09-006439 Department Of Health vs. John E. Mcdaniel, D/B/A Superior Septic And Sewer, Inc. Status: Closed Recommended Order on Thursday, February 25, 2010.

Summary: Respondent's septic tank inspection and allowing a non-licensed person to sign the certification demonstrated incompetence or misconduct, resulting in harm to a customer. Respondent's license should be suspended for six months and a $1,000 fine imposed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

)

Petitioner, )

)

vs. ) Case No. 09-6439

)

JOHN E. MCDANIEL, d/b/a )

SUPERIOR SEPTIC AND SEWER, )

INC., )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for final hearing before Robert S.

Cohen, Administrative Law Judge with the Division of

Administrative Hearings (Division), on January 28, 2010, in

Panama City, Florida.

APPEARANCES

For Petitioner: Rodney Marcum Johnson, Esquire

Department of Health

1295 West Fairfield Drive

Pensacola, Florida 32501

For Respondent: John E. McDaniel, pro se

Superior Septic and Sewer, Inc.

7315 Highway 231 North

Panama City, Florida 32404

STATEMENT OF THE ISSUES

The issues, as framed by the Administrative Complaint, are

twofold:

1) Whether Respondent committed gross negligence,

incompetence, or misconduct which caused monetary harm to a

customer, in violation of Florida Administrative Code

Rule 64E-6.022(1)(l)2; and

2) Whether Respondent practiced fraud or deceit by making

a misleading or untrue representation to a home purchaser, or

the home purchaser's agents, incident to a loan application, in

violation of Florida Administrative Code Rule 64E-6.022(1)(k).

PRELIMINARY STATEMENT

Petitioner issued a two-count Administrative Complaint

against Respondent on August 1, 2009. Following a Motion to

Amend, the Administrative Complaint was amended due to a

scrivener's error on September 22, 2009. Respondent timely

filed a request for a formal administrative hearing with

Petitioner. The matter was referred to the Division for

assignment of an administrative law judge on November 23, 2009.

Following another Motion to Amend, the Administrative Complaint

was amended a second time on December 14, 2009. The matter

proceeded to hearing on January 28, 2010, before the

undersigned.

At the hearing, Petitioner presented the testimony of Lisa

McDaniel, David Hammonds, Mike Granger, Glenn Salyer, Bonnie

Milstead, Ben Harrell, John Harrell, Timothy Billings, Scott

Butcher, and Bob Glenn, and offered Exhibits A through U, all of

which were admitted into evidence. Respondent testified on his

own behalf, and presented the testimony of Debbie Bass, Phillip

Fetner, Patrick Cantley, and Lyle Ake, and offered Exhibits 1

through 14 and 16 through 22, all of which were admitted into

evidence.

Neither party ordered a transcript. After the hearing,

Petitioner and Respondent filed their Proposed Findings of Fact

and Conclusions of Law on February 22, 2010.

References to statutes are to Florida Statutes (2008)

unless otherwise noted.

FINDINGS OF FACT

1. Petitioner, Department of Health, is an agency of the

State of Florida as defined in Section 120.52, Florida Statutes.

Petitioner's actions in this matter are governed in part by

Chapters 381 and 489, Florida Statutes, as well as Florida

Administrative Code Chapter 64E-6.

2. Respondent, at all times material to this matter, was

licensed by Petitioner under Part III of Chapter 489, Florida

Statutes, entitled, "Septic Tank Contracting."

3. Respondent is subject to the regulatory jurisdiction of

Petitioner, having been issued Registration Number SR0931141 to

engage in septic tank contracting, and Certificate of

Authorization Number SA0890161 to do business as Superior Septic

and Sewer, Inc.

4. Petitioner seeks to impose revocation of Respondent's

License and Certificate of Authorization for violations of

Florida Administrative Code Rule 64E-6.022(1)(l)2. and (1)(k),

with aggravation pursuant to Rule 64E-6.022(2).

5. Air Force Captain Timothy Billings made an offer that

was accepted to purchase a home located at 1938 Quail Run, Lynn

Haven, Florida, prior to September 12, 2008.

6. Captain Billings worked with a realtor, Bonnie

Milstead, and arranged the various steps required to secure a

Veterans Administration loan with the seller's realtors, Ben and

John Harrell. A septic tank inspection and certification was

one of the loan requirements.

