The Issue The issues to be resolved in this proceeding concerns whether the Respondent installed a septic system without a permit; whether a permit was required for the installation; whether the installation was of inadequate size; whether the Respondent caused the disconnection of an existing system without a permit, and whether that system was improperly abandoned. A related issue is whether the proposed $1,500.00 fine should be imposed if the violations are proven or what, if any, fine is warranted.
Findings Of Fact The Petitioner is an agency of the State of Florida charged, in pertinent part, by its organic statutes and rules, with regulating the practice of septic tank contracting and the installation and repair of septic tank and drainfield waste disposal systems and with licensure of such contractors pursuant to Rule Chapter 64E, Florida Administrative Code. The Respondent, Trammel Fowler (Fowler), is a licensed septic tank contractor regulated by the statutes and rules cited herein. Fowler has never been issued any citations or been subjected to discipline under the relevant statutes and rules enforced by the Petitioner with regard to septic system design, construction, installation and repair. He has worked in the septic tank installation business for 19 years. The Respondent installed a septic tank and drainfield system at 5642 Old Bethel Road, Crestview, Florida, a residential construction project (home) in 1993. The original septic tank system installed by the Respondent was finally approved on June 11, 1993. The home site at issue was originally designed to have the septic tank and drainfield system located in the backyard of the residence. Plumbing errors by the general contractor and the plumbing sub-contractor caused the plumbing system to be "stubbed-out" to the front of the house so that the septic tank and drainfield system was installed in the front of the house rather than in the backyard as originally designed and approved by the Petitioner. Additional excavation work was required at the site, which caused the soil type to change in the front of the house where the septic tank and drainfield were to be installed. This in turn required the Okaloosa County Health Department to require additional drainfield square footage to be added to the previously approved 600 square feet of drainfield, so that the drainfield installed in the front of the house by the Respondent ultimately encompassed 800 square feet. Thus, although the original site plans approved by the Okaloosa County Health Department were not followed, subsequent modifications to the system resulted in the septic tank system being fully approved by the Petitioner (through the Okaloosa County Health Department), on June 11, 1993. In the ensuing months, landscaping problems at the site caused surface water to collect around and above the drainfield area. This, coupled with a continuous water flow from the residence caused by leaking appliances, and particularly the commode, resulted in raw or partially treated wastewater becoming exposed on the surface of the ground, as a sanitary nuisance. This was caused as the septic tank and drainfield system became saturated by the excess water from the two referenced sources. This caused the failure of that septic tank and drainfield system within nine months of its original installation, as was noted on March 4, 1994, by the Department's representative Mr. Sims. It is undisputed that the Respondent, Mr. Fowler, did not cause or contribute to this septic tank system failure. He constructed the system as designed and approved by the Department (or as re- approved by the Department in June 1993 with the relocation of the system to the front yard of the residence and with the augmentation of the drainfield referenced above). The Department was aware of the failure of the original system in the front yard of the residence as early as March 1994. There is no evidence that an actual permit for repair of that system was ever issued. Mr. Fowler maintains that the Department had a policy at that time of authorizing repairs to systems that failed within one year of original installation, as this one did, without a written, formal permit process, but rather by informal approval and inspection of the repair work. The Petitioner disagrees and Mr. Sims, the Petitioner's representative, states that a permit was required, although no fee was charged. Indeed in 1994 a rule was enacted authorizing issuance of a permit for repair work for systems that failed within one year of original installation without being accompanied by the charging of a fee for that permit. In any event, prior to the rule change, repairs were authorized for failures within one year by the Department without a permit, but were required to be inspected and a notation made in the permit file or in some cases on a "nuisance complaint card," so authorization and inspection was supposed to be documented. When by the time the repair was effected by the installation of the backyard septic tank and drainfield system or "overflow-system" in February 1995, the rule change requiring issuance of a repair permit without fee had become effective. There is evidence that the Respondent was aware of this since, sometime in 1994, he had obtained a permit authorizing repair of a septic tank and drainfield site on "Windsor Circle" as shown by the Petitioner's Exhibits 6 and 7 in evidence. Be that as it may, the Respondent contends that Mr. Brown, the environmental specialist and inspector for the Department, met with him at the repair site in question and at least verbally authorized the repair of the system by installation of the septic tank and drainfield in the backyard of the residence; to be connected to the sewer line which also was connected with the malfunctioning system in the front yard of that residence. Mr. Brown in his testimony purports to have no memory of authorizing the repair work or inspecting it and seems confused as to whether he met with the Respondent at the site. The Petitioner acknowledges, as does Mr. Brown, that he has had problems since that time with memory lapses, attendant to two life-threatening injuries, which have apparently caused problems with memory loss. He purportedly suffers from post-traumatic stress syndrome and is taking medication with regard thereto. There is no dispute that he has problems with recall. Moreover, there is evidence that Mr. Brown met with the Respondent at an address on Old Bethel Road for some reason, as shown by a notation in Department records in February 1995. Consequently, while there is no doubt that the repair work in question was done without a written permit, there is evidence to corroborate Mr. Fowler's testimony to the effect that Mr. Brown inspected and reviewed the repair system while it was actually being installed by Fowler and approved it. Thus, it is possible that Mr. Fowler was under a good faith impression that the Department had a policy of inspecting and approving repair work without there being a permit related to it at the time when he installed the secondary "overflow" system at the Old Bethel Road site in February of 1995, even though that impression may have been legally mistaken, because the rule requiring a permit at no fee for repair work was already in effect. In any event, Mr. Fowler installed the so-called "repair system" in February 1995, which he has termed an "overflow" system designed to augment the treatment capability of the previously-approved system installed in the front yard at that residence. That system, as found above, consisted of 800 square feet of drainfield. The "overflow" system installed in the backyard by Mr. Fowler in February 1995 without the permit, has only 300 square feet of drainfield. This is clearly well below the minimum required for such a system and tends to support Mr. Fowler's testimony that it was intended really as a repair job in the form of a overflow system to handle extra flow that the original system in the front yard would not be able to handle in performing the intended treatment function. It is unlikely that Mr. Fowler, with or without a permit, would have installed a system he clearly would know to be of only one-half (or less) of the adequate size and treatment capability for the residence, if it had been intended to be a separately functioning independent treatment system for the residence. In fact, the "overflow" system was connected through a "T" or "Y" fitting in the sewer line outfall pipe from the house with the original septic tank and drainfield system in the front yard of the residence, so that flow could go to both systems simultaneously from the residential sewer line. There is conflicting testimony as to whether such a dually draining system could work properly. One septic tank contractor testified that it could and could adequately split the flow between the two septic tank and drainfield systems so as to perform adequate treatment without backups or overflows, while a witness for