The Issue The issue is whether Petitioner created a sanitary nuisance in violation of Florida Administrative Code Rules 64E- 6.022(1)(l) and 64E-6.022(1)(q) and, if so, the proper penalty.
Findings Of Fact The Department of Health, Duval County Health Department (Department), is the state agency charged with enforcing the statutory and regulatory provisions pertaining to septic tank installations and repairs in Florida, pursuant to Section 381.0065, Florida Statutes, and Florida Administrative Code Sub-Chapter 64E-6. Mr. Hoag is registered as a Septic Tank Contractor pursuant to Florida Administrative Code Rule 64E-6.019. He was issued registration no. SR0911053. It was necessary to install a new septic tank at residences located at 8817 and 8821 Bellrose Avenue, in Duval County, during March 2004. The owner of the premises, Ben Lewis, contracted with Florida Septic Tank Service, Inc., to accomplish this work. A repair application was submitted to the Department on March 8, 2004, and was approved. Florida Septic Tank Service, Inc., engaged Mr. Hoag, of Plumbing and Contracting by Hoag, to accomplish the plumbing portion of the operation. Sometime on April 8, 2004, the exact time not being estimated, Mr. Hoag disconnected the stub from the residences that ran to the former septic tank. This was done so that pipes could be run to a new septic tank. He neither connected the line that he disconnected to the new septic tank nor capped the pipe. Mr. Hoag requested the occupants of the residences to refrain from using the sanitary facilities within the residences until he was able to continue his work on April 9, 2004. Despite this request, the facilities were used between April 8, 2004, and April 9, 2004. On April 9, 2004, sometime prior to 11:45 in the morning, Colleen Bierbach, an inspector with the Department, entered the premises of 8817 and 8821 Bellrose Avenue and observed household wastewater and human fecal matter on the ground at the terminus of the stub. Pictures were taken that memorialized the nature of the deposits. Inspector Scott Turner, of the Department, issued a citation to Mr. Hoag that indicated that the offense occurred at 11:45 a.m. on April 9, 2004. The citation reflected a violation of Section 386.041(1)(a), Florida Statutes, and Florida Administrative Code Rule 64E-6.022(1)(l) and (q). With regard to Florida Administrative Code Rule 64E-6.022(1)(l), the citation charged only that he committed, "Gross negligence, incompetence, or misconduct which causes no monetary harm to a customer." The citation was accepted by Mr. Hoag on April 15, 2004. Mr. Hoag's failure to either connect the line to the new septic tank or to cap the outflow line, caused an unsanitary and unsafe condition to exist at 8817 and 8821 Bellrose Avenue, Duval County, on April 9, 2004. No evidence was adduced as to the exact time that the pipe was opened on April 8, 2004, or as to the exact time that the pipe was closed and the area decontaminated on April 9, 2004.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Duval County Health Department, dismiss the citation issued to Mr. Hoag on April 9, 2004. DONE AND ENTERED this 15th day of February, 2006, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of February, 2006. COPIES FURNISHED: Catherine R. Berry, Esquire Department of Health 515 West Sixth Street Jacksonville, Florida 32206-4311 Robert J. Hoag Plumbing & Contracting by Hoag Post Office Box 7931 Jacksonville, Florida 32238 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Timothy M. Cerio, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Dr. John O. Agwunobi, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701
The Issue The issue is whether Petitioner created a sanitary nuisance in violation of Florida Administrative Code Rule 64E- 6.022(1)(d)(l) and (q) and, if so, the proper penalty.
Findings Of Fact The Department of Health, Duval County Health Department (Department), is the agency charged with enforcing the statutory and regulatory provisions pertaining to septic tank installations and repairs in Florida, pursuant to Section 381.0065, Florida Statutes, and Florida Administrative Code Chapter 64E-6. Mr. Smith is a qualified contractor employed by All Florida Septic Tank Service, Inc. (All Florida). The citation issued on April 15, 2004, identifies Mr. Smith's registration number as SR0011389 and All Florida's registration number as SA0000956. The citation describes the alleged violations as follows: On March 8, 2004, a repair application was submitted to the Duval County Health Department (DCHD) for 8817 & 8821 Bellrose Avenue, Jacksonville, FL 32244. All Florida Septic Tank Service, Inc. was indicated as the agent for the applicant/property owner, Ben Lewis. On April 8, 2004, Robert Hoag, qualifying contractor for Plumbing and Contracting by Hoag, disconnected the stub out line running from the house to the existing septic tank prior to installation of new septic tanks thus creating a sanitary nuisance. The existing septic tanks were abandoned at said property by All Florida Septic Tank Service, Inc.; DCHD was not notified of tank abandonment as required for inspection. Water supply was not turned off during he time of construction. On April 9, 2004, Colleen Bierbach, DCHD inspector, observed and photographed prima facie evidence of untreated human waste discharge onto ground surface at 8817 & 8821 Bellrose Avenue. Mr. Smith accepted the citation on April 15, 2004. On the same date, Mr. Smith wrote a letter to Scott Turner of the Department of Health, in response to the citation. His letter reads as follows: Mr Scott Turner, On April 8, 2004 All Florida Septic Tank Service Inc. started a job at 8817 and 8821 Bellrose Avenue in which new tanks and drainfields were required. In order for the new drainfield to be installed the existing tank had to be abandon [sic] prior to any work being done. The two existing referenced tanks were properly pumped out an abandoned on April 8, 2004. The new septic tanks were scheduled to be installed that same day. Due to mechanical problems with the crane truck, the tanks were unable to be set that day, causing the contracted plumber, Robert Hoag, to be unable to tie in the new sewer line. On the following day April 9, 2004 tanks (1500 gallon septic tank) and (750 gallon dosing tank) were installed with a different truck. At that time the contracted plumber was onsite to immediately tie in the sewer line. In the mean time the Duval County Health Department came to do the required inspection of the new system, at which time Colleen Bierback of the Health Department observed a small amount of sewage on the ground and photographed the site. Mr. Hoag immediately tied the sewer in at the same time, fixing the sanitary nuisance within one hour after inspection. According to Mr. Smith, sanitary problems existed at this work site for months. That is, raw sewage had been coming out of the old septic system for a long time. In Mr. Smith's words, "I was there to fix the sanitary nuisance, not create it." The owner of the property in question engaged Mr. Hoag, of Plumbing and Contracting by Hoag, to accomplish the plumbing portion of the operation. While Mr. Smith's letter stated that the new septic tanks were actually installed on April 9, 2004, Mr. Smith testified at hearing that he performed excavation services, installed a new drainfield and set the new septic tanks on April 8, 2004. The sand and new