10-009214PL Department Of Health vs. Arlender Miller, A Licensed Septic Tank Contractor, And Qualifier For Ms. Rooter, Inc., An Active Florida Corporation Status: Closed Recommended Order on Monday, January 31, 2011.

Summary: Revocation for septic tank contractor who was guilty of billing for work not performed, failing to size properly two tanks installed in series, and abandoning the job. Contractor has been fined multiple times in the past.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

)

Petitioner, )

)

vs. ) Case No. 10 - 9214PL

)

ARLENDER MILLER, A LICENSED )

SEPTIC TANK CONTRACT OR AND )

QUALIFIER FOR MS. RO OTER, INC., )

A FLORIDA CORPORATI ON, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division

of Administrative Hearings, conducted the final hearing by

videoconference in Tallahassee, Florida, on December 3, 2010.

The agency, attorney for the agency, witnesses, and court

reporter participated by videoconference in Miami, Florida.

Respondent made no appearance at the hearing.

APPEARANCES

For Petitioner: Jenea M. Reed, Esq uire

Miami - Da de County Health Department

8323 Northwest Twelfth Street, Suite 214

Miami, Florida 33126

For Respondent: no appearance

STATEMENT OF THE ISSUE S

The issues are whether Respondent has violated the

standards of practice in septic tank contractin g, Florida

Administrative Code r ule 64E - 6.022, and , if so, the penalty .

(All references to Respondent ar e to Arlender Miller . All

references to Ms. Rooter are to Ms. Rooter, Inc. )

PRELIMINARY STATEMENT

By Administrative Complaint dated F ebruary 13, 2009,

Petitioner alleged that, at all material times, Respondent was a

registered septic tank contractor and qualifier for Ms. Rooter,

Inc., for which he also served as vice president. The

Administrative Complaint alleges numerous violations a rising

from three jobs .

The first alleged job concerns property located at 14950

North Miami Avenue, Miami. The Administrative Complaint alleges

that, on Febr uary 20, 2008, Ms. Rooter submitted to the owner of

this property a "bill" for the installation of a 1000 - square -

foot drainfield and 300 - gallon dosing tank and an immediate tank

pump - out. Respondent and the property owner allegedly signed

the " bill, " which operated as a contract.

The " bill " allegedly stated a total contract price of

$10,000 and ack nowledged a deposit of $5 , 000 paid by the

property owner by check dated February 21, 2008. The

Administrative Complaint alleges that, on March 4, 2008,

Respondent, as agent of the property owner, applied to

Petitioner for a permit to repair the septic tan k system.

However, the application alleg edly omitted any reference to a n y

dosing tank. O n April 11, 2008, Petitioner allegedly issued a

permit, which did not include the installation of any dosing

tank. When Petitioner 's inspector inspected the repaired septic

tank system on April 23, 2008, the inspector allegedly did not

observe a newly installed dosing tank. The Administrative

Complaint alleges that the f inal bill sent by Ms. Rooter to the

property owner included a charge for a 300 - gallon dosing tank,

even though none had been installed.

The Administrative Complaint alleges that Respondent thus

violat ed Florida Administrative Code r ule 64E - 6.022 (1)(b), (k),

and (l), which, detailed below , generally prohibit s ,

respectively, work without a permit , fraud , and gross

negligence . Due to a miscitation, Petitioner al leged a

violation of r ule 64E - 6.022(1)"(b)(2)e.," which is not a rule,

but intended to allege a violation of r ule 64E - 6.022(1)(e),

which prohibits false payment statements for work not performed.

The Administrative Complaint alleges that the permit

required Respondent to install a 2 , 575 - gallon septic tank. The

Administrative Complaint alleges that Respondent's failure to

include this item in the contract with the owner constituted

either an attem pt to defraud or gross negligence, as this

requirement of Petitioner is allegedly well known among

experienced septic tank contractors.

