The Issue Whether Respondent is guilty of creating, keeping, or maintaining a nuisance injurious to health in violation of Section 386.041(1)(b), Florida Statutes, as set forth in the Citation for Violation, dated August 19, 1996.
Findings Of Fact Petitioner, Department of Health, the successor agency to the Department of Health and Rehabilitative Services, is the state agency charged with the responsibility of investigating and correcting sanitary nuisances in this state. The Respondent, Hyacinth D. Wynter, now known as Hyacinth D. Wallace, has owned a private residence and kennels located at 2323 Tuscawilla Road, Winter Springs, Florida, from 1996 to the present. On or about June 19, 1996, the Seminole County Public Health Unit received a complaint of a possible sanitary nuisance existing on the Respondent’s property. On June 21, 1996, an inspection of Respondent’s property revealed that the property contained a large home with a septic tank and drain field in the front yard and another in the back yard. A kennel for small animals and an apartment was also located in the rear of the property. The septic tank and drain field in the rear of the property was located in a low spot which was subject to the accumulation of surface water runoff from the kennel and during periods of above-average rainfall. Observation revealed standing water in the back yard. The water showed discoloration and had a pungent odor. However, no solid waste was visible. Subsequent tests for sewage contamination was inconclusive. This observation indicated the drain field had failed. Respondent was given a Sanitary Nuisance form letter which recommended that the septic tank be pumped, the ground disinfected and the drainfield be repaired within ten days. Respondent contacted two septic tank companies in late June and received estimates on pumping the septic tank and on the repair and improvement of the septic system. Respondent retained one of the companies to pump the septic tank. The septic tank company was unable to complete the job prior to Petitioner’s reinspection on July 2, 1997, because of above normal rainfall and the inability to get its truck into the Respondent’s back yard. Petitioner reinspected Respondent’s property on July 2, 1997 and observed the same conditions as was observed on June 21, 1997. A three day extension was granted to Respondent, in order for the tank to be pumped. On July 3, 1997, Orlando Septic Tank Service, Inc. pumped the septic tank and disinfected the area. It also advised Respondent that the drainfield had failed and would need to be replaced. On July 8, 1997, Respondent inspected the area again and observed the same conditions as on the prior inspections. An Official Notice to Abate a Sanitary Nuisance and a Notice of Intended Action was issued by Respondent on July 11, 1997. It was served on Respondent, by posting and by certified mail, on July 12, 1997. Respondent was directed to abate the nuisance within 7 days of the notice or an administrative fine would be imposed. Respondent began to disinfect the area with lime on a daily basis, until the drainfield was repaired. The low area with the standing water was bordered off with visible construction type ribbon and visitors coming to the premises were advised to stay clear of the area. Respondent authorized Orlando Septic Tank Service to submit a permit application to replace the drainfield in accordance with the specifications approved by the Petitioner. The application was submitted on July 17, 1996. The permit was issued on July 24, 1996. On July 25, 1997, Respondent received a proposal from Orlando Septic Service to install an elevated drainfield on the site for the sum of $4,288.50. Respondent was not able to financially afford to authorize this work without obtaining financing for the project. When financing was obtained, Respondent accepted the proposal and then authorized the work on August 8, 1996. Due to other obligations, Orlando Septic was not able to give a proposed starting date for the project until August 26, 1996. On August 13, 1996, Petitioner inspected the Respondent’s property again and observed the same conditions as on previous inspections. Petitioner was informed of the projected starting date for repair of the drainfield, however, a Citation for Violation was issued on August 16, 1996 calling for corrective actions to abate the condition by 4:00 p.m. August 19, 1996. On August 27, 1996, the septic tank was pumped again. Orlando Septic Service was scheduled to begin work on the repair of the drainfield on August 26, 1996. On that same date, the company called Respondent and informed her that they were delayed on another job and could not begin repair of Respondent’s drainfield until sometime in September. Respondent immediately called another company and gave them the contract. The repair was completed on September 10, 1996. The evidence was insufficient to establish that a sanitary nuisance existed on Respondent’s property on August 16, 1996.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED as follows: The Respondent, Hyacinth D. Wynter, be found not guilty of violations Sections 386.041(b), Florida Statutes. The Notice of Intended Action be revoked. DONE and ENTERED this 30th day of May, 1997, in Tallahassee, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of May, 1997. COPIES FURNISHED: Sonia Nieves Burton, Esquire Department of Health 400 West Robinson Street Orlando, Florida 32801 Michael D. Jones, Esquire Atrium II Building 301 West State Road 434, Suite 317 Winter Springs, Florida 32708 Catherine H. Berry Legal Office Duval County Health Department 515 West 6th Street Jacksonville, Florida 32206-4397 Gregory D. Venz, Agency Clerk Department of Children & Families Building 2 Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Pete Peterson, Esquire 1317 Winewood Boulevard Building 6 Room 102-E Tallahassee, Florida 32399-0700
The Issue At issue in DOAH Case No. 04-4333 is whether Respondent committed the two violations of Florida Administrative Code Rule 64E-6.022 alleged in the citation issued on September 29, 2004, and, if so, whether the imposition of a $1,000.00 fine was properly imposed. At issue in DOAH Case No. 05-0695 is whether Respondent committed the three violations alleged in the Amended Administrative Complaint issued on February 21, 2005, and, if so, whether his septic tank contractor registration should be revoked or some lesser penalty imposed.
Findings Of Fact The Department is the state agency charged with enforcing the statutory provisions pertaining to the practice of septic tank contracting in Florida pursuant to Chapter 489, Part III, and Section 381.0065, Florida Statutes (2004). At all times relevant to this proceeding, Respondent Matt Beebe, was a registered septic tank contractor, having been issued registration number SR0971283, and was the qualifying contractor for his business, Southern Sanitation, Inc. ("Southern Sanitation"), having been issued registration number SA0970864. On June 7, 2001, Mr. Beebe was cited for installing a septic system without a permit, in violation of Florida Administrative Code Rule 64E-6.022, and paid a fine of $500.00 without contest. At all times relevant to this proceeding, Mr. Beebe also operated a septage disposal service business under the Southern Sanitation name, having been issued operating permit number 11-QN-0054. Improper Septage Disposal and Sanitary Nuisance On September 29, 2004, Kenneth Rech, the Department's environmental health and engineering director for Collier County, received a telephone complaint that a Southern Sanitation septage hauling truck had been seen emptying its contents onto a vacant lot at 295 Brandy Lane in Naples. Mr. Rech and his assistant, James Miller, drove out to the location to investigate the complaint. When he arrived at the location, Mr. Rech first spoke to the complainant, who lived across the street from the vacant lot. The complainant estimated that the Southern Sanitation truck left the lot about 20 minutes before Mr. Rech arrived. Mr. Rech and Mr. Miller investigated the site. Mr. Rech described the area containing the dumped contents of the truck as a low-lying wetland. The property was about ten acres in size. The owner kept horses on the lot. Mr. Rech testified that there was a strong smell of septage, though the dumped contents were light gray in color. Raw septage is generally black. Based on the smell, Mr. Rech concluded that the dumped contents included septage mixed with some other material. Mr. Rech telephoned Erin Kurbec to meet him at the dump site. Ms. Kurbec is a Department employee responsible for oversight of septage hauling and disposal businesses. Ms. Kurbec in turn phoned Mr. Beebe and asked him to come to the site. Mr. Rech testified that Mr. Beebe was "very agitated" when he arrived at the dump site, calling Ms. Kurbec a "liar," and protesting that the Department did not have the right to ask for his company's hauling logs. Because of Mr. Beebe's aggressive behavior, Mr. Rech phoned to request a Sheriff's deputy to come to the site. Mr. Beebe conceded that he was somewhat agitated because Ms. Kubec asked him to come to the site, but would not tell him why she wanted to see his truck. She would only say that it was a "spot check," which Mr. Beebe did not believe. By the time the Sheriff's deputy arrived, the situation had calmed down. Mr. Beebe told Mr. Rech that he had dumped approximately 3,000 gallons of "drillers' mud" on the site. Drillers' mud, or bentonite clay, is a colloidal clay sold under various trade names that forms a slick slurry, or gel, when water is added. The appearance of the material dumped at the site was consistent with that of drillers' mud. Mr. Beebe testified that the owner of the vacant lot asked him to dump the drillers' mud to fill in a low-lying, hard to reach area of the property. The liquid-like consistency of the drillers' mud made it ideal for filling this difficult portion of the property. Mr. Beebe's testimony as to having permission to dump materials on the property is credited. Mr. Rech took two samples of the dumped material from a pooled area about six inches deep. He used sterile sample equipment and containers. Because Mr. Beebe had alerted him to the possibility that there could be horse manure under the dumped material, Mr. Rech was careful to scoop the contents from the top of the dumped material. Mr. Rech provided one of the samples to Mr. Beebe to allow Mr. Beebe to have a laboratory of his choice analyze the material. Mr. Rech sent the other sample to the Department's Tampa laboratory, which found the sample to contain a fecal coliform count of 4,800 