05-003245 Department Of Health vs. James L. Smith Status: Closed Recommended Order on Tuesday, December 6, 2005.

Summary: Clear and convincing evidence indicates that Respondent repaired a sewage treatment and disposal system without a permit or a required inspection.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

)

Petitioner, )

)

vs. ) Case No. 05 - 3245

)

JAMES L. SMITH, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was conducted in this case on November 22,

2005, by video teleconference between Tallahassee, Florida, and

Jacksonville, Florida, before Suzanne F. Hood, Administrative

Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Ca therine Berry, Esquire

Department of Health

515 West Sixth Street, MC33

Jacksonville, Florida 32206

For Respondent: James Smith, pro se

All Florida Septic Tank Serv ice, Inc.

8300 West Beaver Street

Jacksonville, Florida 32220

STATEMENT OF THE ISSUES

The issues are whether Respondent violated Florida

Administrative Code Rules 64E - 6.022(1)(b)2., 64E - 6.022(1)(d),

and 64E - 6. 022(1)(p) by repairing an onsite sewage disposal

system without a permit, resulting in missed inspections, and if

so, what penalty should be imposed.

PRELIMINARY STATEMENT

On March 10, 2004, Petitioner Department of Health

(Petitioner) issued a Cita tion for Violation against Respondent

James L. Smith (Respondent). The citation alleged that

Respondent had violated the standards for an onsite sewage

disposal system by completing contract work without a permit,

resulting in missed inspections. On Marc h 30, 2004, Respondent

requested an administrative hearing to dispute material facts

alleged in the citation.

On June 22, 2004, Petitioner referred the case to the

Division of Administrative Hearings (DOAH). The case was

assigned to Administrative Law Judge Charles A. Stampelos as

DOAH Case No. 04 - 2226.

DOAH issued an Initial Order on June 23, 2004. Because the

parties did not file a written response to the Initial Order,

Judge Stampelos issued an Order dated July 16, 2004. Said o rder

direc ted the parties to respond to the Initial Order on or

before July 23, 2004.

Respondent and Petitioner filed unilateral responses to

Judge Stampelos's Order on July 22, 2004, and July 23, 2004,

respectively. Subsequently, DOAH transferred the case to the

undersigned.

A Notice of Hearing dated July 30, 2004, scheduled the case

for hearing on October 5, 2004. Thereafter, it became obvious

that DOAH Case No. 04 - 2226 was factually related to DOAH Case

No. 04 - 2020, which was scheduled for hearing on November 16,

2004. Accordingly, an Order dated September 27, 2004,

rescheduled DOAH Case No. 04 - 2226 for hearing on November 16,

2004.

On November 12, 2004, Petitioner filed a Notice of

Settlement and Request for Dismissal. Pursuant to Petitioner 's

request, the undersigned issued an Order Closing File on

November 16, 2004.

On September 8, 2005, Petitioner issued a Re - Notice,

stating that the case had not settled as expected and requesting

DOAH to re - assign the matter to an Administrative Law Judg e.

DOAH assigned the case to the undersigned as DOAH Case

No. 05 - 3245.

On September 14, 2005, the undersigned issued an Order Re -

Opening Case and Requiring Status Report. Said o rder required a

written response from the parties on or before September 28 ,

2005.

On October 10, 2005, the undersigned issued a Notice of

Hearing by Video Teleconference. The notice scheduled the

hearing for November 22, 2005.

During the hearing, Petitioner presented the testimony of

one witness and offered four exhib its, which were accepted as

evidence. Respondent testified on his own behalf, but offered

no exhibits as evidence. On November 22, 2005, Petitioner filed

copies of its exhibits.

The parties did not file a transcript of the proceeding.

Petitioner filed a Proposed Recommended Order on December 2,

2005. As of the date that this Recommended Order was issued,

Respondent had not filed proposed findings of fact and

conclusions of law.

FINDINGS OF FACT

1. Petitioner is the state agency charged with enforci ng

the statutory and regulatory provisions pertaining to the

practice of septic tank installations and repairs in Florida.

See § 381.0065(3), Fl a. Stat . (2003).

