99-002051 Department Of Health vs. Michael Jedware Status: Closed Recommended Order on Wednesday, November 17, 1999.

Summary: Contractor`s use of spoil to cover a replacement septic system subjects him to a fine.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

)

Petitioner, )

)

vs. ) Case No. 99-2051

)

MICHAEL JEDWARE, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

Notice was provided and on October 28, 1999, a formal

hearing was held in this case. The hearing location was the

Department of Transportation, 719 South Woodland Boulevard,

Deland, Florida. Authority for conducting the hearing is set

forth in Sections 120.569 and 120.57(1), Florida Statutes.

The hearing was conducted by Charles C. Adams, Administrative

Law Judge.

APPEARANCES

For Petitioner: Charlene J. Petersen, Esquire

Department of Health

420 Fentress Boulevard

Daytona Beach, Florida 32114

For Respondent: Michael Jedware, pro se

Post Office Box 390073

Deltona, Florida 32738-0073

STATEMENT OF THE ISSUE

Should Petitioner fine Respondent for using contaminated

spoil from the previous septic system to cover a new drainfield

being installed?

PRELIMINARY STATEMENT

On April 20, 1999, Petitioner cited Respondent for allegedly

using contaminated spoil for a drainfield repair, specifically to

cover a new drainfield being installed. See Rule 64E-6.015(6),

Florida Administrative Code. For the alleged violation

Petitioner seeks to impose an administrative fine in the amount

of $500.00. See Rule 64E-6.022(1)(p), Florida Administrative

Code. On April 26, 1999, Respondent contested this citation by

requesting a hearing in accordance with Sections 120.569 and

120.57, Florida Statutes, in which Respondent disputed material

facts in the citation.

On May 4, 1999, the Division of Administrative Hearings

received Petitioner's request for the assignment of an

Administrative Law Judge to conduct a hearing to resolve the fact

disputes between the parties. Initially the case was assigned to

Stephen F. Dean, Administrative Law Judge. The case was

transferred to the undersigned.

At hearing Petitioner presented Leila Baruch and Scott

Chambers as witnesses. Petitioner's Exhibit numbered 1 was

admitted. Respondent testified in his own behalf.

Petitioner requested official recognition be made of

Sections 381.0065 and 489.553, Florida Statutes, together with

Rules 64E-6.015(6) and 64E-6.022(1)(p), Florida Administrative

Code. The request was granted.

A hearing transcript was not prepared. The due date for

submitting proposed recommended orders was November 8, 1999.

See Section 120.57(1)(b), Florida Statutes and Rule 28-106.215,

Florida Administrative Code.

Petitioner timely submitted a proposed recommended order

which has been considered. Respondent made no submission.

FINDINGS OF FACT

1. Petitioner issues permits for the construction,

installation, modification, or repair of onsite sewage treatment

systems in accordance with Section 381.0065, Florida Statutes.

Those repairs are conducted by septic tank contractors as

qualified and registered by Petitioner, with the expectation that

the registrants shall be subject to ethical standards of practice

in their business as established by Petitioner's rules. See

Section 489.553(3), Florida Statutes.

2. Respondent, whose address is Post Office Box 390073,

Deltona, Florida 32738-0073, is registered by Petitioner as a

septic tank contractor. Respondent does business as Alpha

Environmental Services.

3. Respondent contracted with a customer at 1019 Pioneer

Drive, Deltona, Florida to replace an onsite sewage treatment and

disposal system at that address.

4. Petitioner issued a permit for the work related to the

septic system. Leila Baruch, then of the Volusia County Florida

Environmental Health Agency, certified by Petitioner in

inspecting septic systems, inspected the site before the work was

performed.

5. On February 18, 1999, Ms. Baruch returned to the site

for the purpose of examining the "easy way" drainfield which

Respondent had installed over the natural soil at the bottom of

the replacement system. The easy way drainfield is a system of

pipes surrounded by pieces of styrofoam. At the time of this

inspection, the cover that was to be placed over the top of the

drainfield had not been arranged. Ms. Baruch observed the old

contaminated material that had been excavated from the failed

system (the spoil) located to the side of the new drainfield.

