11-002246 Department Of Health vs. Connie H. Sanders Status: Closed Recommended Order on Thursday, September 8, 2011.

Summary: Respondent violated agency rules, but revocation of certification is not warranted.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH , )

)

Petitioner , )

)

vs. ) Case No. 11 - 2246

)

CONNIE H. SANDERS , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice to all parties, the final hearing was

conducted in this case on August 11, 2011, in Fort Myers,

Florida, before Administrative Law Judge R. Bruce McKibben of

the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Denise Duque, Esquire

Jennifer O'Connell, Esquire

Department of Health

2295 Victoria Avenue, Room 206

Fort Myers, Florida 33901

For Respondent: Neysa Borkert, Esquire

Pavese Law Firm

1833 Hendry Street

Fort Myers, Florida 33901

STATE MENT OF THE ISSUE

The issue in this case is whether Respondent, Connie H.

Sanders (" Mrs. Sanders") violated provisions of Florida

Administrative Code Chapter 64E - 6, and, if so, whether

revocation of her septic tank contractor's certification is

warranted.

PRELIMINARY STATEMENT

On March 11, 2011, Petitioner, Department of Health (the

"Department"), issued an Administrative Complaint alleging

certain violations by Mrs. Sanders of statutes and rules

governing septic tank contractors. Mrs. Sanders disputed the

allegations and filed a Request for Hearing , which is accepted

as her petition for formal administrative hearing. The petition

was forwarded to the Division of Administrative Hearings to

conduct a formal proceeding under section 120.57(1), Florida

Statut es (2010) . 1/

At the final hearing, the Department called two witnesses:

Justin Sabins, Environmental Supervisor I; and Johanna Whelan,

Environmental Supervisor II. Exhibits 1 through 4, 6 through

12, 16, 18, and 19 , offered by the Department , were admitt ed

into evidence. Mrs. Sanders recalled Sabins, called David

Sanders (referred to herein as " Mr. Sanders"), and testified on

her own behalf. No exhibits were offered into evidence by

Mrs. Sanders.

No transcript of the final hearing was ordered by the

par ties. By rule, the parties were allowed ten days to submit

proposed recommended orders. Each party timely submitted a

Proposed Recommended Order, and each was duly considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. The Departm ent is the State agency responsible for,

inter alia, enforcing the provisions of c hapter 381 and

c hapter 489, Part III, Florida Statutes, and the rules contained

in chapter 64E - 6 , as those statutes and rules relate to septic

tank contractor registrations.

2. Mrs. Sanders has been a registered septic tank

contractor since 1993. She has been in the septic tank business

since 1982. At all times relevant to this proceeding,

Mrs. Sanders operated under the name Lehigh Septic, Inc. She

has since begun operati ng under the name AAA Lehigh Septic Tank

Service.

3. Mrs. Sanders' husband is also a registered septic tank

contractor. When Mrs. Sanders began operating her new business,

Mr. Sanders took over Lehigh Septic, Inc. Both Mrs. Sanders'

business and Mr. San ders' business operate from the same office

and share administrative staff. Mrs. Sanders generally remains

in the office to handle the business aspects of the two

entities. Mr. Sanders goes into the field and conducts the

hands - on, practical aspects of t he businesses.

4. The charges against Mrs. Sanders ar o se from the

provision of services to a group home or assisted living

facility (the testimony at final hearing referenced it both

ways) located at 413 Richmond Avenue, Lehigh Acres, Florida, and

referre d to herein as the "Property."

5. On January 18, 2011, George Harris called Mrs. Sanders'

office seeking septic services at the Property. He said he had

a problem with "smells" at the Property , which he attributed to

the septic system. Mrs. Sanders , o r her secretary , took the

message and gave it to Mr. Sanders for follow - up. Harris called

back the following day as well. On that day, a note was made on

the phone log that someone was to do the work "today." A price

of $350.00 was written in the margin of the note.

6. Mr. Sanders went to the Property on or around the

period including January 18 through 21, 2011 , and pumped out a

900 - gallon septic tank. Mr. Sanders had actually done septic

tank work at the Property in 2008, but he has done work on

thou sands of tanks and does not have a specific memory as to

what he did at the Property three years earlier.

