98-000203 Department Of Health vs. Frank Crimi, D/B/A A. Lampson Septic Tank Company Status: Closed Recommended Order on Monday, June 29, 1998.

Summary: Septic tank contractor guilty of installing drainfield without required permit and also guilty of gross negligence, incompetence or misconduct inasmuch as drainfield was substantially undersized.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

)

Petitioner, )

)

vs. ) Case No. 98-0203

)

FRANK CRIMI d/b/a A. LAMPSON )

SEPTIC TANK COMPANY , )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

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

this case on May 8, 1998, by video teleconference at sites in

Fort Lauderdale and Tallahassee, Florida, before Stuart M.

Lerner, a duly designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Kimberly A. Tendrich, Esquire

Department of Health

2421-A Southwest 6th Avenue

Fort Lauderdale, Florida 33315

For Respondent: No Appearance

STATEMENT OF THE ISSUES

1. Whether Respondent committed the violations alleged in

the Administrative Complaint.

2. If so, what action should be taken against him.

PRELIMINARY STATEMENT

On May 15, 1995, the Department of Health (Department),

through its predecessor, the Department of Health and

Rehabilitative Services 1 , issued an Administrative Complaint

against Respondent, a Florida-registered septic tank contractor,

alleging that Respondent had committed the following violations:

(a) Violation of s. 10D-6.075(4)(b)2, FAC.

On or about January 24, 1994, the Respondent

installed an onsite sewage treatment and

disposal system at 2425 Riverlane Terrace,

Ft. Lauderdale, Broward County, Florida. The

work was performed without the required

construction permit or final inspections and

approval from the department. Such actions

are a violation of s. 10D-6.075(4)(b)2,

FAC. . . .

(b) Violations of s. 10D-6.075(4)(l)2, FAC.

Within six months of the illegal

installation, the system had failed. The

Respondent's gross negligence, incompetence,

or misconduct caused the customer monetary

harm in the amount of $875.00 (eight hundred

seventy-five dollars) and created a sanitary

nuisance injurious to health as defined in

chapter 386, Florida Statutes. . . .

The Department further asserted in the Administrative Complaint

that "[t]he above facts, as alleged, are grounds upon which the

Respondent's septic tank contracting registration and

authorization must be suspended 2 and an administrative fine must

be imposed."

Respondent requested an informal hearing on the matter. In

a letter dated July 26, 1995, that he sent to the Department,

which read as follows, Respondent explained why he was requesting

a hearing:

The reason why I am requesting an informal

hearing is because I am not in agreement with

Mrs. Gibson's statement in reference to the

job which was performed at her residence.

An informal hearing was held and a final order issued by the

Department, from which Respondent appealed to the Fourth District

Court of Appeal. The appeal was dismissed pursuant to a

Stipulation for Dismissal entered into by the parties, which read

as follows:

COMES NOW, the Appellant, Frank Crimi d/b/a

Lampson Septic Tank Company, and the

Appellee, State of Florida Department of

Health and Rehabilitative Services, by and

through their undersigned counsel[][and]

hereby file[] this Stipulation for Dismissal

pursuant to Rule 9.350(a), Fla. R. App. P.

and in support thereof state the following:

1. That the parties to this action have

amicably agreed to dismiss this appeal.

2. That this appeal has been settled to the

satisfaction of all parties.

3. That upon receipt of an Order of this

Honorable Court dismissing this appeal, that

this case will be referred to the Agency

Clerk for the Department of Health, whereby a

request for a formal administrative hearing

will be made.

WHEREFORE, Appellant and Appellee pray that

an Order be entered Dismissing this Appeal.

Such an order was issued by the Fourth District Court of

Appeal on March 14, 1997. On January 13, 1998, the Department

referred the matter to the Division of Administrative Hearings

(Division) for the assignment of a Division Administrative Law

Judge to conduct a Section 120.57(1) hearing.

The Section 120.57(1) hearing was scheduled for May 8, 1998.

