10-010103PL Department Of Health vs. Donald R. Derby Status: Closed Recommended Order on Thursday, February 24, 2011.

Summary: Discipline is warranted for false reporting of contractor services.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH , )

)

Petitioner , )

)

vs. ) Case No. 10 - 10103PL

)

DONALD R. DERBY , )

)

Respondent . )

)

RECOMMENDED ORDER

On January 14 , 2011 , a formal administrative hearing was

conducted by video tele conference in Tallahassee and Ft. Myers ,

Florida, before William F. Quattlebaum, Administrative Law

Judge, Divisi on of Administrative Hearings.

APPEARANCES

For Petitioner: Denise Duque, Esquire

Southwest Alliance of County

Health Departments

2295 Victoria Avenue, Room 206

Fort Myers, Florida 33901

For Respondent: Stephen M. Maher, Esquire

Stephen M. Maher, Attorney at Law, P.A.

2077 First Street, Su ite 206

Fort Myers, Florida 33901

STATEMENT OF THE ISSUE S

The issue s in this case are whether the allegations set

forth in the Administrative Complaint are correct, and, if so,

what penalty should be imposed.

PRELIMINARY STATEMENT

By an Administrative Complaint dated September 30, 2010 ,

the Department of Health ( Petitioner ) alleged that Donald Denby

(Respondent) violated administrative rules related to septic

tank contractor services. The Respondent denied the

allegations and req uested a formal administrative hearing. The

Petitioner forwarded the dispute to the Division of

Administrative Hearings , which scheduled and conducted the

proceeding.

At the hearing, the Petitioner presented the testimony of

two witnesses and had Exhibits 1 through 4 admitted into

evidence. The Respondent presented the testimony of three

witness es and had E xhibits 1 and 2 admitted into evidence.

No transcript of the hearing was filed. Both parties filed

Proposed Recommended O rders that have been considered in the

preparation of this Recommended Order. The Respondent's

Proposed Recommended Order was not timely filed, and the

Petitioner filed a Motion to Strike the Respondent's submission.

The Motion to Strike is hereby denied .

A Prehearing Stipulation filed by the parties on January 7,

2011 , included stipulated facts that have been adopted and are

incorporated as necessary herein.

FINDINGS OF FACT

1. At all times material to this case, the Respondent was

a registered septic tank contractor, registration

number SR0041456.

2. At all times material to this case, the Respondent was

authorized to provide septic tank contracting services through

the corporation "Anytime Septic Enterprise, Inc. , " authorization

number SA0091662.

3. The Respondent has advertised his services to the

public as a septic tank contractor and has engaged in the

business of providing septic tank services since at least

September 2010.

4. At all times material to this case, the Resp ondent was

permitted to provide septage disposal services via permit

number 36 - QA - 28986 issued by the Lee County Health Department.

5. On or about September 13, 2010, the Respondent was

hired to pump a septic system located at 2710 N orthwest 5th

Street , Cape Coral, Lee County, Florida, by another septic tank

contractor. The employing contractor had been hired to service

and repair the septic system, but did not have the ability to

pump the tanks.

6. On September 13, 2010, the Respondent pumped out t he

septic tank. The Respondent did not pump out the "dosing tank,"

a part of the septic system connected to the septic tank.

7. After pumping out the septic tank, the Respondent

completed a "DH Form 4015 , " signed and dated on September 13,

2010.

8. The form collected information on the evaluation and

repair of the septic system, including identification of system

components and tank capacities. The contractor servicing the

system is required to complete the form and identify the

services provided.

9. The Respondent identified the components of the

referenced septic system and the capacities of both the septic

and dosing tanks. The Respondent signed and dated the

certification statement.

10. As completed by the Respondent, the certification

sta tement stated as follows:

I certify that the listed tanks were pumped

on 9/13/10 by Anytime Septic, have the

volumes specified as determined by legend

are free of observable defects or leaks, and

have a [solids deflection device/outlet

filter device] installed.

1 1 . Although the Respondent certified that he pumped the

dosing tank on September 13, 2010, he did not pump the dosing

tank on that date.

12. The Respondent certified the dosing tank to be free of

observable defects or leaks; however, the failure to pump the

dosing tan k prevented proper observation of the dosing tank, and

it is highly unlikely that an accurate evaluation of the

condition of the dosing tank was possible under the

circumstances.

13. Under the applicable rule, a pumper may perform an

incomplete pumpout under certain circumstances, but the rule

requires that the pumper must provide written documentation to

the system owner identifying the reason for the incomplete

pumpout, the gallonage pumped from the system, and the material

left in the tank . The Respo ndent failed to provide such

documentation to the system owner.

14. An inspection by an employee of the Petitioner on

September 16, 2010, revealed that the dosing tank had not been

pumped and that the tank lids had not been sealed after the

service.