colonies per gram. The laboratory's report was stamped with the disclosure stating, "Sample does not meet the following NELAC requirements: 1) exceeds 6 hr. hold time; 2) this matrix is not certified under NELAC." NELAC is the National Environmental Laboratory Accreditation Conference, a voluntary association of state and federal agencies, the purpose of which is to establish and promote mutually acceptable performance standards for the operation of environmental laboratories. NELAC certifies environmental laboratories such as the Department's Tampa facility, which was not certified for solid matrices such as the sample provided by Mr. Rech. Dr. Philip Amuso is the director of the Department's Tampa laboratory. Dr. Amuso testified as to the testing procedures and the disclosure statement included on the laboratory report. He concluded that neither of the disclosures affected the validity of the fecal coliform count found in the sample. Dr. Amuso testified that the applicable testing standard calls for a sample to be analyzed for fecal coliform within six hours of the sample collection time. The sample in question was not tested within six hours. However, Dr. Amuso testified that the longer a sample is held, the lower the fecal coliform count will be, because the fecal coliform colonies tend to die off over time. Thus, Dr. Amuso testified that the fecal coliform count in the sample was likely understated, due to the failure to analyze the sample within six hours. Dr. Amuso testified that his laboratory chose to classify the sample as solid. The Tampa laboratory was required to note on its report that it is not NELAC-certified for solid matrices. However, Dr. Amuso testified that the classification of the sample had no impact on the analysis performed or the validity of the result. He explained that the laboratory could have classified the sample as a non-potable liquid, a matrix for which the Tampa laboratory is NELAC-certified, and the same analysis would have been performed and would have yielded the same result. Mr. Beebe forwarded his sample of the dumped material to Sanders Laboratories, Inc. ("Sanders"), a private environmental testing service. The Sanders laboratory classified the sample as a non-potable liquid and performed its analysis within six hours of the sample's collection. The Sanders laboratory report dated September 30, 2004, found the fecal coliform count to be 1,600,000 colonies per 100 milliliters. Placed in comparable terms to the Tampa laboratory's report, this sample showed a fecal coliform count of 16,000 colonies per gram, or about three times higher than the Tampa laboratory's sample. Dr. Amuso attributed this higher reading to the fact that Sanders ran its test within six hours of collection. Dr. Amuso testified that the fecal coliform count of 4,800 colonies per gram found in the Tampa laboratory's sample constituted "pretty significant" contamination. Mr. Rech testified that a count of 4,800 colonies per gram is about one-half of the count found in raw, untreated septage from a septic tank, and that such a count is "bad" in terms of public health significance. Mr. Rech testified that the fecal coliform count in the Sanders sample was "in the range" for raw untreated septage. Mr. Rech stated that the laboratory analyses led to the conclusion that there was a substantial amount of untreated septage mixed with the drillers' mud in the dumped materials. He concluded there was more septage than could reasonably be attributed to residue from a previous dump of septage in Mr. Beebe's truck. He added that it would be impossible to clean the tank of a septage disposal truck sufficiently to prevent fecal contamination of a subsequent non-septage load. Mr. Beebe conceded that Mr. Rech told him that he should not use a septage hauling truck for any other kind of load, especially where that load would be dumped on the ground. Before leaving the dump site on September 29, 2004, Mr. Rech and Ms. Kurbec handed Mr. Beebe the citation for failure to properly treat or dispose of septage and the creation or maintenance of a sanitary nuisance. The citation directed Mr. Beebe to pay a fine of $500.00 for each of the two violations. Mr. Rech testified that he and Ms. Kurbec were able to conclude from their on-site observations that Mr. Beebe had improperly disposed of septage and had created a sanitary nuisance. Mr. Rech stated that the subsequent laboratory analysis served to confirm those conclusions. Mr. Rech testified that untreated septage consists of human waste containing high levels of fecal coliform and viruses, bacteria, and parasites that cause a wide range of gastrointestinal and neurological conditions in humans. Mr. Rech stated that untreated septage dumped anywhere other than at a properly regulated disposal site constitutes a public health nuisance. He noted that the materials were dumped by Mr. Beebe within roughly 100 feet of residential drinking water wells. Mr. Beebe admitted that he dumped the contents of his disposal truck on the vacant lot, though he denied that it contained septage. He theorized that the high fecal coliform counts in the laboratory analyses were caused by animal manure beneath the drillers' mud that he dumped on the property. Dr. Amuso conceded that no testing had been performed to establish the ambient level of coliform on the property, and further conceded that the laboratory tests do not distinguish human from animal feces in measuring the coliform count. However, as noted above, Mr. Rech knew that there were animals on the property and carefully took his sample from the top of the dumped material. Mr. Rech testified that the strong smell of septage, and the high coliform count found by the subsequent laboratory analyses left no doubt that untreated human waste had been dumped on the property by Mr. Beebe. The Department established, by clear and convincing evidence, that Mr. Beebe dumped a mixture of drillers' mud and untreated septage on the lot at 295 Brandy Lane in Naples. Holding Tank On or before January 6, 2005, Mr. Beebe placed a 900-gallon domestic wastewater holding tank into a pre-dug hole at the newly built residence of Edward Ehlen at 616 Crescent Street on Marco Island. Mr. Beebe did not dig the hole, nor did he connect the holding tank to Mr. Ehlen's house. Mr. Ehlen testified that he contracted with the City of Marco Island in July 2004 to connect his new residence, an $800,000 house, to the city sewer system. The connection was to be completed no later than November 2004, when Mr. Ehlen and his family expected to take occupancy of the house. The city did not complete the connection and, therefore, allowed Mr. Ehlen to install a holding tank to be used until the sewer connection was completed. After the holding tank was installed, the city inspected the tank and gave Mr. Ehlen a temporary certificate of occupancy. On January 6, 2005, after Mr. Ehlen and his family had moved into their house, the Department discovered that the Ehlen home was using a holding tank to collect its wastewater. On January 7, 2005, the Department issued to Mr. Ehlen an "Official Notice to Correct and Abate a Sanitary Nuisance," finding that Mr. Ehlen was in violation of "Florida Statutes Chapters 381 and 386" because "plumbing discharge from your home is connected to a sewage holding tank which has not been permitted or inspected by this department." The Notice also provided, in relevant part: You are hereby directed to correct this condition by complying with all the conditions listed below. Apply for a "temporary" Holding Tank permit by close of business on Monday, January 10, 2005. [This permit will be valid for a maximum of 120 days, Permit fee is $185.00] Apply for an abandonment permit for the temporary holding tank by close of business Monday, January 10, 2005. [This permit will be valid for a maximum of 120 days. Complete tank removal will be required within 10 days of hook up to public sewer. Permit fee is $40.00] Have a licensed septic contractor excavate the holding tank for inspection of all connections and seals by this department by Wednesday, January 12, 2005. Sign and maintain a pump-out agreement with a licensed septage hauler until the temporary holding tank is properly abandoned and inspected by this department. Provide a copy of this agreement to the department by Wednesday, January 12, 2005. [Minimum required pump-out frequency to be every other day]. Complete hookup to Marco Island Utilities sewer system within 120 days of receipt of this notice. Failure to comply may result in administrative and/or civil enforcement action, including administrative fines of up to $500 per day per violation of law. On January 12, 2005, the Department issued a 120-day temporary permit to Mr. Ehlen for his holding tank. Also on January 12, 2005, Mr. Ehlen signed a contract with Southern Sanitation pursuant to which Mr. Beebe's company agreed to pump out the holding tank three times per week. Mr. Beebe conceded that he did not obtain a permit from the Health Department before he placed the holding tank in the hole on Mr. Ehlen's property. Mr. Beebe relied on Mr. Ehlen's statement that the City of Marco Island had approved the installation of the holding tank. Florida Administrative Code Rule 64E-6.0101(7) provides that a construction permit must be obtained before the placement or installation of any holding tank. The Department established, by clear and convincing evidence, that Mr. Beebe placed a 900-gallon domestic wastewater holding tank into a pre-dug hole at the Ehlen's residence without obtaining a Department permit. Mr. Beebe's good faith belief that Mr. Ehlen had obtained approval for the placement of the tank is noted as a mitigating factor, but cannot operate as a defense for a registered septic tank contractor's admitted failure to confirm the status of any permit with the Department prior to commencing work on the project. Collection and Hauling Log Mr. Beebe's annual operating permit from the Department authorizes him to pump septage from septic tanks and holding tanks and haul it to an approved treatment site for disposal and treatment. Florida Administrative Code Rule 64E-6.010(7)(e) requires a septage hauler to maintain a collection and hauling log "at the treatment site or at the main business location" and to retain that log for a period of five years. The rule lists the following items for inclusion in the log: Date of septage or water collection; Address of collection; Indicate whether the point of collection is a residence or business and if a business, the type of business; Estimated volume, in gallons, of septage or water transported; Receipts for lime or other