drainfield had to be put in first and the new tanks installed last. The plumber, Mr. Hoag, would be responsible to make the necessary pipe connection on the new tanks. However, Mr. Hoag did not make the necessary pipe connection and the occupants of the residences used the facilities between April 8, 2004, and April 9, 2004. Mr. Smith did not call anyone to inspect the old septic tank upon abandonment. According to Mr. Smith, it is common practice in the Jacksonville area to not call for an "abandonment" inspection when the contractor has a permit to install a new tank. The Department's inspector, Colleen Bierbach, acknowledged that All Florida called for an installation inspection of newly installed tanks on April 8, 2004. On the morning of April 9, 2004, after the new tanks had been installed, Ms. Bierbach went to 8817 and 8821 Bellrose Avenue. She observed raw sewage on the ground flowing toward the septic tanks. She took photographs of what she observed, but the copies of the photographs received in evidence are too blurry to show the extent of what she saw. Mr. Smith arrived at the work site just after Ms. Bierbach arrived on April 9, 2004. The description of the violation in the citation states that Mr. Hoag, the plumber, "disconnected the stub out line running from the house to the existing septic tank prior to the installation of the new septic tanks thus creating a sanitary nuisance." The evidence is insufficient to prove that Mr. Smith's actions, as opposed to the actions of Mr. Hoag, caused the unsanitary conditions.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Duval County Health Department, dismiss the citation issued to Mr. Smith on April 15, 2004. DONE AND ENTERED this 26th day of April, 2006, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of April, 2006. COPIES FURNISHED: Catherine R. Berry, Esquire Department of Health 515 West Sixth Street Jacksonville, Florida 32206-4311 James L. Smith All Florida Septic Tank Service, Inc. 8300 W. Beaver Street Jacksonville, Florida 32220 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Timothy M. Cerio, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Dr. M. Rony Francois, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701
The Issue Whether Respondent is guilty of creating, keeping, or maintaining a nuisance injurious to health in violation of Section 386.041(1)(b), Florida Statutes, as set forth in the Citation for Violation, dated August 19, 1996.
Findings Of Fact Petitioner, Department of Health, the successor agency to the Department of Health and Rehabilitative Services, is the state agency charged with the responsibility of investigating and correcting sanitary nuisances in this state. The Respondent, Hyacinth D. Wynter, now known as Hyacinth D. Wallace, has owned a private residence and kennels located at 2323 Tuscawilla Road, Winter Springs, Florida, from 1996 to the present. On or about June 19, 1996, the Seminole County Public Health Unit received a complaint of a possible sanitary nuisance existing on the Respondent’s property. On June 21, 1996, an inspection of Respondent’s property revealed that the property contained a large home with a septic tank and drain field in the front yard and another in the back yard. A kennel for small animals and an apartment was also located in the rear of the property. The septic tank and drain field in the rear of the property was located in a low spot which was subject to the accumulation of surface water runoff from the kennel and during periods of above-average rainfall. Observation revealed standing water in the back yard. The water showed discoloration and had a pungent odor. However, no solid waste was visible. Subsequent tests for sewage contamination was inconclusive. This observation indicated the drain field had failed. Respondent was given a Sanitary Nuisance form letter which recommended that the septic tank be pumped, the ground disinfected and the drainfield be repaired within ten days. Respondent contacted two septic tank companies in late June and received estimates on pumping the septic tank and on the repair and improvement of the septic system. Respondent retained one of the companies to pump the septic tank. The septic tank company was unable to complete the job prior to Petitioner’s reinspection on July 2, 1997, because of above normal rainfall and the inability to get its truck into the Respondent’s back yard. Petitioner reinspected Respondent’s property on July 2, 1997 and observed the same conditions as was observed on June 21, 1997. A three day extension was granted to Respondent, in order for the tank to be pumped. On July 3, 1997, Orlando Septic Tank Service, Inc. pumped the septic tank and disinfected the area. It also advised Respondent that the drainfield had failed and would need to be replaced. On July 8, 1997, Respondent inspected the area again and observed the same conditions as on the prior inspections. An Official Notice to Abate a Sanitary Nuisance and a Notice of Intended Action was issued by Respondent on July 11, 1997. It was served on Respondent, by posting and by certified mail, on July 12, 1997. Respondent was directed to abate the nuisance within 7 days of the notice or an administrative fine would be imposed. Respondent began to disinfect the area with lime on a daily basis, until the drainfield was repaired. The low area with the standing water was bordered off with visible construction type ribbon and visitors coming to the premises were advised to stay clear of the area. Respondent authorized Orlando Septic Tank Service to submit a permit application to replace the drainfield in accordance with the specifications approved by the Petitioner. The application was submitted on July 17, 1996. The permit was issued on July 24, 1996. On July 25, 1997, Respondent received a proposal from Orlando Septic Service to install an elevated drainfield on the site for the sum of $4,288.50. Respondent was not able to financially afford to authorize this work without obtaining financing for the project. When financing was obtained, Respondent accepted the proposal and then authorized the work on August 8, 1996. Due to other obligations, Orlando Septic was not able to give a proposed starting date for the project until August 26, 1996. On August 13, 1996, Petitioner inspected the Respondent’s property again and observed the same conditions as on previous inspections. Petitioner was informed of the projected starting date for repair of the drainfield, however, a Citation for Violation was issued on August 16, 1996 calling for corrective actions to abate the condition by 4:00 p.m. August 19, 1996. On August 27, 1996, the septic tank was pumped again. Orlando Septic Service was scheduled to begin work on the repair of the drainfield on August 26, 1996. On that same date, the company called Respondent and informed her that they were delayed on another job and could not begin repair of Respondent’s drainfield until sometime in September. Respondent immediately called another company and gave them the contract. The repair was completed on September 10, 1996. The evidence was insufficient to establish that a sanitary nuisance existed on Respondent’s property on August 16, 1996.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED as follows: The Respondent, Hyacinth D. Wynter, be found not guilty of violations Sections 386.041(b), Florida Statutes. The Notice of Intended Action be revoked. DONE and ENTERED this 30th day of May, 1997, in Tallahassee, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of May, 1997. COPIES FURNISHED: Sonia Nieves Burton, Esquire Department of Health 400 West Robinson Street Orlando, Florida 32801 Michael D. Jones, Esquire Atrium II Building 301 West State Road 434, Suite 317 Winter Springs, Florida 32708 Catherine H. Berry Legal Office Duval County Health Department 515 West 6th Street Jacksonville, Florida 32206-4397 Gregory D. Venz, Agency Clerk Department of Children & Families Building 2 Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Pete Peterson, Esquire 1317 Winewood Boulevard Building 6 Room 102-E Tallahassee, Florida 32399-0700
