04-004333 Department Of Health vs. Matt Beebe Status: Closed Recommended Order on Thursday, July 7, 2005.

Summary: Petitioner proved that Respondent improperly disposed of septage, created a sanitary nuisance, and failed to keep proper logs. Recommend a $2,500 fine and a 90-day suspension of the septage disposal operating permit.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

)

Petitioner, )

)

vs. ) Case No s . 04 - 4333

) 05 - 0695

MATT BEEBE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, these consolidated proceedings came on

for formal hearing before Lawrence P. Stevenson, a

duly - designated Administrative Law Judge of the Division of

Administrative Hearings, on April 1, 2005, in Naples, Florida.

The appearances were as follows :

APPEARANCES

For Petitioner: Susan Mastin Scott, Esquire

Department of Health

2295 Victoria Avenue, Room 206

Fort Myers, Florida 3390 1

For Respondent: Michael F. Kayusa, Es quire

Post Office Box 6096

Fort Myers, Florida 33911

STATEMENT OF THE ISSUE S

At issue in DOAH Case No. 04 - 4333 is whether Respondent

committed the two violations of Florida Administrative Code Rule

64E - 6. 022 alleged in the citation issued on September 29, 2004,

and, if so, whether the imposition of a $1,000.00 fine was

properly imposed.

At issue in DOAH Case No. 05 - 0695 is whether Respondent

committed the three violations alleged in the Amended

Administra tive Complaint issued on February 21, 2005 , and, if

so, whether his septic tank contractor registration should be

revoked or some lesser penalty imposed.

PRELIMINARY STATEMENT

On September 29, 2004, the Department of Health

("Department") issued a citatio n of violation against

Respondent, Matt Beebe, a registered septic tank contractor,

alleging that he violated Florida Administrative Code Rule

64E - 6.022(1)(n), the failure to properly treat or dispose of

septage, and Florida Administrative Code Rule 64E - 6. 022(1)(q),

the creation or maintenance of a sanitary nuisance. The

citation directed Mr. Beebe to pay a fine of $500.00 for each of

the two violations. The citation provided that Mr. Beebe could

request a reduction or waiver of the fine by demonstrating good

faith in correcting the violations. Mr. Beebe apparently

requested such a reduction or waiver, which was denied on

October 20, 2004. On November 19, 2004, Mr. Beebe filed a

petition for a formal administrative hearing. On December 3,

2004, the Depa rtment forwarded the P etition to the Division of

Administrative Hearings ("DOAH") for the assignment of an

Administrative Law Judge and the conduct of a formal hearing.

The case was assigned DOAH Case No. 04 - 4333 and scheduled for

hearing on February 2, 2 005.

On January 20, 2005, the Department filed a motion for

continuance. The motion noted that the Department was

investigating additional violations against Mr. Beebe and

requested a continuance to permit any subsequent administrative

complaint against Mr. Beebe to be consolidated with DOAH Case

No. 04 - 4333. By O rder dated January 21, 2005, the Department's

motion for continuance was granted.

On January 27, 2005, the Department served an

A dministrative C omplaint on Mr. Beebe. On February 23, 2005,

the Department forwarded to DOAH an Amended Administrative

Complaint alleging that Mr. Beebe installed a holding tank at a

residence without a permit in violation of Florida

Administrative Code Rule 64E - 6.0101, that Mr. Beebe improperly

disposed of septage pu mped from this holding tank in violation

of Florida Administrative Code Rule 64E - 6.010, and that

Mr. Beebe failed to maintain adequate septage and hauling logs

in violation of Florida Administrative Code Rule

64E - 6.010(7)(e). This matter was assigned DOAH Case No. 05 - 0695

and, pursuant to the parties' joint motion, was consolidated for

hearing with DOAH Case No. 04 - 4333. The consolidated cases were

scheduled for hearing on April 1, 2005, and the hearing was

held , as scheduled .

At the outset of the hearing , argument was heard on the

Department's Motion in Limine , which sought to prevent Mr. Beebe

from arguing the merits of a 2001 citation of violation for

which a F inal O rder had been entered. The undersigned granted

the motion insofar as it sought to avoid re - litigating

Mr. Beebe's prior violation. However, the undersigned also made

it clear that Mr. Beebe would be allowed to introduce evidence

regarding the history of his relations with the Department,

including the prior violation, in order to support hi s

contention that he was being singled out for discipline by the

Department.

