05-000945 Department Of Health vs. Keithon M. Patterson Status: Closed Recommended Order on Thursday, July 28, 2005.

Summary: Respondent refused to register as a septic tank contractor on more than three separate occasions. Recommend a $1,000 fine.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

)

Petitioner, )

)

vs. ) Case No. 05 - 0945

)

KEITHON M. PATTERSON, )

)

Respondent. )

)

RECOMMENDED ORDER

On June 1, 2005, a formal administrative hearing in this

case was held in Fort Myers, Florida, before Fred L. Buckine,

Administrative Law Judge, Division of Administrative hearings.

APPEARANCES

For Petitioner: Susan Mastin Scott, Esquire

Department of Health

2295 Victoria Avenue, Room 206

Fort Myers, Florida 33901

For Respondent: Keithon M. Patterson, pro se

12610 Equestrian Circle, Suite 1604

Fort Myers, Florida 33907

STATEMENT OF THE ISSUE

Whether Respondent violated Section 381.0065 and Chapter

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

Administrative Code Chapter 64E - 6 , by engaging in septic tank

contracting without registration as alleged by Petitio ner in the

Administrative Complaint and Order to Crease Operations, dated

January 26, 2005.

PRELIMINARY STATEMENT

On January 26, 2005, Petitioner, Department of Health,

served on Respondent, Keithon M. Patterson, an Order to Cease

Operations with regard to septic tank contracting. Petitioner

alleged that Respondent was practicing septic tank contracting

without being a registered septic tank contractor by performing

the work to abandon two different septic tanks. Petitioner

imposed a $500.00 fine for each alleged violation, a total of

$1,000.00. Respondent timely filed a request for an

administrative hearing. The cause was referred to the Division

of Administrative Hearings on March 10, 2005, for assignment.

On June 1, 2005, the final hearing was held. At the final

hearing, Petitioner presented the testimony of four witnesses.

Accepted into evidence were Petitioner's E xhibits P - 1

through P - 4 and P - 6 through P - 12. 1 Rejected were Petitioner's

Exhibits P - 5 and P - 13. Respondent made an opening statement ,

did not testify, and his two exhibits (R - 1 and R - 2) were

accepted in evidence. No transcript was filed.

On June 22 and 23, 2005, Petitioner and Respondent,

respectively, filed Proposed Recommended Orders that were

considered in rendering this Recommende d Order.

FINDINGS OF FACT

Based upon observation and the demeanor of the witnesses

while testifying, documentary materials received in evidence,

stipulation of the parties, and evidentiary rulings during the

hearings, and the record compiled, the followin g relevant and

material facts are determined:

1. The Department of Health ("Department"), Lee County

Health Department, is the state agency charged with enforcing

the statutory provisions pertaining to the practice of septic

tank contracting in Florida, p ursuant to Chapter 489 Part II and

Section 381.0065, Florida Statutes (2004). Violators of these

laws are subject to penalty assessments of Section 381.0061,

Florida Statutes, and Florida Administrative Code

Rule 64E - 6.002.

2. At all times relevant to t hese proceedings, Respondent,

Keithon M. Patterson, has not been licensed as a plumber

pursuant to Subsection 489.105(3)(m), Florida Statutes (2004).

3. All times relevant to these proceedings, Respondent was

doing business using the business name Full Sp ectrum Home

Improvement, Inc. (Full Spectrum). The business is not nor has

it ever been licensed under Subsection 489.105(3)(m), Florida

Statutes (2004).

4. All times relevant to these proceedings, the City of

Cape Coral, Florida, has an ongoing utility expansion program

extending city water services and city sewer services to

properties within the limits of the city. All homeowners are

required to connect or hookup to city water/sewer systems when

such services become available in their respective locat ion

within the city.

5. Each homeowner connection or hookup process to city -

provided water and sewer, once completed, requires the homeowner

to get the Department's abandonment permit to abandon their

septic system after hookup to the city water/sewer sys tem.

