The Issue The issue in this case is whether Respondent, Larry C. Garner, should be fined $500 for misstating the size of a septic tank and drain field.
Findings Of Fact Respondent, Larry C. Garner, is the licensed septic tank contractor who owns and operates A. Carver Septic Tank. (The Citation for Violation erroneously referred to the company as “E. Carver Septic Tank,” but the error was corrected without objection at final hearing. There was no evidence to support Respondent’s suggestion that the Department may have taken disciplinary action against him because it erroneously thought Respondent was another licensee.) On December 6, 2001, an employee of Respondent pumped out a septic tank and measured a drain field located at 847 Matthews Road, Maxville, Florida. The resident there wanted to enlarge her residence and needed Respondent's services in order to obtain Department approval of the existing septic tank system for the enlarged residence. After services were provided, Respondent's office gave the resident a receipt stating that Respondent's company had pumped out a 900 gallon septic tank and that the drain field measured 360 square feet. (Respondent's office actually dealt with the resident's adult daughter.) Respondent's office staff also prepared Form 4015 (a Department form entitled “Onsite Sewage Treatment and Disposal System Existing System and System Repair Evaluation”) and gave it to the resident for use in getting approval of the system for the enlarged residence. The form stated that the septic tank was 900 gallons and that the drain field was 360 square feet. When the resident applied for approval of her septic tank system for her enlarged residence, the Department inspected the system and found that the septic tank actually was 750 gallons and the drain field actually was only approximately 110 square feet. The Department issued the Citation for Violation based on the magnitude of the discrepancy. Respondent denied that he personally had any contemporaneous knowledge of the services provided by his employee or the receipt of Form 4015 prepared by his office, and there was no evidence that he did. Respondent personally investigated after issuance of the Citation for Violation. At final hearing, Respondent questioned whether the Form 4015 actually stated that the septic tank was 900 gallons. From the handwriting on the form itself, it appears possible that the number could read 700, not 900. But based on the written receipt, which either was prepared contemporaneously with the Form 4015 or was the basis for preparation of the Form 4015 by Respondent's office staff, the greater weight of the evidence was that the Form 4015 stated and was intended to state 900 gallons as the size of the septic tank. As further support for this finding, Respondent himself testified to a conversation he had with his employee during which the employee explained that he sized the septic tank at 700 gallons based on its apparent depth and Respondent admonished him that the employee knew better--i.e., knew it was necessary to measure height, width, and depth to accurately measure the size of a septic tank. Respondent also attempted to explain how his employee may have made a forgivable error in measuring the drain field. According to the Form 4015, the employee measured the drain field as a rectangular bed, 12 feet by 30 feet. Actually, the drain field consists of two trenches (one 26 feet long and the other 29 feet long), which the Department's inspector measured as being two feet wide. Respondent testified that the drain field began at a distribution box and was approximately ten feet wide within a few feet of the distribution box. Respondent testified that it would be easy to incorrectly assume that the approximate ten-foot width continued as a bed for the entire length of the drain field, as his employee apparently did. However, the greater weight of the evidence was that the employee's error was not reasonable; to the contrary, to determine the configuration and size of a drain field, it is necessary to probe the ground at more than just one distance close to the distribution box. When Respondent himself went to the site to investigate the allegations against him, he probed both near the distribution box and further away southeast of the distribution box. He testified that he found solid rock ten feet in width near the distribution box; to the southeast, his probing revealed a trench which Respondent measured at between three and a half and four feet in width. Based on those measurements, Respondent assumed two trenches approximately 30 feet long and four feet in width each, for a total of approximately 240 square feet. It is difficult to reconcile Respondent’s testimony as to the width of the southeast trench with the testimony of the Department's inspector. The Department's inspector probed approximately ten feet and 20 feet from the septic tank and found two-foot wide trenches in four different places. The Department's inspector also testified without contradiction in response to Respondent's questions on cross-examination that backhoes used at the time this drain field was installed in 1973 generally had two-foot wide excavation buckets. Based on the greater care taken by the Department's inspector in measuring the drain field, and the kind of backhoe in general use in 1973, it is found that the Department's inspector's measurements were more accurate. Even if Respondent's measurements were accurate, and the