the Department testified that such a split-fitting could cause stoppages and therefore sewage backups. Be that as it may, the installation of the system in a connected fashion to the original system supports Mr. Fowler's testimony and contention that the system installed in the backyard, with 300 square feet of drainfield, was intended as a repair system merely to augment the treatment function being provided by the poorly functioning original system in the front yard. In fact, the preponderant evidence shows that, with the elimination of leakage from the appliances in the house and the correction of the water-pooling problem caused by improper landscaping, that the system would function adequately thus connected. Indeed, when the plumber or the general contractor for the residence disconnected the original front-yard septic tank system from the overflow system, so that all of the sewage in the house went to the overflow system with the smaller drainfield, that system still functioned adequately for one and one-half years until failure in approximately August 1997. It is undisputed that the Respondent had no part in the unreported and unapproved disconnection of the original front system from the overflow tank and drainfield system in the backyard. The evidence shows a preponderant likelihood that the total system would have functioned adequately indefinitely had the two remained connected so that sewage could flow to the front yard system with the 800 square feet of drainfield, with the excess water flow problems referenced above already corrected. Mr. Brown, the Department environmental specialist and inspector, did not recall specifically whether he had been at the Old Bethel Road site at issue, but testified that it was definitely possible. He testified that the time entry notation he made admitted into evidence as Exhibit No. 3, may have reflected an inspection for a repair job at the Old Bethel Road site. Mr. Brown admitted that he was present on Old Bethel Road in February 1995, but did not recall his purpose of being there. His testimony thus did not contradict the testimony of Trammel Fowler. Mr. Brown also testified that he was aware of problems at the Old Bethel Road site and testified that Mr. Wykle of the Department and Mr. Sims were also aware of problems at the Old Bethel Road site. Douglas Sims of the Department testified that the two systems, the original front tank and drainfield and the overflow tank and drainfield installed in the backyard by Mr. Fowler could not work together if they were connected. This is belied by testimony of a septic tank contractor, Ken Arnett, who was a rebuttal witness called by the Department. Mr. Arnett testified that he would expect a system of the type contemplated by Mr. Fowler and Mr. Brown to function properly. It thus seems from the preponderant weight of the evidence that the reason the Old Bethel Road residential system quit functioning properly, in approximately August 1997, is that the plumbing contractor, at the behest of the residential building contractor for the residence constructed there, disconnected the overflow system from the original front yard system, so that all the house effluent was going to the overflow system, which was never intended to have a complete, standard-sized drainfield for such a dwelling, prevalent soil conditions, elevations and the like. Mr. Brown, a long time employee of the Department was familiar with the statewide rules affecting septic tank contractors and installation and familiar with local department rules and policies relating to repairs. He testified that for a period of time in the early 1990's, there was an unwritten policy by the Okaloosa County Health Department that some repair permits would be waived for certain repairs provided a final inspection by the Department was made. He stated that if the septic tank system failed within one year under certain circumstances, a repair permit would be waived as long as the Department was aware of the repair. Mr. Brown could not recall when the policy ended, but estimated it to be sometime between 1995 and 1997. He called the discontinuation of the local policy to waive repair permits a "gradual phase out." Mr. Brown also recalled that the Okaloosa County Health Department's unwritten, local policy concerning waiver of repair permits was known and relied upon by septic tank contractors in certain situations. Cecil Rogers, a long-time septic tank contractor who dealt with the Okaloosa County Health Department regularly, testified that there was a standard policy to allow repairs to be made to septic tank systems that failed within one year without requiring a permit. There thus seems to have been an unwritten policy or practice among septic tank contractors and the Okaloosa County Health Department to the effect that if a system failed within one year and the contractor was willing to repair the system without cost to the homeowner, that the permit would be waived as long as the system or repair could be inspected by the Department. The system originally installed which failed appears to have been installed before the effective date of the rule requiring that a no-charge permit be obtained for repair work. The repair work in question, the installation of the overflow system, appears to have been effected after the effective date of the new rule. It also appears that Mr. Fowler knew of the new rule because of his obtaining a permit for repair work at the Windsor Circle repair site in 1994. It also would appear that Mr. Brown likely verbally approved and inspected the repair work at the subject site, giving Mr. Fowler the impression that he was authorized to go ahead and make the repair by installing the overflow system. Thus, although he may have technically violated the rule requiring a no-charge permit for repair work, it does not appear that he had any intent to circumvent the authority of the Department, since the preponderant evidence shows that Mr. Brown knew of and approved the installation. Thus, in this regard, a minimal penalty would be warranted. Moreover, after the original septic system at the Old Bethel Road site failed in March of 1994, through no fault of Fowler, Fowler paid to make the repair by installing the overflow system at his own expense. The original new home purchaser at that site, and Mr. Fowler's customer, Mr. Wayne Aaberg, thus did not sustain any personal expenses for the repair work performed by Fowler. The Petitioner did not present any evidence to establish that the repairs made by Fowler caused the septic tank system at Old Bethel Road to fail. The Petitioner, through the testimony of environmental manager Douglas Sims, itself established that the plumbing contractor actually disconnected the front system from the overflow system and made a physical connection only to the rear system installed by Mr. Fowler, rather than Fowler, and without Mr. Fowler's knowledge. The Petitioner, apparently through Douglas Sims, failed to conduct an investigation to determine which party actually was responsible for physically abandoning or disconnecting the original front system from the home and from the overflow system prior to the charges being filed against Mr. Fowler. Mr. Fowler did not cause the physical disconnection of the two systems and the residence and is not a licensed plumber. He did not, during the course of his contracting business for septic tanks and drainfields make physical connections or disconnections to dwelling units, but instead left that to the responsibility of the general contractor and/or the plumbing contractor. The Petitioner presented no evidence establishing any monetary harm to any customer of the Respondent. The disconnection of the systems which caused the failure was not shown to have been the responsibility nor fault of Mr. Fowler. Rather, any monetary harm to the homeowner who owned the residence when the failure occurred in August 1997, after the original repair installation had been paid for by Mr. Fowler was caused by the plumbing contractor and/or the general contractor, Kemp Brothers, who directed the plumbing contractor to disconnect the original front system from the overflow system. Consequently, any monetary damage caused by fixing the failure which occurred in August 1997, and which engendered the subject dispute, was not caused by Mr. Fowler. Finally, Mr. Douglas Sims of the Department, testified that he knew of two other un-permitted repairs by septic tank contractors which were known to the Department. In both of those cases, the contractors were only issued a Letter of Warning. Mr. Sims testified that if the Respondent herein had made repairs to the existing system at his own cost after the failure occurring in August of 1997, then the Department would have only issued a Letter of Warning. Mr. Fowler paid to fix the original system in February 1995, but felt that monetary responsibility for the August 1997 failure was not his fault and thus did not offer to pay for that.