At the hearing, the Department presented the testimony of:

Dr. Philip Amuso, director of the Department's Tampa laboratory

and assistant director for the Department's laboratorie s

statewide; Dale Waller, plant manager for a Collier County

wastewater reclamation facility; and Kenneth Rech, director of

the Department's environmental health and engineering division

for Collier County. The Department's Exhibits 1 through 22 were

admi tted into evidence. Respondent testified on his own behalf

and presented the testimony of Edward Ehlen, owner of the

property on which Mr. Beebe installed the disputed holding tank.

Respondent offered no exhibits.

No transcript of the hearing was ordere d. At the hearing,

the parties agreed to submit p roposed r ecommended o rders within

15 days of the hearing. The Department timely filed its

Proposed Recommended Order on April 18, 2005, the first business

day following the 15th day, which fell on a Saturd ay. Without

objection, Respondent filed his Proposed Recommended Order on

April 21, 2005. Both Proposed Recommended Orders were

considered in the rendition of this Recommended Order.

FINDINGS OF FACT

1. The Department is the state agency charged with

en forcing the statutory provisions pertaining to the practice of

septic tank contracting in Florida pursuant to Chapter 489,

Part III , and Section 381.0065, Florida Statutes (2004) .

2. At all times relevant to this proceeding, Respondent

Matt Beebe , was a r egistered septic tank contractor, having been

issued registration number SR0971283, and was the qualifying

contractor for his business, Southern Sanitation, Inc.

("Southern Sanitation"), having been issued registration number

SA0970864. On June 7, 2001, M r. Beebe was cited for installing

a septic system without a permit , in violation of Florida

Administrative Code Rule 64E - 6.022 , and paid a fine of $500.00

without contest.

3. At all times relevant to this proceeding, Mr. Beebe

also operated a septage disp osal service business under the

Southern Sanitation name, having been issued operating permit

number 11 - QN - 0054.

A . Improper S eptage D isposal and S anitary N uisance

4. On September 29, 2004, Kenneth Rech, the Department's

environmental health and engin eering director for Collier

County, received a telephone complaint that a Southern

Sanitation septage hauling truck had been seen emptying its

contents onto a vacant lot at 295 Brandy Lane in Naples.

Mr. Rech and his assistant, James Miller, drove out to the

location to investigate the complaint.

5. When he arrived at the location, Mr. Rech first spoke

to the complainant, who lived across the street from the vacant

lot. The complainant estimated that the Southern Sanitation

truck left the lot about 20 mi nutes before Mr. Rech arrived.

6. Mr. Rech and Mr. Miller investigated the site.

Mr. Rech described the area containing the dumped contents of

the truck as a low - lying wetland. The property was about ten

acres in size. The owner kept horses on the lot. Mr. Rech

testified that there was a strong smell of septage, though the

dumped contents were light gray in color. Raw septage is

generally black. Based on the smell, Mr. Rech concluded that

the dumped contents included septage mixed with some other

mat erial.

7. Mr. Rech telephoned Erin Kurbec to meet him at the dump

site. Ms. Kurbec is a Department employee responsible for

oversight of septage hauling and disposal businesses.

Ms. Kurbec in turn phoned Mr. Beebe and asked him to come to the

site.

8. Mr. Rech testified that Mr. Beebe was "very agitated"

when he arrived at the dump site, calling Ms. Kurbec a "liar , "

and protesting that the Department did not have the right to ask

for his company's hauling logs. Because of Mr. Beebe's

aggressive behav ior, Mr. Rech phoned to request a Sheriff's

deputy to come to the site.

9. Mr. Beebe conceded that he was somewhat agitated

because Ms. Kubec asked him to come to the site , but would not

tell him why she wanted to see his truck. She would only say

that i t was a "spot check , " which Mr. Beebe did not believe. By

the time the Sheriff's deputy arrived, the situation had calmed

down.

10. Mr. Beebe told Mr. Rech that he had dumped

approximately 3,000 gallons of "drillers' mud" on the site.

Drillers' mud, or bentonite clay, is a colloidal clay sold under

various trade names that forms a slick slurry , or gel , when

water is added. The appearance of the material dumped at the

site was consistent with that of drillers' mud.

11. Mr. Beebe testified that the owner of the vacant lot

asked him to dump the drillers' mud to fill in a low - lying, hard

to reach area of the property. The liquid - like consistency of

the drillers' mud made it ideal for filling this difficult

portion of the property. Mr. Beebe's testimony as to having

permission to dump materials on the property is credited.

12. Mr. Rech took two samples of the dumped material from

a pooled area about six inches deep. He used sterile sample

equipment and containers. Because Mr. Beebe had alerted him to

the possibility that there could be horse manure under the

dumped material, Mr. Rech was careful to scoop the contents from

the top of the dumped material.