15. The Respondent was notified on September 20, 2010,

that the dosing tank should have been pumped at the same time as

the septic tank. On that same date, the Respondent returned to

the site, pumped the dosing tank, and then completed, signed and

dated a second "DH Form 4015" certifying that the dosing tank

had been pumped. The Respondent recorded additional information

on the form to indicate that the remaining work would be

performed by the septic tank contractor who had employed the

Respondent.

16 . At the hearing, the Respondent asserted that upon the

initial inspection of the property, the Respondent observed that

the septic tank conditions were non - standard, that he

communicated such information to the contractor who had hired

him, and that the Respondent's services, including certification

of the tanks, were provided in accordance with the requests of

the contractor.

CONCLUSIONS OF LAW

17. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

pr oceeding. §§ 120.569 and 120.57(1), Fla . Stat . (2010 ). 1/

18. The Petitioner is the state agency charged with

enforcement of provisions of c hapter s 381 and 489, Part III,

related to regulation of septic systems and septic tank

contractors. § 381.065(3), Fla . Stat .

19. The Petitioner has the burden of establishing the

truthfulness of the allegations in the Administrative Complaint

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

Osborne Stern & Co . , 670 So. 2d 932 (Fla. 1996); Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1987 ). In this case, the

burden has been met.

20. Florida Administrative Code Rule 64E - 6.010(4)

provides , in relevant part , as follows:

After septage or food establishment sludge

is removed from an onsite sewage treatment

and disposal system, the original lid of the

tank shall be put back in place, or be

replaced with a new lid if the original lid

is broken. The tank lid shall be completely

sealed and secured as per paragraph 64E -

6.013(2)(i), F.A.C., and the ground

backfi lled and compacted so that the site is

left in a nuisance free condition.

(a) Contents of any treatment tank,

including all chambers of a multichambered

tank, or pump tank shall be removed in their

entirety when pumped. Where in the opinion

of the perso n pumping any onsite sewage

treatment and disposal system waste

receptacle or pump tank, the complete

removal of all tank contents may create an

unintended problem in regards to the

continued use of the system, a complete

pumpout is not required. The pump er must

document, in writing, to the system owner

the reason for the partial pumpout, the

gallonage pumped from the system, and what

material was left in the tank.

(b) The access to pump a tank must be

through the lid of the tank, through the

manhole or by moving a sectional lid. Where

the tank is chambered, separate chambers

must be accessed through the manholes or

sectional lid for the chamber being pumped.

Pumping shall not be accomplished by

entering the tank through inlets or outlets.

Where the li d of the tank must be broken in

order to gain access for the removal of tank

contents, or at anytime when the lid is

broken, the lid shall be replaced.

21. Florida Administrative Code Rule 64E - 6.013(2)(i)

provides as follows:

Joints of receptacles, inclu ding mid - seams,

risers, and lids shall be sealed using a

bonding compound that meets ASTM C 990 - 96,

Standard Specification for Joints for

Concrete Pipe, Manholes, and Precast Box

Sections using Preformed Flexible Joint

Sealants, herein incorporated by refe rence.

22. The evidence establishes that the Respondent violated

r ule 64E - 6.010 by failing to fully pump the septic system

referenced herein or to document the reasons for not completing

the pumpout and by failing to properly seal the tank lids.

23. F lorida Administrative Code Rule 64E - 6.022 provides ,

in relevant part , as follows:

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 c ontracted 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.

* * *

(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.

24. The evidence establishes that the Respondent violated

r ule 64E - 6.022(1)(k) by falsely certifying that the dosing tank

had been pumped on September 13, 2010, and by certifying that

the dosing tank was free of observable defects or leaks when no

proper observation had been conducted.

25. The evidence establishes that the Responden t violated

r ule 64E - 6.022(1)(l)1 . by failing to fully pump the system or to

document the reasons for not doing so and by failing to properly

seal the tank lids after completion of the work on September 13,

2010. The misconduct caused no harm to a customer or any other

person.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Health enter a

f inal o rde r imposing a $1,500 fine against the Respondent for

falsely certifying the work performed on September 13, 2010 , and

the condition of the dosing tank ; for failing to fully pump the

system without providing appropriate documentation ; and for

failing to properly seal the tank lids.

DONE AND ENTERED this 24th day of February , 2011 , in

Tallahassee, Leon County, Flori da.

S

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 24th day of February , 2011 .

COPIES FURNISHED :

Denise Duque, Esquire

Southwest Alliance of County

Health Departments

2295 Victoria Avenue, Room 206

Fort Myers, Florida 33901

Stephen M. Maher, Esquire

Stephen M. Maher, Attorney at Law, P.A.

2077 First Street, Suite 206

Fort Myers, Florida 33901

R. S. Power, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A - 02

Tallahassee, FL 32399 - 1701

E. Renee Alsobrook , Acting General Counsel

Department of Health

4052 Bald Cypress Way, Bin A - 02

Tallahassee, Florida 32399 - 1701

Secretary , State Surgeon General

Department of Health

4052 Bald Cypress Way, Bin A - 00

Tallahassee, F lorida 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 ca se.