Recommendation Accordingly, having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered finding that the Respondent effected repair work to a septic tank and drainfield system without the required written permit but that, in view of the above-found and concluded extenuating circumstances, that a minimal penalty of a letter of warning be issued to the Respondent by the Department and that the citation for violation, in all other respects, be dismissed. DONE AND ENTERED this 19th day of January, 2000, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of January, 2000. COPIES FURNISHED: Rodney M. Johnson, Esquire Department of Health Northwest Law Office 1295 West Fairfield Drive Pensacola, Florida 32501 Matthew D. Bordelon, Esquire 2721 Gulf Breeze Parkway Gulf Breeze, Florida 32561 Angela T. Hall, Agency Clerk Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1703 Dr. Robert G. Brooks, Secretary Department of Health Bin A00 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701 Pete Peterson, General Counsel Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701
The Issue The issue addressed in this proceeding is whether Respondent should be fined for violating provisions of Chapters 381, 386 and 489, Florida Statutes, governing septic tank installation and licensure.
Findings Of Fact On August 3, 1989, and again in March, 1992, Respondent was hired by Janet Thompson to perform septic tank work on her septic tank system located at her home at 3168 Pins Lane, Gulf Breeze, Santa Rosa County, Florida. Her system was backing up into her house. Ms. Thompson contacted Mr. Burkett through his advertisement for Working Man Septic Tank in the Southern Bell Yellow Pages. Mr. Burkett recommended that a new drainline or finger be added to her septic system. Mr. Burkett did put in a new finger. However, the new finger was incorrectly installed, in that the drainline exceeded the maximum allowable width and did not have the minimum depth of aggregate in violation of the Rules of the Department regarding the installation of drainlines for septic tank systems. Mr. Burkett's work seemed to solve Ms. Thompson's backup problem. However, a few months later her septic tank system began backing up again. Ms. Thompson again called Mr. Burkett to come and fix the problem. Mr. Burkett recommended another drainline in an "L" shaped configuration. Mr. Burkett installed the new finger. However, he again installed the line incorrectly and violated the Department's Rules, in that the drainline exceeded the maximum allowable width and did not have the minimum depth of aggregate. Ms. Thompson's septic tank problem was corrected for a few months and then began backing up once more. Ms. Thompson called another contractor who finally solved the problem by properly installing an extensive drainline system by building the low area of the drainfield and utilizing three truckloads of aggregate. In May, 1990, William Davenport hired Respondent to do some preventive installation of a new drainfield to the septic tank system located at his home at 6220 East Bay Boulevard, Gulf Breeze, Santa Rosa County, Florida. Mr. Burkett only performed part of the work for which he was hired. The work Respondent did perform was incorrect and violated the Department's Rules regarding the installation of drainfields and lines for septic tank systems. Specifically, the work performed by Respondent was incorrect in that the drainfield exceeded the maximum allowable width, no barrier of building paper or other suitable material was installed to protect the infiltration bed and the aggregate did not meet the minimum depth required. Rules 10D-6.056(4)(a), (d) and (e), Florida Administrative Code. Finally, throughout the time period of the repair work on the Thompson and Davenport properties Respondent was not registered or licensed by the Department to perform such services and was advertising to provide such services under the name "Working Man Septic Tank Co." in the Southern Bell Yellow Pages. Both the lack of a registration and the advertisement of an unlicensed business violate the Rules of the Department. Rule 10D-6.075(4)(a), Florida Administrative Code.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is, accordingly, RECOMMENDED, that the Department impose on Respondent a fine of $2,000.00. DONE and ORDERED this 9th day of November, 1994, in Tallahassee, Florida. COPIES FURNISHED: Frank C. Bozeman, III Asst. District Legal Counsel D H R S 160 Governmental Center Pensacola, FL 32501 Kenneth P. Walsh Attorney at Law P. O. Box 1208 Shalimar, FL 32505 Robert L. Powell, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, FL 32399-0700 Kim Tucker General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, FL 32399-0700 DIANNE CLEAVINGER 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 9th day of November, 1994.
Findings Of Fact Franklin T. and Barbara Snow acquired the NE corner of the S-1/2 of the SE-1/4 of Government Lot 3 in Section 14, Township 19 South, Range 16 East near Ozello in Citrus County. This property was acquired by Petitioner at a public sale by the U.S. Government who had acquired the property in a tax delinquency proceeding. Petitioner purchased the property to use as a homesite for a doublewide prefabricated home he desired to place on the property. Before a building permit will be issued by Citrus County, Petitioner is required to have access to water and to sewage disposal facilities. No central sewage treatment facility serves this area and other developed lots in the vicinity use septic tanks. Petitioner's application for a septic tank permit was denied by the Citrus County Health Department because there was an insufficient buffer zone between the proposed drain field and surface water. Section 381.272, Florida Statutes, provides onsite sewage disposal systems shall be placed no closer than 75 feet from surface waters. Because the lot owned .by Petitioner was platted prior to 1972, the minimum setback for this property is 50 feet from surface waters. Petitioner appealed to the Review Group for Individual Sewage Disposal, DHRS, for a waiver from this setback requirement. By letter dated March 9, 1984, Petitioner was advised that his request for variance was denied. Following discussions with Citrus County Health Department officials who issue septic tank permits, on May 11, 1984, Petitioner applied to DER for a dredge and fill permit to place some 750 cubic yards of fill into a wetland area on Petitioner's property to provide a sufficient buffer or setback zone for a proposed septic tank and drain field installation. The subject property is located at the northeast corner of a marsh approximately 1,200 feet from the open waters but within the landward extent of the St. Martins River. The marsh area consists principally of black rush and salt grass and is interlaced with small tidal creeks which flow into the two adjacent canals or into St. Martins River. Petitioner's property contains an upland parcel approximately 50 feet in width between existing canals which resulted from dredging these canals. The "upland" configuration was larger at one time than its present configuration, but was reduced to its present size through enforcement action by environmental agencies. The area which Petitioner seeks to fill had fill removed therefrom in these enforcement proceedings. The waters surrounding and including the project site are classified as Class III waters. Soil borings taken at the site shows the salt marsh underlain by 8 to 12 inches of sand, which overlays an organic mat of decaying anerobic black rush. Beneath this organic layer is limerock. Petitioner's application for a permit to fill this property was denied by Respondent because of the proposed septic tank installation. Respondent suggested chemical sewage disposal systems could be used at this site; however, the only witness qualifying as an expert in waste disposal facilities is familiar with other waste disposal systems and testified none of those systems can be used at this site. Before a building permit will be granted, household water supply is required and treatment of this water after use for bathing, washing, etc., will still be necessary and this treatment cannot be accomplished in a chemical system. Septic tank systems are regulated by DHRS and applications therefor are approved by DHRS specialists at the county health department level. The property here involved is within the 10-year flood plain and in order to obtain septic tank approval the site must be elevated above that plain. Here, that is 4.9 feet above sea level. The site is 3.5 feet above sea level. The bottom of the drain field is required to be 24 inches above the water table. If the fill permit is granted and approximately three feet of fill is placed over the 4,500 square feet, this will raise the property sufficiently so it will not be subject to tidal action and will provide a buffer zone sufficient to allow Citrus County to issue a septic tank permit. One objection raised by DER is that filling the area over existing vegetation will create another organic mat of decaying vegetation which will leach laterally into adjacent surface waters where it will contribute nutrients and exert an oxygen demand on the water column. Citrus County Health Department has authority to require the existing detritius be removed before new fill is applied and to require the perimeter of the fill area to be constructed with clayey soils to inhibit leachate escaping from the site. Removal of salt grass would precede removal of the decaying vegetation under the 8 to 12 inches of sand and leave nothing to add to the nutrient level of adjacent surface waters or impose an oxygen demand on the water column. The black rush and salt grass which presently dominate the proposed fill site perform a significant water quality function in trapping sediments, filtering runoff and assimilating nutrients. The presence of adjacent canals increases the value of this function. The proposed fill site also functions as a productive habitat for numerous aquatic species which comprise a portion of the estuarine food chain and ecosystem. More than a dozen aquatic organisms were turned up by a singe scoop of a dip net in an area nearly in the center of the proposed fill site. Leaving the site in its present condition creates a public benefit to the State. Adding fill to the area as requested will allow the site to comply with the regulations for septic tank installation. The U.S. Army Corps of Engineers will issue a federal dredge and fill permit to Petitioner if this application is granted. Therefore, the granting of this application for a dredge and fill permit will allow Petitioner to use the property he purchased for a home site. Respondent called one witness who qualified as an expert in the field of public health microbiology. This witness testified that studies have shown dead end canals and septic tank leachate to be significant contributors to high fecal coliform densities in adjacent waters. This witness opined that the statutory buffer zone is inadequate to prevent violations of Class III water standards in adjacent surface waters from such sources. Proposed finding No. 16, while not technically incorrect, is misleading. Bradley did represent that a buffer zone whose perimeter is composed of clay will keep leachate from escaping the site; that if a 50-foot setback could be maintained from surface waters, the county would grant the permit; and he believed the fill permit should be granted.
