05-004131 James L. Smith vs. Department Of Health Status: Closed Recommended Order on Thursday, March 30, 2006.

Summary: Petitioner, a registered septic system contractor charged with supervision and repair work, and obtaining a permit and associated inspections, did not carry out the charge when repairing the system at issue. Recommend a $2,500 fine per rule provisions.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES L. SMITH , )

)

Petitioner, )

)

vs. )

) Case No. 05 - 41 31

DEPARTMENT OF HEALTH , )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for for mal proceeding and hearing before

P. Michael Ruff, a duly - designated Administrative Law Judge of

the Division of Administrative Hearings. The formal hearing was

conducted in Jacksonville , Florida, on January 25 , 200 6 . The

appearances were as follows:

APP EARANCES

For Petitioner: James L. Smith , pro se

8300 West Beaver Street

Jacksonville, Florida 3 22 20

For Respondent: Catherine R. Berry , Esquire

Department of Health

515 West Sixth Street

Jacksonville , Florida 32206 - 4 311

STATEMENT OF THE ISSUE

The issue to be resolved in this proceeding concern s

whether the Petitioner violated Florida Administrative Code

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

making repairs to an on - site sewage dispo sal system without a

permit, and by missing required inspections of the system, as

outlined in the citation issued by the Respondent Agency dated

August 29, 2005.

PRELIMINARY STATEMENT

This cause arose when the Respondent Department of Health

issued a cit ation to Petitioner on August 29, 2005, seeking to

impose an administrative fine up to $2,500.00 for violation of

the above - cited rules. The citation informed the Petitioner of

his right to a formal proceeding in accordance with Chapter 120,

Florida Statu tes , and the Petitioner requested a formal

proceeding and hearing. The proceeding was forwarded to the

Division of Administrative Hearings and ultimately to the

undersigned Administrative Law Judge .

In essence the dispute concern s whether the Petit ioner, as

the qualifying registered septic tank contractor for All Florida

Septic Tank Service, Inc., performed repairs to an on - site

sewage treatment system (septic tank and drain field) without a

permit, and without obtaining the required inspections.

T he cause came on for hearing as noticed. At the hearing

the Department presented the testimony of three witness es and

offered one composite exhibit , which was admitted into evidence

without objection. The Petitioner testified on his own behalf

and offere d one exhibit , which was admitted into evidence

without objection. Upon conclusion of the hearing the parties

were accorded the opportunity to file proposed recommended

orders. The Respondent Agency filed a Proposed Recommended

Order , which has been cons idered in the rendition of this

Recommended Order.

FINDINGS OF FACT

1. The State of Florida , Department of Health and Duval

County Health Department (Department) is an Agency of the State

of Florida , charged with enforcing the statutory and regulatory

pr ovisions regarding septic tank and drain field installations

and repairs , in Florida , in accordance with Section 381.0065,

Florida Statutes , and Florida Administrative Code Rule Chapter

64E - 6.

2. The Petitioner is the qualifying registered septic tank

co ntractor for All Florida Septic Tank Service, Inc. (All

Florida). He holds registration number SR00011389. He has 15

years of experience in the field of septic tank system

construction and repair. All repairs of on - site sewage

treatment and disposal sys tems (septic systems) , are required to

be performed under the supervision and control of a registered

septic tank contractor.

3. Mr. David Adeeb is president of United Properties of

North Florida, Inc. He owned property (a residen ce ) at 375

North Cahoon Road, in Duval County Florida. He was informed by

his tenants at that residence that the septic tank and drain

field were malfunctioning and needed to be repaired or replaced ,

sometime in April 2004. He therefore contacted All Florida ,

asking them to i nspect the septic system at that residence and

advise what repairs might be needed. He was advised by some

representative of All Florida that the drain field needed to be

replaced and was quoted a price of $2,000.00. All Florida

requested that payment be made before the work was performed.

Since Mr. Adeeb was out - of - town at the time he asked his tenant

to temporarily pay All Florida for the cost of the repairs

and/or installation , which they agreed to do.

4. All Florida then issued a contract/proposal to United

Properties on April 12, 2004. It was signed by a representative

of All Florida, Michael Carver. Mr. Carver was an employee of

All Florida. The contract/proposal indicated that a 360 square

foot drain field would be installed at 375 Cahoon Road , for a

price of $2,000.00 , to be paid in cas h . The contract/proposal

was on All Florida letterhead and included a warranty.

