00-001713 Telisa S. Gomez vs. Department Of Health, Division Of Environmental Health Status: Closed Recommended Order on Thursday, October 19, 2000.

Summary: Department established evidence that Petitioner installed, in grossly negligent/incompetent manner, a drainfield resulting in monetary harm to customer, and installed or repaired on-site sewage treatment system in violation of statutory standards.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TELISA S. GOMEZ, )

)

Petitioner, )

)

vs. ) Case No. 00-1713

)

DEPARTMENT OF HEALTH, DIVISION )

OF ENVIRONMENTAL HEALTH, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a Section 120.57(1) formal hearing was

held in this case on September 19, 2000, in Fort Lauderdale,

Florida, before Florence Snyder Rivas, a duly-designated

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES :

For Petitioner: Judith C. Elfont, Esquire

Department of Health

2421-A Southwest Sixth Avenue

Fort Lauderdale, Florida 33315-2613

For Respondent: William E. Stacey, Jr., Esquire

320 Southeast 9th Street

Post Office Box 460053

Fort Lauderdale, Florida 33346

STATEMENT OF THE ISSUE

Is Petitioner guilty of violations of Rule 64E-6.022(1)(p),

Florida Administrative Code, improper installation or repair of

on-site sewage disposal system, and Rule 64E-6.022(1)(l), Florida

Administrative Code, gross negligence and incompetence which

causes monetary harm to a customer as charged in the Citation for

Violation dated April 4, 2000, and if so, what penalty should be

imposed.

PRELIMINARY STATEMENT

On April 4, 2000, the Department of Health ("Department"),

issued a Citation for Violation against Petitioner, a Florida-

registered septic tank contractor, alleging that Petitioner had

improperly installed or repaired an on-site sewage treatment and

disposal system in violation of Section 381.0065, Florida

Statutes, and Rule 64E-6.022(1)(p), Florida Administrative Code,

and that Petitioner's gross negligence, incompetence, or

misconduct caused her customer monetary harm in violation of Rule

64E-6.022(1)(l), Florida Administrative Code. Petitioner contends

that she performed her contract for installation of a drainage

system pursuant to appropriate Department permits and inspections,

and any failure of her work was entirely the fault of her

customer. Upon a timely request by Petitioner, the Department

referred the matter to the Division of Administrative Hearings

("Division") for the assignment of a Division Administrative Law

Judge to conduct a Section 120.57(1) hearing.

At the commencement of the final hearing, the undersigned

granted the unopposed ore tenus motions of the Department to

declare Telisa Gomez and Jack Dunn adverse witnesses and to take

compulsory judicial notice of all law cited in the Citation for

Violation and in the Respondent's Unilateral Response to

Prehearing Order.

In addition, the Department moved, ore tenus , in limine to

preclude introduction of testimony not directly pertinent to the

matters alleged in the Administrative Complaint. The motion was

denied without prejudice to the Department to make specific

objections to irrelevant evidence and testimony at such time(s) as

Petitioner sought to introduce such evidence or testimony.

The Department also sought and received a stipulation from

the Petitioner that the Composite (photographic) Exhibit 7

accurately represented that a drainfield ("the preexisting

drainfield") already existed directly underneath the drainfield

installed by Petitioner which is the subject of this action.

Based upon that stipulation, the Department moved ore tenus for

summary judgment, which motion was denied.

Petitioner also moved ore tenus for summary judgment,

contending that Rule 64E-6.015(7), Florida Administrative Code,

requires entry of judgment for Petitioner. This motion was also

denied, and the hearing proceeded.

By agreement of the parties, the Department, which bears the

burden of proof by clear and convincing evidence, presented its

case-in-chief first.

The Department presented the testimony of the Petitioner

Telisa Gomez, Cheryl Sadar, Clifford Iacino, Sandy Pagel, Kelly

Sadar, Gerald F. Timmons, Ewa Leczynski, and Anthony Johnson. In

addition, the Department tendered Jay Morgenstern, Douglas Gary

Everson, and John Charles Heber as expert witnesses, and they were

accepted as such, without objection.

In addition to Petitioner, Clyde Ray Fultz and John M. "Jack"

Dunn (qualified as an expert without objection) testified on

behalf of Petitioner.