7. On behalf of Captain Billings, Ms. Milstead arranged to

have Respondent's company inspect and certify the septic tank at

1938 Quail Run at a price of $250. The price included the

pumping of the tank for $225 and a $25 charge for the

certification. Captain Billing paid the $250 charge at the

closing on the purchase of the home.

8. John E. McDaniel is the licensed septic tank contractor

for Superior Septic and Sewer, Inc., and is the qualifying

contractor for a Certificate of Authorization to do business as

Superior Septic and Sewer, Inc.

9. On September 15, 2008, one of Respondent's employees,

Phillip Fetner, went to 1938 Quail Run where he was met by Ben

and John Harrell, realtors for seller of the home. Mr. Fetner

was there to inspect only the septic tank, not being equipped or

trained to inspect the entire system and drainfield.

10. Mr. Fetner opened the tank after cutting through roots

that had grown into it. He noted a large amount of roots in the

tank that was also seen by the realtor, Ben Harrell.

11. In spite of the roots, Realtor John Harrell instructed

Mr. Fetner to "go ahead and pump the tank," which he did. He

told John Harrell there were still a lot of roots in the tank.

12. Mr. McDaniel discussed with John Harrell an additional

charge of $400 to remove the roots from the tank. Mr. Harrell

did not order the additional work.

13. Mr. McDaniel believed that enough roots had been

removed from the tank by Mr. Fetner for a certification to be

issued, but Mr. Fetner did not confirm this.

14. Debbie Bass, a clerical staff member of Respondent,

completed the certification form prior to the inspection being

complete. This was her custom so that she could stay ahead of

the work load. The form was left in the inbox to be signed by

Mr. McDaniel. Ms. Bass did not falsify any records nor had she

ever been asked to do so in her four-and-a-half years with

Respondent.

15. The certification form was signed by Mr. McDaniel

without the additional root work having been done by his

company. The mortgage lender relied upon the certification to

make the loan to Captain Billings.

16. Mr. McDaniel did not directly inform Captain Billings

or his realtor, Ms. Milstead, that the septic tank was full of

roots. He believed that the root situation had been disclosed

since the seller's realtors, the Harrells, had been on-site at

the time of the inspection.

17. Captain Billings testified that had he been fully

aware of the root situation, he would have probably walked away

from the deal because he did not want to have to deal with

problems in the future.

18. Mr. McDaniel allows his wife, Lisa McDaniel, to sign

his name in his capacity as a licensed septic tank contractor.

Lisa McDaniel actually signed the certification on the

1938 Quail Run property.

19. Respondent's position is that the certification was

sent out by mistake because the root removal work had not been

performed on the tank. Mr. McDaniel does not dispute the fact

that the certification form was prepared and signed.

20. Captain Billings experienced problems with the septic

tank system of his newly purchased home at 1938 Quail Run. In

March 2009, he discovered the septic tank and system were full

of roots and not functioning when Roto-Rooter, owned and

operated by Glenn Salyer, removed the manhole access for a pump

out and saw the massive roots.

21. After learning from his realtor that Respondent had

been hired to inspect the septic tank, Captain Billings

contacted Mr. McDaniel, who refused to do anything about the

situation. Even after the filing of the Administrative

Complaint, Mr. McDaniel refused to remedy the situation.

22. Glenn Salyer of Roto-Rooter, a licensed master septic

tank contractor and master plumber, would not have certified the

septic tank at 1938 Quail Run in its September 15, 2008,

condition.

23. Lyle Ake, another licensed septic tank contractor,

would not have certified the septic tank at 1938 Quail Run in

its September 15, 2008, condition.

24. The septic tank should not have been certified in its

September 15, 2008, condition.

25. Roots intruding into the septic tank indicate it is

not watertight. However, a system having roots can perform

properly without incident for many years.

26. When the entire system was inspected by Mr. Salyer, it

was non-functional and needed replacement.

27. Roto-Rooter replaced the septic tank system,

consisting of a new septic tank and drainfield, at 1938 Quail

Run on October 12, 2009. Captain Billings paid $4,500 for the

replacement system.

28. According to David Hammonds, an expert on the rules

and functioning of septic tank systems, the system was being

inspected and evaluated pursuant to Florida Administrative Code

Rule 64E-6.001(5), the Procedure for Voluntary Inspection and

Assessment of Existing Systems. The Rule provides specific

items to be inspected unless the requesting party, in writing,

states that specific items are not to be inspected. Mr.

Hammonds testified that after his review of the exhibits and the

site, he concluded that the septic tank system at 1938 Quail Run

was "a failing system."

