00-002435 Department Of Health vs. Noel Sanfiel Status: Closed Recommended Order on Tuesday, February 13, 2001.

Summary: Respondent failed to remove an old drainfield prior to installing a new drainfield, and committed gross negligence, incompetence, or misconduct by his action. Affirm citation and fine of $500.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

PALM BEACH COUNTY HEALTH )

DEPARTMENT, )

)

Petitioner, )

)

vs. ) Case No. 00-2435

)

NOEL SANFIEL, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on September 28, 2000, in West Palm Beach, Florida, before

Errol H. Powell, a designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Victoria Coleman-Miller, Esquire

Department of Health

Palm Beach County Health Department

826 Evernia Street

West Palm Beach, Florida 33401

For Respondent: Garry M. Glickman, Esquire

Glickman, Witters, Marell & Jamieson

1601 Forum Place, Suite 1101

West Palm Beach, Florida 33401

STATEMENT OF THE ISSUE

Whether Respondent committed the violations as set forth in

the Citation for Violation, Onsite Sewage Program/Sanitary

Nuisance dated April 28, 2000.

PRELIMINARY STATEMENT

On April 28, 2000, the Department of Health, Palm Beach

County Health Department (Petitioner) issued a Citation for

Violation, Onsite Sewage Program/Sanitary Nuisance against Noel

Sanfiel (Respondent). Petitioner charged Respondent with

violating Section 381.0065, Florida Statutes, and Rule 64E-

6.015(6), Florida Administrative Code, by failing to remove an

old drainfield prior to installation of a new drainfield; and

Rule 64E-6.022(1)(l)1, Florida Administrative Code, by gross

negligence, incompetence, or misconduct not causing monetary

damages. Respondent disputed the allegations of material fact

and requested a hearing. On June 12, 2000, this matter was

referred to the Division of Administrative Hearings.

At hearing, Petitioner presented the testimony of three

witnesses and entered 11 exhibits (Petitioner's Exhibits numbered

1-8, 9A, 9B, and 10) into evidence. Petitioner was permitted to

late-file one exhibit (Petitioner's Exhibit numbered 11), which

was deposition testimony. Respondent testified in his own behalf

and entered one exhibit (Respondent's Exhibit numbered 1) into

evidence. The parties entered one joint exhibit (Joint Exhibit

numbered 1) into evidence, which was deposition testimony.

A transcript of the hearing was ordered. At the request of

the parties, the time for filing post-hearing submissions was set

for more than ten days following the filing of the transcript.

The Transcript, consisting of two volumes, was filed on

October 23, 2000. The parties timely filed their post-hearing

submissions, which were considered in the preparation of this

Recommended Order.

FINDINGS OF FACT

1. Petitioner is authorized and given the jurisdiction to

regulate the construction, installation, modification,

abandonment, or repair of onsite sewage treatment and disposal

systems, including drainfields, by septic tank contractors.

2. At all times material hereto, Respondent was a

registered septic tank contractor and, as such, he was authorized

to provide septic tank contracting services, including the

installation and repair of drainfields.

3. On or about November 2, 1995, Petitioner issued a permit

(Permit No. RP648-95) to Wilmar Rodriguez for the repair of a

septic tank system at 417-421 Perry Avenue, Greenacres, Florida.

The property was a triplex, which was purchased by Mr. Rodriquez

in 1981. Mr. Rodriguez has no knowledge as to whether any

drainfields were installed or replaced on the property, prior to

1981.

4. The Permit included the installation of a new multi-

chambered septic tank, a dosing tank, a lift station, and a new

drainfield. The Permit was also for a filled system and called

for the drainfield to be 700 square feet.

5. Respondent was indicated as the "agent" on the Permit.

Respondent and/or his employees performed the work under the

Permit.

6. Respondent was the septic tank contractor for the repair

of the septic tank system under the Permit.

7. On November 9, 1995, the construction of the septic tank

system was approved by one of Petitioner's inspectors, who was an

Environmental Specialist I.

8. Petitioner's inspectors are not present during the

entire construction or repair of a septic tank system or

drainfield. Usually, inspections are made after the completion

of the construction or repair of the septic tank system.

Additionally, the inspection of a drainfield is usually performed

after the rock has been placed on top of the drainfield.

9. On February 2, 1996, the same inspector performed the

inspection after the completion of the construction of the septic

tank system, including after the placing of the rock on top of

the drainfield. Even though the Permit reflects a filled system,

the filled/mound system section on the inspection sheet was

crossed out. The inspector considered the system to be a

standard system, not a filled or mound system, and, therefore,

inspected it as a standard system.

