98-002560 Department Of Health vs. Trammel Fowler Status: Closed Recommended Order on Wednesday, January 19, 2000.

Summary: Although septic tank repair was done without permit, Department acquiesced at time inspected and approved it. Respondent who did not conceal it cannot be blame-worthy. The other two charges not supported by evidence. Recommended letter of warning.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

)

Petitioner, )

)

vs. ) Case No. 98-2560

)

TRAMMEL FOWLER, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal proceeding

before P. Michael Ruff, a duly-designated Administrative Law

Judge of the Division of Administrative Hearings, on August 26,

1999, at Crestview, Florida.

APPEARANCES

For Petitioner: Rodney M. Johnson, Esquire

Department of Health

Northwest Law Office

1295 West Fairfield Drive

Pensacola, Florida 32501

For Respondent: Matthew D. Bordelon, Esquire

2721 Gulf Breeze Parkway

Gulf Breeze, Florida 32561

STATEMENT OF THE ISSUES

The issues to be resolved in this proceeding concerns

whether the Respondent installed a septic system without a

permit; whether a permit was required for the installation;

whether the installation was of inadequate size; whether the

Respondent caused the disconnection of an existing system without

a permit, and whether that system was improperly abandoned. A

related issue is whether the proposed $1,500.00 fine should be

imposed if the violations are proven or what, if any, fine is

warranted.

PRELIMINARY STATEMENT

This cause arose on or about September 2, 1997, when the

Petitioner Agency filed a "Citation for Violation" against the

Respondent. The Respondent, Trammel Fowler, is a licensed septic

tank contractor engaged in septic tank and drainfield

installation and repair. The citation for violation related to a

septic tank and drainfield installation, and alleged subsequent

repair, at an address known as 5642 Old Bethel Road, Crestview,

Florida. The Respondent requested a formal proceeding to contest

the citation and the matter was ultimately referred to the

Division of Administrative Hearings and the undersigned

Administrative Law Judge. An amended citation was subsequently

filed alleging other violations against the Respondent,

advocating a fine totaling $1,500.00.

The cause came on for hearing as noticed. The Petitioner

called three witnesses: David Donaldson, the inspector for the

Okaloosa County Health Department; Douglas Sims, the

environmental manager for the Okaloosa County Health Department;

and William Sirmans, the environmental health director for Santa

Rosa County Health Department. The Respondent called three

witnesses: Trammel Fowler himself; Arthur Allen Brown, a former

inspector of the Okaloosa County Health Department; and Cecil

Oliver Rogers, a licensed septic tank contractor. Additionally,

the Petitioner called four rebuttal witnesses: Gene Wykle, an

inspector with the Okaloosa County Health Department; Ken Arnett,

a licensed septic tank contractor; Johnny Wilkinson, a licensed

septic tank contractor; and Douglas Sims. Seven exhibits were

offered into evidence and admitted for the Petitioner. The

Respondent had four exhibits admitted into evidence.

Upon conclusion of the proceeding the parties ordered a

transcript thereof and requested an extended briefing schedule.

The request was granted and proposed recommended orders were

timely filed and are considered in the rendition of this

recommended order.

FINDINGS OF FACT

1. The Petitioner is an agency of the State of Florida

charged, in pertinent part, by its organic statutes and rules,

with regulating the practice of septic tank contracting and the

installation and repair of septic tank and drainfield waste

disposal systems and with licensure of such contractors pursuant

to Rule Chapter 64E, Florida Administrative Code. The

Respondent, Trammel Fowler (Fowler), is a licensed septic tank

contractor regulated by the statutes and rules cited herein.

Fowler has never been issued any citations or been subjected to

discipline under the relevant statutes and rules enforced by the

Petitioner with regard to septic system design, construction,

installation and repair. He has worked in the septic tank

installation business for 19 years.

2. The Respondent installed a septic tank and drainfield

system at 5642 Old Bethel Road, Crestview, Florida, a residential

construction project (home) in 1993. The original septic tank

system installed by the Respondent was finally approved on

June 11, 1993.