The Department tendered Exhibits 1-11, 13, 15, and 17, which

were received in evidence without objection. Exhibit 8 was

received as a joint exhibit. The Petitioner offered Composite

Exhibit 18 which was received in evidence without objection.

At the conclusion of the evidentiary portion of the hearing,

the undersigned, on the record, inquired as to whether the parties

wished to make closing statements. Counsel for both sides

indicated that they would reserve closing argument for inclusion

or contemporaneous submission with their proposed recommended

orders, and further advised that they had elected not to furnish a

transcript of the proceedings.

At the request of counsel for Petitioner, the undersigned

agreed to extend the deadline for the filing of proposed

recommended orders to 15 days from the date of the hearing

(October 4, 2000).

Both parties made timely post-hearing submissions, and these

have been carefully considered by the undersigned in the

preparation of this Recommended Order.

FINDINGS OF FACT

Based upon the evidence adduced at hearing and the record as

a whole, the following findings of fact are made:

1. Pursuant to Section 381.0065, Florida Statutes, the

Department has the authority and jurisdiction to regulate the

construction, installation, modification, abandonment or repair of

on-site sewage treatment and disposal systems (used

interchangeably with "septic tank" or "drainfield" throughout this

Recommended Order).

2. Septic tank repairs may be made only by individuals who

have qualified with and are licensed by the Department and subject

to the standards of ethics and competence established by

Department rules. See , Section 489.553(3), Florida Statutes

(1999).

3. At all times material to this action, Petitioner has been

registered with the Department as a septic tank contractor and

serves as Vice President of Sales for Allstate Septic Tank Company

(Allstate).

4. Allstate is owned by Jack Dunn ( Dunn).

5. Petitioner has been employed by Allstate since 1982.

6. At the time Petitioner commenced her employment with

Allstate, the company was owned by an individual who sold the

business to Dunn in 1995.

7. From 1982 to 1995 when Dunn acquired the business,

Petitioner worked as Allstate's office manager.

8. Dunn, not Petitioner, has final authority over how

Allstate's work is performed and what accommodations, if any, will

be made with dissatisfied customers or with regulatory

authorities.

9. At all times material to this case, Cheryl and Kelly

Sadar (Owners) owned and resided in a home at 1770 SW 30th Place,

Ft. Lauderdale.

10. Like the other homes in this neighborhood, Owners'

property relied upon an on-site drainage and sewage system.

11. The drainfield at the Owners' property had been replaced

in 1988 and had operated without problem until December 1998.

12. In December 1998, Cheryl Sadar called Allstate and asked

the Company to "check out" odors coming from the grass lawn on

Owners' property.

13. Pursuant to that request, Petitioner and Dunn visited

the Owners' property.

14. In January, 1999 , Allstate pumped the Owners' septic

tank and told Mrs. Sadar that if the pumping did not work, it

would be necessary to replace the existing drainfield.

15. Pumping did not work and in March 1999, the Owners

authorized Allstate to replace the existing drainfield with a new

drainfield system.

16. Petitioner and Dunn differ from the Owners in their

testimony regarding what, if any, requirements Allstate sought to

impose upon the Owners in order to assure that the drainfield to

be installed by Allstate would work properly, and what, if any,

limits the Owners placed upon Allstate's ability to exercise

professional judgment as to where the drainfield should be

installed.

17. For example, Petitioner claims that Owners forbade

Allstate the use of the eastern border of Owners' property because

they wanted to store a boat there. Department witnesses deny that

Owners ever sought to impose such a restriction.

18. The parties also disagree as to the significance of

certain restrictions which the parties agree were in fact imposed.

For instance, there is no dispute that Owners were unwilling to

cut down a favorite oak tree, despite Allstate's recommendation

that they do so. But the parties differ in their recollection of

what, if anything, was said to Owners about the impact of that

decision upon Petitioner's ability to deliver a working

drainfield.

19. The factual disputes regarding limitations allegedly

placed upon Petitioner by Owners are resolved in favor of the

Department. Having considered the demeanor of the witnesses

during their testimony, together with all of the facts and

circumstances surrounding the dealings of the witnesses, the

undersigned concludes that Owners placed no restrictions upon

Allstate in the performance of its contract, save the requirement

that the favorite oak tree be left standing. In that instance,

the undersigned concludes that the Owners testified truthfully

that Allstate informed them that the new drainfield may need to be

replaced as soon as a decade after its installation if the oak

tree remained, and Owners accepted that particular risk. There

was undisputed testimony that other homes in the Owners'

neighborhood have drainfields adjacent to mature oak trees, and

that proximity has never been known to cause a drainfield failure

within months of installation. It is not believable that Owners

allowed Allstate to install a drainfield with knowledge that

Allstate expected the system to fail within months if the oak tree

was not removed.