Department inspector's were inaccurate, the measurements recorded on the receipt and on Form 4015 still would have been seriously overstated. While not seriously disputing the inaccuracy of the Form 4015 submitted in this case, Respondent stated "anyone can make a mistake" and that the Department should have asked Respondent to re-check the measurements instead of issuing a citation, especially in view of Respondent's disciplinary record in 29 years in the business in Clay County. (Respondent testified that his only "issues in Tallahassee" were one incident--not fully explained--involving a cow on someone's property and another when he had someone take a re- certification examination for him at a time when his mother was ill. The Department did not controvert this testimony. As already mentioned, there was no evidence to support Respondent's initial suggestion that the Department may have taken disciplinary action against him because it erroneously thought he was another licensee.) But the Department's witness testified that issuance of the citation was appropriate and consistent with agency policy because of the magnitude of the discrepancies on the Form 4015. Respondent testified that the employee involved in this case was his stepson, who has worked for Respondent for 14 years, since he was 11 years old, seven to eight years as a full-time employee. Respondent also testified that he recently fired his stepson, but the reasons for firing him were not directly related to his conduct in this case. Respondent also testified that he felt compelled to insist on a hearing although he knew the Form 4015 was inaccurate because he perceived the Department to be acting in this case as if it had "absolute power" over him. He apparently viewed his request for a hearing as a necessary challenge to government's assertion of "absolute power" over him.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final order finding Respondent guilty as charged and imposing a fine in the amount of $500. DONE AND ENTERED this 24th day of May, 2002, in Tallahassee, Leon County, Florida. ______________________________ J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 2002. COPIES FURNISHED: Dr. John O. Agwunobi, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 John D. Lacko, Esquire Department of Health 420 Fentress Boulevard Daytona Beach, Florida 32114 Larry C. Garner 13950 Normandy Boulevard Jacksonville, Florida 32221
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner violated the provisions of Chapter 381, Florida Statutes, and Chapter 64E-6, Florida Administrative Code, referenced herein, by allegedly illegally connecting a second dwelling to an existing, approved septic system.
Findings Of Fact On January 17, 2002, the Petitioner was given a written Notice of Violation and advised that an illegal sewer connection from a new or second mobile home on her property to her existing sewer system, serving her primary residence would have to be disconnected. It was an illegal second connection on a single, permitted sanitary sewer system. The second home was not occupied and could not be legally occupied until the proper sewer connection and relevant permitting was obtained. On January 30, 2002, the inspector again visited the premises and determined the illegal connection to still exist and the Petitioner was then advised that the illegal connection would have to be disconnected. On February 28, 2002, the inspector returned and found that the illegal connection had been restored to the existing system. He observed a person hurriedly disconnect the system as he approached. The relevant pipe joint had been left un-glued so that it could be readily connected or disconnected. He again notified the Petitioner, in person, that the illegal connection would have to be disconnected. The Respondent cited the Petitioner for the illegally connected sewer system and seeks to impose a $500.00 fine. The Petitioner elected to formally dispute the position of the Respondent agency and pursued a formal hearing to contest the allegations. The Petitioner failed to actually appear at hearing and contest the evidence adduced by the Respondent agency. That evidence is credible and is accepted as unrefuted and supportive of the above Findings of Fact.
Recommendation RECOMMENDED that a final order be entered by the State of Florida Department of Health denying the Petition of Shirley Davis in its entirety and that a final order be entered imposing a $500.00, fine for the violations described in the above Findings of Fact and Conclusions of Law. DONE AND ENTERED this 16th day of September, 2002, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with Clerk of the Division of Administrative Hearings this 16th day of September, 2002. COPIES FURNISHED: Shirley Davis 140 West Putnam Grove Road Oak Hill, Florida 32759 John D. Lacko, Esquire Department of Health 420 Fentress Boulevard Daytona Beach, Florida 32114 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue The issues, as framed by the Administrative Complaint, are twofold: Whether Respondent committed gross negligence, incompetence, or misconduct which caused monetary harm to a customer, in violation of Florida Administrative Code Rule 64E-6.022(1)(l)2; and Whether Respondent practiced fraud or deceit by making a misleading or untrue representation to a home purchaser, or the home purchaser's agents, incident to a loan application, in violation of Florida Administrative Code Rule 64E-6.022(1)(k).