29. Mr. Hammonds concluded that the pump-out procedure

could have been completed once enough roots were removed to get

the pump into the tank.

30. Mr. Hammonds noted that the roots had been in the tank

for a very long time, maybe years. Roots in the tank can lead

to many problems. Roots affect capacity; they damage the tank

itself, leading to cracks and leaks; and can lead to the leaking

of sewage around the tank cover and seams.

31. Mr. Hammonds noted that the high fluid level in the

tank, almost up to the lid, is an indication of the entire

system not working properly.

32. The reporting requirements in the Voluntary Assessment

Rule do not require the use of a particular inspection form.

The Rule does specify what must be inspected and reported.

33. Respondent accurately listed the features of the tank

on the certification form: the tank was 1,050 gallons; the tank

had neither a baffle nor a filter; and the tank was structurally

sound.

34. Mr. McDaniel believes this matter is all the result of

an office error and that he should not be held responsible.

35. Mr. McDaniel has a history of disciplinary matters

with Petitioner. He has been cited for 18 violations in six

cases as well as a non-disciplinary letter of concern.

36. On September 13, 1996, he was fined $50 for inspecting

a system without a permit.

37. On September 13, 1996, he was fined $100 for two

repairs to a system without a permit and for violating water

table separation and setback from a potable well.

38. DOAH Case No. 99-2474 resulted in a Final Order

imposing an administrative fine of $3,300 for the removal of

tank filters after final inspection by department personnel.

Judge P. Michael Ruff found in that case that Respondent's

actions "show a clear intent to mislead regulatory authorities."

39. DOAH Case No. 04-1636 was settled by stipulation and

resulted in a letter of warning with amelioration of a new

drainfield installed by Respondent for an original drainfield

that was improperly installed.

40. On December 2, 2005, Respondent was issued a Letter of

Warning for improper disposal of sewage.

41. DOAH Case No. 07-1651 resulted in jurisdiction in the

matter being relinquished to Petitioner based upon Respondent's

non-appearance at the final hearing. The result was a fine of

$500 for submitting a repair permit application with an

incorrect site plan not showing a shed and a fence positioned

over and in an existing drainfield.

42. A Letter of Concern was issued July 23, 2007, to

Respondent for improperly reporting a larger than actual

capacity of a septic tank. A Letter of Concern is not a formal

discipline under Florida Administrative Code Rule 64E-6.022, but

demonstrates substandard performance by a licensee.

43. Mr. McDaniel believes that other septic tank

contractors have received lighter treatment for their offenses

than he has. Bob Glenn, Petitioner's Environmental Manager for

the Bureau of Onsite Management Program, gave some credence to

Respondent's perception.

CONCLUSIONS OF LAW

44. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat.

45. This prosecution arose under Chapter 489, Part III,

Subsection 389.0065(3)(h), Florida Statutes, and Florida

Administrative Code Chapter 64E-6.

46. Petitioner is charged with administering a program for

the registration of septic tank contractors, including the

adoption of rules that establish ethical standards of practice,

disciplinary guidelines, and requirements for the certification

of partnerships and corporations. See §§ 489.553 and

381.0065(3)(h), Fla. Stat. The pertinent provisions of

Petitioner's disciplinary guidelines set forth in Florida

Administrative Code Rule 64E-6.022 are as follows:

Standards of Practice and Disciplinary

Guidelines.

(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.

* * *

(k) Practicing fraud or deceit, making

misleading or untrue representations. First

violation, letter of warning or fine up to

$500; repeat violation, revocation.

(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, letter of warning or fine

up to $500; repeat violation, $500 fine and

90 day suspension or revocation.

2. Causes monetary or other harm to a

customer, or physical harm to any person.

First violation, letter of warning or fine

up to $500 and 90 day suspension; repeat

violation, $500 fine and revocation.

* * *

(t) The absence of any violation from

this section shall be viewed as an

oversight, and shall not be construed as an

indication that no penalty is to be

assessed.

(2) Circumstances which shall be

considered for the purposes of mitigation or

aggravation of penalty shall include the

following:

(a) Monetary or other damage to the

registrant's customer, in any way associated

with the violation, which damage the

registrant has not relieved, as of the time

the penalty is to be assessed.

(b) Actual job-site violations of this

rule or conditions exhibiting gross

negligence, incompetence or misconduct by

the contractor, which have not been

corrected as of the time the penalty is

being assessed.