materials used for treatment; Location of the approved treatment facility; Date and time of discharge to the treatment facility; and Acknowledgement from treatment facility of receipt of septage or waste. On September 29, 2004, the date on which the Department investigated Mr. Beebe's dumping of drillers' mud and sewage on the lot at 295 Brandy Lane in Naples, the Department requested that Mr. Beebe provide his septage collection and hauling log. On September 30, 2004, Mr. Beebe faxed to the Department a single-page, typed document titled, "RE: Southern Sanitation, Inc. Truck Log for Trucks 1 and 2." The document stated that on September 29, 2004, "Truck #1" transported 3,000 gallons of "Well Drillers Mud" from Southern Well Drillers Services drilling site and disposed of it at 295 Brandy Lane. The document stated that "Truck #2" did not haul materials on September 29, 2004. Mr. Rech testified that this document did not satisfy the rule criteria for collection and hauling logs. He noted that this was not a log kept by the drivers of the trucks, but merely a statement from Mr. Beebe attesting to what the trucks had hauled on a single day. Mr. Rech also pointed out that the Department had inspected and authorized Mr. Beebe to haul septage in two trucks identified by their vehicle identification numbers, but that Mr. Beebe's single-page "log" provided no information specifically identifying the trucks in question. On February 3, 2005, the Department sent a letter to Mr. Beebe requesting that he produce, among other documentation, "your original collection and hauling logs for all domestic sewage and food establishment sludge and/or septage you collected and disposed of from January 1, 2004 through February 2, 2005." On February 11, 2005, Mr. Beebe responded to the Department's request, providing copies of "Septic Receiving Logs" maintained by the North County Water Reclamation Facility ("NCWRF"), the Collier County wastewater facility at which Mr. Beebe disposed of his loads. There were log pages for January through June 2004, and October through December 2004. The logs included the dates of disposal, the number of gallons and type of waste in the load (septic or grease), and the signature of the Southern Sanitation driver who dropped off the load. On March 8, 2005, Mr. Beebe submitted to the Department supplemental information covering January 2005. It includes a typed "Pump Job List" for January 2005, prepared on March 3, 2005. The list contains dates, addresses, and approximate gallons collected, including eight entries for pumping out Mr. Ehlen's holding tank. Individual trucks were not identified on this list. The supplemental information also included an NCWRF Septic Receiving Log for January 2005. Mr. Beebe testified that the Department had never asked him for an accounting during the eight years he has operated his business and that the Department did so in this case only after he contested the allegations in the Brandy Lane dumping case. Mr. Beebe appeared to believe that the Department was acting punitively in requesting documents that Mr. Beebe, as the owner of a permitted septage disposal business, was required to keep. Mr. Beebe did not contest the apparent fact that he did not keep collection and hauling logs for his trucks in the normal course of business. Such documentation as he provided was insufficiently detailed to meet the requirements of Florida Administrative Code Rule 64E-6.010(7)(e), and in some instances was cobbled together well after the fact in order to provide the Department with some documentation of Southern Sanitation's activities. Mr. Rech testified that the Department requires accurate logs of collections and disposals to allow it to monitor compliance and investigate complaints. An accurate, detailed, and contemporaneously-created log would have allowed the Department to discover what Mr. Beebe's truck had collected and dumped prior to the Brandy Lane dumping incident and would have allowed the Department to reconcile the amounts of septage collected by Mr. Beebe from January 2004 through February 2005, with the amounts of septage Mr. Beebe properly disposed of during the same period. The Department established, by clear and convincing evidence, that Mr. Beebe did not maintain a septage collection and hauling log as required by Florida Administrative Code Rule 64E-6.010(7)(e). Improper disposal of septage The terms of Mr. Beebe's septage disposal service permit required him to dispose of his collected septage at the NCWRF. Dale Waller, the plant manager of the NCWRF, testified as to the procedures followed by sewage haulers at the facility. Mr. Waller testified that the facility has a computer capable of generating reports as to the quantity of disposals made by haulers, but that the computer system often does not operate correctly. Therefore, the facility's chief means of monitoring disposals is the "Septic Receiving Logs" discussed above. The Septic Receiving Log requires the hauler to record the date of disposal, whether the disposal consisted of septage or grease, the amount of disposed material in gallons, and the driver's signature and printed name. The number of gallons disposed is shown on a calibrated gauge when the waste is pumped out of the truck. Mr. Waller testified that this gauge is accurate within five per cent of the actual amount pumped. The county sends invoices each month to the hauler, based on the number of gallons and the type of waste disposed of at the facility. The Septic Receiving Log is maintained in the foyer of the NCWRF building, with a monthly sheet for each hauling company that uses the facility. No NCWRF employee monitors the haulers as they make their log entries. Mr. Waller testified that it is essentially an honor system for the haulers. Due to computer problems, the NCWRF had no computer records of disposals for the month of January 2005. The Septic Receiving Log for Southern Sanitation for that month showed six entries totaling 11,908 gallons of septage and grease, plus two early January 2005 entries of 3,450 gallons that were placed on the December 2004 log, for a total of 15,358 gallons. Mr. Waller testified that in March 2005, Mr. Beebe submitted a revised Septic Receiving Log for Southern Sanitation for the month of January 2005. Mr. Beebe also provided this revised log to the Department as part of his March 8, 2005, supplemental information for the month of January 2005. This revised log listed three additional disposals of septage in the month of January 2005: 2,550 gallons on January 17; 2,000 gallons on January 24; and 1,700 gallons on January 28. These additional 6,250 gallons brought the reported total disposals of septage and grease for January 2005 to 21,608 gallons. The NCWRF declined to accept the revised Septic Receiving Log as an official record of Southern Sanitation's disposals at the facility for the month of January 2005, because the NCWRF could not verify the additional disposals. Mr. Beebe was billed only for those disposals documented on the original Septic Receiving Log kept at the facility. As part of the March 8, 2005, submission of supplemental information, Mr. Beebe provided to the Department a "pump job list" for January 1 through 28, 2005. This list indicated that Southern Sanitation collected between 21,000 and 22,600 gallons of wastewater during the period specified, a number that roughly corresponds to the total number of gallons reported by Mr. Beebe in his revised Septic Receiving Log for the month of January 2005. At the hearing, the Department contended that because Mr. Beebe reported collecting between 21,000 and 22,600 gallons of waste, but could only verify the proper disposal of 15,358 gallons of waste, Mr. Beebe must have improperly disposed of at least 5,600 gallons and as much as 7,200 gallons of waste. In a similar fashion, the Department examined the amounts that Mr. Beebe reported pumping from Mr. Ehlen's holding tank, compared those amounts to the Ehlen household's water usage for the month of January 2005, and concluded that Mr. Beebe further underreported the amount of waste collected that month and, therefore, must have improperly disposed of even more than 5,600 to 7,200 gallons of waste. Mr. Beebe was forthright regarding the issues in these cases, even when his testimony was against his own interests. In light of his overall credibility, Mr. Beebe's denial that he made any improper disposals of waste is credited. No evidence was presented to show that Mr. Beebe actually made these improper disposals. The Department's contention was a surmise derived from discrepancies in Mr. Beebe's reports of collections and disposals. Based on all the evidence, the undersigned finds that the discrepancies in the reports were more likely due to Mr. Beebe's poor record-keeping and his after-the-fact efforts to create records complying with Florida Administrative Code Rule 64E-6.010(7)(e), rather than any illegal dumping of waste. The Department failed to establish by clear and convincing evidence that Mr. Beebe improperly disposed of septage during the month of January 2005.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, the Department of Health, enter a final order imposing a $1000.00 fine for the violations described above, relating to DOAH Case No. 04-4333, and imposing a fine of $1,500.00 and a 90-day suspension of Respondent's septage disposal operating permit for the violations described above, relating to DOAH Case No. 05-0695. DONE AND ENTERED this 7th day of July, 2005, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 7th day of July, 2005. COPIES FURNISHED: Michael F. Kayusa, Esquire Post Office Box 6096 Fort Myers, Florida 33911 Susan Mastin Scott, Esquire Department of Health 2295 Victoria Avenue, Room 206 Fort Myers, Florida 33901 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
The Issue The petition in this matter was filed pursuant to Section 57.111, Florida Statutes, seeking fees and costs arising from an underlying proceeding (DOAH Case No. 93-5526) in which the Department of Health and Rehabilitative Services entered a Final Order adopting the hearing officer's recommendation that the administrative complaint against Wayne H. Crotty, d/b/a Crotty Septic/Roto- Rooter, be dismissed. The parties have stipulated to the reasonableness of the fees and costs, the total of which exceeds the statutory $15,000.00 maximum. Respondent, Department of Health and Rehabilitative Services, contests entitlement to the award and argues that Petitioners are not prevailing small business parties and, further, that the agency had a reasonable basis in law and fact at the time its complaint was filed.
