98-002010 Department Of Health vs. Michael J. Jedware Status: Closed Recommended Order on Thursday, September 24, 1998.

Summary: Septic tank contractor commenced repairs before obtaining a permit and was subject to $500.00 fine.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

)

Petitioner, )

)

vs. ) Case No. 98-2010

)

MICHAEL J. JEDWARE, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

Notice was provided and on September 10, 1998, a formal

hearing was held in this case. Authority for conducting the

hearing is set forth in Sections 120.569 and 120.57(1), Florida

Statutes. The hearing location was the Volusia County

Courthouse, Grand Jury Room, 120 West Indiana, Deland, Florida.

The hearing was conducted by Charles C. Adams, Administrative Law

Judge.

APPEARANCES

For Petitioner: Charlene Petersen, Esquire

Department of Health

420 Fentress Boulevard

Daytona Beach, Florida 32114

For Respondent: Michael J. Jedware, pro se

Post Office Box 390073

Deltona, Florida 32739-0073

STATEMENT OF THE ISSUE

Should Respondent be fined $500.00 for initiating repairs to

an on-site sewage treatment and disposal system before obtaining

a permit?

PRELIMINARY STATEMENT

In accordance with Section 381.065, Florida Statutes, and

Chapter 64E-6, Florida Administrative Code, Petitioner cited

Respondent for the aforementioned alleged violation. The

citation was made on March 31, 1998. On April 10, 1998,

Respondent requested an administrative hearing to contest

material facts associated with the alleged violation. On

April 30, 1998, the case was received by the Division of

Administrative Hearings for the assignment of an administrative

law judge to conduct a formal hearing. The case was initially

assigned to Stephen F. Dean, Administrative Law Judge. The case

was reassigned for purposes of the hearing.

At hearing, the Petitioner presented the testimony of

William Vander Lugt and James McRae. Petitioner's Exhibits 1

and 2 were admitted. Respondent presented the testimony of

Andy Trapp. Respondent's Exhibits 1 through 4 were admitted.

Petitioner's counsel requested that official recognition be

made of Section 381.065, Florida Statutes; Chapter 489, Part III,

Florida Statutes; and Rules 64E-6.003, 64E-6.015, and 64E-6.022,

Florida Administrative Code. That request was granted.

No hearing transcript was prepared. The parties were

granted through September 21, 1998, to present proposed

recommended orders. Petitioner filed a proposed recommended

order which has been considered. Respondent did not submit a

proposed recommended order.

FINDINGS OF FACT

1. Respondent is engaged in the septic tank contracting

business as a contractor licensed under Chapter 489, Part III,

Florida Statutes. He does business as "Alpha."

2. In association with his business Respondent provided

services to residents at 224 North Orange Avenue, Orange City,

Florida. This was related to a failed on-site sewage treatment

and disposal system at that residence.

3. To assist in providing repair service to the residence

in Orange City, Florida, Respondent engaged Andy Trapp.

Mrapp's business is to assist septic tank contractors in

obtaining necessary permits to perform septic tank contracting

services. Mrapp's occupation includes field work involving

soil testing, measurements, and completion of necessary paperwork

to assist the septic tank contractor in obtaining necessary

permits.

4. As permitting agency, usually Petitioner would accept

applications submitted by Mrapp in relation to the

application for a permit to repair on-site sewage treatment and

disposal systems, in that Mrapp is recognized by Petitioner

as being sufficiently qualified to submit information in support

of an application for permit.

5. On March 27, 1998, Mrapp submitted an application

for a permit to repair the on-site sewage treatment and disposal

system at the Orange City, Florida, address, to include

supporting information concerning the results of soil testing.

That application was accompanied by the necessary fee to obtain a

permit. The application was delivered to Petitioner's Daytona

Beach, Florida, office as a matter of convenience to Mrapp.

Mrapp realized that the actual processing of the permit

application would be conducted by Petitioner's Deland, Florida,

office. In that connection, Mrapp realized that the

application that he had submitted to the Daytona Beach office

would be forwarded by interoffice transmittal to the Deland

office, which would cause a delay in the processing of the

application. In his experience Mrapp has filed applications

with the Daytona Beach office to be subsequently transmitted to

the New Smyrna Beach office of the Petitioner, which ordinarily

can be done late on the same day that the application was

presented or by the next day.