10. In inspecting a drainfield, the inspection by an

inspector includes checking to ensure that a drainfield has 42

inches of clean soil below the drainfield. An inspector uses an

instrument that bores down through the rock and brings up a

sample of the soil, which is referred to as augering. Augering

is randomly performed at two locations.

11. For the instant case, the inspector performed the

augering in two random locations of the drainfield, which were in

the area of the middle top and the middle bottom. The samples

failed to reveal anything suspect; they were clean.

12. On February 2, 1996, the inspector issued a final

approval for the septic tank system. Final approval included the

disposal of "spoil" and the covering of the septic tank system

with "acceptable soil".

13. The inspector mistakenly inspected the system as a

standard system. He should have inspected the system as a filled

system. 1

14. After the repair and installation of the septic tank

system by Respondent, Mr. Rodriguez continued to have problems

with the septic tank system. He contacted Respondent three or

four times regarding problems with the system, but the problems

persisted. Each time, Respondent was paid by Mr. Rodriguez.

Sewage water was flowing into the street where the property was

located and backing-up into the inside of the triplex.

15. Having gotten no relief from Respondent, Mr. Rodriguez

decided to contact someone else to correct the problem.

Mr. Rodriguez contacted Richard Gillikin, who was a registered

septic tank contractor.

16. On October 14, 1999, a construction permit was issued

to Mr. Rodriguez for the repair of the s eptic tank system.

Mr. Gillikin was indicated as the agent.

17. Mr. Gillikin visited the property site of the triplex

and reviewed the problem. He determined that the drainfield was

not properly functioning, but he did not know the cause of the

malfunctioning.

18. With the assistance of Petitioner's inspectors,

Mr. Gillikin and Mr. Rodriguez attempted to determine the best

method to deal with the problem. After eliminating options,

Mr. Rodriguez decided to replace the drainfield.

19. To replace the drainfield, Mr. Gillikin began

excavating. He began removing the soil cover and the rock layer

of the drainfield.

20. Mr. Gillikin also wanted to know how deep he had to dig

to find good soil. After digging for that purpose and for 10 to

12 inches, he discovered a drainfield below Respondent's

drainfield. The drainfield that Mr. Gillikin discovered was a

rock bed 12 inches thick in which pipes were located and, as

indicated, 10 to 12 inches below Respondent's drainfield.

Mr. Gillikin also dug a hole two to three feet deep, pumped the

water out of the hole, and saw the old drainfield. Mr. Gillikin

determined that the old drainfield extended the full length of

Respondent's drainfield.

21. As a result of Mr. Gillikin's determining that the old

drainfield was below Respondent's drainfield, both drainfields

had to be removed and the expense of a new drainfield increased.

22. Leon Barnes, an Environmental Specialist II for

Petitioner, who was also certified in the septic tank program,

viewed the drainfield site. He determined that the old

drainfield was below Respondent's drainfield and that, therefore,

Respondent had not removed the old drainfield.

23. On or about November 6, 1999, Mr. Barnes' supervisor,

Jim Carter, and co-worker, Russell Weaver, who is an Engineer,

also visited the drainfield site. Mr. Weaver determined that the

old drainfield covered a little more than 50 percent of the area

under Respondent's drainfield.

24. On November 8, 1999, a construction inspection and a

final inspection of the system installed by Mr. Gillikin were

performed. The system was approved.

25. Respondent admits that a new drainfield is prohibited

from being installed over an old drainfield. However, Respondent

denies that he installed a new drainfield over the old drainfield

on Mr. Rodriguez's property.

26. In 1995, Respondent failed to completely remove the old

drainfield before he installed the new drainfield.

27. The soil and rocks from the old drainfield, which was

not functioning, were contaminated spoil material. Because the

old drainfield was not completely removed, the contaminated spoil

material remained in the drainfield and was used as part of the

material in the installation of the new drainfield.

28. Leaving the contaminated spoil material in the new

drainfield, prevented the sewage water from being able to

percolate through the ground, which is a method of cleansing the

sewage water. Without being able to percolate through the

ground, the sewage water remained on the surface of the

drainfield, creating a serious sanitary nuisance and health

hazard. The sewage water spilled onto the street and backed-up

into the triplex.

29. Respondent was issued a Citation for Violation, Onsite

Sewage Program/Sanitary Nuisance by Petitioner.

CONCLUSIONS OF LAW

30. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and the

parties thereto pursuant to Section 120.569 and Subsection

120.57(1), Florida Statutes.

