The Issue The issues to be resolved in this proceeding concern whether an application to construct and operate an on-site sewage treatment and disposal system (OSTDS), within the Suwannee River flood plain, meets the requirements of Section 381.0065(4)(t), Florida Statutes (2007), and relevant Department of Health (Department) rules, and whether the department applied an un-adopted rule in denying the permit application.
Findings Of Fact Daniel Sevick is the owner of two lots, consisting of a total of 1.24 acres, within the flood plain of the Suwannee River. The lots are lots 12 and 13 in "Log Landing Subdivision." The Petitioner applied for a construction permit for the installation of an OSTDS on that property. The application for the permit was submitted to the Dixie County Health Department, which forwarded it to the Department of Health for review, in accordance with Section 381.0065(4)(j), Florida Statutes (2007). The Respondent, Department of Health, (Department) is an Agency of the State of Florida charged with implementing and enforcing the provisions of Chapter 381, Florida Statutes, and Florida Administrative Code Chapter 64E. Among its duties are the review of and issuance of permits for construction of OSTDS. The permit application was reviewed by the Department and was subsequently denied, based upon the following reasoning contained in the denial letters: Our engineer has reviewed your proposal. Based on the site elevation submitted (16.8 feet) and the 10 year elevation (22 feet) the proposal is not in compliance with 381.0065(4)(t), Florida Statutes, and must be denied. Certain of the facts have been stipulated to by the parties. The parties thus agree that the 10-year flood elevation for the property is 22 feet; the site elevation of the property is 16.8 feet and the two-year flood elevation for the property is 16.00 feet. The bottom of the proposed drainfield is at an elevation of 14.30 feet. The Petitioner thus proposes to install the OSTDS system with the bottom of the drainfield 1.70 feet below the two-year flood elevation. The proposed system consists of a conventional septic tank system connected to a "no mound" drainfield system. No Mound System The no mound drainfield system is an innovative drainfield system. No Mound was granted a permit for its design as an "innovative system" by the Department, initially authorizing installation of five systems in Florida, starting on December 23, 1998. An "innovative system" is defined as an "onsite sewage treatment and disposal system that, in whole or in part, employs materials, devices, or techniques that are novel or unique and that have not been successfully field tested under sound scientific and engineering principles under climatic and soil conditions found in this state." See § 381.0065(4)(2)(g), Fla. Stat (2007). Innovative systems, by definition are considered to be "performance-based systems" which have additional requirements placed on them depending on the performance level of the effluent treatment. The design of the OSTDS system submitted with the permit application included several changes intended for this particular property, based upon discussions between the Petitioner's representatives and the Department. The changes include relocation of the OSTDS and drainfield to the highest elevation of the property; addition of a solar-recharge battery alternative power supply; the obtaining of additional information with regard to soil borings; and the performance of an evaluation to confirm the capacity of the soil anchors in saturated soil. The OSTDS, including the no mound drainfield, was designed by Harry Wild, PE, specifically for the Petitioner's property. The proposed OSTDS is considered by the Department to be an "engineer-designed" system. Over approximately the last 10 years No Mound has been issued innovative permits authorizing the installation of approximately 250 no mound drainfield systems. The no mound system is an innovative system which does not employ a conventional drainfield. Instead, based upon principles of physics and engineering, the drainfield system is designed to be installed underground, with air pumped into the system to depress the groundwater elevation or "water table," so as to provide the required separation or distance between the absorption surface of the drainfield (bottom of the drainfield) and the groundwater. In Florida the separation required is 24 inches. The drainfield system is designed to retain air pumped into it, for depression of the groundwater level, by being covered with pieces of geo-fabric and a p.v.c. membrane designed to retain air within the system under a certain level of pressure. The air pressure is designed to depress the water level of groundwater directly beneath the area of the drainfield, much like the principle of a "diving bell." The drainfield system would be covered with two pieces of geo-fabric on either side of a 30 mill. p.v.c. membrane, the same material used as a liner for hazardous waste landfills. The geo-fabric material protects the p.v.c. membrane from damage or puncture during construction. Once in operation the membrane is unlikely to tear under normal conditions, unless through intentional puncture with an extremely sharp implement or through some catastrophic event, such as a large tree falling on the surface above the membrane. The membrane is held in position by a patented ballast and anchor system. The ballast material consists of pre- stressed concrete beams, spanning the width of the drainfield. At each end of each beam is a soil anchor. The 20 pre-stressed ballast beams are held in place with 40 helically shaped screw anchors, which screw into the soil. Each anchor is intended to withstand 5,000 pounds of upward force. The screw anchors are designed to hold the concrete beams in place in saturated soil. The soil anchors are threaded with a washer and nut on both the top and the bottom of the concrete beam which prevents the beam from moving vertically, downward or upward, so that the beam can resist any uplifting force. Air is pumped into this system by a continuous air pump which would be wired into the power system of the residence to be on the property. There would also be an emergency power supply. The air pressure inside the system would vary in response to the level of water outside the system whether groundwater or surface water. As the water outside the system rises or subsides, the water inside and beneath the system is supposed to remain lowered, as the pressure inside the system is designed to increase or decrease. The Petitioner maintains that the ballast system is designed to contain the pressure (air pressure) which would be required to continue to suppress any groundwater or flood water associated with a ten-year flood event. The system has an "air bleed," which is intended to maintain aerobic conditions in the drainfield. If surface waters overflow the top of the drainfield system in a flood event, the air bleed system is designed to continue functioning. The air would enter the soil beneath the ground surface and bubble up through any water above the ground surface. If both the primary and backup power supplies should fail, the Petitioner maintains that the air bleed would "shut off" so that no air would escape from the system and thus maintain the pressure within the system, much like a diving bell. This characteristic is designed to maintain the separation between the groundwater surface and the bottom of the drainfield in the event of a power failure. The Department has interpreted the operative statute, Section 381.0065(4)(t), Florida Statutes (2007), as providing that the absorption surface of a drainfield for any OSTDS system cannot lie below the 10-year flood elevation, if it is located within the floodways of the Suwannee or Aucilla Rivers, unless the system meets all the exceptions contained in Section 381.0065(4)(t)1.a.b. and c., Florida Statutes. One of these exceptions requires that the bottom of the drainfield, the absorption surface, be at least 36 inches above the two-year flood elevation for the site. The two-year flood elevation at the subject site is 16 feet. The proposed installation would have the bottom of the drainfield or absorption surface located 1.70 feet below that two-year flood elevation, thus not complying with that exception. The applicant's system is not in compliance with the portion of paragraph (c), referenced above as an exception, concerning a system approved by the county health department, pursuant to department rule, which is "other than" a system using "alternative drainfield materials." This system would apparently use so-called "alternative drainfield materials." Innovative systems are those which represent new technology that has not been completely field-tested in Florida. The Petitioner has applied for the permit as an innovative permit application, which contains a requirement that the system be replaced with an alternative system in case it fails within a five-year test period. No mound systems are site specific, with each one being specifically designed for a particular property with its unique characteristics. There are approximately 50 no mound systems approved, permitted and operating in Florida at the present time. The evidence does not reflect which, if any, of those systems are installed below flood elevations. The drainfield portion of such a system works in the same way as a conventional drainfield, that is, the soil and piping which lies below the membrane. The membrane system is the unique characteristic of the no mound system. Because of the membrane and ballasting system designed to retain air pressure over and in contact with the drainfield absorption surface, the system is different and more complex than the standard drainfield system, although it treats affluent in the same way. Two significant problems arose with the installation of the first five innovative permit, no mound systems. The testimony of Sam Averett, who is a septic system contractor, described an installation of a no mound system on his own property in 1999. The system was installed in accordance with Mr. Hassett's specifications and recommendations, and he was present during the installation. Mr. Hassett testified in support of the petition in this case as an engineering expert. Within a few days or weeks the Averett system developed a problem. Apparently, with a substantial rain event, the system "floated" that is, the air pressure contained within the membrane rose to the surface of the ground, similar to a "bubble." This would have amounted to a failure to maintain the air pressure necessary to ensure that a 24-inch separation between the absorption surface of the drainfield and the groundwater table elevation was maintained. That system was re- designed and a different ballasting system or buoyancy package was used, involving the use of "railroad iron" (rails), and plywood spanning the drainfield in order to hold the membrane beneath in place, with the whole arrangement being recovered with dirt. Thereafter, on January 1, 2003, after a substantial rainfall event, the system floated out of the ground once again. After that second failure of the Averett system, Mr. Averett installed a "hoot" system, which involves a "drip irrigation" drainfield installation, with the delivery piping and the drainfield being much closer to the ground surface or within six inches of the surface. The system described by Jack Murray in his testimony was also one of the original five systems installed in Florida by No Mound, Inc. That system was designed to maintain a 30- inch separation between the absorption surface of the drainfield (bottom of drainfield) and the groundwater elevation or water table. According to Mr. Murray it never maintained that separation. He was aware of the lack of a 30-inch separation being maintained because of the onsite monitors installed with the system. He described the actual separation which the system provided as being only .9 feet. The onsite monitors by which he was able to observe the actual separation failed after about two years of operation. He brought the separation issue to the attention of the contractor or representative of No Mound, which patented the system and oversaw the installation. According to Mr. Murray, however, they never satisfactorily addressed the problem. When the air pump failed, after approximately two years of operation, he called the manufacturer of the air pump and was informed that the air pump had been the incorrect type or size for the no mound system which he had installed. Although these two referenced problems concerning the Murray system and the Averett system represent two of the first five innovative no mound systems installed in Florida, the problems associated therewith may have been corrected since, because each system installed at a given site is specifically and uniquely designed by an engineer for that site and its physical, hydrologic and operating circumstances. Thus, the referenced problems involving buoyancy or "floating-up" of the drainfield membrane system and the failure to maintain adequate pressure so as to achieve the legally-mandated 24-inch differential between groundwater elevation and the bottom of the absorption surface, may not be construed to be direct predictors of what will occur with the installation of the Sevick system. The problems do point up, however, the fact that the air pressure maintained at different groundwater levels in the system is a critical component of the system's function and also that the ballasting system and design is critical in order to maintain the integrity of the membrane system or air chamber overlying the drainfield surface, at different water levels and conditions. This is a particular concern with regard to flood conditions. It also true that the proposed air pressure to be maintained in the system at issue, the Sevick system, would be five pounds per square inch. Earlier systems, possibly including the Murray system, maintained a pressure of two pounds per square inch. However, aside from the rather conclusory testimony of the Petitioner's expert witnesses, who opined generally that the air pressure and the integrity of the membrane system and ballast system would be adequate to maintain the legally- mandated 24-inch differential of unsaturated soil below the absorption surface, there was no definitive evidential showing of what air pressure would actually be necessary to perform that function adequately under all conditions. This is particularly problematic under conditions of flooding, since the proposed drainfield would be beneath both the 10-year flood elevation and the two-year flood elevation. Although there was testimony which indicated that the air pressures would vary, would increase or decrease depending upon the water levels beneath the drainfield and outside of the membrane, there was no definitive showing in the evidence as to what pressures under those varying water level conditions would still enable the 24-inch differential to be maintained. Under the Department's interpretation of its statutes and rules, a 24-inch differential is deemed adequate and necessary for treatment of the sewage effluent entering the drainfield. The electric power necessary for operation of the air pump which pressurizes the system would be derived from connection with the residence to be constructed on the lots. The emergency power system would be designed to accommodate situations where there is a power outage, for instance in a storm situation. The alternative system would be dependent upon solar-rechargeable battery power. If the air pump ceased operation due to a power outage and the backup system was not adequate, or adequately charged, to operate the pump sufficiently or for a sufficient period of time to maintain the required air pressure, then the 24-inch differential might not be maintained. The evidence does not reveal a practical way to monitor the air inflow or the air pressure condition inside the membrane in the event of a power outage. The Petitioner's witnesses maintained that if there was a power outage the air bleed device would close down, thus maintaining the required air pressure (akin to a diving bell circumstance). There was no persuasive evidence, however, to show what air pressure would thus be statically maintained and whether it would maintain the required 24-inch separation. Harry Wild was the design engineer who designed the no mound system for the Sevick property. Mr. Wild, however, was unaware, apparently, that Dr. Jeffrey Evans, a geotechnical expert and expert in the design of helical anchors for the ballast system for the Sevick property, had recommended that at least one boring be made for each site or each of the two lots to a depth of 20 feet. This was recommended in order to verify what the sub-surface conditions were, so that the conditions assumed in the system design could be verified. Mr. Wild testified that he only took borings to a depth of 10 feet. Mr. Hassett on the other hand testified that he thought the borings had only been done to six feet. In fact, the site evaluations submitted to the Department demonstrated soil boring had been performed to a depth of six feet below ground surface, and the cross-sectional drawing indicates that the anchors, designed to hold down the beams and the membrane, would only begin approximately four feet below the ground surface. Thus, even though Mr. Wild was the expert designer of the No mound system for the Sevick project, he was unaware of whether the ballast system was a new type of system which had been specifically designed for that property. He did acknowledge that it was the first time he had employed that type of ballast system. In spite of the higher operating pressure, five PSI versus two PSI, to be maintained in the Sevick no mound system over that normally maintained in previous no mound systems, Mr. Wild did not perform calculations or evaluations as to the beam strength and design requirements of the new ballast system. He did not perform calculations or evaluations that addressed the issue of membrane deflection requirements, which relates to how much the membrane would move upward under various pressures. This in turn could relate to how much downward pressure must be exerted by the anchoring system, to counteract the buoyancy of the membrane bulging upward under different pressure circumstances, associated with different water levels. Mr. Hassett did not know what membrane deflection was acceptable for the Sevick no mound system other than "a fair amount" which he acknowledged varied "depending on the geo- synthetic or the geo-grid that was specified for that particular project." It is understandable that this is an innovative system which requires certain revisions at times before it is installed, or during the course of installation, to adapt its design to the particular site. However, the evidence presented at hearing, as shown by Mr. Hassett's testimony, and Mr. Wild's as well, in this regard, is somewhat indefinite and does not show a substantial likelihood that the membrane and concrete beam and anchor ballasting system proposed will work as planned from a structure and strength