00-002435
Department Of Health vs.
Noel Sanfiel
Status: Closed
Recommended Order on Tuesday, February 13, 2001.
Recommended Order on Tuesday, February 13, 2001.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8DEPARTMENT OF HEALTH, )
12PALM BEACH COUNTY HEALTH )
17DEPARTMENT, )
19)
20Petitioner, )
22)
23vs. ) Case No. 00-2435
28)
29NOEL SANFIEL, )
32)
33Respondent. )
35________________________________)
36RECOMMENDED ORDER
38Pursuant to notice, a formal hearing was held in this case
49on September 28, 2000, in West Palm Beach, Florida, before
59Errol H. Powell, a designated Administrative Law Judge of the
69Division of Administrative Hearings.
73APPEARANCES
74For Petitioner: Victoria Coleman-Miller, Esquire
79Department of Health
82Palm Beach County Health Department
87826 Evernia Street
90West Palm Beach, Florida 33401
95For Respondent: Garry M. Glickman, Esquire
101Glickman, Witters, Marell & Jamieson
1061601 Forum Place, Suite 1101
111West Palm Beach, Florida 33401
116STATEMENT OF THE ISSUE
120Whether Respondent committed the violations as set forth in
129the Citation for Violation, Onsite Sewage Program/Sanitary
136Nuisance dated April 28, 2000.
141PRELIMINARY STATEMENT
143On April 28, 2000, the Department of Health, Palm Beach
153County Health Department (Petitioner) issued a Citation for
161Violation, Onsite Sewage Program/Sanitary Nuisance against Noel
168Sanfiel (Respondent). Petitioner charged Respondent with
174violating Section 381.0065, Florida Statutes, and Rule 64E-
1826.015(6), Florida Administrative Code, by failing to remove an
191old drainfield prior to installation of a new drainfield; and
201Rule 64E-6.022(1)(l)1, Florida Administrative Code, by gross
208negligence, incompetence, or misconduct not causing monetary
215damages. Respondent disputed the allegations of material fact
223and requested a hearing. On June 12, 2000, this matter was
234referred to the Division of Administrative Hearings.
241At hearing, Petitioner presented the testimony of three
249witnesses and entered 11 exhibits (Petitioner's Exhibits numbered
2571-8, 9A, 9B, and 10) into evidence. Petitioner was permitted to
268late-file one exhibit (Petitioner's Exhibit numbered 11), which
276was deposition testimony. Respondent testified in his own behalf
285and entered one exhibit (Respondent's Exhibit numbered 1) into
294evidence. The parties entered one joint exhibit (Joint Exhibit
303numbered 1) into evidence, which was deposition testimony.
311A transcript of the hearing was ordered. At the request of
322the parties, the time for filing post-hearing submissions was set
332for more than ten days following the filing of the transcript.
343The Transcript, consisting of two volumes, was filed on
352October 23, 2000. The parties timely filed their post-hearing
361submissions, which were considered in the preparation of this
370Recommended Order.
372FINDINGS OF FACT
3751. Petitioner is authorized and given the jurisdiction to
384regulate the construction, installation, modification,
389abandonment, or repair of onsite sewage treatment and disposal
398systems, including drainfields, by septic tank contractors.
4052. At all times material hereto, Respondent was a
414registered septic tank contractor and, as such, he was authorized
424to provide septic tank contracting services, including the
432installation and repair of drainfields.
4373. On or about November 2, 1995, Petitioner issued a permit
448(Permit No. RP648-95) to Wilmar Rodriguez for the repair of a
459septic tank system at 417-421 Perry Avenue, Greenacres, Florida.
468The property was a triplex, which was purchased by Mr. Rodriquez
479in 1981. Mr. Rodriguez has no knowledge as to whether any
490drainfields were installed or replaced on the property, prior to
5001981.
5014. The Permit included the installation of a new multi-
511chambered septic tank, a dosing tank, a lift station, and a new
523drainfield. The Permit was also for a filled system and called
534for the drainfield to be 700 square feet.
5425. Respondent was indicated as the "agent" on the Permit.
552Respondent and/or his employees performed the work under the
561Permit.
5626. Respondent was the septic tank contractor for the repair
572of the septic tank system under the Permit.