3. The home site at issue was originally designed to have

the septic tank and drainfield system located in the backyard of

the residence. Plumbing errors by the general contractor and the

plumbing sub-contractor caused the plumbing system to be

"stubbed-out" to the front of the house so that the septic tank

and drainfield system was installed in the front of the house

rather than in the backyard as originally designed and approved

by the Petitioner. Additional excavation work was required at

the site, which caused the soil type to change in the front of

the house where the septic tank and drainfield were to be

installed. This in turn required the Okaloosa County Health

Department to require additional drainfield square footage to be

added to the previously approved 600 square feet of drainfield,

so that the drainfield installed in the front of the house by the

Respondent ultimately encompassed 800 square feet. Thus,

although the original site plans approved by the Okaloosa County

Health Department were not followed, subsequent modifications to

the system resulted in the septic tank system being fully

approved by the Petitioner (through the Okaloosa County Health

Department), on June 11, 1993.

4. In the ensuing months, landscaping problems at the site

caused surface water to collect around and above the drainfield

area. This, coupled with a continuous water flow from the

residence caused by leaking appliances, and particularly the

commode, resulted in raw or partially treated wastewater becoming

exposed on the surface of the ground, as a sanitary nuisance.

This was caused as the septic tank and drainfield system became

saturated by the excess water from the two referenced sources.

This caused the failure of that septic tank and drainfield system

within nine months of its original installation, as was noted on

March 4, 1994, by the Department's representative Mr. Sims. It

is undisputed that the Respondent, Mr. Fowler, did not cause or

contribute to this septic tank system failure. He constructed

the system as designed and approved by the Department (or as re-

approved by the Department in June 1993 with the relocation of

the system to the front yard of the residence and with the

augmentation of the drainfield referenced above).

5. The Department was aware of the failure of the original

system in the front yard of the residence as early as March 1994.

There is no evidence that an actual permit for repair of that

system was ever issued. Mr. Fowler maintains that the Department

had a policy at that time of authorizing repairs to systems that

failed within one year of original installation, as this one did,

without a written, formal permit process, but rather by informal

approval and inspection of the repair work. The Petitioner

disagrees and Mr. Sims, the Petitioner's representative, states

that a permit was required, although no fee was charged. Indeed

in 1994 a rule was enacted authorizing issuance of a permit for

repair work for systems that failed within one year of original

installation without being accompanied by the charging of a fee

for that permit. In any event, prior to the rule change, repairs

were authorized for failures within one year by the Department

without a permit, but were required to be inspected and a

notation made in the permit file or in some cases on a "nuisance

complaint card," so authorization and inspection was supposed to

be documented. When by the time the repair was effected by the

installation of the backyard septic tank and drainfield system or

"overflow-system" in February 1995, the rule change requiring

issuance of a repair permit without fee had become effective.

There is evidence that the Respondent was aware of this since,

sometime in 1994, he had obtained a permit authorizing repair of

a septic tank and drainfield site on "Windsor Circle" as shown by

the Petitioner's Exhibits 6 and 7 in evidence.

6. Be that as it may, the Respondent contends that

Mr. Brown, the environmental specialist and inspector for the

Department, met with him at the repair site in question and at

least verbally authorized the repair of the system by

installation of the septic tank and drainfield in the backyard of

the residence; to be connected to the sewer line which also was

connected with the malfunctioning system in the front yard of

that residence. Mr. Brown in his testimony purports to have no

memory of authorizing the repair work or inspecting it and seems

confused as to whether he met with the Respondent at the site.

The Petitioner acknowledges, as does Mr. Brown, that he has had

problems since that time with memory lapses, attendant to two

life-threatening injuries, which have apparently caused problems

with memory loss. He purportedly suffers from post-traumatic

stress syndrome and is taking medication with regard thereto.

There is no dispute that he has problems with recall. Moreover,

there is evidence that Mr. Brown met with the Respondent at an

address on Old Bethel Road for some reason, as shown by a

notation in Department records in February 1995. Consequently,

while there is no doubt that the repair work in question was done

without a written permit, there is evidence to corroborate Mr.