(c) The severity of the offense.

(d) The danger to the public.

(e) The number of repetitions of the

offense.

(f) The number of complaints filed

against the contractor.

(g) The length of time the contractor has

practiced and registration category.

(h) The actual damage, physical or

otherwise, to the customer.

(i) The effect of the penalty upon the

contractor's livelihood.

(j) Any efforts at rehabilitation.

(k) Any other mitigating or aggravating

circumstances.

(3) As used in this rule, 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. This definition applies regardless of

the chronological relationship of the

violations and regardless of whether the

violations are of the same or different

subsections of this rule. The penalty given

in the above list for repeat violations is

intended to apply only to situations where

the repeat violation is of a different

subsection of this rule than the first

violation. Where the repeat violation is

the very same type of violation as the first

violation, the penalty set out above will

generally be increased over what is shown

for repeat violations.

47. The performance standard setting rule in question

provides:

(5) The department Procedure for

Voluntary Inspection and Assessment of

Existing Systems, May, 2000, herein

incorporated by reference, shall be applied

except in situations pertaining to an

increase in sewage flow or change in sewage

characteristics, or failure of the system.

The inspection is designed to assess the

condition of a system at a particular moment

in time. The inspection will identify

obviously substandard systems, for example

systems without drainfields. The inspection

is not designed to determine precise code

compliance, nor provide information to

demonstrate that the system will adequately

serve the use to be placed upon it by this

or any subsequent owner. Nothing in this

section shall be construed to limit the

amount of detail an inspector may provide at

their professional discretion. Persons

allowed to perform work under this section

shall be master septic tank contractors,

registered septic tank contractors, state-

licensed plumbers, and persons certified

under Section 381.0101, F.S. Department

employees are excluded from performing these

evaluations. Aerobic treatment units and

performance-based treatment systems shall

not be evaluated using this criteria, but

shall be evaluated by the approved

maintenance entity which maintains the unit

or system. Nothing in this section

restricts the person having ownership of,

control of, or use of an onsite sewage

treatment and disposal system from

requesting a partial inspection. The

inspector shall provide the person

requesting the inspection a copy of the

department Procedure for Voluntary

Inspection and Assessment of Existing

Systems and written notice of their right to

request an inspection based on part or all

of the standards.

Fla. Admin. Code R. 64E-6.001(5).

48. The referenced procedure provides, in relevant part:

These inspection procedures are

intended to be used as a minimum standard

when these types of inspections are

performed. This procedure shall be used if

a person having ownership of, control of, or

use of an onsite sewage treatment and

disposal system requests to have the system

inspected due to a reason that is not

related to an increase in sewage flow or

change in sewage characteristics, or failure

of the system.

(1) Inspection Procedures: All inspection

procedures used by the inspector shall be

documented. Unless the person requesting

the inspection specifies in writing that

parts of the inspection be omitted, the

inspection shall include a tank inspection,

a drainfield inspection, and a written

assessment of the condition of the system.

At any time where an inspector finds that

the system is in failure, or has been in

failure, the inspector may choose to

terminate the inspection and inform the

owner of the findings.

(2) Tank Inspection: (when not omitted at

the written instruction of the person

requesting the inspection):

The tank must be pumped to determine its

capacity.

* * *

Visual inspection of the tank must be made

when the tank is empty to detect cracks,

leaks, or other defects. Check baffles or

tees to ensure they are intact and secure.

Note the presence and condition of outlet

device, effluent filters and compartment

walls. Note any structural defects in the

tank. Note the condition and fit of the

tank lid, including manholes.

* * *

(3) Drainfield Inspection: (when not

omitted in the written instruction of the

person requesting the inspection): The

drainfield area should be probed to

determine its location and approximate size.

Note whether the drainfield is a trench or

bed configuration and whether it is made of

mineral aggregate, non-mineral aggregate, or

plastic chambers. In addition, note any

indications of previous failure, the

condition of surface vegetation, for

example, is there any seepage visible or

excessively lush vegetation? If so, the

inspector should note if there is ponding

water within the drainfield and if there is

even distribution of effluent in the field.

The inspection should note any downspouts or

drains that encroach or drain into the

drainfield area. Auger and examine the

soils to estimate the seasonal high water

table in the area of the drainfield.

* * *

(5) Assessment: The inspector shall

provide a copy of a written signed

inspection report to the person requesting

the assessment and the owner of the system.

