02-001020 Department Of Health, Division Of Environmental Health vs. Larry C. Garner, D/B/A E. Carver Septic Tank Status: Closed Recommended Order on Friday, May 24, 2002.

Summary: Respondent`s employee seriously overstated size of septic tank and drain field on Form 4015 so as to warrant $500 fine against Respondent.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

DIVISION OF ENVIRONMENTAL HEALTH, )

)

Petitioner, )

)

vs. ) Case No. 02 - 1020

)

LARRY C. GARNER, d/b/a A. CARVER )

SEPTIC TANK, )

)

Respondent. )

___________________ _________________)

RECOMMENDED ORDER

On April 26, 2002, a final administrative hearing was

held in this case in Green Cove Springs, Florida, before

J. Lawrence Johnston, Administrative Law Judge, Division of

Administrative Hearings (DOAH).

APPEARA NCES

For Petitioner: John D. Lacko, Esquire

Department of Health

420 Fentress Boulevard

Daytona Beach, Florida 32114

For Respondent: Larry C. Garner, pro se

13950 Normandy Boulevard

Jacksonville, Florida 32221

STATEMENT OF THE ISSUES

The issue in this case is whether Respondent, Larry C.

Garner, should be fined $500 for misstating the size of a

septic tank and drain field.

PRELIMIN ARY STATEMENT

On January 15, 2002, the Department of Health, Division

of Environmental Health (the Department), issued a Citation

for Violation alleging that Respondent violated Section

489.553(3), Florida Statutes, and Florida Administrative Code

Rule 64E - 6.022(1)(k) by "practicing fraud or deceit [or]

making misleading or untrue representation" on Department of

Health Form 4015. Respondent timely disputed the charges and

requested an administrative hearing. The matter was referred

to DOAH on March 1, 20 02, and final hearing was scheduled for

April 26, 2002.

At final hearing, the Department called two witnesses and

had Petitioner’s Exhibits 1 and 2 admitted in evidence.

Respondent testified in his own behalf but offered no exhibits

in evidence. Neither party ordered a transcript, and the

parties were given until May 6, 2002, to file proposed

recommended orders. Only the Department filed a proposed

recommended order, which has been considered in preparation of

this Recommended Order.

FINDINGS OF FACT

1. Respondent, Larry C. Garner, is the licensed septic

tank contractor who owns and operates A. Carver Septic Tank.

(The Citation for Violation erroneously referred to the

company as “E. Carver Septic Tank,” but the error was

corrected without objection at final hearing. There was no

evidence to support Respondent’s suggestion that the

Department may have taken disciplinary action against him

because it erroneously thought Respondent was another

licensee.)

2. On December 6, 2001, an employee of Respon dent pumped

out a septic tank and measured a drain field located at

847 Matthews Road, Maxville, Florida. The resident there

wanted to enlarge her residence and needed Respondent's

services in order to obtain Department approval of the

existing septic tan k system for the enlarged residence.

3. After services were provided, Respondent's office

gave the resident a receipt stating that Respondent's company

had pumped out a 900 gallon septic tank and that the drain

field measured 360 square feet. (Responde nt's office actually

dealt with the resident's adult daughter.) Respondent's

office staff also prepared Form 4015 (a Department form

entitled “Onsite Sewage Treatment and Disposal System Existing

System and System Repair Evaluation”) and gave it to the

re sident for use in getting approval of the system for the

enlarged residence. The form stated that the septic tank was

900 gallons and that the drain field was 360 square feet.

4. When the resident applied for approval of her septic

tank system for her en larged residence, the Department

inspected the system and found that the septic tank actually

was 750 gallons and the drain field actually was only

approximately 110 square feet. The Department issued the

Citation for Violation based on the magnitude of t he

discrepancy.

5. Respondent denied that he personally had any

contemporaneous knowledge of the services provided by his

employee or the receipt of Form 4015 prepared by his office,

and there was no evidence that he did. Respondent personally

investig ated after issuance of the Citation for Violation.

6. At final hearing, Respondent questioned whether the

Form 4015 actually stated that the septic tank was 900

gallons. From the handwriting on the form itself, it appears

possible that the number could read 700, not 900. But based

on the written receipt, which either was prepared

contemporaneously with the Form 4015 or was the basis for

preparation of the Form 4015 by Respondent's office staff, the

greater weight of the evidence was that the Form 4015 stated

and was intended to state 900 gallons as the size of the

septic tank.

7. As further support for this finding, Respondent

himself testified to a conversation he had with his employee

during which the employee explained that he sized the septic

tan k at 700 gallons based on its apparent depth and Respondent

admonished him that the employee knew better -- i.e. , knew it

was necessary to measure height, width, and depth to

accurately measure the size of a septic tank.

8. Respondent also attempted to ex plain how his employee

may have made a forgivable error in measuring the drain field.

According to the Form 4015, the employee measured the drain

field as a rectangular bed, 12 feet by 30 feet. Actually, the

drain field consists of two trenches (one 26 f eet long and the

other 29 feet long), which the Department's inspector measured

as being two feet wide. Respondent testified that the drain

field began at a distribution box and was approximately ten

feet wide within a few feet of the distribution box.