The Issue The issue in this case is whether the Petitioner, the Department of Health and Rehabilitative Services (HRS), should fine the Respondent, William Loiacano, d/b/a Gulf Coast Food Distributors, Inc., for maintaining a sanitary nuisance.2/
Findings Of Fact In 1990,6/ the Respondent, William Loiacano, d/b/a Gulf Coast Food Distributors, Inc., purchased property at 8402 Lemon Road, Port Richey, Florida, for purposes of relocating his on-going food distributing business. The prior owner operated a carpet business, with approximately five employees, at the location. The Respondent had about 45-50 employees. Shortly after the Respondent started doing business at the new location, he began to have problems with the existing septic tank system. The problem seemed to relate to the increased use of the toilets in the building by the added number of the Respondent's employees. In September, 1990, an HRS environmental health specialist inspected the premises and observed evidence of raw sewage bubbling to the surface from the septic system's drain field and flowing into a stormwater retention pond on the property.7/ The Respondent was directed to abate the nuisance, and a discussion of the Respondent's alternatives ensued. The Respondent rejected the first proposed alternative of connecting to a central public sewer. The nearest connection was over 1000 feet away and would entail significant cost to the Respondent. (The cost would have been even higher if gravity flow was not possible, and it became necessary to pump to the connection point.) The Respondent chose, with HRS' permission, the next alternative of trying to solve the problem by installing a second septic tank system on the property. The second septic tank system for which the Respondent applied, and which he had built, was designed for domestic use by 15 employees. In addition, after installation of the second septic tank system, the Respondent began processing a relish pack and a salad mix on the premises. The processing method for these products required the use of a great deal of water. On or about February 7, 1991, another HRS environmental health specialist inspected the premises and again found evidence of raw sewage bubbling to the surface, this time from the new septic system's drain field, and flowing into the stormwater retention pond. The amount of water flowing into the drainfields, from a combination of the use of the toilets in the building, together with the new processing operations taking place in the building, had overtaxed the double septic tank system, and the system failed. Given the quantities of water needed to process the new products, the Respondent should have anticipated, and probably was aware of, the system failure. The Respondent was directed to fix the problem within a week or stop the processing the new products on the premises. The Respondent tried several water conservation methods in an attempt to address the problem without having to either stop processing the new products or incur the cost of connecting to the central public sewer system. He knew, or should have known, that his efforts were futile, given the quantities of water needed to process the relish pack and salad mix. HRS also referred the matter to the Florida Department of Environmental Regulation. DER inspected on or about February 18, 1991, and told the Respondent that he could not dispose of the industrial waste from the operation of his business in the on-premises septic system without an industrial waste disposal permit. In connection with this, DER apparently advised the Respondent that he would be required to test the water in the stormwater retention pond for certain contaminants. The Respondent was unable to understand what he needed to test for, and how, and sought assistance from DER and HRS. Although there is evidence that HRS tried to help the Respondent by referring him to certain individuals employed by the DER for answers, the Respondent did not follow HRS' guidance. In any case, the efforts would have been futile, as the Respondent did not have enough property to dispose of the industrial wastes from the operation of his business on-site using a septic tank system. On or about June 19, 1991, a neighbor complained to the Respondent about the smell of raw sewage coming from the Respondent's septic system. The Respondent did not receive his neighbor's observations kindly. The neighbor complained to HRS and the Pasco County Sheriff's office. An HRS inspection on June 20, 1991, confirmed the existence of a sanitary nuisance on the premises. Again, raw sewage was bubbling to the surface from the new septic system's drain field and was flowing into the stormwater retention pond. HRS arranged for another meeting with the Respondent on June 27, 1991. At the June 27, 1991, meeting, HRS required that the Respondent stop processing the relish pack and the salad mix until he could hook up to the central public sewer. It was felt that the septic tank systems might be adequate pending connection to the central public sewer if the quantities of water required for processing those products on the premises were eliminated and if other preventive measures were taken. From June 27, 1991, forward to the date of the hearing, the Respondent purchased relish pack and salad mix from other suppliers rather than process them on the premises at 8402 Lemon Road. In addition, the Respondent continued to attempt to conserve water, had the septic tanks pumped out as frequently as required (sometimes practically daily), and had his employees utilize portable toilets in an attempt to avoid additional septic tank failures. After learning that excessive water use at the premises was partially a result of plumbing leaks, the Respondent also had the plumbing fixed. The Respondent also immediately initiated the long process of connecting to the central public sewer. He had a meeting with the assistant county administrator for utilities service for Pasco County on July 3, 1991. They discussed alternatives for connecting the Respondent's business. Initially, the County wanted the Respondent to pay to run a sewer line over 1000 feet to the south of his property to enable the County to efficiently connect other businesses and property owners in that area. But this option would have been costly to the Respondent, and there was no guarantee that gravity flow was possible between the Respondent's property and the connection point. If not, the Respondent also would have to pay the cost of pumping to the connection point. The Respondent hired an engineer to design an alternative that would be less costly. He also sought the cooperation of his neighbors, who would be required to connect to central sewer when the Respondent did. The