Findings Of Fact Petitioner, Department of Health, is an agency of the State of Florida as defined in Section 120.52, Florida Statutes. Petitioner's actions in this matter are governed in part by Chapters 381 and 489, Florida Statutes, as well as Florida Administrative Code Chapter 64E-6. Respondent, at all times material to this matter, was licensed by Petitioner under Part III of Chapter 489, Florida Statutes, entitled, "Septic Tank Contracting." Respondent is subject to the regulatory jurisdiction of Petitioner, having been issued Registration Number SR0931141 to engage in septic tank contracting, and Certificate of Authorization Number SA0890161 to do business as Superior Septic and Sewer, Inc. Petitioner seeks to impose revocation of Respondent's License and Certificate of Authorization for violations of Florida Administrative Code Rule 64E-6.022(1)(l)2. and (1)(k), with aggravation pursuant to Rule 64E-6.022(2). Air Force Captain Timothy Billings made an offer that was accepted to purchase a home located at 1938 Quail Run, Lynn Haven, Florida, prior to September 12, 2008. Captain Billings worked with a realtor, Bonnie Milstead, and arranged the various steps required to secure a Veterans Administration loan with the seller's realtors, Ben and John Harrell. A septic tank inspection and certification was one of the loan requirements. On behalf of Captain Billings, Ms. Milstead arranged to have Respondent's company inspect and certify the septic tank at 1938 Quail Run at a price of $250. The price included the pumping of the tank for $225 and a $25 charge for the certification. Captain Billing paid the $250 charge at the closing on the purchase of the home. John E. McDaniel is the licensed septic tank contractor for Superior Septic and Sewer, Inc., and is the qualifying contractor for a Certificate of Authorization to do business as Superior Septic and Sewer, Inc. On September 15, 2008, one of Respondent's employees, Phillip Fetner, went to 1938 Quail Run where he was met by Ben and John Harrell, realtors for seller of the home. Mr. Fetner was there to inspect only the septic tank, not being equipped or trained to inspect the entire system and drainfield. Mr. Fetner opened the tank after cutting through roots that had grown into it. He noted a large amount of roots in the tank that was also seen by the realtor, Ben Harrell. In spite of the roots, Realtor John Harrell instructed Mr. Fetner to "go ahead and pump the tank," which he did. He told John Harrell there were still a lot of roots in the tank. Mr. McDaniel discussed with John Harrell an additional charge of $400 to remove the roots from the tank. Mr. Harrell did not order the additional work. Mr. McDaniel believed that enough roots had been removed from the tank by Mr. Fetner for a certification to be issued, but Mr. Fetner did not confirm this. Debbie Bass, a clerical staff member of Respondent, completed the certification form prior to the inspection being complete. This was her custom so that she could stay ahead of the work load. The form was left in the inbox to be signed by Mr. McDaniel. Ms. Bass did not falsify any records nor had she ever been asked to do so in her four-and-a-half years with Respondent. The certification form was signed by Mr. McDaniel without the additional root work having been done by his company. The mortgage lender relied upon the certification to make the loan to Captain Billings. Mr. McDaniel did not directly inform Captain Billings or his realtor, Ms. Milstead, that the septic tank was full of roots. He believed that the root situation had been disclosed since the seller's realtors, the Harrells, had been on-site at the time of the inspection. Captain Billings testified that had he been fully aware of the root situation, he would have probably walked away from the deal because he did not want to have to deal with problems in the future. Mr. McDaniel allows his wife, Lisa McDaniel, to sign his name in his capacity as a licensed septic tank contractor. Lisa McDaniel actually signed the certification on the 1938 Quail Run property. Respondent's position is that the certification was sent out by mistake because the root removal work had not been performed on the tank. Mr. McDaniel does not dispute the fact that the certification form was prepared and signed. Captain Billings experienced problems with the septic tank system of his newly purchased home at 1938 Quail Run. In March 2009, he discovered the septic tank and system were full of roots and not functioning when Roto-Rooter, owned and operated by Glenn Salyer, removed the manhole access for a pump out and saw the massive roots. After learning from his realtor that Respondent had been hired to inspect the septic tank, Captain Billings contacted Mr. McDaniel, who refused to do anything about the situation. Even after the filing of the Administrative Complaint, Mr. McDaniel refused to remedy the situation. Glenn Salyer of Roto-Rooter, a licensed master septic tank contractor and master plumber, would not have certified the septic tank at 1938 Quail Run in its September 15, 2008, condition. Lyle Ake, another licensed septic tank contractor, would not have certified the septic tank at 1938 Quail Run in its September 15, 2008, condition. The septic tank should not have been certified in its September 15, 2008, condition. Roots intruding into the septic tank indicate it is not watertight. However, a system having