Fowler's testimony to the effect that Mr. Brown inspected and

reviewed the repair system while it was actually being installed

by Fowler and approved it. Thus, it is possible that Mr. Fowler

was under a good faith impression that the Department had a

policy of inspecting and approving repair work without there

being a permit related to it at the time when he installed the

secondary "overflow" system at the Old Bethel Road site in

February of 1995, even though that impression may have been

legally mistaken, because the rule requiring a permit at no fee

for repair work was already in effect.

7. In any event, Mr. Fowler installed the so-called "repair

system" in February 1995, which he has termed an "overflow"

system designed to augment the treatment capability of the

previously-approved system installed in the front yard at that

residence. That system, as found above, consisted of 800 square

feet of drainfield. The "overflow" system installed in the

backyard by Mr. Fowler in February 1995 without the permit, has

only 300 square feet of drainfield. This is clearly well below

the minimum required for such a system and tends to support

Mr. Fowler's testimony that it was intended really as a repair

job in the form of a overflow system to handle extra flow that

the original system in the front yard would not be able to handle

in performing the intended treatment function. It is unlikely

that Mr. Fowler, with or without a permit, would have installed a

system he clearly would know to be of only one-half (or less) of

the adequate size and treatment capability for the residence, if

it had been intended to be a separately functioning independent

treatment system for the residence.

8. In fact, the "overflow" system was connected through a

"T" or "Y" fitting in the sewer line outfall pipe from the house

with the original septic tank and drainfield system in the front

yard of the residence, so that flow could go to both systems

simultaneously from the residential sewer line. There is

conflicting testimony as to whether such a dually draining system

could work properly. One septic tank contractor testified that

it could and could adequately split the flow between the two

septic tank and drainfield systems so as to perform adequate

treatment without backups or overflows, while a witness for the

Department testified that such a split-fitting could cause

stoppages and therefore sewage backups. Be that as it may, the

installation of the system in a connected fashion to the original

system supports Mr. Fowler's testimony and contention that the

system installed in the backyard, with 300 square feet of

drainfield, was intended as a repair system merely to augment the

treatment function being provided by the poorly functioning

original system in the front yard.

9. In fact, the preponderant evidence shows that, with the

elimination of leakage from the appliances in the house and the

correction of the water-pooling problem caused by improper

landscaping, that the system would function adequately thus

connected. Indeed, when the plumber or the general contractor

for the residence disconnected the original front-yard septic

tank system from the overflow system, so that all of the sewage

in the house went to the overflow system with the smaller

drainfield, that system still functioned adequately for one and

one-half years until failure in approximately August 1997.

10. It is undisputed that the Respondent had no part in the

unreported and unapproved disconnection of the original front

system from the overflow tank and drainfield system in the

backyard. The evidence shows a preponderant likelihood that the

total system would have functioned adequately indefinitely had

the two remained connected so that sewage could flow to the front

yard system with the 800 square feet of drainfield, with the

excess water flow problems referenced above already corrected.

11. Mr. Brown, the Department environmental specialist and

inspector, did not recall specifically whether he had been at the

Old Bethel Road site at issue, but testified that it was

definitely possible. He testified that the time entry notation

he made admitted into evidence as Exhibit No. 3, may have

reflected an inspection for a repair job at the Old Bethel Road

site. Mr. Brown admitted that he was present on Old Bethel Road

in February 1995, but did not recall his purpose of being there.

His testimony thus did not contradict the testimony of Trammel

Fowler. Mr. Brown also testified that he was aware of problems

at the Old Bethel Road site and testified that Mr. Wykle of the

Department and Mr. Sims were also aware of problems at the Old

Bethel Road site.