The Issue The issue is whether Respondent should have an administrative fine imposed for allegedly providing septic tank contracting services without a license.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: When the events herein occurred, Respondent, Herman Campbell, operated a back-hoe service in Santa Rosa County, Florida. He presently holds no licenses with, or registrations from, Petitioner, Department of Health (Department), to engage in the septic tank contracting business. In April 1997, Wayne Sullivan, who resides in Navarre, Florida, made arrangements with a local contractor, Robert Hoover, to dig up the drainfield and replace the pipe on a septic tank system at his mother-in-law's home at 8207 Laredo Street, Navarre. Hoover purchased the necessary pipe but then backed out of the job at the last minute. Sullivan then called Mary Esther Plumbing, who recommended that Respondent be used. Respondent was a former licensed septic tank contractor who had installed the original septic tank at the residence more than ten years earlier. Sullivan agreed to purchase all materials (pipe and gravel) needed for the job. Although Sullivan claims that Respondent told him he was licensed to do the work, it is found that Respondent indicated to Sullivan that he held no license or registration and could not obtain any permits. Notwithstanding Respondent's lack of licensure, Sullivan nonetheless asked Respondent to perform the work. Respondent undertook the job on or about Thursday, April 24, 1997. Charging a rate of $45.00 per hour to operate his back-hoe, Respondent replaced the pipe in the drainfield. In addition, he dug up a number of stumps in the front yard. The total charge for all work, including the stump removals, was $1,375.00, which was paid by check from the mother-in-law. The amount related to the septic tank work is not known. The following Monday, the Department received an anonymous complaint that an unlicensed person had performed septic tank contracting services for Sullivan's mother-in-law. After an investigation was conducted by a Department environmental specialist, an administrative complaint was issued. Respondent did not register with the Department before performing the work, and he did not obtain the required permit from, and inspection by, the Department. By failing to do so, Respondent acted in contravention of Department rules. Although the complaint alleges that Respondent caused monetary harm to the customer, there is no evidence that Sullivan's mother-in-law suffered any damages by virtue of Respondent's work. Indeed, at hearing, Sullivan indicated that he was pleased with Respondent's workmanship. While the Department suggests that the mother-in-law has been left with an "unauthorized drainfield," there is no evidence that this caused her to incur additional expense. Respondent contended that he was merely "digging a ditch" with his back-hoe and was not providing septic tank contracting services. However, the evidence shows that he dug the ditch, removed the old pipe, placed gravel in the bed, and laid the new pipe into the ditch, all of which relate to septic tank contracting services. While Sullivan may have assisted Respondent in performing these tasks, it does not relieve Respondent of the responsibility of complying with Department rules. Respondent also contended that he was being singled out for enforcement purposes because he is black. There was no evidence, however, to support this contention. In mitigation, Respondent believed he was working with Sullivan, as the owner of the property, in jointly performing the work, and there was no intent on his part to evade the licensing requirements. In addition, there was no danger to the public, and the customer's property was not damaged. Although the Department contends that Respondent has installed many septic tanks and drain fields "without a permit," there is no evidence in the record of specific jobs performed illegally by Respondent. Finally, the $2,000.00 administrative fine suggested by the Department would appear to have an adverse impact on Respondent's livelihood.
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)(a) and (b), Florida Administrative Code, and that Respondent be issued a letter of warning as to the first violation and that an administrative fine in the amount of $250.00 be imposed for the second violation. The allegation that Respondent violated a third rule should be dismissed. DONE AND ENTERED this 6th 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 6th 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 Herman Campbell 621 Oak Lane Fort Walton Beach, Florida 32548 Willie 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 Whether Petitioner may be granted a variance from Rule 64E-6.001(4), Florida Administrative Code, pursuant to Section 381.0065(4)(h)1., Florida Statutes.