roots can perform properly without incident for many years. When the entire system was inspected by Mr. Salyer, it was non-functional and needed replacement. Roto-Rooter replaced the septic tank system, consisting of a new septic tank and drainfield, at 1938 Quail Run on October 12, 2009. Captain Billings paid $4,500 for the replacement system. According to David Hammonds, an expert on the rules and functioning of septic tank systems, the system was being inspected and evaluated pursuant to Florida Administrative Code Rule 64E-6.001(5), the Procedure for Voluntary Inspection and Assessment of Existing Systems. The Rule provides specific items to be inspected unless the requesting party, in writing, states that specific items are not to be inspected. Mr. Hammonds testified that after his review of the exhibits and the site, he concluded that the septic tank system at 1938 Quail Run was "a failing system." Mr. Hammonds concluded that the pump-out procedure could have been completed once enough roots were removed to get the pump into the tank. Mr. Hammonds noted that the roots had been in the tank for a very long time, maybe years. Roots in the tank can lead to many problems. Roots affect capacity; they damage the tank itself, leading to cracks and leaks; and can lead to the leaking of sewage around the tank cover and seams. Mr. Hammonds noted that the high fluid level in the tank, almost up to the lid, is an indication of the entire system not working properly. The reporting requirements in the Voluntary Assessment Rule do not require the use of a particular inspection form. The Rule does specify what must be inspected and reported. Respondent accurately listed the features of the tank on the certification form: the tank was 1,050 gallons; the tank had neither a baffle nor a filter; and the tank was structurally sound. Mr. McDaniel believes this matter is all the result of an office error and that he should not be held responsible. Mr. McDaniel has a history of disciplinary matters with Petitioner. He has been cited for 18 violations in six cases as well as a non-disciplinary letter of concern. On September 13, 1996, he was fined $50 for inspecting a system without a permit. On September 13, 1996, he was fined $100 for two repairs to a system without a permit and for violating water table separation and setback from a potable well. DOAH Case No. 99-2474 resulted in a Final Order imposing an administrative fine of $3,300 for the removal of tank filters after final inspection by department personnel. Judge P. Michael Ruff found in that case that Respondent's actions "show a clear intent to mislead regulatory authorities." DOAH Case No. 04-1636 was settled by stipulation and resulted in a letter of warning with amelioration of a new drainfield installed by Respondent for an original drainfield that was improperly installed. On December 2, 2005, Respondent was issued a Letter of Warning for improper disposal of sewage. DOAH Case No. 07-1651 resulted in jurisdiction in the matter being relinquished to Petitioner based upon Respondent's non-appearance at the final hearing. The result was a fine of $500 for submitting a repair permit application with an incorrect site plan not showing a shed and a fence positioned over and in an existing drainfield. A Letter of Concern was issued July 23, 2007, to Respondent for improperly reporting a larger than actual capacity of a septic tank. A Letter of Concern is not a formal discipline under Florida Administrative Code Rule 64E-6.022, but demonstrates substandard performance by a licensee. Mr. McDaniel believes that other septic tank contractors have received lighter treatment for their offenses than he has. Bob Glenn, Petitioner's Environmental Manager for the Bureau of Onsite Management Program, gave some credence to Respondent's perception.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued by the Department of Health suspending Respondent for six months; suspending Respondent's Septic Tank Contractor Registration Number SR0931141 and Certificate of Authorization Number SA0890161 to do business as Superior Septic and Sewer, Inc.; and imposing a fine in the amount of $1,000.00, on Respondent. DONE AND ENTERED this 25th day of February, 2010, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of February, 2010. COPIES FURNISHED: Rodney Marcum Johnson, Esquire Department of Health 1295 West Fairfield Drive Pensacola, Florida 32501 John E. McDaniel Superior Septic and Sewer, Inc. 7315 Highway 231 North Panama City, Florida 32404 Dr. Ana M. Viamonte Ros, Secretary State Surgeon General Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue 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
