09-001130 Department Of Health vs. Jason E. Simmons, D/B/A Twins Septic Services, Inc. Status: Closed Recommended Order on Thursday, December 10, 2009.

Summary: Petitioner presented more than ample evidence of various violations of rules for building and maintaining on-site sanitary systems. After a proper notice, Respondent failed to appear and defend.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

)

Petitioner, )

)

vs. ) Case No. 09-1130

)

JASON SIMMONS, d/b/a TWINS )

SEPTIC SERVICES, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to appropriate notice this manner came on for

formal proceeding and hearing before P. Michael Ruff, duly-

designated Administrative Law Judge of the Division of

Administrative Hearings in Jacksonville, Florida, on October 14,

2009. The appearances were as follows:

APPEARANCES

For Petitioner: Catherine R. Berry, Esquire

Department of Health

900 North University Boulevard, Suite 710

Jacksonville, Florida 32211

For Respondent: No Appearance

STATEMENT OF THE ISSUES

The issues to be resolved in this proceeding concern

whether the Respondent committed the alleged offenses set forth

in the citation issued on September 25, 2008, involving

unauthorized work on an on-site sewage disposal system (OSTDS),

and, if so, what, if any, penalty is warranted.

PRELIMINARY STATEMENT

This case arose when the Department of Health (Petitioner)

issued a citation to the Respondent seeking an administrative

fine in the amount of $5,000, for violations of Florida

Administrative Code Chapter 64E-6. The citation was issued on

September 25, 2008, and informed the Respondent of his right to

a hearing, pursuant to Chapter 120, Florida Statutes. The

Respondent availed himself of the right to a formal proceeding

and hearing and in due course, the matter was transmitted to the

Division of Administrative Hearings and the undersigned

Administrative Law Judge.

The matter was scheduled for hearing, but upon a showing of

good cause, a continuance was granted. The matter was again set

for hearing on October 14, 2009. The case came on for hearing

on that day, as noticed. The Petitioner Department called four

witnesses at the hearing and had eighteen Exhibits admitted into

evidence. The Respondent failed to appear at the hearing. The

Notice of Hearing was served on the Respondent, by mail, at his

last known address of record. That notice was not returned as

undeliverable for any reason. Counsel for the Petitioner

represented that she spoke with the Respondent on October 9,

2009, the Friday before the hearing, and the Respondent

acknowledged that he had received the Notice of Hearing and was

planning to attend.

The hearing was scheduled to begin at 10:30 a.m. on

October 14, 2009. The Administrative Law Judge, Petitioner's

counsel, its party representative and witnesses were all in

attendance at that time, but the Respondent was not present.

The Administrative Law Judge waited for some thirty minutes

until 11:00 a.m. to begin the hearing in order to give the

Respondent an opportunity to arrive. The Petitioner's counsel

attempted to contact the Respondent twice during this period of

time, to no avail. Finally, the hearing was commenced at 11:00

a.m. The Respondent never appeared during the course of the

hearing.

It was established at hearing that there is a mistake in

the name of the Respondent in the style of this case. It is

shown as James E. Simmons and it should be Jason Simmons. The

style will be corrected accordingly.

Upon conclusion of the proceeding, the Petitioner elected

to submit a proposed recommended order. The Proposed

Recommended Order was timely-submitted on October 20, 2009, and

has been considered in the rendition of this recommended order.

FINDINGS OF FACT

1. The Petitioner, the Department of Health, Duval County

Health Department, is the State agency charged with enforcing

the statutory and regulatory provisions regarding the manner,

method, and practice of installation of septic tank systems

(OSTDS) and the manner of maintaining and repairing such

systems, pursuant to Section 381.0065, Florida Statutes (2008),

and Florida Administrative Code Rule Chapter 64E-6.

2. During the months of February or March 2008, employees

of the Twins Septic Tank Service, Inc., performed a system

repair at 5210 Potomac Avenue, without obtaining a repair permit

from the Duval County Health Department. They did not call the

Department for the required inspections.

3. The homebuilder at that address, Chad Davis, provided

the homeowner with the name and contact information of Jason

Simmons, the owner of Twins Septic Service, Inc., in order to

obtain repair of a non-functioning OSTDS system at that address.

4. Jason Simmons is a licensed septic tank contractor in

the state of Florida, and was so at times pertinent to this

proceeding. He was also the qualifying contractor for Twins

Septic Tank Service, Inc. He has been issued registration

number SR0081591.

5. On April 22, 2008, two of the Petitioner's employees,

Davis Helwig and James Squire, arrived at the address and site

to investigate a complaint that they had received. They met

Mr. Joe McEachin, of Earthtek Systems of Florida, Inc., the

maker of the original performance-based treatment system

installed on the property. Mr. McEachin had never been paid for

the original performance-based system installed at the property,

so he removed the control box for the system, which rendered it

non-functional.