Findings Of Fact Tony and Alma Moreno are owners of the building and premises located at 8250 Scenic Highway, Pensacola. They own the real property at that location all the way to road frontage right-of-way at Scenic Highway. The building had been in continuous existence in the same location for twenty or more years before Petitioner became connected with it. During that period of time, except for short hiatuses, either the Morenos or their lessees operated it as a licensed bar, most often under the name, "The Lighthouse Tavern." Sewage lines exist in the right-of-way at Scenic Highway, within 400 feet of the premises. The tavern is equipped with a septic tank. There has never been any history of septic problems on the tavern premises. The Lighthouse Tavern has always been a neighborhood bar of limited success. Martin MacAndrews has been putting amusement games in the tavern since 1978. He testified that during those twenty-two years, the average number of patrons has been eight to 14. Jim McDaniel has sold paper products to successive lessees since the 1970's. He has seen an average of 10 patrons during the day and up to 20 patrons at night. Charles Barcia, a more recent patron, has observed a maximum of nine patrons in the tavern. Denise Powell (nee´ Williams) leased the premises from August 7, 1998, until approximately September 28, 1998, during which time she operated the Lighthouse Tavern. She had approximately ten customers per day, used plastic barware, and had no septic problems. During the month or so she operated the tavern, she did not have the septic tank pumped. Ms. Powell's lease with the Morenos was not due to expire until July 31, 1999. However, on or about September 28, 1998, Hurricane Georges damaged the Lighthouse Tavern and wreaked destruction on Pensacola and much of the Florida Panhandle. The area was declared both a state and federal "disaster area." Ms. Powell immediately notified the Morenos, and they cancelled the lease by mutual agreement, because the premises were uninhabitable due to substantial water damage. Ms. Powell testified that but for Hurricane Georges, she would have continuously operated the Lighthouse Tavern under the terms of her lease from the Morenos. As it was, she abandoned the lease and the property. The Morenos made no repairs to the building. No commercial activity, as a tavern or otherwise, occurred on the subject property from September 28, 1998, through May 1, 2000, approximately a year-and-a-half. City water service to the property was terminated from October 12, 1998 until April 7, 2000. On April 5, 2000, Petitioner, a widowed mother, applied to Escambia County for an occupational license to run a tavern at that location. On or about April 7, 2000, Petitioner negotiated a new lease with the Morenos. It involved rate and terms favorable to Petitioner in exchange for her substantial investment (approximately $35,000, as of the date of hearing) in renovating the Lighthouse Tavern. Among other renovations to the property, Petitioner has replaced the tavern's back wall and outside deck, added two pool tables, coolers, two complete bathrooms, a three compartment sink, and a handwash sink. Very few of the fixtures, etc. are removable, let alone subject to resale. A five-year lease, Exhibit P-2, was executed on May 1, 2000. It limits Petitioner's use of the property to use as a tavern, so she cannot get her renovation money back by converting to another business. Paragraph 21 of the lease, purporting to be a lease/purchase option, has not been filled- out, so Petitioner's option to purchase the property is potentially unenforceable. Current Florida Administrative Code rules require septic tanks to have a minimum capacity of 1050 gallons, a filter, and a baffle. A baffle is a device to keep water and waste from going into the drainfields. On May 15, 2000, Ensley Septic Tank Service, operated by Agnes and Joe Nelson, pumped, inspected, and certified the existing septic tank as structurally sound. However, the existing septic tank is twenty years old and provides only 750 gallons. It is not baffled and does not have a filter. Its two drainfields are 75 feet and 69 feet, respectively, from the waterfront, whereas by Escambia County Ordinance, the current setback requirement is 100 feet. On May 25, 2000, the Department denied Petitioner a permit to utilize the existing septic tank, based on the contents of her application, which stated that the tavern occupancy would be 75 seats. Departmental analysis showed that 75 patrons would result in 1,000 gallons per day usage. The existing septic tank does not have that capacity. Before the execution of the lease, Petitioner made no inquiries of Respondent Agency. Likewise, no one told her before the execution of the lease that she would not be able to utilize the existing septic tank or use the premises for a tavern. Rather, Petitioner relied on her own interpretation of an Escambia County Ordinance providing additional time to meet County regulations for reopening a business (or nonconforming use) after closing the business due to Acts of God, and on the fact that Denise Powell's lease, by its terms, did not expire until July 31, 1999. When she was denied a permit to use the existing system, Petitioner applied for a variance for 75 patrons. Petitioner also filed a second application for variance and requested 24 patron occupancy. Petitioner went before the Department's Variance Review Board, which recommended granting the variance with the provisos offered by Petitioner. However, on July 18, 2000, the Department denied the requested variance, stating that the information provided by Petitioner failed to show that no reasonable alternative exists for the treatment of the sewage or that the discharge from the septic tank will not significantly degrade the groundwater or surface waters. The Department offered to permit the tavern to operate either with a connection to the existing sewer system or with a septic tank that meets the current requirements of the Florida Administrative Code. At hearing, Petitioner established that the tavern's water bills from 1996 to 1998 show a use of only 430 to 588 gallons of water per month. This amount reflects the low number of 10-20 patrons per day during that period of time (See Finding of Fact 4), but it also is only approximately three- quarters of the capacity of the existing septic tank. At hearing, Petitioner offered the following cumulative provisos to reduce water flow to the system: limit tavern hours to 11:00 a.m. to 2:00 a.m. (15 hours) daily; use plastic or paper cups; not serve food or mixed drinks; restrict beverages to beer and wine; and limit occupancy to 24 patrons. She offered to pump the existing septic tank more frequently and provide "port-a-potties," as needed. Petitioner anticipates using 24 seats inside, plus picnic tables on the deck. She offered to eliminate the outside seating. The deck constitutes one-quarter of the 900 square feet of the establishment. She will upgrade the septic system as her income from operating the tavern recoups her investment. She will close-up and terminate her lease if she cannot bring the premises "up to Code," that is, to meet the current Florida Administrative Code requirements for septic tanks and/or sewer connections, in one year's time. She has no objection to such provisos being attached to a variance, if one is granted. At hearing, certified septic tank engineers, Agnes Nelson and Joe Nelson, testified that the existing 750-gallon septic tank should handle 24 patrons and the water use would be further limited by using plastic or paper drink containers. In Mr. Nelson's opinion, since he found no salt water from the Bay or water table inversion in the tank when he inspected it, and since the drainfield slopes away from the building, the only way salt water would enter the existing septic tank is if it got above ground. Agnes Nelson conceded that high tide could fill the tank up. If, for any reason, the drainfields were not working, then the current septic tank would not work. However, because the building is between the beach and the drainfields; because, in her opinion, 24 patrons probably could not fit inside the building; and because there was so little solid waste in the tank when it was pumped, Ms. Nelson doubted that the tide and the drainfields would create a problem, even in ordinary rainy weather. Unfortunately, in rendering her opinion, Ms. Nelson did not consider the seating capacity of the tavern's deck or the effect on the surface waters of Escambia Bay of operating the tavern with the existing system. As of the date of hearing, the Morenos were in agreement with all of Petitioner's efforts to obtain a variance. They also will allow her to bring the premises "up to Code," if she can. The Department's current opposition to granting a variance with the provisos offered by Petitioner is based in part on immaterial disputes between the parties over who signed the original application for variance and who filled in the number of seats as 75. The Department also is mistrustful of Petitioner because her second variance application stated the building constituted 1,200 square feet. Because the Department and Petitioner now agree that the premises comprise 900 square feet, the error in the second application is also irrelevant. The Department's current opposition to granting the variance with the foregoing provisos volunteered by Petitioner is at least in part due to the on-site audit, wherein Departmental staff determined that the premises, including the outside deck, actually could accommodate 60-75 living, but not necessarily seated, patrons. The Department sees this as an impediment to occupancy being limited to 24 patrons, in practice. Human nature is such that if a bar has a large, outside deck in a tropical climate, it will probably have more patrons then those sitting in the 24 "seats" provided. While this concern might be speculative in other realms, in dealing with possible contaminants to groundwater or to the surface waters of Escambia Bay, it is a legitimate, if uncodified, concern. Joseph Scott Hale, Environmental