* * *

(b) The report will indicate any

maintenance that needs to be performed on

the system.

DISCLOSURE STATEMENTS:

The following conditions, when determined

during the course of an inspection, shall be

disclosed using the appropriate disclosure

statement below. When the person requesting

the inspection has made written

specification that portions of the

inspection be omitted, the inspector's

written report shall indicate any of the

conditions that could not be properly

assessed because of the limited scope of the

inspection.

1. When the inspector detects cracks,

leaks, improper fit or other defects in the

tank, manholes or lid, the report shall

state that the damaged or defective item or

tank be properly corrected.

2. When the inspector detects any missing

or damaged component of the system, the

report shall state that the missing or

damaged component be replaced or an

approvable replacement be installed in the

system.

3. When the inspector detects previous

failure indicators, these should be

documented in the report.

* * *

Visual inspection of the tank must be made

when the tank is empty to detect cracks,

leaks, or other defects. Check baffles or

tees to ensure they are intact and secure.

Note the presence and condition of outlet

device, effluent filters and compartment

walls. Note any structural defects in the

tank and note the condition and fit of the

tank lid, including manholes.

* * *

When the inspector detects cracks, leaks,

improper fit or other defects in the tank,

manholes or lid, the report shall state that

the damaged or defective item or tank be

properly corrected.

When the inspector detects any missing or

damaged component of the system, the report

shall state that the missing or damaged

component be replaced or an approvable

replacement installed in the system.

Procedure for Voluntary Inspection and Assessment of Existing

Systems, May, 2000.

49. Septic tank failure is defined as:

Failure—a condition existing within an on

site sewage treatment and disposal system

which prohibits the system from functioning

in a sanitary manner and which results in

the discharge of untreated or partially

treated wastewater onto ground surface, into

surface water, into ground water, or which

results in the failure of building plumbing

to discharge properly.

Fla. Admin. Code R. 64E-6.002(23).

50. To determine what discipline, if any, should be

assessed against Respondent, the inquiry must begin with what

services were requested of Respondent. Captain Billings'

realtor, Bonnie Milstead, faxed to Respondent a "Request for

Pump and Certification of Septic Tank." The request stated that

Respondent should contact the listing agent, Ben Harrell, for

access to the house. Respondent sent his employee, Mr. Fetner,

to the house at 1938 Quail Run where he met Mr. Harrell. The

tank was pumped and inspected, and Mr. Fetner noted that the

tank was precast; 1,050 gallons in capacity; the lid, walls, and

bottom of the tank were intact; the tank was sealed; and that

the tank had no baffles or filters. He also noted that the

"tank has a lot of roots." Relying upon the report of his

employee, Mr. McDaniel informed the realtor for the seller,

Mr. Harrell, that he would remove the roots for an additional

$400. Apparently, such work was not ordered. Whether by

mistake or intentionally, Respondent issued the invoice for the

pumping of the tank and the certification that the tank had been

pumped and that it was structurally sound. The section of

Petitioner's approved certification form related to inspection

of the system was left blank and unsigned. Anyone looking at

the form would see that only the tank had been inspected, not

the entire system and drainfield.

51. The question next turns on who had a duty to inspect

the system and drainfield. By the strict wording of the letter

from Ms. Milstead, Respondent performed the pump out and

inspection of the tank. The letter required nothing more.

Additionally, Respondent told the seller's realtor that the

roots should be removed and quoted a price for their removal.

No evidence was produced at hearing that anyone asked Respondent

to inspect the entire system and drainfield and to render an

opinion as to their condition and quality.

52. Captain Billings testified that he would have walked

away from the deal had he known he was buying into a system that

would need $4,500 of repair in his first year of occupancy.

What the evidence did not explain is why neither Captain

Billings' realtor, Ms. Milstead, who ordered the pump out and

certification, or the seller's realtor, Mr. Harrell, who was

present at the time of the inspection and understood that the

roots could be removed for $400, did not make this information

known to Captain Billings. Moreover, either or both of the

realtors could have requested that the system and drainfield be

inspected based upon the fact that extensive roots were found in

the septic tank.

53. Based upon the credible expert testimony, Respondent

should have inquired further and at least mentioned to

Ms. Milstead or Mr. Harrell that the existence of extensive

roots in the tank might lead one to inspect and test further to

be sure the roots had not damaged the entire system. However,

Respondent would not have been the one to perform such an

inspection since he testified that he only inspects septic

tanks, not entire systems and drainfields.

