk County (where all actions complained of occurred), a septic tank service company is required to apply for a permit before work is performed, obtain an inspection by appropriate authorities before beginning work, and complete all work in accordance with designated standards. A septic tank pump-out does not require a permit. Any work that would involve the exposure of the drain fields and/or the refitting of portions of the septic system would require a permit. The controversy in this case stems from Respondent's failure to obtain a permit before beginning repairs to a septic tank system located at 4931 Rolling Meadows Drive, Lakeland, Florida. It is undisputed that Respondent did not, in advance of starting work at the home, obtain a permit. The Arguments The Digans own a home located at 4931 Rolling Meadows Drive, Lakeland, Florida. For several years, the Digans have experienced problems with their septic tank system to the point that waste from the septic system has backed up into their home. Previously, Respondent addressed the Digans' septic tank system problems by pumping the waste from the tank, thereby eliminating pressure on the overwrought system. On or about August 24, 2012, Respondent went to the Digans' home and pumped out the septic tank. A permit for the work done that date was not required. Given the history of the problems with the Digans' system, it became apparent to the owners and Respondent that comprehensive repairs to the system were necessary. As there was no way to predict when another pump-out might be required, it was not surprising that approximately one week later Respondent returned to the Digans' property for additional work. On that date, September 1, 2012, Respondent could not pump out the Digans' tank, because his truck was already full. Instead, Respondent took a backhoe to the Digans' property and began to dig trenches for the drain field. Respondent's employee began to construct a septic drain line header pipe with drain field chamber end plates attached. Respondent exposed the Digans' septic system as if he were going to make repairs to the system. When confronted by two environmental supervisors who observed Respondent's actions, Respondent readily admitted he did not have a permit for the work. At first, Respondent stated that the homeowners could not afford permits. Later, Respondent maintained that the work he performed on September 1, 2012, did not require a permit. Petitioner maintains that Respondent went to the Digans' home on September 1, 2012, to make repairs to the septic tank system without prior inspection or a required permit. The Analysis Prior to September 1, 2012, Respondent knew or should have known that the Digans' septic tank system needed extensive repairs. Respondent had pumped out the tank several times and should have known that the system was not functioning as intended. Prior to September 1, 2012, Respondent knew or should have known that repairs to any septic tank system require an inspection and permit. On September 4, 2012, after being caught the prior Saturday on the Digans' property, Respondent applied for a permit for the repairs to the Digans' septic tank system. On September 5, 2012, a repair permit was issued for the Digans' property. On September 7, 2012, the repairs to the Digans' system were inspected and approved. There was no emergency on September 1, 2012, that necessitated repairs to the Digans' septic tank system on that date. Pumping out the Digans' tank on that date would have addressed any immediate concern. On-site inspections before septic tank systems are repaired are critical to public health because they assure that groundwater contamination is avoided, that the existing tank is sound and will function as intended, and that setbacks to other properties, wells, or systems are adequate. Respondent knew or should have known that performing any work before an inspection negates the safeguards to public health concerns. Respondent knew or should have known that the materials needed to adequately repair the Digans' septic tank system exceeded the chambers he took to the site on September 1, 2012. Digging up the Digans' system on September 1, 2012, created a sanitary nuisance. Respondent's History In the event a violation is found in this case, Respondent's disciplinary history would be relevant in considering what penalty, if any, should be imposed. To that end the following findings are made: Respondent has previously been found in violation of failing to call for a required inspection; and Respondent has previously been found in violation of practicing fraud or deceit, making misleading or untrue misrepresentations, or misconduct that causes no monetary harm to a customer.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent's authorizations to perform septic tank services be suspended for a period not less than 90 days. Additionally, it is RECOMMENDED that Respondent be required to pay an administrative fine in an amount not less than $2,000.00. DONE AND ENTERED this 6th day of May, 2013, in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 2013. COPIES FURNISHED: John H. Armstrong, M.D., F.A.C.S. State Surgeon General Department of Health Bin A00 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 Jennifer A. Tschetter, General Counsel Department of Health Bin A02 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 Althea Gaines, Agency Clerk Department of Health Bin A02 4052 Bald Cypress Way Tallahassee, Florida 32399-1703 Tony C. Dodds, Esquire Law Office of Tony C. Dodds 904 South Missouri Avenue Lakeland, Florida 33803-1034 Roland Reis, Esquire Polk County Health Department 1290 Golfview Avenue, Fourth Floor Bartow, Florida 33830-6740
The Issue The issue is whether Petitioner created a sanitary nuisance in violation of Florida Administrative Code Rule 64E- 6.022(1)(d)(l) and (q) and, if so, the proper penalty.