12. Douglas Sims of the Department testified that the two

systems, the original front tank and drainfield and the overflow

tank and drainfield installed in the backyard by Mr. Fowler could

not work together if they were connected. This is belied by

testimony of a septic tank contractor, Ken Arnett, who was a

rebuttal witness called by the Department. Mr. Arnett testified

that he would expect a system of the type contemplated by

Mr. Fowler and Mr. Brown to function properly. It thus seems

from the preponderant weight of the evidence that the reason the

Old Bethel Road residential system quit functioning properly, in

approximately August 1997, is that the plumbing contractor, at

the behest of the residential building contractor for the

residence constructed there, disconnected the overflow system

from the original front yard system, so that all the house

effluent was going to the overflow system, which was never

intended to have a complete, standard-sized drainfield for such a

dwelling, prevalent soil conditions, elevations and the like.

13. Mr. Brown, a long time employee of the Department was

familiar with the statewide rules affecting septic tank

contractors and installation and familiar with local department

rules and policies relating to repairs. He testified that for a

period of time in the early 1990's, there was an unwritten policy

by the Okaloosa County Health Department that some repair permits

would be waived for certain repairs provided a final inspection

by the Department was made. He stated that if the septic tank

system failed within one year under certain circumstances, a

repair permit would be waived as long as the Department was aware

of the repair. Mr. Brown could not recall when the policy ended,

but estimated it to be sometime between 1995 and 1997. He called

the discontinuation of the local policy to waive repair permits a

"gradual phase out."

14. Mr. Brown also recalled that the Okaloosa County Health

Department's unwritten, local policy concerning waiver of repair

permits was known and relied upon by septic tank contractors in

certain situations. Cecil Rogers, a long-time septic tank

contractor who dealt with the Okaloosa County Health Department

regularly, testified that there was a standard policy to allow

repairs to be made to septic tank systems that failed within one

year without requiring a permit.

15. There thus seems to have been an unwritten policy or

practice among septic tank contractors and the Okaloosa County

Health Department to the effect that if a system failed within

one year and the contractor was willing to repair the system

without cost to the homeowner, that the permit would be waived as

long as the system or repair could be inspected by the

Department. The system originally installed which failed appears

to have been installed before the effective date of the rule

requiring that a no-charge permit be obtained for repair work.

The repair work in question, the installation of the overflow

system, appears to have been effected after the effective date of

the new rule. It also appears that Mr. Fowler knew of the new

rule because of his obtaining a permit for repair work at the

Windsor Circle repair site in 1994. It also would appear that

Mr. Brown likely verbally approved and inspected the repair work

at the subject site, giving Mr. Fowler the impression that he was

authorized to go ahead and make the repair by installing the

overflow system.

16. Thus, although he may have technically violated the

rule requiring a no-charge permit for repair work, it does not

appear that he had any intent to circumvent the authority of the

Department, since the preponderant evidence shows that Mr. Brown

knew of and approved the installation. Thus, in this regard, a

minimal penalty would be warranted. Moreover, after the original

septic system at the Old Bethel Road site failed in March of

1994, through no fault of Fowler, Fowler paid to make the repair

by installing the overflow system at his own expense. The

original new home purchaser at that site, and Mr. Fowler's

customer, Mr. Wayne Aaberg, thus did not sustain any personal

expenses for the repair work performed by Fowler.

17. The Petitioner did not present any evidence to

establish that the repairs made by Fowler caused the septic tank

system at Old Bethel Road to fail. The Petitioner, through the

testimony of environmental manager Douglas Sims, itself

established that the plumbing contractor actually disconnected

the front system from the overflow system and made a physical

connection only to the rear system installed by Mr. Fowler,

rather than Fowler, and without Mr. Fowler's knowledge.

18. The Petitioner, apparently through Douglas Sims, failed

to conduct an investigation to determine which party actually was

responsible for physically abandoning or disconnecting the

original front system from the home and from the overflow system

prior to the charges being filed against Mr. Fowler. Mr. Fowler

did not cause the physical disconnection of the two systems and

the residence and is not a licensed plumber. He did not, during

the course of his contracting business for septic tanks and

drainfields make physical connections or disconnections to

dwelling units, but instead left that to the responsibility of

the general contractor and/or the plumbing contractor.