Abandonment requires trenching from the street hookup to the

water/sewer hookup. It requires disconnection from the home and

the septic tank. It requires pumping or emptying of the septic

tank followed by a crushing of the septic tank and filling i n of

soil.

6. Vicki Adams lives in her home located at

3216 Southeast 1st Place, Cape Coral, Florida. When city

services extended to her location, she was required to hookup to

the city water/sewer system and have her septic tank system

abandoned. To a bandon a septic tank means to have a registered

person, empty the septic tank, crush the septic tank, fill the

septic tank space with clean fill, dig up the underground septic

lines from the home to the septic tank, remove piping, and fill

the trench with clean fill. For reasons of sanitation and

safety, a Departmental permit is required for each property

owner before they can abandon their private septic tank system.

7. On or about November 22, 2004, Ms. Adams obtained her

septic system abandonment permi t from the Department.

8. At some undetermined date but subsequent to

November 22, 2004, Ms. Adams, for promise of monetary payment,

hired Mr. Patterson to connect her home to the city sewer and to

abandon her septic tank.

9. When she was leaving for wo rk, Ms. Adams observed

Mr. Patterson doing trench work ( i.e. digging, removing soil,

hauling sod, etc.) and actually laying some pipe. Ms. Adams'

son, Jeff, observed Mr. Patterson with a sledge hammer while in

their front yard. Ms. Adams told Mr. Patter son where to park

the trucks hauling the clean fill needed to fill the hole after

the septic tank was crushed. Mr. Patterson rightly pointed out

that neither Jeff nor Ms. Adams personally saw him crush the

septic tank. However, when Ms. Adams returned ho me from work

that afternoon she saw clean fill in the spot her crushed septic

tank once occupied.

10. Ace Septic Service, Inc. (Ace), a Department

authorized septic tank contracting company, removed all residue

from Ms. Adams' septic tank by pumping the t ank contents into

its truck. It invoiced Ms. Adams for pumping her tank. Carlos

Casanova, manager of Ace at the time, gave undisputed testimony

that his company only pumped out Ms. Adams' septic tank -- they

did not perform abandonment ( i.e. crushing of th e tank and

filling the abandoned hole with fresh soil).

11. Ms. Adams paid Mr. Patterson $790.00 for his work at

her home, which included hooking - up her home to the city sewer

line and abandoning her septic tank system. Mr. Patterson gave

her a receipt i ndicating that she paid him in full, in cash,

received by him, "K.M. Patterson's," on December 8, 2004, by his

signature thereon.

12. The receipt, however, is from "Full Spectrum Home

Improvement," and under the "Description" states: "50' trench

excavati on, 50'4 DWV PVC pipe w/fitting, 6" X4" PVC DWV WVE,

trench backfill and restoration (w/out sod)."

13. It is abundantly clear from evidence of record that

Ms. Adams' septic tank was abandoned, and, for the septic tank

abandonment service rendered, Ms. Ada ms paid Mr. Patterson, who

was not registered with the Department as required. Ace Septic

Service, Inc. (Ace), a Department - authorized septic tank

contracting company , did not abandon Ms. Adams' septic tank.

14. On January 5, 2005, Department inspector,

Ms. Pickerill (no first name in the record), went to the Adams'

residence to inspect and confirm proper septic tank abandonment.

Her inspection included probing the area where the tank had been

located, confirming that the tank had been crushed and that

clean fill was used to fill the hole. Satisfied by her

inspection that Ms. Adams' septic tank had been properly

abandoned, Ms. Pickerill signed the Department's abandonment

permit for the Adams' property.

15. Nicola Verna's home is located at 4117 Southw est 20th

Avenue, Capt Coral, Florida. City sewer and water had been

extended to his home, and he was required to hookup to the city

water/sewer system and to abandon his septic system. Mr. Verna

obtained the Department's septic system abandonment permit on

May 7, 2004. At some undetermined time before September 27,

2004, Mr. Verna hired Mr. Patterson to connect his home to the

city water/sewer system and to abandon his septic system.