The new drainfield had been left uncovered to allow the inspector

to observe its placement depth.

6. As was the custom, the Volusia County Environmental

Health Agency approved the installation of the drainfield

concerning its relative depth and a call was made from

Ms. Baruch to Respondent's business indicating that it would be

acceptable to cover the drainfield following the more recent

inspection. By this contact, it was not intended to grant

permission to cover the drainfield with the spoil that had been

removed from the failed system. This call to Respondent's

business was made on February 18, 1999.

7. Later on February 18, 1999, Ms. Baruch spoke with

Respondent. This contact was based upon remarks that had been

made to Ms. Baruch by the customer homeowner during Ms. Baruch's

inspection of the site earlier on that date. The customer's

remarks were to the effect that she understood that Respondent

intended to use the spoil removed from the original septic system

to cover the new system. In her conversation with Respondent,

Ms. Baruch reminded Respondent that Respondent could not use the

spoil to cover the new drainfield. In addition, Ms. Baruch read

from Rule 64E-6.015(6), Florida Administrative Code, concerning

the prohibition against the use of spoil material in covering the

new drainfield.

8. Ms. Baruch returned to the job site two or three days

later and observed that the spoil material from the failed septic

system had been used to cover the new drainfield. Respondent was

responsible for the placement of the spoil material as a cover

for the new drainfield. This condition in which the spoil

material had been placed over the new drainfield was also

observed by Scott Chambers of the Volusia County Environmental

Health Agency, who is registered as a sanitarian with the Florida

Environmental Health Association and certified by Petitioner for

inspection of onsite sewage and disposal systems.

9. As a consequence of the findings made by the inspectors,

Petitioner cited Respondent for violation of Rule 64E-6.015(6),

Florida Administrative Code, and seeks to impose a fine in

accordance with Rule 64E-6.022(1)(p), Florida Administrative

Code.

10. Respondent's contention in his testimony that the spoil

material was not placed immediately on the new drainfield is

rejected. A substantial portion, if not all, of the new

drainfield was covered by the spoil removed from the failed

drainfield.

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

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

Statutes.

12. Petitioner has authority to issue permits for

construction, installation, modification, or repair of on-site

sewage treatment and disposal systems. See Section 381.0065,

Florida Statutes. Additionally, Petitioner grants certificates

of registration to persons who qualify as septic tank contractors

and by rule adoption has established ethical standards of

practice for those persons. See Section 489.553(3), Florida

Statutes.

13. Respondent is a septic tank contractor subject to the

requirements for ethical standards of practice.

14. In carrying out repairs at the job site in question,

Respondent was subject to Rule 64E-6.015(6), Florida

Administrative Code, which states:

Construction materials used in system repairs

shall be of the same quality as those

required for new system construction.

Contaminated spoil from drainfield repairs

shall not be used in system repair in any

manner. Any contaminated spoil material

shall be disposed of in a sanitary landfill

or shall be limed and stockpiled for at least

30 days. The resulting material shall not be

used for drainfield repair. . . .

15. Rather than dispose of the spoil material in a sanitary

landfill or lime and stockpile the spoil material, Respondent

allowed it to be used in the system repair as cover in violation

of Rule 64E-6.015(6), Florida Administrative Code. For this

violation, Respondent is subject to the discipline found at Rule

64E-6.022(1)(p), Florida Administrative Code, calling for the

imposition of a $500.00 fine.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law

reached, it is

RECOMMENDED:

That a final order be entered which finds Respondent in

violation of Rule 64E-6.015(6), Florida Administrative Code, and

imposes a $500.00 fine in accordance with Rule 64E-6.022(1)(p),

Florida Administrative Code.

DONE AND ENTERED this 17th day of November, 1999, in

Tallahassee, Leon County, Florida.

CHARLES C. ADAMS

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 th e

Division of Administrative Hearings

this 17th day of November, 1999.

COPIES FURNISHED:

Charlene J. Petersen, Esquire

Department of Health

420 Fentress Boulevard

Daytona Beach, Florida 32114

Michael Jedware

Post Office Box 390073

Deltona, Florida 32738-0073

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 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.