2. Repair of onsite sewage treatment and disposal systems

must be performed under the supervi sion and control of a

registered septic tank contractor. Respondent is the qualifying

registered septic tank contractor for All Florida Septic Tank

Service, Inc . , having been issued the registration number

SR00011389. Respondent has 15 years of experienc e in the field

of septic system construction and repair.

3. The qualifying registered septic tank contractor for

Simmons Septic and Tractor Service, Inc. , is Joey Wayne Simmons.

The qualifying registered septic tank contractor for AA Septic

Tank Servi ce, Inc. , is Billy Wayne Joyner. However,

Mr. Simmons, Mr. Joyner, and Respondent work closely together,

sometimes working together on a job and/or acting as the

qualifying registered septic tank contractor on each other's

behalf.

4. On September 2, 2 003, the septic disposal system at the

residence of Jack Young was not functioning properly. Mr. Young

contracted with one of the above - referenced septic tank services

to repair the system.

5. On September 2, 2003, Respondent and another employee

of A ll Florida Septic Tank Service, Inc., along with two

employees from AA Septic Tank Service, Inc. , went to Mr. Young's

residence to repair Mr. Young's onsite sewage disposal system.

No one applied for a permit to make any repairs to Mr. Young's

system.

6 . With Respondent acting as the registered septic tank

contractor, the men used a backhoe to dig up the septic tank,

which was buried three feet in the ground. Respondent then

repaired the pump and ran a new one and one - quarter force main

line to the exi sting header because the old line had been

compromised by roots. Respondent also cleaned roots from inside

the distribution box. Respondent then sealed the tank and

directed the men to cover it up. No one called Petitioner's

local office, the Duval Coun ty Health Department, to request an

inspection of the repair before covering the tank.

7. The work on Mr. Young's septic system involved the

replacement of an effluent transmission line. It required a

permit because it constituted more than a minor rep air to the

pump and distribution box. Respondent should not have performed

the work without a permit from the Duval County Health

Department. Because there was no permit, there was no request

for inspection by the Duval County Health Department.

8. Wh en the work was completed, Mr. Young gave Respondent

a check in the amount of $1,000, payable to Mr. Simmons. The

check reflected payment for repair to the filter bed, otherwise

known as the drainfield. Respondent indicated his receipt of

the check by si gning the AA Septic Tank Service, Inc.'s Daily

Truck Log and Maintenance Report.

9. In February 2004, Mr. Young's septic system began to

fail once again due to root blockage in the lines. Respondent

advised Mr. Young that a permit would be required in order to

make any further repairs. Mr. Young refused to pull a permit or

to pay for any additional costs.

10. On February 17, 2004, Mr. Young contacted Petitioner

to report the failure of his system's drainfield. On

February 18, 2004, Petitioner's ins pector confirmed that

Mr. Young's drainfield had failed and was causing a sanitary

nuisance.

11. During the hearing, Respondent admitted that there are

no disputed issues of material facts in this case. He stated

that he agreed with everything. Howeve r, he did not agree that

the work he performed for Mr. Young required a permit from and

inspections by Petitioner's Duval County Health Department.

CONCLUSIONS OF LAW

12. DOAH has jurisdiction over the parties and the subject

matter of this proceeding p ursuant to Sections 120.569 and

120.57(1), Florida Statutes (2005).

13. Petitioner has the burden of proving by clear and

convincing evidence that Respondent violated Florida

Administrative Code Rules 64E - 6.022(1)(b)2., 64E - 6.022(1)(d),

and 64E - 6.022(1)(p ). See Ferris V. Turlington , 510 So. 2d 292

(Fla. 1987).

14. Section 381.0065(4), Florida Statutes (2003), states

as follows in pertinent part:

(4) PERMITS; INSTALLATION; AND

CONDITIONS. -- A person may not construct,

repair, modify, abandon, or ope rate an

onsite sewage treatment and disposal system

without first obtaining a permit approved by

the department. . . . A person may not

contract to construct, modify, alter,

repair, service, abandon, or maintain any

portion of an onsite sewage treatment an d

disposal system without being registered

under part III of chapter 489.

15. Florida Administrative Code Rule 64E6.002 states as

follows in relevant part:

(18) Drainfield -- a system of open -

jointed or perforated perforated piping,

approved alter native distribution units, or

other treatment facilities designed to

distribute effluent for filtration,

oxidation and absorption by the soil within

the zone of aeration.