16. At his home site, Mr. Verna observed Mr. Patterson

crush his septi c tank with a sledgehammer and bring in a

truckload of clean fill material that Mr. Patterson placed in

the hole where he had crushed the septic tank.

17. The arrangements to have Mr. Verna's septic tank

pumped by Ace were made by Mr. Patterson, for which Mr. Verna

paid Ace $165.00 for pumping only, evidenced by a September 27,

2004, invoice. As with Ms. Adams, Mr. Casanova gave undisputed

testimony that his company only "pumped out the septic tank --

they did not perform septic tank abandonment," the issue in this

cause.

18. For services rendered (hooking - up home to city water,

irrigation services, to city sewer, and abandoning the septic

tank), Mr. Verna paid Mr. Patterson a total of $1,073.00.

Mr. Patterson gave Mr. Verna two receipts. One August 16, 2004,

receipt from Full Spectrum "for '120' trench for 120' water and

irrigation lines, $619.00 paid in full ch# 1083 rec'd by K.M.

Patterson. " The second September 27, 2004 receipt "for '1 40'

trenching sewer line" for a total of $454.00, with notation a t

the bottom, "deposit ch# 1086, Balance of $200.00 Rec'vd by

K. Patterson ch# 1088."

19. Mr. Verna is certain that the two receipts represented

his payments to Mr. Patterson for a part of the work he

performed in abandoning his sewer system, because Mr. Patterson

is the only person who performed those services for him.

20. As with Ms. Adams, Ms. Pickerill went to Mr. Verna's

home on December 27, 2004, to conduct her inspection and to

confirm Mr. Verna's septic system was abandoned properly. Her

probing the area where the tank was located confirmed that it

had been crushed and clean fill had been used to fill the hole.

Satisfied by her inspection that Mr. Verna's septic tank had

been properly abandoned, Ms. Pickerill signed the Department's

abandonment permit for the Verna's property.

21. The Department has taken previous enforcement actions

for engaging in septic tank contracting without registration

against Mr. Patterson. On June 4, 2004, the Department served

an Administrative Complaint on Mr. Patte rson seeking to impose a

$1,500.00 fine for three separate episodes of tank contracting

without being a registered septic tank contractor.

22. Mr. Patterson settled the complaint for septic tank

contracting without being a registered septic tank contracto r

with the Department by his agreement to pay a $750.00 fine. The

Department memorialized the agreement in its Final Order Number

DOH - 04 - 1071 - S - HST of September 15, 2004. Mr. Patterson paid his

fine of $750.00 in January 2005, but not before the filing o f

the instant Cease Order entered by the Department in this

proceeding.

23. Based upon the above allegation of septic tank

contracting without being a registered septic tank contractor

with the Department, in the instant proceeding are "repeat

violations" for penalty purposes as provided in disciplinary

guidelines of Florida Administrative Code Rule 64E - 6.002.

24. The Department demonstrated by clear and convincing

evidence that Mr. Patterson, did on two separate occasions

violate Section 381.0065, and Ch apter 489, Part III, Florida

Statutes (2004), and Florida Administrative Code Chapter 64E - 6 ,

by engaging in septic tank contracting abandonment without

registration as alleged by the Department in the Administrative

Complaint and Order to Crease Operations , dated January 26,

2005. Mr. Patterson 's protestations to the contrary are without

merit and unworthy of belief.

CONCLUSIONS OF LAW

25. The Division of Administrative Hearings has

jurisdiction over the parties hereto and the subject matter

hereof. §§ 1 20.569 and 120.57(1), Fla. Stat. (2004).

26. Proceedings involving the levying of administrative

fines are penal in nature. Petitioner, as the party seeking

affirmative relief, has the burden of proof in this proceeding.

Petitioner must prove the allegat ions against Respondent in the

Administrative Complaint by clear and convincing evidence.