13. Mr. Rech provided one of the samples to Mr. Beebe to

allow Mr. Beebe to have a laboratory of his choice analyze the

material. Mr. Rech sent the other sample to the Department's

Tampa laboratory, which found the sample to contain a fecal

coliform count of 4,800 colonies per gram. The laboratory's

report was stamped with the disclosure stating , "Samp le does not

meet the following NELAC requirements: 1) exceeds 6 hr. hold

time; 2) this matrix is not certified under NELAC."

14. NELAC is the National Environmental Laboratory

Accreditation Conference, a voluntary association of state and

federal agencie s, the purpose of which is to establish and

promote mutually acceptable performance standards for the

operation of environmental laboratories. NELAC certifies

environmental laboratories such as the Department's Tampa

facility, which was not certified for solid matrices such as the

sample provided by Mr. Rech.

15. Dr. Philip Amuso is the director of the Department's

Tampa laboratory. Dr. Amuso testified as to the testing

procedures and the disclosure statement included on the

laboratory report. He conclu ded that neither of the disclosures

affected the validity of the fecal coliform count found in the

sample.

16. Dr. Amuso testified that the applicable testing

standard calls for a sample to be analyzed for fecal coliform

within six hours of the sample col lection time. The sample in

question was not tested within six hours. However, Dr. Amuso

testified that the longer a sample is held, the lower the fecal

coliform count will be , because the fecal coliform colonies tend

to die off over time. Thus, Dr. Amu so testified that the fecal

coliform count in the sample was likely understated, due to the

failure to analyze the sample within six hours.

17. Dr. Amuso testified that his laboratory chose to

classify the sample as solid. The Tampa laboratory was requir ed

to note on its report that it is not NELAC - certified for solid

matrices. However, Dr. Amuso testified that the classification

of the sample had no impact on the analysis performed or the

validity of the result. He explained that the laboratory could

h ave classified the sample as a non - potable liquid, a matrix for

which the Tampa laboratory is NELAC - certified, and the same

analysis would have been performed and would have yielded the

same result.

18. Mr. Beebe forwarded his sample of the dumped materia l

to Sanders Laboratories, Inc. ("Sanders"), a private

environmental testing service. The Sanders laboratory

classified the sample as a non - potable liquid and performed its

analysis within six hours of the sample's collection. The

Sanders laboratory repo rt dated September 30, 2004, found the

fecal coliform count to be 1,600,000 colonies per 100

milliliters. Placed in comparable terms to the Tampa

laboratory's report, this sample showed a fecal coliform count

of 16,000 colonies per gram, or about three ti mes higher than

the Tampa laboratory's sample. Dr. Amuso attributed this higher

reading to the fact that Sanders ran its test within six hours

of collection.

19. Dr. Amuso testified that the fecal coliform count of

4,800 colonies per gram found in the Ta mpa laboratory's sample

constituted "pretty significant" contamination. Mr. Rech

testified that a count of 4,800 colonies per gram is about

one - half of the count found in raw, untreated septage from a

septic tank, and that such a count is "bad" in terms o f public

health significance. Mr. Rech testified that the fecal coliform

count in the Sanders sample was "in the range" for raw untreated

septage.

20. Mr. Rech stated that the laboratory analyses led to

the conclusion that there was a substantial amoun t of untreated

septage mixed with the drillers' mud in the dumped materials.

He concluded there was more septage than could reasonably be

attributed to residue from a previous dump of septage in

Mr. Beebe's truck. He added that it would be impossible to

clean the tank of a septage disposal truck sufficiently to

prevent fecal contamination of a subsequent non - septage load.

Mr. Beebe conceded that Mr. Rech told him that he should not use

a septage hauling truck for any other kind of load, especially

where that load would be dumped on the ground.

21. Before leaving the dump site on September 29, 2004,

Mr. Rech and Ms. Kurbec handed Mr. Beebe the citation for

failure to properly treat or dispose of septage and the creation

or maintenance of a sanitary nuisanc e. The citation directed

Mr. Beebe to pay a fine of $500.00 for each of the two

violations.

22. Mr. Rech testified that he and Ms. Kurbec were able to

conclude from their on - site observations that Mr. Beebe had

improperly disposed of septage and had crea ted a sanitary

nuisance. Mr. Rech stated that the subsequent laboratory

analysis served to confirm those conclusions.

23. Mr. Rech testified that untreated septage consists of

human waste containing high levels of fecal coliform and

viruses, bacteria, a nd parasites that cause a wide range of

gastrointestinal and neurological conditions in humans.

Mr. Rech stated that untreated septage dumped anywhere other

than at a properly regulated disposal site constitutes a public

health nuisance. He noted that th e materials were dumped by

Mr. Beebe within roughly 100 feet of residential drinking water

wells.