20. Similarly, there was no evidence, save for the testimony

of Petitioner and Dunn, that Owners ever owned a boat, or had

plans to buy one. Indeed, Gerald Timmons, who replaced the failed

Allstate drainfield with a system which was operating without

problems through the date of the hearing, testified that Owners

made no attempt to restrict the location of the drainfield, and

that he in fact installed his system over the eastern border of

the property where Petitioner claimed Owners had denied access.

21. By contract dated March 1, 1999 (Composite Exhibit 17,

"the contract"). Allstate undertook to provide a new drainfield

to Owners for the price of $2,300.00.

22. Pursuant to the contract, Petitioner undertook to

provide the Department with information required to secure

necessary Department permits.

23. In the permit application, Petitioner misrepresented the

condition of the ground below the drainfield as having suitable

soil conditions for the proposed work.

24. In fact, the opposite was true. The presence of the

pre-existing drainfield rendered the site unsuitable and indeed,

doomed to fail.

25. The site evaluation provided by Petitioner represented

an adequate amount of sand in the drainfield area and an observed

water table depth of 48 inches below the existing grade.

Unrebutted expert testimony demonstrates that these

representations could not possibly have been true, due to the

presence of the pre-existing drainfield which Petitioner failed to

excavate prior to installing a new system directly on top of the

pre-existing drainfield.

26. Petitioner testified that she personally probed five

feet down the center of the area where the Allstate drainfield was

to be placed but found no sign of the pre-existing drainfield

which was there.

27. This testimony is belied by the more credible the

testimony of the Department's experts, who agreed that if

Petitioner's account of her probe were accurate, the pre-existing

drainfield would necessarily have been discovered.

28. Petitioner's permit application inaccurately represented

the amount of available space for the installation of a drainfield

as being limited to 375 square feet.

29. In fact, the owners' property would accommodate a 523

square foot drainfield.

30. The separation between the bottom of the Allstate

drainfield system and the water table depth required for the

competent installation of a drainfield was not met by Petitioner.

31. The parties expended a great deal of time establishing

the hard feelings between Owners and Allstate and between

Department officials and Allstate, particularly its owner Dunn.

Witnesses aligned with both sides testified at length to various

incidents of boorish behavior by Allstate employees and by the

Owners.

32. Similarly, there appears to be a history of distrust

between at least some Department officials and Dunn, which was

exacerbated between November 1999 and March 2000, when the efforts

by the Department to mediate the dispute between Allstate and

Owners were unsuccessful.

33. Unquestionably, relations between Allstate and Owners

deteriorated rapidly upon the failure of the drainfield, but the

various exchanges of angry words and the Department's unsuccessful

effort to persuade Allstate to partially compensate Owners have no

relevance to the question of whether Petitioner did or did not

commit the violations alleged in the Administrative Complaint, and

have not been considered by the undersigned in resolving those

issues.

34. In this case, Allstate did not provide Owners with a

written guarantee of its work, and there is no legal requirement

that it do so.

35. Neither did Allstate provide Owners with any written

disclaimers or instructions for using the system or warnings that

certain types of activities would cause the system to fail.

36. Allstate company policy permits the installation of

drainfield systems even in cases where Allstate believes the

system is not likely to work.

37. The Petitioner's installation was completed in March

1999 and Owners paid Allstate the $2,300.00 contract price.

38. Beginning in the fall of 1999, Owners began to

experience problems with the Petitioner's drainfield.

39. Owners contacted Allstate, which rejected Owners'

request that it take corrective action.

40. Owners also contacted the Department, which made efforts

to mediate between Owners and Allstate.

41. The evidence is inconclusive as to why the Department's

mediation efforts failed.

42. At one point, Allstate seemed agreeable to making a

partial refund to Owners, but later Dunn changed his mind.