R espondent testified that it would be easy to incorrectly

assume that the approximate ten - foot width continued as a bed

for the entire length of the drain field, as his employee

apparently did. However, the greater weight of the evidence

was that the emplo yee's error was not reasonable; to the

contrary, to determine the configuration and size of a drain

field, it is necessary to probe the ground at more than just

one distance close to the distribution box.

9. When Respondent himself went to the site to

i nvestigate the allegations against him, he probed both near

the distribution box and further away southeast of the

distribution box. He testified that he found solid rock ten

feet in width near the distribution box; to the southeast, his

probing revealed a trench which Respondent measured at between

three and a half and four feet in width. Based on those

measurements, Respondent assumed two trenches approximately 30

feet long and four feet in width each, for a total of

approximately 240 square feet.

10. It is difficult to reconcile Respondent’s testimony

as to the width of the southeast trench with the testimony of

the Department's inspector. The Department's inspector probed

approximately ten feet and 20 feet from the septic tank and

found two - foot wi de trenches in four different places. The

Department's inspector also testified without contradiction in

response to Respondent's questions on cross - examination that

backhoes used at the time this drain field was installed in

1973 generally had two - foot w ide excavation buckets.

11. Based on the greater care taken by the Department's

inspector in measuring the drain field, and the kind of

backhoe in general use in 1973, it is found that the

Department's inspector's measurements were more accurate.

Even if Respondent's measurements were accurate, and the

Department inspector's were inaccurate, the measurements

recorded on the receipt and on Form 4015 still would have been

seriously overstated.

12. While not seriously disputing the inaccuracy of the

Fo rm 4015 submitted in this case, Respondent stated "anyone

can make a mistake" and that the Department should have asked

Respondent to re - check the measurements instead of issuing a

citation, especially in view of Respondent's disciplinary

record in 29 year s in the business in Clay County.

(Respondent testified that his only "issues in Tallahassee"

were one incident -- not fully explained -- involving a cow on

someone's property and another when he had someone take a re -

certification examination for him at a ti me when his mother

was ill. The Department did not controvert this testimony.

As already mentioned, there was no evidence to support

Respondent's initial suggestion that the Department may have

taken disciplinary action against him because it erroneously

thought he was another licensee.) But the Department's

witness testified that issuance of the citation was

appropriate and consistent with agency policy because of the

magnitude of the discrepancies on the Form 4015.

13. Respondent testified that the employee involved in

this case was his stepson, who has worked for Respondent for

14 years, since he was 11 years old, seven to eight years as a

full - time employee. Respondent also testified that he

recently fired his stepson, but the reasons for firing h im

were not directly related to his conduct in this case.

14. Respondent also testified that he felt compelled to

insist on a hearing although he knew the Form 4015 was

inaccurate because he perceived the Department to be acting in

this case as if it ha d "absolute power" over him. He

apparently viewed his request for a hearing as a necessary

challenge to government's assertion of "absolute power" over

him.

CONCLUSIONS OF LAW

15. Section 381.0065(3)(c), Florida Statutes, authorizes

the Department to: "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 adop ted under this section, part I

of chapter 386, or part III of chapter 489."

16. Section 489.553(3), Florida Statutes, authorizes the

Department to "adopt reasonable rules, including, but not

limited to, rules that establish ethical standards of

practice , requirements for registering as a [septic tank]

contractor, requirements for obtaining an initial or renewal

certificate of registration, disciplinary guidelines, and

requirements for the certification of partnerships and

corporations."

17. Section 4 89.556, Florida Statutes, provides:

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.

(3) Obtained his or her registration or

any other order, ruling, or authorization

by means of fraud, misrepresentation, or

concealment of material facts.

(4) Been found guilty of gross misconduct

in the pursuit of his or her profession.

18. Florida Adm inistrative Code Rule 64E - 6.022 provides

in pertinent part:

(1) The following guidelines shall be used

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, $500 fine; repeat

violation, 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 co nditions 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.

19. The statutory and rule scheme used by the Department

in its Citation for Violations is unusual. See Final Order

entered in Dept. of Health, etc. v. Barbara Thompson, etc. ,

DOAH Case No. 01 - 3218, entered February 27, 2002, adopting in

toto Recommended Order, entered by ALJ Alexander February 5,

2002, 2002 WL 185223. But as in the Thompson case, no issue

has been raised in this case as to adequacy of the charges or

notice to Respondent.

20. Applying the intent of Rule 64E - 6.022(1)(k), the

evidence is clear that Respondent, through the actions of his

employee, is subject to imposition of a fine for "[p]racticing

fraud or deceit, ma king misleading or untrue representations."

(Emphasis added.) The facts found do not clearly warrant

either aggravation or mitigation of the $500 penalty

guideline.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it i s

RECOMMENDED that the Department of Health enter a final

order finding Respondent guilty as charged and imposing a fine

in the amount of $500.

DONE AND ENTERED this 24th day of May, 2002, in

Tallahassee, Leon County, Florida.

______________________________

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 24th day of May, 2002.

COPIES FURNISHED:

Dr. John O. Agwunobi, Secretary

Department of Health

4052 Bald Cypress Way, Bin A00

Tallaha ssee, Florida 32399 - 1701

William W. Large, 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

John D. Lacko, Esquire

Department of Health

420 Fentress Boulevard

Daytona Beach, Florida 32114

Larry C. Garner

13950 Normandy Boulevard

Jacksonville, Florida 32221

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written e xceptions 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.