09-004644 Department Of Health vs. Scott Womble, D/B/A Womble's Septic Tank Service, Inc. Status: Closed Recommended Order on Tuesday, November 10, 2009.

Summary: Petitioner demonstrated that Respondent failed to obtain a permit for two septic system repairs as alleged in Counts I and II of the Administrative Complaint. Count III was not proven by clear and convincing evidence.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

)

Petitioner, )

)

vs. ) Case No. 09-4644

)

SCOTT WOMBLE, d/b/a WOMBLE'S )

SEPTIC TANK SERVICE, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

On October 15, 2009, a duly-noticed hearing was held in

Tallahassee, Florida, before Lisa Shearer Nelson, an

Administrative Law Judge assigned by the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Jennifer A. Tschetter, Esquire

Department of Health

4052 Bald Cypress Way, Bin A-02

Tallahassee, Florida 32399-1703

For Respondent: Scott Womble, pro se

2970 Lake Bradford Road South

Tallahassee, Florida 32310

STATEMENT OF THE ISSUES

The issues to be resolved are whether Respondent performed repairs to septic tank systems without obtaining the required

permits in three different instances, in violation of Florida

Administrative Code Rule 64E-6.022, and if so, what penalty

should be imposed for the violations proven.

PRELIMINARY STATEMENT

On July 16, 2009, the Department of Health (Department or

DOH) filed a three-count Administrative Complaint alleging that

Respondent failed to obtain the necessary permits before

performing repairs to three septic tank systems, in violation of

Florida Administrative Code Rule 64E-6.022. Respondent disputed

the allegations in the Administrative Complaint and requested a

hearing pursuant to Section 120.57(1), Florida Statutes. On

August 25, 2009, the case was referred to the Division of

Administrative Hearings for assignment of an administrative law

judge.

The case was assigned to the undersigned and on

September 10, 2009, noticed for hearing to be conducted on

October 15, 2009. The case proceeded as scheduled. The

Petitioner filed a Pre-Hearing Statement on October 13, 2009,

which represented that the parties stipulated to the truth of

certain facts included, where relevant, in the findings of fact

stated below. At the commencement of hearing, Respondent

confirmed that he stipulated to those facts.

At hearing, Petitioner presented the testimony of Kathy

Davis and Alex Mahon, and Petitioner's Exhibits 1-12 were

admitted into evidence. Respondent testified on his own behalf

and Respondent's Exhibits 1-3 were admitted. Although the

proceedings were recorded, no transcript was ordered. The

parties were given until Monday, October 26, 2009, to file

proposed recommended orders. The Department's submission was

filed October 27 and Respondent's was filed October 28, 2009.

Both have been carefully considered in the preparation of this

Recommended Order. All references to Florida Statutes are to the

2008 codification, unless otherwise indicated. 1/

FINDINGS OF FACT

1. The Department, an agency of the State of Florida, has

responsibility for the regulation of septic tank contractors

pursuant to Chapters 381, 386 and 489, part III, Florida

Statutes.

2. The Respondent, Scott Womble, is a resident of the State

of Florida and has been authorized by the Department to provide

septic tank contracting services.

5168 Pimlico Drive

3. In 2003, Respondent replaced the drainfield on the real

property located at 5168 Pimlico Drive, Tallahassee, Florida.

4. A permit for the repair of the drainfield was issued in

2003, which listed Respondent as the agent for the permit

applicant.

5. In 2006, Respondent pumped out the septic tank at the

Pimlico Drive location. Pumping out the septic tank does not

require a permit.

6. In 2006, Respondent also installed new "old style"

chambers and end caps. Chambers are used to repair the

drainfield. Repair of the drainfield requires a permit.

7. A review of the records for the Leon County Health

Department REHOST database revealed that no permits had been

applied for or obtained for any work in 2006, 2007 or 2008 at the

Pimlico address.