Health Supervisor I, made the following suggestions which do not require a variance. Petitioner could connect her premises to the existing sewer at the 75-person occupancy limit; or could install a septic tank or tanks and drainfield(s) in accordance with Departmental rules for a 47-person occupancy limit; or could install a much more modest tank and drainfield system for a 24-person occupancy limit. Petitioner has received written bids to accomplish such alternatives in the following ranges. (1) Installation of the necessary plumbing and pumps to connect to an accessible sewer line is available at a cost of $27,628 to $28,450, although these costs could be inflated to more than $40,000 by adding a grinder station and by charges from CSX railroad for access across its right-of-way to the existing sewer lines; and (2) Installation of one or more septic tanks and drainfield systems in accordance with current rules and in a size for an occupancy capacity of 47 is available for a price ranging from $28,032 to $29,465. Neither of these options is currently feasible for Petitioner, because she has spent her savings on the completed renovations and has only $1,000 +/-, on deposit at this time. She has no current income. Without a contract to purchase the tavern property, she does not believe she can obtain financing. She is not eligible for an upgrade grant from the State because the tavern is commercial property. Petitioner feels that it would be necessary for her to run the tavern at a profit for a year at a minimum capacity of 24 seats in order to be able to pay for either of the foregoing possibilities. She cannot get an alcoholic beverage license without the variance. Petitioner is satisfied that if she cannot make a go of the tavern within one year, she can rescind the lease. The Morenos were silent on this issue. It is not necessary to interpret the lease on this score in order to resolve this case. Respondent construes part of Mr. and Mrs. Nelson's testimony as providing a third, cost-effective, and reasonable alternative for Petitioner in the form of a septic tank and drainfield which could be installed according to current Code with an occupancy capacity of 24 patrons at an approximate cost of $3,600 to $4,000. This oral estimate was testified to by Mrs. Nelson, who, although a certified septic tank inspector, does not actually do installing of septic tanks. She conceded that dollar figure was purely a guess and based on one elevated tank of 1050 gallons with a baffle. Mr. Nelson, who does the actual installing, estimated that more than one tank, a mount system, and a pump or two might be necessary, at additional cost. His thinking is in line with the components of the other written estimates Petitioner has received. Accordingly, it is found that the estimate that Ensley Septic Tank Service can bring the existing system up to Code at a cost of $3,600 to $4,000 to Petitioner is speculative and not a reasonable alternative. As is common, expert opinions were mixed on the danger, if any, to the groundwater and surface waters which would be occasioned by Petitioner operating the tavern under her foregoing proposed provisos without upgrading the current septic system. Petitioner's expert in civil engineering and degradation of groundwater did soil borings on the premises and hit no groundwater at 15 inches, even after two weeks of significant rain. However, his experience with soil analysis from "mottling" was limited, and accordingly, his opinion that water in the ground will never or rarely rise above 15 inches, so as to endanger groundwater or surface waters was not persuasive. Instead, I accept the greater weight of the evidence as a whole in order to make the following findings of fact. The top of the drainfields are located 12 to 22 inches below grade and occupy a one foot area, 24-34 inches below grade. The seasonal high water table is 15 inches below grade. The drainfields operate within the groundwater table. Current rules require drainfields to have a separation from the bottom of the drainfield to the top of the seasonal high water table so as to provide space for aerobic biological action. When a drainfield operates within the water table, no opportunity exists for aerobic biological action. Anaerobic biological action is not effective in killing viruses and other pathogens. Viruses can travel in soil from a drainfield to surface water at a rate of 100 feet in eight hours. Mr. Hale, (see Finding of Fact 30), who was accepted as an expert in groundwater table determination, has an impressive list of credentials, and among other qualifications, is State-certified in OSTDSs. He has personally witnessed water rising to the level of the leechfield in this location. Mr. Hale also took borings, but not in the leechfield. Even though standing water was not found until 32 inches below grade, the soil was saturated at 15 inches, which is the seasonal high water table and mean high water mark of Escambia Bay at Petitioner's waterfront. The usual groundwater high water table in this location is 24 inches below natural grade, and the temporary water table rises and falls, as affected by Escambia Bay tides and by rainfall. Another concern is that the leechfields average only 15 inches below grade, and soil "capillary action" or water "wicking" through the soil can result in contamination of the groundwater if they become saturated. The close proximity of the property to Escambia Bay presents the potential for pollution of surface waters. Mr. Hale reported that the tavern location is not subject to frequent flooding. However, it can, and probably will, flood, as before, during a hurricane. Mr. Hale testified further that but for the length of the cessation of business as a result of the hurricane (more than one year), the tavern could have continued to operate with eight seats and no danger to the groundwater. In his opinion, the existing system, unaltered, can handle waste disposal for only eight patrons. A 47-seat occupancy is the maximum allowable for a 1,000 gallon flow. Even though 24 seats would not be expected to exceed 1,000 gallons a day, 24 seats would not be accommodated by the existing system's 750 gallon tank, drainfields, leechfields, and insufficient set back footage. Mr. Hale reluctantly conceded that 22 seats might be "feasible," with all proposed provisos in place, plus the substitution of low flow toilets, but that solution would not be his best recommendation nor acceptable to the Department. According to Dr. Malcomb Shields, who was accepted as an expert microbiologist in the field of migration of pollutants from drainfields to surface waters, Escambia Bay is already above its threshold in dangerous nutrients. Dr. Shields further opined, with impressive scientific detail, that narrowing the zone in the drainfield, as on the Lighthouse Tavern property, makes the drainfields susceptible to more pathogens. In his opinion, the offered provisos would have absolutely no effect on the existing septic tank and system efficiency except to limit water and waste into the septic tank itself. Dr. Shields conceded that a variance granted upon the terms requested would not, by itself, cause significant degradation of water quality. However, he felt that perpetual use of the variance, even with the foregoing provisos, would, combined with all other factors present, contribute to surface water degradation, which is the test under the rule. Dr. Shields did not feel that a variance absolutely limited to one year's duration would have the same effect.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Health enter a final order which: Permits Petitioner to operate her tavern either with a connection to the existing sewer system or with installation of a septic tank and drainfield system in accordance with the current Florida Administrative Code rules for an occupancy capacity of 24 patrons; and alternatively Grants Petitioner a 12-month variance to utilize the existing tank and drainfield system upon the following terms: Petitioner shall obtain and maintain an annual OSTDS operating permit allowing inspection at will by the Department; Petitioner shall maintain an annual contract with a licensed septic tank contractor to inspect and service the existing OSTDS at least once per month, or more frequently as necessary; Upon notification by the septic tank contractor of any problem with the OSTDS, Petitioner shall provide port-a- potties sufficient for 22 patrons; During the 12 months the variance is in place, Petitioner shall provide a port-a-potty on any occasion of rain over eight hours' duration. Petitioner shall not open for business until low- flow toilets are substituted; Petitioner shall operate the premises as a tavern for no more than 12 months, during which 12 months Petitioner shall take all necessary steps to bring the system up to Code or to connect to the sewer line; During the 12 months the variance is in place, Petitioner shall limit hours of operation to 15 hours daily; eliminate all deck seating; provide no more than 22 seats inside; use only paper or plastic ware; serve no food or mixed drinks; and actively limit occupancy to 22 patrons at any one time; and At the end of the 12 months, the system shall be in compliance or the tavern shall be closed and remain closed until compliance is achieved. DONE AND ENTERED this 12th day of February, 2001, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 12th day of February, 2001. COPIES FURNISHED: Steven E. Melei, Esquire 3603 Mobile Highway Pensacola, Florida 32505 Rodney Johnson, Esquire Department of Health 1295 West Fairfield Drive Pensacola, Florida 32501 Theodore M. Henderson, Esquire Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Dr. Robert G. Brooks, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701
The Issue Whether Respondent violated Section 381.0065 and Chapter 489, Part III, Florida Statutes (2004), and Florida Administrative Code Chapter 64E-6, by engaging in septic tank contracting without registration as alleged by Petitioner in the Administrative Complaint and Order to Crease Operations, dated January 26, 2005.