19. The Petitioner presented no evidence establishing any

monetary harm to any customer of the Respondent. The

disconnection of the systems which caused the failure was not

shown to have been the responsibility nor fault of Mr. Fowler.

Rather, any monetary harm to the homeowner who owned the

residence when the failure occurred in August 1997, after the

original repair installation had been paid for by Mr. Fowler was

caused by the plumbing contractor and/or the general contractor,

Kemp Brothers, who directed the plumbing contractor to disconnect

the original front system from the overflow system.

Consequently, any monetary damage caused by fixing the failure

which occurred in August 1997, and which engendered the subject

dispute, was not caused by Mr. Fowler.

20. Finally, Mr. Douglas Sims of the Department, testified

that he knew of two other un-permitted repairs by septic tank

contractors which were known to the Department. In both of those

cases, the contractors were only issued a Letter of Warning.

Mr. Sims testified that if the Respondent herein had made repairs

to the existing system at his own cost after the failure

occurring in August of 1997, then the Department would have only

issued a Letter of Warning. Mr. Fowler paid to fix the original

system in February 1995, but felt that monetary responsibility

for the August 1997 failure was not his fault and thus did not

offer to pay for that.

CONCLUSIONS OF LAW

21. The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties this

proceeding. Section 120.57(1), Florida Statues.

22. The Petitioner is an agency of the State of Florida

charged with administering a comprehensive program to ensure that

on-site sewage treatment and disposal systems are sized, designed

constructed, installed, modified and abandoned in compliance with

public health considerations in accordance with Section

381.0065(3)(e), Florida Statutes. The Respondent is a septic

tank contractor, licensed in accordance with Section 381.0065 and

Chapter 64E-6, Florida Administrative Code.

23. The operative statute controlling the Department in

this case is, in pertinent part:

381.0065 Onsite sewage treatment and disposal

systems; regulation .

(1) LEGISLATIVE INTENT. It is the intent of

the Legislature that . . . the department

shall issue permits for the construction,

installation, modification, abandonment, or

repair of onsite sewage treatment and

disposal systems. . . .

(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 . . .

drainfield . . . [and] a septic tank. . . .

* * *

(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. . . .

(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.

* * *

(h) Conduct enforcement activities,

including imposing fines, issuing

citations . . . for violations of this

section . . . or for a violation of any rule

adopted under this section. . . .

* * *

(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.

* * *

(5) ENFORCEMENT; RIGHT OF ENTRY; CITATIONS.

(b)1. The department may issue citations

that may contain . . . an order to pay a

fine . . . for violations of ss.381.0065-

381.0067.

64E-6.003 Permits .

(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 DH

Form 4016. * * * A fee shall not be charged

for a repair permit issued within 12 months

from the date of final authorization of the

onsite sewage treatment and disposal system.

(2) System inspection - Before covering with

earth and before placing a system into

service, a personal installing or

constructing any portion of an onsite sewage

treatment and disposal system shall notify

the county health department of the

completion of the construction activities and

shall have the system inspected by the

department for compliance with the

requirements of this Chapter, except as noted

in s.10D-6.043(3) for repair installations.

(a) If the system construction is approved

after an inspection by the DOH county health

department, the department shall issue a

"Construction Approval" notice to the

installer.

(b) If the system installation does not pass

the construction inspection on any type of

system installation, the installer shall make

all required corrections and notify the DOH

county health department of the completion of

the work prior to the reinspection of the

system. A reinspection fee shall be charged

to the installer for each additional

inspection leading up to construction

approval.

(c) Final installation approval shall not be

granted until the DOH county health

department has confirmed that all

requirements of this Chapter, including

building construction and lot grading are in

compliance with plans and specifications

submitted with the permit application.

64E-6.004 Application for System Construction

Permit .

(1) No person shall cause or allow

construction of a system without first

applying for an obtaining a construction

permit. DH Form 4015 shall be used for

recording permit application information.