standpoint. As Mr. Hassett testified "they will be tested before installation." As shown by Mr. Wild's testimony, the soil of the Petitioner's lots is composed of fine sand at the installation site. There is no evidence concerning any erosion study or concerning what the erosion experience might be in a flooding situation, in order to determine the effect on the helical anchors and ballasting system in the event of floods of varying severities, including a 10-year flood. Dr. Evans established in his deposition testimony that the helical anchors get their resistance to upward force from the sheer strength of the soil, which is a frictional value combined with the effective stress on the soil. If a certain amount of soil is eroded away, then the holding capacity of the anchors is correspondingly reduced. Dr. Evans, however, assumed that the applied load per anchor was 5,000 pounds, with the anchor handling 5,000 pounds of upward force if it was 10 feet underground. Therefore, the designers of the system would need to assure that the anchors are 10 feet underground and that the applied load is 5,000 pounds, according to Dr. Evan's testimony. He opined that if erosion of varying amounts occurred that could affect the anchors' holding capacity. In fact, the evidence shows that the anchors or the top of the anchors may only be proposed to be installed four feet below the surface. Therefore, the evidence does not clearly establish that the beam/anchor system is adequate to maintain the stability of the drainfield membrane system in the event of a flooding situation. Gerald Briggs testified on behalf of the Department. He described the growing concern that nitrogen levels in the effluent of OSTDS systems represent, in terms of potential environmental degradation of ground or surface waters, which the Department is charged with addressing by the statutory authority cited below. The no mound system, like any conventional OSTDS system, has no specific provision that would treat or reduce nitrogen levels in the effluent from the system. The 24-inch separation between the absorption surface of the drainfield and the groundwater elevation is designed to be unsaturated soil, which provides treatment of only a primary nature for essentially the public health/pathogenic components of the OSTDS system effluent (i.e. sanitary treatment). Although there is not such a monitoring requirement, the Department has requested data from the Petitioner regarding the quality of the effluent that would leave the system. If the system were ever installed, it should be done with the condition that effluent sampling and testing of the effluent should be performed, in order to ascertain that the system operates properly, in terms of public health and environmental degradation, on an ongoing basis. The Petitioner's witnesses, Mr. Wild and Mr. Sayko, acknowledged that the system proposed is not infallible and there are certain risks posed by the installation. For instance, if a pump was broken then the water level would start to rise inside the no mound system, according to Mr. Sayko's testimony. Moreover, the absorption surface in the drainfield as proposed, would likely be "subject to flooding" in a situation of power outages and erosion during a flood event. It must be remembered that the ground surface is some five feet below the 10-year flood elevation at the installation site and the absorption surface or bottom of the drainfield is over seven feet below the 10-year flood elevation. Thus, in the circumstance of power outages or flood-caused erosion, the absorption surface of the proposed drainfield could be "subject to flooding." The Department denied the subject permit application because the site elevation is 16.8 feet and the 10-year flood elevation at the site is 22 feet. Thus, the proposal was to install the absorption surface below the 10-year flood elevation (more than seven feet below it). In denying the requested permit the Department denied it based upon its interpretation of the subject statute, Section 381.0065(4)(t)(1), Florida Statutes (2007). It did not actually employ an un-adopted rule or "agency statement of general applicability" in making this interpretation. Rather, it interpreted the statute, applying it to the particular facts of the permit application and the situation prevailing at the proposed installation site. It was not applying an interpretation or policy statement of general applicability enforced throughout its jurisdiction, or throughout the flood plain area of the Suwannee and Aucilla Rivers, but rather was applying the statutory language and its interpretation of it to the particular site and circumstances of the proposed system and its contemplated operation. A variance from the above-referenced statutory requirements and related rules is not at issue in this case because the Petitioner has not sought a variance. Although variances have been granted in the Suwannee River flood plain area, in accordance with Section 381.0065(4)(h), Florida Statutes (2007), the grant of such variances has usually carried the concomitant requirement of more advanced treatment of the effluent in the system to be installed, as allowed by the granted variance. Thus, an aerobic treatment unit (ATU) or performance-based septic treatment system, such as an advanced secondary treatment system (AST), as well as the use of drip drainfields, such as the hoot system, have been required in accordance with the statute. An ATU introduces air into the treatment unit in order to enhance the treatment and generally employ filters as well, according to witness Briggs. An AST type system reduces the biochemical oxygen demand (BOD), total suspended solids, as well as treating the nitrogen and phosphorus contents of the effluent. Historically, the Department has only approved variances in the Suwannee or Aucilla River flood plains for vacant lots with the use of ATU or AST type systems. A drip drainfield reduces the required height of the drainfield by some 12 inches because it is only buried six inches into the soil. This is done because it is designed to be buried in the shallow root zone of trees and plants which allow trees and plants to uptake the nutrients in the effluent water and thus prevent them from being deposited in the ground or surface waters. In the Suwannee River basin area, most of the variances granted by the Department have required such drip drainfield systems. One of the statutory considerations for granting of a variance is that the Petitioner for a variance should not have created the hardship involved, resulting in the need for the variance. The Department maintains that the Petitioner, Mr. Sevick, has created the hardship in this case by purchasing the lot knowing of the restrictions on OSTDS systems that were legally prevailing. The evidence, however, does not really establish that the Petitioner intentionally created the hardship by purchasing a lot knowing of all the restrictions that were in place and their effects. One can infer, for instance, that he was aware of advertisements by No Mounds, that lots in the Suwannee River basin or flood plain area could be developed by using its OSTDS system without even necessitating the use of fill. The Department's evidence simply does not establish that the Petitioner, Mr. Sevick, intended creating the hardship, on his own volition, by purchasing the lot with knowledge that the specific restrictions were in place, from a legal standpoint. Thus it was not proven that the Petitioner is unable to establish a hardship for purposes of seeking a variance pursuant to Section 381.0065(4)(h), Florida Statutes (2007), on the basis that the Petitioner created the hardship. As established by witness Briggs, nitrogen and phosphorus elements of OSTDS effluents are of growing concern for ground and surface waters in Florida. Nitrogen and phosphorus enhance algae growth in surface waters, which can lead to reduced dissolved oxygen content and other factors harmful to fish and wildlife. There is thus a deleterious environmental impact from nitrogen and phosphorus levels in surface waters or groundwaters, in addition to the pathogens which can characterize effluent from OSTDS systems, related to human waste. Advanced septic systems such as ATUs or ASTs have been required in the grant of variance-based septic system permits in flood plains of the rivers because of the potential of their being flooded and because of the locations of the systems. The Department, in consideration of its statutory charge, has sought to seek as much treatment as possible for the effluent, in such situations, in order to prevent significant degradation of ground or surface water. A no mound system is a drainfield dispersal system, so it itself poses no additional treatment capability than does a conventional OSTDS system, as established by both witnesses Wild and Briggs.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and pleadings and arguments of the parties, it is, therefore, RECOMMENDED that the Amended Petition be denied. DONE AND ENTERED this 16th day of February, 2009, in Tallahassee, Leon County, Florida. S 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 16th day of February, 2009. COPIES FURNISHED: Kenneth J. Plante, Esquire Tana D. Storey, Esquire Brewton Plante, P.A. 225 South Adams Street, Suite 250 Tallahassee, Florida 32301 Mark Dunn, Esquire Lisa M. Raleigh, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399 Lucy M. Schneider, Esquire Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399 John M. Lockwood, Esquire Rutledge, Ecenia & Purnell, P.A. 215 South Monroe Street, Suite 420 Tallahassee, Florida 32301 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Dr. Ana M. Viamonte Ros, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner violated Florida Administrative Code Rules 64E-6.022(1)(b)2, 64E-6.022(1)(d), and 64E-6.022(1)(p) by making repairs to an on-site sewage disposal system without a permit, and by missing required inspections of the system, as outlined in the citation issued by the Respondent Agency dated August 29, 2005.
Findings Of Fact The State of Florida, Department of Health and Duval County Health Department (Department) is an Agency of the State of Florida, charged with enforcing the statutory and regulatory provisions regarding septic tank and drain field installations and repairs, in Florida, in accordance with Section 381.0065, Florida Statutes, and Florida Administrative Code Rule Chapter 64E-6. The Petitioner is the qualifying registered septic tank contractor for All Florida Septic Tank Service, Inc. (All Florida). He holds registration number SR00011389. He has 15 years of experience in the field of septic tank system construction and repair. All repairs of on-site sewage treatment and disposal systems (septic systems), are required to be performed under the supervision and control of a registered septic tank contractor. Mr. David Adeeb is president of United Properties of North Florida, Inc. He owned property (a residence) at 375 North Cahoon Road, in Duval County Florida. He was informed by his tenants at that residence that the septic tank and drain field were malfunctioning and needed to be repaired or replaced, sometime in April 2004. He therefore contacted All Florida, asking them to inspect the septic system at that residence and advise what repairs might be needed. He was advised by some representative of All Florida that the drain field needed to be replaced and was quoted a price of $2,000.00. All Florida requested that payment be made before the work was performed. Since Mr. Adeeb was out-of-town at the time he asked his tenant to temporarily pay All Florida for the cost of the repairs and/or installation, which they agreed to do. All Florida then issued a contract/proposal to United Properties on April 12, 2004. It was signed by a representative of All Florida, Michael Carver. Mr. Carver was an employee of All Florida. The contract/proposal indicated that a 360 square foot drain field would be installed at 375 Cahoon Road, for a price of $2,000.00, to be paid in cash. The contract/proposal was on All Florida letterhead and included a warranty. Mr. Adeeb was told by his tenant that the Petitioner, who is personally known to that tenant, was on the property while the work was being performed. No one applied for a permit to make any repairs to the septic system and the work was completed without a permit being obtained. Some five months later the system began leaking sewage from the new drain field. It had malfunctioned. Mr. Adeeb therefore again called All Florida to demand that they repair any malfunctions pursuant to the warranty. All Florida informed Mr. Adeeb that a new drain field with a mounded system and pump was needed. When Mr. Adeeb told a representative of All Florida that they had just replaced the drain field in April of that year, he was told that another $2,000.00 would be required to correct the drain field problem. Mr. Adeeb had just recently entered into a contract to sell the property at 375 Cahoon Road so, time being of the essence in closing the sale of the property, he felt he had no choice but to ask All Florida to go ahead with the repair work on the system which All Florida had been asked by him to repair five months previously in April of 2004. After the new system was installed Mr. Adeeb found that a permit had never been obtained for the first drain field work which he had requested from All Florida and that All Florida had done the work incorrectly. Mr. Adeeb objected to paying another $2,000.00 for the second repair job, performed in approximately September of 2004 and after much discussion with All Florida's representatives agreed to pay $1,000.00 dollars for the second stint of repair work. He made the payment and he received a warranty from All Florida for one year, good through September 22, 2005. The warranty was signed by Mr. Wayne Joyner, operations manager for All Florida. Mr. Joyner is also the qualifying registered septic tank contractor for AA Septic Tank Service, Inc., apparently a second corporation domiciled at the same facility and address as All Florida Septic Service, Inc. In May of 2005 Mr. Adeeb was again contacted by the now former tenant who had purchased the property from Mr. Adeeb. He was thus informed that the system had failed again and sewage was leaking onto the surface of the property from the drain field. Mr. Adeeb again contacted All Florida on May 23, 2005. A representative of All Florida informed him that he should fax a copy of the paid receipt and the warranty to them and that they would take care of the problem. On June 20, 2005, the home owner again contacted Mr. Adeeb and told him that no one from All Florida had repaired the drain field as yet. A faxed copy of the paid receipt and warranty was requested once again by All Florida. After numerous phone calls with representatives of All Florida, Mr. Adeeb was told that the problem was not due to All Florida's repair work and that Mr. Adeeb would need to get someone else to repair the system. The Petitioner, James L. Smith, the registered qualifying septic tank contractor for All Florida, testified that Michael Carver had performed the initial repair job in April of 2004 for Mr. Adeeb without the knowledge of the Petitioner or All Florida. He claims that Michael Carver never worked for All Florida. He introduced into evidence a letter purported to be from Michael Carver which was dated September 30, 2005, but signed on October 5, 2005. That letter states that Mr. Carver performed the first drain field repair job without the knowledge of All Florida and that he had created the receipt form which was apparently given to either the tenants at the residence in question, or to Mr. Adeeb, on All Florida letterhead without the knowledge of any officer, employee, or representative of All Florida. That letter, however, was not authenticated because Mr. Carver was not present at the hearing and could not be examined concerning it, or the details of Mr. Carver's involvement with the initial repair project. Moreover, the Petitioner was unable to explain how Mr. Carver would have known about the job at all if he had never worked for All Florida. This is because Mr. Adeeb established that in obtaining all of the repair work during 2004-2005 he had only contacted representatives of All Florida. He had never had contact with Mr. Carver. The Petitioner denied ever telling counsel for the Department in a telephone conversation that Michael Carver had worked for him during the week (i.e. All Florida) but that he let Mr. Carver do "side jobs" on his own on weekends. He claimed that Mr. Carver did the job in question in April of 2004 because the tenants knew him personally and arranged for him to do the work. The testimony of Mr. Adeeb and the Department's evidence in the form of its composite exhibit, is accepted as more credible than the self-serving testimony of the Petitioner, and it is found that All Florida and the Petitioner were responsible for the repair jobs at issue in this case because Mr. Adeeb contracted with All Florida for the work in question. Even if the initial job was performed by Mr. Carver, it is determined that he did so as employee or agent of All Florida and the Petitioner. Under the authority cited herein the Petitioner was responsible, as the qualifying, registered septic system contractor for All Florida, with performance and supervision of the work in question.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Respondent Department finding that the violations charged have been established and that a fine of $2,500.00 dollars be imposed for the violations. DONE AND ENTERED this 30th day of March, 2006, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with Clerk of the Division of Administrative Hearings this 30th day of March, 2006. COPIES FURNISHED: James L. Smith 8300 West Beaver Street Jacksonville, Florida 32220 Catherine R. Berry, Esquire Department of Health 515 West Sixth Street Jacksonville, Florida 32206-4311 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