6. James McR ae is an environmental supervisor for the

Volusia Health Department, Environmental Health Office in Deland,

Florida. It is his office that had ultimate responsibility for

considering, and if appropriate, issuing a permit allowing

Respondent to conduct necessary repairs of the failed on-site

sewage treatment and disposal system at the Orange City, Florida

address. Mr. McRae confirmed that the permit application, as

submitted by Mrapp for the repairs, had been received by the

Deland office on March 30, 1998. In addition, the accompanying

$57.00 fee had been transferred from the Daytona Beach office to

the Deland office, as was customary, the custom being that the

funds in support of an application would ultimately be received

in the office from which the application would be processed and a

permit number assigned, as applicable. Upon receipt of the

application in the Deland office, a receipt was generated.

Information concerning the permit application was placed in the

computer. Assessment of the application was assigned to William

Vander Lugt, Environmental Specialists II, who is part of the

field staff for the Petitioner's Deland office.

7. Beyond Mr. Vander Lugt's assignment to consider the

application for the permit for the Orange City, Florida project,

it was expected that he would do any necessary field work

involving an inspection and any necessary soil analysis. If

satisfied that the site was appropriate to effect repairs to the

failed on-site sewage treatment and disposal system,

Mr. Vander Lugt would issue a permit subject to approval by

Mr. McRae.

8. Mr. McRae identified that the usual turn around time for

issuing permits is two to three days, assuming that the permit

was applied for at Petitioner's office which would be responsible

for assessing the application. In this instance the permit had

been applied for at another office which delayed consideration of

the permit application by the Deland office. The permit was

approved on April 2, 1998, within three days of its receipt by

the Deland office.

9. Before the permit was issued, Respondent, through his

employees, had commenced the repairs at the Orange City, Florida,

address. The commencement of repairs was verified by an on-site

inspection performed by Mr. Vander Lugt, on March 31, 1998.

Although the supporting information presented by Mrapp was in

order and the fee had been paid, and there was no indication that

any other problems existed which would prohibit the repairs from

being conducted, Respondent was premature in commencing the work

before the permit issued, and was unjustified in that choice.

CONCLUSIONS OF LAW

10. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this case

consistent with Sections 120.569 and 120.57(1), Florida Statutes.

11. Petitioner seeks to impose a $500.00 fine against

Respondent for violation of Rule 64E-6.022(1)(b), Florida

Administrative Code, for initiating work to repair the on-site

sewage treatment and disposal system at the Orange City, Florida

address, before a permit had been issued by Petitioner. To

impose the fine, Petitioner must prove the violation by a

preponderance of the evidence.

12. Respondent is a septic tank contractor licensed in

accordance with Chapter 489, Part III, Florida Statutes. As

such, Respondent is subject to the prohibition against initiating

repairs of the system without a permit.

13. Moreover Rule 64E-6.015, Florida Administrative Code,

makes it necessary to notify and obtain an approval from the

Petitioner through the county health department having

jurisdiction over the system before effecting repairs. That

request from the appropriate health department can be made either

directly by the property owner, or lessee, or through an agent.

In this instance the request was made by an agent.

14. The expectation is that the department shall make every

effort to issue the permit within two working days after

receiving an application for the system repair. This is in

accordance with Rule 64E-6.015(5), Florida Administrative Code.

That intention is aspirational. The failure to comply with that

expectation does not automatically grant a permit to the

applicant, nor allow the septic tank contractor to proceed

without obtaining a permit.

15. Finally, Rule 64E-6.003(1), Florida Administrative

Code, makes it necessary to obtain an on-site sewage treatment

and disposal system construction permit before repairing any

portion of an on-site sewage treatment and disposal system.

16. Petitioner has shown that necessary approval and

issuance of an on-site sewage treatment and disposal system

construction permit was not obtained for the repairs at the

Orange City, Florida address before Respondent proceeded with the

repairs. This constituted a violation of Rule 64E-6.022(1)(b),

Florida Administrative Code, and subjects the Respondent to a

$500.00, fine for this first violation.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law

reached, it is

RECOMMENDED:

That a final order be issued which imposes a $500.00 fine

against Respondent for initiating a repair of an on-site sewage

treatment and disposal system without first obtaining a permit to

do the work.

DONE AND ENTERED this 24th day of September, 1998, in

Tallahassee, Leon County, Florida.

___________________________________

CHARLES C. ADAMS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 323 99-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 24th day of September, 1998.

COPIES FURNISHED:

Charlene Petersen, Esquire

Department of Health

420 Fentress Boulevard

Daytona Beach, Florida 32114

Michael J. Jedware

Post Office Box 390073

Deltona, Florida 32739-0073

Angela T. Hall, Agency Clerk

Department of Health

2020 Capital Circle, Southeast

Bin A02

Tallahassee, Florida 32399-1703

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.