The Department and Respondent were provided with written notice

of the hearing in accordance with Section 120.569(2)(b), Florida

Statutes. 3

The Department appeared at the hearing, which was held as

scheduled on May 8, 1998, through one of its Senior Attorneys,

Kimberly A. Tendrich, Esquire. Respondent did not make an

appearance at the hearing, either in person or through counsel or

an authorized representative.

At the hearing, the Department presented the testimony of

four witnesses (Gayle Gibson, Margaret Chamberlain, Jay

Morgenstern, and Howard Rosen). It also offered six exhibits

(Petitioner's Exhibits 1 through 4, 6, and 7) into evidence. All

six of these exhibits were received by the undersigned.

At the conclusion of the evidentiary portion of the hearing,

the undersigned, on the record, advised that the deadline for the

filing of proposed recommended orders was 14 days from the date

of the Division's receipt of the transcript of the hearing. The

hearing transcript was filed with the Division on June 5, 1998.

On June 15, 1998, the Department filed a proposed recommended

order, which the undersigned has carefully considered. To date,

Respondent has not filed any post-hearing submittal.

FINDINGS OF FACT

Based upon the evidence adduced at hearing and the record as

a whole, the following findings of fact are made:

1. The Department is a state government licensing and

regulatory agency.

2. Respondent is registered with the Department as a septic

tank contractor.

3. Gayle Gibson owns and resides in a three-bedroom, two-

bath single-family home located at 2425 Riverlane Terrace in Fort

Lauderdale, Florida (Gibson's property).

4. In late 1993 or early 1994, Gibson was experiencing

problems with the septic system on her property (in the form of

sewage backup and resultant unpleasant odors).

5. Gibson contacted Respondent (who is the son of Gibson's

former mailman) and asked him to come to her property to

ascertain what was wrong and to take whatever remedial action was

necessary.

6. Respondent complied with Gibson's request and went to

her property.

7. After examining the situation, he told Gibson that she

needed to have the septic tank on the property pumped and a new

drainfield installed. Respondent recommended that the new

drainfield be installed on the side of Gibson's home, instead of

in the front yard (where the existing drainfield was located).

8. Gibson made arrangements for Respondent to perform these

services in exchange for money and art work. These arrangements

between Gibson and Respondent were not reduced to writing.

9. On or about January 20, 1994, Respondent pumped out the

septic tank on Gibson's property and Gibson paid him $200.00, by

check, for having performed such work.

10. In late February of 1994, Respondent installed a new

drainfield on the side of Gibson's home and Gibson paid him

$500.00, by check, for having performed such work.

11. At no time did Respondent obtain a permit to install

the drainfield.

12. The heavy equipment that Respondent used to perform the

work was unloaded in Gibson's front yard. The unloading of the

heavy equipment damaged the front yard. It cost Gibson a total

of $175.00 to have the damage repaired.

13. The drainfield that Respondent installed was an EEE ZZZ

Lay Drain system comprised of Styrofoam material.

14. Considering the size of Gibson's home, the drainfield

was grossly undersized, as Respondent should have realized. It

was approximately one-third the size it should have been.

15. Predictably, shortly after this undersized drainfield

was installed, Gibson again experienced sewage backup and related

problems on her property.

16. Gibson informed Respondent of the reoccurrence of these

problems.

17. Respondent told Gibson that he would take remedial

action if Gibson paid him another $500.00.

18. Gibson refused to make any additional payments to

Respondent.

19. Respondent never returned to Gibson's property to

correct the error he had made in installing an undersized

drainfield.

20. Gibson contacted the Department and advised it of the

problems she was experiencing with her septic system.

21. Following an investigation of the matter, the

Department issued the Administrative Complaint described in

Preliminary Statement of this Recommended Order.