Findings Of Fact The Parties Wayne H. Crotty is, and at all relevant times has been a licensed septic tank contractor in the State of Florida. Crotty Unlimited, Inc. was formed in 1987 as a holding and management company for several small, diversified corporations held by the Crotty family. One of those companies was Crotty Septic Service, Inc., which was involved in septic contracting and related businesses since 1972. In the early 1990's the other small corporations were sold, and when only Crotty Septic Service, Inc. was left, it was dissolved and was later registered as a fictitious name under which Crotty Unlimited, Inc. was doing business. From March 1992 until approximately June 1994, Crotty Septic Roto- Rooter was registered as a fictitious name owned by the corporation, Crotty Unlimited, Inc. Wayne H. Crotty is currently a director and president of Crotty Unlimited, Inc. Prior to Fall of 1994 he was vice president and secretary of the corporation. He is now, and was at all relevant times, a minority shareholder. In 1992 and 1993, Wayne H. Crotty filed applications for septic tank contracting authorization pursuant to Chapter 489, part III, Florida Statutes, for the business "Crotty Septic/Roto-Rooter." The certificates were issued by the Department of Health and Rehabilitative Services under that designated business name. Wayne Crotty never applied for or received a certificate of authorization for septic tank contracting under the name, "Crotty Unlimited, Inc." Prior to 1992 the business authorization was in the name, Crotty Septic Services, Inc. The Department of Health and Rehabilitative Services (HRS), through its state health program officer, is the state agency with statutory responsibility for licensing septic contractors, and monitoring and disciplining those contractors. The program office relies on the field staff in local county health units to conduct inspections and investigate complaints. The Underlying Proceeding In 1993 Wayne Crotty had an application pending for a permit from HRS for a septage disposal service, temporary system service and septage treatment and disposal facility. The application designates the business as "Crotty Septic/Roto-Rooter" and the owner as "Crotty Unlimited, Inc." The application describes a lime stabilization facility on Southport Road in Osceola County (the Southport facility). The purpose of the facility was to receive pumped-out sewage effluent, treat the effluent through lime stabilization and spread the treated effluent in a designated field at the facility. Michael Napier, assistant director of environmental health in Osceola County conducted a series of inspections of the Southport facility in April, May and June of 1993. Mr. Napier noted what he considered were violations of Chapter 386, Florida Statutes, relating to sanitary nuisances and rule chapter 10D-6, Florida Administrative Code, relating to the treatment and disposal of septage and the standards of practice of septic tank contracting. He spoke with Wayne Crotty and corresponded with him regarding the inspection findings and he also consulted with Gerald Briggs, an environmental manager with HRS' state health program office in Tallahassee. Gerald Briggs drafted the administrative complaint in July 1993 based on the consultations with Michael Napier, the correspondence between the Osceola County health unit and Wayne Crotty and the inspection reports, photographs, or other supporting documentation. Throughout several months' time period Briggs felt from the tone of the letters that the corrections would be made. By July when Michael Napier said that the plant was handling a large quantity of septage in a very unsanitary and sloppy manner, Briggs agreed the facility should not be permitted as he was concerned about the impact on public health and the threat to ground and surface water in the area. Once Gerald Briggs decided to pursue an administrative complaint he determined that the respondent should be Wayne Crotty as the licensed septic tank contractor. The file on Wayne Crotty's certificate of authorization indicated that Crotty Septic/Roto-Rooter was the authorized business name. Wayne Crotty had in early 1992 informed Gerald Briggs that he had purchased a Roto-Rooter franchise and wanted to be able to advertise under that name. Briggs advised that as an individual septic tank contractor he could only qualify one authorized business and the business he advertised would have to be the one that was authorized by the agency. Briggs advised that Wayne Crotty could amend his authorization to change the business name from Crotty Septic Service, Inc. to Crotty Septic/Roto-Rooter. When Gerald Briggs drafted the administrative complaint alleging violations found by Michael Napier and the Osceola County field staff, he relied on the information in his files and named Wayne Crotty as the responsible septic tank contractor and what he understood was Crotty's business: Crotty Septic/Roto-Rooter. The respondent throughout the underlying proceeding was designated as "Wayne H. Crotty, d/b/a Crotty Septic/Roto-Rooter." No corporate party appeared in that underlying case (DOAH number 93-5526) by intervention or otherwise. Richard G. Hunter, Ph.D., HRS Health Officer for Environmental Health and Statewide Services signed the administrative complaint based on his examination of the packet prepared by his program and legal staff and the information from the field. The complaint sought to impose $2,500 in administrative fines on Wayne H. Crotty for violating regulations concerning disposal of stabilized septage and for creating or maintaining a sanitary nuisance. Wayne Crotty denied the allegations and requested a formal hearing. The case was referred to the Division of Administrative Hearings, was assigned DOAH number 93-5526 and was heard on February 3-4, 1994. Included in the recommended order was this ultimate conclusion: 94. At most, the department established some intermittent sloppy practices by the Respondent -- practices that resulted primarily from the failure to have proper equipment available (the dumpster), and from untrained staff (Norm's admission about the cows). In the absence of clear advance notice of violations and an opportunity to correct the violations as provided by section 386.03, Florida Statutes, and with Respondent's evidence of reasonable attempts to cooperate and to obtain more appropriate equipment and train staff, those isolated practices should not be subject to penalty. (Recommended Order entered 6/28/94) In a Final Order entered on August 22, 1994, the Department of Health and Rehabilitative Services adopted the findings, conclusions and recommendation of the hearing officer and dismissed the administrative complaint against Wayne H. Crotty, d/b/a Crotty Septic/Roto-Rooter. The Elements Required for an Award of Fees and Costs Respondent, Wayne H. Crotty, thus prevailed in the underlying action. Wayne Crotty was an officer, minority shareholder and, according to his testimony, an employee of Crotty Unlimited, Inc. (transcript, p. 58). He was not a sole proprietor of an unincorporated business; he was not a small business party. At the time that the complaint was filed the agency had a reasonable basis to claim that violations were occurring or had occurred. However, its initiation of the proceeding was fatally flawed by its failure to provide statutory notice and an opportunity to correct the violations. When the complaint was filed the parties were still engaged in free-form discussion and correspondence regarding operations at the lime stabilization facility.
The Issue The issue in this case is whether Respondent, Larry C. Garner, should be fined $500 for misstating the size of a septic tank and drain field.