The Administrative Complaint alleges that Respondent

installed two 1 , 200 - gallon septic tanks in series on the

property. The Administrative Complaint alleges that the

substitution of two tanks with a total capacity of 2 , 400 gallons

for a single 2 , 575 - gallon septic tank constituted fraud or gross

negligence, as well as a violation of Florida Administrative

Code r ule 64E - 6.0 22(1)(p), which generally prohibits the repair,

modification, or installation of a septic tank system that fails

to meet the standards of section 381.0065 or 381.00655, Florida

Statutes, or Florida Administrative Code c hapter 64E - 6 -- also

detailed below. T he Administrative Complaint alleges th at

Florida Administrative Code r ule 64E - 6.013(2) provides that, if

two septic tanks are installed in series, the first must provide

two - thirds of the required capacity for the tanks, and the total

capacity of the tanks must equal or exceed the total required

capacity. The Administrative Complaint alleges that

Respondent's installation of two equal - sized septic tanks

constituted fraud, gross negligence, or the repair,

modification, or installation of a septic tank syste m that fails

to meet the standards of section 381.0065 or 381.00655, Florida

Statutes, or Florida Administrative Code c hapter 64E - 6.

Lastly, as to the first job , the Administrative Complaint

alleges that Respondent abandoned the job, leaving unfinished a

trench that had been excavated to run electrical service to the

unpermitted dosing tank. In November 2008, months after the

last work had been performed by Respondent or Ms. Rooter, the

property owner filled the trench to eliminate a potentially

dangerous condition for pedestrians. The Administrative

Complaint alleges that Respondent thus violat ed Florida

Administrative Code r ule 64E - 6.022(1)(g), which prohibits the

abandonment of a job for 30 consecutive days or more without

good cause.

The second job c oncerns property located at 9999 Northeast

Second Avenue, Miami. The Administrative Complaint alleges

that, on September 26, 2008, Respondent, as agent for the

property owner, submitted to Petitioner an application to repair

a septic tank system for a 47, 771 - square - foot office building

located on the property. The Administrative Complaint alleges

that, prior to granting the permit, on October 1, 2008,

Petitioner 's inspector visited the property to verify commercial

flow and found that Respondent had alrea dy commenced

construction of the drainfield. Additionally, the inspector

allegedly found a sanitary nuisance at the site of the

drainfield that was under construction. The Administrative

Complaint alleges that Petitioner's inspector posted on the

propert y, on October 1, 2008, an Official Notice to Abate

Sanitary Nuisance (ONASN). The ONASN allegedly described the

inspector's findings of an "opened drainfield with contaminated

material, creating conditions capable of breedin g flies,

mosquitoes and other a r thropods capable of transmitting

diseases."

By letter dated October 2, 2008, Petitioner allegedly

advised Respondent that, pursuant to secti on 381.0065, Florida

Statutes, the Department of Environmental Protection, not

Petitioner, had jurisdiction over t he septic tank repair

proposed for the p roperty because the flow exceeded 5 , 000

gallons per day. The Administrative Complaint alleges that

Respondent performed work without a permit, committed fraud, and

committed gross negligence.

The third job concerns property located at 101 Northeast

195th Street, Miami. The Administrative Complaint alleges that,

on September 2, 2008, Respondent submitted to the property owner

a "bill" -- again, a contract -- to obtain a permit and install a

new drainfield in return for a payment of $2 , 600 . The "bill"

allegedly provided a 10 - year warranty, if the owner arranged for

Ms. Rooter to pump out the tank every two years, for which the

charge would be $325. The "bill" also provided that Respondent

"will run line at no charge." The property owner allegedly

signed the "bill" on September 2, 2008.

On September, 10, 2008, Respondent, as agent for the

property owner, allegedly submitted to Petitioner an application

for a permit to repair the septic tank system. On September 22,

2 008, prior to the issuance of a permit, Petitioner received a

complaint that, without a permit, Respondent had performed the

drainfield work and run a water line. On t he same day,

Petitioner 's inspector visited the site and allegedly discovered

the instal lation of three drain lines servicing the drainfield,

the covering of the system without an inspection by Petitioner,

and the replacement of a damaged water line with a new water

line over the drainfield.

On September 26, 2008, Petitioner allegedly issu ed a permit

for the repair of the septic tank system at the property. On

September 29, 2008, Petitioner allegedly approved the drainfield

repair at the property. The Administrative Complaint alleges

that Respondent thus performed work without a permit, c ommitted

fraud, and committed gross negligence.