(2) An application shall be completed in

full, signed by the owner or the owner's

authorized representative, or a contractor

licensed in accordance with Chapter 489,

Florida Statutes, and shall be accompanied by

all required exhibits and fees. If the owner

of a property uses an authorized

representative to obtain a new system

construction permit, a signed statement from

the owner of the property assigning authority

for the representative to act on the owner's

behalf shall accompany the application.

64E-6.0111 Abandonment of Systems .

(1) Whenever the use of an onsite sewage

treatment and disposal system is discontinued

. . . the system shall be abandoned within 90

days and any further use of the system for

any purpose shall be prohibited.

* * *

(2) The following actions shall be taken, in

the order listed, to abandon an onsite sewage

treatment and disposal system:

(a) Property owner or agent shall apply for

a permit from the department to abandon the

existing onsite sewage system and submit the

required fee. Upon receiving a permit:

(b) The tank shall be pumped out.

(c) The bottom of the tank shall be opened

or ruptured, or the entire tank collapsed so

as to prevent the tank from retaining water,

and

(d) The tank shall be filled with clean sand

or other suitable material, and completely

covered with soil.

24. The citation for violation and amended citation has

charged the Respondent with three separate violations and

proposed a $1,500.00 fine. The Petitioner also charged in the

amended citation that the Respondent caused the system installed

at 5642 Old Bethel Road, Crestview, Florida to be improperly

disconnected and abandoned. The Petitioner also attempted to

apply "aggravating factors" in the amended citation, pursuant to

Rule Chapter 64E-6.022, Florida Administrative Code.

Specifically it is alleged that monetary or other damage was

sustained by the registrant's customer, which damage the

registrant has not yet relieved as of the time the penalty is to

be assessed.

25. The Respondent, presented testimony to the effect that

the Petitioner, at material times, had a non-promulgated,

unwritten local policy or practice wherein certain septic tank

system repairs could be made without an actual written permit, so

long as the repair was inspected by a Department inspector. The

Department's representative, Mr. Douglas Sims testified that for

an unspecified period of time repair permits were waived if the

Department inspected the repair. He also admitted the necessity

of sending a letter to local septic tank contractors as late as

April 1998 reminding that repair permits were in fact needed

before repairs would be made to existing systems, some four years

after the rule requiring such repair permits purportedly took

effect.

26. Another long-time inspector for the Department,

Mr. Brown, testified that at least through the early 1990's an

unwritten informal policy allowed repair permits to be waived if

the Department was aware of the repair. The Petitioner and one

witness, Cecil Rogers, testified that local septic tank

contractors had relied upon that policy. The evidence also shows

that because he obtained a permit for repair work at the Windsor

Circle premises, that Mr. Fowler was aware of the changing rule

situation concerning the new necessity for obtaining a permit for

repair work, albeit at no fee.

27. Thus, the preponderant evidence shows that there was

ample opportunity for some confusion as to when non-promulgated

local rules or policies were in effect or remained in effect and

whether such a policy was in effect at the time the repairs were

made at the Old Bethel Road site. The preponderant evidence

shows that for some time period before 1995, the Department

allowed septic tank contractors under certain circumstances, to

make repairs to systems that failed within one year without

obtaining a written permit as long as the repair was known to

have been needed, made and was inspected by agents of the

Petitioner.

28. The greater weight of the evidence shows that the

Department was aware of the repairs made by the Respondent and,

through Mr. Brown, inspected the repairs at the time they were

made by the Respondent. The Department knew through its

inspectors and its environmental manager Mr. Sims, that the Old

Bethel Road site system had failed within one year and knew that

the nature of the failure was waste water on the surface of the

drainfield. The preponderant evidence shows that Mr. Brown

inspected the repair when it was made and approved it. While

Mr. Brown testified that he did not specifically recall such an

inspection, his employee activity reports reflected a visit to an

Old Bethel Road location with Mr. Fowler around the same date

that Mr. Fowler and the Department have acknowledged that the

repairs were made by Fowler. Thus the Department records support

Mr. Fowler's contention that the Department was aware of the

repair and that Mr. Brown, on behalf of the Department, had

approved it. Although it appears that the repair work was done

after the effective date of the rule requiring the issuance of a

no-fee permit for repair work took effect, the above-found

circumstances show that the repair work was effected with the

knowledge of the Department and with Mr. Brown's approval and

thus without any effort or intent to conceal the un-permitted

repair work on the part of the Respondent. Accordingly, it has

not been established that the Respondent is blame-worthy to the

extent that a fine should be imposed under these circumstances as

well as the circumstance that other un-permitted work resulted in

only letters of warning being issued to other contractors who

performed such un-permitted repair work, as shown by Mr. Sim's

own testimony.