24. Mr. Beebe admitted that he dumped the contents of his

disposal truck on the vacant lot, though he denied that it

contained septage. He theorized that th e high fecal coliform

counts in the laboratory analyses were caused by animal manure

beneath the drillers' mud that he dumped on the property.

Dr. Amuso conceded that no testing had been performed to

establish the ambient level of coliform on the property , and

further conceded that the laboratory tests do not distinguish

human from animal feces in measuring the coliform count.

25. However, as noted above, Mr. Rech knew that there were

animals on the property and carefully took his sample from the

top of t he dumped material. Mr. Rech testified that the strong

smell of septage, and the high coliform count found by the

subsequent laboratory analyses left no doubt that untreated

human waste had been dumped on the property by Mr. Beebe.

26. The Department est ablished, by clear and convincing

evidence, that Mr. Beebe dumped a mixture of drillers' mud and

untreated septage on the lot at 295 Brandy Lane in Naples.

B . Holding T ank

27. On or before January 6, 2005, Mr. Beebe placed a

900 - gallon domestic wastew ater holding tank into a pre - dug hole

at the newly built residence of Edward Ehlen at 616 Crescent

Street on Marco Island. Mr. Beebe did not dig the hole, nor did

he connect the holding tank to Mr. Ehlen's house.

28. Mr. Ehlen testified that he contracte d with the City

of Marco Island in July 2004 to connect his new residence, an

$800,000 house, to the city sewer system. The connection was to

be completed no later than November 2004, when Mr. Ehlen and his

family expected to take occupancy of the house. The city did

not complete the connection and , therefore , allowed Mr. Ehlen to

install a holding tank to be used until the sewer connection was

completed. After the holding tank was installed, the city

inspected the tank and gave Mr. Ehlen a temporary cer tificate of

occupancy.

29. On January 6, 2005, after Mr. Ehlen and his family had

moved into their house, the Department discovered that the Ehlen

home was using a holding tank to collect its wastewater. On

January 7, 2005, the Department issued to Mr. E hlen an "Official

Notice to Correct and Abate a Sanitary Nuisance," finding that

Mr. Ehlen was in violation of "Florida Statutes Chapters 381 and

386" because "plumbing discharge from your home is connected to

a sewage holding tank which has not been permi tted or inspected

by this department." The Notice also provided, in relevant

part:

You are hereby directed to correct this

condition by complying with all the

conditions listed below.

• Apply for a "temporary" Holding Tank

permit by close of business on Monday,

January 10, 2005. [This permit will be

valid for a maximum of 120 days, Permit

fee is $185.00]

• Apply for an abandonment permit for the

temporary holding tank by close of

business Monday, January 10, 2005. [This

permit will be valid for a maxim um of 120

days. Complete tank removal will be

required within 10 days of hook up to

public sewer. Permit fee is $40.00]

• Have a licensed septic contractor

excavate the holding tank for inspection

of all connections and seals by this

department by Wedne sday, January 12,

2005.

• Sign and maintain a pump - out agreement

with a licensed septage hauler until the

temporary holding tank is properly

abandoned and inspected by this

department. Provide a copy of this

agreement to the department by Wednesday,

Janu ary 12, 2005. [Minimum required

pump - out frequency to be every other

day].

• Complete hookup to Marco Island Utilities

sewer system within 120 days of receipt

of this notice.

Failure to comply may result in

administrative and/or civil enforcement

action , including administrative fines of up

to $500 per day per violation of law.

30. On January 12, 2005, the Department issued a 120 - day

temporary permit to Mr. Ehlen for his holding tank. Also on

January 12, 2005, Mr. Ehlen signed a contract with Southern

Sanitation pursuant to which Mr. Beebe's company agreed to pump

out the holding tank three times per week.

31. Mr. Beebe conceded that he did not obtain a permit

from the Health Department before he placed the holding tank in

the hole on Mr. Ehlen's prop erty. Mr. Beebe relied on

Mr. Ehlen's statement that the City of Marco Island had approved

the installation of the holding tank.

32. Florida Administrative Code Rule 64E - 6.0101(7)

provides that a construction permit must be obtained before the

placement or installation of any holding tank. The Department

established, by clear and convincing evidence, that Mr. Beebe

placed a 900 - gallon domestic wastewater holding tank into a

pre - dug hole at the Ehlen's residence without obtaining a

Department permit. Mr. Beebe's good faith belief that Mr. Ehlen

had obtained approval for the placement of the tank is noted as

a mitigating factor, but cannot operate as a defense for a

registered septic tank contractor's admitted failure to confirm

the status of any permit wi th the Department prior to commencing

work on the project.