The Administrative Complaint alleges that Respondent has

previously been disciplined in the form of fines totaling $4 , 750

for similar violations in 1999, 2000, 2002, 2004, and 2007. The

Administrative Compl aint requests the revocat ion of Respondent's

license, the imposition of a fine of $15,000 , and the revocation

o f the right of Ms. Rooter to be qualified to perform septic

tank contracting.

The relief sought against Ms. Rooter is problematic, if it

purport s to mean anything more than that the corporation would

require a new qualifier if Respondent's registration were

revoked. N othing in the Administrative Complaint s uggests that

it was served on Ms . Rooter. The Notice of Rights refers to

"Respondent" and refers to Respondent as "he" and "him."

The present case arises out of an earlier Administrative

Complaint that commenced DOAH Case No. 09 - 3508PL. The style of

the two Administrative Complaints are identical in their

description of a single r espondent, although they identify the

single respondent as "Respondents." Petitioner's subsequent

pleadings refer in the style to "Respondent" in the singular.

The sole request for hearing was completed by an attorney who

represented only Respondent ; thus, nothing of record suggests

that Ms. Rooter, if aware of the case, ever requested a hearing.

The first case concluded when, on October 9, 2009, counsel

for Petitioner and counsel for Respondent filed a joint motion

for continuance based on pending settlement negot iations. The

Administrative Law Judge then assigned to the case entered an

Order Closing File. The next pleading was filed by Petitioner,

on September 16, 2010, when it filed a motion to reopen the file

due to the failure of settlement negotiations to re solve the

dispute. The reopened cas e was assigned DOAH Case

No. 10 - 9214PL.

At the hearing, Petitioner called three witnesses and

offered into evidence 12 exhibits , which were all admitted .

Respondent did not appear at the hearing.

The parties did no t order a transcript. Petitioner filed a

proposed recommended order on December 7, 2010.

FINDINGS OF FACT

1. At the times of the alleged jobs , Respondent was

registered as a septic tank contractor and served as the

qual ifying agent for Ms. Rooter . At t he time of all three jobs ,

Respondent had apparent authority to serve as the agent of

Ms. Rooter in contracting for and performing the septic tank

contracting work described below. However, nothing in the

record establishes any relation ship between Respon dent and

Ms. Rooter at the time of the issuance of the Administrative

Complaint , so as to justify treating the notice of this

proceeding, when served upon Respondent, as notice to

Ms. Rooter .

2. Hans Seffer , who testified, is the son of the woman who

own s the apartment complex located at 14950 North Miami Avenu e,

Miami. Mr. Seffer found Ms. Rooter on the internet and spoke

with Carolyn F utch, operations manager of Ms. Rooter, about

septic tank contracting services needed at the apartment

complex . Respon dent later met with Mr. Seffer at the property.

3. Initially, Mr. Seffer believed that the existing septic

tank needed only to be pumped out. However, upon inspection,

Respondent determined that the system also required a new

drainfield, pump, and dosin g tank. Accordingly, on February 20,

2008, Respondent, as "technician," and either Mr. Seffer or his

mother signed a one - page con tract on a form identifying the

contractor as Ms. Rooter, license number SA0071430. The

contract describes the following work :

Install 1,000 sq. ft. drainfield with 300

gallon dosing tank including immediate

(2/21/08) tank pump out. Additionally if

tank requires pumpout prior to securing all

necessary permits, Ms. Rooter will perform

pumpout at no additional cost. Manhole

cov er included.

Respond ent and either Mr. or Mrs. Seff er initialed this section

of the contract. The contract states that the total due for

this work is $10,500. Ms. Seffer paid $5 , 000 by check on

February 21, 2008, leaving a $5 , 500 balance due.

4 . On March 1, 2008, Respondent , as agent for Ms. Rooter

and on behalf of the property owner, submitted to Petitioner an

application for a construction permit for an onsite sewage

disposal system. The application describes the property

improvements as a multifa mily complex with ten bedrooms and

5 , 284 square feet of building space. The site plan attached to

the application states: "Replace drainfield only."