5807. On November 9, 1995, the construction of the septic tank
591system was approved by one of Petitioner's inspectors, who was an
602Environmental Specialist I.
6058. Petitioner's inspectors are not present during the
613entire construction or repair of a septic tank system or
623drainfield. Usually, inspections are made after the completion
631of the construction or repair of the septic tank system.
641Additionally, the inspection of a drainfield is usually performed
650after the rock has been placed on top of the drainfield.
6619. On February 2, 1996, the same inspector performed the
671inspection after the completion of the construction of the septic
681tank system, including after the placing of the rock on top of
693the drainfield. Even though the Permit reflects a filled system,
703the filled/mound system section on the inspection sheet was
712crossed out. The inspector considered the system to be a
722standard system, not a filled or mound system, and, therefore,
732inspected it as a standard system.
73810. In inspecting a drainfield, the inspection by an
747inspector includes checking to ensure that a drainfield has 42
757inches of clean soil below the drainfield. An inspector uses an
768instrument that bores down through the rock and brings up a
779sample of the soil, which is referred to as augering. Augering
790is randomly performed at two locations.
79611. For the instant case, the inspector performed the
805augering in two random locations of the drainfield, which were in
816the area of the middle top and the middle bottom. The samples
828failed to reveal anything suspect; they were clean.
83612. On February 2, 1996, the inspector issued a final
846approval for the septic tank system. Final approval included the
856disposal of "spoil" and the covering of the septic tank system
867with "acceptable soil".
87113. The inspector mistakenly inspected the system as a
880standard system. He should have inspected the system as a filled
891system. 1
89314. After the repair and installation of the septic tank
903system by Respondent, Mr. Rodriguez continued to have problems
912with the septic tank system. He contacted Respondent three or
922four times regarding problems with the system, but the problems
932persisted. Each time, Respondent was paid by Mr. Rodriguez.
941Sewage water was flowing into the street where the property was
952located and backing-up into the inside of the triplex.
96115. Having gotten no relief from Respondent, Mr. Rodriguez
970decided to contact someone else to correct the problem.
979Mr. Rodriguez contacted Richard Gillikin, who was a registered
988septic tank contractor.
99116. On October 14, 1999, a construction permit was issued
1001to Mr. Rodriguez for the repair of the s eptic tank system.
1013Mr. Gillikin was indicated as the agent.
102017. Mr. Gillikin visited the property site of the triplex
1030and reviewed the problem. He determined that the drainfield was
1040not properly functioning, but he did not know the cause of the
1052malfunctioning.
105318. With the assistance of Petitioner's inspectors,
1060Mr. Gillikin and Mr. Rodriguez attempted to determine the best
1070method to deal with the problem. After eliminating options,
1079Mr. Rodriguez decided to replace the drainfield.
108619. To replace the drainfield, Mr. Gillikin began
1094excavating. He began removing the soil cover and the rock layer
1105of the drainfield.
110820. Mr. Gillikin also wanted to know how deep he had to dig
1121to find good soil. After digging for that purpose and for 10 to
113412 inches, he discovered a drainfield below Respondent's
1142drainfield. The drainfield that Mr. Gillikin discovered was a
1151rock bed 12 inches thick in which pipes were located and, as
1163indicated, 10 to 12 inches below Respondent's drainfield.
1171Mr. Gillikin also dug a hole two to three feet deep, pumped the
1184water out of the hole, and saw the old drainfield. Mr. Gillikin
1196determined that the old drainfield extended the full length of
1206Respondent's drainfield.
120821. As a result of Mr. Gillikin's determining that the old
1219drainfield was below Respondent's drainfield, both drainfields
1226had to be removed and the expense of a new drainfield increased.
123822. Leon Barnes, an Environmental Specialist II for
1246Petitioner, who was also certified in the septic tank program,
1256viewed the drainfield site. He determined that the old
1265drainfield was below Respondent's drainfield and that, therefore,
1273Respondent had not removed the old drainfield.
128023. On or about November 6, 1999, Mr. Barnes' supervisor,
1290Jim Carter, and co-worker, Russell Weaver, who is an Engineer,
1300also visited the drainfield site. Mr. Weaver determined that the
1310old drainfield covered a little more than 50 percent of the area
1322under Respondent's drainfield.
