05-004354 James L. Smith vs. Department Of Health Status: Closed Recommended Order on Wednesday, April 26, 2006.

Summary: Respondent did not prove that Petitioner caused a sanitary nuisance.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES L. SMITH, )

)

Petitioner, )

)

vs. ) Case No. 05 - 4354

)

DEPARTMENT OF HEALTH, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for fo rmal hearing before Barbara J.

Staros, Administrative Law Judge with the Division of

Administrative Hearings, on March 14, 2006, by video -

teleconferencing with the parties appearing in Jacksonville and

the Administrative Law Judge appearing in Tallahassee, Florida.

APPEARANCES

For Petitioner: James L. Smith, pro se

All Florida Septic Tank Service, Inc.

8300 West Beaver Street

Jacksonville, Florida 32206 - 4311

For Respondent: Catherine R. Berry, Esquire

Department of Health

515 West Sixth Street

Jacksonville, Florida 32206 - 4311

STATEMENT OF THE ISSUE

The issue is whether Petitioner created a sanitary nuisance

in violation of Florida Administrative Code Rule 64E -

6.022(1)( d)(l) and ( q) and, if so, the proper penalty.

PRELIMINARY STATEMENT

Petitioner James L. Smith, who is employed by All Florida

Septic Tank Services, Inc., was served a "Citation for Violation

Onsite Sewage Program/Sanitary Nuisance" at a job site in

Jacksonville, Florida, on April 15, 2004. Mr. Smit h contested

the citation and requested an administrative hearing. On

November 29, 2005, more than a year and a - half later, the matter

was transmitted by the Department of Health to the Division of

Administrative Hearings.

At hearing, Mr. Smith testified on his own behalf.

Respondent presented the testimony of Scott Turner and Colleen

Bierbach and offered Respondent's Exhibits numbered 1 through 3,

which were admitted into evidence. Respondent's counsel stated

at the hearing that its exhibits had been se nt by overnight

delivery to the Division. However, the exhibits were not

received or filed until April 24, 2006.

No transcript was filed. The parties were given the

opportunity to file proposed recommended orders within 10 days

of the hearing. Neither p arty filed any written post - hearing

submission.

References to statutes are to Florida Statutes (2005)

unless otherwise noted.

FINDINGS OF FACT

1. The Department of Health, Duval County Health

Departm ent (Department), is the agency charged with enfo rcing

the statutory and regulatory provisions pertaining to septic

tank installations and repairs in Florida, pursuant to Section

381.0065, Florida Statutes, and Florida Administrative Code

Chapter 64E - 6.

2. Mr. Smith is a qualified contractor employed b y All

Florida Septic Tank Service, Inc. (All Florida). The citation

issued on April 15, 2004, identifies Mr. Smith's registration

number as SR0011389 and All Florida's registration number as

SA0000956.

3. The citation describes the alleged violations as

follows:

On March 8, 2004 , a repair application was

submitted to the Duval County Health

Department (DCHD) for 8817 & 8821 Bellrose

Avenue, Jacksonville, FL 32244. All Florida

Septic Tank Service, Inc. was indicated as

the agent for the applicant/prop erty owner,

Ben Lewis. On April 8, 2004 , Robert Hoag,

qualifying contractor for Plumbing and

Contracting by Hoag, disconnected the stub

out line running from the house to the

existing septic tank prior to installation

of new septic tanks thus creating a s anitary

nuisance. The existing septic tanks were

abandoned at said property by All Florida

Septic Tank Service, Inc.; DCHD was not

notified of tank abandonment as required for

inspection. Water supply was not turned off

during he time of construction. O n April 9,

2004 , Colleen Bierbach, DCHD inspector,

observed and photographed prima facie

evidence of untreated human waste discharge

onto ground surface at 8817 & 8821 Bellrose

Avenue.

4. Mr. Smith accepted the citation on April 15, 2004. On

the s ame date, Mr. Smith wrote a letter to Scott Turner of the

Department of Health, in response to the citation. His letter

reads as follows:

Mr Scott Turner,

On April 8, 2004 All Florida Septic Tank

Service Inc. started a job at 8817 and 8821

Bellrose Avenu e in which new tanks and

drainfields were required. In order for the

new drainfield to be installed the existing

tank had to be abandon [sic] prior to any

work being done. The two existing

referenced tanks were properly pumped out an

abandoned on April 8 , 2004 .