5. On April 2, 2008, Ms. Futch emailed Mr. Seffer to

confirm an earlier discussion between them. The d iscussion

addressed a requirement of Petitioner that Ms. Rooter install a

second tank. The email states that the property owner will pay

$5 , 600 for the installation of a "2nd tank (1 , 050 - gal)," so the

new total contract price is $11,100. This email resta tes the

scope of the wor k as the installation of a 1 , 000 - square - foot

drainfield and 300 - gallon dosing tank. By return email two days

later, Mr. Seffer agreed to the additional work.

6. On April 11, 2008, Petitioner issued to the property

owner a co nstru ction permit that specifies a 2 , 575 - gallon septic

tank and a 1 , 000 square - foot drainfield. The permit states:

"T he licensed contractor installing the system is responsible

for installing the minimum category of tank in accordance with

sec. 64E - 6.013(3)(f ), F.A.C." This rule does not refer to tank

capacities.

7. On April 23, 2008, Petitioner issued a "construction

inspection and final approval" form that shows the installation

of two 1 , 200 - gallon sep tic tanks and a 1 , 005 - square - foot

drainfield. The for m states that items bearing an "X" are "not

in compliance with statute or rule and must be corrected." The

construction and final system are approved by Petitioner's

inspector.

8. During the course of the work, Respondent told

Mr. Seff er that the existi ng tank was damaged and needed to be

replaced, at an additional cost of $5 , 000, so the remaining

balance rose to $16,1 00. Mr. Seffer agreed to this change. By

email dated April 30, 2008, to Mr. Seffer, Ms. Futch confirmed

the additional cost of $5 , 000 fo r the second septic tank and

expressed "hope [that] Ms. Rooter has met your expectations."

The email acknowledges, however, that "we must complete the

electrical portion of the job."

9. On May 2, 2008, Mr. Seffer sent Ms. Rooter two checks

totaling $15, 000, leaving a balance of $1 , 100. On the same

date, Mr. Seffer sent Ms. Futch an email that, pursuant to their

agreement, he would retain this amount for the "electric and

final raking work."

10. By email dated May 27, 2008, to Ms. Futch, Mr. Seffer

not ed that the manhole that Ms. Rooter had install ed in the

middle of the lawn was not level and wa s sunken, presenting a

trip ping hazard; the final grading wa s incomplete, leaving low

spots and holes; a large rock remain ed near the palm tree and

needed to be removed. Mr. Seffer sent Ms. Futch a reminder

email on June 4, 2008, that resent the May 27 email.

11. Mr. Seffer sent another email to Ms. Futch on June 21,

2008. In it, he notes that a Ms. Rooter employee worked on

digging an electrical trench on Ju ne 13, but left mid - day, and

no work had been performed since that day. In the meantime,

recent rains had revealed a lack of compaction in the

backfilling done by Ms. Rooter, as the fill had settl ed and

undermined a sidewalk. After failing to obtain a re sponse, on

July 26, 2008, Mr. Seffer sent a final email to Ms. Futch

warning her that he would file complaints with governmental

agencies and advising that the unconnected pump was not pumping

sewage throughout the entire system.

12. The record does not contain the contracts for the

septic tank contracting services involved in the second and

third jobs alleged in the Administrative Complaint. Also,

Petitioner did not present the testimony of the property owners

involved in the se jobs . The record for the se jobs is limite d to

the permitting documentation .

13. On September 26, 2008, as agent of Ms. Rooter and on

behalf of the property owner, Shoreview Properties, Respondent

submitted an application for a construction permit for an onsite

sewage disposal s ystem for 9999 Northeast 2nd Avenue, Miami

Shores. This application describes the property as commercial

with a 47,771 square - foot building.

14. On October 1, 2008, Petitioner's inspe ctor inspected

the property. The inspector found an opened drainfield area

with contaminated material and other conditions capable of

hosting various disease vectors. He also found a backhoe and

worker, who claimed that someone else had excavated the

drainfield. The inspector immediately posted an ONASN, pursuant

to the a uthority of chapter 386, Florida Statutes, that required

the imm ediate abatement of the listed i nsanitary conditions.

T he inspector also determined that the existing onsite sewage

disposal system exceeded Petitioner's jurisdictional threshold

of 5 , 000 gal lons per day.