54. While Respondent presented some evidence that his

treatment at the hands of the local inspectors may have been

historically a bit more heavy-handed than others' treatment in

the same county, this evidence does not rise to the level of

proving significant disparate treatment by the Bay County and

Florida Health Departments. Therefore, this claim by Respondent

will not excuse his actions in this case.

55. The Voluntary Assessment Rule, discussed above, sets

forth specific obligations of the registered septic tank

contractor who undertakes a voluntary assessment of a septic

tank and drainfield for purposes other than repair. The

Voluntary Assessment Rule clearly states that the registered

septic tank contractor is to examine the septic tank and

drainfield. However, the Rule allows the requestor of the

inspection to limit the scope of the inspection. In this case,

Ms. Milstead's Request for Pump and Certification of Septic

Tank, which she faxed to Respondent, limited the scope of the

inspection to the septic tank which included a pump out of the

tank. Respondent's employee pumped and inspected the tank only,

not the system and drainfield. While Respondent's employee

found there to be significant roots in the tank, which

Mr. McDaniel proposed to remove for a fee, he also stated in his

report that the septic tank appeared to be in working order.

The seller's realtor, for whatever reason, chose neither to

order the removal of the roots for $400 nor to disclose the

condition of the tank regarding the roots to either Ms. Milstead

or Captain Billings. Regardless of whether the certification

was issued in error prior to anything being done about the

roots, Respondent is not wholly to blame in this matter.

56. Count I of the Administrative Complaint raises the

issue of whether Respondent committed gross negligence,

incompetence, or misconduct which caused monetary harm to a

customer as a violation of Florida Administrative Code

Rule 64E-6.022(1)(l)2. The monetary harm here is clear:

Captain Billings suffered $4,500 in damages by having to replace

his septic system. The issue, however, is whether Respondent's

actions or omissions caused this damage. Respondent was hired

for the limited purpose of pumping out and inspecting the septic

tank at 1938 Quail Run. His employee pumped out and inspected

the tank and made notes as well as personally informing (and

showing) the realtor on site that extensive roots had intruded

into the tank. Mr. McDaniel followed this up by informing the

same realtor, Mr. Harrell, that he would remove the roots for

$400. The drainfield was not inspected at the time of the pump

out because Ms. Milstead's letter had limited the scope of the

inspection. Perhaps Respondent should have directly informed

Ms. Milstead concerning the roots and his offer to remove them.

Perhaps he should have directly informed Captain Billings of

this information. What Respondent did was inform the realtor

who was on site at the time of the inspection that a problem

existed with the septic tank. For whatever reason, that same

realtor did not follow up on the root issue. At least some

responsibility lies with the agent for the seller of the home.

57. Respondent was clearly negligent in allowing his wife,

an unlicensed septic tank contractor, to sign the certification.

In fact, his negligence is compounded by the fact that the

certification was signed when Respondent clearly knew about the

root problem and did not reference it in his report, even though

he quoted a price to the seller's realtor for root removal. It

is safe to assume that the lender would have taken some action

to protect the value of the property had a more detailed report

been issued by Respondent. The certification report issued made

no mention of roots or wear to the system. It was cursory, at

best, and not even signed by the licensed contractor in this

case. Respondent should not have allowed his wife or any

unlicensed person in the office to sign a certification whether

that certification was to be used for purposes of a home

purchase or for any other purpose. Moreover, he should have

followed up to ensure the root problem was alleviated and should

have taken personal responsibility for his office snafu which

led to the certification being sent to the lender in error.

Respondent's actions rise above the level of simple negligence

and, while not clearly a case of gross negligence, constitute

incompetence or misconduct. Respondent's actions, while not the

sole cause of Captain Billings' damages, significantly

contributed to these damages and constitute a violation of

Florida Administrative Code Rule 64E-6.022(1)(l)2. The penalty

for violating this Rule the first time is a fine not to exceed

$500 and a 90-day suspension of the license. This level of fine

and suspension would be appropriate in this case subject to

whether aggravating factors exist.