22. Subsequently, on January 13, 1998, in an unrelated

case, the Department issued and served on Respondent a citation

imposing a $500.00 fine against Respondent for abandoning,

without good cause, a septic system installation project he was

contractually obligated to complete. The citation contained a

"Notice of Appellate Rights," which indicated that "[t]his

citation becomes a Final Order of the Department if you have not

contested the Citation within thirty (30) days of the date which

the Citation was served upon you."

23. Respondent has neither "contested" the citation, nor

paid the $500.00 fine it directed him to pay.

CONCLUSIONS OF LAW

24. The Department is statutorily empowered, pursuant to

Sections 381.0065 through 381.0067, Florida Statutes, and Chapter

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

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

Respondent, who install such systems.

25. Section 381.0065, Florida Statutes, provides, in

pertinent part, as follows:

381.0065 Onsite sewage treatment and

disposal systems; regulation.–

(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.

(2) DEFINITIONS.–As used in ss. 381.0065-

381.0067, the term: . . . .

(i) "Onsite sewage treatment and disposal

system" means a system that contains a

standard subsurface, filled, or mound

drainfield system; an aerobic treatment unit;

a graywater system tank; a laundry wastewater

system tank; a septic tank; a grease

interceptor; a dosing tank; a solids or

effluent pump; a waterless, incinerating, or

organic waste-composting toilet; or a

sanitary pit privy that is installed or

proposed to be installed beyond the building

sewer on land of the owner or on other land

to which the owner has the legal right to

install a system. This term does not include

package sewage treatment facilities and other

treatment works regulated under chapter 403.

(3) DUTIES AND POWERS OF THE DEPARTMENT OF

HEALTH.–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 with an estimated domestic

sewage flow of 10,000 gallons or less per day

which is not currently regulated under

chapter 403.

(c) Develop a comprehensive program to

ensure that onsite sewage treatment and

disposal systems regulated by the department

are sized, designed, constructed, installed,

repaired, modified, abandoned, and maintained

in compliance with this section and rules

adopted under this section to prevent

groundwater contamination and surface water

contamination and to preserve the public

health. The department is the final

administrative interpretive authority

regarding rule interpretation. In the event

of a conflict regarding rule interpretation,

the Division Director for Environmental

Health of the department, or his or her

designee, shall timely assign a staff person

to resolve the dispute. . . .

(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. The department may issue permits

to carry out this section. . . . 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. . . .

(o) An application for an onsite sewage

treatment and disposal system permit shall be

completed in full, signed by the owner or the

owner's authorized representative, or by a

contractor licensed under chapter 489, and

shall be accompanied by all required exhibits

and fees. No specific documentation of

property ownership shall be required as a

prerequisite to the review of an application

or the issuance of a permit. The issuance of

a permit does not constitute determination by

the department of property ownership. . . .

(5) ENFORCEMENT; RIGHT OF ENTRY;

CITATIONS. . . .

(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.

6. Any person who willfully refuses to sign

and accept a citation issued by the

department commits a misdemeanor of the

second degree, punishable as provided in s.

775.082 or s. 775.083.

7. The department, pursuant to ss. 381.0065-

381.0067, part I of chapter 386, or part III

of chapter 489, shall deposit any fines it

collects in the county health department

trust fund for use in providing services

specified in those sections.

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.

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

the Department has "[a]dopt[ed] rules to administer ss. 381.0065-

381.0067." These rules include Rule 64E-6.008 (formerly numbered

10D-6.048), Florida Administrative Code, which imposes size

requirements for septic systems.

27. Chapter 489, Part III, Florida Statutes, provides in

pertinent part, as follows:

SEPTIC TANK CONTRACTING

489.551 Definitions.–

As used in this part: . . . .

(3) "Onsite sewage treatment and disposal

system" means a system that contains a

standard subsurface, filled, or mound

drainfield system; an aerobic treatment unit;

a graywater system tank; a laundry wastewater

system tank; a septic tank; a grease

interceptor; a dosing tank; a solids or

effluent pump; a waterless, incinerating, or

organic waste-composting toilet; or a

sanitary pit privy that is installed or

proposed to be installed beyond the building

sewer on land of the owner or on other land

to which the owner has the legal right to

install a system. This term does not include

package sewage treatment facilities and other

treatment works regulated under chapter 403.