engineer also worked with those neighbors in designing an alternate connection. On or about September 9, 1991, another meeting was held among the Respondent and his engineer and the county's utilites construction team. As a result of this meeting, the County agreed to modify the connection route in accordance with the Respondent's proposal. The Respondent's engineer continued his work on the design of the connection. HRS inspections on or about September 11 and 25, 1991, revealed that the Respondent's septic system was failing again and that raw sewage again was bubbling to the surface from the new septic system's drain field and flowing into the stormwater retention pond. HRS arranged to meet with the Respondent again on October 4, 1991, along with a Pasco County deputy sheriff and a DER industrial wastewater compliance inspector. At this meeting, the Respondent felt that the deputy sheriff was threatening to arrest him for violation of the law, and he angrily terminated the meeting and asked all of them to leave the premises. In December, 1991, the Respondent arranged a meeting with the County and his neighbors to discuss sharing the cost of the connection route the Respondent was proposing to build. The neighbors, realizing the Respondent's weak bargaining position, refused to share the Respondent's costs. At this point, the County conceded to pay the approximate $9,000 to jack and bore under the road, but the Respondent was required to pay to run a sewer line approximately 300 feet to the south and to construct a manhole on his neighbors' side of the road, as well as on his side of the road. (The second manhole would be used by the neighbors to connect their properties to the line the Respondent was building when the County required them to connect.) The total cost to the Respondent for his part of the construction of the connection to the public sewer will be approximately $24,000. On January 17, 1992, the Respondent paid a $3,428 impact fee for connecting to the central public sewer, based on projected water use. On January 23, 1992, the Respondent applied for a force main interconnect permit. At the time of the final hearing, the jack and bore and the construction of the new sewer line connecting the Respondent's property to the central sewer were about to begin. The evidence indicates that, once HRS made it clear to the Respondent on or about June 27, 1991, that connection to the central public sewer was the Respondent's only remaining option, the Respondent moved with reasonable dispatch. The time it took to arrange to be connected to the public sewer was within normal ranges, and there is no evidence that the Respondent did anything to cause unnecessary delays. (Delays, if any, were caused by the need for the Respondent's engineer to work with and get cooperation from the Respondent's neighbors, who were not as anxious as the Respondent to have the new sewer line built.) There also is no evidence that the Respondent processed relish pack or salad mix on the premises after June 27, 1991. In addition, the Respondent continued to attempt to conserve water, had the septic tanks pumped out frequently (sometimes practically daily), and had his employees utilize portable toilets in an attempt to avoid additional septic tank failures. The evidence also indicates that, after June 27, 1991, all concerned were hopeful that the measures the Respondent was taking would prevent, or at least minimize, septic system failures pending connection to the public sewer. After June 27, 1991, HRS presented direct evidence of septic tank system failures only on two occasions in September, 1991. The evidence is that, after becoming aware of the system failures in September, 1991, HRS sought the imposition of a fine against the Respondent. The evidence suggests two other important motivating reasons for HRS' action: first, not being aware of the actions the Respondent took between June 27 and September, 1991, to connect to the central sewer, HRS mistakenly believed that the Respondent was ignoring its instructions; and, second, HRS mistook the Respondent's angry outburst at the meeting at the Respondent's place of business in September, 1991, when he felt he was being threatened with arrest for violation of the law, as being evidence that the Respondent was not genuine in his apparent concern and efforts to respond to HRS' guidance and instruction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Health and Rehabilitative Services (HRS) enter a final order fining the Respondent, William Loiacano, d/b/a Gulf Coast Food Distributors, Inc., in the amount of $5,000. RECOMMENDED this 29 day of April, 1992, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this day of April, 1992.
The Issue Whether Rules 10D-6.072(3)(d), (e), and (f), Florida Administrative Code, are an invalid exercise of delegated legislative authority on the ground that these three rules enlarge, modify, or contravene the specific provisions of law implemented, in violation of section 120.52(8)(c), Florida Statutes (Supp. 1996).
Findings Of Fact Petitioner applied for septic tank contractor registration in July 1996. On September 6, 1996, the Respondent issued its intent to deny his application on the grounds that he failed to meet the required qualifications listed in Rules 10D-6.072(3)(d), (e), and (f), Florida Administrative Code. Rule 10D-6.072(3)(d) provides that an applicant is not qualified to take the registration exam to become a licensed septic tank contractor if a previous registration issued by the Respondent has been revoked within the last 5 years. Rule 10D-6.072(3)(e) provides that an applicant is not qualified to take the registration exam to become a licensed septic tank contractor if he has a disciplinary case pending with the Respondent involving septic tank contracting. Rule 10D-6.072(3)(f) provides that an applicant is not qualified to take the registration exam to become a licensed septic tank contractor if he has been convicted of a crime in any jurisdiction which is directly related to the practice of contracting. Petitioner filed a request for a hearing, in which he alleged Rules 10D-6.072(3)(d), (e), and (f) constitute an invalid exercise of delegated legislative authority in that these rules enlarge, modify, or contravene the specific provisions of law implemented, in violation of section 120.52(8)(c), Florida Statutes (Supp. 1996). Rules 10D-6.072(3)(d), (e), and (f) formally took effect on January 3, 1995. There is no material failure to comply with the procedural requirements of Chapter 120, Florida Statutes, in the promulgation of these rules. 