Findings Of Fact Respondent, Larry C. Garner, is the licensed septic tank contractor who owns and operates A. Carver Septic Tank. (The Citation for Violation erroneously referred to the company as “E. Carver Septic Tank,” but the error was corrected without objection at final hearing. There was no evidence to support Respondent’s suggestion that the Department may have taken disciplinary action against him because it erroneously thought Respondent was another licensee.) On December 6, 2001, an employee of Respondent pumped out a septic tank and measured a drain field located at 847 Matthews Road, Maxville, Florida. The resident there wanted to enlarge her residence and needed Respondent's services in order to obtain Department approval of the existing septic tank system for the enlarged residence. After services were provided, Respondent's office gave the resident a receipt stating that Respondent's company had pumped out a 900 gallon septic tank and that the drain field measured 360 square feet. (Respondent's office actually dealt with the resident's adult daughter.) Respondent's office staff also prepared Form 4015 (a Department form entitled “Onsite Sewage Treatment and Disposal System Existing System and System Repair Evaluation”) and gave it to the resident for use in getting approval of the system for the enlarged residence. The form stated that the septic tank was 900 gallons and that the drain field was 360 square feet. When the resident applied for approval of her septic tank system for her enlarged residence, the Department inspected the system and found that the septic tank actually was 750 gallons and the drain field actually was only approximately 110 square feet. The Department issued the Citation for Violation based on the magnitude of the discrepancy. Respondent denied that he personally had any contemporaneous knowledge of the services provided by his employee or the receipt of Form 4015 prepared by his office, and there was no evidence that he did. Respondent personally investigated after issuance of the Citation for Violation. At final hearing, Respondent questioned whether the Form 4015 actually stated that the septic tank was 900 gallons. From the handwriting on the form itself, it appears possible that the number could read 700, not 900. But based on the written receipt, which either was prepared contemporaneously with the Form 4015 or was the basis for preparation of the Form 4015 by Respondent's office staff, the greater weight of the evidence was that the Form 4015 stated and was intended to state 900 gallons as the size of the septic tank. As further support for this finding, Respondent himself testified to a conversation he had with his employee during which the employee explained that he sized the septic tank at 700 gallons based on its apparent depth and Respondent admonished him that the employee knew better--i.e., knew it was necessary to measure height, width, and depth to accurately measure the size of a septic tank. Respondent also attempted to explain how his employee may have made a forgivable error in measuring the drain field. According to the Form 4015, the employee measured the drain field as a rectangular bed, 12 feet by 30 feet. Actually, the drain field consists of two trenches (one 26 feet long and the other 29 feet long), which the Department's inspector measured as being two feet wide. Respondent testified that the drain field began at a distribution box and was approximately ten feet wide within a few feet of the distribution box. Respondent testified that it would be easy to incorrectly assume that the approximate ten-foot width continued as a bed for the entire length of the drain field, as his employee apparently did. However, the greater weight of the evidence was that the employee's error was not reasonable; to the contrary, to determine the configuration and size of a drain field, it is necessary to probe the ground at more than just one distance close to the distribution box. When Respondent himself went to the site to investigate the allegations against him, he probed both near the distribution box and further away southeast of the distribution box. He testified that he found solid rock ten feet in width near the distribution box; to the southeast, his probing revealed a trench which Respondent measured at between three and a half and four feet in width. Based on those measurements, Respondent assumed two trenches approximately 30 feet long and four feet in width each, for a total of approximately 240 square feet. It is difficult to reconcile Respondent’s testimony as to the width of the southeast trench with the testimony of the Department's inspector. The Department's inspector probed approximately ten feet and 20 feet from the septic tank and found two-foot wide trenches in four different places. The Department's inspector also testified without contradiction in response to Respondent's questions on cross-examination that backhoes used at the time this drain field was installed in 1973 generally had two-foot wide excavation buckets. Based on the greater care taken by the Department's inspector in measuring the drain field, and the kind of backhoe in general use in 1973, it is found that the Department's inspector's measurements were more accurate. Even if Respondent's measurements were accurate, and the Department inspector's were inaccurate, the measurements recorded on the receipt and on Form 4015 still would have been seriously overstated. While not seriously disputing the inaccuracy of the Form 4015 submitted in this case, Respondent stated "anyone can make a mistake" and that the Department should have asked Respondent to re-check the measurements instead of issuing a citation, especially in view of Respondent's disciplinary record in 29 years in the business in Clay County. (Respondent testified that his only "issues in Tallahassee" were one incident--not fully explained--involving a cow on someone's property and another when he had someone take a re- certification examination for him at a time when his mother was ill. The Department did not controvert this testimony. As already mentioned, there was no evidence to support Respondent's initial suggestion that the Department may have taken disciplinary action against him because it erroneously thought he was another licensee.) But the Department's witness testified that issuance of the citation was appropriate and consistent with agency policy because of the magnitude of the discrepancies on the Form 4015. Respondent testified that the employee involved in this case was his stepson, who has worked for Respondent for 14 years, since he was 11 years old, seven to eight years as a full-time employee. Respondent also testified that he recently fired his stepson, but the reasons for firing him were not directly related to his conduct in this case. Respondent also testified that he felt compelled to insist on a hearing although he knew the Form 4015 was inaccurate because he perceived the Department to be acting in this case as if it had "absolute power" over him. He apparently viewed his request for a hearing as a necessary challenge to government's assertion of "absolute power" over him.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final order finding Respondent guilty as charged and imposing a fine in the amount of $500. DONE AND ENTERED this 24th day of May, 2002, in Tallahassee, Leon County, Florida. ______________________________ J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 2002. COPIES FURNISHED: Dr. John O. Agwunobi, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 John D. Lacko, Esquire Department of Health 420 Fentress Boulevard Daytona Beach, Florida 32114 Larry C. Garner 13950 Normandy Boulevard Jacksonville, Florida 32221
The Issue The issue is whether Respondent's registration as a septic tank contractor should be disciplined for the reasons set forth in the Administrative Complaint.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background In this disciplinary proceeding, Petitioner, Department of Health (Department), on behalf of the Polk County Health Department (Health Department), seeks to impose an administrative fine on, and revoke the septic tank contractor registration of, Respondent, Barbara Thompson, doing business under the name of A-1 Septic Services. Respondent currently operates a septic tank business in Lakeland, Florida, and has held her registration for approximately two and one-half years. Her most recent address is 1616 Ritter Road, Lakeland, Florida. As a registrant, she is under the regulatory authority of the Department. On November 28, 2000, the Department entered into a Settlement Agreement (Agreement) with Respondent for numerous violations of various provisions within Chapter 64E-6, Florida Administrative Code. The Agreement was approved by the Department in a Final Order dated March 5, 2001. As a condition of that Agreement, Respondent agreed that her husband, Larry Thompson, would not be employed in the management of the business; would not solicit, negotiate, contract, contact, or communicate with any customers of the business; or represent the business as agent or principal in any way. Larry Thompson's registration as a septic tank contractor had been previously revoked by a Final Order of the Department of Health and Rehabilitative Services entered on January 23, 1995. Based on complaints received from three consumers, the Health Department began an investigation of Respondent in 2001. The investigation culminated in the issuance of an Administrative Complaint on June 29, 2001, which generally alleged that in February and June 2001, Respondent was fraudulent in her dealings with three customers by recommending unneeded work on septic tank systems that were in good working order; that she violated the terms of the Agreement by allowing her husband to participate in the business; that in 1998 and 2000, Respondent conspired with her husband to fraudulently purchase three vehicles under the name of her husband's brother (and without his consent) for use in her business; and that by using one of those vehicles in her business, she unlawfully obtained her registration through fraud, misrepresentation, and concealment of material facts, and she committed gross misconduct in her profession. Respondent denies the allegations and suggests that the complaint is the result of an on-going dispute between her and local Health Department officials, who want to put her out of business. Consumer complaints On February 27, 2001, William Mauer (Mauer), who lives at 5212 Messina Road, Lakeland, Florida, contacted Respondent's firm after experiencing a problem with his septic tank system "not draining right" and "sewage backing up." Two individuals, one of whom Mauer identified at the hearing as being Larry Thompson, arrived around 4 p.m. Larry Thompson began using a probing rod around the 900-gallon tank, popped the lid, and announced that the tank "was full." The two then pumped out the tank, for which Mauer was charged $150.00. At the same time, Larry Thompson recommended that Mauer install a new drainfield and quoted a price of "around $2,800.00." By allowing Larry Thompson to solicit business, contact and communicate with customers, and represent the business, Respondent violated the terms of the Agreement. That evening, Respondent came to Mauer's house and prepared a work order for a new drainfield. Because Mrs. Mauer wished to pay by credit card, Respondent advised her that she did not accept credit cards, but she could run the transaction through her brother's business for the normal credit card processing fee which was described by the witnesses as ranging from $165.00 to $300.00. In any event, the Mauers agreed and charged the work on their credit card. Within a day or two, but after Respondent had pulled a permit for the repair job, Mauer backed out of the deal since the problems went away after the tank had been pumped out. The charge on the credit card was cancelled, and Mauer paid only for the pumping of his tank ($150.00) and the cost of a repair permit. At hearing, Maurer indicated that he was not "mad at all" about the service, and he agreed that he was "not really out of anything," since the credit card charges were cancelled. Respondent contended that when the Mauers' tank was inspected, there was sewage seeping from the lid and flowing back into the tank from the drainfield line, thus indicating a need for drainfield repairs. A subsequent inspection of the system by a Health Department official a few days after Respondent's visit revealed nothing "to indicate a bad drainfield." The representative acknowledged, however, that it was "not easy" to determine if a system was bad, and that a lack of visible