Findings Of Fact On May 6, 1986, George Bailey, doing business as Bailey's Septic Tank Service pursuant to a permit to operate a septic tank cleaning service, pumped out and cleaned the septic tank located at 474 Hinton Street, Port Charlotte, Florida, owned by Davina Hall. On May 21, 1986, upon inspection of that septic tank by Warren McDougall and Dale Holcomb on the complaint of the owner, it was determined that the septic tank inspection hatch lid was not properly sealed. There was a hole where the corner of the inspection hatch lid had been broken off and the soil over the tank was not properly replaced and compacted. The only evidence as to whether anyone else did work on that septic tank after Bailey's and before the inspection was the testimony of the inspectors and Bailey about what they were told by others. That evidence is all hearsay and cannot be relied upon to base a finding under these circumstances. Accordingly, it cannot be found that Bailey's left this tank unsealed and damaged. On September 26, 1985, Bailey's serviced the septic tank located at 1043 Webster Avenue, Port Charlotte, Florida, at the request of Robert Keniston acting as agent for the owners, Mr. and Mrs. Caggiano. The house was vacant when the work was done, but Keniston observed the work in progress. On May 27, 1986, an inspection of the septic tank by Warren McDougall and Emmery Wuthrich of the Charlotte County Health Department revealed that the access lid was broken and had not been sealed. David Sandefer, the employee of Bailey's who performed the work, acknowledged that he left the tank with a broken lid and unsealed because Keniston told him to do so and would not pay the $40 to replace the lid. Keniston denies this and says he did not know of the broken lid until the inspection. Having observed the demeanor of the witnesses, it is found that Keniston's testimony is more reliable and credible in this regard. On June 10, 1986, the Sarasota County Health Department received a complaint that a Chevrolet pump truck, white cab with a red tank, was dumping sewage and had magnetic signs saying it was a pressure cleaning service. The complaint was being investigated by John Madrak that same day when he saw a truck fitting the description parked at the Frosted Mug, a restaurant in Venice, Florida. There were no signs on the truck. Madrak also observed a puddle under the tank caused by a leak from the outlet valve on the tank. Madrak saw work order forms in the cab of the truck saying Bailey's Septic Tank Service. Madrak talked to the driver of the truck, David Sandefer, and was told that the truck was owned by Bailey, but was not being used for septic tank cleaning. Sandefer said it had just been repainted. The driver left the Frosted Mug and Madrak followed at the instruction of his supervisor. After a lengthy chase, the truck stopped at a convenience store and Bailey, Madrak, Venice Police Officer Dodd and Sheriff's Deputy Lowen converged on the scene. Bailey acknowledged ownership of the truck, but indicated that it was being used as a water tank truck in a pressure cleaning business and not as a septic tank pump truck. It had been repainted and had not been used for septic tank service for 4 to 6 weeks prior thereto. Bailey owns two other pump trucks that were being used in the septic tank business. The truck had hoses and shovels consistent with use for pumping septic tanks. The truck had no signs indicating by whom it was being used. The truck was leaking from the outlet valve, but no evidence was presented as to the substance leaking from the truck. No one sampled, touched or smelled the leaking material and no one looked in the tank to see what was inside. At no time did anyone observe the truck in the act of pumping sewage.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter a Final Order and therein Dismiss the complaint in Case No. 86-2107. Find the Respondent guilty of the violations alleged in Case No. 86- 2633. Dismiss the complaint in Case No. 86-2624. Suspend the septic tanking cleaning service permits of George E. Bailey, doing business as Bailey's Septic Tank Service, for a period of one year and impose a fine of $500.00. DONE and ORDERED this 15th day of October, 1986, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of October, 1986. APPENDIX TO RECOMMENDED ORDER The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all proposed findings of fact submitted by the parties to this case. Specific rulings on proposed findings of fact of Petitioner Case No. 86- 2107 Each of the following proposed findings of fact are adopted in substance or as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 2(2); 3(2). Proposed findings of fact 4 and 5 are unnecessary. Specific rulings on proposed finding of fact of Petitioner Case No. 86-2623 Each of the following proposed findings of fact are adopted in substance or as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(5); 3(5); 5(4); 6(4); 7(5); 8(4). Proposed findings of fact 4, 9 and 10 are unnecessary. Proposed finding of fact 2 is subordinate to the facts actually found. Specific rulings on proposed finding of fact of Petitioner Case No. 86-2624 Each of the following proposed finding of fact are adopted in substance or as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(7); 1(7); 3(7); 4(8); 5(8); 6(8); 8(9); 9(10); 10(11); 11(11); 12(12). Proposed findings of fact 13, 14, 15, and 17 are unnecessary. Proposed findings of fact 7 and 16 are subordinate to the fact actually found. Specific rulings on proposed findings of fact of Respondent Case No. 86- 2107 Proposed finding of fact 1 is adopted in substance as modified in Finding of Fact 1 and proposed finding of fact 2 is similarly adopted in Finding of Fact 2. Proposed findings of fact 3, 4, 5, 6 and 7 are subordinate to the facts actually found. Proposed finding of fact 8 is unnecessary. Specific rulings on proposed findings of fact of Respondent Case No. 86- 2623 Each of the following proposed findings of fact are adopted in substance or as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(4); 2(4);; 3(4); 4(5). Proposed findings of fact 5, 6, 7, 8, 9, and 10 