9. Sections 154.06, 381.0011, 381.006, 381.0065, 489.553, and 489.557, Florida Statutes, grant the Respondent specific authority to adopt rules implementing the statutes. Petitioner does not dispute the Respondent’s rulemaking authority. Rules 10D-6.072(3)(d), (e), and (f) implement sections 154.01, 381.001, 381.0011, 381.0012, 381.0025, 381.006, 381.0061, 381.0065, 381.00655, 381.0066, 381.0067, Part I of Chapter 386, and Part III of Chapter 489, Florida Statutes. Part III of Chapter 489, Florida Statutes (Supp. 1996), is the chapter governing septic tank contractor registration. Chapter 10D-6, Florida Administrative Code, are the rules pertaining to Standards for Onsite Sewage Treatment and Disposal Systems, which include septic tank systems. A person who becomes a registered septic tank contractor has the authority to install, maintain, repair, and perform site evaluations for repairs of onsite sewage treatment and disposal systems. There are an estimated 1.4 million septic systems in use in Florida. The onsite sewage treatment program impacts public health in that it prevents and corrects sanitary nuisances; prevents pollution to groundwater, which is the primary drinking water source in the state; prevents pollution to surface water; and eliminates risks to public health from exposure to improperly treated human waste. Untreated or improperly treated human waste contains many significant disease-causing organisms injurious to human health. A “sanitary nuisance” is the “commission of any act, . . . or the keeping, maintaining, propagation, existence, or permission of anything, . . . by which the health or life of an individual, or the health or lives of individuals, may be threatened or impaired, or by which or through which, directly or indirectly, disease may be caused.” Section 386.01, Florida Statutes (1995). “Improperly built or maintained septic tanks” and “untreated or improperly treated human waste” constitute “prima facie evidence of maintaining a nuisance injurious to health.” Section 386.041(1), Florida Statutes (1995). The training, regulation, and registration of septic tank contractors, who install and repair such systems, is directly related to public health. An improperly installed or repaired system may result in untreated human waste or raw sewage either surfacing on the ground, backing up in the owner’s house/business, contaminating groundwater, and contaminating nearby surface water. The Respondent regularly receives complaints from citizens detailing installation problems, including complaints regarding improper workmanship, the premature failure of their septic tank system resulting in sewage on the ground around their house, and the contractor’s failure to honor his/her warranty. The impetus behind regulating contractors came primarily from the industry itself (i.e., the Florida Septic Tank Association). The qualification outlined in Rule 10D-6.072(3)(d), which provides that an applicant is not qualified to become a registered septic tank contractor if the Respondent has revoked his prior septic tank registration within the last 5 years, protects the public from sanitary nuisances caused by the improper installation and repair of septic tank systems. This qualification is, moreover, an indicator of an applicant’s “good moral character.” The qualification outlined in Rule 10D-6.072(3)(e), which provides that an applicant is not qualified to become a registered septic tank contractor if the applicant has a disciplinary case pending with the Respondent involving septic tank contracting, fits into what the septic tank contracting program under chapter 489 and Chapter 10D-6 is designed to accomplish. This qualification protects the public by denying licenses to those persons who have demonstrated they are not complying with the rules or statutes. The qualification outlined in Rule 10D-6.072(3)(f), which provides that an applicant is not qualified to become a registered septic tank contractor if he has been convicted of a crime in any jurisdiction which is directly related to the practice of contracting, fits into what the septic tank contracting program under Chapter 489 and Chapter 10D-6 is designed to accomplish. This qualification protects the public by denying licenses to those persons who are not law abiding and do not follow the standards. “Good moral character” is not defined in Chapter 489, Florida Statutes. Each of the three qualifications established by Rules 10D-6.072(3)(d), (e), and (f) make specific or interpret an individual’s good moral character. The Department’s statutory authority for Rule 10D- 6.072(3)(d), Rule 10D-6.072(3)(e), and Rule 10D-6.072(3)(f) comes from: (a) section 489.553(2), which requires the Department to “provide qualifications for applicants;” (b) section 489.553(4)(a), which says the applicant “must be of good moral character’” (c) section 489.558(2), which says the Department may deny registration if it determines the applicant “has violated any provision of this part [Part III of Chapter 489];” and (d) section 489.556, which authorizes the Department to suspend and revoke licenses. The Joint Administrative Procedures Committee (JAPC) has neither filed an objection nor voted on an objection to the three rules at issue in this case. Although a staff member of JAPC, in response to Petitioner’s complaint, recently made a preliminary inquiry into the validity of these rules, the committee did not adopt the staff member’s recommendation.
The Issue The issues are whether Respondent violated Florida Administrative Code Rules 64E-6.022(1)(b)2., 64E-6.022(1)(d), and 64E-6.022(1)(p) by repairing an onsite sewage disposal system without a permit, resulting in missed inspections, and if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with enforcing the statutory and regulatory provisions pertaining to the practice of septic tank installations and repairs in Florida. See § 381.0065(3), Fla. Stat. (2003). Repair of onsite sewage treatment and disposal systems must be performed under the supervision and control of a registered septic tank contractor. Respondent is the qualifying registered septic tank contractor for All Florida Septic Tank Service, Inc., having been issued the registration number SR00011389. Respondent has 15 years of experience in the field of septic system construction and repair. The qualifying registered septic tank contractor for Simmons Septic and Tractor Service, Inc., is Joey Wayne Simmons. The qualifying registered septic tank contractor for AA Septic Tank Service, Inc., is Billy Wayne Joyner. However, Mr. Simmons, Mr. Joyner, and Respondent work closely together, sometimes working together on a job and/or acting as the qualifying registered septic tank contractor on each other's behalf. On September 2, 2003, the septic disposal system at the residence of Jack Young was not functioning properly. Mr. Young contracted with one of the above-referenced septic tank services to repair the system. On September 2, 2003, Respondent and another employee of All Florida Septic Tank Service, Inc., along with two employees from AA Septic Tank Service, Inc., went to Mr. Young's residence to repair Mr. Young's onsite sewage disposal system. No one applied for a permit to make any repairs to Mr. Young's system. With Respondent acting as the registered septic tank contractor, the men used a backhoe to dig up the septic tank, which was buried three feet in the ground. Respondent then repaired the pump and ran a new one and one-quarter force main line to the existing header because the old line had been compromised by roots. Respondent also cleaned roots from inside the distribution box. Respondent then sealed the tank and directed the men to cover it up. No one called Petitioner's local office, the Duval County Health Department, to request an inspection of the repair before covering the tank. The work on Mr. Young's septic system involved the replacement of an effluent transmission line. It required a permit because it constituted more than a minor repair to the pump and distribution box. Respondent should not have performed the work without a permit from the Duval County Health Department. Because there was no permit, there was no request for inspection by the Duval County Health Department. When