However, Allstate and Petitioner have always asserted that the

failure of the drainfield was entirely the fault of the Owners.

43. Indeed, throughout the history of Allstate's dealings

with Owners, throughout the final hearing and in Petitioner's

proposed Recommended Order, Petitioner has offered a variety of

theories as to why her work failed. One suggestion was that the

use of a lawnmower contributed to the drainfield's failure.

Petitioner also insisted that Owners used too much water, causing

hydraulic overload and precipitating the failure of Petitioner's

system. Petitioner asserts that Owners' water usage increased by

8.85 percent from March 1999 when Petitioner's system was

installed to November 1999, when the system began to fail. And in

its Proposed Recommended Order, Petitioner asks for the first time

that the undersigned take judicial notice that on

October 19, 1999, Hurricane Irene "swept through the Fort

Lauderdale area", leaving substantial rainfall-related damage in

its wake; however, no evidence was offered linking the rains of

Hurricane Irene to Owners' drainfield failure.

44. The unanimous weight of expert opinion, save that of

Allstate's owner Dunn, is that the various theories advanced by

Petitioner as reasons for the failure of her work--singly or in

combination--are insufficient to explain the sequence of events at

the Owners' property as it relates to the problems they

experienced with the Allstate drainfield system.

45. By March 2000, it was clear that the Allstate-installed

drainfield had failed. Jerry's Septic Tank Service and its owner,

Gerald Timmons, were engaged by the Owners to evaluate the

situation and make necessary repairs.

46. A repair permit was issued to Jerry's by Department on

March 13, 2000, and work was commenced.

47. Almost immediately it became apparent that an old

drainfield was located immediately beneath the Petitioner's

drainfield.

48. Jerry Timmons immediately called Owners to notify them

of this finding.

49. Owners, in turn, called Department official Jay

Morgenstern to advise of Timmons' discovery.

50. Allstate was also informed of the discovery of the

preexisting drainfield.

51. Petitioner and Dunn each conversed with Jerry Timmons

about the pre-existing drainfield adjacent to the Allstate

drainfield.

52. At all times after Allstate was notified of the failure

of its system, Allstate and Petitioner continued to maintain that

the failure was the fault of the Owners, not Allstate, and that

the preexisting drainfield either was not there in March 1999 or

was not discoverable by Allstate.

53. Morgenstern personally conducted an inspection and

verified Timmons' finding that old drainfield material was clearly

visible.

54. Thereafter, the Department issued the Citation for

Violation.

55. The services provided by Petitioner in March 1999,

constitute an improper and incomplete repair and installation.

56. The improper, incomplete services provided by Petitioner

in March 1999, resulted in Owners being required to expend

$2,800.00 for the services of Jerry's Septic Tank to excavate the

pre-existing drainfield, along with the defective Allstate system,

and to provide a functioning septic tank system, in addition to

the $2,300.00 previously paid to Allstate.

CONCLUSIONS OF LAW

57. The Division of Administrative Hearings has jurisdiction

over the subject matter and parties pursuant to Section 120.57(1),

Florida Statutes. The parties were duly noticed for the formal

administrative hearing.

58. The Department is statutorily empowered, pursuant to

Sections 381.0065 through 381.0067, Florida Statutes, and Chapter

489, Part III, Florida Statutes, to regulate the installation of

septic systems, such as Allstate's, and those persons, like

Petitioner, who install such systems.

59. Pursuant to Section 381.0065(3)(a), Florida Statutes,

the Department has "[a]dopt[ed] rules to administer Subsection

381.0065-381.0067." These rules include Rule 64E-6.022(1)(p),

Florida Administrative Code, which provides that gross negligence,

incompetence, or misconduct which causes monetary or other harm to

a customer, or physical harm to any person may be punished on

first violation by a $500 fine and 90-day suspension, and Rule

64E-6.022(1)(p), which provides that "installation, modification,

or repair of an on-site sewage treatment and disposal system in

violation of the standards of Section 381.0065 or Section

381.00655, Florida Statutes, or Chapter 64E, Florida

Administrative Code, may be punished on first violation with a

fine of $500.00 per specific standard violated.

60. Proof greater than a mere preponderance of the evidence

must be submitted in order for the Department to impose a fine

upon the contractor. Clear and convincing evidence is required.