Mr. A d ee b was told by his tenant that the Petitioner , who is

personally known to that tenant , was on the property while the

work was being performed. No one applied for a permit to make

any repairs to th e septic system and the work was completed

without a permit being obtained.

5 . Some five months later the system began leaking sewage

from the new drain field. It had malfunction ed. Mr. Adeeb

therefore again called All Florida to demand that they repair

any malfunctions pursuant to the warranty. All Florida informed

Mr. Adeeb that a new drain field with a mounded system and pump

was needed. When Mr. Adeeb told a representative of All Florida

that they had just replaced the drain field in April of that

year , he was told that another $2,000.00 would be required to

correct the drain field problem.

6 . Mr. Adeeb had just recently entered into a contract to

sell the property at 375 Cahoon Road so, time being of the

essence in closing the sale of the property, he felt he had no

choice but to ask All Florida to go ahead with the repair work

on the system which All Florida had been asked by him to repair

five months previously in April of 2004. After the new system

was installed Mr. Adeeb found that a permit had never been

obtained for the first drain field work which he had requested

from All Florida and that All Florida had done the work

incorrectly.

7 . Mr. Adeeb objected to payin g another $2,000.00 for the

second repair job , performed in approximately September of 200 4

and after much discussion with All Florida's representatives

agreed to pay $1,000.00 dollars for the second stint of repair

work. He made the payment and he receiv ed a warranty from All

Florida for one year , good through September 22, 2005. The

warranty was signed by Mr. Wayne Joyner, operations man a ger for

All Florida. Mr. Joyner is also the qualifying registered

septic tank contractor for AA Septic Tank Service, Inc.,

apparently a second corporation domiciled at the same facility

and address as All Florida Septic Service, Inc.

8 . In May of 2005 Mr. Adeeb was again contacted by the now

former tenant who had purchased the property from Mr. Adeeb . He

was thus inf ormed that the system had failed again and sewage

was leaking on to the surface of the property from the drain

field. Mr. Adeeb again contacted All Florida on May 23, 2005.

A representative of All Florida informed him that he should fax

a copy of the paid receipt and the warrant y to them and that

they would take care of the problem.

9 . On June 20, 2005, the home owner again contacted

Mr. Adeeb and told him that no one from All Florida had repair ed

the drain field as yet. A faxed copy of the paid recei pt and

warranty was requested once again by All Florida. After

numerous phone calls with representatives of All Florida, Mr.

Adeeb was told that the problem was not due to All Florida's

repair work and that Mr. Adeeb would need to get someone else to

repa ir the system.

10 . The Petitioner, James L. Smith, the registered

qualifying septic tank contractor for All Florida, testified

that Michael Carver had performed the initial repair job in

April of 2004 for Mr. Adeeb without the knowledge of the

Petition er or All Florida. He claims that Michael Carver never

worked for All Florida. He introduced into evidence a letter

purported to be from Michael Carver which was dated

September 30, 2005, but signed on October 5, 2005. That letter

states that Mr. Carver performed the first drain field repair

job without the knowledge of All Florida and that he had created

the receipt form which was apparently given to either the

tenants at the residence in question , or to Mr. Adeeb, on All

Florida letterhead without the knowledge of any officer ,

employee, or representative of All Florida. That letter,

however, was not authenticated because Mr. Carver was not

present at the hearing and could not be examined concerning it ,

or the details of Mr. Carver's involvement with th e initial

repair project. Moreover, the Petitioner was unable to explain

how Mr. Carver would have known about the job at all if he had

never worked for All Florida. This is because Mr. Adeeb

established that in obtaining all of the repair work during

20 04 - 2005 he had only contacted representatives of All Florida.

He had never had contact with Mr. Carver.

11. The Petitioner denied ever telling counsel for the

Department in a telephone conversation that Michael Carver had

worked for him during the week (i.e. All Florida) but that he

let Mr. Carver do "side jobs" on his own on weekends. He

claimed that Mr. Carver did the job in question in April of 2004

because the tenants knew him personally and arranged for him to

do the work.