1351 Cochise Trail

8. On or about December 19, 2008, Alex Mahon and Kathy

Davis from the Leon County Health Department, Environmental

Health Division, went to real property located at 1351 Cochise

Trail in Tallahassee. Mahon and Davis went to the property in

response to a phone call received from Respondent requesting the

verification of a site evaluation. Site evaluations are required

to be completed as part of the application process for a permit

for septic tank installation.

9. When Mahon and Davis arrived at the property, no one

from Respondent's company was present. However, upon their

arrival they observed that the septic tank and drainfield had

been installed.

10. A permit application had been submitted for the work at

1351 Cochise Trail. However, the application was incomplete and

the permitting fee had not been included with the application.

Accordingly, no permit had been issued for the work that was

already completed at the time Mahon and Davis visited the site.

11. Later that day, Respondent provided the missing

documentation required for the issuance of the permit, and paid

the permitting fee. At that time, a permit for the work was

issued.

2207 Bannerman

12. In January 2009, Kathy Davis from the Leon County

Health Department received a call that work was being performed

at 2207 Bannerman Road, which was the location for the La

Hacienda Restaurant. She visited the site to see what work was

being performed.

13. At the time of Ms. Davis' visit, there was no work

being performed at the site. There was, however, equipment

present at the location and excavation of the drainfield had been

performed. Used drainfield chambers had been dug up and were

present on the site as well.

14. No permit had been obtained for drainfield repair.

Ms. Davis could not say whether any drainfield had been

installed. She could only state with certainty that the area

containing the drainfield had been excavated.

15. Ms. Davis was aware that Respondent had been pumping

out the septic tank on the property, which did not require a

permit.

CONCLUSIONS OF LAW

16. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action in accordance with Sections 120.569 and 120.57(1), Florida

Statutes (2009).

17. The Department has disciplinary jurisdiction over

septic tank contractors pursuant to the provisions of Chapters

381, 386 and 489, part III, Florida Statutes.

18. As the entity seeking to impose discipline, the

Department bears the burden of proving the allegations in the

Administrative Complaint by clear and convincing evidence.

Department of Banking and Finance, Division of Securities and

Investor Protection v. Osborne Stern Co. , 670 So. 2d 932 (Fla.

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

19. Section 381.0065, Florida Statutes, provides the

Department the following regulatory authority:

(3) DUTIES AND POWERS OF THE DEPARTMENT OF

HEALTH.--The department shall:

(a) Adopt rules to administer ss. 381.0065 -

381.0067, including definitions that are

consistent with the definitions in this

section, . . . application and permit

requirements for persons who maintain an

onsite sewage treatment and disposal system,

requirements for maintenance and service

agreements for aerobic treatment units and

performance-based treatment systems, and

recommended standards, including disclosure

requirements, for voluntary system

inspections to be performed by individuals

who are authorized by law to perform such

inspections and who shall inform a person

having ownership, control, or use of an

onsite sewage treatment and disposal system

of the inspection standards and of that

person's authority to request an inspection

based on all or part of the standards.

* * *

(h) Conduct enforcement activities,

including imposing fines, issuing citations,

suspensions, revocations, injunctions, and

emergency orders for violations of this

section, part I of chapter 386, or part III

of chapter 489 or for a violation of any rule

adopted under this section, part I of chapter

386, or part III of chapter 489.

* * *

(4) PERMITS; INSTALLATION; AND CONDITIONS.--

A person may not construct, repair, modify,

abandon, or operate an onsite sewage

treatment and disposal system without first

obtaining a permit approved by the

department. . . . A repair permit is valid

for 90 days from the date of issuance. . . .

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. A

property owner who personally performs

construction, maintenance, or repairs to a

system serving his or her own owner-occupied

single-family residence is exempt from

registration requirements for performing such

construction, maintenance, or repairs on that

residence, but is subject to all permitting

requirements. . . .

* * *

(5) ENFORCEMENT; RIGHT OF ENTRY; CITATIONS.