Findings Of Fact At all times relevant hereto, ADI and Youngquist Brothers were licensed well drilling contractors and qualified to bid on Bid Request No. 9237 issued by Southwest Florida Water Management District ("SWFWMD" or "District"), Respondent. On July 23, 1992 the District mailed packets for bid requests to ADI, Youngquist Brothers, Inc., and others. On August 12, 1992 a mandatory pre-bid meeting for Bid Request No. 9237 was conducted at the District office. Representatives of ADI and Youngquist attended the pre-bid meeting. Responses to Bid Request No. 9237 were opened by the District on August 26, 1992. ADI's bid was for $159.50 per hour, and Youngquist's bid was for $200.00 per hour. Greg McQuown, District Manager of the Geohydrologic Data Section prepared the technical portions of this bid request and, following the bid opening, visited the facilities of both ADI and Youngquist as provided in Section 2.1.1.19 of the bid specifications to observe the equipment they proposed to use. Request for Bid No. 9237 requested bidders to submit an hourly rate for furnishing an experienced crew, the drilling rig and all equipment, materials, fuel and services necessary for the proper operation and maintenance of the drilling rig to be used in drilling numerous monitoring wells as directed by the District. Although the bid is for one year, it is renewable for two additional years. Drilling contracts on an hourly basis are not frequently used in water well drilling contracts, but for this project, this type contract appeared preferable to the District due to the wide variations in well depths and drilling conditions. Speed of drilling is a very significant element in an hourly rate drilling contract. Section 1.17 of the general conditions of Request for Bid No. 9237 provides in pertinent part: If bids are based on equivalent products, indicate on the bid form the manufacturer name and number. * * * The bidder shall explain in detail the reason(s) hoe (sic) the proposed equivalent will meet the specifications and not be considered an exception thereto. Bids which do not comply with these requirements are subject to rejection. Bids lacking any written indication of intent to quote an alternate brand will be received and considered in complete compliance with the specifications as listed on the bid form. Section 1.11 of the general specifications provides: 1.11 BID DATA. Bidders shall furnish complete and detailed Bid Data as specified on the Request for Bid Form. Bids furnished without data, or incomplete submissions may be rejected at the discretion of the District. Exceptions to the requirements, if any, shall be noted in complete detail. Failure by the bidder to detail each exception to a bid specification or a requirement results in the bidder being required to meet each specification or requirement exactly as stated. Section 2.2.2.3 under Contractor Equipment and Services (exhibit 2) lists the following equipment: API 3 1/2 inch drill pipe, no hard banding, square shoulders acceptable, 1,400 feet. API 4 3/4 inch steel drill collars 10,000 lbs. (approximately 200 feet). API 7 to 7 1/2 inch steel drill collars, 13, 500 lbs. (approximately 100 feet) are acceptable equivalent. Rig equipped with hydraulic torque equipment for drill collars and drill pipe. The drilling contemplated by this Bid Request is reverse air drilling in which an air hose is inserted inside the drill pipe and air from this hose facilitates a removal of the material through which the drill bit penetrates. ADI's Bid Proposal (exhibit 4) under Equipment List provides in pertinent part: Drill stem 4 1/2" flush joint 2 1/8 ID Collars 2 @ 3 1/2" X 20' 1 @ 6" X 20' -2 @ 7 3/4" X 30' * * * Above listed tools available, we will make available any other specified tools. The inside diameter (ID) of API 3 1/2 inch drill pipe is 2 11/16 inches. This size pipe will allow use of a 3/4 inch air hose and still provide adequate area for the drilled material to be excavated from the hole being drilled. Further, this Bid Request proposed the use of 6 inch PVC casing to be provided by the District. Thus, the drill pipe and drilling equipment needed to pass through this size casing. The function of the drill collar is to provide weight on the drill bit to insure a straight hole as well as increase the speed of drilling. All else being equal (especially speed of rotation of drill bit) the greater the weight the faster the drilling. Standard API 3 1/2 inch drill pipe has an outside diameter of 4 3/4 inches and is the largest standard drill pipe that can be used in the 6 inch casing here proposed. Not only does the 4 1/2 inch drill pipe proposed for use by ADI have a smaller ID than API 3 1/2 inch drill pipe specified, but also this is not a constant ID but constricts to this 2 1/8 inch ID where pipe sections are connected. This constriction can increase the turbulence in the pipe and slow the removal of the drilled material. The cross section area of a 2 1/8 inch ID pipe is 5/8 the area of a 2 11/16 inch ID pipe. Accordingly, drilling with the API 3 1/2 inch pipe can be much faster than with a drill pipe with a 2 1/8 inch ID due solely to the greater volume flowing through the 3 1/2 inch pipe. The 4 1/2 inch drill collars listed in ADI's bid proposal weighed in at 1100 pounds in lieu of the 4 3/4 drill collars and 10,000 pounds specified in Request for Bid. ADI contends that by adding the words "above listed tools available, we will make available any other specified tools" they clearly intended to provide all equipment demanded by the District. This is the type language which leads to contract disputes. All of Petitioner's witnesses testified that they intended to commence the work, if awarded the contract, with the equipment listed on their bid proposal. On an hourly drilling contract this equipment is inadequate. All of these witnesses also testified they would use the equipment listed in the Request for Bid specifications if required to do so by the District. Neither Dave Robinson, Petitioner's superintendent who prepared its bid and attended the pre-bid conference, nor Jerry C. Howell, President of Petitioner who modified and approved the bids submitted, had ever used API 3 1/2 inch drill pipe and were not familiar with the dimensions of that item. Yet they did not check to ascertain how the inside diameter of that drill pipe compared with the inside diameter of the 4 1/2 drill stem flush joint they had on hand. Petitioner further contended that the cost of the API 3 1/2 inch drill pipe was insignificant in determining the bid price submitted, and therefore, this discrepancy was immaterial and should not lead to rejection of the bid. Petitioner's bid failed to comply with General Conditions 1.17 in that it failed to explain in detail the reasons the 4 1/2 inch drill stem proposed for use meets the specifications which required a drill pipe with a substantially larger minimum interior cross section area. Petitioner's challenge to Youngquist's bid proposal as being non- responsive for not listing the API 3 1/2 inch pipe is without merit. Youngquist's bid complied with the provision of Section 1.11 of the General Specifications and McQuown's visit to Youngquist's facility confirmed that Youngquist had on hand all of the equipment specified in the Request for Bid Proposal. Petitioner was represented at the compulsory pre-bid conference by David Robinson, ADI's superintendent, who prepared ADI's bid package. Robinson testified that at the pre-bid conference he asked Mr. McQuown what was the inside diameter of the API 3 1/2 inch drill pipe and McQuown responded 1 7/8 inches. Several other witnesses, including McQuown, testified that no questions were asked at the pre-bid conference about the API 3 1/2 inch pipe and all of these witnesses were fully aware that the pipe has an ID greater than 2 1/2 inches. McQuown's testimony that Robinson asked only about the inside diameter of the 4 3/4 inch drill collar shown in the bid specifications and he responded 1 7/8 inches to that question is deemed the more credible evidence. Robinson testified that he thought McQuown has misspoke when he said 1 7/8 inches but did not check available catalogues to determine the actual ID of this pipe to shed some light on the adequacy of the 4 1/2 inch drill pipe proposed in ADI's bid. The more credible testimony is that Robinson was not misinformed about the ID API 3 1/2 inch drill pipe at the pre-bid conference.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the formal bid protest filed by American Drilling, Inc. to challenge the award of Bid Request 9237 be dismissed and that the contract be awarded to Youngquist Brothers, Inc. DONE AND ENTERED this 15th day of February, 1993, in Tallahassee, Leon County, Florida. K. N. AYERS 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 15th day of February, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-6618BID Proposed findings listed by Petitioner are accepted except as noted below. Those neither noted below nor included in the Hearing Officer's findings were deemed unnecessary to the conclusions reached. 16. Rejected. Although there can be a slight variation in the internal diameter of API 3 1/2 inch drill pipe, there is no API 3 1/2 inch drill pipe with an inside diameter less than 2 1/2 inches. 18. Rejected as contrary to the credible evidence. Rejected. ADI fully intended to use the drill pipe and collars listed on its bid unless or until the District mandated a change to the equipment or tools specified. Both of Petitioner's principle witnesses believed the 4 1/2 inch drill stem listed could satisfactorily perform the required drilling. Rejected as contrary to the evidence. Accepted as a fact that after ADI learned it was low bidder inquiries were made to locate a source for the specified drill pipe and collars. At McQuown's visit to ADI, Jerry C. Howell assured him that ADI wanted to fully cooperate with the District in carrying out the contract when issued. Rejected that ADI's response was clear and complete as required by the specifications. Second sentence rejected as irrelevant and immaterial. Rejected as irrelevant. Diversified was not a party to these proceedings. Rejected. Youngquist's bid complied with the bid specifications. By not responding to those items in the bid specification, Youngquist, pursuant to the General Bid Specifications, agreed to provide exactly the equipment specified by the District in the Request for Bid. 32. These omissions have never been deemed by the District to be grounds for rejecting bids. 33 -34. Rejected as immaterial. 36. Although McQuown testified that he did not pay a lot of attention to the general (boiler plate) conditions in the bid proposal, he recognized that the failure of a bidder to list equipment different than that contained in the bid proposal meant that the bidder intended to supply the equipment specified. See 36 above. Rejected as irrelevant. Last sentence rejected as immaterial. First sentence rejected. Rejected. First sentence rejected. 46 - 49. Rejected as immaterial. 51. Rejected insofar as Youngquist's bid is concerned. 53. Last sentence rejected. Rejected as improper and inaccurate interpretation of the contract provisions. Moreover, this is a question of law, not of fact. The bid specifications speak for themselves. Interpretation of these specifications is a legal not a factual matter. Last sentence rejected. Last sentence rejected. Rejected as fact, accepted as a conclusion of law. See 36 above. 63 Generally accepted. However, it is found that all parties recognize that it was not necessary for bidders to have on hand all equipment requested in the bid specification, and that ADI representatives indicated that they would like to start work with the equipment on hand and would do so unless otherwise directed. Proposed joint findings submitted by Respondent and Intervenor are accepted. Those not included in the Hearing Officer's findings were deemed unnecessary to the conclusions reached. COPIES FURNISHED: Douglas Manson, Esquire Mary Catherine Lamoureaux, Esquire Post Office Box 499 Tampa, Florida 33601-0499 Richard Tschantz, Esquire A. Wayne Alfieri, Esquire 2379 Broad Street Brooksville, Florida 34609-6899 Mark R. Komray, Esquire Thomas Smoot, Esquire Suite 600 12800 University Drive Fort Myers, Florida 33906-6259 Peter G. Hubbell, Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899
The Issue Whether Respondent committed the violations as set forth in the Citation for Violation, Onsite Sewage Program/Sanitary Nuisance dated April 28, 2000.
Findings Of Fact Petitioner is authorized and given the jurisdiction to regulate the construction, installation, modification, abandonment, or repair of onsite sewage treatment and disposal systems, including drainfields, by septic tank contractors. At all times material hereto, Respondent was a registered septic tank contractor and, as such, he was authorized to provide septic tank contracting services, including the installation and repair of drainfields. On or about November 2, 1995, Petitioner issued a permit (Permit No. RP648-95) to Wilmar Rodriguez for the repair of a septic tank system at 417-421 Perry Avenue, Greenacres, Florida. The property was a triplex, which was purchased by Mr. Rodriquez in 1981. Mr. Rodriguez has no knowledge as to whether any drainfields were installed or replaced on the property, prior to 1981. The Permit included the installation of a new multi- chambered septic tank, a dosing tank, a lift station, and a new drainfield. The Permit was also for a filled system and called for the drainfield to be 700 square feet. Respondent was indicated as the "agent" on the Permit. Respondent and/or his employees performed the work under the Permit. Respondent was the septic tank contractor for the repair of the septic tank system under the Permit. On November 9, 1995, the construction of the septic tank system was approved by one of Petitioner's inspectors, who was an Environmental Specialist I. Petitioner's inspectors are not present during the entire construction or repair of a septic tank system or drainfield. Usually, inspections are made after the completion of the construction or repair of the septic tank system. Additionally, the inspection of a drainfield is usually performed after the rock has been placed on top of the drainfield. On February 2, 1996, the same inspector performed the inspection after the completion of the construction of the septic tank system, including after the placing of the rock on top of the drainfield. Even though the Permit reflects a filled system, the filled/mound system section on the inspection sheet was crossed out. The inspector considered the system to be a standard system, not a filled or mound system, and, therefore, inspected it as a standard system. In inspecting a drainfield, the inspection by an inspector includes checking to ensure that a drainfield has 42 inches of clean soil below the drainfield. An inspector uses an instrument that bores down through the rock and brings up a sample of the soil, which is referred to as augering. Augering is randomly performed at two locations. For the instant case, the inspector performed the augering in two random locations of the drainfield, which were in the area of the middle top and the middle bottom. The samples failed to reveal anything suspect; they were clean. On February 2, 1996, the inspector issued a final approval for the septic tank system. Final approval included the disposal of "spoil" and the covering of the septic tank system with "acceptable soil". The inspector mistakenly inspected the system as a standard system. He should have inspected the system as a filled system.1 After the repair and installation of the septic tank system by Respondent, Mr. Rodriguez continued to have problems with the septic tank system. He contacted Respondent three or four times regarding problems with the system, but the problems persisted. Each time, Respondent was paid by Mr. Rodriguez. Sewage water was flowing into the street where the property was located and backing-up into the inside of the triplex. Having gotten no relief from Respondent, Mr. Rodriguez decided to contact someone else to correct the problem. Mr. Rodriguez contacted Richard Gillikin, who was a registered septic tank contractor. On October 14, 1999, a construction permit was issued to Mr. Rodriguez for the repair of the septic tank system. Mr. Gillikin was indicated as the agent. Mr. Gillikin visited the property site of the triplex and reviewed the problem. He determined that the drainfield was not properly functioning, but he did not know the cause of the malfunctioning. With the assistance of Petitioner's inspectors, Mr. Gillikin and Mr. Rodriguez attempted to determine the best method to deal with the problem. After eliminating options, Mr. Rodriguez decided to replace the drainfield. To replace the drainfield, Mr. Gillikin began excavating. He began removing the soil cover and the rock layer of the drainfield. Mr. Gillikin also wanted to know how deep he had to dig to find good soil. After digging for that purpose and for 10 to 12 inches, he discovered a drainfield below Respondent's drainfield. The drainfield that Mr. Gillikin discovered was a rock bed 12 inches thick in which pipes were located and, as indicated, 10 to 12 inches below Respondent's drainfield. Mr. Gillikin also dug a hole two to three feet deep, pumped the water out of the hole, and saw the old drainfield. Mr. Gillikin determined that the old drainfield extended the full length of Respondent's drainfield. As a result of Mr. Gillikin's determining that the old drainfield was below Respondent's drainfield, both drainfields had to be removed and the expense of a new drainfield increased. Leon Barnes, an Environmental Specialist II for Petitioner, who was also certified in the septic tank program, viewed the drainfield site. He determined that the old drainfield was below Respondent's drainfield and that, therefore, Respondent had not removed the old drainfield. On or about November 6, 1999, Mr. Barnes' supervisor, Jim Carter, and co-worker, Russell Weaver, who is an Engineer, also visited the drainfield site. Mr. Weaver determined that the old drainfield covered a little more than 50 percent of the area under Respondent's drainfield. On November 8, 1999, a construction inspection and a final inspection of the system installed by Mr. Gillikin were performed. The system was approved. Respondent admits that a new drainfield is prohibited from being installed over an old drainfield. However, Respondent denies that he installed a new drainfield over the old drainfield on Mr. Rodriguez's property. In 1995, Respondent failed to completely remove the old drainfield before he installed the new drainfield. The soil and rocks from the old drainfield, which was not functioning, were contaminated spoil material. Because the old drainfield was not completely removed, the contaminated spoil material remained in the drainfield and was used as part of the material in the installation of the new drainfield. Leaving the contaminated spoil material in the new drainfield, prevented the sewage water from being able to percolate through the ground, which is a method of cleansing the sewage water. Without being able to percolate through the ground, the sewage water remained on the surface of the drainfield, creating a serious sanitary nuisance and health hazard. The sewage water spilled onto the street and backed-up into the triplex. Respondent was issued a Citation for Violation, Onsite Sewage Program/Sanitary Nuisance by Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Palm Beach County Health Department, enter a final order: Affirming the Citation for Violation, Onsite Sewage Program/Sanitary Nuisance and finding that Noel Sanfiel violated Section 381.0065, Florida Statutes (1995), and Rule 10D- 6.0571(4), now Rule 64E-6.015(6), and Rule 10D-6.0751(1)(l)1, now 64E-6.022(1)(l)1, Florida Administrative Code. Imposing a fine of $500. DONE AND ENTERED this 13th day of February, 2001, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 13th day of February, 2001.
The Issue The issue to be determined is whether Respondents, Anthony Crescenzo and Johns by John II, Inc. (collectively, Respondents), violated Florida Administrative Code Rule 64E-6.022(1)(g), (k), (l)2., and (p), and if so, what penalty should be imposed.