(4) "Septic tank contractor" means a

contractor who has the experience, knowledge,

and skill to install, maintain, repair,

alter, perform site evaluations for repairs,

when determined to meet site-evaluation

expertise established by rule, and use

material and items used in the installation

and maintenance of all kinds of onsite sewage

treatment and disposal systems.

489.552 Registration required.–

A person shall not hold himself or herself

out as a septic tank contractor . . . in this

state unless he or she is registered by the

department in accordance with the provisions

of this part. . . .

489.553 Administration of part; registration

qualifications; examination.–

(1) Each person desiring to be registered

pursuant to this part shall apply to the

department in writing upon forms prepared and

furnished by the department.

(2) The department shall administer,

coordinate, and enforce the provisions of

this part, provide qualifications for

applicants, administer the examination for

applicants, and be responsible for the

granting of certificates of registration to

qualified persons.

(3) The department shall adopt reasonable

rules, including, but not limited to, rules

which establish ethical standards of

practice, and may amend or repeal the same in

accordance with the Administrative Procedure

Act. . . .

489.556 Suspension or revocation of

registration.–

A certificate of registration may be

suspended or revoked upon a showing that the

registrant has:

(1) Violated any provision of this part.

(2) Violated any lawful order or rule

rendered or adopted by the department. . . .

(4) Been found guilty of gross misconduct in

the pursuit of his or her profession. . . .

489.558 Penalties and prohibitions.–

(1) Any person who violates any provision of

this part commits a misdemeanor of the first

degree, punishable as provided in s. 775.082

or s. 775.083. . . .

28. Proof greater than a mere preponderance of the evidence

must be submitted in order for the Department to take action

against a septic tank contractor's registration or to impose a

fine upon the contractor. Clear and convincing evidence is

required. See Department of Banking and Finance, Division of

Securities and Investor Protection v. Osborne Stern and Company ,

670 So. 2d 932, 935 (Fla. 1996); Ferris v. Turlington , 510 So. 2d

292 (Fla. 1987); Section 120.57(1)(h), Florida Statutes

("Findings of fact shall be based on a preponderance of the

evidence, except in penal or licensure disciplinary proceedings

or except as otherwise provided by statute."). "'[C]lear and

convincing evidence requires that the evidence must be found to

be credible; the facts to which the witnesses testify must be

distinctly remembered; the testimony must be precise and explicit

and the witnesses must be lacking in confusion as to the facts in

issue. The evidence must be of such weight that it produces in

the mind of the trier of fact a firm belief or conviction,

without hesitancy, as to the truth of the allegations sought to

be established.'" In re Davey , 645 So. 2d 398, 404 (Fla. 1994),

quoting, with approval, from Slomowitz v. Walker , 429 So. 2d 797,

800 (Fla. 4th DCA 1983).

29. Any punitive action taken against the contractor may be

based only upon those violations specifically alleged in the

administrative complaint or citation issued by the Department.

See Cottrill v. Department of Insurance , 685 So. 2d 1371 (Fla.

1st DCA 1996); Kinney v. Department of State , 501 So. 2d 129, 133

(Fla. 5th DCA 1987); Hunter v. Department of Professional

Regulation , 458 So. 2d 842, 844 (Fla. 2d DCA 1984).

30. Furthermore, such action may not be more severe than

the punishment that the Department warned the accused, in the

administrative complaint or citation, might be imposed for these

violations. See Cobas v. State , 671 So. 2d 838, 839 (Fla. 3d DCA

1996)("Finally, the trial court erred in imposing a habitual

offender sentence in lower court case 89-33369, where Cobas was

not given prior notice of the intent to seek enhanced penalties

before the plea was accepted."); Williams v. Turlington , 498 So.