* * *

(47) Repair -- replacement of or

modifications or additions to a failing

system which are necessary to allow the

system to function in accordance with its

design or must be made to eliminate a public

health or pollution hazard. Servicing or

replacing with like kind mechanical or

electrical parts of an approved onsite

sewage tr eatment and disposal system; or

making minor structural corrections to a

tank, or distribution box, does not

constitute a repair. The use of any

treatment method that is intended to improve

the functioning of any part of the system,

or to prolong or susta in the length of time

the system functions, shall be considered a

repair. The use of any non - prohibited

additive by the system owner, through the

building plumbing, shall not be considered a

repair. Removal of the contents of any tank

or the installation of an approved outlet

filter device, where the drainfield is not

disturbed, shall not be considered a repair.

Replacement of a broken lid to any tank

shall not be considered a repair.

16. Florida Administrative Code Rule 64E - 6.003 states as

follows i n relevant part:

(1) System Construction Permit -- No

portion of an onsite sewage treatment and

disposal system shall be installed,

repaired, altered, modified, abandoned or

replaced until an "Onsite Dewage Treatment

and Disposal System Construction Pe rmit" has

been issued on Form DH 4016. . . . Servicing

or replacing with like kind mechanical or

electrical parts of an approved onsite

sewage treatment and disposal system;

pumping of septage from system; or making

minor structural corrections to a tank, or

distribution box, does not constitute a

repair.

* * *

(3) Repair Inspections -- A system

repair shall be inspected by the department

or a master septic tank contractor to

determine compliance with construction

permit standards prior to final cover ing of

the system. . . .

17. Florida Administrative Code Rule 64E - 6.015 states as

follows in pertinent part:

All repairs made to a failing onsite

sewage treatment and disposal system shall

be made only with prior knowledge and

written approval for the DOH county health

department having jurisdiction over the

system. . . .

* * *

(6) . . . Any failing system shall, at

a minimum, be repaired in accordance with

the following criteria:

* * *

(e) Where the cause of system failure

is determ ined to be from root clogging of

the distribution box or drainfield line of a

system, and where removal of the root mass

and replacement of damaged drainfield

material will restore the system to its

original design function, upon inspection

and verificatio n of the repair work by the

health unit, permit satisfaction will be

considered to be achieved.

18. Florida Administrative Code Rule 64E - 6.022 states as

follows in pertinent part:

(1) It shall be the responsibility of

person 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

conformance with the requirement 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.

* * *

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 inspect ion or inspections. First

violation, letter of warning or fine up to

$1,000; repeat violation, revocation.

* * *

(d) Failure to call for required

inspection. First violation, letter of

warning or fine up to $500; repeat

violation, letter of war ning or fine up to

$500 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, revocation.

18. In this case, there is clear and convincing evidence

that Respondent violated Florida Administrative Code Rules 64E -

6.022(1)(b)2., 64E - 6.022(1)(d), and 64E - 6.022(1)(p) by repairing

an onsite sewage disposal system without a permit, resulting in

missed inspections. Respondent should have requested a permit

and an inspection of the repair work because he replac ed the

main line to the header, which had been compromised by roots,

and he removed roots from the distribution box.

19. In mitigation, there is no evidence that Respondent

has a prior history of violating the standards of practice. The

only aggravatin g factor is that Respondent had 15 years of

experience and knew or should have known that he needed a permit

to repair Mr. Young's septic system and inspections of the

completed work.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED:

That Petitioner enter a final order, finding that

Respondent violated the standards of practice and imposing an

administrative fine in the amount of $1,000.

DONE AND ENTERED this 6th day of December , 2005 , in

Tallahassee, Leon County, Florida.

S

SUZANNE F. HOOD

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 6th day of December , 2005 .

COPIES FURNISHED :

Catherine R. Berry, Esquire

Department of Health

515 West Sixth Street

Jacksonville, Florida 32206 - 4311

James L. Smith

All Florida Septic Tank Service, Inc.

8300 West Beaver Street

Jacksonville, Florida 32220

R. S. Power, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

Timothy M. Cerio, General Counsel

De partment of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

Dr. John A. Agwunobi, Secretary

Department of Health

4052 Bald Cypress Way, Bin A00

Tallahassee, Florida 32399 - 1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties hav e the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.