signs of a problem did not mean that the system was in good working order. Even so, the lack of any further problems (after the pump-out) is a clear indication that Respondent recommended that unnecessary work be performed on the Mauers' system. On February 27, 2001, Patsy Brown, who lives in a duplex at 1014 Old South Drive, Lakeland, contacted Respondent's firm for a service call after she experienced "slow draining" in the master bathroom toilet of the second unit in the duplex. Two "young men" came out that evening around 9 p.m. One was Ricky Thompson, Respondent's brother- in-law; the other was identified at hearing as being Larry Thompson. After locating the tank, one of the two workers placed a shovel in the grass and found clear water without an odor around the drainfield. The older of the two workers (Larry Thompson) recommended that Brown replace (repair) the drainfield and quoted a price in the range of $2,400.00 to $2,700.00. Larry Thompson also instructed Ricky Thompson to pump out the tank. By allowing Larry Thompson to solicit work on her behalf, and act as a representative of the firm, Respondent contravened the terms of the Agreement. Believing that a new drainfield was needed, Brown signed a work order for $2,785.00 and gave Larry Thompson a check in the amount of $1485.00 as partial payment. At the request of Larry Thompson, Brown made out the check to Barbara Thompson, rather than A-1 Septic Tank Service. A day or so later, and after Respondent had pulled a permit for the job, Brown had second thoughts about replacing her drainfield and contacted the Health Department. A representative visited her home on March 2, 2001, and found no visible signs of a system breakdown. The representative gave Brown the names of five other septic tank companies to contact for estimates. An unnamed registrant then replaced Brown's distribution box for $238.00, which resolved all problems. While the representative acknowledged that "a failed drainfield is not always apparent," and that "[i]t's not always easy just by looking at it or telling if that's a good drainfield or not," the fact that Brown's problems were unrelated to the drainfield supports a finding that Respondent recommended that Brown have unneeded work performed on her system. After the distribution box was replaced, Brown contacted Respondent and requested a refund of her money. Because the request was made more than 3 days after she had signed the contract, Respondent took the position that no refund was warranted. Brown then filed a consumer complaint with a Tampa television station. Respondent says she offered to refund the money if Brown would withdraw her complaint with the television station, but Brown refused to do so, and the complaint ended up being aired on "national television." To date, the money has never been refunded, although Brown has never made another formal request for a refund of her money, nor has she taken legal action against Respondent to recover the money. On June 5, 2001, David Fleming, who lives with his wife, Zora, at 3319 Mt. Tabor Road, Lakeland, experienced "problems with [the toilet] flushing." Zora telephoned Respondent's firm, and Ricky Thompson and Respondent arrived later that day. After Ricky popped the lid on the tank and found a full tank, Respondent recommended that the tank be pumped out for a charge of $150.00. When around one-half of the tank was pumped, Respondent advised Fleming that the price would be $200.00 because it was so full; otherwise, she would be forced to pump the contents of the truck back into the tank. Fleming then agreed to pay Respondent $200.00 for a full pump-out, and he obtained a receipt for the payment. This fee was not unreasonable, and thus Respondent did not violate any Department rule or statute by charging that amount. Respondent also advised Fleming that he needed a new drainfield which would cost "over $2,000.00." Fleming declined to sign a contract for that service since he could not afford one. He experienced no further problems with his system after the pump-out. Respondent denies having advised Fleming that he needed a new drainfield and acknowledged at hearing that "there was nothing wrong with it." She further contended that because the house did not even have an air-conditioner, she knew that the Flemings could not afford any further repairs. This testimony is not deemed to be credible. A subsequent inspection of the tank by a Health Department official on June 8, 2001, revealed that there were no "obvious signs of failure the day [he] was out there." The system continues to function normally to this day. Purchase of vehicles The record is somewhat confusing regarding the vehicles owned and used by Respondent and registered with the Department. Under Rule 64E-6.010(2)(a), Florida Administrative Code, a registrant must make application for a service permit with the Health Department each year and provide evidence that he or she "possesses adequate equipment . . . necessary to perform the work intended." At hearing, Respondent stated that she currently has three trucks, two of which (a Chevrolet and a Ford) are now registered with the Health Department, but only one of which (the Chevrolet Kodiac) is actually used in the business. As discussed in greater detail below, the Chevrolet Kodiac was purchased from Bartow Chevrolet Company, Inc. The second vehicle (either a Ford or another undisclosed make and model) is one she has "had for several years" that was purchased from an individual named Howard Nieft (the father- in-law of Ricky Thompson); however, the title still remains in Nieft's name. The third vehicle (an unknown make and model consisting of a cab and chassis only with a blown motor) is "one that [she is] putting together" that was purchased around a year ago in Zephyrhills from a person whose name she cannot recall. Like the second vehicle, Respondent says the "title work [on the third vehicle] has not been transferred yet," because she cannot "get hold of the owner" to sign an affidavit to transfer the title. However, Respondent also indicated that the third vehicle which she is "putting together" is titled in the name of her niece, Christina Wood. The conflicting testimony regarding the ownership of the third vehicle was never clarified by the parties. In August 1998, an individual who identified himself as Ray M. Thompson ("Ray"), approached Mark Pike (Pike), a commercial salesman with Bartow Chevrolet Company, Inc., for the purpose of purchasing a medium duty truck for his septic tank business. "Ray" gave a local address of 1400 Spivey Road, Lakeland, Florida. "Ray" eventually agreed to purchase (and finance through the dealership) a 1998 Chevrolet Kodiac truck on September 10, 1998, for approximately $35,000.00. In the course of the transaction, Pike requested a driver's license and insurance card from "Ray" to verify his identity. "Ray" gave Pike a North Carolina driver's license issued on August 18, 1997, to Ray M. Thompson. The Chevrolet Kodiac was later titled by the State to Ray M. Thompson. Ray M. Thompson is the brother of Larry Thompson, and the brother-in-law of Respondent. At the hearing, Pike identified Larry Thompson as the person who actually purchased the vehicle in September 1998 and used the name and identification of Ray M. Thompson. At hearing, the real Ray Thompson denied that he had purchased the vehicle, and after learning about the transaction, he filed paperwork with the Department of Highway Safety and Motor Vehicles (DHSMV) cancelling his name on the registration of the vehicle. The same vehicle is now being used by Respondent in her business. Although a "blond-haired lady" was with "Ray" when he signed the paperwork to purchase the truck, and Respondent has that color of hair, Pike could not identify Respondent as being that person. Therefore, it is found that there is less than clear and convincing evidence that Respondent participated in the transaction or conspired with her husband to deceive the dealership or her brother-in-law. On September 27, 2000, an individual who identified himself as Ray M. Thompson ("Ray") visited Bartow Ford Company and spoke with Gregory Wade, a salesman, about the purchase of a new Ford F350 pickup truck for his septic tank business. "Ray" was accompanied by an unidentified female and gave an address of 1616 Ritter Road, Lakeland, Florida, the address of the mother of Ray and Larry Thompson, as well as Respondent and her husband. The same day, "Ray" traded in a 1999 Dodge Durango on a new 2001 F350 Ford pickup truck for approximately $41,000.00, less the net value of the trade-in. During the course of the transaction, "Ray" produced an out-of-state driver's license identifying himself as Ray M. Thompson, and an insurance identification card bearing the same name. At the hearing, although both Respondent and her husband were in the hearing room, Wade was unable to identify either one as the individuals who participated in the transaction on September 27, 2000. The vehicle was later titled by the State to Ray M. Thompson. After learning about the transaction, the real Ray M. Thompson filed paperwork with the DHSMV to cancel the registration. Given these circumstances, there is less than clear and convincing evidence that Respondent conspired with her husband to fraudulently purchase the vehicle under the name of her husband's brother, as alleged in Count VI of the complaint. Count V of the complaint also alleges that "sometime during 1998" Respondent conspired with her husband to "fraudulently purchase a pick-up truck, a Dodge Durango, from Bartow Chevrolet [Company, Inc.] under the name of Ray Thompson and without his permission." Except for the evidence which shows that a Dodge Durango was traded in on the Ford F350 truck in September 2000, as noted in Finding of Fact 21, there is no other evidence to support this allegation. Violation of Agreement At hearing, Larry Thompson maintained that after the Agreement was executed in November 2000, he has limited his participation with his wife's business to merely gassing up vehicles and performing maintenance work on the firm's vehicles, when necessary. He denies being employed by his wife or having any contact with customers. In addition, Ricky Thompson, Larry's brother, also denied that Larry Thompson ever accompanied him on service calls. However, the more credible evidence, as detailed in Findings of Fact 4 and 8, is that Larry Thompson performed work for his wife on two occasions in violation of the Agreement. Obtaining Registration by Fraudulent Means Count IV of the complaint alleges that by continuing to use the 1998 Kodiac truck in her business without the permission of the real Ray Thompson, Respondent "falsely indicated and represented to the Department that [she] had means, ability and equipment necessary for the operation of [her] business," that she obtained her registration through fraud or misrepresentation, concealment of material facts, and she committed gross misconduct in the pursuit of her profession. In this regard, Respondent's application for registration, date of licensure, and annual application for a service permit are not of record. While Respondent admitted that she is using the Kodiac in her business, there is less than clear and convincing evidence in the record to support this allegation. This is especially true since there was no evidence that a registrant must own (or have titled in his or her name) every vehicle used in the contracting business, or that Respondent did not have the financial means, ability, or equipment to engage in the business.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final order imposing a $500.00 fine and revoking Respondent's registration as a septic tank contractor. DONE AND ENTERED this 5th day of February, 2002, in Tallahassee, Leon County, Florida. ___________________________________ DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (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 5th day of February, 2002. COPIES FURNISHED: Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703 Roland Reis, Esquire Polk County Health Department Department of Health 1290 Golfview Avenue, Fourth Floor Bartow, Florida 33830-6740 Jack T. Edmund, Esquire 1125 East Main Street Bartow, Florida 33830-5004
The Issue The issue in this case is whether Petitioner failed to obtain a permit for abandoning an on-site sewage treatment and disposal system septic tank, and failed to notify Respondent so that Respondent could inspect the system prior to abandonment, in violation of Section 386.0065, Florida Statutes (1997), and, if so, whether Petitioner should pay a $500 fine. (All Chapter and Section references are to Florida Statutes (1997) unless otherwise stated.)