1 5 . On September 10, 2008, as agent of Ms. Rooter and on

behalf of the property owner, Lisa Mullin, Respondent submitted

to Petitioner an application for a construction permit for an

onsite sewage disposal system for 101 Northeast 195th Str eet ,

Miami. This application describes the property as 0.19 acres ,

on which is situated a single family residence comprising 1 , 663

square feet and three bedrooms.

16 . On September 22, 2008, an agent of the property owner

called Petitioner and complained that Ms. Rooter had commenced

the work without having first obtained a permit. Petitioner's

inspector visited the site on the same day and found "very

recent" earthwork. The owner informed the inspector that the

contractor had installed three drainlines , cut an old water

line, and installed a new water line over the drainfield.

However, t he record fails to establish the amount of time that

elapsed between the work claime d to have been performed by

Ms. Rooter and the report by the property owner.

17 . R espondent has paid numerous fines imposed by

Petitioner for i mproper septic tank contracting . In 1999,

Respondent paid a fine in an unspecified amount for performing

an unpermitted drainfield repair and making the repair without

the required filter sand. On January 27, 2000, Respondent paid

a fine of $250 for performing unpermitted system repairs. On

February 4, 2000, Respondent was assessed a fine of $1 , 000 for

performing unpermitted and uninspected system repairs and

failing to honor a warranty. On Ja nuary 8, 2004, Respondent

received a cease and desist order for qualifying more than one

septic tank contracting business. In 2007, Respondent paid

separate fines of $1 , 500 and $1 , 000 for illegal septic tank

contracting work in Dade and Monroe counties, r espectively.

CONCLUSIONS OF LAW

18 . The Division of Administrative Hearings has

jurisdiction over the subject matter. §§ 120.569 and 120.57(1),

Fla. Stat. (2010).

19 . Section 381.0065(3)(a) and (b), Florida Statutes,

authorizes Petitioner to adopt rul es and generally regulate

onsite sewage disposal systems. Section 381.0065(3)(b)

specifically authorizes Petitioner to review applications,

conduct site inspections, and investigate complaints for

residential onsite sewage disposal systems with estimated sewage

flows of up to 10,000 gallons per day and commercial onsite

sewage disposal systems with estimate sewage flows of up to

5 , 000 gallons per day. Section 381.0065(3)(h) authorizes

Petitioner to enforce section 381.0065; part I of chapter 386,

Florida Statutes; part III of chapter 489, Florida Statutes; and

any rules adopted pursuant to any of these statutes. Section

381.0065(3)(h) authorizes Petitioner to impose fines,

suspensions, revocations, and emergency orders, among other

things, to enforce thes e provisions of law.

20 . Section 381.0065(4), Florida Statutes, prohibits any

person from construction, repairing, modifying, operating, or

abandoning an onsite sewage disposal system without first

obtaining a permit.

21 . Section 386.02, Florida Statut es, authorizes

Petitioner to notify the responsible party of a sanitary

nuisance and require the party to remove or abate the nuisance.

22 . Florida Administrative Code rule 64E - 6.019(1)

requires:

Persons subject to registration Î A person

shall be subjec t to the requirements of this

rule if he or she contracts or advertises to

provide services to the public or holds

himself or herself out as being capable of

performing services related to any of the

following activities in the onsite sewage

treatment and disposal industry regulated by

the department:

(a) Installation of onsite sewage treatment

and disposal systems,

(b) Repair of onsite sewage treatment and

disposal systems,

(c) Modification of onsite sewage treatment

and disposal systems,

(d) Maintenan ce of onsite sewage treatment

and disposal systems,

(e) Septic tank pumping and septage

disposal services, excluding companies which

only provide portable toilet or temporary

holding tank services,

(f) Abandonment of an onsite sewage

treatment and dispos al system.

23 . Florida Administrative Code rule 64E - 6.023 authorizes

certification of corporations. However, this rule does not

address the disciplining of the certificates of corporations.

Of relevanc e to this case, rule 64E - 6.023(3 ) provides only th at,

if a corporation loses its sole qualifier, it must obtain

another qualifier within 60 days.