are subordinate to the facts actually found. Proposed findings of fact 11 and 12 are unnecessary. Specific rulings on proposed findings of fact of Respondent Case No. 86- 2624 Each of the following proposed findings of fact are adopted in substance or as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(7); 3(13); 4(12); 6(8); 7(13); 8(13); 10(11); 11(11); 12(11). Proposed findings of fact 2 and 9 are subordinate to the facts found. Proposed finding of fact 5 is rejected as not supported by the credible evidence. Proposed finding of fact 13 is unnecessary. COPIES FURNISHED: Anthony N. DeLuccia, Jr., Esquire Post Office Box 06085 Fort Myers, Florida 33906 Robert B. Bennett, Jr., Esquire 46 N. Washington Boulevard, Suite 13 Sarasota, Florida 33577 William Page, Jr., Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
Findings Of Fact At all times material to this proceeding, Sandra B. Frazier was a licensed real estate broker-salesman in the State of Florida, License No. 0185565, as an associate with Property Associates, Inc., Tallahassee, Florida. On July 1, 1989, Howard M. Burkholz, Leslie Burkholz, and Jacob H. Schiff entered into an Exclusive Right of Sale Agreement with Property Associates, through its agent, Frazier, for the sale of a house located in Forest Green Subdivision, at 2062 Pepperidge Way, Tallahassee, Florida. The Exclusive Right of Sale Agreement states in part: Seller further certifies and represents that the property has no latent defects except the following: septic tank is pumped monthly at Sellers request. [sic] Mr. and Mrs. Burkholz both told Frazier that the septic tank was not a problem, but Frazier had previous knowledge of septic tank problems in the vicinity and of the significance of needing septic tank pumping. Frazier sold the house across from the Burkholz's house. That house, at 2061 Pepperidge Way, was bought by Marcie Doolittle in December of 1988. The listing information and Notice to Prospective Buyers showed that, due to the composition of the soil and heavy rains, it was necessary to have the septic tank pumped. The seller offered an offset to the buyer for the cost of additional drainfield. Only after Doolittle bought the house did Frazier learn of the severity of the problems and the necessity for pump outs every two weeks. In a letter written by Frazier to Doolittle on February 9, 1989, Frazier indicated that "once a septic tank fails it does not correct itself. It then requires regular pumping." Frazier suggested that the only resolution was more drainfield or regular pumping. After Frazier listed the Burkholz house, she mentioned to Mrs. Doolittle that she could not show the Burkholz house during wet weather because the backyard, in which the septic tank and drainfield was located, was too boggy. Further, Frazier discussed with Mrs. Doolittle that the city was going to install sewer in the area because of the septic tank failures. In conformance with the Exclusive Right of Sale agreement with the Burkholzs, Frazier listed the house through the Multiple Listing Service. The data on the house was input on an input sheet. If there are defects, they can be listed on lines RE1-RE4 on the input form. Despite her knowledge about the Burkholz's septic tank and the Doolittle's septic tank, Frazier did not list this as a defect. Mary Wheatley, a sales associate with Bob Wolfe Real Estate, worked with Jesse and Susan Day to locate a house to purchase. She showed the Days the Burkholz house. Her only knowledge of that house came from the MLS listing, the brochure entitled Highlights of this Home prepared by Frazier, and from information verbally given by Frazier. Wheatley had no knowledge of the septic tank problems and Frazier did not tell her anything about the septic tank or the potential hook up to city sewer. After various offers and counteroffers, the Days and the Burkholtzs signed a contract for the sale and purchase of the house on November 24, 1989. The Contract states in paragraph 14: CONDITION OF PROPERTY: BUYER ACKNOWLEDGES THAT HE HAS NOT RELIED UPON ANY REPRESENTA- TIONS MADE BY A REALTOR(S) AS TO THE CONDI- TION OF THE PREMISES. . . .SELLER warrants that the . . . septic tank . . . shall be in working order on the date of closing. SELLER agrees to repair any of the preceding items not in working order. BUYER agrees to inspect the property prior to closing to determine condition of said items; . . . If BUYER fails to make inspections as required, BUYER agrees to accept property in "as is" condition. BUYER and SELLER will diligently learn and disclose to each other prior to closing all facts affecting the value of the property. On December 26, 1989, the night before the closing, the Days, the Burkholzs, Frazier, and Wheatley did the final walk through. While Wheatley and Susan Day were in another room measuring for curtains, Mr. Day flushed a toilet and noted that it went down very slowly. He asked if there were septic tank problems. Mr. Burkholz indicated that there were, but that sewer hookup was coming and the septic tank was pumped out monthly by the city at no cost. Mr. Day asked about the costs and was told that the pumpouts were free and the sewer would cost several hundred dollars. There is a clear conflict in the testimony of the various witnesses about the sewer cost estimate given to Mr. Day, but the exact figure is of no consequence to the ultimate outcome of the case. Therefore the conflict