12 . The testimony of Mr. Adeeb and the Department's

evidence in the form of its composite exhibit, is accepted as

more credible than the self - serving testimony of the Petitioner ,

and it is found that All Florida and the Petitioner were

responsible for the repair jobs at is sue in this case because

Mr. Adeeb contracted with All Florida for the work in question.

Even if the initial job was performed by Mr. Carver, it is

determined that he did so as employee or agent of All Florida

and the Petitioner. Under the authority cite d herein the

Petitioner was responsible , as the qualifying , registered septic

system contractor for All F l orida , with performance and

supervision of the work in question.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearing s has

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

proceeding. § § 120.569 and 120.57(1), Fla. Stat. (2005).

14 . The Department of Health has authority pursuant to

Section 381.0065, Florida Statutes, to issue permits, inspect

sites, issue citations and impose fines for violation of Rules

which govern repair and installation of on - site sewage treatment

and disposal systems.

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

the Department to :

. . . conduct enforcement activities,

including imposing fines, issuing citations,

suspensions, revocations, injunctions, and

emergency orders for violation of this

Section, P art I of Chapter 386, or P art III

of Chapter 489 or for a violation of any

rule adopted under this Section, Part I of

Chapter 386 , or Part IV of Chapter 489.

16 . Section 381.0065(4), Florida Statutes (2005),

provides in pertinent part, as follows:

(4) Permit; installation; and conditions. -

A person may not construct, repair, modify,

abandon, or operate an on - site sewage

t reatment and disposal system without first

obtaining a permit approved by the

Department. . . .

17 . The violations charged are set forth in the August 29,

2005, citation issued by the Department. The first one is for

violation of Florida Administra tive Code Rule 64E -

6.022(1)(b)(2) , which provides that it is a violation of that

provision for contracted work being completed without a permit

having been applied for or issued which results in missed

inspection or inspections. A fine of $1,000.00 dollar s is

provided for for a first violation of that provision. Florida

Administrative Rule 64E - 6.022(1)(d) makes it a violation for

failing to request required inspections. It provides that a

fine of $500.00 dollars is required for a first violation of

that provision. The Petitioner failed to request any of the

required inspections. The third violation charged is for

Florida Administrative Code Rule 64E - 6.022(1)(p), which

violation concerns the installation, modification, or repair of

an on - site sewage trea tment and disposal system in violation of

the standards in Section 381.0065 or 381.00655, Florida

Statutes , or in Florida Administrative Code Chapter of 64E - 6. A

$500.00 dollar fine is provided for the first violation of that

provision for each specific s tandard violated.

18 . The repair of on - site sewage treatment and disposal

systems must be performed under the supervision and control of a

registered septic tank contractor. Fla. Admin. Code R. 64E -

6.022(1)(a). The Petitioner is the qualifying reg istered septic

tank contractor for All Florida. Through Mr. Adeeb's testimony

it was established that the Petitioner, personally known to the

tenant of the residence in question , was on the property while

the work was being performed in April of 2004. No t only was the

work performed improperly , but the Petitioner failed to obtain

the required permit and failed to obtain the required

inspections .

19 . Persuasive , clear and convincing evidence has

established , as shown by the above findings of fact, that the

repair work at issue was performed improperly and below relevant

standards ; that no permit was applied for or obtained for the

work ; and that the required inspections were never requested or

obtained. The Petitioner is thus responsible for the v iolations

which have been proven.

RECOMMENDATION

H aving considered the foregoing Findings of Fact,

Conclusions of Law, the evidence of record, the candor and

demeanor of the witnesses, and the pleadings and arguments of

the parties, it is, therefore,

RECOM MENDED that a final order be entered by the Respondent

Department finding that the violations charged have been

established and that a fine of $2,500.00 dollars be imposed for

the violations.

DONE AND ENTERED this 30th day of March , 200 6 , in

Tallahassee, Leon County, Florida.

S

___________________________________

P. MICHAEL RUFF

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 Clerk of the

Division of Administrative Hearings

this 30th day of March , 200 6 .

C OPIES FURNISHED :

James L. Smith

8300 West Beaver Street

Jacksonv ille, Florida 32220

Catherine R. Berry, Esquire

Department of Health

515 West Sixth Street

Jacksonville, Florida 32206 - 4311

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, 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 Ord er. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.