31. License revocation proceedings are penal in nature.

The burden of proof is on the Petitioner to establish by clear

and convincing evidence the truthfulness of the allegations in

the Citation for Violation, Onsite Sewage Program/Sanitary

Nuisance. Department of Banking and Finance, Division of

Securities and Investor Protection v. Osborne Stern and Company ,

670 So. 2d 932 (Fla. 1996); Ferris v. Turlington , 510 So. 2d 292

(Fla. 1987).

32. A licensee is charged with knowing the practice act

that governs his/her license. Wallen v. Florida Department of

Professional Regulation, Division of Real Estate , 568 So. 2d 975

(Fla. 3d DCA 1990).

33. Section 381.0065, Florida Statutes (1995), provides in

pertinent part:

(1) LEGISLATIVE INTENT.–It is the intent of

the Legislature that where a publicly owned

or investor-owned sewerage system is not

available, the department shall issue permits

for the construction, installation,

modification, abandonment, or repair of

onsite sewage treatment and disposal systems

under conditions as described in this section

and rules adopted under this section. It is

further the intent of the Legislature that

the installation and use of onsite sewage

treatment and disposal systems not adversely

affect the public health or significantly

degrade the groundwater or surface water.

* * *

(3) DUTIES AND POWERS OF THE DEPARTMENT OF

HEALTH AND REHABILITATIVE SERVICES. 2 –The

department shall:

(a) Adopt rules to administer ss. 381.0065-

381.0067.

(b) Perform application reviews and site

evaluations, issue permits, and conduct

inspections and complaint investigations

associated with the construction,

installation, maintenance, modification,

abandonment, or repair of an onsite sewage

treatment and disposal system for a residence

or establishment . . .

* * *

(h) Conduct enforcement activities,

including imposing fines, . . . for

violations of this section, part III of

chapter 489, or chapter 386, or for a

violation of any rule adopted under this

section, part III of chapter 489, or chapter

386.

* * *

(4) PERMITS; INSTALLATION; AND CONDITIONS.–

. . . A person may not contract to

construct, modify, alter, repair, service,

abandon, or maintain any portion of an onsite

sewage treatment and disposal system without

being registered under part III of chapter

489. . . .

(5) ENFORCEMENT; RIGHT OF ENTRY; CITATIONS.–

* * *

(b)1. The department may issue citations

that may contain . . . an order to pay a

fine, . . . for violations of ss. 381.0065-

381.0067 or chapter 386 or part III of

chapter 489 or the rules adopted by the

department, when a violation of these

sections or rules is enforceable by an

administrative or civil remedy . . . A

citation issued under ss. 381.0065-381.0067

or chapter 386 or part III of chapter 489

constitutes a notice of proposed agency

action.

34. Respondent is charged with violating Rule 64E-6.015(6),

Florida Administrative Code, which provided, at the time that the

alleged violation was discovered, in pertinent part:

(6) Construction materials used in system

repairs shall be of the same quality as those

required for new system construction.

Contaminated spoil from drainfield repairs

shall not be used in system repair in any

manner. Any contaminated spoil material

shall be disposed of in a sanitary landfill

or shall be limed and stockpiled for at least

30 days. The resulting material shall not be

used for drainfield repair. . . .

35. Table V of Rule 64E-6.015(6), Florida Administrative

Code, required a soil depth of 42 inches.

36. Rule 64E-6.015, Florida Administrative Code, is

formerly Rule 10D-6.0571, Florida Administrative Code, which was

in effect at the time that the violation occurred in 1995. Rule

10D-6.0571 provided in pertinent part:

(4) Construction materials used in system

repairs shall be of the same quality as those

required for new system construction.

Contaminated spoil from drainfield repairs

shall not be used in system repair in any

manner. Any contaminated spoil material

shall be disposed of in a sanitary landfill

or shall be limed and stockpiled for at least

30 days. The resulting material shall not be

used for drainfield repair. . . .

Table V of Rule 10D-6.0571(4), Florida Administrative Code, also

required a soil depth of 42 inches.

37. The pertinent provisions of Rules 64E-6.015(6) and 10D-

6.0571(4), Florida Administrative Code, are identical. The rule

in effect at the time of the violation, Rule 10D-6.0571(4),

Florida Administrative Code, should have been the rule cited as

being violated. However, this error is not fatal to the charged

action. The interpretation of the two said Rules is the same.

Moreover, Respondent was placed on notice as to the substance of

the alleged violation, which is installing a new drainfield over

an old drainfield. Further, Respondent admits that to install a

new drainfield over an old drainfield is prohibited.

38. Petitioner demonstrated that Respondent violated Rule

10D-6.0571(4), Florida Administrative Code, now Rule 64E-

6.015(6), Florida Administrative Code. The old drainfield was

not removed. The old drainfield contained spoil material.