§ 120.57(1)(j), Fla. Stat. (2004); Department of Banking and

Finance v. Osborne Stern and Company , 670 So. 2d 932 (Fla.

1996).

27. The Department is the state agen cy responsible for

regulation of septic tank systems and registration and

discipline of registered septic tank contractors.

28. Subsections 498.551(2), (3), and (4), Florida Statutes

(2004), define those who must register as follows:

(2) "Master septic tank contractor" means

a septic tank contractor whose services are

unlimited in the septic tank trade who has

had at least 3 years' experience as a

Florida - registered septic tank contractor or

a plumbing contractor certified under part I

of this chapter w ho has provided septic tank

contracting services for at least 3 years and

who has the experience, knowledge, and skills

to install, maintain, repair, close repairs

of, and alter all types of onsite sewage

treatment and disposal systems, to design

onsite se wage treatment and disposal systems,

where not prohibited by law, to perform and

submit soil evaluations, when determined to

meet site - evaluation expertise established by

rule, and to use materials and items used in

the installation and maintenance of all types

of onsite sewage treatment and disposal

systems.

(3) "Onsite sewage treatment and disposal

system" means a system that contains a

standard subsurface, filled, or mound drain

field system; an aerobic treatment unit; a

gray water system tank; a lau ndry wastewater

system tank; a septic tank; a grease

interceptor; a dosing tank; a solids or

effluent pump; a waterless, incinerating, or

organic waste - composting toilet; or a

sanitary pit privy that is installed or

proposed to be installed beyond the buil ding

sewer on land of the owner or on other land

to which the owner has the legal right to

install a system. This term does not include

package sewage treatment facilities and other

treatment works regulated under chapter 403.

(4) "Septic tank contrac tor" means a

contractor who has the experience, knowledge,

and skill to install, maintain, repair,

alter, perform site evaluations for repairs,

when determined to meet site - evaluation

expertise established by rule, and use

material and items used in the in stallation

and maintenance of all kinds of onsite sewage

treatment and disposal systems.

29. Registration is required for persons engaged in or

performing work on septic tanks. Section 489.552, Florida

Statutes (2004), requires registration of persons w ho hold

themselves out to and/or does perform acts on septic tank to

include -- "install, maintain, repair, alter, perform site

evaluations for repairs -- of all kinds of onsite sewage treatment

and disposal systems," to be registered as required by Section

49 8.551, Florida Statues.

30. Subsection 489.552, Florida Statutes (2004), states:

A person shall not hold himself or herself

out as a septic tank contractor or a master

septic tank contractor in this state unless

he or she is registered by the department in

accordance with the provisions of this part.

However, nothing in this part prohibits any

person licensed pursuant to s. 489.105 (3)(m)

in this state from engaging in the profession

for which he or she is licensed.

31. Subsections 489.105(3)(m) and (6), Florida Statutes

(2004), states:

(m) "Plumbing contractor" means a

c ontractor whose contracting business

consists of the execution of contracts

requiring the experience, financial means,

knowledge, and skill to install, maintain,

repair, alter, extend, or, when not

prohibited by law, design plumbing. A

plumbing contractor may install, maintain,

repair, alter, extend, or, when not

prohibited by law, design the following

without obtaining any additional local

regulatory license, certificate, or

registration: sanitary drainage or storm

drainage facilities; venting systems; p ublic

or private water supply systems; septic

tanks; drainage and supply wells; swimming

pool piping; irrigation systems; or solar

heating water systems and all appurtenances,

apparatus, or equipment used in connection

therewith, including boilers and pres sure

process piping and including the installation

of water, natural gas (excluding liquid

petroleum gases), and storm and sanitary

sewer lines; and water and sewer plants and

substations. The scope of work of the

plumbing contractor also includes the des ign,

when not prohibited by law, and installation,

maintenance, repair, alteration, or extension

of air - piping, vacuum line piping, oxygen

line piping, nitrous oxide piping, and all

related medical gas systems; fire line

standpipes and fire sprinklers to t he extent

authorized by law; ink and chemical lines;