6. Upon their visit and inspection, they discovered that

the drainfield originally installed had been removed and

replaced without proper permits or inspections. They determined

that the original performance-based system was removed and

replaced with a standard OSTDS system, without proper permits or

inspections. Many violations of the standards of practice for

installation and repair of OSTDS systems were found upon this

inspection.

7. A number of photos were taken by Mr. Helwig which

showed numerous violations, including use of a standard septic

system pump, the fact that the riser of the tank lid was broken

to accommodate the newly installed effluent transmission line

from a float-activated pump. There were also pink and purple

pipes from the original system which had been cut and pipe from

the new system and an electrical box installed in the middle of

the yard for the dosing pump for the new system. There was

insufficient separation between the shoulder of the fill and the

nearest absorption bed sidewall and insufficient taper to the

toe of the slope. There was an insufficient soil cap over the

drainfield and shoulder area of the mounded system. Based upon

the estimated sewage flows and the quality of the fill material

used in the mound system, the mound drainfield was of

insufficient size. Additionally, the required audio and visual

high-water alarm had not been installed and the "header pipe"

was improper, in that it was not "smooth-walled" and watertight.

All of these activities had been performed without the proper

permit.

8. A tenant at that address, Carla McKenzy, told Scott

Turner, James Squire, and David Helwig, all Department

employees, that during one day in February and March, 2008, two

men who looked exactly alike, arrived in two trucks. They dug

up the yard where the drainfield was and worked for some forty-

five minutes, to one and one-half hours, took some parts out,

and installed some more "things" in the ground at the site. The

Respondent and his brother are identical twins, which is how the

Respondent's company came to be named.

9. The owner of the property, Gerri Hubbard, said that

Jason Simmons had been paid $900 to repair the system. She

found that the system still wasn't operating correctly, or at

all, because it needed the control box or "brains" of the

system, referring to the control box of the original

performance-based system. On April 26, 2008, she sent an e-mail

to David Helwig of the Department, outlining the difficulties

she had encountered with regard to the non-functioning system.

10. Ms. Hubbard originally had the house built to use as

rental property. Due to the non-functioning system and

difficulty alleviating that problem, she had been unable to

lease the property and therefore could not carry the mortgage on

it. The property then went into foreclosure, resulting in her

experiencing a loss of approximately $100,000 invested dollars.

11. On September 25, 2008, the Petitioner issued a

citation to the Respondent, seeking a fine in the amount of

$5,000 for violations of Florida Administrative Code Chapter

64E-6. The Respondent refused to sign the citation, which

itself is a second-degree misdemeanor under Florida Law.

12. The Respondent, in an undated letter to the

Petitioner, denied any responsibility for the violations at the

above address and stated that he had never set foot on the

property, that he had never met Gerri Hubbard, nor the tenant,

Carla McKenzy. The Respondent contended that the only employees

who ever worked for Twins Septic Service, Inc., were he, his

brother, and his late father, Joey Wayne Simmons. He then

requested an administrative hearing and formal proceeding to

contest the matter.

13. Joey Wayne Simmons, who was a licensed septic tank

contractor for the Respondent at the time, signed a "Declaration

of Restrictions" for the property, apparently forging the

owner's signature, which was then filed with the clerk's office

in Duval County, Florida. The application for the OSTDS

Operating Permit for the original performance-based treatment

system listed the Respondent as the authorized maintenance

company.

14. A service agreement between the Respondent and the

owner was signed by Joey Wayne Simmons on August 10, 2007. This

also contained an allegedly forged signature of the owner of the

property. The application for the performance-based treatment

system Maintenance Service Permit listed the Respondent as the

provider, Jason Simmons as the owner, and was signed by Joey

Wayne Simmons on June 15, 2007.

15. Both Joey Wayne Simmons and the Respondent, Jason

Simmons, signed a hand-written letter submitted to the

Petitioner as part of the service agreement permit application,

indicating that they had the parts and training necessary to

service such systems. Mr. McEachin, of Earthtek Systems of

Florida, sent a letter to the Respondent, dated April 23, 2007,

verifying that the Respondent met the requirements to install

and perform service on the performance-based system originally

installed at the property.

CONCLUSIONS OF LAW

16. The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2009).

17. Section 381.0065, Florida Statutes (2008), gives the

Petitioner authority to issue permits, inspect sites, issue

citations and impose necessary fines for violations of rules

governing OSTDS systems, as well as the installation, repair and

operation.

18. Section 381.0065(3)(c), Florida Statutes (2008),

authorizes the Petitioner to conduct enforcement activities,

issue citations, impose fines, suspend, revoke, or enjoin

licensure and certification, and issue emergency orders for

violation of that section, as well as part I of Chapter 386, or

Part III of Chapter 489, or for violations of rules adopted

pursuant to these statutory provisions.