Findings Of Fact The Department is the state agency charged with the licensing and regulation of the standards for onsite sewage treatment and disposal systems (OSTDS), pursuant to chapters 381 and 489, Florida Statutes, and Florida Administrative Code Chapter 64E-6. Respondent Anthony Crescenzo is a resident of the State of Florida and holds DOH registration number SR0061541, to provide septic tank contracting services in Florida. Mr. Crescenzo owns and operates Johns by John II, Inc. (Johns by John), a Florida corporation located at 6252 Commercial Way, Weeki Wachee, Hernando County, Florida. Johns by John is authorized by the Department to provide septic tank services under Business Authorization number SA0041171. Johns by John provides OSTDS services pursuant to rules adopted by the Department and under the license, registration, and direction of Anthony Crescenzo. Winston and Dianne Wescott reside at 2245 Ring Road in Spring Hill, Florida, and have done so for approximately 19 years. Sometime in April 2014, Mr. Wescott noticed a depression and some saturated soil in his yard, near his septic tank. Mr. Wescott was concerned because of prior sink hole activity. After some telephone calls and an inspection by the insurance adjuster, Mr. Winston called Johns by John. On or about Saturday, June 7, 2014, a worker from Johns by John came to the residence and pumped out the drainfield. At that time, waste was coming out of the ground but was not backing up into the home. After the pump-out was complete, Mr. Wescott showed the technician the depressed area, and an exposed area that revealed that the outlet pipe to the septic system’s distribution box (D-box) was defective. The area had been exposed by either the insurance adjuster or the homeowner before the technician arrived. The technician telephoned Mr. Crescenzo, who advised that he would come out the following Monday or Tuesday to inspect the system and see what additional repairs were necessary. Mr. Wescott paid $205.72 for the pump-out of the drainfield. On Wednesday, June 11, 2014, Mr. Crescenzo met with Mr. Wescott to assess what repairs were necessary. When he arrived, the homeowner had already dug around the area, leaving the tank and the D-box at least partially exposed. Mr. Crescenzo advised that a new drainfield might be necessary, but did not state that it was absolutely required. He also explained that the repair would require a permit, and that they would do what they could to repair, as opposed to replace, the existing system. Mr. Crescenzo also explained that because of the need to obtain a permit, it might be four to six weeks before the job was completed. Mr. Crescenzo prepared, and Mr. Wescott signed, a Work Order/Proposed Drainfield Estimate form. Under “Job Description,” the following handwritten notation was provided: D-box collapsed down [illegible] point may have to replace entire system $2,500-$3,500. System will need to go in the front due to site conditions 4 bedroom house deposit required $1,000. The preprinted text on the form provided the following statements in bold-faced type: * NOT RESPONSIBLE FOR SPRINKLERS, WIRES, BROKEN PIPES, YARD, SOD OR DRIVEWAY DAMAGEDeposits are non-refundable. The form also provided for a 10-year warranty of any work performed. Although the language of the form is not clear, Mr. Crescenzo testified credibly that the warranty was applicable to repairs of the existing system as well as to replacement of the system. While the maximum the homeowner might have to pay is clearly indicated on the form, the costs of a repair short of replacement is not listed. Mr. Crescenzo testified that a $1,000 deposit is required for any job requiring a permit, as the permit itself is $300, and that he told the homeowner that he would not know the extent of the repair needed until he started the work. Mr. Wescott signed the estimate. Despite the language on the estimate that a new drainfield may be needed, Mr. Wescott understood that his drainfield would be replaced. While he admits signing it, he did not recall seeing the statement that deposits are non-refundable, notwithstanding that it is printed in bold type. His understanding appears to be based, in part, on a discussion between Mr. Wescott and Mr. Crescenzo about the continued vitality of the D-box. Mr. Wescott understood Mr. Crescenzo to say that the life of the septic system was approximately 19 years (the age of his home), and that if the drainfield was not replaced, the Wescotts would in all likelihood be calling him back in a matter of months to replace it because it was nearing the end of its expected life-span. He also understood Mr. Crescenzo to say that the D-box was obsolete and would not be replaced when the drainfield was replaced. Mr. Crescenzo, on the other hand, testified that he always maintained that they would try to repair the existing drainfield but may have to replace it. In the event that the system was replaced, D-boxes are no longer used and the existing one would not be replaced. Mr. Crescenzo denied stating that the life of a drainfield is 19 years, stating that drainfields do not have a standard life expectancy.1/ Mr. Crescenzo also emphasized that the work performed, whether a repair to the existing drainfield or a replacement, was subject to a 10-year warranty, thus making any statement that the company would just have to come back in a few months nonsensical. Mr. Crescenzo’s testimony is credited. Mr. Crescenzo applied for a permit on June 18, 2014, which costs $300. The permit application was to repair or replace the distribution box, not to replace the drainfield, and noted that the D-Box had collapsed. Mr. Crescenzo stated on the application that it may be possible to fix the D-Box and remove roots. The permit was issued for OSTDS repair on June 20, 2014. According to Stephen Kataro, an engineer for the septic tank program for Hernando County who approved the application and inspected the repair, the permit gave the option to replace the drainfield if necessary, based upon what was found during the repair. This approval is consistent with Department policy. On approximately July 3, 2014, Jeremiah Blake, a technician for Johns by John, went to the Wescott home to work on the septic system. Mr. Blake drove a Johns by John truck equipped with the standard equipment to install a drainfield. When he arrived at the home, the system was already uncovered. Mr. Blake discussed the repairs with Mr. Wescott, stating that he could do the drainfield or fix the D-Box. He determined that replacement of the outlet pipe leading to the D-Box addressed the problem, and that there was no need to replace the drainfield, as all drains were taking water. Mr. Blake completed the repair and used Mr. Wescott’s garden hose with a jet-spray nozzle to spray inside the D-Box and clean out the lines. There is an alternative repair method referred to as “jetting” that requires a separate permit that Respondents did not obtain. Jetting requires specialized equipment that Respondents do not own. The unrebutted testimony of both Mr. Wescott and Mr. Blake is that Mr. Blake used a simple garden hose to clear the lines. He is familiar with what the Department refers to as jetting, but has never operated jetting equipment. He uses the term “jetting” because it is an easier way to describe what he does with a simple garden hose to clear the D-Box of sand. When Mr. Blake replaced the pipe leading to the D-Box, he broke sprinkler lines in the area. Sprinkler lines are often, if not always, damaged in OSTDS repairs. Respondents had arranged the day before for a timed inspection, for which they paid an additional fee. The purpose of a timed inspection is to be able to complete the job and have it inspected as soon as it is finished. Mr. Kataro came out to the property at approximately 9:00 a.m., inspected the work performed, determined that it met permit requirements to restore function, and approved it.2/ Mr. Kataro left the site before Mr. Blake covered the system, consistent with standard practice. While Mr. Wescott was present when Mr. Kataro arrived to inspect the work, there was no testimony to indicate Mr. Wescott advised the inspector that he was unhappy with the scope of work performed. Mr. Blake had a backhoe on the premises for use in covering the area. He testified that he covered the system, including the broken sprinkler pipes, and that he always does so and then notifies the homeowner about the need to fix the sprinkler pipes. Both Mr. Blake and Mr. Wescott testified that Mr. Wescott asked Mr. Blake to remove some sod for him nearby, and paid him cash for doing so. According to Mr. Blake, Mr. Wescott seemed satisfied at this point. It seems inconceivable that Mr. Wescott would be willing to pay additional funds for Mr. Blake to remove sod if he had not covered the system he was supposed to cover and if he was unhappy with the work (or lack of work) performed, and yet not say anything to Mr. Blake about covering the completed repair. Mr. Wescott expected that since the drainfield was not replaced, he would receive some portion of the $1,000 he paid back. Had he realized that the repair would cost that much, he would have gotten estimates from other contractors. He viewed replacing the drainfield as preventative maintenance. Based on this belief, after Mr. Blake left the premises, Mr. Wescott called Mr. Crescenzo and asked about a refund. He did not complain, however, about the system not being covered. Mr. Crescenzo informed him that there would be no refund, as the work order clearly indicates that deposits are non-refundable. The Wescotts called the Johns by John office to get an itemized receipt for insurance purposes. There was some delay in receiving a receipt, so they went to the office to obtain it in person. Initially, they were given a receipt stating that the D- box had been replaced. When they questioned this and told the person working in the office that the D-box had not been replaced, she made some phone calls to verify the work performed. The office worker prepared a new receipt while speaking to someone, presumably Jeremiah Blake, on the phone. The new receipt stated, “connected tank to distribution box. Leveled D-Box to drainfield. Jetted drainfield lines.” The change in the description appears to have occurred more because the person working in the office misunderstood the scope of work performed, rather than any nefarious intent to defraud. Further, the reference to jetting was consistent with both Mr. Blake and Mr. Crescenzo’s shorthand notation for cleaning the line with the garden hose, as opposed to the alternative repair method requiring additional permitting. As noted in paragraph 16, the sprinkler lines were broken during the repairs. Mr. Wescott replaced the broken pipes, and placed bricks underneath them to hold them in place. He was still unhappy about not having a new drainfield in place, and felt that he had been defrauded. On August 4, 2014, Mr. Wescott filed a complaint with Albert Gray, the Environmental Manager at the Department. At the very end of his two-page letter, Mr. Wescott stated that the broken irrigation pipes have been repaired and the hole is still wide open with the tank cover exposed. The Department does not regulate the prices to be charged for repairs or installation of new systems: that is between the contractor and the homeowner. There is more involved to complete the job than the time that the workman is on the premises actually performing the repair. For example, in addition to the cost of the permit application, additional time is necessary to perform a site evaluation and soil test. Whether or not the drainfield must be replaced, the materials must be available to install should it be necessary, as well as the skilled workman and equipment (truck, backhoe, etc.). Further, it is clear that, had Respondents installed a new drainfield, the cost would have been much higher than what the Wescotts actually paid, not only to pay for the drainfield, but also to replace a large section of sod and a larger portion of the sprinkler system. Regardless of whether a new drainfield is installed, contractors are required to cover the OSTDS when they work on it. As a result of the Wescott’s complaint, Inspector Kataro went back out to the Wescott home to inspect the site. He found that the D-Box was lying open and exposed, with no earth covering the system. He took pictures of the area, which were admitted into evidence as Petitioner’s Exhibits J and K. The pictures show two exposed sprinkler pipes, supported at one end by bricks. One picture shows a bucket positioned over the distribution box, while the other shows the box sealed but not covered. Mr. Kataro testified that the pictures look similar to what he saw when he inspected the property after the repair was completed in July 2014. However, he could not say whether the sprinkler system pipes were broken before, or whether the bricks supporting the pipes were there previously. The testimony is clear that, after the job was inspected, Mr. Wescott made repairs to the sprinkler system that would require the area to be uncovered and Mr. Wescott acknowledged that he placed the bricks under the sprinkler pipes. Mr. Kataro recalled that Mr. Blake had a backhoe on the premises at the time of repair, but Mr. Kataro left the site before the area would have been covered. There is credible testimony that Mr. Blake covered the area and credible testimony that he did not. Other evidence presented is more consistent with a finding that the area was covered, at least minimally. The equipment for covering the area was by all accounts on site, and Mr. Blake used that equipment to remove sod for Mr. Wescott. It makes little sense for him to use the equipment to remove the sod but not use it for covering the D-Box and surrounding area. Moreover, had Mr. Blake covered the area, it would have to be uncovered to fix the sprinkler pipes. The Department did not prove by clear and convincing evidence that Mr. Blake, as an agent of Respondents, failed to cover the D-box. Respondent Crescenzo happened to be at the Department on August 14, 2014, picking up permits when he learned of the complaint from Mr. Wescott. He was very upset about the complaint and immediately wrote a response while still at the Department. In his response, he denied stating that the drain field would definitely be replaced, and emphasized that by repairing the pipe leading to the D-Box the homeowner saved a substantial amount of money, including not only the cost of installing the drain field, but the re-sodding of his yard and more substantial repair of his sprinkler system. Although clearly unhappy about the complaint, Respondent Crescenzo stated, “If the homeowner wants the system just replaced they should have said that at the time of the job. Or we could still do it if they insist for the original agreed price.” Mr. Wescott has not elected to accept Respondents’ offer. In his response, Crescenzo also referred to “jetting,” but used it in the same informal manner as Mr. Blake. His informal reference did not change the unrebutted testimony regarding the scope of work performed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a Final Order dismissing the Administrative Complaint. DONE AND ENTERED this 21st day of May, 2015, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of May, 2015.
Findings Of Fact On October 15, 1982, Hal Thomas Reid Associates applied for a septic tank permit to serve a 16-room motel. On February 2, 1983, this application was amended to a 5,800 gallon septic tank to serve a 32-unit condominium and office. The lot on which this drain field is to be located is 70 feet by 100 feet. When the application was filed, the lot was inspected by the Citrus County Health Department. The elevation of the land averaged 2.5 to 2.9 feet above mean sea level. The 10-year flood plane in this area is 4.9 feet. Occasional high tides inundate this area; however, the water drains off rapidly and no one testified that water ever remained standing as long as seven consecutive days. Usually the water drains off in less than 24 hours. On March 1, 1983, an extremely high tide flooded this area and roads in the vicinity to a depth of approximately one foot. This water remained on the site less than 24 hours. The site is not located adjacent to state waters, is not an area designated as wetlands, and is without the dredge and fill permitting jurisdiction of the United States Army Corps of Engineers and the Florida Department of Environmental Regulation (Exhibits 20 and 21). By adding five feet of fill to the site, the bottom of the gravel below the drain pipes will be above the 10-year flood plane. The drain field capacity is adequate to handle the flow from 33 bathrooms of residential units. In approving this permit, the Citrus County Health Department used the 150 gallons per day discharge for residential units rather than the 100 gallons per day discharge from a motel unit. The water table at this location is two feet above mean sea level. This is determined by the elevation reached at high tides for 14 consecutive days. As a condition to Citrus County withdrawing as an intervenor in these proceedings, Applicant agrees: To revegetate and restore any alleged wetlands affected by the permit to a like or similar condition; To install three shallow draft monitor wells around the drain field towards the wetlands area adjacent to the site and towards Woods 'n Waters subdivision, establish an existing level of bacteria count prior to the activation of the septic tank, and to monitor said wells through the Citrus County Health Department on a quarterly basis; and In the event any monitor wells shall test at an unsatisfactory level, Applicant will forthwith correct this condition to the satis- faction of the Citrus County Health Department. This application meets all of the code requirements of Chapter 10D-6, Florida Administrative Code.
The Issue The issues are whether Petitioner's substantial interests are determined by the issuance of the subject variance to Respondent Advanced Drainage Systems, Inc. (ADS) for the sale of an alternative drainfield system in Florida and whether, pursuant to section 120.542, Florida Statutes, on the grounds of substantial hardship or unfairness, ADS is entitled to this variance from three provisions of Florida Administrative Code Rule 64E-6.009(7) that, as to onsite sewage treatment and disposal systems (OSTDSs), require innovative system testing and prohibit an alternative drainfield system with an area smaller than the area required for a mineral-aggregate drainfield.