Findings Of Fact Respondent is the state agency responsible for issuing citations under Chapter 386 and is the licensing authority for Petitioner. The Osceola County Health Department (the "Department") is an agency of Respondent. All Pro Services ("All Pro") practices septic tank contracting in Osceola, Orange, and Seminole counties. All Pro is a Florida corporation wholly-owned by Mr. Wayne H. Crotty. Mr. Crotty is licensed in the state as a septic contractor pursuant to Chapter 386. Mr. Crotty has been in the septic tank business for over 25 years. He has extensive experience in septic tank repair and contracting. Mr. Crotty also has had experience in the rule-making process conducted by Respondent pursuant to Florida Administrative Code Chapter 10D-6. He has participated in various committees and held offices in the Florida Septic Tank Association. (Unless otherwise stated, all references to rules are to rules promulgated in the Florida Administrative Code in effect on the date of this Recommended Order.) In the summer of 1996, Petitioner submitted an application to the Department for a repair permit. Petitioner sought to install a standard drainfield utilizing gravity fall from the existing septic tank of a mobile home owner who used the mobile home facility as a day-care center. The existing drainfield was antiquated, clogged, and had ceased disposing effluent properly. Petitioner made arrangements for the day-care center to refrain from using water or sewage for a period of hours so that the drainfield could be repaired. The application came to the attention of Mr. Thomas Franklin Wolf, Director of the Department's Environmental Health Section. Mr. Wolf did not accept the site evaluation in the application. He chose to perform his own evaluation of the repair site. When Mr. Wolf performed a site evaluation, he placed the seasonal high water table two inches higher than the high water table stated by Petitioner in the application for a repair permit. As a result, Mr. Wolf issued the permit at an elevation that would have required either the use of a pump system or elevated plumbing lines in the existing septic tank to meet the higher elevation deemed necessary by Mr. Wolf. The higher elevation established in the permit could be accommodated in either of two ways. The plumbing underneath the mobile home, along with the septic tank, could be raised. Alternatively, a new pump, and other equipment meeting the requirements of Chapter 10D-6, could be installed. The repair permit issued by Mr. Wolf contemplated the use of a new pump chamber complete with alarm. Pumps fail, are problematic, and are expensive. A conventional gravity-fed drainfield line is preferable, whenever feasible, to the use of a pump chamber system and is less expensive. Petitioner determined that the plumbing and septic tank could be elevated to meet the higher elevation requirements thereby avoiding the need for a pump system and its increased cost. This lower-cost alternative satisfied the requirements of Chapter 10D-6 for a septic tank drainfield. Based on past experience, Mr. Crotty believed he could obtain the Department's approval of this alternative to the pump chamber requirements of the permit. The Department had no objection to an alternative that achieved the higher elevation requirement with a gravity-fed system. One risk associated with Petitioner's alternative was that the existing septic tank might not withstand the rigors of being excavated and raised and could break during the repair process. After conferring with the homeowner about the matter, Petitioner proceeded to elevate the existing plumbing lines and septic tank. Petitioner began excavation and removed the lid from the existing septic tank. Petitioner then determined that it would not be feasible to lift the tank up and reinstall it at the higher elevation due to the age and style of the tank. Petitioner determined that the best way to proceed was to abandon the old tank and to install a new tank at the higher elevation. Petitioner replaced the existing septic tank without obtaining a separate abandonment permit. Petitioner did not need a separate abandonment permit. The repair permit was inclusive of the abandonment of the existing tank. In a previous repair effort for another customer, Petitioner broke the existing septic tank while attempting to elevate the tank to a higher location. The prior incident led to a disagreement between Petitioner and the Department over whether a separate abandonment permit was required for replacing a tank in the course of a repair. Petitioner wrote a certified letter to the Department and Department's counsel memorializing an understanding reached during discussions with Department representatives. Any requirement for a separate abandonment permit in the course of a repair was tabled pending further review by the state health office in Tallahassee. The letter further stated Petitioner's understanding that under Chapter 10D-65, the replacement of an existing tank was provided for through a repair permit, and that no separate abandonment permit is necessary for an abandonment which occurs in conjunction with a repair effort. The letter was received by Mr. Wolf on behalf of the Department. In response, the Department specifically informed Petitioner that the replacement of an existing tank is provided for through the repair permit. Mr. Wolf never retracted this position in his dealings with Petitioner. At about the same time, the state health office, through its acting Health Officer for Environmental Health, issued an interoffice memorandum advising every district administrator in the state that a separate abandonment permit is not required when an existing tank is abandoned during repair. The interoffice memorandum stated, in relevant part: This addresses permitting procedures when a septic tank is abandoned in conjunction with a system repair. Since the repair and tank abandonment inspections can be conducted at the same time, a separate permit and fee is not required if a tank is abandoned in conjunction with a repair permit. The repair permit should specify the abandonment requirements from s. 10D-6.053, F.A.C., and the requirements to have the abandonment inspected. If an additional inspection visit is required for either the repair or abandonment, the unit should charge the $25.00 re-inspection fee. Respondent's memorandum served as the Department's official interpretation of its rules relating to abandonment procedures. The memorandum made a separate abandonment permit unnecessary because the repair permit "is inclusive of the abandonment if the abandonment is necessary." The repair permit in this case suffices as an abandonment permit. Petitioner relied upon the representations of Mr. Wolf personally as well as the Department memorandum of February 18, 1996. Based upon Department policy, Petitioner was not required to amend its permit application to seek specific approval for abandonment of the existing tank, because the tank was being abandoned in conjunction with a repair permit. Petitioner pumped out, ruptured, and demolished the old septic tank with the exception of the inlet end wall and the sidewall closest to the tank. Petitioner left intact the latter portions of the old septic tank for inspection purposes and for stabilization. Petitioner placed the lids and the broken pieces of concrete from the tank alongside the new septic tank that was installed. Mr. Crotty requested an inspection by the Department. Inspector Garner arrived on the scene with a standard probe. The probe is a tool useful for inspecting on-site sewage disposal systems. Mr. Crotty informed Mr. Garner that Petitioner had abandoned the old tank and replaced it with a new one. Mr. Crotty took Mr. Garner over to the site and specifically pointed out the remaining sidewall of the old tank and the lids piled up on-site and remaining from the old tank. Mr. Garner inspected the repairs and satisfied himself that Petitioner had installed a new septic tank in the place of the old tank and had done it in a way that would allow gravity feeding to the new drainfield. The repairs dispensed with the need for a pump and were accomplished at a lower cost to the customer. After the inspection on August 13, 1998, and a subsequent review on August 14, Inspector Garner approved the installation by Petitioner. The approval specifically approved the use of a gravity-fed line rather than the use of the pump contemplated in the permit. The approval constituted the "construction final" approval for the septic system that was repaired. Rule 10D-6 does not specify when the inspection for an abandonment of a septic tank in conjunction with a repair is to occur. Nor does it say anything about requesting an inspection before the tank is filled with sand or other suitable material and covered. It was Inspector Garner's practice, and the unwritten policy of the Department, to conduct inspections of damaged septic tanks at the same time the Department inspected repair constructions. The practice of the Department in such an inspection was to inspect the abandoned tank after it had been pumped and the bottom ruptured, but before a new tank was installed. According to Department practice, the inspection of an abandonment in conjunction with a repair must determine that the tank had been pumped and that the bottom of the tank had been opened or ruptured or collapsed to prevent the tank from retaining water. The inspection can only occur after the tank has been pumped out, opened, ruptured or collapsed. Inspector Garner arrived for the inspection after abandonment of the old tank. Mr. Garner does not dispute that Petitioner abandoned the old tank, but maintains that the abandonment was accomplished without proper notification to the Department. Mr. Garner approved the construction, but recorded x- marks on the approval form adjacent to a box for abandonments and next to "tank pumped" and "tank flushed and filled." Mr. Garner also recorded on the form under "explanation of violations" a notation that the old septic tank "was abandoned without any inspection of [sic] verification." The promulgated rules of the Department and Respondent do not require an inspection before an abandoned tank is filled with sand, or other suitable material, and covered. It was the Department's unwritten policy, evidenced by its practice, to insist that inspection of the abandoned septic tank occurred before the tank is actually crushed. The promulgated rules of Seminole and Orange counties do not require inspection prior to abandonment of an existing tank. The unwritten policies of Seminole and Orange counties deviate from those of the Department. The Seminole County Health Department ("Seminole") also received the Department's interpretive memorandum regarding abandonment of septic tanks in conjunction with repairs. Seminole concluded that abandonment inspections should be conducted simultaneously with the final inspection for repairs. At that point, the old septic tank is already ruptured and filled with sand. Seminole adopted the practice of inspecting abandoned septic systems with a probe to verify the pump-out and the rupturing of the old tank. It is the same type probe used by Mr. Garner and the Department. The probe allows a department employee to verify all of the requirements of Rule 10D-6.053 for abandonment. The Orange County Health Department ("Orange County") also received the interpretive memorandum concerning abandonment of septic tanks in the course of repair procedures. By the time the memo was received, however, it was already the practice of Orange County not to require a separate abandonment permit for an abandonment as part of a repair. In Orange County, inspectors permitted abandonment inspections to occur at the point where the tank was already collapsed and covered with sand. The inspection was accomplished with the use of a probe.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent enter a final order finding Petitioner not guilty of the allegations against it and dismissing the citations. DONE AND ENTERED this 24th day of November, 1998, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 24th day of November, 1998. COPIES FURNISHED: Marya Reynolds Latson Marion County Health Department Post Office Box 2408 Ocala, Florida 34478-2408 Stephen D. Milbrath, Esquire Allen, Dyer, Doppelt, Milbrath and Gilchrist, P.A. Post Office Box 3791 Orlando, Florida 32802-3791 Dr. James Howell, Secretary Department of Health 1317 Winewood Boulevard Building 6, Room 306 Tallahassee, Florida 32399-0700 Pete Peterson Department of Health 2020 Capital Circle, Southeast Bin A 02 Tallahassee, Florida 32399-1703