The new septic tanks were scheduled to be

installed that same day. Due to mechanical

problems with the crane truck, the tanks

were unable to be set that day, causing the

contracted plumber, Robert Hoag, to be

unable to tie in the new sewer lin e. On the

following day April 9, 2004 tanks (1500

gallon septic tank) and (750 gallon dosing

tank) were installed with a different truck.

At that time the contracted plumber was

onsite to immediately tie in the sewer line.

In the mean time the Duval Cou nty Health

Department came to do the required

inspection of the new system, at which time

Colleen Bierback of the Health Department

observed a small amount of sewage on the

ground and photographed the site. Mr. Hoag

immediately tied the sewer in at the sa me

time, fixing the sanitary nuisance within

one hour after inspection.

5. According to Mr. Smith, sanitary problems existed at

this work site for months. That is, raw sewage had been coming

out of the old septic system for a long time. In Mr. S mith's

words, "I was there to fix the sanitary nuisance, not create

it."

6. The owner of the property in question engaged Mr. Hoag,

of Plumbing and Contracting by Hoag, to accomplish the plumbing

portion of the operation.

7. While Mr. Smith's letter s tated that the new septic

tanks were actually installed on April 9, 2004, Mr. Smith

testified at hearing that he performed excavation services,

installed a new drainfield and set the new septic tanks on

April 8, 2004. The sand and new drainfield had to be put in

first and the new tanks installed last. The plumber, Mr. Hoag,

would be responsible to make the necessary pipe connection on

the new tanks. However, Mr. Hoag did not make the necessary

pipe connection and the occupants of the residences used the

facilities between April 8, 2004, and April 9, 2004.

8. Mr. Smith did not call anyone to inspect the old septic

tank upon abandonment. According to Mr. Smith, it is common

practice in the Jacksonville area to not call for an

"abandonment" inspection when the contractor has a permit to

install a new tank.

9. The Department's inspector, Colleen Bierbach,

acknowledged that All Florida called for an installation

inspection of newly installed tanks on April 8, 2004.

10. On the morning of April 9, 2004, a fter the new tanks

h ad been installed, Ms. Bierbach went to 8817 and 8821 Bellrose

Avenue. She observed raw sewage on the ground flowing toward

the septic tanks. She took photographs of what she observed ,

but the copies of the photographs received in evi dence are too

blurry to show the extent of what she saw.

11. Mr. Smith arrived at the work site just after

Ms. Bierbach arrived on April 9, 2004.

12. The description of the violation in the citation

states that Mr. Hoag, the plumber, "disconnected the stub out

line running from the house to the existing septic tank prior to

the installation of the new septic tanks thus creating a

sanitary nuisance." The evidence is insufficient to prove that

Mr. Smith's actions, as opposed to the actions of Mr. Hoag,

c aused the unsanitary conditions.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. § 120.57(1), Fla. Stat.

14. The Department has the burden of proving by cl ear and

convincing evidence that Mr. Smith violated the provisions of

Section 386.041(1)(a), Florida Statutes, and Florida

Administrative Code Rule 64E - 6.022(1) (d) (l) and (q) because the

Department proposes the assessment of a fine in the amount of

$1,250. See Department of Banking and Finance, Division of

Securities and Investor Protection v. Osborne Stern and Co. ,

670 So. 2d 932 (Fla. 1996). The Department has not met its

burden.

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

of Practice a nd Disciplinary Guidelines, provides in pertinent

part, as follows:

Rule 64E - 6.022 Standards of Practice and

Disciplinary Guidelines.

(1) It shall be the responsibility of

persons registered under this rule to see

that work for which they have contract ed 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.

* * *

(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 of re voca tion.

* * *

(l) Gross negligence, inc ompetence, 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 revocation.

2. Causes moneta ry 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.

* * *

(q) Creation or maintenance of a sanitary

nui sance as defined by Section 386.041, F.S.

violation, letter of warning or fine up to

$500; repeat violation, 90 day suspension or

revocation.