Findings Of Fact In the mid-1990s, Petitioner developed a drainfield system known as a Multi-Pipe System (MPS) as an alternative to the standard mineral-aggregate drainfield. The MPS consists of nine, eleven, or thirteen banded pipes constructed of four-inch, corrugated, high-density polyethylene tubing. Installed downgradient from a septic tank, the MPS retains the effluent from the septic tank long enough for the oxygen in the soil to treat the effluent's anerobic bacteria. After retaining the effluent long enough for this treatment to take place, the MPS releases the effluent so it can percolate deeper into the ground below the bottom of the drainfield. Marketed as a space-saving alternative to a mineral- aggregate drainfield, the drainfield area of the MPS is less than the minimum drainfield area specified by rule 64E-6.008 for a standard mineral-aggregate drainfield. For this reason, Petitioner sought DOH's approval of the MPS as an alternative drainfield system under rule 64E-6.009 (Alternative System or, more specifically, Alternative Drainfield System). In addition to being a proposed Alternative System, the MPS was also an "innovative system," as referenced in rule 64E-6.009(7), so DOH required Petitioner to conduct over two years' innovative system testing and submit to DOH the empirical data obtained from this testing. Petitioner did so, and DOH approved the MPS, with its reduced-size drainfield area, for sale and installation in Florida. A relatively small company, Petitioner entered into a license agreement with ADS in 2001 for the latter to produce and market the MPS in Florida. ADS subsequently sold at least 10,000 MPSs from 2001 until 2011 when the license agreement terminated. After Petitioner's patent on the MPS expired in 2014, ADS sought approval from DOH to market its own version of the MPS known as the Septic Stack. The Petition, Revised Petition, and Variance Order have been described above in the Preliminary Statement. DOH published notice of its receipt of the Petition in the Florida Administrative Register. Although DOH did not publish notice of its receipt of the Revised Petition, it did publish notice of the Variance Order in the Florida Administrative Register. The Variance Order provides persons whose substantial interests are determined by the proposed order a point of entry for requesting an administrative hearing on material issues of fact. Nothing in the record suggests that a third party had any right or opportunity to participate in the free-form agency proceeding that preceded the issuance of the Variance Order. Like the MPS, the Septic Stack is a space-saving alternative to the standard mineral-aggregate drainfield. The Septic Stack also consists of nine, eleven, or thirteen banded pipes constructed of four-inch, corrugated, high-density polyethylene tubing. Over the years, the thousands of MPSs that have been installed in Florida have proved that this Alternative Drainfield System operates adequately by protecting public health and the water resources of Florida. Although there is some dispute between Petitioner and ADS as to the specifications of the MPS that Petitioner licensed ADS to sell for installation in Florida, the MPS that ADS manufactured and that was installed in Florida is identical to the Septic Stack in terms of the perforated area punched into each length of pipe, an important feature in the proper performance of these Alternative Drainfield Systems. A small difference exists between the Septic Stack and the MPS in terms of the width of the straps holding the tubing in place during and after installation. Although the proper performance of these two Alternative Drainfield Systems requires that the pipes remain banded together, the small difference in the width of the banding straps is immaterial to their performance. The Septic Stack is the functional equivalent of the MPS. Because the MPS has adequately protected public health and the water resources, which are the relevant statutory purposes, as stated in the Conclusions of Law, the proposed variance would achieve the purpose of the statute by other means than those means set forth in the rule provisions from which the variance is sought. Consideration of hardship and fairness issues is complicated by the fact that, as discussed in the Conclusions of Law, the Septic Stack is not an innovative system, so it is not subject to innovative system testing under rule 64E-6.009(7) and 64E-6.009(7)(a)4. The following two paragraphs are necessarily conditional, assuming, for the sake of discussion, that DOH had properly determined that the Septic Stack requires a variance from the rule requiring innovative system testing. In this conditional case, requiring ADS to provide empirical data from innovative system testing would not produce a substantial hardship or be unfair to ADS by affecting it in a manner significantly different from the way that these rule provisions affect similarly situated persons that are subject to the rule. ADS has argued that the application of the rule would result in a substantial financial hardship. The record does not include an approximate cost of innovative system testing. If DOH had determined that the Septic Stack were not the functional equivalent of the MPS, the difference between these two Alternative Drainfield Systems would necessarily have been very slight, so any innovative element of the Septic Stack would not have required extensive or costly testing. Additionally, the record includes nothing about the net worth or revenues of ADS. There is thus no basis whatsoever for determining that innovative system testing itself would present a substantial financial hardship for ADS. ADS claims that the time required for innovative system testing would present a substantial financial hardship. The record does not indicate how long such testing would take. Again, if DOH had determined that the Septic Stack were not the functional equivalent of the MPS, the difference between these two Alternative Drainfield Systems would necessarily have been very slight, so any innovative element of the Septic Stack would not have required lengthy testing. It is thus impossible to estimate lost sales resulting from innovative system testing, nor is it possible to determine whether the lost profits, if any, from these sales would present a substantial financial hardship to ADS, given the absence of any evidence of the net worth or revenues of ADS. The record contains no indication of other hardships, such as technical or legal, resulting from requiring ADS to conduct innovative system testing. As explained in the Conclusions of Law, by proposing to grant ADS a variance from rule 64E-6.009(7) and (7)(a)4., DOH misapplies these two poorly worded rule provisions. But DOH's misapplication of these rule provisions does not create a statutorily recognized substantial legal hardship. The solution is not for DOH to misinterpret its rules and then grant variances due to the legal hardship arising from its misinterpretation; the solution is for DOH to acknowledge that the innovative system testing provisions of rule 64E-6.009(7) and (7)(a)4. do not apply to the Septic Stack because the Septic Stack is not an innovative system. ADS has argued that application of the innovative system testing provisions of rule 64E-6.009(7) and 64E-6.009(7)(a)4. would be unfair. But, as to these two rule provisions, the record fails to identify any person similarly situated to ADS or, thus, any difference in the impact of the rule on such a hypothetical person compared to the impact of the rule on ADS. The only other drainfield manufacturer identified in this case is Petitioner. The correct application of the relevant provisions of rule 64E-6.009(7) and (7)(a)4. required Petitioner to conduct innovative system testing and submit the empirical data to DOH because the MPS was an innovative system at the time--exactly what would be expected of ADS, if the Septic Stack were in fact an innovative system. Likewise, the application of rule 64E-6.009(7)(d) to the Septic Stack would not result in a substantial hardship of any sort, but it would be unfair. As noted in the Preliminary Statement, this rule provision prohibits the use of an alternative drainfield with an area smaller than the area required for a mineral-aggregate drainfield. As approved by DOH, the MPS drainfield is smaller than the area of a mineral- aggregate drainfield. The Septic Stack is functionally equivalent to the MPS, so the literal application of this rule to ADS's Septic Stack, but not to Petitioner's MPS, affects ADS in a manner significantly different from the way it affects Petitioner. Lastly, Petitioner has proved that its economic interests will suffer an injury in fact from the Variance Order. The proof of economic injury is straightforward. The addition of a competitor marketing a functionally equivalent Alternative Drainfield System in Florida will reduce Petitioner's sales in Florida. From the evidence produced by ADS in terms of lost sales resulting from the delay that would have resulted from innovative system testing,9/ Petitioner's economic injuries would not be insubstantial if ADS markets the Septic Stack in Florida. Petitioner has failed to prove any injury to any environmental interests, of which Petitioner has demonstrated none.
Recommendation It is RECOMMENDED that Department of Health enter a final order determining that Advanced Drainage Systems, Inc. is entitled to a variance from rule 64E-6.009(7)(d) in accordance with the formula set forth in the Variance Order, but not from rules 64E-6.009(7) and (7)(a)4. as to innovative systems.21/ DONE AND ENTERED this 19th day of December, 2014, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 19th day of December, 2014.
Findings Of Fact Air Comfort Services, Inc. (ACS) was a subcontractor on state construction project No. BR-729, an extension of the Administrative Support Service Complex on the campus of the University of West Florida at Pensacola. The general contractor on the project was Samuel R. Sharpe, Inc. (Sharpe) Petitioner spent 248 hours on this job as an employee of ACS, between September 13, 1978, and January 24, 1979. After petitioner submitted his affidavit, Jack C. Coons, an administrator employed by the Department of General Services, directed Harrel Bolden, the project manager, to withhold $2,530.30 from the general contractor, pending resolution of the dispute between petitioner and ACS. ACS was also a subcontractor on state construction project No. BR-725, the Educational Research and Development Center at the University of West Florida. The general contractor on this project was Greenhut Construction Company, Inc. (Greenhut). Petitioner spent 176 hours on this job as an employee of ACS, between October 4, 1978, and November 22, 1978. After petitioner filed his affidavit, Jack C. Coons directed Harrel Bolden to withhold $590.24 from the general contractor, pending resolution of the dispute between petitioner and ACS. Petitioner is a certified welder. On the Sharpe job, he worked with other welders and pipefitters, putting in water lines. On November 26, 1978, the excavations for the pipes were first dug. Petitioner himself spent about five hours using a shovel to dig for pipes. Petitioner, who is not a certified pipe fitter, helped fit pipe together, and welded the joints, once everything was in place. In all, there were some 79 four inch pipe joints and 111 two inch pipe joints on the Sharp job water lines. Petitioner also helped a plumber put in other plumbing lines and assisted with the installation of piping for the air conditioning system. He silver soldered the copper pipe joints, and put in cast iron pipe for rain leaders. Petitioner performed similar tasks on the Greenhut job, including welding joints on about 1,020 feet of pipe with 1 1/2" and 2" diameters laid in double random lengths, and welding at least 8 joints of pipe with a four inch diameter. A welder can weld 20 four inch pipe joints or 30 two inch pipe joints in an eight hour day. Petitioner was initially paid at the rate of $6.00 per hour. Beginning in January of 1979, he was paid at the rate of $6.76 per hour. He was paid at the higher rate for 60 of the 248 hours he worked on the Sharpe job. Both the Greenhut and Sharpe jobs involved contracts in excess of $5,000.00.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner be paid $1,825.25. That Greenhut be paid nothing. That Sharpe be paid $1,295.29. DONE and ENTERED this 28th day of August, 1979, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Mr. Donald A. Lowery 7706 Gadsden Street Pensacola, Florida 32506 Sharpe, Inc. Post Office Box 107 Pensacola, Florida 32591 Greenhut Construction Co., Inc. Post Office Box 12603 Pensacola, Florida 32576 Lucian H. Morgan 5503 East Shore Drive Pensacola, Florida Mr. Luther Moore Department of Labor and Employment Security Room 205, Ashley Building 1321 Executive Center Drive East Tallahassee, Florida 32301 Air Comfort Services, Inc. 315 South A Street Pensacola, Florida
The Issue Are the Respondents legally liable for petroleum contamination of soil and groundwater at the Economy Tire Service Station, 1858 Main Street, Sarasota, Florida and, if so, should the Respondents be required to perform the Corrective Actions included in the Notice of Violation and Orders for Corrective Action issued on February 19, 1993, by Petitioner, Department of Environmental Protection?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is the administrative agency charged with the responsibility of administering and enforcing the provisions of Chapter 376, Florida Statutes, and the rules promulgated thereunder in Title 17, Florida Administrative Code. Bryant A. Meeks, Trustee, is the owner of the property situated at 1858 Main Street, Sarasota, Florida (Property). Meeks is a person within the meaning of Section 376.301(12), Florida Statutes. Stanley M. Butler is the operator of Economy Tire Service (Business) on the Property, and has continually operated the Business on the property, beginning on November 26, 1980. The Property is specifically identified in a Quit-Claim Deed dated September 10, 1980, conveying all of the interest of O. M. Bailey in and to the Property, to Bryant A. Meeks and Jacqueline F. Meeks. The Property is legally described as: "the East one-half of Lot 3 and all of Lot 4, Subdivision of Lot 15, Block H, PLAT OF SARASOTA, as per plat thereof recorded in Plat Book 1, Page 166, Manatee County Records; and being the same property conveyed by Special Warranty Deed dated July 1, 1979, executed by BP Oil Corporation, a Delaware Corp., recorded in Deed Book 1012, Page 1905, Public Records of Sarasota County Florida." On December 1, 1977, SWT, Inc., purchased the Business from William E. Mitchell and Margaret G. Mitchell. Meeks was President of SWT, Inc. 6 After the acquisition of the Business by SWT, Inc., Meeks hired Butler to operate the Business. On July 17, 1979, Meeks, and his wife, Jacqueline F. Meeks, acquired an undivided one-half interest in the Property by Special warranty Deed from American Petrofina Company of Texas. O. M. Bailey acquired the remaining undivided one-half interest in the Property in the same deed. By Quit-Claim Deed dated September 10, 1980, O. M. Bailey conveyed all of his right, title and interest in the Property to Bryant A. Meeks and Jacqueline F. Meeks. On November 26, 1980, SWT, Inc. sold the Business, including fixed assets, inventory and accounts receivable to Butler. The sale included four underground petroleum storage tanks situated on the Property. On December 1, 1980, Stanley M. Butler and Dixie J. Butler leased the Property from Bryant A. Meeks and Jacqueline F. Meeks for a term of ten years, with an option to renew the lease and an option to purchase the Property. The lease was extended for ten years on January 4, 1991. The lease requires Butler to comply with "all statutes, ordinances, rules, orders, regulations and requirements of Federal, State and City Government and any and all their Departments and Bureaus applicable to said premises..." By Trust Deed dated September 23, 1983, Bryant A. Meeks and Jacqueline F. Meeks conveyed their right, title and interest in the Property to Bryant A. Meeks as Trustee, under the Bryant A. Meeks, Jr., Trust dated August 24, 1983. The Property remains under the ownership of Bryant A. Meeks, Trustee. At all times material to this proceeding, the Business on the Property has consisted of automobile service station, selling various grades of gasoline, diesel fuel, tires and automobile repairs. At all times material to this