is not resolved. The Days discussed the septic tank and sewer hookup and decided to go through with the closing. After the walk through, they signed an inspection sheet in which they accepted the premises as inspected, without any noted exceptions, and they relieved the sellers and the realtor from further warranty or responsibility for the condition of the property. According to Thomas Bryant, an engineer with the City of Tallahassee, in December, 1989, no one knew whether there would be sewer installed in Forest Green or the potential cost of sewer hookup. No one knew that even on the date of hearing. The city did enter into an agreement to charge $650 for sewer hookup in Forest Green, but there are additional charges and costs to the homeowner which are as yet undetermined. The septic tank problems constitute a latent defect which should have been disclosed to the buyers before a contract was agreed upon. The failure to disclose is not egregious since the regular pumping of the septic tank is done at no cost to the homeowner and results in no liability to the homeowner. The projected sewer hook up was too uncertain to have required such disclosure.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Real Estate Commission enter a Final Order and therein: Find Sandra B. Frazier guilty of one Count of concealment in violation of Section 475.25(1)(b), Florida Statutes. Based on the mitigating factors set forth above and on the relatively minor nature of the offense, impose a fine of $100.00 on Sandra B. Frazier. Issue a written reprimand to Sandra B. Frazier. RECOMMENDED this 27th day of March, 1991, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of March, 1991. APPENDIX TO THE RECOMMENDED ORDER, CASE NO. 90-6189 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted in this case. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Sandra B. Frazier Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1). Proposed findings of fact 2-9 are subordinate to the facts actually found in this Recommended Order. COPIES FURNISHED: Janine B. Myrick Senior Attorney Department of Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32801-1772 William J. Haley Attorney at Law Post Office Box 1029 Lake City, FL 32056-1029 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Darlene F. Keller Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32801
The Issue The petition in this matter was filed pursuant to Section 57.111, Florida Statutes, seeking fees and costs arising from an underlying proceeding (DOAH Case No. 93-5526) in which the Department of Health and Rehabilitative Services entered a Final Order adopting the hearing officer's recommendation that the administrative complaint against Wayne H. Crotty, d/b/a Crotty Septic/Roto- Rooter, be dismissed. The parties have stipulated to the reasonableness of the fees and costs, the total of which exceeds the statutory $15,000.00 maximum. Respondent, Department of Health and Rehabilitative Services, contests entitlement to the award and argues that Petitioners are not prevailing small business parties and, further, that the agency had a reasonable basis in law and fact at the time its complaint was filed.
Findings Of Fact The Parties Wayne H. Crotty is, and at all relevant times has been a licensed septic tank contractor in the State of Florida. Crotty Unlimited, Inc. was formed in 1987 as a holding and management company for several small, diversified corporations held by the Crotty family. One of those companies was Crotty Septic Service, Inc., which was involved in septic contracting and related businesses since 1972. In the early 1990's the other small corporations were sold, and when only Crotty Septic Service, Inc. was left, it was dissolved and was later registered as a fictitious name under which Crotty Unlimited, Inc. was doing business. From March 1992 until approximately June 1994, Crotty Septic Roto- Rooter was registered as a fictitious name owned by the corporation, Crotty Unlimited, Inc. Wayne H. Crotty is currently a director and president of Crotty Unlimited, Inc. Prior to Fall of 1994 he was vice president and secretary of the corporation. He is now, and was at all relevant times, a minority shareholder. In 1992 and 1993, Wayne H. Crotty filed applications for septic tank contracting authorization pursuant to Chapter 489, part III, Florida Statutes, for the business "Crotty Septic/Roto-Rooter." The certificates were issued by the Department of Health and Rehabilitative Services under that designated business name. Wayne Crotty never applied for or received a certificate of authorization for septic tank contracting under the name, "Crotty Unlimited, Inc." Prior to 1992 the business authorization was in the name, Crotty Septic Services, Inc. The Department of Health and Rehabilitative Services (HRS), through its state health program officer, is the state agency with statutory responsibility for licensing septic contractors, and monitoring and disciplining those contractors. The program office relies on the field staff in local county health units to conduct inspections and investigate complaints. The Underlying Proceeding In 1993 Wayne Crotty had an application pending for a permit from HRS for a septage disposal service, temporary system service and septage treatment and disposal facility. The application designates the business as "Crotty Septic/Roto-Rooter" and the owner as "Crotty