132524. On November 8, 1999, a construction inspection and a
1335final inspection of the system installed by Mr. Gillikin were
1345performed. The system was approved.
135025. Respondent admits that a new drainfield is prohibited
1359from being installed over an old drainfield. However, Respondent
1368denies that he installed a new drainfield over the old drainfield
1379on Mr. Rodriguez's property.
138326. In 1995, Respondent failed to completely remove the old
1393drainfield before he installed the new drainfield.
140027. The soil and rocks from the old drainfield, which was
1411not functioning, were contaminated spoil material. Because the
1419old drainfield was not completely removed, the contaminated spoil
1428material remained in the drainfield and was used as part of the
1440material in the installation of the new drainfield.
144828. Leaving the contaminated spoil material in the new
1457drainfield, prevented the sewage water from being able to
1466percolate through the ground, which is a method of cleansing the
1477sewage water. Without being able to percolate through the
1486ground, the sewage water remained on the surface of the
1496drainfield, creating a serious sanitary nuisance and health
1504hazard. The sewage water spilled onto the street and backed-up
1514into the triplex.
151729. Respondent was issued a Citation for Violation, Onsite
1526Sewage Program/Sanitary Nuisance by Petitioner.
1531CONCLUSIONS OF LAW
153430. The Division of Administrative Hearings has
1541jurisdiction over the subject matter of this proceeding and the
1551parties thereto pursuant to Section 120.569 and Subsection
1559120.57(1), Florida Statutes.
156231. License revocation proceedings are penal in nature.
1570The burden of proof is on the Petitioner to establish by clear
1582and convincing evidence the truthfulness of the allegations in
1591the Citation for Violation, Onsite Sewage Program/Sanitary
1598Nuisance. Department of Banking and Finance, Division of
1606Securities and Investor Protection v. Osborne Stern and Company ,
1615670 So. 2d 932 (Fla. 1996); Ferris v. Turlington , 510 So. 2d 292
1628(Fla. 1987).
163032. A licensee is charged with knowing the practice act
1640that governs his/her license. Wallen v. Florida Department of
1649Professional Regulation, Division of Real Estate , 568 So. 2d 975
1659(Fla. 3d DCA 1990).
166333. Section 381.0065, Florida Statutes (1995), provides in
1671pertinent part:
1673(1) LEGISLATIVE INTENT.It is the intent of
1680the Legislature that where a publicly owned
1687or investor-owned sewerage system is not
1693available, the department shall issue permits
1699for the construction, installation,
1703modification, abandonment, or repair of
1708onsite sewage treatment and disposal systems
1714under conditions as described in this section
1721and rules adopted under this section. It is
1729further the intent of the Legislature that
1736the installation and use of onsite sewage
1743treatment and disposal systems not adversely
1749affect the public health or significantly
1755degrade the groundwater or surface water.
1761* * *
1764(3) DUTIES AND POWERS OF THE DEPARTMENT OF
1772HEALTH AND REHABILITATIVE SERVICES. 2 The
1778department shall:
1780(a) Adopt rules to administer ss. 381.0065-
1787381.0067.
1788(b) Perform application reviews and site
1794evaluations, issue permits, and conduct
1799inspections and complaint investigations
1803associated with the construction,
1807installation, maintenance, modification,
1810abandonment, or repair of an onsite sewage
1817treatment and disposal system for a residence
1824or establishment . . .
1829* * *
1832(h) Conduct enforcement activities,
1836including imposing fines, . . . for
1843violations of this section, part III of
1850chapter 489, or chapter 386, or for a
1858violation of any rule adopted under this
1865section, part III of chapter 489, or chapter
1873386.
1874* * *
1877(4) PERMITS; INSTALLATION; AND CONDITIONS.
1882. . . A person may not contract to
1891construct, modify, alter, repair, service,
1896abandon, or maintain any portion of an onsite
1904sewage treatment and disposal system without
1910being registered under part III of chapter
1917489. . . .
1921(5) ENFORCEMENT; RIGHT OF ENTRY; CITATIONS.