proceeding, there were four 3,000 gallon, carbon steel, underground petroleum storage tanks, one underground waste oil tank of unknown size (Tank Five) and two underground kerosene tanks of unknown size (Tank Six and Tank Seven) The four underground gasoline tanks shall be collectively referred to as "Gasoline Tanks" and individually as Tank One through Tank Four moving in a northerly direction, with Tank One being adjacent to the service bays on the Property and Tank Four being adjacent to Main Street. Tank Five is located just south of the office adjacent to the east side of the service bays. Tank Six and Tank Seven are located south of the pump island and just north of the office and service bays. The Gasoline Tanks have been continuously owned by Butler since Butler first acquired the Business on November 26, 1980. Butler did not purchase Tank Five, Tank Six and Tank Seven at the time he purchased the Business. At all times material to this proceeding, the Gasoline Tanks contained various grades of gasoline including regular leaded, unleaded and premium unleaded gasoline, as well as diesel fuel. At all times material to this proceeding, the Property was a facility within the meaning of Section 376.301(7), Florida Statutes. In the summer of 1978, it was determined that Tank Four was the source of water pumped into a customer's automobile gas tank. Tank Four was tested and found to be leaking. Tank Four was disconnected from service without removing all of the gasoline product. During this time, Butler advised Meeks that Tank Four was leaking, notwithstanding Meeks' testimony to the contrary. When Meeks purchased the undivided one-half interest in the Property in July 1979, Butler again advised Meeks that Tank Four had been disconnected due to a leakage, notwithstanding Meeks' testimony to the contrary. Meeks advised Butler that the Property had been purchased "as is". Since November 26, 1980, Butler has been an Operator of the Facility within the meaning of Section 376.301(10), Florida Statutes. Butler switched suppliers in 1981 and his new supplier, Amoco Oil, offered to fiberglass line Tank Four. The contractor hired by Amoco Oil pumped out the petroleum product left in the Tank Four when it had been disconnected. The contractor determined that Tank Four could not be fiberglass lined due to the holes in the tank. On May 21, 1984, there was a complaint by the Sarasota Fire Department of gasoline odors from the Facility. The gasoline vapors resulted from a leak in the underground air lines in conjunction with gasoline being discharged from Tank Four because of perforations in the tank before it was pumped out in 1981. The Department notified Butler of this finding and requested that Butler perform a hydrologic study to determine the extent of contamination. Apparently, Butler never had this hydrologic study performed. On October 12, 1984, Butler was given a warning notice by the Department that he was in violation of Chapter 403, Florida Statutes, and regulations promulgated thereunder. Additionally, the Department advised Butler to commence an contamination assessment which would require a Contamination Assessment Report to be submitted to the Department. The record does not reflect that a contamination assessment was commenced or that a Contamination Assessment Report was submitted to the Department. The Department has been aware of Meeks' ownership of the Property since October 1984. Butler registered the Gasoline Tanks and the Waste Oil Tank with the Department in March, 1986. In 1989, Butler installed four monitoring wells at the Facility adjacent to the Gasoline Tanks. On July 27, 1989, another complaint concerning gasoline odors was reported. On August 17, 1989, a written notice was mailed to Butler by the Department advising Butler that he was in violation of Chapters 403 and 376, Florida Statutes. There is no evidence that the Department sent Meeks a notice of such violation. During an inspection of the Facility in April 1990, the inspector found that: (a) the Gasoline Tanks had not been upgraded and retrofitted as required by Department rule; (b) the Gasoline Tanks did not have the requisite overfill and overspill protection as required by Department rule; (c) there was petroleum product in all four monitoring wells, with well no. 1 having a high petroleum odor and a detectable petroleum odor in wells nos. 2, 3, and 4; (d) the organic vapor analyzer readings taken in each of the monitoring wells indicated hydrocarbon vapors in excess of 5,000 parts per million and; (d) a tightness test had not been performed at the Facility in accordance with Department rules, and in response to the Discharge Notification Form filed by Butler on November 13, 1989. It was not until the fall of 1990 that Meeks received a notice from the Department concerning the contamination of the Property and that Meeks would be liable for cleaning up the contamination. However, Meeks failed to present sufficient evidence that he had been prejudiced by the Department's delay in notifying him of the contamination due to the unavailability of witnesses or records. There was no showing that Meeks had made any attempt, unsuccessful or otherwise, to secure witnesses and records concerning the condition of the Property before his acquisition in 1979 and 1980. During an inspection of the Facility in February 1991, the inspector found that: (a) one of the Gasoline Tanks was full of water; (b) the Gasoline Tanks had not been upgraded and retrofitted as required by Department rule and; (c) the Gasoline Tanks did not have the requisite overfill and overspill protection as required by Department rule. Amoco Oil removed all of the petroleum product from Tanks One, Two and Three in October 1991. Butler then contracted with Dickerhoof to inspect the Gasoline Tanks and reline them with fiberglass. After inspecting Tank One and Tank Two, Dickerhoof determined that these tanks could not be relined because of their condition. There were pin holes on the inside of the tanks in addition to split seams and perforations in the tops of the tanks. Butler decided not to inspect Tank Three since he could not operate with only one tank. Tank Four had been taken out of service earlier. On October 22, 1991, Eugene Cherno, Environmental Supervisor, Pollution Control Division, Sarasota County Government advised Butler not to return the Gasoline Tanks to service due to their poor condition. During an inspection of the Facility in May 1992, one-half inch of free product with a fairly strong petroleum odor was bailed from the southwest monitoring well. The color and condition of the free product indicated that the petroleum discharge had occurred within one to four years before the free product was removed. There was a slight petroleum odor in the remaining three monitoring wells. In July 1992 Butler contracted with James Nuwer to remove and replace the Gasoline Tanks and gas lines with new underground storage tanks and gas lines. Upon removing the Gasoline Tanks, Nuwer found small holes in Tanks One, Two and Three and somewhat larger holes in Tank Four. All of the Gasoline Tanks were corroded and had perforations on the welded seams. On July 10, 1992, when the Gasoline Tanks were excavated there was a strong petroleum odor permeating the entire area around the facility even though the petroleum product had previously been pumped out of the Gasoline Tanks. The soil removed in the process of excavating the Gasoline Tanks was a porous sand type soil. During the excavation and replacement of the Gasoline Tanks, Environmental Science and Engineering, Inc. (ESE), on behalf of Butler, prepared a UST Closure Environmental Assessment Report (Closure Assessment Report). During the excavation activities, ESE monitored the soils removed from the excavation using an organic vapor analyzer (OVA), equipped with flame ionization detector (FID). The OVA/FID measures total vapors, including methane, in the parts per million (ppm) range. An unfiltered and filtered screening was performed on each sample to evaluate the total organic vapor and methane concentration. The methane concentration was subtracted from the total organic vapor concentration to evaluate the soil for excess soil contamination. Soil vapor screening was performed in accordance with procedures defined in Rule 17-770.200(2), Florida Administrative Code. Twenty-one soil samples were collected for OVA/FID screening. The results of the OVA/FID screening show the total OVA reading in all 21 samples being greater than 1000 ppm. After subtracting the methane reading from total OVA reading, the samples ranged from a total OVA reading of 890 ppm to 1000 ppm. Pursuant to Rule 17-770.200(2), Florida Administrative Code, soils excessively contaminated by gasoline or diesel fuel will cause a total hydrocarbon reading of 500 ppm for gasoline and 50 ppm for diesel fuel using OVA/FID screening. Based on these results, the soil on the Property is excessively contaminated as that term is defined in Rule 17-770.200(2), Florida Administrative Code. ESE collected groundwater samples from monitoring wells nos. 1, 2, and The analytical results indicate the detection of both purgeable aromatic and polynuclear aromatic hydrocarbons in the groundwater samples from monitoring wells 1, 2, and 3. In each groundwater sample the benzene, total volatile organic aromatic (TVOA) and methy-tertiary-butyl-ether (MTBE) are reported in concentration presented as micrograms/liter (ug/L) as follows: MW1 MW2 MW3 Benzene 2,140 ug/L 737 ug/L 732 ug/L TVOA's 3,160 ug/L 2,080 ug/L 1,430 ug/L MTBE's 6,090 ug/L 5,980 ug/L 2,940 ug/L These levels exceed the Site Rehabilitation Levels (SRL's) for benzene, TVOA and MTBE of 1 ug/L, 50 ug/L and 50 ug/L, respectively, established in Rule 17- 770.730(5)(a), Florida Administrative Code. Monitoring well no. 4 was not sampled because free product was observed on the groundwater in the well, demonstrating contamination. ESE was unable to determine the extent of the excessively contaminated soils at the Facility due to limiting site conditions. The excavated excessively contaminated soils were transported to the Sarasota County Landfill for bio-treatment. Tank Five, Tank Six and Tank Seven are unmaintained underground storage tanks on the Property that have not been properly closed. On February 19, 1993, the Department issued a Notice Of Violation And Orders For Corrective Action against Meeks and Butler concerning the contamination of the Property on which the Facility is located. At a meeting on March 26, 1993, with Meeks, Butler and representatives of the Department present, the matter of the cost of cleaning up the contamination was discussed by those present. Meeks contends that at this meeting a Department representative advised those present that the Department would pay for the cleanup of the contamination but would not pay for the removal of the three underground storage tanks remaining on the Property. Meeks further contends, that in reliance on this commitment he did not pursue an eviction action against Butler. Meeks presented no evidence on how his not pursuing the eviction action against Butler was detrimental to him. A second meeting was held on July 14, 1993, where only Meeks and Department representatives were present. Meeks contends that another Department representative advised him that the Department could not honor the previous commitment to pay for the cleanup. There is insufficient evidence to show that a Department representative made a commitment for the Department to pay for the contamination cleanup on the Property. However, assuming that a commitment was made, there is insufficient evidence to show that Meeks' reliance on that commitment resulted in Meeks foregoing his eviction action against Butler. Furthermore, even if Meeks did rely on the commitment to forego his eviction action against Butler, there is insufficient evidence to show that his change in position was detrimental or that his reliance on the commitment for any reason resulted in a change of position that was detrimental to Meeks. There is sufficient evidence to show that a Contamination Assessment should be completed at the Facility to determine the extent of the petroleum contamination on the Property. There is sufficient evidence to show that one or more of the Gasoline Tanks have discharged gasoline or diesel fuel to the soils and groundwater on the Property. There is sufficient evidence to show that Tank One, Tank Two and Tank Three discharged either gasoline or diesel fuel to the soils and groundwater on the Property during the several years before the removal of the petroleum product from those tanks in October 1991. Likewise, there is sufficient evidence to show that Tank Four discharged gasoline to the soils and groundwater on the Property from the summer of 1978, when it was taken out of service, until the remaining gasoline was pumped out in 1981. The Respondents presented no evidence that some or all of the contamination was attributable to someone other than the Respondents. While it might be inferred that the Department incurred expenses and costs while investigating this matter, the Department presented no evidence to support any expenses or costs for its investigation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, accordingly, Recommended that the Respondents shall take the following specific corrective actions to address the violations: Respondents shall, within 60 days of receipt of the Final Order, properly close the three unmaintained underground storage tank systems remaining on the Property in accordance with Rule 17-761.800(2), Florida Administrative Code Respondents shall, at time of the closure of the unmaintained underground storage tank systems, conduct a closure assessment in accordance with Rule 17.761.800(3), Florida Administrative Code, and shall submit the closure assessment report to the proper authority within 60 days of the date of the closure. Respondents shall, within 30 days of receipt of the Final Order, initiate a contamination assessment, as required in Rule 17-770.600(1), Florida Administrative Code. Respondents shall conduct a petroleum contamination cleanup in accordance with Rule 17-770, Florida Administrative Code, in the manner and within the time frames specified therein. DONE and ENTERED this 21st day of December, 1994, in Tallahassee, Florida. WILLIAM R. CAVE 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 21st day of December, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 93-2020 AND 93-6637 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Petitioner's Proposed Findings of Fact; 1. Petitioner's proposed findings of fact 1 through 74 are adopted in substance as modified in Findings of Fact 1 through 50; otherwise they are not supported by the evidence in the record, or are unnecessary or subordinate, or are neither material nor relevant. Respondent Meeks' Proposed Findings of Fact: Respondent Meeks' proposed findings of fact 1 through 14, and 16 through 19 are adopted in substance as modified in Findings of Fact 1 through 50; otherwise they are not supported by the evidence in the record, or are unnecessary or subordinate, or are neither material nor relevant. Respondent Meeks' proposed finding of fact 16 is not supported by the evidence in the record. Respondent Meeks' proposed findings of fact 20 and 21 are not supported by the evidence in the record, but see Findings of Fact 43, 44 and 45. Respondent Butler's Proposed Findings of Fact: Respondent Butler did not file any proposed findings of fact. COPIES FURNISHED: Heidi Davis, Esquire Peter Fodor, Esquire Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Michael S. Drews, Esquire Richard E. Nelson, Esquire 2070 Ringling Boulevard Sarasota, Florida 34237 Stanley M. Butler, Pro se c/o Economy Tire Service 1858 Main Street Sarasota, Florida 34236 Kenneth Plante, General Counsel Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Virginia B. Wetherell, Secretary Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue The issues are: 1) whether Respondent committed medical malpractice, in violation of section 458.331(1)(t)1.; 2) whether Respondent failed to keep or maintain medical records, in violation of section 458.331(1)(m); 3) whether Respondent performed a wrong procedure or wrong-site procedure, in violation of section 456.072(1)(bb); and 4) if so, the determination of the penalty, pursuant to Florida Administrative Code Rule 64B8-8.001. (All references to statutes and rules are to the Florida Statutes and rules in effect in 2012, as cited in the Amended Administrative Complaint.)