19. Florida Administrative Code Rule 64E-6.022, addresses

"Standards of Practice and Disciplinary Guidelines." It states

at Paragraph (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 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.

20. The first violation charged in the September 25, 2008,

citation concerns Florida Administrative Code Rule 64E-

6.005(7)(c), a violation where the maximum daily sewage flow

allowance has been exceeded. A $500 fine per specific standard

violated is permitted for a first violation, pursuant to Florida

Administrative Code Rule 64E-6.022(p).

21. The second violation charged concerns Florida

Administrative Code Rule 64E-6.003(1), which concerns contracted

work completed without a permit having been issued. This

resulted in missed inspections. A fine of $1,000 is permitted

for a first violation pursuant to Florida Administrative Code

Rule 64E-6.022(b)(2).

22. The third violation charged concerns Florida

Administrative Code Rule 64E-6.003(3), involving the failure to

have a system repair performed by the Respondent inspected by

the Department. That violation allows for a $500 fine for first

violation. Fla. Admin. Code R. 64E-6.022(d).

23. The fourth violation involves Florida Administrative

Code Rule 64E-6.009(3)(f), concerning a violation by the

Respondent where there was insufficient separation between the

shoulder of the fill and the nearest absorption bed sidewall and

insufficient taper to the toe of the slope. This violation also

mandates a $500 fine for the first offense. Fla. Admin. Code R.

64E-6.022(p).

24. The fifth violation, of Florida Administrative Code

Rule 64E-6.009(3)(g), concerns insufficient soil cap over the

drainfield and shoulder area. This also carries a $500 fine for

this specific standard for a first offense. Fla. Admin. Code R.

Rule 64E-6.022(p).

25. The sixth violation of Florida Administrative Code

Rule 64E-6.009(3)(d), involved a violation where there was

insufficient mound drainfield size, based upon the estimated

sewage flows and quality of fill material employed in the mound

system. This violation carries a $500 fine, pursuant to the

Rule referenced in the paragraph above.

26. The seventh violation was of Florida Administrative

Code Rule 64E-6.022(1)(l), which is a violation involving gross

negligence, incompetence or misconduct. It also carries a $500

fine for a first offense, pursuant to Florida Administrative

Code Rule 64E-6.022(1).

27. The eighth violation was of Florida Administrative

Code Rule 64E.6.013(9)(d)(2). This violation involves the

failure to install a required audio and visual high water alarm

for the system. It carries a $500 fine for the first violation,

pursuant to Florida Administrative Code Rule 64E-6.022(p).

28. The ninth and final violation was of Florida

Administrative Code Rule 64E-6.014(2)(c), concerning a violation

involving the header pipe which was found to be not "smooth-

walled" and watertight. Here again, the violation under the

referenced Rule requires a $500 fine for a first violation.

29. There is no question that the preponderant, persuasive

evidence offered by the Petitioner is un-refuted. The

Respondent did not bother to appear, after being duly-noticed of

this proceeding and hearing. Although the Respondent had denied

any responsibility by himself or his company for any of the

referenced errors or omissions regarding the subject OSTDS

system, the evidence is clear that he and his company were

responsible for the maintenance of the original system since

2007. He was paid $900 by the builder for repairs which were

incorrectly done and not legally authorized in the first place.

30. The above-referenced findings of fact, including the

statement by the tenant that she saw the Respondent and his twin

brother working on the system, were un-refuted. They clearly

establish that the Respondent committed the violations charged

in the citation. The Respondent's violations and attendant

delays occasioned by his performance, or non-performance, of his

obligations was at least indirectly and partially responsible

for a substantial loss by the homeowner, by the foreclosure of

the mortgage related to the property. In summary, the clear,

un-refuted evidence shows that the Respondent is responsible for

the violations, as alleged and proven, regarding the subject

citation. There is no evidence to warrant mitigation of the

requested penalty.

RECOMMENDATION

Having considered the foregoing findings of fact,

conclusions of law, the evidence of record and the pleadings and

arguments of the parties, it is, therefore,

RECOMMENDED that a final order be entered finding that the

violations charged in the citation were committed by the

Respondent and that a fine of $5,000 be imposed.

DONE AND ENTERED this 10th day of December, 2009, 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

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 10th day of December, 2009.

COPIES FURNISHED :

Catherine R. Berry, Esquire

Department of Health

900 North University Boulevard, Suite 710

Jacksonville, Florida 32211

Jason Simmons

Twins Septic Services, Inc.

1288 Village Green Court

Jacksonville, Florida 32234

R.S. Power, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399-1701

Josefina M. Tamayo, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399-1701

Dr. Ana M. Viamonte Ros, Secretary

State Surgeon General

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.