1927* * *
1930(b)1. The department may issue citations
1936that may contain . . . an order to pay a
1947fine, . . . for violations of ss. 381.0065-
1956381.0067 or chapter 386 or part III of
1964chapter 489 or the rules adopted by the
1972department, when a violation of these
1978sections or rules is enforceable by an
1985administrative or civil remedy . . . A
1993citation issued under ss. 381.0065-381.0067
1998or chapter 386 or part III of chapter 489
2007constitutes a notice of proposed agency
2013action.
201434. Respondent is charged with violating Rule 64E-6.015(6),
2022Florida Administrative Code, which provided, at the time that the
2032alleged violation was discovered, in pertinent part:
2039(6) Construction materials used in system
2045repairs shall be of the same quality as those
2054required for new system construction.
2059Contaminated spoil from drainfield repairs
2064shall not be used in system repair in any
2073manner. Any contaminated spoil material
2078shall be disposed of in a sanitary landfill
2086or shall be limed and stockpiled for at least
209530 days. The resulting material shall not be
2103used for drainfield repair. . . .
211035. Table V of Rule 64E-6.015(6), Florida Administrative
2118Code, required a soil depth of 42 inches.
212636. Rule 64E-6.015, Florida Administrative Code, is
2133formerly Rule 10D-6.0571, Florida Administrative Code, which was
2141in effect at the time that the violation occurred in 1995. Rule
215310D-6.0571 provided in pertinent part:
2158(4) Construction materials used in system
2164repairs shall be of the same quality as those
2173required for new system construction.
2178Contaminated spoil from drainfield repairs
2183shall not be used in system repair in any
2192manner. Any contaminated spoil material
2197shall be disposed of in a sanitary landfill
2205or shall be limed and stockpiled for at least
221430 days. The resulting material shall not be
2222used for drainfield repair. . . .
2229Table V of Rule 10D-6.0571(4), Florida Administrative Code, also
2238required a soil depth of 42 inches.
224537. The pertinent provisions of Rules 64E-6.015(6) and 10D-
22546.0571(4), Florida Administrative Code, are identical. The rule
2262in effect at the time of the violation, Rule 10D-6.0571(4),
2272Florida Administrative Code, should have been the rule cited as
2282being violated. However, this error is not fatal to the charged
2293action. The interpretation of the two said Rules is the same.
2304Moreover, Respondent was placed on notice as to the substance of
2315the alleged violation, which is installing a new drainfield over
2325an old drainfield. Further, Respondent admits that to install a
2335new drainfield over an old drainfield is prohibited.
234338. Petitioner demonstrated that Respondent violated Rule
235010D-6.0571(4), Florida Administrative Code, now Rule 64E-
23576.015(6), Florida Administrative Code. The old drainfield was
2365not removed. The old drainfield contained spoil material.
2373Respondent used the spoil material from the old drainfield as
2383part of the material for the new drainfield.
239139. Respondent is also charged with violating Rule 64E-
24006.022(1)(l)1, Florida Administrative Code, which provided, at the
2408time that the alleged violation was discovered, as follows:
2417(1) The following guidelines shall be used
2424in disciplinary cases, absent aggravating or
2430mitigating circumstances and subject to other
2436provisions of this section.
2440* * *
2443(l) Gross negligence, incompetence, or
2448misconduct which:
24501. Causes no monetary or other harm to a
2459customer, or physical harm to any person.
2466First violation, $500 fine; repeat violation,
2472$500 fine and 90 day suspension or
2479revocation.
248040. Rule 64E-6.022, Florida Administrative Code, is
2487formerly Rule 10D-6.0751, Florida Administrative Code, which was
2495in effect at the time that the violation occurred in 1995. Rule
250710D-6.0751 provided in pertinent part as follows:
2514(1) The following guidelines shall be used
2521in disciplinary cases, absent aggravating or
2527mitigating circumstances and subject to other
2533provisions of this section.
2537* * *
2540(l) Gross negligence, incompetence, or
2545misconduct which:
25471. Causes no monetary or other harm to a
2556customer, or physical harm to any person.
2563First violation, $500 fine; repeat violation,
2569$500 fine and 90 day suspension or
2576revocation.