C . Collection and H auling L og

33. Mr. Beebe's annual operating permit from the

Department authorizes him to pump septage from septic tanks and

holding tanks and haul it to an approved treatment s ite for

disposal and treatment. Florida Administrative Code Rule

64E - 6.010(7)(e) requires a septage hauler to maintain a

collection and hauling log "at the treatment site or at the main

business location" and to retain that log for a period of five

years. The rule lists the following items for inclusion in the

log:

1. Date of septage or water collection;

2. Address of collection;

3. Indicate whether the point of collection

is a residence or business and if a

business, the type of business;

4. Estim ated volume, in gallons, of septage

or water transported;

5. Receipts for lime or other materials

used for treatment;

6. Location of the approved treatment

facility;

7. Date and time of discharge to the

treatment facility; and

8. Acknowledgement fr om treatment facility

of receipt of septage or waste.

34. On September 29, 2004, the date on which the

Department investigated Mr. Beebe's dumping of drillers' mud and

sewage on the lot at 295 Brandy Lane in Naples, the Department

requested that Mr. Beeb e provide his septage collection and

hauling log. On September 30, 2004, Mr. Beebe faxed to the

Department a single - page , typed document titled , "RE: Southern

Sanitation, Incuck Log for Trucks 1 and 2." The document

stated that on September 29, 2004, "Truck #1" transported 3,000

gallons of "Well Drillers Mud" from Southern Well Drillers

Services drilling site and disposed of it at 295 Brandy Lane.

The document stated that "Truck #2" did not haul materials on

September 29, 2004.

35. Mr. Rech testifie d that this document did not satisfy

the rule criteria for collection and hauling logs. He noted

that this was not a log kept by the drivers of the trucks, but

merely a statement from Mr. Beebe attesting to what the trucks

had hauled on a single day. Mr. Rech also pointed out that the

Department had inspected and authorized Mr. Beebe to haul

septage in two trucks identified by their vehicle identification

numbers, but that Mr. Beebe's single - page "log" provided no

information specifically identifying the trucks in question.

36. On February 3, 2005, the Department sent a letter to

Mr. Beebe requesting that he produce, among other documentation,

"your original collection and hauling logs for all domestic

sewage and food establishment sludge and/or septage y ou

collected and disposed of from January 1, 2004 through

February 2, 2005."

37. On February 11, 2005, Mr. Beebe responded to the

Department's request, providing copies of "Septic Receiving

Logs" maintained by the North County Water Reclamation Facility

("NCWRF"), the Collier County wastewater facility at which

Mr. Beebe disposed of his loads. There were log pages for

January through June 2004, and October through December 2004.

The logs included the dates of disposal, the number of gallons

and type of waste in the load (septic or grease), and the

signature of the Southern Sanitation driver who dropped off the

load.

38. On March 8, 2005, Mr. Beebe submitted to the

Department supplemental information covering January 2005. It

includes a typed "Pump Job List" for January 2005, prepared on

March 3, 2005. The list contains dates, addresses, and

approximate gallons collected, including eight entries for

pumping out Mr. Ehlen's holding tank. Individual trucks were

not identified on this list. The suppleme ntal information also

included an NCWRF Septic Receiving Log for January 2005.

39. Mr. Beebe testified that the Department had never

asked him for an accounting during the eight years he has

operated his business and that the Department did so in this

cas e only after he contested the allegations in the Brandy Lane

dumping case. Mr. Beebe appeared to believe that the Department

was acting punitively in requesting documents that Mr. Beebe, as

the owner of a permitted septage disposal business, was required

to keep. Mr. Beebe did not contest the apparent fact that he

did not keep collection and hauling logs for his trucks in the

normal course of business. Such documentation as he provided

was insufficiently detailed to meet the requirements of Florida

Admin istrative Code Rule 64E - 6.010(7)(e), and in some instances

was cobbled together well after the fact in order to provide the

Department with some documentation of Southern Sanitation's

activities.

40. Mr. Rech testified that the Department requires

accura te logs of collections and disposals to allow it to

monitor compliance and investigate complaints. An accurate,

detailed, and contemporaneously - created log would have allowed

the Department to discover what Mr. Beebe's truck had collected

and dumped prior to the Brandy Lane dumping incident and would

have allowed the Department to reconcile the amounts of septage

collected by Mr. Beebe from January 2004 through February 2005 ,

with the amounts of septage Mr. Beebe properly disposed of

during the same period .