Findings Of Fact The Department of Health, Duval County Health Department (Department), is the 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 Chapter 64E-6. Mr. Smith is a qualified contractor employed by All Florida Septic Tank Service, Inc. (All Florida). The citation issued on April 15, 2004, identifies Mr. Smith's registration number as SR0011389 and All Florida's registration number as SA0000956. The citation describes the alleged violations as follows: On March 8, 2004, a repair application was submitted to the Duval County Health Department (DCHD) for 8817 & 8821 Bellrose Avenue, Jacksonville, FL 32244. All Florida Septic Tank Service, Inc. was indicated as the agent for the applicant/property owner, Ben Lewis. On April 8, 2004, Robert Hoag, qualifying contractor for Plumbing and Contracting by Hoag, disconnected the stub out line running from the house to the existing septic tank prior to installation of new septic tanks thus creating a sanitary nuisance. The existing septic tanks were abandoned at said property by All Florida Septic Tank Service, Inc.; DCHD was not notified of tank abandonment as required for inspection. Water supply was not turned off during he time of construction. On April 9, 2004, Colleen Bierbach, DCHD inspector, observed and photographed prima facie evidence of untreated human waste discharge onto ground surface at 8817 & 8821 Bellrose Avenue. Mr. Smith accepted the citation on April 15, 2004. On the same date, Mr. Smith wrote a letter to Scott Turner of the Department of Health, in response to the citation. His letter reads as follows: Mr Scott Turner, On April 8, 2004 All Florida Septic Tank Service Inc. started a job at 8817 and 8821 Bellrose Avenue in which new tanks and drainfields were required. In order for the new drainfield to be installed the existing tank had to be abandon [sic] prior to any work being done. The two existing referenced tanks were properly pumped out an abandoned on April 8, 2004. The new septic tanks were scheduled to be installed that same day. Due to mechanical problems with the crane truck, the tanks were unable to be set that day, causing the contracted plumber, Robert Hoag, to be unable to tie in the new sewer line. On the following day April 9, 2004 tanks (1500 gallon septic tank) and (750 gallon dosing tank) were installed with a different truck. At that time the contracted plumber was onsite to immediately tie in the sewer line. In the mean time the Duval County Health Department came to do the required inspection of the new system, at which time Colleen Bierback of the Health Department observed a small amount of sewage on the ground and photographed the site. Mr. Hoag immediately tied the sewer in at the same time, fixing the sanitary nuisance within one hour after inspection. According to Mr. Smith, sanitary problems existed at this work site for months. That is, raw sewage had been coming out of the old septic system for a long time. In Mr. Smith's words, "I was there to fix the sanitary nuisance, not create it." The owner of the property in question engaged Mr. Hoag, of Plumbing and Contracting by Hoag, to accomplish the plumbing portion of the operation. While Mr. Smith's letter stated that the new septic tanks were actually installed on April 9, 2004, Mr. Smith testified at hearing that he performed excavation services, installed a new drainfield and set the new septic tanks on April 8, 2004. The sand and new drainfield had to be put in first and the new tanks installed last. The plumber, Mr. Hoag, would be responsible to make the necessary pipe connection on the new tanks. However, Mr. Hoag did not make the necessary pipe connection and the occupants of the residences used the facilities between April 8, 2004, and April 9, 2004. Mr. Smith did not call anyone to inspect the old septic tank upon abandonment. According to Mr. Smith, it is common practice in the Jacksonville area to not call for an "abandonment" inspection when the contractor has a permit to install a new tank. The Department's inspector, Colleen Bierbach, acknowledged that All Florida called for an installation inspection of newly installed tanks on April 8, 2004. On the morning of April 9, 2004, after the new tanks had been installed, Ms. Bierbach went to 8817 and 8821 Bellrose Avenue. She observed raw sewage on the ground flowing toward the septic tanks. She took photographs of what she observed, but the copies of the photographs received in evidence are too blurry to show the extent of what she saw. Mr. Smith arrived at the work site just after Ms. Bierbach arrived on April 9, 2004. The description of the violation in the citation states that Mr. Hoag, the plumber, "disconnected the stub out line running from the house to the existing septic tank prior to the installation of the new septic tanks thus creating a sanitary nuisance." The evidence is insufficient to prove that Mr. Smith's actions, as opposed to the actions of Mr. Hoag, caused the unsanitary conditions.
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. Smith on April 15, 2004. DONE AND ENTERED this 26th day of April, 2006, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 26th day of April, 2006. COPIES FURNISHED: Catherine R. Berry, Esquire Department of Health 515 West Sixth Street Jacksonville, Florida 32206-4311 James L. Smith All Florida Septic Tank Service, Inc. 8300 W. Beaver Street Jacksonville, Florida 32220 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. M. Rony Francois, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701
The Issue The issue is whether Respondent should have his license suspended and an administrative fine imposed for allegedly committing fraud and deceit in the practice of contracting, providing septic tank contracting services without an operating permit, and submitting a fabricated building permit number to obtain a final inspection approval of a job.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Generally When the events herein occurred, Respondent, Willie A. Harmon, operated a septic tank business in Santa Rosa County, Florida, under the name of Willie Harmon's Septic Tank Service. That profession is regulated by Petitioner, Department of Health (Department). In this proceeding, the Department alleges that Respondent violated its rules law on three separate occasions in 1995, 1996, and 1997. Each alleged violation is discussed below. The Iris Lane Citation In April 1997, William M. Newell, who manages various rental properties in Santa Rosa County (County), hired Respondent to pump out a backed up septic tank system located at 1824 Iris Lane, Navarre, Florida. The system was an older one with a sand bottom, a type sometimes found in the southern part of the County. The job was performed by Respondent on April 21, 1997, and it called for Respondent to pump the tank dry. Respondent received payment from Newell for these services. On the evening of April 22, 1997, Newell returned to the premises and found the lid back on the system. Assuming that the job was completed, he telephoned the Santa Rosa County Health Department to request an inspection of the tank, as required by law. Larry Thomas, an environmental supervisor, inspected the tank on April 23, 1997, and found approximately five inches of solids still remaining in the tank and the remainder of the tank full of water. A properly pumped out tank would be dry. Newell immediately contacted Superior Septic Tank Service in Crestview, Florida, to repump the tank. Earl Raybon, an employee of that firm, inspected the tank and assumed it had not been pumped out since it was full of water and had a layer of sludge at the bottom. Raybon observed that the walls and lid of the system were "in good shape," but it needed a replacement liner. Raybon then repumped the tank until the system was dry. When Respondent was later asked by Newell and Thomas why the tank had sludge and water, Respondent advised them that water and solids must have bled (leached) back into the tank through the sand bottom. Although it is not uncommon for groundwater to seep back into a tank through a sand bottom, it is highly unlikely that the tank would completely refill with water within two days, unless the area experienced heavy rains. There was no evidence that this occurred. Further, it is not possible for solids to seep back