05-004355 Robert J. Hoag vs. Department Of Health Status: Closed Recommended Order on Wednesday, February 15, 2006.

Summary: Respondent was required to prove that it had provided Petitioner with 24 hours, or some other designated time, to abate a nuisance he created; but it did not do so, and therefore could not lawfully sanction Petitioner.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT J. HOAG, )

)

Petitioner, )

)

vs. ) Case No. 05 - 4355

)

DEPARTMENT OF HEALTH, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for fo rmal hearing before Harry L.

Hooper , Administrative Law Judge with the Division of

Administrative Hearings, on January 30, 2006 , by video

teleconferencing with the parties appearing in Jacksonville and

the Administrative Law Judge appearing in Tallahassee , Florida.

APPEARANCES

For Petitioner: Robert J. Hoag, pro se

Plumbing & Contracting by Hoag

Post Office Box 7931

Jacksonville, Florida 32238

For Respondent: Catherine R. Berry, Esquire

Department of Health

515 West Sixt h Street

Jacksonville, Florida 32206 - 4311

STATEMENT OF THE ISSUE

The issue is whether Petitioner created a sanitary nuisance

in violation of Florida Administrative Code Rules 64E -

6.022(1)(l) and 64E - 6.022(1)(q) and, if so, the proper penalty.

PREL IMINARY STATEMENT

Petitioner Robert J. Hoag (Mr. Hoag), a contractor who

works on septic tanks, was served a "Citation for Violation

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

Jacksonville, Florida, on April 15, 2004. Mr. Hoag requested an

administrative hearing by completing Part 9 of the Citation on

April 16, 2004. On November 29, 2005, more than a year and a -

half later, the matter was filed with the Division of

Administrative Hearings.

At the hearing, Mr. Hoag testified on his own beha lf and

offered into evidence Petitioner's Exhibit No. 1 , consisting of

20 photographs, which was accepted into evidence . Respondent

presented the testimony of two witnesses and offered

Respondent's Exhibit No. 1, photographs, which were accepted

into evid ence.

No t ranscript was filed . After the hearing, Petitioner and

Respondent filed Proposed Findings of Fact and Conclusions of

Law on February 8 and 9, 2006, respectively .

References to statutes are to Florida Statutes (200 3 )

unless otherwise noted.

FINDINGS OF FACT

1. The Department of Health, Duval County Health

Department (Department), is the state agency charged with

enforcing the statutory and regulatory provisions pertaining to

septic tank installations and repairs in Florida, pursuant to

Sec tion 381.0065 , Florida Statutes, and Florida Administrative

Code Sub - Chapter 64E - 6.

2. Mr. Hoag is registered as a Septic Tank Contractor

pursuant to Florida Administrative Code Rule 64E - 6.019. He was

issued registration n o. SR0911053.

3. It was nece ssary to install a new septic tank at

residences located at 8817 and 8821 Bellrose Avenue, in Duval

County, during March 2004 . The owner of the premises,

Ben Lewis, contracted with Florida Septic Tank Service, Inc., to

accomplish this work. A repair app lication was submitted to the

Department on March 8, 2004, and was approved.

4. Florida Septic Tank Service, Inc., engaged Mr. Hoag , of

Plumbing and Contracting by Hoag, to accomplish the plumbing

portion of the operation.

5. Sometime on April 8, 2004, the exact time not being

estimated, Mr. Hoag disconnected the stub from the residences

that ran to the former septic tank . This was done so that pipes

could be run to a new septic tank. He neither connect ed the

line that he disconnected to the new septic tank n or cap ped the

pipe.

6. Mr. Hoag requested the occupants of the residences to

refrain from using the sanitary facilities within the residences

until he was able to continue his work on April 9, 2004.

Despite this request, the facilities were used between April 8,

2004 , and April 9, 2004.