Findings Of Fact Respondent is a medical physician, holding license number ME 0062034. He is certified as a pain management specialist by the American Board of Anaesthesia and American Academy of Pain Management. Licensed for nearly 40 years, Respondent practiced in 2012 in Lake Worth at the Palm Beach Pain Management Center, where he was the chief executive officer. Respondent has performed the specific procedures involved in this case at least 500 times and many thousands of epidural injections. Respondent's expert witness was Dr. Brett Schlifka, who is an osteopathic physician licensed in Florida and practicing in Wellington. Dr. Schlifka is certified by the Board of Neurosurgeons of the American College of Osteopathic Surgeons. As a neurosurgeon, Dr. Schlifka performs epidural injections, but never of hypertonic saline, so he was unable to address in any detail the epidural injection of hypertonic saline, nor does he use a catheter in performing epidural steroid injections (ESIs), so he was unable to address in any detail the specifics of the processes of threading a catheter through epidural space and inadvertently into intrathecal space and administering injectates through a catheter. Dr. Schlifka and Respondent are friends and refer patients to each other. Petitioner's expert witness was Dr. Harold Cordner, who is a medical physician licensed in Florida and practicing in Sebastian. Dr. Corner is certified by the American Board of Anesthesiology with an added qualification in Pain Management. For ten years, he has served as a clinical assistant professor at the Florida State University School of Medicine, where he teaches procedures such as those involved in this case--procedures that he himself has performed many times. This case involves procedures performed by Respondent on M.S.'s back on September 28, 2012. From bottom to top, relevant vertebra are sacral 1 (S1), lumbar 5 (L5), L4, L3, L2, and L1. Above the lumbar vertebra are thoracic vertebra, which are not directly pertinent to this case. The spinal cord extends no lower than L1/L2; the tapered end of the spinal cord is known as the conus. Relevant anatomical features in the area of the lumbar vertebrae, from the exterior to the interior, are ligaments, the epidural space, the dura, the subdural space, the arachnoid, the subarachnoid space, and the spinal cord. The subdural space is potential, presumably responding to changes in posture or movement, or even theoretical, because the epidural and subarachnoid spaces may be separated by less than one mm. Cerebral spinal fluid (CSF) is present in the subarachnoid space, but not the epidural space. The subarachnoid space is also known as the intrathecal space, so an intrathecal injection is an injection into the subarachnoid space. Intrathecal injections may be intentional or inadvertent, although this case does not involve any intentional intrathecal injections. "Bilateral" refers to the left and right sides of the vertebrae on the left and right sides of a patient's body. "Transforaminal" is across the space, within the epidural space, occupied by the foramen, which is a bony structure at each vertebral level through which spinal nerves pass. This case involves epidural injections of various injectates, including steroids--i.e., ESIs--although an ESI routinely includes the epidural injection of contrast and an anaesthetic in addition to a steroid. The ESIs in this case all involve lumbar transforaminal ESIs, so any reference to an "ESI" is to a lumbar transforaminal ESI. The alternative to a transforaminal ESI is an interlaminar ESI, which is an ESI within the space between vertebrae. At the time in question, at least, an interlaminar ESI was a safer procedure than a transforaminal ESI, if, for no other reason, than the proximity of an artery to the nerve passing through a foramen and the possibility of causing an infarction of the spinal cord by an inadvertent injection into the artery. M.S. was a patient of Respondent at the Palm Beach Pain Management Center from 2006 through September 28, 2012. On the latter date, Respondent performed procedures on M.S., immediately after which she has been left paralyzed in her lower extremities and incontinent of bladder and bowel. Born in 1951, M.S. presented to Respondent in 2006 with complaints of low back pain for many years. She had undergone failed back surgeries in 1989, 1993, and 2003. In the course of these surgeries, surgeons had performed spinal fusions of L3/L4 and L4/L5 and implanted hardware at L3/L4. M.S. was five feet, two inches tall and weighed 160 pounds. At the time of M.S.'s initial office visit on February 7, 2006, M.S. described the pain in her low back as ranging from 5 to 10 on a scale of 0-10 and stated that she had not had "injection therapy" recently. Respondent's impressions included lumbar failed back surgery syndrome and lumbar radiculopathy, which is a condition in which a compressed spinal nerve causes pain along the nerve. Respondent recommended a bilateral ESI. Imaging conducted shortly after the initial office visit revealed the above-mentioned hardware, postoperative changes in the disc at L4/L5, a mild disc bulge at L1/L2, a "very minimal" posterior disc bulge at the postoperative site of L3/L4, and a small central protrusion at L2/L3 causing a mild compression along the central aspect of the thecal sac, which is within the subarachnoid space. Besides the initial office visit and some imaging reports from late 2010, the evidentiary record contains Respondent's medical records only from December 2011 through September 28, 2012. In late 2010, imaging disclosed disc degeneration at L1/L2 and L2/L3 with mild thecal sac impingement, the surgical fusion of L3/L4 and L4/L5, and disc desiccation at L5/S1. There was also thickening or clumping of nerve roots through the surgical levels that could be regarded as arachnoiditis, which is inflammation of the arachnoid membrane. However, the evidentiary record contains billing records from late 2006 through September 28, 2012. These records indicate that Respondent performed 21 epidural injection procedures on M.S. from December 6, 2006, through September 28, 2012. The last ten such procedures, from April 19, 2010, were billed as ESIs using Code of Procedural Terminology (CPT) code 64483, although one procedure was billed as CPT code 64473. Respondent also billed ESIs under CPT code 64483 or 62311 on February 6, 2008, May 15, 2009, May 29, 2009, and February 22, 2010. The remaining procedures were billed on December 6, 2006, March 20, 2007, June 13, 2007, November 8, 2007, February 21, 2008, September 5, 2008, January 9, 2009, and October 30, 2009, under CPT code 62264 as "Racz" procedures, which are described below. Among other things, these records establish that Respondent performed ESIs on M.S. on 90-day intervals from late 2010 until September 28, 2012. Obviously, the billing records also establish that the lumbar region of M.S. was the site of numerous procedures over the six years leading up to September 28, 2012. Although the experts agree that M.S.'s lumbar epidural space was challenging due to myriad deformities following years of disease and multiple surgeries, Respondent had navigated this space over 20 times, so Respondent at least knew that he would encounter, if not where he would encounter, lesions, narrowed openings, and other pathological changes. For many years, Respondent had prescribed Percocet to control pain. The medical records for the nine months preceding the September 28 procedures indicate that Respondent consistently administered drug screens, which appropriately revealed only oxycodone. However, on at least a half dozen office visits during 2012, M.S. admitted that she was not abiding by the Narcotic Treatment Agreement, but, each time, Respondent's notes misstate that she was in compliance, so as to indicate no inquiry into the details of the noncompliance or its significance, if any, and recordkeeping by rote. Respondent likewise displayed inattention to detail as to the informed consents that he obtained from M.S. during this nine month timeframe. Each informed consent contains a handwritten description of the procedure to which M.S. was consenting by signing the form. For each procedure, the procedure is "lumbar transforaminal epidural steroid injections with fluoroscopy and catheter"; the June 25 informed consent rephrases the last four words as "with catheter with fluoroscopy," and the September 28 informed consent adds "left" to the typical description of the procedure. Respondent never obtained M.S.'s informed consent for the injection of hypertonic saline, even though Respondent injected hypertonic saline, with the amounts shown parenthetically, during the procedures of December 23 (5 cc), June 25 (5 cc), and September 28 (8 cc). For the December 23 procedures, Respondent took 12 minutes from "start" to "end" for the actual procedures and 18 minutes from "in" to "out" of the operating room. Coincidentally, the December 23 procedures' start and end and in and out times are identical to these times for the September 28 procedures. The start to end times of other two procedures were 11 minutes. This brisk pace betrays Respondent's experience as a pain specialist, but belies M.S.'s challenge as a patient. During each set of procedures from December 2011 through September 28, 2012, Respondent injected the same injectates, except for the March 23 procedure that omits hypertonic saline, but at different dosages, which is discussed below. Respondent used a form that allowed him to document his surgical plan by circling levels--L1/L2, L2/L3, L3/L4, and L5/S1--and sides--left, right, and bilateral. For December 2011, Respondent circled nothing; for March and June 2012, Respondent circled levels L3/L4, L4/L5, and L5/S1 and the right side; and for September 28, 2012, Respondent circled the same levels, but the left side. The efficacy of the epidural procedures is revealed in the notes from postsurgical office visits during which M.S. described her pain. On January 2, 2012, M.S. reported that her pain ranged from 6-10 all day and all night, the pain ranged from her back down her legs, everything made her pain worse, and the injections helped, although, after several injections, she reported that she had experienced "floppiness" in one leg--side unspecified. M.S. concluded that the pain relief from the injections made a difference in her life and restored functionality. On January 10, 2012, M.S. returned to Respondent's office complaining of pain ranging from 8-10 without medications and 6-10 with medications. The pain was radiating from her low back down her legs, mostly her right leg. The pain was continuous and "sharp, burning, shooting, achy, knife-like, stabbing, deep, heavy, and gnawing." On February 7, 2012, M.S. returned to Respondent's office with the same complaints. Interestingly, on March 6, 2012, M.S. returned to Respondent's office describing her pain as improved--5-10 without medications and 3-6 with medications. This time the note specifies that "transforaminal epidurals" gave her the greatest relief. The note for this office visit mentions a treatment plan of another ESI of a steroid and anaesthetic, but does not specify the side. On April 3, 2012, M.S. returned to Respondent's office for her first visit after the March 23 ESI. Again, the pain was worse immediately after the procedure--9-10 without medications and 5-8 with medications, although the note adds, "the transforaminal epidural with catheter has also helped her tremendously." The notes contain no analysis of the worsened pain 11 days after the ESI compared to 17 days before the ESI, but leg floppiness does not recur in this or any subsequent note. On May 5, 2012, M.S. returned to Respondent's office describing her pain as 8-10 without medications and 5-9 with medications. M.S. stated that the medications and "transforaminal epidurals with catheter" were the only treatments that helped with the pain. On May 15, 2012, M.S. returned to Respondent's office describing her pain as 6-10 without medications and 4-6 with medications. On June 22, 2012, M.S. returned to Respondent's office following a trip to North Carolina, where she had been unable to obtain her oxycodone and had been in considerable pain. On the day of the visit, though, M.S. reported her pain to be an 8 without medications and 6 with medications. The treatment plan contained in the note includes a right ESI, which Respondent described to M.S. as the injection of Cortisone and Marcaine or lidocaine with no mention of hypertonic saline. On July 20, 2012, M.S. returned to Respondent's office for her first visit after the June 25 ESI. M.S. described the pain as 8-10 without medications and 5-8 with medications. The recent "right lumbar transforaminal with catheter [helped] about 50% to 60%." On August 17, 2012, M.S. returned to Respondent's office describing her pain as 7-10 without medications and 1-7 with medications. The note adds, "She states no real change in her status, just looking forward to another injection." The treatment plan was for a left ESI with Cortisone and Marcaine or lidocaine, but, again, with no mention of hypertonic saline. On September 28, 2012, Respondent performed three procedures-- first, a caudal lumbar epidurogram with interpretation; second, an ESI; and, third, a distinct procedure involving the injection of hypertonic saline. In all three procedures, Respondent relied on live or real-time fluoroscopy to guide the spinal needle and catheter, which are described below. M.S. was positioned on a table, which, as relevant to these procedures, accommodates the 90-degree rotation of a fluoroscope, which is also called a C-arm due to the ability of the device to project onto a monitor anterior-posterior (AP), lateral, and oblique views of the spine and related structures. The AP view is a head-on (or back-on) view, and the lateral view is a side view at 90 degrees from the AP view. At the direction of Respondent, a technician not only rotated the C-arm, but also captured a still image from the radiographic output, which otherwise ran live or in real time or was switched off entirely when unneeded, to avoid over-exposing the patient to radiation. The caudal lumbar epidurogram is a relatively simple diagnostic procedure. Respondent passed a spinal needle through the sacral hiatus, which is a hole in the bony structure at the base of the spine below S1, and into the caudal epidural space. By lightly pushing the syringe plunger, Respondent employed the loss-of-resistance technique to sense the lack of resistance characteristic of the epidural space; by lightly pulling the syringe plunger, Respondent aspirated the needle and line to rule out the presence of any CSF, which would reveal an intrathecal penetration, or blood, which would reveal a vascular penetration. M.S., who remained conscious during the procedures, also did not indicate any paresthesia, which is numbness or tingling. Respondent withdrew the hollow core of the spinal needle in preparation for threading the catheter through the now-hollow needle and up through the epidural space. Respondent has maintained five AP views and one lateral view from the fluoroscopic imagery that he conducted on September 28. The lone lateral view, which is of the sacrum, was taken and preserved as part of the epidurogram. During the entirety of the September 28 procedures, including the epidurogram, Respondent injected 6 cc of contrast in the form of Omnipaque 300. As with all injectates, Respondent's records refer only to divided doses, so it is impossible to know how much of any injectate, including the contrast, that he administered at what level. The ESIs in March and June 2012 may have involved fewer levels than the ESIs in December 2011 and September 2012, because the former involved 3 cc each of Omnipaque and the latter involved 5 cc each of Omnipaque. Returning to the epidurogram, as the contrast flowed up the epidural space, the radiography revealed lesions at S1 on the right and L5 on the left. The dispersal pattern of the contrast indicated that the contrast was within the epidural space. Without incident, Respondent completed the epidurogram about two minutes after starting the procedure. For the ESI and hypertonic saline procedures, Respondent passed the catheter up through the epidural space to the level or levels that he was targeting for treatment. At each level, Respondent injected, in order, the above-described contrast, an anaesthetic, a steroid known as Depo Medrol, and hypertonic saline solution. For all four procedures from December 2011 through September 28, 2012, Respondent used Marcaine 0.25% and lidocaine 1%, but his records did not indicate the location at which he administered each anaesthetic. It appears that the anaesthetic used in the greater dose was used in the epidural space, and the other anaesthetic was used elsewhere, likely at the site of the initial injection. If so, for the September 28 procedures, Respondent used 5 cc of lidocaine in the epidural space--or what he intended to be the epidural space--and 1 cc of Marcaine elsewhere. In March 2012, Respondent used 3 cc of Marcaine and no lidocaine; in December 2011, Respondent used 5 cc of each anaesthetic; and, in June 2012, Respondent used 2 cc of Marcaine and 3 cc of lidocaine. Respondent's use of Depo Medrol was more consistent. He administered 80 mg during the September 28 ESI, but had used 120 mg during each of the three preceding ESIs. The greatest variability occurred with the hypertonic saline, which, as already noted, was omitted from the March 2012 ESI. Respondent administered 8 cc of hypertonic saline during the September 28 procedures and only 5 cc--nearly 40% less--during the December 11 and June 2012 procedures. The record contains no indication of why he failed to inject hypertonic saline during the March 12 procedure, but the sole reference to leg floppiness, as noted above, was after the preceding procedures in December 2011. There is some dispute in this case as to what may be injected as part of an ESI. Obviously, the ESI contemplates the injection of a steroid, as well as contrast and an anaesthetic, which support the injection of the steroid by heightening the safety of the ESI and the comfort of the patient during the ESI. Also, these injectates are amenable to grouping because this record does not suggest that an inadvertent intrathecal injection of these injectates, even at the doses intended for the epidural space, affects patient safety nearly as much as an inadvertent intrathecal injection of hypertonic saline. An intrathecal injection of a very high dose of anaesthetic could proceed up the spinal canal and cause respiratory and cardiovascular collapse, but the record does not indicate that such dangers exist for the dosages involved in the September 28 procedures. For the same reason, an ESI may include an injection of normal saline, which is harmless in the subarachnoid space. The epidural injection of hypertonic saline is the distinguishing feature of a Racz procedure, which also involves an epidural injection. Named after its physician-developer, Gabor Racz, the Racz procedure is intended to break up, or lyse, epidural lesions or adhesions that may be the source of part or all of a patient's pain when a nerve is trapped by an adhesion. In the Racz procedure, a physician injects hypertonic saline near the lesion. The salinity of hypertonic saline solution is ten times greater than the salinity of ambient conditions in the body, so the hypertonic saline solution, by osmosis, causes the body to compensate for the sudden appearance of hypersaline conditions by delivering fluid that expands the space and may thus lyse any nearby adhesions. Although the catheter is typically not stiff enough to break up lesions mechanically, such mechanical lysis may also occur incidentally while performing a Racz procedure. Other distinguishing features of an ESI and Racz procedure involve the sources of pain and the term of pain relief. The lysis of an adhesion permanently eliminates one potential source of pain--a nerve trapped by an adhesion. An ESI reduces inflammation wherever it may be present, so it treats a wider range of conditions, but offers only temporary relief. The pain relief from