fuel oil and gasoline piping and tank and

pump installation, except bulk storage

plants; and pneumatic control piping systems,

all in such a manner as to comply with all

plans, specifications, codes, law s, and

regulations applicable. The scope of work of

the plumbing contractor shall apply to

private property and public property, shall

include any excavation work incidental

thereto, and shall include the work of the

specialty plumbing contractor. Such

c ontractor shall subcontract, with a

qualified contractor in the field concerned,

all other work incidental to the work but

which is specified herein as being the work

of a trade other than that of a plumbing

contractor. Nothing in this definition shall

be construed to limit the scope of work of

any specialty contractor certified pursuant

to s. 489.113(6). Nothing in this definition

shall be construed to require certification

or registration under this part of any

authorized employee of a public natural ga s

utility or of a private natural gas utility

regulated by the Public Service Commission

when disconnecting and reconnecting water

lines in the servicing or replacement of an

existing water heater.

* * *

(6) "Contracting" means, except as

exemp ted in this part, engaging in business

as a contractor and includes, but is not

limited to, performance of any of the acts as

set forth in subsection (3) which define

types of contractors. The attempted sale of

contracting services and the negotiation or

bid for a contract on these services also

constitutes contracting. If the services

offered require licensure or agent

qualification, the offering, negotiation for

a bid, or attempted sale of these services

requires the corresponding licensure.

However, t he term "contracting" shall not

extend to an individual, partnership,

corporation, trust, or other legal entity

that offers to sell or sells completed

residences on property on which the

individual or business entity has any legal

or equitable interest, if the services of a

qualified contractor certified or registered

pursuant to the requirements of this chapter

have been or will be retained for the purpose

of constructing such residences.

32. There is nothing in the above statutes that prevents

any perso n in this state from engaging in the profession for

which he or she is licensed pursuant to Subsection

489.105(3)(m), Florida Statutes (2004).

33. Subsection 381.0065(4), Florida Statutes (2004),

specifically forbade septic tank involvement by persons not

"registered" under Part III of Chapter 489, Florida Statutes,

and provides:

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, but shall not make

the issuance of such permits contingent upon

prior approval by the Department of

Environmental Protection. A construction

permit is valid fo r 18 months from the

issuance date and may be extended by the

department for one 90 - day period under rules

adopted by the department. A repair permit

is valid for 90 days from the date of

issuance. An operating permit must be

obtained prior to the use of any aerobic

treatment unit or if the establishment

generates commercial waste.

34. Florida Administrative Code Rule 64E - 6.019 mandates

registration by persons "if he or she contracts or advertises to

provide services to the public or holds himself or he rself out

as being capable of performing services related to any of the

following activities in the onsite sewage treatment and disposal

industry regulated by the Department: . . . (f) Abandonment of

an onsite sewage treatment and disposal system."

35. F lorida Administrative Code Rule 64E - 6.011(1) requires

that whenever the use of an onsite sewage treatment and disposal

system is discontinued, it shall be abandoned within 90 days.

36. Florida Administrative Code Rule 64E - 6.011(1),(2), and

(3) state:

(1 ) Whenever the use of an onsite sewage

treatment and disposal system is discontinued

following connection to a sanitary sewer,

following condemnation or demolition or

removal or destruction, of a building or

property, or discontinuing the use of a

septic tank and replacement with another

septic tank, the system shall be abandoned

within 90 days and any further use of the

system for any purpose shall be prohibited.

However, if the Department of Environmental

Protection or its designee approves the use

of t he retention tank where the tank is to

become an integral part of a sanitary sewer

system or storm water management system, the

septic tank need not be abandoned.

(2) The following actions shall be taken,

in the order listed, to abandon an onsite

sewag e 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.

(e) An inspec tion of the system

abandonment shall be conducted by the

department or by the local utility or

plumbing authority performing the system

abandonment.