the work was completed, Mr. Young gave Respondent a check in the amount of $1,000, payable to Mr. Simmons. The check reflected payment for repair to the filter bed, otherwise known as the drainfield. Respondent indicated his receipt of the check by signing the AA Septic Tank Service, Inc.'s Daily Truck Log and Maintenance Report. In February 2004, Mr. Young's septic system began to fail once again due to root blockage in the lines. Respondent advised Mr. Young that a permit would be required in order to make any further repairs. Mr. Young refused to pull a permit or to pay for any additional costs. On February 17, 2004, Mr. Young contacted Petitioner to report the failure of his system's drainfield. On February 18, 2004, Petitioner's inspector confirmed that Mr. Young's drainfield had failed and was causing a sanitary nuisance. During the hearing, Respondent admitted that there are no disputed issues of material facts in this case. He stated that he agreed with everything. However, he did not agree that the work he performed for Mr. Young required a permit from and inspections by Petitioner's Duval County Health Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order, finding that Respondent violated the standards of practice and imposing an administrative fine in the amount of $1,000. DONE AND ENTERED this 6th day of December, 2005, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 2005. COPIES FURNISHED: Catherine R. Berry, Esquire Department of Health 515 West Sixth Street Jacksonville, Florida 32206-4311 James L. Smith All Florida Septic Tank Service, Inc. 8300 West Beaver Street Jacksonville, Florida 32220 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Timothy M. Cerio, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Dr. John A. Agwunobi, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701
The Issue Whether Respondent's permit for disposal of septic tank sludge should be revoked, as set forth in letter of the Volusia County Health Department, dated February 15, 1979. This case was originally set for hearing on June 21, 1979, pursuant to Notice of Hearing, dated March 30, 1979. On June 20, Respondent Philip G. Koan orally advised the Hearing Officer that he wished to withdraw his request for hearing. He was advised by the Hearing Officer to submit a written withdrawal of the petition and that the scheduled hearing would be cancelled pending receipt. On June 21, Respondent orally advised the Hearing Officer that he had changed his mind after reflection and now desired that the hearing be rescheduled. Since no written withdrawal of the petition or voluntary dismissal had been filed, the case was renoticed for hearing to be held on September 10, 1979. At the commencement of the hearing on that date, Petitioner moved to dismiss the case for lack of jurisdiction claiming that the petition had been dismissed by Respondent by his oral communication to the Hearing Officer on June The motion was denied because the proceeding had never been formally terminated by action of the Respondent or the Hearing Officer.
Findings Of Fact On October 5, 1978, Respondent Koan Septic Tank, Inc., Deland, Florida, submitted an application to the Volusia County Health Department for a permit to operate a septic tank cleaning service and temporary privy service. The application reflected the equipment which the applicant intended to use for the operation. Petitioner's application form contained a block entitled "Method and Place of Disposal." The applicant inserted the words "Smith Farm and Greens Dairy Grove" on the form. On November 7, 1978, Larry Herman, a sanitation aide for the County Health Department, performed an inspection of Respondent's facilities and equipment, and prepared a report on a mimeographed form headed "Septic Tanks and Privy Pump Truck Inspection." This form had a block entitled "Method and Place of Disposal." The inspector entered the words "Smith Farm - Greens Diary (sic), dumped & tilled." Although Herman testified that he had made no special inquiry at the time of his inspection as to the intended method of sludge disposal, he was aware that Respondent's customary method at its Smith Farm location was to "bury" the sludge into the ground by spreading and mechanical tilling. However, he recalled having conversations with Respondent's owner, Philip G. Koan, concerning disposal of sludge by the action of worms, prior to and after his inspection. On the other hand, both Koan and another officer of the corporation testified that Koan advised Herman at the time of the latter's inspection that the worm method of disposal would be used at the Greens Dairy location and that he expressed no objections. It is found that Herman was advised of Respondent's proposed method of disposal at the time of the inspection; however, he was not authorized to approve or issue permits. (Testimony of Herman, Gnann, Koan, Page, Petitioner's Exhibits 1-2) On November 7, 1978, the Volusia County Health Department issued a permit authorizing Respondent to operate its establishment. The permit reflected an expiration date of September 30, 1979, and provided that violation of any applicable health law would revoke the permit. No conditions were attached to the permit, nor did it indicate any required method of sludge disposal. (Testimony of Page, Petitioner's Exhibit 3) Respondent has been in the business of manufacturing, installing and servicing septic tanks for approximately eighteen years. In addition, Koan conducted a business involving the sale of worms. In the fall of 1978, he had approximately 12,000 pounds worms on hand. He had conducted various experiments at his business premises utilizing worms to dispose of manure and septic tank sludge. He found that the worms would eat the sludge material and excrete the same, resulting in worm "castings" or material which resembles potting soil with no residual odor. He had also placed worms in clogged septic tank drain fields and found that they later became unclogged, thus resulting in his conclusion that worms had disposed of the septic tank material in the tank. He further discovered that odors associated with septic tank sludge dissipated in a very short time when worms were present in the material, and observed that one pound of worms would "digest" or dispose of one pound of sludge in approximately twenty-four hours. Therefore, prior to receiving the county permit, he deposited the 12,000 pounds of worms in a trench located at the Greens Dairy location. After receiving the permit, Respondent dumped septic tank sludge in the trench approximately three times a week. The trench was about four feet wide, one foot deep, and 200 feet long. A screen was placed over the top of the ditch. However, it did not prevent access to files. (Testimony of Koan, Warnock, Petitioner's Exhibits 8-9) On December 12, 978, the owner of a skating rink adjacent to Respondent's Green Dairy property complained to the County Health Department concerning the presence of odors and flies at her establishment which had been the subject of customer complaints. A county sanitarian inspected the sludge operation on that date and found that there was some odor and a few flies in the immediate vicinity, but no fly larvae was observed. The ditch was full of sludge at the time. Some spillage has occurred in the driveway on the property. The location is approximately two to three hundred feet from the rear of the skating rink. A