Unlimited, Inc." The application describes a lime stabilization facility on Southport Road in Osceola County (the Southport facility). The purpose of the facility was to receive pumped-out sewage effluent, treat the effluent through lime stabilization and spread the treated effluent in a designated field at the facility. Michael Napier, assistant director of environmental health in Osceola County conducted a series of inspections of the Southport facility in April, May and June of 1993. Mr. Napier noted what he considered were violations of Chapter 386, Florida Statutes, relating to sanitary nuisances and rule chapter 10D-6, Florida Administrative Code, relating to the treatment and disposal of septage and the standards of practice of septic tank contracting. He spoke with Wayne Crotty and corresponded with him regarding the inspection findings and he also consulted with Gerald Briggs, an environmental manager with HRS' state health program office in Tallahassee. Gerald Briggs drafted the administrative complaint in July 1993 based on the consultations with Michael Napier, the correspondence between the Osceola County health unit and Wayne Crotty and the inspection reports, photographs, or other supporting documentation. Throughout several months' time period Briggs felt from the tone of the letters that the corrections would be made. By July when Michael Napier said that the plant was handling a large quantity of septage in a very unsanitary and sloppy manner, Briggs agreed the facility should not be permitted as he was concerned about the impact on public health and the threat to ground and surface water in the area. Once Gerald Briggs decided to pursue an administrative complaint he determined that the respondent should be Wayne Crotty as the licensed septic tank contractor. The file on Wayne Crotty's certificate of authorization indicated that Crotty Septic/Roto-Rooter was the authorized business name. Wayne Crotty had in early 1992 informed Gerald Briggs that he had purchased a Roto-Rooter franchise and wanted to be able to advertise under that name. Briggs advised that as an individual septic tank contractor he could only qualify one authorized business and the business he advertised would have to be the one that was authorized by the agency. Briggs advised that Wayne Crotty could amend his authorization to change the business name from Crotty Septic Service, Inc. to Crotty Septic/Roto-Rooter. When Gerald Briggs drafted the administrative complaint alleging violations found by Michael Napier and the Osceola County field staff, he relied on the information in his files and named Wayne Crotty as the responsible septic tank contractor and what he understood was Crotty's business: Crotty Septic/Roto-Rooter. The respondent throughout the underlying proceeding was designated as "Wayne H. Crotty, d/b/a Crotty Septic/Roto-Rooter." No corporate party appeared in that underlying case (DOAH number 93-5526) by intervention or otherwise. Richard G. Hunter, Ph.D., HRS Health Officer for Environmental Health and Statewide Services signed the administrative complaint based on his examination of the packet prepared by his program and legal staff and the information from the field. The complaint sought to impose $2,500 in administrative fines on Wayne H. Crotty for violating regulations concerning disposal of stabilized septage and for creating or maintaining a sanitary nuisance. Wayne Crotty denied the allegations and requested a formal hearing. The case was referred to the Division of Administrative Hearings, was assigned DOAH number 93-5526 and was heard on February 3-4, 1994. Included in the recommended order was this ultimate conclusion: 94. At most, the department established some intermittent sloppy practices by the Respondent -- practices that resulted primarily from the failure to have proper equipment available (the dumpster), and from untrained staff (Norm's admission about the cows). In the absence of clear advance notice of violations and an opportunity to correct the violations as provided by section 386.03, Florida Statutes, and with Respondent's evidence of reasonable attempts to cooperate and to obtain more appropriate equipment and train staff, those isolated practices should not be subject to penalty. (Recommended Order entered 6/28/94) In a Final Order entered on August 22, 1994, the Department of Health and Rehabilitative Services adopted the findings, conclusions and recommendation of the hearing officer and dismissed the administrative complaint against Wayne H. Crotty, d/b/a Crotty Septic/Roto-Rooter. The Elements Required for an Award of Fees and Costs Respondent, Wayne H. Crotty, thus prevailed in the underlying action. Wayne Crotty was an officer, minority shareholder and, according to his testimony, an employee of Crotty Unlimited, Inc. (transcript, p. 58). He was not a sole proprietor of an unincorporated business; he was not a small business party. At the time that the complaint was filed the agency had a reasonable basis to claim that violations were occurring or had occurred. However, its initiation of the proceeding was fatally flawed by its failure to provide statutory notice and an opportunity to correct the violations. When the complaint was filed the parties were still engaged in free-form discussion and correspondence regarding operations at the lime stabilization facility.
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