(3) The permitting provisions of paragraph

64E - 6.011(2)(a), F.A.C., are not required if

a local utility or local plumbing authority

performs a system abandonment program which

requires the completion of those steps listed

in paragraphs 64E - 6.011(2)(b), (c), (d), and

(e), F.A.C. If the system abandonment is

performed by a local utility or local

plumbing aut hority, the local utility or

local plumbing authority performing the

abandonment program shall maintain a log of

all inspections performed and shall forward

the log to the County Health Department on a

monthly basis.

37. Subsection 381.0061(1), Florida S tatutes (2004),

authorizes the Department to impose a fine not to exceed $500.00

for each violation of Section 381.0065, Florida Statutes, and

Part III of Chapter 489, Florid a Statutes.

38. Florida Administrative Code Rule 64E - 6.022, Standards

of Practice and Disciplinary Guidelines, provides:

(1) It shall be the responsibility of

persons registered 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

conformanc e 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.

(a) Providing contracted services without

obtaining registration from the department,

failure to obtain a certifi cate of

authorization for a firm which provides

contracted services, acting under a name not

registered or authorized by the department.

First violation, letter of warning or fine up

to $500; repeat violation, $500 fine, or

revocation.

(b) Permit vio lations.

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 started 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 having 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.

(c) Contracting with a delinquent

registration. First violation, letter of

warning or fine up to $500; repeat violation,

$500 fine or revocation.

(d) Failure to call for required

inspections. First violation, letter of

warning or fine up to $500; repeat violation,

letter of warning or fine up to $500 and 90

day suspension or revocation.

(e) F alse payment statements which are the

result of assessing charges to a customer for

work not performed. First violation, letter

of warning or fine up to $500; repeat

violation, $500 fine and one year suspension

or revocation.

(f) Failure to reasonably honor a written

warranty. First violation, letter of warning

or fine up to $500; repeat violations,

$500 fine and one year suspension or

revocation.

(g) Abandoning for 30 consecutive days,

without good cause, a project in which the

contractor is eng aged or under contractual

obligation to perform. First violation,

letter of warning or fine up to $500; repeat

violation, revocation.

(h) Aiding or abetting evasion of

Chapter 489, F.S. First violation, letter of

warning or fine up to $500; repeat vio lation,

$500 fine and one year suspension or

revocation.

(i) Obtaining registration through fraud

or misrepresentation. Revocation and $500

fine.

(j) Convicted or found guilty of a crime

relating to contracting. Use penalty for

violation most cl osely resembling the act

underlying the conviction; repeat violation,

revocation.

(k) Practicing fraud or deceit, making

misleading or untrue representations. First

violation, letter of warning or fine up to

$500; repeat violation, revocation.

(l) Gross negligence, incompetence, or

misconduct which:

1. Causes no monetary or other harm to a

customer, or physical harm to any person.

First violation, letter of warning or fine up

to $500; repeat violation, $500 fine and 90

day suspension or revoca tion.

2. Causes monetary or other harm to a

customer, or physical harm to any person.

First violation, letter of warning or fine up

to $500 and 90 day suspension; repeat

violation, $500 fine and revocation.

(m) Operating a seepage disposal servic e

without a valid department operating permit.

First violation, letter of warning or fine up

to $500; repeat violation, revocation.

(n) Failure to properly treat or properly

dispose of seepage, holding tank waste,

portable restroom waste, or food serv ice

sludge. First violation, letter of warning

or fine up to $500 per violation of Rule 64E -

6.010, F.A.C.; repeat violation, revocation.

(o) Failure to maintain completed records

of seepage treatment and disposal activities.

First violation, letter o f warning or fine up

to $500; repeat violation, $500 fine and 90

day suspension or revocation.

(p) Installation, modification, or repair

of an onsite sewage treatment and disposal

system in violation of the standards of

Section 381.0065 or 381.00655, F .S., or

Chapter 64E - 6, F.A.C. First violation,

letter of warning or fine up to $500 per

specific standard violated; repeat violation,

90 - day suspension or revocation.