41. The Department established, by clear and convincing

evidence, that Mr. Beebe did not maintain a septage collection

and hauling log as required by Florida Administrative Code Rule

64E - 6.010(7)(e).

D . Improper disposal of septage

42. The terms of Mr . Beebe's septage disposal service

permit required him to dispose of his collected septage at the

NCWRF. Dale Waller, the plant manager of the NCWRF, testified

as to the procedures followed by sewage haulers at the facility.

Mr. Waller testified that the facility has a computer capable of

generating reports as to the quantity of disposals made by

haulers, but that the computer system often does not operate

correctly. Therefore, the facility's chief means of monitoring

disposals is the "Septic Receiving L ogs" discussed above.

43. The Septic Receiving Log requires the hauler to record

the date of disposal, whether the disposal consisted of septage

or grease, the amount of disposed material in gallons, and the

driver's signature and printed name. The numbe r of gallons

disposed is shown on a calibrated gauge when the waste is pumped

out of the truck. Mr. Waller testified that this gauge is

accurate within five per cent of the actual amount pumped. The

county sends invoices each month to the hauler, based o n the

number of gallons and the type of waste disposed of at the

facility.

44. The Septic Receiving Log is maintained in the foyer of

the NCWRF building, with a monthly sheet for each hauling

company that uses the facility. No NCWRF employee monitors the

haulers as they make their log entries. Mr. Waller testified

that it is essentially an honor system for the haulers.

45. Due to computer problems, the NCWRF had no computer

records of disposals for the month of January 2005. The Septic

Receiving Log fo r Southern Sanitation for that month showed six

entries totaling 11,908 gallons of septage and grease, plus two

early January 2005 entries of 3,450 gallons that were placed on

the December 2004 log, for a total of 15,358 gallons.

46. Mr. Waller testified that in March 2005, Mr. Beebe

submitted a revised Septic Receiving Log for Southern Sanitation

for the month of January 2005. Mr. Beebe also provided this

revised log to the Department as part of his March 8, 2005,

supplemental information for the month o f January 2005. This

revised log listed three additional disposals of septage in the

month of January 2005: 2,550 gallons on January 17; 2,000

gallons on January 24; and 1,700 gallons on January 28. These

additional 6,250 gallons brought the reported to tal disposals of

septage and grease for January 2005 to 21,608 gallons.

47. The NCWRF declined to accept the revised Septic

Receiving Log as an official record of Southern Sanitation's

disposals at the facility for the month of January 2005, because

the N CWRF could not verify the additional disposals. Mr. Beebe

was billed only for those disposals documented on the original

Septic Receiving Log kept at the facility.

48. As part of the March 8, 2005, submission of

supplemental information, Mr. Beebe provid ed to the Department a

"pump job list" for January 1 through 28, 2005. This list

indicated that Southern Sanitation collected between 21,000 and

22,600 gallons of wastewater during the period specified, a

number that roughly corresponds to the total numbe r of gallons

reported by Mr. Beebe in his revised Septic Receiving Log for

the month of January 2005.

49. At the hearing, the Department contended that because

Mr. Beebe reported collecting between 21,000 and 22,600 gallons

of waste, but could only verify the proper disposal of 15,358

gallons of waste, Mr. Beebe must have improperly disposed of at

least 5,600 gallons and as much as 7,200 gallons of waste.

50. In a similar fashion, the Department examined the

amounts that Mr. Beebe reported pumping from Mr . Ehlen's holding

tank, compared those amounts to the Ehlen household's water

usage for the month of January 2005, and concluded that

Mr. Beebe further underreported the amount of waste collected

that month and , therefore , must have improperly disposed of even

more than 5,600 to 7,200 gallons of waste.

51. Mr. Beebe was forthright regarding the issues in these

cases, even when his testimony was against his own interests.

In light of his overall credibility, Mr. Beebe's denial that he

made any improper di sposals of waste is credited. No evidence

was presented to show that Mr. Beebe actually made these

improper disposals. The Department's contention was a surmise

derived from discrepancies in Mr. Beebe's reports of collections

and disposals.

52. Based on all the evidence, the undersigned finds that

the discrepancies in the reports were more likely due to

Mr. Beebe's poor record - keeping and his after - the - fact efforts

to create records complying with Florida Administrative Code

Rule 64E - 6.010(7)(e), rathe r than any illegal dumping of waste.

53. The Department failed to establish by clear and

convincing evidence that Mr. Beebe improperly disposed of

septage during the month of January 2005.

CONCLUSIONS OF LAW

54. The Division of Administrative Hearings has

jurisdiction o ver the subject matter of and the parties to this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2004).