into the tank under any circumstances. Respondent's explanation that this accounted for the solids in the tank is not deemed to be credible. Respondent also explained that in order to prevent the ingestion of sand into his equipment, he had to leave some sludge at the bottom of the tank. Raybon established, however, that under current industry standards, it is the responsibility of the contractor to pump a tank dry, even if one gets sand in his equipment. Consistent with that practice, Raybon pumped the tank dry. Respondent finally contended that if he had pumped the tank dry, the sides of the system might have collapsed. This occurs, however, only when there is water pressure on both sides of the system. Because the second contractor pumped the system dry without incident, it is found that a collapsing system was not a valid concern. By failing to pump the tank dry, as required by industry standards, Respondent committed fraud and deceit on the customer. In addition, this misconduct caused the customer to incur monetary harm in that the customer had to pay a second contractor to finish the job. The Deer Lane Citation In early December 1995, Respondent installed a new septic tank system on a mobile home lot at 9050 Deer Lane, Navarre, Florida. Before the final written inspection approval for a new septic tank system can be given by the Department, the building permit must be attached to the application. It is the responsibility of the owner, and not the septic tank contractor, to obtain the building permit. Alternatively, if the lot is still undeveloped, as it was here, approval of the system may be obtained without a building permit by simply securing a yellow- green temporary sticker from the Department. On December 5, 1995, Respondent submitted paperwork to the Santa Rosa County Health Department reflecting that building permit number 95-608 had been issued to the owner. He contended that this number was obtained over the telephone from the owner, and this claim was not contradicted. However, a building permit was not issued to the owner until December 7, 1995, and it carried permit number 95-4144. The local department immediately discovered the difference in the two numbers and charged Respondent with fraud and deceit. There was no intent on the part of Respondent to commit fraud or deceit on the Department. Indeed, he could have obtained an inspection and final approval without a building permit being issued since the lot was still undeveloped. Moreover, he had no financial incentive to fabricate the permit number. Therefore, it is found that he did not commit fraud or deceit in the practice of contracting. The Webster Street Citation In order to perform septic tank services, a contractor must be registered with a county health department. By having an operating permit from one county health department, a contractor may perform services in other counties as well. Therefore, an operating permit in Okaloosa County would enable Respondent to perform services in Santa Rosa County. On June 27, 1996, Respondent partially pumped a tank at 7843 Webster Street, Navarre, Florida. At that time, he held no active registrations to perform the work. He eventually obtained an operating permit from the Okaloosa County Health Department on July 29, 1996. According to a representative of the Okaloosa County Health Department, it allows contractors who have previously had permits issued by that Department to work without a valid registration while their applications are being processed. This process usually, but not always, takes no more than two or three weeks. Whether Respondent had previously been issued a registration by the Okaloosa County Health Department is not of record. It is also unknown when Respondent filed his application with that Department, although he says that he had an application pending when the questioned job was performed. Because of these record deficiencies, it is found that, even though Respondent had no valid operating permit on June 27, 1996, he rightly assumed that such work was permissible under then existing policy of the Okaloosa County Health Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a Final Order finding Respondent guilty of violating Rules 64E-6.022(1)(k) and (l)2., Florida Administrative Code, and that Respondent be assessed a $500.00 administrative fine. The charges in the two citations should be dismissed. DONE AND ENTERED this 21st day of January, 1998, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 Filed with the Clerk of the Division of Administrative Hearings this 21st day of January, 1998. COPIES FURNISHED: Angela T. Hall, Agency Clerk Department of Health Building 6, Room 102 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Rodney M. Johnson, Esquire 1295 West Fairfield Drive Pensacola, Florida 32501 Willie A. Harmon Post Office Box 733 Fort Walton Beach, Florida 32548 Pete Peterson, Esquire Department of Health Building 6, Room 102 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The basic issue in this case concerns whether the Petitioners are entitled to reimbursement from the Construction Industries Recovery Fund.
Findings Of Fact On or about December 5, 1994, the Petitioners entered into a contract with an entity named James Plumbing, Inc., pursuant to which James Plumbing, Inc., agreed to perform specified plumbing work for a two-story duplex the Petitioners were building. The total contract price for the plumbing work was $10,000.00. Article 4 of the contract, titled "Progress Payments," contained the following language: On completion of rough-in plumbing $4,000.00 is due, at top out of all riser pipes and runs for plumbing an additional $4,000.00. The final payment of $2,000.00 to be paid upon final completion and hookup of all plumbing items and approval of same by City of Delray Building Department. A lien release will be required upon final payment by James Plumbing, Inc. Owner's (sic) will furnish lien release to James Plumbing, Inc., for execution. The contract described above also included language to the effect that the work to be performed under the contract would be commenced "as per owner/builder schedule," and the work would be substantially completed in the spring or summer of 1995 "as per schedule of owners." At the time of the signing of the contract described above, and at all other times material to this case, James Plumbing, Inc., was a Florida corporation that had been administratively dissolved by the Florida Department of State. At the time of the signing of the contract described above, and at all other times material to this case, an individual named James West was licensed by the CILB as a "Certified Plumbing Contractor." At the time of the signing of the contract described above, and at all other times material to this case, James West purported to be the "qualifier" for the entity known as James Plumbing, Inc. James West was the original incorporator of the corporation named James Plumbing, Inc. At all times material to this case, James West was the only person who had any ownership interest in, or had any control over the affairs of, the corporation named James Plumbing, Inc. James West, doing business under the name of the defunct corporation named James Plumbing, Inc., finished the "rough-in" in June of 1995 and finished the "top out" in March of 1996. Consistent with the terms of the contract, he was paid $4,000.00 in June of 1995 and he was paid $4,000.00 in March of 1996.1 For several reasons not material to the issues in this case, progress on other aspects of the construction project took longer than expected and in was not until the spring of 1999 that the Petitioners contacted James West to schedule the completion of the plumbing work under the contract signed in December of 1994. As a result of disagreements regarding the scheduling of the plumbing work, by letter dated April 12, 1999, the Petitioners advised James West that they had elected to terminate the plumbing contract dated December 5, 1994. Neither James Plumbing, Inc., nor James West individually ever performed the work that remained to be performed under the contract dated December 5, 1994, after the "top out" that was completed in March of 1996. In order to finish the plumbing work that remained to be done under the contract dated December 5, 