(q) Creation or maintenance of a sanitary

nuisance as defined by Section 386.041, F. S.

First violation, letter of warning or fine up

to $500; repeat violation, 90 - day suspension

or revocation.

(r) Falsifying an inspection report or

covering a system in violation of the

standards of Rule 64E - 6.003, F.A.C. First

violation, letter of w arning or fine to $500;

repeat violation, 90 day suspension of master

septic tank contractor privileges or

revocation of registration.

(s) Performing service on an onsite sewage

disposal system that is clearly not necessary

to improve the function or d esign of the

system without notifying the property owner

that such work is optional. First violation,

letter of warning or fine up to $500; repeat

violation, $500 fine and one year suspension

or revocation.

(t) The absence of any violation from this

s ection shall be viewed as an oversight, and

shall not be construed as an indication that

no penalty is to be assessed.

(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 conditions 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 o f the

offense.

(f) The number of complaints filed against

the contractor.

(g) The length of time the contractor has

practiced and registration category.

(i) The effect of the penalty upon the

contractor’s livelihood.

(j) Any efforts at reha bilitation.

(k) Any other mitigating or aggravating

circumstances.

(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 agains t him or received a letter

of warning in a prior case. This definition

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 give n 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 vio lation, the penalty set out above

will generally be increased over what is

shown for repeat violations.

(4) Where several of the above violations

shall occur in one or several cases being

considered together, the penalties shall

normally be cumulative and consecutive.

(5) The provisions of this section shall

not be construed so as to prohibit civil

action or criminal prosecution as provided in

Part III of Chapter 489, F.S., and Section

381.0065, F.S., or for a violation of any

provision of Part I of Chapter 386, F.S. No

provision of this section shall be construed

as to limit the ability of the department to

enter into binding stipulation with the

accused party per subsection 120.57(4), F.S.

39. There are no mitigating circumstances of the Standar d

of Practice and Disciplinary Guidelines of Florida

Administrative Code Rule 64E - 6.002.

40. The aggravating circumstances in this proceeding are:

(a) four repetitions of the same offense;

(b) two Administrative Complaints filed against

Respondent;

(c ) the penalty for the two initial violations were less

than the maximum penalty per violation by rule;

(d) the repeated violation are the very same type of

violations as the first violations.

(e) Respondent was paying the first penalty for violations

wh en he committed the same violations a second time,

(f) no efforts at rehabilitation, and

(g) Respondent knew registration was required before

engaging septic tank homeowners in contractual relationships for

hookup with the city water and sewer system.

Mr . Patterson's argument that his company and his "actual work"

at each home site was technically "not abandoning septic tanks"

but rather land, yard, and grass care in preparation for and/or

after abandonment by someone registered is contrary to

undisputed evidence.

41. Pursuant to the rule, the aggravating circumstances

surrounding these repeated violations should increase the

penalty over what is shown for repeat violations.

42. Relief sought by Respondent in his request for an

Administrative Hearing is denied.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the Department of Health enter a final

order affirming its January 26, 2005, Order to Crease Operations

and imposing a $1,000.00 fine against Re spondent, Keithon M.

Patterson.

DONE AND ENTERED this 28th day of July, 2005, in

Tallahassee, Leon County, Florida.

S

FRED L. BUCKINE

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 28th day of July, 2005.

ENDNOTE

1/ Petitioner's Ex hibit 1 was the deposition testimony of

Nicholas Verna taken on May 9, 2005.

COPIES FURNISHED :

Susan Mastin Scott, Esquire

Department of Health

2295 Victoria Avenue, Room 206

Fort Myers, Florida 33901

Keithon M. Patterson

12610 Equestrian Circle, Suit e 1604

Fort Myers, Florida 33907

Timothy M. Cerio, 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

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 th e Final Order in this case.