55. In these proceedings, the Department seeks the

imposition of administrative fines and the revocation of

Mr. Beebe's septic tank contractor's registration and septage

disposal operating permit. Therefore, the Department has the

burden of proving by clear and convincing evidence that

Mr. Beebe committed the alleged violations. See Department of

Banking and Finance, Division of Securities and Investor

Protection v. Osborne Stern and Co. , 670 So. 2d 932 (Fla. 1996);

and Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987). Clear and

convincing evidence is the proper standard in license revocation

proceedings because they are penal i n nature and implicate

significant property rights. See Osbourne Stern , 670 So. 2d

at 935.

56. In Evans Packing Co. v. Department of Agriculture and

Consumer Services , 550 So. 2d 112, 116, n. 5 (Fla. 1st DCA

1989), the c ourt defined clear and convincing evidence as

follows:

[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

evidence must be precise and explicit and

the witnesses must be lack ing 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 the firm belief of

conviction, without hesitancy, as to the

truth of the allegations sought to be

established. Slomowitz v. W alker , 429 So.

2d 797, 800 (Fla. 4th DCA 1983).

57. Judge Sharp, in her dissenting opinion in Walker v.

Florida Department of Business and Professional Regulation , 705

So. 2d 652, 655 (Fla. 5th DCA 1998)(Sharp, J., dissenting),

reviewed recent pronouncem ents on clear and convincing evidence:

Clear and convincing evidence requires

more proof than preponderance of evidence,

but less than beyond a reasonable doubt. In

re Inquiry Concerning a Judge re Graziano ,

696 So. 2d 744 (Fla. 1997). It is an

inte rmediate level of proof that entails

both qualitative and quantative [sic]

elements. In re Adoption of Baby E.A.W. ,

658 So. 2d 961, 967 (Fla. 1995), cert.

denied , 516 U.S. 1051, 116 S. Ct. 719, 133

L.Ed.2d 672 (1996). The sum total of

evidence must be su fficient to convince the

trier of fact without any hesitancy. Id.

It must produce in the mind of the trier of

fact a firm belief or conviction as to the

truth of the allegations sought to be

established. Inquiry Concerning Davey , 645

So. 2d 398, 404 (Fl a. 1994).

58. The Department has the authority granted by Chapter

489, Part III, Florida Statutes (2004), to register and

discipline septic tank contractors. Mr. Beebe is a registered

septic tank contractor pursuant to Section 489.552, Florida

Statutes (2004) . Section 489.556, Florida Statutes (2004) ,

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.

59. The Department has adopted Florida Administrative Code

Rule 64E - 6.022, setting forth standards of practice and

disciplinary guidelines for registered septic tank contractors.

The R ule provides , as follows , relating to repeat vi olations :

(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 d efinition 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.

60. Because Mr. Beebe was cited in 2001 for installing a

septic system without a permit in violation of Florida

Administrative Code Rule 64E - 6.022 and paid a fine of $500.00

without contest, all of the violations alleged in the instant

proceedings are repeat violations.

61. Subsection 381.0065(5), Florida Statutes (2004) ,

authorizes the Department to issue citations that may contain an

order of correction, an order to pay a fine, or both, for

violations of Sectio n 381.0065 and Chapter 386, Part I, Florida

Statutes (2004) , or rules adopted pursuant thereto.

62. In DOAH Case No. 04 - 4333, the Department issued a

citation of violation against Mr. Beebe alleging that he

violated Florida Administrative Code Rule 64E - 6. 022(1)(n), the

failure to properly treat or dispose of septage, for which the

repeat violation penalty is revocation ; and Florida

Administrative Code Rule 64E - 6.022(1)(q), the creation or

maintenance of a sanitary nuisance, for which the repeat penalty

is a 90 - day suspension or revocation.

63. The Department established by clear and convincing

evidence that Mr. Beebe dumped a mixture of drillers' mud and

untreated septage on the lot at 295 Brandy Lane in Naples and

that in doing so , he committed the violat ions alleged in the

citation. Despite the repeat nature of the violations, the

Department seeks only the maximum penalty for a first violation

of each of the cited rule provisions, a fine of $500.00. Given

the serious nature of the violations, the penalt ies sought by

the Department are more than reasonable.

64. In DOAH Case No. 05 - 0695, the Department issued an

Amended Administrative Complaint alleging that Mr. Beebe

installed a holding tank at a residence without a permit in

violation of Florida Adminis trative Code Rule 64E - 6.0101, that

Mr. Beebe improperly disposed of septage pumped from this

holding tank in violation of Florida Administrative Code Rule

64E - 6.010, and that Mr. Beebe failed to maintain adequate

septage and hauling logs in violation of Fl orida Administrative

Code Rule 64E - 6.010(7)(e).