257741. The pertinent provisions of Rules 64E-6.022(1)(l)1 and
258510D-6.0751(1)(l)1, Florida Administrative Code, are identical.
2591The interpretation of the two said Rules are the same. The rule
2603in effect at the time of the violation, Rule 10D-6.0751(1)(l)1,
2613Florida Administrative Code, should have been the rule cited as
2623being violated. However, this error is not fatal to the charged
2634action. The interpretation of the two Rules is the same.
2644Moreover, Respondent was placed on notice as to the substance of
2655the alleged violation, which is gross negligence, incompetence,
2663or misconduct and a fine of $500.
267042. Petitioner demonstrated that Respondent violated Rule
267710D-6.0751(1)(l)1, Florida Administrative Code, now Rule 64E-
26846.022(1)(l)1, Florida Administrative Code. Respondent admits
2690that a new drainfield is prohibited from being installed over an
2701old drainfield. Yet, Respondent installed a new drainfield over
2710an old drainfield. Respondent committed gross negligence,
2717incompetence, or misconduct, which did not cause monetary damage.
272643. As to penalty, a fine not to exceed $500.00 may be
2738imposed for each violation specified in a citation. Subsection
2747381.0065(5)(b)3, Florida Statutes (1995). Furthermore, the
2753disciplinary guidelines provide for a fine of $500. Rule 10D-
27636.0751(1)(l)1, Florida Administrative Code.
276744. Petitioner suggests a fine of $1,000. Petitioner
2776suggests an increased fine based upon Rule 64E-6.022(1)(p),
2784Florida Administrative Code, which provides as follows:
2791(p) Installation, modification, or repair of
2797an onsite sewage treatment and disposal
2803system in violation of the standards of s.
2811381.0065 or s. 381.00655, F.S., or chapter
281864E-6, F.A.C. First violation, $500 per
2824specific standard violated; repeat violation,
282990 day suspension or revocation.
2834However, the rule in effect at the time that the incident
2845occurred was Rule 10D-6.0751, Florida Administrative Code, which
2853did not contain the same provision as Rule 64E-6.022(1)(p),
2862Florida Administrative Code. Consequently, the additional fine
2869of $500 is not considered.
2874RECOMMENDATION
2875Based on the foregoing Findings of Fact and Conclusions of
2885Law, it is
2888RECOMMENDED that the Department of Health, Palm Beach County
2897Health Department, enter a final order:
29031. Affirming the Citation for Violation, Onsite Sewage
2911Program/Sanitary Nuisance and finding that Noel Sanfiel violated
2919Section 381.0065, Florida Statutes (1995), and Rule 10D-
29276.0571(4), now Rule 64E-6.015(6), and Rule 10D-6.0751(1)(l)1, now
293564E-6.022(1)(l)1, Florida Administrative Code.
29392. Imposing a fine of $500.
2945DONE AND ENTERED this 13th day of February, 2001, in
2955Tallahassee, Leon County, Florida.
2959___________________________________
2960ERROL H. POWELL
2963Administrative Law Judge
2966Division of Administrative Hearings
2970The DeSoto Building
29731230 Apalachee Parkway
2976Tallahassee, Florida 32399-3060
2979(850) 488-9675 SUNCOM 278-9675
2983Fax Filing (850) 921-6847
2987www.doah.state.fl.us
2988Filed with the Clerk of the
2994Division of Administrative Hearings
2998this 13th day of February, 2001.
3004ENDNOTES
30051/ At hearing, the inspector admitted that the septic tank system
3016may have been a filled system but that he inspected the system as
3029a standard system.
30322/ The Department of Health and Rehabilitative Services is now,
3042and was at the time that the violation was discovered, the
3053Department of Health.
3056COPIES FURNISHED:
3058Victoria Coleman-Miller, Esquire
3061Department of Health, Palm Beach
3066County Health Department
3069826 Evernia Street
3072West Palm Beach, Florida 33401
3077Garry M. Glickman, Esquire
3081Glickman, Witters, Marell & Jamieson
30861601 Forum Place, Suite 1101
3091West Palm Beach, Florida 33401
3096Theodore M. Henderson, Agency Clerk
3101Department of Health
31044052 Bald Cypress Way
3108Bin A02
3110Tallahassee, Florida 32399-1701
3113William W. Large, General Counsel
3118Department of Health
31214052 Bald Cypress Way
3125Bin A02
3127Tallahassee, Florida 32399-1701
3130NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
3136All parties have the right to submit written exceptions within 15
3147days from the date of this recommended order. Any exceptions to
3158this recommended order should be filed with the agency that will
3169issue the final order in this case.