2d 468 (Fla. 3d DCA 1986)("Since Williams was not given notice by

either the complaint or later proceedings that he was at risk of

having his license permanently revoked, the Commission's

imposition of the non-prayed-for relief of permanent revocation,

even if justified by the evidence, was error.").

31. In addition, the Department must act in accordance with

its "disciplinary guidelines." Cf . Williams v. Department of

Transportation , 531 So. 2d 994, 996 (Fla. 1st DCA 1988)(an agency

is required to comply with its disciplinary guidelines in taking

disciplinary action against its employees). These "disciplinary

guidelines" are currently set forth in Rule 64E-6.022, Florida

Administrative Code, which provides, 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. . . .

(b) Permit violations. . .

2. Contracted work is completed without a

permit having been issued . . . repeat

violation, revocation. . . .

(l) Gross negligence, incompetence, or

misconduct which: . . . .

2. Causes monetary or other harm to a

customer, or physical harm to any

person . . . repeat violation, $500 fine and

revocation. . . .

(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 . . .

(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.

(4) Where several of the above violations

shall occur in one or several cases being

considered together, the penalties shall

normally be cumulative and consecutive. . . .

Rule 10D-6.0751, Florida Administrative Code, which was in effect

at the time of the alleged violations in the instant case,

contained substantially the same provisions.

32. The Administrative Complaint issued in the instant case

charges that Respondent violated Rule 10D-6.075(4)(b)2, Florida

Administrative Code, by "install[ing] an onsite sewage treatment

and disposal system at 2425 Riverlane Terrace, Ft. Lauderdale,

Broward County, Florida. . . . without the required construction

permit or final inspections and approval from the department";

and Rule 10D-6.075(4)(l)2, Florida Administrative Code, by

committing "gross negligence, incompetence, or misconduct [in

connection with such installation], caus[ing] the customer

monetary harm in the amount of $875.00 (eight hundred seventy-

five dollars) and creat[ing] a sanitary nuisance injurious to

health as defined in chapter 386, Florida Statutes." Rule 10D-

6.075(4)(b)2 and (4)(l)2, Florida Administrative Code, provided,

in pertinent part, as follows:

(4) The following actions by a person

included under this rule shall be deemed

unethical and subject to penalties: . . . .

(b) Permit violations. . . .

2. Contracted work is completed without a

permit having been issued . . . .

(l) Gross negligence, incompetence, or

misconduct which: . . . .

2. Causes monetary harm to a

customer . . . .

Rule 10D-6.075, Florida Administrative Code, was repealed

effective May 14, 1996, approximately a year after the

Administrative Complaint in this case was issued. Nonetheless,

as a review of the existing statutory and rule provisions cited

above reveals, it is still the law (as it has been since before

the time Respondent engaged in the conduct alleged in the

Administrative Complaint) that "install[ing] an onsite sewage

treatment and disposal system . . . without the required

construction permit or final inspections and approval from the

[D]epartment" and committing "gross negligence, incompetence, or

misconduct [in connection with such installation], caus[ing] the

customer monetary harm," as Respondent is alleged to have done,

are violations for which a septic tank contractor may be

disciplined. Accordingly, the Department may prosecute and

discipline Respondent for having engaged in such conduct,

notwithstanding that the particular rule provisions cited in the

Administrative Complaint have been repealed. Cf . Drury v.

Harding , 461 So. 2d 104, 108 (Fla. 1984)("It is a well-settled

rule under Florida law that when a statute is repealed and then

substantially re-enacted by the legislature its operation is

deemed to be continuous and uninterrupted. . . . Likewise, when

an agency substantially re-adopts the provisions of its prior

regulations the application of those provisions to actions which

arose before their re-adoption is not destroyed or

interrupted."); McKibben v. Mallory , 293 So. 2d 48, 53 (Fla.