65. The Department established, by clear and convincing

evidence, that Mr. Beebe placed a 900 - gallon domestic wastewater

holding tank into a pre - dug hole at the Ehlen's residence

without obtaining a Departme nt permit in violation of Florida

Administrative Code Rule 64E - 6.0101(7). The disciplinary

guideline for this repeat violation is revocation pursuant to

Florida Administrative Code Rule 64E - 6.022(1)(b)2 . :

(1) It shall be the responsibility of

persons r egistered under this rule to see

that work for which they have contracted and

which has been performed by them or under

their supervision is carried out in

conformance with the requirements of all

applicable Florida Statutes and Chapter

64E - 6, F.A.C. The following actions by a

person included under this rule shall be

deemed unethical and subject to penalties as

set forth in this section. The penalties

listed shall be used as guidelines in

disciplinary cases, absent aggravating or

mitigating circumstances and subject to

other provisions of this section.

* * *

(b) Permit violations.

1. Contractor initiates work to install,

modify, or repair a system when no permit

has been issued by the department. A permit

is issued after construction is starte d but

prior to completion of the contracted work.

No inspections are missed. First violation,

letter of warning or fine up to $500; repeat

violation, $500 fine and 90 day suspension

or revocation.

2. Contracted work is completed without

a permit hav ing been issued, or no permit

application is received until after

contracted work was completed, resulting in

missed inspection or inspections. First

violation, letter of warning or fine up to

$1000; repeat violation, revocation.

66. However, as noted i n relation to the penalties imposed

pursuant to the citation in DOAH Case No. 04 - 4333, the

Department has the discretion to impose a lesser penalty than

revocation for repeat violations. The disciplinary guidelines

provide , as follows, in Florida Administ rative Code Rule

64E - 6.022:

(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 v iolation, 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 be en

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 l ength 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.

67. The circumstances under which Mr. Beebe placed the

holding tank on Mr. Ehlen's property counsel a lesser penalty

than revocation. The City of Marco Island failed to connect the

Ehlen property to the ci ty's sewage system when promised. Far

from causing damage or costing the customer money, Mr. Beebe's

action made it possible for the Ehlen family to move into the

house , as scheduled. Mr. Ehlen informed Mr. Beebe that the City

of Marco Island had approve d placement of the temporary holding

tank, though Mr. Beebe should have inquired as to whether the

Department had also approved the holding tank. No real danger

to the public was demonstrated. No evidence of complaints

against Mr. Beebe was presented. F inally, revocation of his

permit would likely put Mr. Beebe out of business. Under all

the circumstances, it is concluded that a fine of $1,000.00 for

this violation will serve the purpose of the standards of

practice and disciplinary guidelines without i mposing undue

hardship on the permit holder .

68. The Department demonstrated by clear and convincing

evidence that Mr. Beebe failed to maintain adequate septage and

hauling logs in violation of Florida Administrative Code Rule

64E - 6.010(7)(e). The penalt y for a repeat violation of this

requirement is a $500.00 fine and a 90 - day suspension, or

revocation, pursuant to Florida Administrative Code Rule

64E - 6.022(1)(o). Under all the circumstances, it is concluded

that the Department should impose the lesser of the recommended

penalties, which will impose a severe hardship on Mr. Beebe , but

not put him out of business. Because the violation is related

to septage and hauling logs, the suspension should be limited to

Mr. Beebe's septage disposal operating permi t.

69. The Department failed to prove by clear and convincing

evidence that Mr. Beebe improperly disposed of septage in

violation of Florida Administrative Code Rule 64E - 6.010 , as it

relates to septage pumped from Mr. Ehlen's temporary holding

tank.

RECOM MENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that Petitioner, the Department of Health,

enter a final order imposing a $1000.00 fine for the violations

described above , relating to DOAH Case No. 04 - 4333 , and imposing

a fine of $1,500.00 and a 90 - day suspension of Respondent's

septage disposal operating permit for the violations described

above , relating to DOAH Case No. 05 - 0695.

DONE AND ENT ERED this 7 th day of July , 2005 , in

Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

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 7 th day of July , 2005.

COPIES FURNISHED :

Michael F. Kayusa, Esquire

Post Office Box 6096

Fort Myers, Florida 33911

Susan Mastin Scott, Esquire

Department of Health

2295 Victoria Avenue, Room 206

Fort Myers, Florida 33901

R.S. Power, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

Timothy M. Cerio, General Counsel

Department of Health

4052 Bald Cypress Way, B in A02

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 t he agency that

will issue the final order in this case.