Respondent used the spoil material from the old drainfield as

part of the material for the new drainfield.

39. Respondent is also charged with violating Rule 64E-

6.022(1)(l)1, Florida Administrative Code, which provided, at the

time that the alleged violation was discovered, as follows:

(1) The following guidelines shall be used

in disciplinary cases, absent aggravating or

mitigating circumstances and subject to other

provisions of this section.

* * *

(l) Gross negligence, incompetence, or

misconduct which:

1. Causes no monetary or other harm to a

customer, or physical harm to any person.

First violation, $500 fine; repeat violation,

$500 fine and 90 day suspension or

revocation.

40. Rule 64E-6.022, Florida Administrative Code, is

formerly Rule 10D-6.0751, Florida Administrative Code, which was

in effect at the time that the violation occurred in 1995. Rule

10D-6.0751 provided in pertinent part as follows:

(1) The following guidelines shall be used

in disciplinary cases, absent aggravating or

mitigating circumstances and subject to other

provisions of this section.

* * *

(l) Gross negligence, incompetence, or

misconduct which:

1. Causes no monetary or other harm to a

customer, or physical harm to any person.

First violation, $500 fine; repeat violation,

$500 fine and 90 day suspension or

revocation.

41. The pertinent provisions of Rules 64E-6.022(1)(l)1 and

10D-6.0751(1)(l)1, Florida Administrative Code, are identical.

The interpretation of the two said Rules are the same. The rule

in effect at the time of the violation, Rule 10D-6.0751(1)(l)1,

Florida Administrative Code, should have been the rule cited as

being violated. However, this error is not fatal to the charged

action. The interpretation of the two Rules is the same.

Moreover, Respondent was placed on notice as to the substance of

the alleged violation, which is gross negligence, incompetence,

or misconduct and a fine of $500.

42. Petitioner demonstrated that Respondent violated Rule

10D-6.0751(1)(l)1, Florida Administrative Code, now Rule 64E-

6.022(1)(l)1, Florida Administrative Code. Respondent admits

that a new drainfield is prohibited from being installed over an

old drainfield. Yet, Respondent installed a new drainfield over

an old drainfield. Respondent committed gross negligence,

incompetence, or misconduct, which did not cause monetary damage.

43. As to penalty, a fine not to exceed $500.00 may be

imposed for each violation specified in a citation. Subsection

381.0065(5)(b)3, Florida Statutes (1995). Furthermore, the

disciplinary guidelines provide for a fine of $500. Rule 10D-

6.0751(1)(l)1, Florida Administrative Code.

44. Petitioner suggests a fine of $1,000. Petitioner

suggests an increased fine based upon Rule 64E-6.022(1)(p),

Florida Administrative Code, which provides as follows:

(p) Installation, modification, or repair of

an onsite sewage treatment and disposal

system in violation of the standards of s.

381.0065 or s. 381.00655, F.S., or chapter

64E-6, F.A.C. First violation, $500 per

specific standard violated; repeat violation,

90 day suspension or revocation.

However, the rule in effect at the time that the incident

occurred was Rule 10D-6.0751, Florida Administrative Code, which

did not contain the same provision as Rule 64E-6.022(1)(p),

Florida Administrative Code. Consequently, the additional fine

of $500 is not considered.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Health, Palm Beach County

Health Department, enter a final order:

1. Affirming the Citation for Violation, Onsite Sewage

Program/Sanitary Nuisance and finding that Noel Sanfiel violated

Section 381.0065, Florida Statutes (1995), and Rule 10D-

6.0571(4), now Rule 64E-6.015(6), and Rule 10D-6.0751(1)(l)1, now

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

2. Imposing a fine of $500.

DONE AND ENTERED this 13th day of February, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

ERROL H. POWELL

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 13th day of February, 2001.

ENDNOTES

1/ At hearing, the inspector admitted that the septic tank system

may have been a filled system but that he inspected the system as

a standard system.

2/ The Department of Health and Rehabilitative Services is now,

and was at the time that the violation was discovered, the

Department of Health.

COPIES FURNISHED:

Victoria Coleman-Miller, Esquire

Department of Health, Palm Beach

County Health Department

826 Evernia Street

West Palm Beach, Florida 33401

Garry M. Glickman, Esquire

Glickman, Witters, Marell & Jamieson

1601 Forum Place, Suite 1101

West Palm Beach, Florida 33401

Theodore M. Henderson, Agency Clerk

Department of Health

4052 Bald Cypress Way

Bin A02

Tallahassee, Florida 32399-1701

William W. Large, General Counsel

Department of Health

4052 Bald Cypress Way

Bin A02

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.