Findings Of Fact Based upon observation and the demeanor of the witnesses while testifying, documentary materials received in evidence, stipulation of the parties, and evidentiary rulings during the hearings, and the record compiled, the following relevant and material facts are determined: The Department of Health ("Department"), Lee County Health Department, is the state agency charged with enforcing the statutory provisions pertaining to the practice of septic tank contracting in Florida, pursuant to Chapter 489 Part II and Section 381.0065, Florida Statutes (2004). Violators of these laws are subject to penalty assessments of Section 381.0061, Florida Statutes, and Florida Administrative Code Rule 64E-6.002. At all times relevant to these proceedings, Respondent, Keithon M. Patterson, has not been licensed as a plumber pursuant to Subsection 489.105(3)(m), Florida Statutes (2004). All times relevant to these proceedings, Respondent was doing business using the business name Full Spectrum Home Improvement, Inc. (Full Spectrum). The business is not nor has it ever been licensed under Subsection 489.105(3)(m), Florida Statutes (2004). All times relevant to these proceedings, the City of Cape Coral, Florida, has an ongoing utility expansion program extending city water services and city sewer services to properties within the limits of the city. All homeowners are required to connect or hookup to city water/sewer systems when such services become available in their respective location within the city. Each homeowner connection or hookup process to city- provided water and sewer, once completed, requires the homeowner to get the Department's abandonment permit to abandon their septic system after hookup to the city water/sewer system. Abandonment requires trenching from the street hookup to the water/sewer hookup. It requires disconnection from the home and the septic tank. It requires pumping or emptying of the septic tank followed by a crushing of the septic tank and filling in of soil. Vicki Adams lives in her home located at 3216 Southeast 1st Place, Cape Coral, Florida. When city services extended to her location, she was required to hookup to the city water/sewer system and have her septic tank system abandoned. To abandon a septic tank means to have a registered person, empty the septic tank, crush the septic tank, fill the septic tank space with clean fill, dig up the underground septic lines from the home to the septic tank, remove piping, and fill the trench with clean fill. For reasons of sanitation and safety, a Departmental permit is required for each property owner before they can abandon their private septic tank system. On or about November 22, 2004, Ms. Adams obtained her septic system abandonment permit from the Department. At some undetermined date but subsequent to November 22, 2004, Ms. Adams, for promise of monetary payment, hired Mr. Patterson to connect her home to the city sewer and to abandon her septic tank. When she was leaving for work, Ms. Adams observed Mr. Patterson doing trench work (i.e. digging, removing soil, hauling sod, etc.) and actually laying some pipe. Ms. Adams' son, Jeff, observed Mr. Patterson with a sledge hammer while in their front yard. Ms. Adams told Mr. Patterson where to park the trucks hauling the clean fill needed to fill the hole after the septic tank was crushed. Mr. Patterson rightly pointed out that neither Jeff nor Ms. Adams personally saw him crush the septic tank. However, when Ms. Adams returned home from work that afternoon she saw clean fill in the spot her crushed septic tank once occupied. Ace Septic Service, Inc. (Ace), a Department authorized septic tank contracting company, removed all residue from Ms. Adams' septic tank by pumping the tank contents into its truck. It invoiced Ms. Adams for pumping her tank. Carlos Casanova, manager of Ace at the time, gave undisputed testimony that his company only pumped out Ms. Adams' septic tank--they did not perform abandonment (i.e. crushing of the tank and filling the abandoned hole with fresh soil). Ms. Adams paid Mr. Patterson $790.00 for his work at her home, which included hooking-up her home to the city sewer line and abandoning her septic tank system. Mr. Patterson gave her a receipt indicating that she paid him in full, in cash, received by him, "K.M. Patterson's," on December 8, 2004, by his signature thereon. The receipt, however, is from "Full Spectrum Home Improvement," and under the "Description" states: "50' trench excavation, 50'4 DWV PVC pipe w/fitting, 6" X4" PVC DWV WVE, trench backfill and restoration (w/out sod)." It is abundantly clear from evidence of record that Ms. Adams' septic tank was abandoned, and, for the septic tank abandonment service rendered, Ms. Adams paid Mr. Patterson, who was not registered with the Department as required. Ace Septic Service, Inc. (Ace), a Department-authorized septic tank contracting company, did not abandon Ms. Adams' septic tank. On January 5, 2005, Department inspector, Ms. Pickerill (no first name in the record), went to the Adams' residence to inspect and confirm proper septic tank abandonment. Her inspection included probing the area where the tank had been located, confirming that the tank had been crushed and that clean fill was used to fill the hole. Satisfied by her inspection that Ms. Adams' septic tank had been properly abandoned, Ms. Pickerill signed the Department's abandonment permit for the Adams' property. Nicola Verna's home is located at 4117 Southwest 20th Avenue, Capt Coral, Florida. City sewer and water had been extended to his home, and he was required to hookup to the city water/sewer system and to abandon his septic system. Mr. Verna obtained the Department's septic system abandonment permit on May 7, 2004. At some undetermined time before September 27, 2004, Mr. Verna hired Mr. Patterson to connect his home to the city water/sewer system and to abandon his septic system. At his home site, Mr. Verna observed Mr. Patterson crush his septic tank with a sledgehammer and bring in a truckload of clean fill material that Mr. Patterson placed in the hole where he had crushed the septic tank. The arrangements to have Mr. Verna's septic tank pumped by Ace were made by Mr. Patterson, for which Mr. Verna paid Ace $165.00 for pumping only, evidenced by a September 27, 2004, invoice. As with Ms. Adams, Mr. Casanova gave undisputed testimony that his company only "pumped out the septic tank-- they did not perform septic tank abandonment," the issue in this cause. For services rendered (hooking-up home to city water, irrigation services, to city sewer, and abandoning the septic tank), Mr. Verna paid Mr. Patterson a total of $1,073.00. Mr. Patterson gave Mr. Verna two receipts. One August 16, 2004, receipt from Full Spectrum "for '120' trench for 120' water and irrigation lines, $619.00 paid in full ch# 1083 rec'd by K.M. Patterson." The second September 27, 2004 receipt "for '1 40' trenching sewer line" for a total of $454.00, with notation at the bottom, "deposit ch# 1086, Balance of $200.00 Rec'vd by K. Patterson ch# 1088." Mr. Verna is certain that the two receipts represented his payments to Mr. Patterson for a part of the work he performed in abandoning his sewer system, because Mr. Patterson is the only person who performed those services for him. As with Ms. Adams, Ms. Pickerill went to Mr. Verna's home on December 27, 2004, to conduct her inspection and to confirm Mr. Verna's septic system was abandoned properly. Her probing the area where the tank was located confirmed that it had been crushed and clean fill had been used to fill the hole. Satisfied by her inspection that Mr. Verna's septic tank had been properly abandoned, Ms. Pickerill signed the Department's abandonment