1994, the Petitioners hired another plumbing contractor, Lee Wilder Plumbing, Inc. ("Wilder"). During the course of finishing the plumbing work, Wilder discovered that some of the work done by James West was incomplete and that some of the work done by James West had been done improperly and had to be redone. Wilder finished the work that remained to be done under the contract dated December 5, 1994, and also corrected the mistakes in the work that James West had done. For these services the Petitioners paid Wilder a total of $2,967.50. In order to correct the mistakes made by James West, it was also necessary to remove portions of existing interior walls and to then rebuild and paint those portions of the interior walls. This work on the interior walls cost the Petitioners an additional $1,000.00. As a result of the matters described in paragraphs 6, 7, and 8, above, the completion of the Petitioners' building was delayed. By reason of the delay, the Petitioners lost rental income in the amount of $4,350.00. The Petitioners filed a civil action in the County Court in Palm Beach County, Florida, against James West seeking to recover compensation for the harm caused by the failure of James West to properly perform his obligations under the contract of December 5, 1994. On September 3, 2002, the Petitioners obtained a final judgment against James West, individually. The judgment was in the total amount of $8,082.35, comprised of the following elements: Plumbing completion and repairs $2,967.50 Demolition and repair of walls $1,000.00 Cost of water heaters2 $400.00 Loss of rental income $4,350.00 Subtotal $8,717.50 Less $2,000.00 set off ($2,000.00) Plus prejudgment interest $1,364.85 Total Judgment $8,082.35 The final judgment includes the following language: Under the contract, work was to be completed by spring or summer, 1995. The Defendant actually finished the top-out installation in 1996 but the project was delayed due to a dispute the Plaintiffs had with the city in regard to paving an alley. The Plaintiffs contacted the Defendant in 1999 to finish the work, however, the Defendant requested additional money which he wanted up front. The Plaintiffs did not mind the additional money but objected to paying up front. They terminated the 1994 contract and hired Lee Wilder Plumbing, Inc., to complete the job of installing the fixtures. In May, 2000, the Plaintiffs discovered there was no hot water. The Defendant refused to come out and check on the problem so Lee Wilder Plumbing, Inc., was called. The evidence showed that cuts had to be made in the walls and floor to find the problem. While the Defendant asserts that the problem was crossed pipes which was easy to correct, he never came out to look at the job site. Instead, the evidence showed that there was a hot water pipe missing, that the two cold water pipes were not connected to anything and a new pipe had to be installed getting hot water to the second floor. The evidence further showed that the Defendant did all of the rough plumbing under the slab and top- out plumbing inside of the walls. Pursuant to F.S. 95.11(3)(c), the Court finds the plumbing defect to be a latent defect. Further, the Court finds that the Defendant is responsible for that latent defect. In addition to damages to correct the latent defect, the Plaintiffs seek damages for the cost of hot water heaters and loss of rent/loss of use for three months delay to correct the plumbing problem. It is well settled that the purpose of damages are (sic) to place the injured party in the position it would have been. Tucker v. John Galt Ins. Agency Corp., 743 So. 2d 108 (Fla. 4th DCA 1999). The Court finds that Plaintiffs are entitled to [re]cover the cost of repairing the latent defect in the amount of $2,967.50 and $1,000.00 for the cost of repairing the walls and floor. Further, the Plaintiffs are entitled to recover for the cost of the water heaters of $400.00 and loss of rental income for one unit at $4,350.00. In addition, the Defendant is entitled to a set off of $2,000.00, as the Plaintiffs agreed to pay the Defendant $10,000.00 for the plumbing work in which they actually paid the Defendant $8,000.00. The measure of damages is the cost to complete contract price because parties already agreed to pay contract price for completed work. American Structural Systems, Inc. v. R. B. Gay Const. Co., Inc., 619 So. 2d 366 (Fla. 1st DCA 1993). Measure of damages is contract price diminished only by damages suffered. Fleming v. Urdl's Waterfall Creations, Inc., 549 So. 2d 1057 (Fla. 4th DCA 1989). In addition to the final judgment described above, the Petitioners also received a judgment for costs against James West in the amount of $972.27. The amounts of the final judgment ($8,082.35) and the judgment for costs ($972.27) total $9,054.62. Following the entry of the judgments against James West, the Petitioners made numerous unsuccessful efforts to satisfy the judgment. Despite diligent search and inquiry, the Petitioners were never able to locate any property of James West that could be applied to the satisfaction of the judgments against James West. On or about November 27, 2002, the Petitioners signed a claim form seeking restitution from the Construction Industries Recovery Fund. Their claim was received by the CILB on or about December 3, 2002. Following consideration of the Petitioners' claim, the CILB voted to deny the claim. An order to that effect was issued and filed on January 28, 2004. In that order the CILB gave the following reasons for its denial of the claim: Upon consideration of the documentation and testimony submitted, it is ORDERED: Claimants filed to satisfy all requirements for payment from the Recovery Fund. There is no evidence in the file to support the amount of actual damages suffered. Section 489.141(2)(c), states that a person is not qualified to make a claim for recovery from the Construction Industries Recovery Fund, if such person has suffered damages as the result of making improper payments to a contractor as defined in part I of chapter 713. There is no evidence in the file that the liens filed by subcontractors were valid liens under Chapter 713, Florida Statutes. At the beginning of the final hearing the Respondent stated on the record that it was still relying on the reason set forth in subparagraph a, above, but that it was abandoning the reasons for denial set forth in subparagraphs b and c, above. The Respondent also stated on the record that it was of the view that there were two additional reasons for denying the subject claim. The two additional reasons were described as follows: That the underlying court judgment on which the Petitioners' claim is based is not a judgment based on an act that constitutes a violation of subsections (g), (j), or (k) of Section 489.129, Florida Statutes, and That the corporation for which the individual contractor purported to be the qualifier was not licensed at the time of the violations that caused financial harm to the Petitioners. The Petitioners' first notice of the CILB's change in position appears to have been when these two new reasons were stated during the opening moments of the final hearing. In its proposed recommended order the Respondent raises for the first time a third new reason for denying the subject claim. This third new reason is set forth in the underscored portion of the following language from paragraph 28 of the Respondent's proposed recommended order: 29. An asset search indicates that there are no assets from which the judgment can be satisfied. However, James West held at the time of the judgment, and still holds today, an active license. There is no proof that Petitioners exhausted all efforts and demonstrated an inability to collect the judgment as required by Rule 61G4-21.003(2), Florida administrative Code.
Recommendation In view of all of the foregoing, it is RECOMMENDED that a final order be issued in this case concluding that the Petitioners are entitled to reimbursement from the Construction Industries Recovery Fund in the amount of their final judgment and their cost judgment, for a total reimbursement amount of $9,054.62. DONE AND ENTERED this 30th day of July, 2004, in Tallahassee, Leon County, Florida. S MICHAEL M. PARRISH 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 July, 2004.