--

(a) Department personnel who have reason to

believe noncompliance exists, may at any

reasonable time, enter the premises permitted

under ss. 381.0065-381.0066, or the business

premises of any septic tank contractor or

master septic tank contractor registered

under part III of chapter 489, or any

premises that the department has reason to

believe is being operated or maintained not

in compliance, to determine compliance with

the provisions of this section, part I of

chapter 386, or part III of chapter 489 or

rules or standards adopted under ss.

381.0065-381.0067, part I of chapter 386, or

part III of chapter 489. . . .

(b)1. The department may issue citations

that may contain an order of correction or an

order to pay a fine, or both, for violations

of ss. 381.0065-381.0067, part I of 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, or when a

violation of these sections or rules is a

misdemeanor of the second degree. A citation

issued under ss. 381.0065-381.0067, part I of

chapter 386, or part III of chapter 489

constitutes a notice of proposed agency

action.

2. A citation must be in writing and must

describe the particular nature of the

violation, including specific reference to

the provisions of law or rule allegedly

violated.

3. The fines imposed by a citation issued by

the department may not exceed $500 for each

violation. Each day the violation exists

constitutes a separate violation for which a

citation may be issued.

4. The department shall inform the

recipient, by written notice pursuant to ss.

120.569 and 120.57, of the right to an

administrative hearing to contest the

citation within 21 days after the date the

citation is received. The citation must

contain a conspicuous statement that if the

recipient fails to pay the fine within the

time allowed, or fails to appear to contest

the citation after having requested a

hearing, the recipient has waived the

recipient's right to contest the citation and

must pay an amount up to the maximum fine.

5. The department may reduce or waive the

fine imposed by the citation. In determining

whether to reduce or waive the fine, the

department must consider the gravity of the

violation, the person's attempts at

correcting the violation, and the person's

history of previous violations including

violations for which enforcement actions were

taken under ss. 381.0065-381.0067, part I of

chapter 386, part III of chapter 489, or

other provisions of law or rule.

* * *

8. This section provides an alternative

means of enforcing ss. 381.0065-381.0067,

part I of chapter 386, and part III of

chapter 489. This section does not prohibit

the department from enforcing ss. 381.0065-

381.0067, part I of chapter 386, or part III

of chapter 489, or its rules, by any other

means. However, the department must elect to

use only a single method of enforcement for

each violation.

20. The Department has adopted rules that govern

the construction and permitting of septic tank systems.

Florida Administrative Code Rule 64E-6.003(1) provides:

(1) System Construction Permit -- No portion

of an onsite sewage treatment and disposal

system shall be installed, repaired, altered,

modified, abandoned or replaced until an

"Onsite Sewage Treatment and Disposal System

Construction Permit" has been issued on Form

DH 4016. . . . Servicing or replacing with

like kind mechanical or electrical parts of

an approved onsite sewage treatment and

disposal system; pumping of septage from a

system; or making minor structural

corrections to a tank, or distribution box,

does not constitute repair.

21. The Department has proven by clear and convincing

evidence the violation alleged in Count I of the Administrative

Complaint. The competent, persuasive evidence at hearing

indicates that Respondent had installed new "old style" chambers

and end caps, which are used for the repair of a drainfield.

The invoice provided to the Department indicates that these

services were billed to and paid by the homeowner. Respondent's

arguments that the problems were caused by excessive water use

and a difficult homeowner do not address whether a permit was

required or obtained. Regardless of the reason for the system's

failure, or how difficult the homeowner may have been, the work

perform required a permit.

22. The Department has also proven by clear and convincing

evidence that Respondent committed the violation alleged in Count

II. The fact that Respondent had applied for a permit does not

excuse performance of the work prior to obtaining the permit. In

this case, the persuasive competent evidence indicates that the

application originally submitted was not complete and did not

include the permit fee, and that no permit had issued at the time

the work was performed. Respondent's position that the

Department took too long to issue the permit has no merit. The

Department was under no obligation to issue the permit until the

application was complete and the permit fee paid.