16 . Section 386.041(1)(a), Florida Statutes, provides as

follows:

386.041. Nuisances injurious to health.

(1) The following conditions existing,

permitted, maintained, kept, or caused by

any individual, municipal organization, or

corporation, governmental or private, shall

constitute prima facie evidence of

maintaining a nuisance injurious to health:

(a) Untr eated or improperly treated human

waste, garbage, offal, dead animals, or

dangerous waste materials from manufacturing

processes harmful to human or animal life

and air pollutants, gases, and noisome odors

which are harmful to human or animal life.

17 . S ection 386.03, Florida Statutes, provides as follows:

386.03. Notice to remove nuisances;

authority of Department of Health and local

health authorities.

(1) The Department of Health, upon

determining the existence of anything or

things herein declare d to be nuisances by

law, shall notify the person or persons

committing, creating, keeping, or

maintaining the same, to remove or cause to

be removed, the same within 24 hours, or

such other reasonable time as may be

determined by the department, after suc h

notice be duly given.

(2) If the sanitary nuisance condition is

not removed by such person or persons within

the time prescribed in said notice, the

department, its agents or deputies or local

health authorities, may within the county

where the nuisanc e exists, remove, cause to

remove, or prevent the continuing sanitary

nuisance condition in the following manner:

(a) Undertake required correctional

procedures, including the removal of same if

necessary; the cost or expense of such

removal or correctio nal procedures shall be

paid by the person or persons committing,

creating, keeping, or maintaining such

nuisances; and if the said cost and expense

thus accruing shall not be paid within 10

days after such removal, the same shall be

collected from the per son or persons

committing, creating, keeping, or

maintaining such nuisances, by suit at law;

but this paragraph shall not authorize the

department to alter, change, demolish, or

remove any machinery, equipment, or facility

designed or used for the process ing or

disposing of liquid or smoke effluent of a

manufacturing plant.

(b) Institute criminal proceedings in the

county court in the jurisdiction of which

the condition exists against all persons

failing to comply with notices to correct

sanitary nuisanc e conditions as provided in

this chapter.

(c) Institute legal proceedings authorized

by the department as set forth in

s. 381.0012.

(d) Institute administrative proceedings

authorized by the department as set forth in

s. 381.0061. (emphasis supplied)

18 . Section 381.0061, Florida Statutes, referenced above,

authorizes the imposition of administrative fines for a

violation of any provision of Chapter 386, Florida Statutes.

19 . The Department did not prove by clear and convincing

evidence t hat Mr. Smith's actions caused the creation and

maintenance of a sanitary nuisance . See Robert J. Hoag v.

Department of Health , Case. No. 05 - 4355 (the Department of

Health issued a sanitary nuisance citation to Mr. Hoag for the

same incident, Recommended Order issued February 15, 2006 ) . It

follows that the Department did not prove that Mr. Smith

exhibited gross negligence, incompetence, or misconduct which

causes no monetary harm to the customer.

20 . Moreover, Section 386.03 requires that a perso n be

provided notice and must be provided 24 hours, or "such other

reasonable time as may be determined by the department" to abate

the nuisance. This is a condition which must be satisfied if

one of the actions listed in Section 386.03(2)(a) - (d), includi ng

the imposition of administrative fines, is to be instituted.

The Department did not prove that 24 hours passed prior to the

issuance of the citation or the abatement of the nuisance nor

did the D epartment prove that it gave Respondent some alternate

ti me period.

21 . Finally, the Department of Health did not prove that

Mr. Smith failed to call for a necessary inspection as required

by Florida Administrative Code Rule 64E - 6.002(1)(d). The

evidence showed that he called for an inspection of the new

tan ks. The Department cites to no statute or rule that requires

two inspection requests, i.e., one for an abandonment inspection

and one for the inspection of newly installed tanks, from the

contractor who removes old tanks and installs new tanks at the

same site.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law, it

is

RECOMMENDED that the Department of Health, Duval County

Health Department, dismiss the citation issued to Mr. Smith on

April 15, 2004.

DONE AND ENTERED this 26 th d ay of April, 2006, in

Tallahassee, Leon County, Florida.

S

___________________________________

BARBARA J. STAROS

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 2 6 th day of April, 2006.

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 W. 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

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

Dr. M. Rony Francois , Secretary

Department of Health

4052 Bald Cypress Way, Bin A00

Tallahassee, Florida 32399 - 1701

NOTICE OF R IGHT 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 the Final Order in this cas e.