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint issued against him and, if so, what disciplinary action should be taken against him.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent is now, and has been at all times material to the instant matter, registered as a septic tank contractor with the Department. In July 2002, Respondent entered into a contract with Pro Gold Investments Corp. (Pro Gold), whose president and sole owner is Emerico Kemeny Fuller. The contract provided that Respondent would install a "new septic system" for Pro Gold at 453 Blue Road in Coral Gables, Florida (Blue Road Property) for $4,600.00, a job that should have taken only a "few days" to complete. Pro Gold gave Respondent a "job deposit" of $2,300.00. In July 2003, Pro Gold, by Warranty Deed, conveyed title to the Blue Road Property to Maurits de Blank's company, Mortgage Lending Company LLC (MLC), and it also executed a Bill of Sale, Absolute and Assignments of Contracts, which read as follows: PRO GOLD INVESTMENTS CORP, as Seller, in consideration of Ten Dollars ($10.00) and other valuable consideration paid to it by MORTGAGE LENDING COMPANY, LLC, as Buyer, the receipt of which is acknowledged hereby sells, assigns, grants, transfers, and conveys to Buyer all of Seller's right, title, and interest in the following described goods, contracts and personal property: SEE ATTACHED EXHIBIT "A- PROPERTY" AND EXHIBIT "B- CONTRACTS ASSIGNED" Seller covenants and agrees that it is the lawful owner of goods, contracts, rights or interests transferred hereby; that they are free from all encumbrances, except for outstanding amounts due, if any, to those parties set forth on Exhibit "B," and that it has the right to sell, transfer and assign the goods, properties and rights set forth in the attached Exhibit "A," and the right to transfer and assign the contracts, rights or interests shown on Exhibit "B," and will warrant and defend same against the lawful claims and demands or all persons. The "attached Exhibit 'A- Property'" read, in pertinent part, as follows: (Regarding transfer of 453 Blue Road, Coral Gables, Florida, "the Real Property") (Mortgage currently in favor of Mortgage Lending Company, LLC "the Mortgage") All property rights of any kind whatsoever, whether in property that is real, fixed, personal, mixed or otherwise and whether in property that is tangible or intangible, including, without limitation, all property rights in all property of any kind whatsoever that is owned or hereafter acquired by the Company and that is associated with, appurtenant to or used in the operation of the Real Property or is located on, at or upon the Real Property and is associated with or used in connection with or in operation of any business activity conducted on, at or upon the Real Property, and including, without limitation, the following: * * * All right, title, and interest in those certain contracts and agreements [set] forth in the attached Exhibit "B," which are hereby transferred and assigned to Mortgage Lending Company LLC. Among the "contracts and agreements [set] forth in the attached Exhibit 'B,'" was the aforementioned July 2002, contract wherein Respondent agreed to install a "new septic system" for Pro Gold on the Blue Road Property (Septic System Contract). This contract was still executory. Respondent had not done any work on the site in the year that had passed since the contract had been signed. In the beginning of August 2003, Mr. de Blank met with Respondent and advised him that MLC was the new owner of the Blue Road Property and that MLC had also received an assignment of the Septic System Contract from Pro Gold. In response to this advisement, Respondent stated "he did not do assignments." Following this meeting, Mr. de Blank sent Respondent documentation supporting the assertions he had made regarding MLC's ownership of the Blue Road Property and its having been assigned the Septic System Contract. Mr. de Blank then attempted, unsuccessfully, to make contact with Respondent by telephone. He "left messages," but his telephone calls were not returned. These efforts to telephonically communicate with Respondent having failed, Mr. de Blank "decided that it may make some sense to start a letter writing program." As part of that "program," on September 8, 2003, Mr. de Blank sent Respondent the following letter: Re: 453 Blue Road, Coral Gables As background, and in chronological order: Pro Gold Investments purchased the above cited property and obtained a construction loan from our firm. One of the conditions was that all construction contracts would be assignable to our firm in the event of default. Pro Gold Investments entered into contract with your firm to install a new septic tank and drainfield at 453 Blue Road. Pro Gold Investments defaults and forfeits title in lieu of foreclosure. The deed was recorded on August 4, 2003, at Bk/Pg: 21484/4283. Not recorded but attached for your reference is an assignment of contracts to include the contract Pro Gold Investments entered into with your firm. See further attachment. The original can be inspected in my office. At this point, I request you proceed with the work as soon as practical and under identical conditions as originally agreed with Pro Gold Investments. Please call me at . . . to confirm a start date. Mr. de Blank did not receive any response to his letter. He finally was able, however, to reach Respondent on the telephone. During this telephone conversation, Mr. de Blank made arrangements to meet Respondent at the Blue Road Property to discuss Respondent's doing the work Respondent had agreed to do in the Septic System Contract. This meeting between Mr. de Blank and Respondent took place on September 11, 2003. During the meeting, Mr. de Blank went over with Respondent "what the job [was] going to be." Although Respondent indicated that he was "going to put in th[e] septic tank" per the Septic System Contract, Mr. de Blank had his doubts that Respondent would be true to his word. Following the meeting, Mr. de Blank sent Respondent the following letter: Re: 453 Blue Road, Coral Gables We met today to discuss the above referenced job. My understanding is: You will start the job no later than the first week of October and will complete the job no later th[a]n the last week of October. I will obtain a copy of the approved permit. You indicated you will not need a survey.[1] Should you change you[r] mind, you can always refer to a survey I keep on site. You will have your insurance agent mail to my address a certificate of insurance. Though not discussed: I would like a partial release of payments made to date for the job. See further the attachment. Assuming you concur, then please send a signed and notarized copy to Maurits de Blank, Mortgage Lending Company, Post Office Box 430336, Miami, Florida 33143. Note that I prefer for various legal reasons that you use the release form as provided. Once the job has been started, I would like a list of firms supplying materials to the job. Notwithstanding that he had promised Mr. de Blank that he would "start the job no later than the first week of October," by the middle of October Respondent had yet to even "pull a septic tank construction permit from the City of Coral Gables" (that was needed before any on-site work could begin).2 In an attempt to find out from Respondent what was the cause of the delay, Mr. de Blank started a "calling campaign," but Respondent neither answered the telephone when Mr. de Blank called nor returned Mr. de Blank's calls. On October 19, 2003, Mr. de Blank sent the following letter to Respondent (by certified United States Mail, return receipt requested): Re: 453 Blue Road, Coral Gables I need a firm commitment when you will start and finish septic tank at above address. If you cannot perform the work, then I will need a refund of the deposit given to your firm. Please call to discuss. The end of the month was fast approaching, and Respondent had neither contacted Mr. de Blank nor begun the Septic System Contract on-site work. After paying a visit to Coral Gables City Hall and learning that Respondent had still not even "pull[ed] a septic tank construction permit from the City of Coral Gables," Mr. De Blank found another septic tank contractor, Westland Septic Tank Corp., to do the installation work for MLC that Respondent was contractually obligated to perform. MLC paid Westland $4,400.00 to do the work. Westland completed the job some time prior to November 4, 2003. The work passed all of the necessary inspections. Upon learning that MLC had contracted with Westland, Respondent sent Mr. de Blank a letter complaining that Mr. de Blank had not given Respondent an adequate opportunity to meet his obligations under the Septic System Contract. In the letter, Respondent offered to return only $500.00 of the $2,300 down payment he had received from Pro Gold. Mr. de Blank subsequently informed Respondent that this was not satisfactory and that he wanted the "full deposit back." He added that if he did not get it, he would "go to court." Not having received any portion of the "deposit back," Mr. de Blank, acting on behalf of MLC, in mid-November 2003, filed suit against Respondent in Miami-Dade County Court. On May 14, 2004, a Final Judgment was entered in Miami-Dade County Court Case No. 0313813 in favor of MLC and against Respondent "in the amount of $1,675.00 plus court costs in the amount of $121.00." As of the date of the final hearing in this case, Respondent had not made any payments to MLC. In view of the foregoing, it is found that Respondent abandoned for 30 consecutive days, without any apparent good cause, a project in which he was under contractual obligation to complete; and his failure to go forward with the project, combined with his failure to return any of the deposit he had received, caused monetary harm to a party to whom he was contractually obligated.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby: RECOMMENDED that the Department issue a final order finding Respondent guilty of the misconduct alleged in the Administrative Complaint and disciplining him therefor by fining him $500.00 and suspending his registration for 90 days. DONE AND ENTERED this 4th day of February, 2005, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 4th day of February, 2005.