24 . Florida Administrative Code rule 64E - 6.022 provides:

(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 F lorida Statutes and Chapter

64E - 6, F.A.C. The following actions by a

person included under this rul e 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 circums tances and subject to

other prov isions of this section

* * *

(b) Permit violations.

1. Contractor initiates work to

install, modify, or repair a system when no

permit has been issued by the department. A

permit is issued after construction is

started but prior to completio n of the

contracted work. No inspections are missed.

First violation, letter of warning or fine

up to $500; repeat violation, $500 fine and

90 day suspension or revocation.

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 inspection or inspections. First

violation, letter of warning or fine up to

$1 , 000; repeat violation, revocation.

* * *

(e) Fal se payment statements which are

the result of assessing charges to a

customer for work not performed. First

violation, letter of warning or fine up to

$500; repeat violation, $500 fine and one

year suspension or revocation.

* * *

(g) Abandoning for 30 consecutive days,

without good cause, a project in which the

contractor is engaged or under contractual

obligation to perform. First violation,

letter of warning or fine up to $500; repeat

violation, revocation.

* * *

(k) Practicing fraud or deceit, making

misleading or untrue representations. First

violation, letter of warning or fine up to

$500; repeat violation, revocation.

(l) Gross negligence, incompetence, 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 monetary or other harm to a

cust omer, 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.

* * *

(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 o r revocation.

* * *

(t) The absence of any violation from

this section shall be viewed as an

oversight, and shall not be construed as an

indication that no penalty is to be

assessed.

(2) Circumstances which shall be cons idered

for the purposes of mitigation or

aggravation of penalty shall include the

following:

(a) Monetary or other damage to the

registrantÓs customer, in any way associated

with the violation, which damage the

registrant has not relieved, as of the ti me

the penalty is to be assessed.

(b) Actual job - site violations of this

rule or conditions exhibiting gross

negligence, incompetence or misconduct by

the contractor, which have not been

corrected as of the time the penalty is

being assessed.

(c) T he severity of the offense.

(d) The danger to the public.

(e) The number of repetitions of the

offense.

(f) The number of complaints filed

against the contractor.

(g) The length of time the contractor

has practiced and registration category .

(h) The actual damage, physical or

otherwise, to the customer.

(i) The effect of the penalty upon the

contractorÓs livelihood.

(j) Any efforts at rehabilitation.

(k) Any other mitigating or aggravating

circumstances.

(3) As used in this rule, a repeat

violation is any violation on which

disciplinary action is being taken where the

same licensee had previously had

disciplinary action taken against him or

received a letter of warning in a prior

case. This definition applies regardless of

the chronological relationship of the

violations and regardless of whether the

violations are of the same or different

subsections of this rule. The penalty given

in the above list for repeat violations is

intended to apply only to situations where

the re peat violation is of a different

subsection of this rule than the first

violation. Where the repeat violation is

the very same type of violation as the first

violation, the penalty set out above will

generally be increased over what is shown

for repeat vi olations.

(4) Where several of the above violations

shall occur in one or several cases being

considered together, the penalties shall

normally be cumulative and consecutive.

* * *

25 . Petitioner must prove the material all egations by

clear and convincing evidence. Dep ' t of Banking & Fin . v.

Osborne Stern and Co. , Inc. , 670 So. 2d 932 (Fla. 1996) and

Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).

26 . Petitioner has proved three violations in the first

job . In his init ial quote, Respondent included a dosing tank,

drainfield, and pump. But the application that he filed omitted

a dosing tank, as did the ensuin g construction permit. Had

Respondent installed the dosing tank, this would have been work

for which no permit w as issued, in violation of Florida

Administrat ive Code rule 64E - 6.022(1)(b). Because Respondent

neve r installed the dosing tank, he violated rule

64E - 6.022(1)(e) because he falsely billed for work that was not

performed . This violation better describes the acts and

omissions of Respondent in connection with the dosing tank than

does the allegation of fraud or gross negligence.

27 . The installation of two 1 , 200 - gallon septic tanks to

meet the permit requirement of septic tank with a capacity of

2 , 575 ga llons violates Florida Administrative Code rule

62E - 6.013(2)(a), which requires the first tank in a series of

two to hold at least two - thirds of the required effective

capacity, for systems handling less than 3 , 500 gallons per day.