See Department of Banking and Finance, Division of Securities and

Investor Protection v. Osborne Stern and Company , 670 So. 2d 932,

935 (Fla. 1996); Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987);

Section 120.57(1)(h), Florida Statutes ("Findings of fact shall be

based on a preponderance of the evidence, except in penal or

licensure disciplinary proceedings or except as otherwise provided

by statute.").

61. "[C] lear and convincing evidence requires that the

evidence must be found to be credible; the facts to which the

witnesses testify must be distinctly remembered; the testimony

must be precise and explicit and the witnesses must be lacking in

confusion as to the facts in issue. The evidence must be of such

weight that it produces in the mind of the trier of fact a firm

belief or conviction, without hesitancy, as to the truth of the

allegations sought to be established." In re Davey , 645 So. 2d

398, 404 (Fla. 1994), quoting, with approval, from Slomowitz v.

Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

62. The record evidence in this case clearly and

convincingly establishes that, as alleged in the Administrative

Complaint, Petitioner acted in violation of the law by installing,

in a grossly negligent or incompetent manner, a drainfield on

Owners' property which caused monetary harm to the customer, and

by installing, modifying or repairing Owners' on-site sewage

treatment and disposal system in violation of the basic standards

set forth in Section 381.0065 or 381.00655, Florida Statutes, and

Chapter 64E-6, Florida Administrative Code.

63. There is clear and convincing evidence that by reason of

Petitioner's gross negligence, gross incompetence, or gross

misconduct in connection with Owners' project, Owners suffered no

less than $2,800.00 in direct monetary harm inasmuch as the

drainfield Petitioner installed was substantially undersized and,

far more significantly, was installed directly atop a pre-existing

drainfield, creating a situation in which, according to unrebutted

expert testimony, failure was the only possible outcome.

64. Petitioner asserts her opinion, and that of her expert,

who is also her employer and the owner of Allstate, that various

things the Owners did or did not do caused the system to fail.

Department's experts refuted each of these self-serving opinions,

and testified with certainty that none of the errors or omissions

alleged by petition, even if true, would have caused the situation

experienced by the Owners. Rather, they were clear and convincing

in their opinion that the installation of the Allstate drainfield

directly atop the preexisting drainfield inevitably led to the

failure of Petitioner's drainfield, and that Petitioner could have

and should have discovered the preexisting drainfield in the

competent exercise of her duties as a septic tank contractor.

64. Petitioner's lack of candor and unwillingness to take

responsibility for her substandard work more than warrants the

imposition of the $500.00 fine sought by the Department for each

alleged Rule violation.

65. In her post-hearing submission, Petitioner renewed her

prehearing ore tenus for summary judgment, based upon her

contention that Rule 64E-6.015(7) requires entry of judgment for

Petitioner. The undersigned has carefully considered Petitioner's

legal argument on this point and finds it without merit.

Petitioner cites this section for the proposition that septic tank

contractors are not required to remove a preexisting drainfield.

Yet the unrebutted expert testimony conclusively demonstrates that

removal of a preexisting drainfield is a sine qua non of competent

drainfield repair or replacement, and any licensed contractor

would know it.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department enter a final order finding

Petitioner guilty of the unlawful conduct alleged in the

Administrative Complaint and disciplining her therefor by fining

her in the total amount of $1,000.00 .

DONE AND ENTERED this 19th day of October, 2000, in

Tallahassee, Florida.

_______________________________

FLORENCE SNYDER RIVAS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 19th day of October, 2000.

COPIES FURNISHED :

Judith C. Elfont, Esquire

Department of Health

2421-A Southwest Sixth Avenue

Fort Lauderdale, Florida 33315-2613

William E. Stacey, Jr., Esquire

320 Southeast 9th Street

Post Office Box 460053

Fort Lauderdale, Florida 33346

Theodore M. Henderson, Agency Clerk

Department of Health

4052 Bald Cypress Way

Bin A-02

Tallahassee, Florida 32399-1703

William W. Large, General Counsel

Department of Health

4052 Bald Cypress Way

Bin A02

Tallahassee, Florida 32399-1701

Dr. Robert G. Brooks, Secretary

Department of Health

4052 Bald Cypress Way

Bin A00

Tallahassee, Florida 32399-1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this recommended order. Any exceptions to

this recommended order should be filed with the agency that will

issue the final order in this case.