Findings Of Fact Based upon the prehearing statement, the testimony of the witnesses, and the documentary evidence received at the hearing, the following findings of fact are made: The Petitioner is a Florida corporation in good standing, authorized to do business in this state. The Petitioner owns and controls the site which is the subject matter of these proceedings. Such site is located in Brevard County, Florida. The Department has identified the subject site as DER facility no. 05- 8500985 (the facility). At all times material to this case, the facility consisted of: three underground storage tanks (UST), one 3000 gallon UST used for storing diesel fuel, one 1000 gallon UST used for storing diesel fuel, and one 1000 gallon UST used for storing gasoline; five monitoring wells; and pipes and pumps related to the foregoing system. The facility constituted a storage tank system as defined in Section 376.301, Florida Statutes, and Rule 17-761.200(38), Florida Administrative Code. The Petitioner holds, and is named insured for, third party pollution liability insurance applicable to the facility. Such insurance was issued pursuant to Section 376.3072, Florida Statutes. The policy for the foregoing insurance, policy no. FPL7622040, was in force from March 22, 1991 through March 22, 1992. The Department issued a notice of eligibility for restoration insurance to Petitioner for the above-described facility. Based upon the foregoing, the Petitioner is a participating owner or operator as defined in Chapter 17-769, Florida Administrative Code. Pursuant to Section 376.3073, Florida Statutes, Brevard County operates a local program that has been approved by the Department. Such local program is managed by the Brevard County Office of Natural Resources Management (County). In July, 1990, a discharge of diesel fuel occurred at the Petitioner's facility. Petitioner's employees estimated that approximately twenty gallons of diesel fuel filled the pump box overflowed from the pump box across the seawall into the adjacent waters. Upon discovering the discharge, Petitioner shut down diesel fuel dispensing until repairs could be made to the apparent cause of the leak. Additionally, the diesel fuel remaining in the pump box and on top of the tank area was removed. Contaminated soil in the pump box was also removed. The apparent cause of the discharge described above was attributed to cracked pipe fittings which were repaired by Glover Oil Co. within a few days of the discharge. No detailed inspection was made to the system to determine if additional sources of discharge existed. Petitioner did not complete a discharge reporting form (DRF) for the above-described incident until April 18, 1991. The April DRF was completed after Petitioner was directed to do so by Ms. DiStasio, an inspector employed by the County. From August, 1990 until May, 1991, at least one monitoring well at the Petitioner's facility showed free product accumulating in the well pipe. The exact amounts of the free product found are unknown, but reports estimated the level at 100 centimeters. From August, 1990 until September, 1991, the Petitioner did not undertake any measure to explore the origin of the free product found in the monitoring well. Further, the Petitioner did not report the monitoring well testing results as a suspected or confirmed discharge. In April, 1991, an inspection of the Petitioner's facility was performed by Ms. DiStasio. That inspection resulted in a letter to the Petitioner that outlined several violations at the facility. Among those violations listed was the Petitioner's failure to report a suspected or confirmed discharge. At the time of the April, 1991 inspection, Petitioner had reported neither the July, 1990 discharge (a known discharge) nor the monitoring well test results (at the minimum a suspected discharge). In connection with the July, 1990 discharge, following the repairs made by Glover Oil, Petitioner did not have the system pressure tested. Only the area visible from the pump box was checked for leakage. In July, 1991, when Ms. DiStasio performed a re-inspection of the facility, she found Petitioner had not (in the interim period, April through July, 1991) taken any steps to test the system or to remove the fuels from the suspect tanks. Since the free product continued to appear in the monitoring well, a pressure test of the system would have definitively answered the discharge question. Alternatively, the removal of the fuels would have prevented further seepage until the system could be pressure tested. On August 6, 1991, the Petitioner issued a letter that advised the County that it had stopped dispensing fuel at the facility. The tanks were not drained, however, until on or about September 11, 1991. Further, the August, 1991, letter acknowledged that the Petitioner "had proposals for initial remedial cleanup related to diesel contamination in the tank field area." Obviously, the Petitioner must have contemplated a need for such cleanup. On September 11, 1991, at the Petitioner's request, Petroleum Equipment Contractors, Inc. attempted to pressure test the 3000 gallon diesel tank. The purpose of the pressure test was to determine if the diesel system had a leak. The company could not even run the test on the tank because of the defective system. A similar test on the Petitioner's gasoline tank passed without incident. Once the Petitioner learned the results of the test, it initiated Initial Remedial Action (IRA) as described on the IRA report filed by Universal Engineering Sciences. The IRA consisted of the removal of the excessively contaminated soil, approximately 74 cubic yards, and the removal of the USTs. The foregoing work was completed on or about September 15, 1991. On October 4, 1991, the Petitioner filed a discharge reporting form dated October 2, 1991, that identified September 11, 1991, as the date of discovery for the discharge. This discharge discovery was allegedly made incidental to the diesel tank pressure testing failure. No reference was made to the months of monitoring well reports showing a free product. On October 8, 1991, Ms. DiStasio prepared a Florida Petroleum Liability Insurance and Restoration Program Compliance Checklist that reported the Petitioner was not in compliance with applicable statutes and rules. When Petitioner applied for restoration coverage under the statute on January 31, 1992, such request was denied by the Department on March 6, 1992. The basis for the denial was as follows: Failure to notify the Department of a positive response to sampling within three working days of testing, pursuant to the rule in effect at the time of the initial response (17-61.050(1), Florida Administrative Code). An inspection by Brevard County on April 17, 1991, revealed that free product had been detected in one monitoring well since July 1990. The discharge reporting form was not submitted until October 2, 1991.