23. However, the allegations in Count III were not proven

by clear and convincing evidence. No one who testified actually

saw Respondent or his employees repairing the drainfield or

excavating the drainfield site. Those activities that can be

attributed to Respondent, i.e. , pumping out the septic system and

perhaps excavation at the site, are not activities that require a

permit. Petitioner points to the pictures that show used

chambers that were present on the jobsite as evidence that

Respondent was repairing the drainfield without a permit. The

Department's witnesses acknowledged that they did not know

whether any drainfield was installed. They only knew that

excavation of the drainfield had taken place. Count III of the

Administrative Complaint should be dismissed.

24. Florida Administrative Code Rule 64E-6.022 provides

disciplinary guidelines for violations of the type at issue in

this case. It provides in pertinent part:

(1) It shall be the responsibility of

persons registered under this rule to see

that work for which they have contracted and

which has been performed by them or under

their supervision is carried out in

conformance with the requirements of all

applicable Florida Statutes and Chapter 64E-

6, F.A.C. The following actions by a person

included under this rule shall be deemed

unethical and subject to penalties as set

forth in this section. The penalties listed

shall be used as guidelines in disciplinary

cases, absent aggravating or mitigating

circumstances and subject to other provisions

of this section.

* * *

(b) Permit violations.

1. Contractor initiates work to install,

modify, or repair a system when no permit has

been issued by the department. A permit is

issued after construction is started but

prior to completion of the contracted work.

No inspections are missed. First violation,

letter or warning or fine up to $500; repeat

violations, $500 fine, or revocation.

2. Contracted work is completed without a

permit having been issued, or no permit

application is received until after

contracted work was completed, resulting in

missed inspection or inspections. First

violation, letter of warning or fine up to

$1000; repeat violation, revocation.

25. The Department has recommended that with respect to

Count I, Respondent receive a fine of $1,000; for Count II, a

fine of $500; and for Count III, a fine of $500 and a ninety-day

suspension.

26. Inasmuch as the evidence presented does not support a

finding that Respondent committed the violation alleged in Count

III, the proposed penalty for that count will not be considered.

However, with respect to Counts I and II, the proposed penalty is

at the high end allowed under Rule 64E-6.022. The Department did

not present any evidence of disciplinary history for Respondent,

and Rule 64E-6.022(3) specifies that "a repeat violation is any

violation on which disciplinary action is being taken where the

same licensee had previously had disciplinary action taken

against him or received a letter of warning in a prior case."

Accord , Parrot Heads, Inc. v. Department of Business and

Professional Regulation , 741 So. 2d 1231 (Fla. 5th DCA

1999)(where no finding of a previous violation, penalty cannot be

imposed for "second offense."). Therefore, it would be

appropriate to impose a letter of warning for one of these

offenses, and a fine for the other. Any further violations by

Respondent would result in more severe penalties.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law

reached, it is

RECOMMENDED:

That the Department of Health enter a Final Order finding

Respondent guilty of Count I and issuing a letter of warning;

finding Respondent guilty of Count II and imposing a $750 fine;

and dismissing the charges in Count III.

DONE AND ENTERED this 10th day of November, 2009, in

Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 10th day of November, 2009.

ENDNOTE

1/ The alleged violations took place sometime in late 2006,

December 2008 and January 2009. While there were some amendments

to Section 381.0065, Florida Statutes, during the 2008 session,

they are not relevant to the allegations charged.

COPIES FURNISHED:

Jennifer A. Tschetter, Esquire

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399

Scott Womble

Scott Womble, d/b/a Womble's Septic

Tank Service, Inc.

2970 Lake Bradford Road South

Tallahassee, Florida 32310

R. S. Power, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399-1701

Josefina M. Tamayo, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399-1701

Dr. Ana M. Viamonte Ros, Secretary

State Surgeon General

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.