Findings Of Fact Franklin T. and Barbara Snow acquired the NE corner of the S-1/2 of the SE-1/4 of Government Lot 3 in Section 14, Township 19 South, Range 16 East near Ozello in Citrus County. This property was acquired by Petitioner at a public sale by the U.S. Government who had acquired the property in a tax delinquency proceeding. Petitioner purchased the property to use as a homesite for a doublewide prefabricated home he desired to place on the property. Before a building permit will be issued by Citrus County, Petitioner is required to have access to water and to sewage disposal facilities. No central sewage treatment facility serves this area and other developed lots in the vicinity use septic tanks. Petitioner's application for a septic tank permit was denied by the Citrus County Health Department because there was an insufficient buffer zone between the proposed drain field and surface water. Section 381.272, Florida Statutes, provides onsite sewage disposal systems shall be placed no closer than 75 feet from surface waters. Because the lot owned .by Petitioner was platted prior to 1972, the minimum setback for this property is 50 feet from surface waters. Petitioner appealed to the Review Group for Individual Sewage Disposal, DHRS, for a waiver from this setback requirement. By letter dated March 9, 1984, Petitioner was advised that his request for variance was denied. Following discussions with Citrus County Health Department officials who issue septic tank permits, on May 11, 1984, Petitioner applied to DER for a dredge and fill permit to place some 750 cubic yards of fill into a wetland area on Petitioner's property to provide a sufficient buffer or setback zone for a proposed septic tank and drain field installation. The subject property is located at the northeast corner of a marsh approximately 1,200 feet from the open waters but within the landward extent of the St. Martins River. The marsh area consists principally of black rush and salt grass and is interlaced with small tidal creeks which flow into the two adjacent canals or into St. Martins River. Petitioner's property contains an upland parcel approximately 50 feet in width between existing canals which resulted from dredging these canals. The "upland" configuration was larger at one time than its present configuration, but was reduced to its present size through enforcement action by environmental agencies. The area which Petitioner seeks to fill had fill removed therefrom in these enforcement proceedings. The waters surrounding and including the project site are classified as Class III waters. Soil borings taken at the site shows the salt marsh underlain by 8 to 12 inches of sand, which overlays an organic mat of decaying anerobic black rush. Beneath this organic layer is limerock. Petitioner's application for a permit to fill this property was denied by Respondent because of the proposed septic tank installation. Respondent suggested chemical sewage disposal systems could be used at this site; however, the only witness qualifying as an expert in waste disposal facilities is familiar with other waste disposal systems and testified none of those systems can be used at this site. Before a building permit will be granted, household water supply is required and treatment of this water after use for bathing, washing, etc., will still be necessary and this treatment cannot be accomplished in a chemical system. Septic tank systems are regulated by DHRS and applications therefor are approved by DHRS specialists at the county health department level. The property here involved is within the 10-year flood plain and in order to obtain septic tank approval the site must be elevated above that plain. Here, that is 4.9 feet above sea level. The site is 3.5 feet above sea level. The bottom of the drain field is required to be 24 inches above the water table. If the fill permit is granted and approximately three feet of fill is placed over the 4,500 square feet, this will raise the property sufficiently so it will not be subject to tidal action and will provide a buffer zone sufficient to allow Citrus County to issue a septic tank permit. One objection raised by DER is that filling the area over existing vegetation will create another organic mat of decaying vegetation which will leach laterally into adjacent surface waters where it will contribute nutrients and exert an oxygen demand on the water column. Citrus County Health Department has authority to require the existing detritius be removed before new fill is applied and to require the perimeter of the fill area to be constructed with clayey soils to inhibit leachate escaping from the site. Removal of salt grass would precede removal of the decaying vegetation under the 8 to 12 inches of sand and leave nothing to add to the nutrient level of adjacent surface waters or impose an oxygen demand on the water column. The black rush and salt grass which presently dominate the proposed fill site perform a significant water quality function in trapping sediments, filtering runoff and assimilating nutrients. The presence of adjacent canals increases the value of this function. The proposed fill site also functions as a productive habitat for numerous aquatic species which comprise a portion of the estuarine food chain and ecosystem. More than a dozen aquatic organisms were turned up by a singe scoop of a dip net in an area nearly in the center of the proposed fill site. Leaving the site in its present condition creates a public benefit to the State. Adding fill to the area as requested will allow the site to comply with the regulations for septic tank installation. The U.S. Army Corps of Engineers will issue a federal dredge and fill permit to Petitioner if this application is granted. Therefore, the granting of this application for a dredge and fill permit will allow Petitioner to use the property he purchased for a home site. Respondent called one witness who qualified as an expert in the field of public health microbiology. This witness testified that studies have shown dead end canals and septic tank leachate to be significant contributors to high fecal coliform densities in adjacent waters. This witness opined that the statutory buffer zone is inadequate to prevent violations of Class III water standards in adjacent surface waters from such sources. Proposed finding No. 16, while not technically incorrect, is misleading. Bradley did represent that a buffer zone whose perimeter is composed of clay will keep leachate from escaping the site; that if a 50-foot setback could be maintained from surface waters, the county would grant the permit; and he believed the fill permit should be granted.
The Issue The issue in this case is whether the Department should grant and approve Petitioner’s application as a septic tank contractor.
Findings Of Fact The Department of Health is the agency responsible for the registration of septic tank contractors and the authorization of septic tank companies. The Department of Health enforces the statutes and rules pertaining to the registration and authorization of septic tank contractors and septic tank companies pursuant to Chapters 381 and 489, Part 3, Florida Statutes, and Rule 10D-6, Florida Administrative Code. The Petitioner, Gerald D. Thompson, applied to the Department of Health to be a registered septic tank contractor. The Department received his application on July 3, 1996. The Petitioner’s application indicates that he had been convicted of a crime related to septic tank contracting and had had an enforcement action taken against him. The attachment to the application reflected that both events had occurred to the Petitioner. The Petitioner had been adjudged guilty, in Flagler County Circuit Court, on January 18, 1997, of the attempted felony littering by disposing of domestic sewage on private property in an area not permitted for such use. Petitioner’s previous septic tank contracting registration had been revoked for two (2) years in a settlement agreement between the Petitioner and the Department of Health and Rehabilitative Services. The revocation was effective June 1, 1994. The Settlement Agreement stipulated that the Petitioner could reapply for registration as a septic tank contractor upon the expiration of the two (2) years stipulated in the agreement under the rules in effect at the time of the new application. The Settlement Agreement was signed by Petitioner and by Petitioner’s counsel. On September 6, 1996, the Petitioner issued its denial of the Petitioner’s instant application on the grounds that he failed to meet the qualifications listed in Rule 10D- 6.072(3)(d)(e)(f), Florida Administrative Code. It is uncontroverted that the Petitioner had his prior registration as a septic tank contractor revoked and that he was adjusted guilty of attempted felony littering in a case-related septic tank contracting.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Petitioner’s application for registration as a septic tank contractor be denied because he was convicted of a crime involving contracting and his license had been revoked within five (5) years prior to his application. DONE AND ENTERED this 17th day of November, 1997, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Jerry D. Thompson 500 Walker Street Holly Hill, Florida 32117 Charlene Petersen, Esquire Chief Legal Counsel Department of Health 420 Fentress Boulevard Daytona Beach, Florida 32114 Angela T. Hall, Agency Clerk Department of Health 1317 Winewood Boulevard Building 6 STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 17th day of November, 1997. Tallahassee, Florida 32399-0700 Dr. James Howell, Secretary Department of Health 1317 Winewood Boulevard Building 6, Room 306 Tallahassee, Florida 32399-0700 Pete Peterson, Esquire Department of Health 1317 Winewood Boulevard Building 6, Room 102E Tallahassee, Florida 32399-0700