further inspection by the county Director of the Environmental Health Section was made on December 27. As a result, he wrote Respondent on December 28 that, although the inspection showed that flies and odors were minimal at the time, he could foresee an escalation of the same during certain periods, together with increased complaints from local businessmen. The letter further stated that the use of septic tank sludge for enriching a "worm bed" was in violation of Chapter 10D6.29, Florida Administrative Code, and Chapter 386 Florida Statutes, and was a sanitary nuisance which must be abated. A further complaint in January, 1979, followed by another county inspection revealed essentially the same conditions that existed at the time of the prior inspection, and prompted a second letter from the Environmental Health Section director to Respondent on January 31, 1979, wherein he was advised to cease dumping septic tank sludge at the Greens Dairy location within fourteen days and commence using the county sanitary landfill for such purposes. As a result of this letter, Respondent stopped dumping at the location on or about February 2. On February 15, another county letter was sent to Respondent which advised that its permit for disposal of septic tank sludge was revoked, subject to a request for hearing, as being in violation of Chapter 10D6.29(1) and (3)(c), Florida Administrative Code, and Chapter 386.041(1)(e), Florida Statutes. The stated grounds for proposed revocation were that Respondent was employing an unsatisfactory and unacceptable method and place for disposal of waste, and was maintaining a condition capable of breeding flies, mosquitoes and other insects capable of transmitting diseases. The letter further stated that Respondent was not tilling the sludge as had been stated on the permit application and that the potential for breeding flies was evident due to concentration and lack of covering with soil. (Testimony of Tyndall, Van Ulzer, Page, Camp, Koan, Petitioner's Exhibits 4-7) During the approximate three-month period from November 1978 through January 1979 when Respondent was dumping sludge, a strong and distinctive odor and an unusually large number of flies were experienced on the skating rink premises nearby. After the dumping stopped in early February, both problems disappeared. However, other odors incident to the presence of hogs and chickens at farms in the area also produced a noxious odor in and around the skating rink. The odor produced by the dumping of sludge dissipates rapidly after dumping. The absence of fly larvae in and around the ditch shows that flies were not breeding there during the period of dumping operations, but does not rule out the potential for such breeding in the future. (Testimony of Munshower, Tyndall, Coffin, Branton, Tontone, Warnock, Hunt, Stipulation) The Volusia County Health Department issues permits involving the disposal of sludge only when a treatment method of burial, incineration, or sanitary landfill is used in the operation, as prescribed by Respondent's Rule 10D-6.29, Florida Administrative Code. However, long-standing policy permits disposal by mechanical tilling of the sludge into soil as a "modified" method of burial. This method cuts the sludge with a disc and harrow and mixes it into the soil to a depth of approximately four inches. It also produces a temporary odor when the sludge is first spread on the soil. The county has no policies concerning the use of worms to dispose of sludge and does not consider it to be an acceptable method of disposal. The County Health Department has not conducted any scientific tests to determine the presence of pathogens in soil which has been mechanically tilled with sludge. (Testimony of Page) When sludge is placed over a "worm bed" and has settled, the material begins moving as the worms eat the sludge. The residue of the digestive process is sold as a soil conditioner which meets State Department of Agriculture requirements and which contains plant nutrients. Earth worms multiply rapidly when feeding on sludge. Respondent had approximately 50,000 pounds of worms in its trench when it ceased operations in February 1979. This method of sludge disposal has not been accepted generally by health authorities as a recognized and acceptable procedure. (Testimony of Koan, Warnock, Hunt, Tontone, Nemeyer, supplemented by Respondent's Exhibit 1)
Recommendation That Respondent's Permit No. 18362 be permitted to remain in effect until its expiration date provided that it disposes of sludge and/or contents from septic tanks in an acceptable method, as provided in Rule 10D-6.29, F.A.C. DONE AND ENTERED this 26th day of September, 1979, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 904/488-9675 COPIES FURNISHED: Robert Eisenberg, Esquire Department of HRS District IV Counsel 5920 Arlington Expressway Post Office Box 2050 Jacksonville, Florida Craig James, Esquire Post Office Drawer DD Deland, Florida 32720 Department of HRS Attn: Eric J. Haugdahl 1317 Winewood Boulevard Tallahassee, Florida 32301
The Issue Did Petitioner violate Section 386.041 and Section 381.0065, Florida Statutes, as alleged in the Citation for Violation Onsite Sewage Program/Sanitary Nuisance?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times pertinent to this proceeding, the Department, through the Polk County Health Department, was the agency of the State of Florida charged with the responsibility of issuing permits for the construction, installation, modification, abandonment, or repair of onsite sewage treatment and disposal systems. The property in question is a duplex apartment building owned by Respondent and located at 1101-1103 Old South Drive, Lakeland, Florida. The two apartments in the duplex are serviced by a single septic tank and drainfield. In the summer of 1997, Petitioner determined that the drainfield needed repair and engaged the services of an individual who was not licensed to repair drainfields. Additionally, Petitioner did not obtain a permit for the repair to the drainfield. During the fall of 1997, Petitioner continued to experience trouble with the drainfield. Thereafter, on two separate occasions, Petitioner engaged the services of Burns Septic Tank Company (Burns) and Central Fla. Septic Tank Co. (Central) to pump-out the septic tank. Both Burns and Central indicated on their invoices for pumping out the septic tank that the drainfield was in need of repair. On December 9, 1997, after receiving a complaint from one of Petitioner’s tenants, the Department’s Environmental Specialist, Wade Schulz, made an inspection of the septic tank and drainfield at 1101-1103 Old South Drive, Lakeland, Florida. Schulz’s inspection revealed that the septic tank was backing up at the duplex apartments and that the septic tank D-box, old rock, and the drainfield pipe were exposed to the ground. Additionally, it was discovered that septage was flowing directly from the system to a wet drainage ditch. On December 9, 1997, Schulz verbally notified Petitioner that the system was in violation of: (a) Section 386.041, Florida Statutes (Nuisance injurious to health); (b) Section 381.0065, Florida Statutes (Prior approved system shall remain in operating condition); and (c) Section 381.0065, Florida Statutes (No person shall repair without permit). A written copy of the Citation for Violation Onsite Sewage Program/Sanitary Nuisance (Citation) was mailed to