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Environmental Regulation enter a final order denying Petitioner's claim for restoration coverage under the Florida Petroleum Liability Insurance and Restoration Program. DONE and ENTERED this 31st day of December, 1992, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 31st day of December, 1992. APPENDIX TO CASE NO. 92-2121 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: Paragraphs 1, 2, 8, 12, 15, 16, 17, and 18 are accepted. Except as found above, paragraph 3 is rejected as not supported by the record cited. It is accepted that Brevard County acted as the local agent in this case. Paragraph 4 is rejected as not supported by the record. With regard to paragraph 5, substituting "A" for "The" and "confirmed" for "discovered" the paragraph can be accepted; otherwise rejected as contrary to the record. Similarly, with the substitution of the word "confirmation" for "discovery" in Paragraph 6, the paragraph can be accepted; otherwise rejected as contrary to the record. No suitable explanation was offered by the Petitioner for why, if a discharge were not reasonably suspected, it retained the company to immediately remove the USTs upon the failed pressure testing. Clearly, the Club had a notion the tanks were a discharge problem. Paragraph 7 is rejected as contrary to the weight of the evidence. While there was some confusion as to the exact volume of free product in the monitoring well, there was clear evidence that such was reported for many months prior to the confirmation in September, 1991. Further, the main confusion regarding the product found in the well was not as to its existence, but as to the individual's knowledge of the metric measurement of it. One hundred centimeters of product in a two or three inch pipe would not be a minute amount. Except as addressed in the foregoing findings, paragraph 9 is rejected as contrary to the weight of the evidence. Petitioner did not undertake all repairs necessary to abate a discharge problem. Paragraph 10 is rejected as not supported by the weight of credible evidence or irrelevant. Clearly, as early as August, 1990, Petitioner knew or should have known of a discharge problem based upon the monitoring well report; that all of the discharge did not necessarily flow from the fittings that had been repaired is irrelevant. Further, Petitioner did no testing to verify that the replaced fittings had solved the discharge problem (especially in light of the well reports). Paragraph 11 is rejected as an inaccurate restatement of the exhibit. Paragraph 13 is rejected as contrary to the weight of the evidence. Incidentally, the hearing in this case was in the year 1992. Paragraph 14 is rejected as contrary to the weight of credible evidence. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: Paragraphs 1 through 11 are accepted. Paragraph 12 is rejected as a misstatement of the exhibit cited. Paragraphs 13 through 27 are accepted. COPIES FURNISHED: Brigette A. Ffolkes Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Scott E. Wilt MAGUIRE, VOORHIS & WELLS, P.A. 2 South Orange Plaza P.O. Box 633 Orlando, Florida 32802 Carol Browner, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue The issues to be resolved are whether Respondent performed repairs to septic tank systems without obtaining the required permits in three different instances, in violation of Florida Administrative Code Rule 64E-6.022, and if so, what penalty should be imposed for the violations proven.
Findings Of Fact The Department, an agency of the State of Florida, has responsibility for the regulation of septic tank contractors pursuant to Chapters 381, 386 and 489, part III, Florida Statutes. The Respondent, Scott Womble, is a resident of the State of Florida and has been authorized by the Department to provide septic tank contracting services. 5168 Pimlico Drive In 2003, Respondent replaced the drainfield on the real property located at 5168 Pimlico Drive, Tallahassee, Florida. A permit for the repair of the drainfield was issued in 2003, which listed Respondent as the agent for the permit applicant. In 2006, Respondent pumped out the septic tank at the Pimlico Drive location. Pumping out the septic tank does not require a permit. In 2006, Respondent also installed new "old style" chambers and end caps. Chambers are used to repair the drainfield. Repair of the drainfield requires a permit. A review of the records for the Leon County Health Department REHOST database revealed that no permits had been applied for or obtained for any work in 2006, 2007 or 2008 at the Pimlico address. 1351 Cochise Trail On or about December 19, 2008, Alex Mahon and Kathy Davis from the Leon County Health Department, Environmental Health Division, went to real property located at 1351 Cochise Trail in Tallahassee. Mahon and Davis went to the property in response to a phone call received from Respondent requesting the verification of a site evaluation. Site evaluations are required to be completed as part of the application process for a permit for septic tank installation. When Mahon and Davis arrived at the property, no one from Respondent's company was present. However, upon their arrival they observed that the septic tank and drainfield had been installed. A permit application had been submitted for the work at 1351 Cochise Trail. However, the application was incomplete and the permitting fee had not been included with the application. Accordingly, no permit had been issued for the work that was already completed at the time Mahon and Davis visited the site. Later that day, Respondent provided the missing documentation required for the issuance of the permit, and paid the permitting fee. At that time, a permit for the work was issued. 2207 Bannerman In January 2009, Kathy Davis from the Leon County Health Department received a call that work was being performed at 2207 Bannerman Road, which was the location for the La Hacienda Restaurant. She visited the site to see what work was being performed. At the time of Ms. Davis' visit, there was no work being performed at the site. There was, however, equipment present at the location and excavation of the drainfield had been performed. Used drainfield chambers had been dug up and were present on the site as well. No permit had been obtained for drainfield repair. Ms. Davis could not say whether any drainfield had been installed. She could only state with certainty that the area containing the drainfield had been excavated. Ms. Davis was aware that Respondent had been pumping out the septic tank on the property, which did not require a permit.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That the Department of Health enter a Final Order finding Respondent guilty of Count I and issuing a letter of warning; finding Respondent guilty of Count II and imposing a $750 fine; and dismissing the charges in Count III. DONE AND ENTERED this 10th day of November, 2009, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 10th day of November, 2009.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the application of Kenneth W. Barron for a septic tank be DENIED; however, applicant should be given thirty days from date of the final order in which to raise the tank to a height consistent with the construction permit. DONE and RECOMMENDED this 29th day of April, 1983, in Tallahassee, Florida. DONALD R. ALEXANDER 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 29th day of April, 1983.