The record establishes that this multifamily system serves less

than 3 , 500 gallons per day based on the inference that a flow of

over 3 , 500 gallons per day would require a tank with a capacity

much greater than 2 , 575 -- less than two - thirds of a day's worth --

gallons of septage. T hus, Respondent has violated Florida

Administrative Code rule 64E - 6.022(1)(p), which prohibits a

violation of section 381.0065, Florida Statutes. Respondent

violated section 381.0065 by violating rule 64E - 6.013(2)(a).

28 . The argument that Respondent's installation of two

equal - sized tanks in series constitutes gross negligence or

fraud is unproved. Absent additional evidence of the extent to

which this action departs from customary contractor practice, it

is impossible to characterize this action as su fficiently

egregious, so as to constitute gross negligence or fraud, when

Petitioner itself approved the installation of these two, equal -

sized tanks in series. Due to the absen ce of evidence of the

extent to which Petitioner's initial failure to quote a new

septic tank departs from customary contractor practice ,

Petitioner has similarly failed to prove gross negligence or

fraud in this failure by Respondent.

29 . Respondent abandoned the job in violation of Florida

Administrative Code rule 64E - 6.022(1)(g ). Given several chances

to finish the electric trench, as well as the clean - up and

surface recontouring, which were unalleged, Respondent failed to

respond, except by supplying a laborer for part of a day. Over

30 days elapsed from this final performanc e of any work on the

site, and, despite repeated requests from Mr. Seffer, Respondent

abandoned the job without ever completing the ele ctric trench .

30 . Petitioner failed to link Respondent to the work

performed in the second and third jobs. The compla ining

property owner in the third job did not testify, so his hearsay

statement that Ms. Rooter had performed work without a permit

cannot support a finding that Respondent is guilty of this act.

Petitioner must therefore dismiss these charges, as well as the

charges not proved in connection with the first job .

31. I n addition to the lack of notice to Ms. Rooter

discussed in the Preliminary Statement above, Petitioner failed

to demonstrate a clear intent to charge Ms. Rooter for the acts

and omissions of its qualifier. Petitioner must therefore

dismiss any charges against Ms. Rooter, which, if still in

existence , will remain subject to the requirement of having a

registered qualifier in order to perform septic tank contracting

services.

32 . Fines have not deterred Respondent from continuing his

practice of violating the requirements imposed on septic tank

contractors. Although the injury done to Mrs. Seffer may not

have been substantial , largely due to Mr. Seffer's vigilance in

holding a retainage for the unfinished work , the multiple

vio lations on this job alone demonstrate a shoddiness in

contracting that Respondent has been unable or unwilling to

correct for ten years. Respondent even failed to maintain

contact with this proceeding through its concl usion . More fines

or even a s uspension would only award Respondent's blatant

disregard of the regulatory framework imposed on septic tank

contracting and Petitioner's efforts to discharge its statutory

responsibilities within that framework.

RECOMMENDATI ON

It is

RECOMMENDED that Petitioner enter a final order finding

Respondent guilty of the three violation s identified in

paragraphs 26, 27, and 29 above, dismissing the remaining

charges against him, dismissing any charges against Ms. Rooter ,

and revokin g Respondent's septic tank contracting registration.

DONE AND ENTERED this 31st day of January, 2011, in

Tallahassee, Leon County, Florida.

S

___________________________________

ROBERT E. MEALE

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 31st day of January, 2011.

COPIES FURNISHED:

Arlender Miller

640 Northwest 129th Street

Miami, Florida 33168

Jenea Reed, Esquire

Miami Dade County Health Department

8323 Northwest 12th Street, Suite 214

Miami, Florida 33126

R.S. Power, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

E. Renee Alsobrook, Acting General Counsel

Department of Health

4052 B ald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

Shairi Turner , Deputy Secretary

Department of Health

4052 Bald Cypress Way, Bin A00

Tallahassee, Florida 32399 - 1701

Kim Berfield, Deputy 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 must be filed with the ag ency that

will issue the final order in this case.