29. The Department has also alleged that the Respondent

caused a septic tank system to be disconnected and abandoned

without a permit. The preponderant weight of the evidence shows

by the Petitioner's admission, that this violation did not occur

at the hands of the Respondent. The Petitioner's representative,

Mr. Sims, acknowledged that he had not investigated whether or

not the plumbing contractor had caused the disconnection of the

system prior to filing a violation. Thus this violation has not

been established by preponderant evidence.

30. The Petitioner has also alleged that monetary harm was

caused to the registrant's customer, the registrant being the

Respondent. No evidence was presented establishing any actual

monetary damages to the registrant's customer. The preponderant

weight of the evidence indicates that there was no monetary

damage cause to the original customer of the registrant,

Mr. Wayne Aaberg, by any act or omission of the Respondent. The

initial repairs were made to the original system at the

Respondent's own expense, with no cost to either the owner or the

general contractor. The actual cause of the system failure in

approximately August 1997, was the disconnection of the two

systems and the Respondent had no responsibility in causing that

disconnection. Therefore, it has not been proven that any

monetary damage caused by the deficiency in the system, which is

at issue in this case, was the responsibility of the Respondent.

31. Finally, in its post-hearing Proposed Recommended

Order, the Respondent asserts that it is entitled to attorney's

fees as there is purportedly no basis in fact for the alleged

violations charged against the Respondent at the time the

citation was filed by the Department, that the alleged

disconnection of the septic tank system and purported monetary

harm to the customer were not investigated prior to charges being

filed by the Department, and that the charges had no basis in law

or fact. This purported attorney's fee claim cannot be resolved

in this proceeding, however. A separate petition for attorney's

fees must be filed within 60 days after the Respondent becomes a

"prevailing party" in this case, which cannot occur until a final

order disposing of the dispute is entered by the Department.

Thereafter, a petition seeking attorney's fees, for instance, on

the basis asserted by the Respondent, must be filed initiating a

separate proceeding, if the Respondent intends seeking attorney's

fees as a "small business party." See Section 57.111, Florida

Statutes.

RECOMMENDATION

Accordingly, having considered the foregoing Findings of

Fact, Conclusions of Law, the evidence of record, the candor and

demeanor of the witnesses and the pleadings and arguments of the

parties, it is, therefore,

RECOMMENDED that a final order be entered finding that the

Respondent effected repair work to a septic tank and drainfield

system without the required written permit but that, in view of

the above-found and concluded extenuating circumstances, that a

minimal penalty of a letter of warning be issued to the

Respondent by the Department and that the citation for violation,

in all other respects, be dismissed.

DONE AND ENTERED this 19th day of January, 2000, in

Tallahassee, Leon County, Florida.

___________________________________

P. MICHAEL RUFF

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 19th day of January, 2000.

COPIES FURNISHED:

Rodney M. Johnson, Esquire

Department of Health

Northwest Law Office

1295 West Fairfield Drive

Pensacola, Florida 32501

Matthew D. Bordelon, Esquire

2721 Gulf Breeze Parkway

Gulf Breeze, Florida 32561

Angela T. Hall, Agency Clerk

Department of Health

Bin A02

2020 Capital Circle, Southeast

Tallahassee, Florida 32399-1703

Dr. Robert G. Brooks, Secretary

Department of Health

Bin A00

2020 Capital Circle, Southeast

Tallahassee, Florida 32399-1701

Pete Peterson, General Counsel

Department of Health

Bin A02

2020 Capital Circle, Southeast

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.