1974)("[W]here a statute has been repealed and substantially re-

enacted . . ., the re-enacted provisions are deemed to have been

in operation continuously from the original enactment . . . .");

Childers v. Department of Environmental Protection , 696 So. 2d

962, 964 n.4 (Fla. 1st DCA 1997)("[T]he substantial restatement

of an old ground in a new statute authorizes disciplinary action

on the preexisting ground under the new statute."); Solloway v.

Department of Professional Regulation , 421 So. 2d 573, 574 (Fla.

3d DCA 1982)("An amendment and re-enactment of a statute

constitutes a continuation of those provisions which are carried

into the new act and permits a prosecution under the original act

irrespective of its nominal repeal.").

33. The record evidence in the instant case clearly and

convincingly establishes that, as alleged in the Administrative

Complaint, Respondent acted in violation of the law by installing

a drainfield on Gibson's property without having obtained the

requisite permit from the Department and, in addition, was guilty

of committing gross negligence, gross incompetence, or gross

misconduct in connection with such project and thereby causing

Gibson monetary harm inasmuch as the drainfield he installed was

substantially undersized and, as a result, Gibson's septic system

malfunctioned. Disciplinary action against Respondent is

therefore warranted.

34. In its proposed recommended order, the Department

suggests that "Respondent's septic tank contractor's registration

be revoked, or in the alternative, suspended for 90 days, and

that a fine of $1,000.00 be imposed."

35. The Department may not revoke Respondent's registration

because it did not warn Respondent in the Administrative

Complaint or at any other time prior to the final hearing that he

was at risk of having his registration revoked.

36. It appears, however, that, considering the facts of the

instant case in light of the applicable provisions of the

Department's "disciplinary guidelines," it would be appropriate

to impose upon Respondent, who is a "repeat violat[or]" under

these "disciplinary guidelines," 4 the "alternative" disciplinary

action proposed by the Department: a 90 day suspension of

Respondent's registration and a fine in the amount of $1,000.00.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department enter a final order finding

Respondent guilty of the unlawful conduct alleged in the

Administrative Complaint and disciplining him therefor by

suspending his septic tank contractor's registration for 90 days

and fining him in the amount of $1,000.00.

DONE AND ENTERED this 29th day of June, 1998, in

Tallahassee, Leon County, Florida.

___________________________________

STUART M. LERNER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of June, 1998.

ENDNOTES

1 Hereinafter the Department of Health and Rehabilitative

Services will also be referred to as the "Department" to reflect

that, for purposes of the instant case, its actions are to be

considered those of its successor, the Department of Health.

2 No mention was made in the Administrative Complaint that the

Department was seeking to revoke Respondent's registration.

3 Such notice was in the form of a Notice of Hearing by Video

Teleconference mailed on February 9, 1998.

4 In the unilateral proposed prehearing stipulation that it filed

in the instant case, the Department put Respondent on notice that

it was seeking to discipline him as a "repeat violat[or]."

COPIES FURNISHED:

Kimberly A. Tendrich, Esquire

Department of Health

2421-A Southwest 6th Avenue

Fort Lauderdale, Florida 33315

Frank Crimi

3960 Southwest 12th Court

Fort Lauderdale, Florida 33312

Angela T. Hall, Agency Clerk

Department of Health

1317 Winewood Boulevard

Building Six, Room 102

Tallahassee, Florida 32399-0700

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.

1 Hereinafter the Department of Health and Rehabilitative

Services will also be referred to as the "Department" to reflect

that. for purposes of the instant case, its actions must be

considered to be those of its successor, the Department of

Health.

2 No mention was made in the Administrative Complaint that the

Department was seeking to revoke Respondent's registration.

3 Such notice was in the form of a Notice of Hearing by Video

Teleconference mailed on February 9, 1998.

4 In the unilateral proposed prehearing stipulation that it filed

in the instant case, the Department put Respondent on notice that

it was seeking to discipline him as a "repeat violat[or]."