The Issue The issue is whether Respondent should correct a health violation and have a $500.00 fine imposed for violating an agency rule and statute, as alleged in the Citation for Violation issued by Petitioner on December 22, 1999.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: This case involves an allegation that Respondent, Steve DeLuca, violated an agency regulation and statute by making repairs to a drainfield on property located at 1444 East New York Avenue, Deland, Florida, without obtaining the necessary permits from the Volusia County Department of Health (Health Department). That department is under the direction and control of Petitioner, Department of Health (Department). Respondent denies the charge and, as clarified for the first time at hearing, contends that the repairs were minor in nature and thus did not require a permit, no authorization was given to the excavation firm which performed the repairs, and the Citation was not issued to the actual owner of the property. On October 29, 1999, William N. VanderLugt (Vanderlugt), a Health Department environmental specialist, received a complaint regarding a septic tank repair being undertaken at 1430 East New York Avenue, Deland, Florida. During the course of inspecting that property, Vanderlugt observed excavation activities on the drainfield located next door at 1444 East New York Avenue. More specifically, Vanderlugt observed an area in the back yard approximately 6 feet by 20 feet in size which had been recently excavated and a large pile of sand nearby. In the excavated site, he saw a rock bed of the size commonly used in drainfields, "clean" and "newly installed" rocks, and a "black paper" covering a part of the rocks. Therefore, he concluded that the excavating firm had just installed a new rock drainfield. This type of activity constitutes a repair to an existing drainfield and requires that such work be performed by a licensed septic tank contractor. It also requires that appropriate permits be obtained from the Health Department. Although Respondent contended that the work was merely to correct a "minor structural flaw" which would not require a permit, Vanderlugt's testimony is more persuasive on this issue, and it is found that a more substantial repair to the drainfield was made. Further inquiry by Vanderlugt revealed that no permits had been obtained for the repair of a drainfield from the Health Department by the excavating company, Collier Enterprises. After a brief conversation with a Collier Enterprises employee, the substance of which is hearsay in nature and cannot be used, Vanderlugt visited the offices of Delco Oil Company and spoke with Respondent, who is employed by that firm. In doing so, Vanderlugt was under the impression that Respondent owned the property in question. During his brief conversation with Repondent, Vanderlugt pointed out that he had to issue a citation because no permit had been obtained for the work at the property in question. DeLuca responded with words to the effect that "they [Collier Enterprises] broke a pipe and they fixed what they broke." Apparently, there was no discussion as to whether Respondent or someone else actually owned the property. Vanderlugt returned to the property in question and performed a second inspection on November 3, 1999. Because no permits had been obtained by that date, and the drainfield site had been covered, a recommendation for a citation was prepared by Vanderlugt. A Citation for Violation was later issued by the Department on December 22, 1999, alleging that Respondent had failed to obtain permits before making a drainfield repair. The Citation was delivered to Respondent at Delco Oil Company. Because Collier Enterprises was not licensed to perform the work, it was given a first violation "warning" letter by the Health Department, as required by a Department rule. During later meetings with Respondent and others, Vanderlugt learned that the actual owner of the property in question was Deluca Properties, Inc., and not Steve DeLuca. For some reason, however, the Department declined to amend its citation and charge the actual owner with the alleged violation. Although Petitioner asserted at hearing and in its Proposed Recommended Order that Respondent is the owner's registered agent, there is no competent evidence of record to support this assertion. According to the general manager of Delco Oil Company, which is apparently owned by Steve Deluca and others, no permission was given to the excavating company to make any repairs. Indeed, Deluca Properties, Inc. has a licensed septic tank contractor who makes all septic tank repairs, when needed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final order dismissing the Administrative Complaint for lack of jurisdiction. DONE AND ENTERED this 14th day of June, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 14th day of June, 2000. COPIES FURNISHED: Angela T. Hall, Agency Clerk Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1703 Charlene J. Petersen, Esquire Department of Health 420 Fentress Boulevard Daytona Beach, Florida 32114 Christopher R. Ditslear, Esquire Post Office Box 41 Deland, Florida 32721-0041 William W. Large, General Counsel Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701
The Issue The issues are whether Respondent violated Rule 62-532.500(2)(d)1., Florida Administrative Code, by failing to seat a well casing in a rock layer or other such consolidated formation, and if so, what penalty should be imposed.
Findings Of Fact Respondent is charged with the responsibility to conserve, protect, manage, and control water resources within its boundaries. Respondent's duties include the regulation of water wells and water well contractors. Respondent is a water well contractor. As such, he holds Water Well Contractor License No. 2215. On September 25, 1997, Petitioner issued Respondent Well Construction Permit No. 597679.01. The permit gave Petitioner permission to construct a water well, four-inches in diameter, on property owned by Rex Hobbs in Pasco County. Respondent subsequently constructed the water well on the property owned by Mr. Hobbs, using the cable tool construction method. Respondent completed construction of the well on or about October 20, 1997. After the well was constructed, Mr. Hobbs complained to Respondent on several occasions that the well was producing sand, rock, and other debris. Respondent made no attempt to repair the well. In May or June of 1998, Mr. Hobbs filed a complaint with Petitioner regarding the construction of the well on his property. Petitioner's subsequent field investigation did not reveal a significant amount of sediment in the well water. Mr. Hobbs filed a second complaint with Petitioner in the summer of 1998, insisting that the water from his well contained an excess amount of sediment. Petitioner's second field investigation revealed an abnormal amount of sediment in the well water. On July 9, 1998, Petitioner issued a Notice of Violation, advising Respondent that he had violated Rule 40D-3.037(1), Florida Administrative Code, by failing to seat the casing of the Hobbs well into a consolidated formation. Water from the Hobbs well contains sediments including sand, rock, and other debris. These sediments interfere with the operation of plumbing, appliances, and irrigation devices, which utilize water supplied by the well. The quality of the well water produced by the Hobbs water well is unacceptable. The total depth of the Hobbs well is 131 feet below land surface. The well is cased to 42 feet below land surface. The water pump is set at 84 or 86 feet below land surface. The static water level was 58.2 feet below the land surface. The geologic formation at the end of the casing of the well contains gray clay, yellow clay, limerock, and sand. The end of the casing is not seated in a layer of rock or other consolidated formation. There is no persuasive testimony to the contrary. The area in which the well is located is geologically unstable. Wells in that area generally require 84 feet of casing. Respondent admitted at the hearing that the well is producing sand and needs more "pipe." Failure to seat a well casing into a consolidated formation is a major violation under the Florida Department of Environmental Protection's Water Well Contractor Disciplinary Guidelines and Procedures Manual. Respondent has entered into three previous Consent Orders with Petitioner to resolve permitting and construction violations.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Petitioner enter a final order requiring Respondent to pay an administrative fine in the amount of $500 and assessing five points against his water well contractor's license. DONE AND ENTERED this 18th day of August, 1999, 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 (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 18th day of August, 1999. COPIES FURNISHED: Margaret M. Lytle, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Tony Holt 6145 Durant Road Durant, Florida 33530 E. D. Sonny Vegara, Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899