Petitioner but was returned as undeliverable. A copy of the Citation was personally served on Petitioner on January 23, 1998. After receiving the verbal citation from Schulz, Petitioner engaged Robby’s Septic Tank Service and had the septic tank pumped out. Other than pumping out the septic tank, Petitioner has made no other effort to correct the problem. After receiving the Citation, Petitioner met with the Department’s representative in an attempt to work out a solution. However, Petitioner contended that there was nothing wrong with the drainfield and refused to pay any fine. On July 9, 1998, the Department visited the site again and found that nothing had been done to correct the problem. Furthermore, the Department found that the system was still being improperly maintained. It was the opinion of both Schulz and Tony Warr, the Department’s Environmental Supervisor, that the only way to correct the problem was to completely repair the drainfield. It was Petitioner’s contention that the drainage ditch was clogged up resulting in a high water table around the drainfield and that if Polk County cleaned out the drainage ditch, allowing the water to flow off, it would resolve the problem of the drainfield. While the drainage ditch may be a problem, there was insufficient evidence to show that unclogging the drainage ditch would resolve the problem of the drainfield. It is clear that Petitioner’s drainfield is not operating properly and is in need of repair.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order finding the Petitioner guilty of the violations as charged and requiring Petitioner to pay a fine in the amount of $1,500.00 as set forth in the Citation for Violation Onsite Sewage Program/Sanitary Nuisance, Part 6. DONE AND ENTERED this 11th day of August, 1998, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 1998. COPIES FURNISHED: Angela T. Hall, Agency Clerk Department of Health Bin AO2 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1703 Dr. James Howell, Secretary Department of Health 1317 Winewood Boulevard Building 6 Room 306 Tallahassee, Florida 32399-0700 Glenn E. Woodard, pro se Post Office Box 2000 Eaton Park, Florida 33801 Roland Reis, Esquire Department of Health 1290 Golfview Avenue, Fourth Floor Bartow, Florida 33830
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.
The Issue The issues in this case are whether the allegations set forth in the Administrative Complaint are correct, and, if so, what penalty should be imposed.
Findings Of Fact At all times material to this case, the Respondent was a registered septic tank contractor, registration number SR0041456. At all times material to this case, the Respondent was authorized to provide septic tank contracting services through the corporation "Anytime Septic Enterprise, Inc.," authorization number SA0091662. The Respondent has advertised his services to the public as a septic tank contractor and has engaged in the business of providing septic tank services since at least September 2010. At all times material to this case, the Respondent was permitted to provide septage disposal services via permit number 36-QA-28986 issued by the Lee County Health Department. On or about September 13, 2010, the Respondent was hired to pump a septic system located at 2710 Northwest 5th Street, Cape Coral, Lee County, Florida, by another septic tank contractor. The employing contractor had been hired to service and repair the septic system, but did not have the ability to pump the tanks. On September 13, 2010, the Respondent pumped out the septic tank. The Respondent did not pump out the "dosing tank," a part of the septic system connected to the septic tank. After pumping out the septic tank, the Respondent completed a "DH Form 4015," signed and dated on September 13, 2010. The form collected information on the evaluation and repair of the septic system, including identification of system components and tank capacities. The contractor servicing the system is required to complete the form and identify the services provided. The Respondent identified the components of the referenced septic system and the capacities of both the septic and dosing tanks. The Respondent signed and dated the certification statement. As completed by the Respondent, the certification statement stated as follows: I certify that the listed tanks were pumped on 9/13/10 by Anytime Septic, have the volumes specified as determined by legend are free of observable defects or leaks, and have a [solids deflection device/outlet filter device] installed. Although the Respondent certified that he pumped the dosing tank on September 13, 2010, he did not pump the dosing tank on that date. The Respondent certified the dosing tank to be free of observable defects or leaks; however, the failure to pump the dosing tank prevented proper observation of the dosing tank, and it is highly unlikely that an accurate evaluation of the condition of the dosing tank was possible under the circumstances. Under the applicable rule, a pumper may perform an incomplete pumpout under certain circumstances, but the rule requires that the pumper must provide written documentation to the system owner identifying the reason for the incomplete pumpout, the gallonage pumped from the system, and the material left in the tank. The Respondent failed to provide such documentation to the system owner. An inspection by an employee of the Petitioner on September 16, 2010, revealed that the dosing tank had not been pumped and that the tank lids had not been sealed after the service. The Respondent was notified on September 20, 2010, that the dosing tank should have been pumped at the same time as the septic tank. On that same date, the Respondent returned to the site, pumped the dosing tank, and then completed, signed and dated a second "DH Form 4015" certifying that the dosing tank had been pumped. The Respondent recorded additional information on the form to indicate that the remaining work would be performed by the septic tank contractor who had employed the Respondent. At the hearing, the Respondent asserted that upon the initial inspection of the property, the Respondent observed that the septic tank conditions were non-standard, that he communicated such information to the contractor who had hired him, and that the Respondent's services, including certification of the tanks, were provided in accordance with the requests of the contractor.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final order imposing a $1,500 fine against the Respondent for falsely certifying the work performed on September 13, 2010, and the condition of the dosing tank; for failing to fully pump the system without providing appropriate documentation; and for failing to properly seal the tank lids. DONE AND ENTERED this 24th day of February, 2011, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 24th day of February, 2011. COPIES FURNISHED: Denise Duque, Esquire Southwest Alliance of County Health Departments 2295 Victoria Avenue, Room 206 Fort Myers, Florida 33901 Stephen M. Maher, Esquire Stephen M. Maher, Attorney at Law, P.A. 2077 First Street, Suite 206 Fort Myers, Florida 33901 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, FL 32399-1701 E. Renee Alsobrook, Acting General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701 Secretary, State Surgeon General Department of Health 4052 Bald Cypress Way, Bin A-00 Tallahassee, Florida 32399-1701