the steroid may extend weeks or months. The pain relief from the anesthetics--one hour for lidocaine and four hours for Marcaine--is not intended to persist past the intra-operative and recovery stages of the procedures. There may also be a locational difference between the ESI and Racz procedures. As noted above, in the ESI, the catheter traverses the foramen within the epidural space, and, in the Racz procedure, the catheter is threaded to lesions anywhere within the epidural space. Dr. Cordner opined that Respondent failed to perform an ESI due to the lack of proximity of the injection sites to the various foramina. Labels notwithstanding, the procedures performed by Respondent on September 28 substantially conformed to an ESI and, because an ESI does not include the epidural injection of hypertonic saline, a Racz procedure. Determining that Respondent performed two distinct procedures in addition to the epidurogram does not answer several relevant questions. First, which injectate, once introduced into the subarachnoid space, injured M.S.? If introduced to the subarachnoid space, the hypertonic saline is a known cause of the paralysis and incontinence that M.S. suffered, such as myopathic injury resulting in paralysis. Because safe practices, as described by Dr. Cordner below, include the provisional injections of contrast and anaesthetic to confirm that a catheter tip is safely in the epidural space, the only other injectate that might injure the patient is the steroid, but, again, the record is silent on the consequence of the introduction of the Depo Medrol, at the dosages used by Respondent, into the subarachnoid space. Second, when did Respondent decide to inject the hypertonic saline? The record provides no basis to answer this question. As noted above, Respondent did not administer hypertonic saline in the March 2012 procedure, but administered hypertonic saline in the December 2011 and June 2012 procedures, as well as the September 28 procedure, in which he increased the dose by 60%. For none of the three procedures in which Respondent injected hypertonic saline did his treatment plans or informed consents mention hypertonic saline. Respondent may have decided, prior to the day of surgery, to use hypertonic saline and merely failed to document this decision in advance, or he may have decided, during surgery, to use hypertonic saline and documented the use of hypertonic saline as noted above. Third, why did Respondent inject hypertonic saline and why did he administer the dosages that he used? The record provides no basis to answer these questions, although, as noted above, the omission of hypertonic saline from the March 2012 procedure corresponds to leg floppiness after the December 2011 procedure and the increased dose of hypertonic saline in the September 28 procedures corresponds to a lower dose of the Depo Medrol. The medical records indicate that M.S. believed that the ESIs relieved her pain, but she could not have had a preference about hypertonic saline because she evidently never knew that Respondent was using this injectate. On the other hand, M.S.'s rating of her pain after the March 2012 procedure, without hypertonic saline, was not much different from her rating of her pain after the December 2011 and June 2012 procedures. The likely inference is, if Respondent's use of hypertonic saline were not arbitrary or capricious, he injected hypertonic saline, at least when M.S. had not mentioned leg floppiness after the last injection of hypertonic saline, because he believed it worked and used considerably more of it on September 28 because he believed that more would work better. Returning to the remaining September 28 procedures, Respondent injected the four injectates described above on M.S.'s left side at three levels: S1/L5, L4/L5, and L3/L4. At each level, Respondent waited three or four seconds after injecting the contrast, while he watched the radiographic output, before injecting the anaesthetic, after which he waited 30 to 40 seconds to allow the anaesthetic to numb the area. Then, Respondent injected the steroid, waited five seconds, and lastly he injected the hypertonic saline. Assisted directly by the epidurogram, Respondent properly located the catheter tip in the epidural space at S1/L5. The evidence is mixed as to the location of the catheter tip at L4/L5, but the catheter tip was in the subarachnoid space at L3/L4. As Dr. Cordner testified, an inadvertent penetration of the subarachnoid space by a catheter tip is not evidence of negligence; the negligence arises in what a physician does or fails to do after such an intrathecal penetration. Here, the reasons why Respondent failed to realize that the catheter tip was in the subarachnoid space at L3/L4 relate to the reasonable precautions that Respondent failed to take--and thus establish Respondent's negligence. Respondent failed to realize that the catheter tip had entered the subarachnoid space at L3/L4 because, after injecting the contrast, he misread the AP real time view from the fluoroscope that showed a dispersal pattern suggesting that the contrast was not within the epidural space; because, after injecting the contrast, he did not direct the technician to obtain a lateral real time view, which would have provided another dimension, so as to confirm that the contrast was not in the epidural space; because he did not perform the loss-of-reduction technique, which would have confirmed that the catheter tip was not in the epidural space; because he did not aspirate the catheter and line, which would have revealed CSF; and because, after injecting the anaesthetic, he did not wait at least 15 minutes to rule out a gross motor block of the lower extremities, which would have indicated that the catheter tip was in the subarachnoid space. Unreasonably unaware that the catheter tip was in the subarachnoid space, Respondent injected the steroid and hypertonic saline, withdrew the catheter, and completed the ESI and Racz procedures within ten minutes from the end of the epidurogram procedure and turned over responsibility for M.S. to Respondent's nurse. One minute after the completion of the procedure, at 9:38 a.m., M.S. complained of pain in her hips and legs, and Respondent administered 60 mg of Toradol. Ten minutes later, M.S. stated that both of her legs were numb, although by 10:15 a.m. she was moving both legs. By 11:30 a.m., she could move both legs, but had no feeling from the top of her thighs down. By 1:00 p.m., M.S. reported feeling to her mid-calf, but, three hours later, she could not move her legs. Although Respondent justifiably had not been concerned about transient numbness, the deterioration in the ability to move the legs concerned him, and Respondent insisted that M.S. be admitted to a nearby hospital. Respondent thus discharged M.S. at 5:25 p.m. for transfer by ambulance to Bethesda Memorial Hospital (Bethesda), where other physicians assumed responsibility for her care. Imaging conducted at Bethesda upon the admission of M.S. revealed no epidural hematomas, but evidence of arachnoiditis, which is inflammation of the arachnoid membrane. Most significantly, a lumbar CT scan revealed a small amount of air in the subarachnoid space, which was consistent with Respondent's recent intrathecal injections. Also, M.S.'s thecal sac displayed enhancement of disc disease at S1 through L4 suggestive of a recent subarachnoid injury. About six weeks after the procedures, an MRI at the JFK Medical Center (JFK) revealed conus medullaris syndrome posteriorly within the thecal sac at L1/L2 through L3/L4. This syndrome results from injury to the conus, such as from trauma, and is consistent with Respondent's intrathecal injection of hypertonic saline. This hospitalization followed a finding from an outpatient MRI of a large hematoma in the lumbar spine. Respondent and Dr. Schlifka contend that the Bethesda physicians missed the hematoma, but it is as likely that the hematoma formed after M.S.'s discharge from Bethesda. M.S. underwent a resection of a mass, which was found to be an arachnoid cyst. Post-operatively, M.S. still was unable to move her lower extremities, but started to regain sensation in her great toes. Respondent relies on a succinct affidavit from Dr. Racz himself, which, as noted in the Conclusions of Law, is available only to impeach Dr. Cordner's testimony. Dr. Racz's affidavit states that he has examined Respondent's medical records, including the six fluoroscopic images retained by Respondent; all of the images available in connection with the Bethesda and JFK hospitalizations; and some earlier images. From these materials, without more, Dr. Racz's affidavit concludes that Respondent's care was "appropriate and that he met or exceeded the standard of care throughout the lumbar transforaminal epidural steroid injection with catheter and fluoroscopy on September 28, 2012. Further, the complications suffered by [M.S.] are known risks and complications of the procedure that are not indicative of negligence." The most obvious difference between the opinions of Dr. Cordner and Dr. Racz is not the amount of work; each physician has examined all of the available medical records. But Dr. Cordner has painstakingly analyzed the September 28 procedures and Respondent's negligent actions and omissions, and Dr. Racz has declared by fiat that Respondent was not negligent. Undoubtedly, Dr. Racz learned from his examination of the medical records that Respondent injected hypertonic saline on September 28, yet Dr. Racz describes the procedure as an ESI and makes no mention of hypertonic saline. Perhaps Dr. Racz is sensitive to the greater potential for injury introduced by hypertonic saline, which is the prominent injectate of his procedure. Perhaps, the procedure followed by Respondent on September 28 failed to follow strictly the requirements of the Racz procedure. Dr. Cordner, who co-teaches the Racz procedure with Dr. Racz, testified that the procedure requires a physician to wait 15 to 30 minutes after injecting anaesthetic to confirm the injection is in the epidural space. Regardless, an informed opinion as to Respondent's negligence must take into account the injectate that, on this record, bears the clear potential for patient injury, and Dr. Racz's opinion fails to do so. Perhaps, Dr. Racz's affidavit is an expression of agreement with Dr. Cordner's concession that, in itself, an inadvertent intrathecal penetration is not evidence of negligence. But Dr. Racz's affidavit needs to account for the acts and omissions, set forth above, that simultaneously explain why Respondent failed to realize that the catheter tip was in the subarachnoid space at L3/L4 and constitute his failure to take these simple precautions against patient injury. The last sentence of Dr. Racz's affidavit dismisses M.S.'s "complications"--a veiled reference verging on a euphemism when describing permanent paralysis and incontinence--as known risks of the ESI and not indicative of negligence. Obviously, a bad result does not prove medical malpractice, although, as explained in the Conclusions of Law, the risk of a bad result and the impact on a patient of a bad result drive the precautions that a physician must take to avoid a finding of medical malpractice. On the other hand, the known risk of permanent paralysis and incontinence from a Racz procedure or an ESI with the injection of hypertonic saline does not obviate the necessity of analysis of the adequacy of the precautions taken by Respondent to avoid such a result; to the contrary, these grave consequences underscore the importance of such analysis. Notwithstanding Dr. Racz's status in the field of pain management, his affidavit is entitled to no weight whatsoever and fails to impeach the testimony of Dr. Cordner. Dr. Schlifka's testimony is better than Dr. Racz's affidavit in one respect: he clearly acknowledged that injectate had entered the subarachnoid space. It is impossible to dispute this fact based on M.S.'s dramatic response, the dispersal pattern of contrast depicted in one saved AP view, air found in the subarachnoid space shortly after the September 28 procedures, the injury to the thecal sac, and the conus injury. On the other hand, Dr. Schlifka's testimony shared the failure of Dr. Racz's affidavit in addressing the particulars of the September 28 procedures performed by Respondent. As Dr. Racz failed to focus on anything but a theoretical ESI, Dr. Schlifka failed to focus on anything but the fragile anatomy of the dura--never addressing, for instance, the likelihood that a catheter during an ESI could tear the dura--something that the experienced Dr. Cordner has never encountered; whether a tear would introduce air into the subarachnoid space; or whether the injectate entering through a tear could possibly injure the thecal sac and conus. Obviously, Dr. Schlifka lacks the experience to opine as to whether a catheter may tear the dura and, if so, the probability of this complication. On the other hand, Dr. Schlifka failed to explain why a dural tear would admit injectates into the subarachnoid space, but not allow injectates and CSF to escape from the subarachnoid space into the epidural space. Nor did he address the behavior of injectates--the most important one of which he has never worked with--if injected through the dura and into the subarachnoid space or if entering the subarachnoid space through a tear in the dura. Although qualified to advise that the dura may tear, and, as he testified, the dura may be more prone to tearing after numerous surgeries and procedures in the affected area, Dr. Schlifka clearly lacked the means to address, on these facts, the probability that M. S.'s injuries were caused by a dural tear or an intrathecal injection. Compared to Dr. Cordner's detailed analysis and superior relevant experience, Dr. Schlifka's opinions are speculative and perhaps reflective of an understandable desire to help a beleaguered friend. However, Dr. Schlifka's explanation for the intrathecal penetration of the injectate by a dural tear is rejected as unsupported by the evidence. For Count I, Petitioner proved that, based on the standard of care in effect in 2012, Respondent committed medical malpractice by failing to recognize that he was performing intrathecal injections of steroid and hypertonic saline at L3/L4. Petitioner failed to prove that any injections at L4/L5 and L5/S1 were intrathecal. The evidence of intrathecal injections at L3/L4 is set forth in paragraph 48, and Respondent's negligent acts and omissions are set forth in paragraph 37. The intrathecal injections of the contrast and anaesthetic at L3/L4 were wrongful solely because Respondent failed to use the information obtainable from these injections to discover that the catheter tip was in the subarachnoid space. In other words, Respondent would not have committed medical malpractice (or a wrong-site procedure or wrong procedure) if he had injected intrathecally contrast and an anaesthetic as part of what is intended to be epidural injections, as long as he learned from these injections that the catheter tip was in the subarachnoid space and moved the tip into the epidural space or terminated the procedure: the epidural injection of these injectates performs both a therapeutic and diagnostic function. For Count II, Petitioner failed to prove that, in 2012, Respondent was required to obtain and retain a permanent image of any lateral view of L3/L4 or any other location as part of the procedures after the epidurogram or that Respondent's failure to realize that the catheter tip was in the subarachnoid space violated his recordkeeping obligation. The latter point finds no support in the record. As for the images, Dr. Cordner's testimony on this "requirement" of medical recordkeeping was vague, conditional, and never tethered to the requirements in effect in 2012. Although his practice is different, Dr. Schlifka does not keep permanent views from his epidural steroid injections by needles. Petitioner itself seems to have missed the point that a permanent image of an AP view helped prove that the catheter tip was in the subarachnoid space at L3/L4. It is one thing to hold Respondent responsible for failing to interpret a real time AP view of L3/L4 and failing to obtain a real time lateral view of L3/L4, as discussed in connection with Count I, but it is another thing to hold Respondent responsible for failing to maintain permanent images of any views for the procedures following the epidurogram. Among myriad shortcomings in Petitioner's case for Count II is the failure to address whether, for reasons of cost or radiation exposure, a physician in 2012 could still perform a blind ESI and, if so, the ramifications of more elaborate and expensive recordkeeping requirements imposed on the physician who performed image-guided ESIs--or otherwise would do so, but for this expensive recordkeeping requirement. For Count III, Petitioner proved that Respondent performed a wrong procedure or a wrong-site procedure by injecting "injectate," but not contrast, into the intrathecal space when he intended to inject injectates into the epidural space. As noted above, an inadvertent intrathecal administration is not evidence of carelessness, and the timely detection of such a mishap--before the intrathecal injections of a steroid or hypertonic saline--may involve interpreting the dispersal of contrast or the effect of the anaesthetic and determining that either or both injectates have been accidentally injected into the subarachnoid space. For this reason, the inadvertent intrathecal injections of contrast or anaesthetic into the subarachnoid space is not a wrong procedure or wrong-site procedure because of the secondary diagnostic value of this otherwise-therapeutic procedure. The wrong procedure or wrong-site procedure occurred when Respondent then injected the steroid and hypertonic saline into the subarachnoid space at L3/L4; the intrathecal injections of these injectates lacked any diagnostic purpose and were thus wrong procedures or wrong-site procedures. In its proposed recommended order, Petitioner has proposed a reprimand, probation for two years, and a $30,000 fine. Despite the passage of seven years from the September 28 procedures and the transmittal of the file to DOAH, Petitioner failed to identify important features of this complicated case. Although not charged with these matters, Respondent was guilty of serious failures to obtain informed consent for the use of injectate that caused M.S.'s catastrophic injuries--hypertonic saline--and to keep medical records documenting his plans for an ESI or an ESI with hypertonic saline and the locations and dosages of each injectate during the procedures, as well as analysis of the efficacy of each set of procedures. These aggravating factors necessitate the imposition of a suspension. On the other hand, past discipline is not an aggravating factor. By final order entered April 20, 2006, the Board of Medicine fined Respondent for a failure to keep adequate medical records 20 years ago, but the failure was in performing adequate physical examinations, which is not an issue here. Given the age and nature of the offense, past discipline is irrelevant in this case.
Recommendation It is RECOMMENDED that the Board of Medicine enter a final order finding Respondent not guilty of the alleged violation of section 458.331(1)(n) in Count II, but guilty of the alleged violations of sections 458.331(1)(t)1. and 456.072(1)(bb) in Counts I and III, respectively, and imposing a reprimand, six months' suspension, two years' probation following the end of the suspension, and a fine of $20,000. DONE AND ENTERED this 18th day of November, 2020, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 18th day of November, 2020. COPIES FURNISHED: Sharon Bidka Urbanek, Esquire Forman Law Offices, P.A. 238 Northeast 1st Avenue Delray Beach, Florida 33444-3715 (eServed) Michael J. Williams, Esquire Geoffrey M. Christian, Esquire Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3565 (eServed) Louise St. Laurent, General Counsel Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3565 (eServed) Claudia Kemp, J.D., Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way, Bin C-03 Tallahassee, Florida 32399-3253 (eServed)