7. On April 9, 2004, sometime prior to 11:45 in the

morning, Colleen Bierbach, an inspector with the Department ,

entered the premises of 8817 and 8821 Bellrose Avenue and

observed household wastewater and human f ecal matter on the

ground at the terminus of the stub . Pictures were taken that

memorialized the nature of the deposits.

8. Inspector Scott Turner, of the Department , issued a

citation to Mr. Hoag that indicated that the offense occurred at

11:45 a.m. on April 9, 2004. The citation reflected a violation

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

Administrative Code Rule 64E - 6.022(1)(l) and (q). With regard

to Florida Administrative Code Rule 64E - 6.022(1)(l), the

citation charged only that h e committed, "Gross negligence,

incompetence, or misconduct which causes no monetary harm to a

customer." The citation was accepted by Mr. Hoag on April 15,

2004.

9. Mr. Hoag's failure to either connect the line to the

new septic tank or to cap the outfl ow line, caused an unsanitary

and unsafe condition to exist at 8817 and 8821 Bellrose Avenue,

Duval County, on April 9, 2004 . No evidence was adduced as to

the exact time that the pipe was opened on April 8, 2004, or as

to the exact time that the pipe was closed and the area

decontaminated on April 9, 2004.

CONCLUSIONS OF LAW

10. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. § 120.57(1), Fla. Stat.

11. The Department has the bur den of proving by clear and

convincing evidence that Mr. Hoag violated the provisions of

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

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

Department proposed to assess a fine in the amount of $1,000.

See Department of Banking and Finance, Division of Securities

and Investor Protection v. Osborne Stern and Co. , 670 So. 2d 932

(Fla. 1996) .

1 2 . Florida Administrative Code Rule 64E - 6.022 , Standards

of Practice and Disciplinary Guidelines , provi des 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 contracted and

which has been performed b y 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 penaltie s 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.

* * *

(l) Gross negligence, incompetence, or

miscond uct 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 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.

* * *

(q) Creation or maintenance of a sanitary

nuisance as defined by Section 386.041, F.S.

violation, letter of warning or fine up to

$500; repeat violation, 90 day suspension or

revocation.

13 . Section 386.041(1)(a) provides as follows:

386.041. Nuisances injurious to health .

(1) The following conditions existing,

permitted, maintaine d, 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) Untreated or improperly treated human

waste, garbage, offal, d ead 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.

* * *

14 . Section 386.03 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 declared to be nuisances by

law, shall notify the person or persons

committin g, 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 such

notice be duly given.

(2) If the sanitary nuisance condition is

no t 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 nuisance exists, remove, cause to

remove, or prevent the continuing sanitary

nuisance conditi on in the following manner:

(a) Undertake required correctional

procedures, including the removal of same if

necessary; the cost or expense of such

removal or correctional procedures shall be

paid by the person or persons committing,

crea ting, 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 person or persons

committing, creating, keeping, or

maintaining such nuis ances, 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 processing or

disposing of liquid or smoke effluen t 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 nuisance conditions a s provided in

this chapter.

(c) Institute legal proce edings 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.

15. The five sections of Part 1 of Chapter 386, entitled

Sanitary Nuisances, must be read in para materia . Section

386.03 requires that a registrant 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) , 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 Department prove that it gave him some alt ernate time

period .

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. Hoag on

April 9, 2004.

DONE AND ENTERED thi s 15th day of February , 200 6 , in

Tallahassee, Leon County, Florida.

S

HARRY L. HOOPER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9 675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 15th day of February , 2006 .

COPIES FURNISHED :

Catherine R. Berry, Esquire

Department of Health

515 West Sixth Street

Jacksonville, F lorida 32206 - 4311

Robert J. Hoag

Plumbing & Contracting by Hoag

Post Office Box 7931

Jacksonville, Florida 32238

R. S. Power, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

Timothy M . Cerio, Genera l Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

Dr. John O. Agwunobi, Secretary

Department of Health

4052 Bald Cypress Way, Bin A00

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 the Final Order in this case.