58. Count II of the Administrative Complaint charges

Respondent with practicing fraud or deceit by making a

misleading or untrue representation to the home purchaser,

Captain Billings, or purchaser's agents, as part of a loan

application in violation of Florida Administrative Code

Rule 64E-6.022(1)(k). While Respondent's actions were negligent

and constitute incompetence or misconduct which subjects him to

discipline, Petitioner has not proven that Respondent practiced

fraud or deceit. As set forth above, Respondent failed to

follow up with the removal of the roots from the septic tank he

inspected; he failed to inform anyone other than the realtor on

site of the root problem, including the realtor (Ms. Milstead)

who engaged his services; and he allowed his wife to sign the

certification, although he has maintained the certification was

issued in error. Respondent stood to make more money on this

job by following up with root removal and even possible repairs

to the septic tank system had he found it in need of greater

service than a mere inspection. The elements of fraud or deceit

are not present in the case presented by Petitioner.

59. Respondent's disciplinary history demonstrates at best

a lack of understanding of the law and rules that govern his

profession, and, at worst, a disregard of these requirements.

Florida Administrative Code Rule 64E-6.022(2) and (3) provides

enhanced penalties for aggravating factors and offer guidance on

how to assess the penalties:

(2) Circumstances which shall be considered

for the purposes of mitigation or

aggravation of penalty shall include the

following:

(a) Monetary or other damage to the

registrant's customer, in any way associated

with the violation, which damage the

registrant has not relieved, as of the time

the penalty is to be assessed.

(b) Actual job-site violations of this

rule or conditions exhibiting gross

negligence, incompetence or misconduct by

the contractor, which have not been

corrected as of the time the penalty is

being assessed.

(c) The severity of the offense.

(d) The danger to the public.

(e) The number of repetitions of the

offense.

(f) The number of complaints filed

against the contractor.

(g) The length of time the contractor has

practiced and registration category.

(h) The actual damage, physical or

otherwise, to the customer.

(i) The effect of the penalty upon the

contractor's livelihood.

(j) Any efforts at rehabilitation.

(k) Any other mitigating or aggravating

circumstances.

(3) As used in this rule, 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. This definition applies regardless of

the chronological relationship of the

violations and regardless of whether the

violations are of the same or different

subsections of this rule. The penalty given

in the above list for repeat violations is

intended to apply only to situations where

the repeat violation is of a different

subsection of this rule than the first

violation. Where the repeat violation is

the very same type of violation as the first

violation, the penalty set out above will

generally be increased over what is shown

for repeat violations.

Most of Respondent's previous violations are minor, relating to

failure to secure a permit, exceeding the scope of a permit, or

removing filters after inspection. At least one is significant,

the case resulting in a formal hearing before the Division, Case

No. 99-2474. That case resulted in a substantial fine of $3,300

to be paid to the Walton County Health Department ($300) and the

Bay County Health Department ($3,000). Although the case is

more than 10 years old, it was not Respondent's last infraction

and demonstrates he has not fully taken to heart the seriousness

of repeated violations of the septic tank contractor law.

Therefore, Petitioner has proved that any penalties assessed in

this case are aggravated by Respondent's prior acts.

Accordingly, the penalty imposed here should be enhanced. A

doubling of the penalty and suspension described in Conclusion

of Law 57 above constitutes an appropriate resolution to this

matter.

60. Petitioner has sought revocation of Respondent's

license to engage in septic tank contracting. Based upon the

foregoing findings of fact, the undersigned cannot conclude that

Respondent's license should be revoked. While he has been

repeatedly disciplined over the past 15 years, he has not yet

suffered a suspension of his license. A six-month suspension is

appropriate in this case to send a message to Respondent that

further violations will most likely result in a revocation of

his license to engage in septic tank contracting.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law,

it is

RECOMMENDED that a final order be issued by the Department

of Health suspending Respondent for six months; suspending

Respondent's Septic Tank Contractor Registration Number

SR0931141 and Certificate of Authorization Number SA0890161 to

do business as Superior Septic and Sewer, Inc.; and imposing a

fine in the amount of $1,000.00, on Respondent.

DONE AND ENTERED this 25th day of February, 2010, in

Tallahassee, Leon County, Florida.

S

ROBERT S. COHEN

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 25th day of February, 2010.

COPIES FURNISHED :

Rodney Marcum Johnson, Esquire

Department of Health

1295 West Fairfield Drive

Pensacola, Florida 32501

John E. McDaniel

Superior Septic and Sewer, Inc.

7315 Highway 231 North

Panama City, Florida 32404

Dr. Ana M. Viamonte Ros, Secretary

State Surgeon General

Department of Health

4052 Bald Cypress Way, Bin A00

Tallahassee, Florida 32399-1701

Josefina M. Tamayo, 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

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.