permit for the Verna's property. The Department has taken previous enforcement actions for engaging in septic tank contracting without registration against Mr. Patterson. On June 4, 2004, the Department served an Administrative Complaint on Mr. Patterson seeking to impose a $1,500.00 fine for three separate episodes of tank contracting without being a registered septic tank contractor. Mr. Patterson settled the complaint for septic tank contracting without being a registered septic tank contractor with the Department by his agreement to pay a $750.00 fine. The Department memorialized the agreement in its Final Order Number DOH-04-1071-S-HST of September 15, 2004. Mr. Patterson paid his fine of $750.00 in January 2005, but not before the filing of the instant Cease Order entered by the Department in this proceeding. Based upon the above allegation of septic tank contracting without being a registered septic tank contractor with the Department, in the instant proceeding are "repeat violations" for penalty purposes as provided in disciplinary guidelines of Florida Administrative Code Rule 64E-6.002. The Department demonstrated by clear and convincing evidence that Mr. Patterson, did on two separate occasions violate Section 381.0065, and Chapter 489, Part III, Florida Statutes (2004), and Florida Administrative Code Chapter 64E-6, by engaging in septic tank contracting abandonment without registration as alleged by the Department in the Administrative Complaint and Order to Crease Operations, dated January 26, 2005. Mr. Patterson's protestations to the contrary are without merit and unworthy of belief.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final order affirming its January 26, 2005, Order to Crease Operations and imposing a $1,000.00 fine against Respondent, Keithon M. Patterson. DONE AND ENTERED this 28th day of July, 2005, in Tallahassee, Leon County, Florida. S FRED L. BUCKINE 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 28th day of July, 2005.
The Issue Whether or not Respondent failed to reasonably honor a warranty relating to the installation and repair of a septic tank system.
Findings Of Fact Petitioner, the Department of Health and Rehabilitative Services, is the regulatory agency which regulates the installation and prescribed standards for on-site sewage disposal systems. Respondent, Alan Billings d/b/a Billing's Liquid Waste Removal, is a Florida entity registered and authorized by Petitioner to provide septic tank contracting services. On or about February 12, 1992, Respondent performed a septic tank repair at a two bedroom residential home located at 13904 Summers Avenue, in Hudson, Pasco County, Florida. Respondent's repairs consisted of adding 100 square foot of drainfield to the existing system, three yards of rock, cover paper, pipe, and a distributor box. Respondent provided the repairs as he agreed to on or about February 11, 1992. Installation of the additional drainfield by Respondent was proper and based on the size of the home (a two bedroom house), it was adequate for the building's normal requirement. Petitioner's expert, Van Kampen, testified without contradiction that the septic tank system repairs by Respondent were proper and was attached to an existing system which further added to the capacity of the system. The added capacity was far in excess of the particular purpose required for the home if used by a family of four. Based on the size of the home in which Respondent made the repairs, the maximum water usage anticipated would have been 4500 gallons of water per month. Documentary evidence introduced herein indicates that during the months in question, the average water usage at the subject home exceeded 11,000 gallons per month. The unexpected usage caused a "hydraulic overload" of the system, and was not within Respondent's expectations when he repaired it. Van Kampen related that the family that resided in the home consisted of seven (7) members. Respondent was unaware of that fact nor was he apprised of this fact until subsequent to the repairs when the system failed due to a hydraulic overload. Respondent did not offer a warranty to cover the "hydraulic overload" which is at issue herein.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Petitioner enter a final order dismissing the administrative complaint filed herein. DONE AND ENTERED this 4th day of February, 1994, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 4th day of February, 1994. COPIES FURNISHED: Robert Powell, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Kim Tucker, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Ron Smith, Esquire 12360 66th Street North Largo, Florida 34643 Shirley K. Hart, Esquire HRS District V Legal Office 11351 Ulmerton Road, Suite 407 Largo, Florida 34648-1630
Findings Of Fact The Respondent, Hance B. Jones, is a registered septic tank contractor. The Petitioner is charged with regulating septic tanks, and may initiate charges against septic tank contractors which fail to comply with the statutes and rules regulating septic tanks. The Department's local inspector, Mr. Land, was asked by a representative of Best Septic Tank Contracting to meet with the Best representative and Ms. Inez Quiett at Ms. Quiett's home and confer about a proposed septic tank repair. On March 5, 1992, Mr. Land visited the site, observed water standing around an area which he was advised was the existing septic tank and drain field, and was asked what would have to be done. Mr. Land advised that they would have to obtain a permit, and that the new drain field would have to be separated by at least 24 inches from the wet season water table, and that this would entail placing the drain field in a mound. Mr. Land left the site expecting to have a representative of Best pick up a permit for the repairs within a few days. When Mr. Land did not see anyone come in about the permit, he drove by Quiett's, and observed disturbed soil in the area of the drain field. He stopped, went to the Quiett's house, and spoke with Ms. Quiett's son. The son advised that they had repaired the drain field. Mr. Land asked who had repaired the field, and the son advised him that Mr. Jones had repaired it. On April 22, 1992, Mr. Land then wrote a letter to the Respondent and advised Jones that he had violated the law by repairing Quiett's septic tank and not obtaining a permit for the repair. Mr. Jones spoke with Land at Land's office, and denied that he had repaired the septic tank. Mr. Jones stated he had provided the materials and equipment used to repair the tank. On April 22, 1992, Ms. Quiett called Mr. Land on the telephone, and told Land that Mr. Jones had helped her with the tank, but denied that Jones had been her contractor. The Respondent denied that he was the contractor of the job; denied he was on the site; denied he supervised the work; and denied he received any compensation from Quiett. He indicated that he knew Ms. Quiett's brothers, who were contractors, and admitted that he had provided the materials used on the job and had loaned them his backhoe. Ms. Quiett was asked about the repairs to the system and invoked her privilege against self-incrimination.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that the Administrative Complaint against the Respondent be DISMISSED. DONE AND ENTERED this 26th day of August, 1992, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 26th day of August, 1992. COPIES FURNISHED: David West, Esquire District 3 Legal Office 1000 N.E. 16th Avenue Gainesville, FL 32609 Bobby Kirby, Esquire Route 2, Box 219 Lake Butler, FL 32054 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 John Slye, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
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.