- Date
- Proceedings
- PDF:
- Date: 02/13/2001
- Proceedings: Recommended Order cover letter identifying hearing record referred to the Agency sent out.
- PDF:
- Date: 02/13/2001
- Proceedings: Recommended Order issued (hearing held September 28, 2000) CASE CLOSED.
- PDF:
- Date: 02/07/2001
- Proceedings: Letter to Judge E. Powell from B. Sullivan In re: requested copy of 64E-6.015 (filed via facsimile).
- PDF:
- Date: 12/08/2000
- Proceedings: Notice of Receipt of Transcript (filed by Respondent via facsimile).
- PDF:
- Date: 11/30/2000
- Proceedings: Agreed Motion for Extension of Time to File Proposed Recommended Order (filed via facsimile).
- Date: 11/29/2000
- Proceedings: Deposition Transcript (of B. Sullivan) filed.
- Date: 11/29/2000
- Proceedings: Respondent`s Exhibit 1 filed.
- Date: 11/29/2000
- Proceedings: Petitioner`s Original Exhibits 1-10 filed.
- Date: 10/31/2000
- Proceedings: Return of Service (4); Subpoena Ad Testificandum (4) filed.
- Date: 10/23/2000
- Proceedings: Transcript (Volume 1 and 2) filed.
- PDF:
- Date: 10/19/2000
- Proceedings: Agreed Motion for Extension to File Proposed Recommended Order (filed via facsimile).
- Date: 09/28/2000
- Proceedings: CASE STATUS: Hearing Held; see case file for applicable time frames.
- PDF:
- Date: 09/13/2000
- Proceedings: Amended Notice of Hearing issued. (hearing set for September 28, 2000; 9:00 a.m.; West Palm Beach, FL, amended as to hearing date and location).
- Date: 09/11/2000
- Proceedings: Second Amended Notice of Taking Deposition of R. Weaver, L. Barnes, R. Gillikin, J. Archer, W. Rodriquez (filed via facsimile).
- Date: 09/08/2000
- Proceedings: Amended Notice of Taking Deposition of R. Weaver, L. Barnes, R. Gilliken (filed via facsimile).
- Date: 09/06/2000
- Proceedings: Request for Subpoenas (filed via facsimile).
- PDF:
- Date: 09/06/2000
- Proceedings: Amended Petitioner`s Proposed List of Exhibits (filed via facsimile).
- Date: 09/06/2000
- Proceedings: Notice of Taking Deposition of J. Carter, R. Weaver, L. Barnes, R. Gilliken (filed via facsimile).
- PDF:
- Date: 08/30/2000
- Proceedings: Order Granting Continuance and Re-scheduling Hearing issued (hearing set for September 29, 2000; 9:00 a.m.; West Palm Beach, FL).
- PDF:
- Date: 08/29/2000
- Proceedings: Petitioner`s Response to Respondent`s Motion for Continuance (filed via facsimile).
- PDF:
- Date: 08/18/2000
- Proceedings: Petitioner`s Response to Order of Prehearing Instructions (filed via facsimile).
- PDF:
- Date: 07/25/2000
- Proceedings: Notice of Hearing sent out. (hearing set for August 30, 2000; 9:00 a.m.; West Palm Beach, FL)
- PDF:
- Date: 06/26/2000
- Proceedings: Amended Respondent`s Response to Initial Order (filed via facsimile).
- Date: 06/15/2000
- Proceedings: Initial Order issued.
Case Information
- Judge:
- ERROL H. POWELL
- Date Filed:
- 06/12/2000
- Date Assignment:
- 06/21/2000
- Last Docket Entry:
- 05/31/2001
- Location:
- West Palm Beach, Florida
- District:
- Southern
- Agency:
- ADOPTED IN TOTO