7. On January 24, 2011, Mrs. Sanders' telephone log

indicated receipt of another call from Harris. This time,

Harris said there was a problem with t he septic tank "we [pumped

out] last week." Harris said there was a defective drain field

associated with the septic tank and wanted to know the "next

step" and how much it would cost to repair it. On the following

day, there was a note in the telephone log concerning the

Property. The note indicate d the call was about a "tank

cert[ification]" and that someone need ed to call the County

Health Department regarding the size of the tank at the

Property.

8. On or about January 31, 2011, a DH Form 4015, enti tled

Department of Health Onsite Sewage Treatment and Disposal System

Existing System and System Repair Evaluation, was completed , in

part , by Mr. Sanders. Specifically, the certification section

of the form was filled out by Mr. Sanders. He listed the

f ollowing existing tank information:

Ʊ 1350 gallons septic tank, made of concrete and

baffled; and

Ʊ An approximately 350 gallons dosing tank, made of

concrete.

9. Mr. Sanders also certified that " [t] he listed tanks

were pumped on 1/24/11 by Lehigh Septic, Inc., have the volumes

specified as determined by [method of determination left

unchecked], are free of observable defects or leaks, and have a

[type of filter not checked] installed." The certification was

then signed as Connie H. Sanders, Lehigh Septic, Inc., but

Mr. Sanders actually w rote the signature. Under the signature

were the words , " [i] nstalled in series , " 2/ and then the form is

dated January 31, 2011. This form will be referred to herein as

the "January 31 Certification." Mr. Sanders was authorized by

Mrs. Sanders to sign do cuments on her behalf, so the January 31

Certification is essentially Mrs. Sanders' certified statement.

10. Mr. Sanders delivered the January 31 Certification to

Harris, assuming the certification was needed as part of Harris'

licensure application for hi s assisted living facility or group

home. Mr. Sanders believe d he ha d provided such a certification

for the Property in the past, and he often provide d

certifications to other group home type facilities. Mr. Sanders

avers that he was not hired to do any additional work on the

septic system at the property.

11. Harris then apparently had some repair work done on

his septic system by another company, Southwest Environmental,

LLC. A permit application was filed at the Department on or

about February 4, 2011 , by Trinity Property, Inc. (apparently

the entity which owns the Property), which sought approval to

replace the drain field at the Property. Attached to the

application was the January 31 Certification completed by

Mr. Sanders. Neither Mr. Sanders , nor Mrs. Sanders , had

knowledge the permit application was going to be filed at the

Department as part of a repair permit application.

12. Upon receipt of the permit application by the

Department, it was quickly ascertained that the January 31

Certification w as in error concerning the septic tan k

information. The 1350 - gallon septic tank identified by

Mr. Sanders did not exist. In fact, the Property had a

900 - gallon septic tank, a 450 - gallon septic tank, and a

400 - gallon dosing tank.

13. On February 10, 201 1, Sabins contacted Mr. Sanders to

let him know about the discrepancies on his DH Form 4015 related

to the Property. Mr. Sanders indicated he would go out and pump

the other two tanks, then submit a corrected certification

form. 3/ Mr. Sanders pumped the remaining tanks the very next

day. Mr. Sanders also called the Department and spoke to

Whelan. It was at that time that Mr. Sanders was advised that

he could use the tank certifications he had done in 2008 ,

because the certifications are good for up to t hree years.

14. Mr. Sanders then submitted two more certifications to

the Department. He submitted the certification from his 2008

visit (the "2008 Certification") and a revised certification

dated February 11, 2011 (the "February 11 Certification").

15. The 2008 Certification identifies the two septic tanks

and one dosing tank that exist ed on the Property. Mr. Sanders

had pumped out at least one of those tanks on October 6, 2008.

Invoices for that work indicate d that Mr. Sanders had pumped the

900 - gallo n tank , but had not pumped the other two tanks. He

went back on October 8, 2008 , and pumped the remaining tanks.

The invoice for the additional work says, "Pump dosing tank &

cleaned sludge [no charge] per David/Driver. Didn't know other

tanks were ther e." Under the quantity column on the invoice,

however, 500 gallons is listed for the October 8 , 2010, visit ,

even though there was a 450 - gallon septic tank and a 400 - gallon

dosing tank that were allegedly pumped. The 2008 Certification

is then signed and dated as of February 11, 2011, the same day

as the other corrected certification.

16. The February 11 Certification indicate d that the

Property ha d a 900 - gallon septic tank, a 450 - gallon septic tank,

and a 400 - gallon dosing tank. The certification sa id t hat all

three tanks were pumped on February 1 1 , 2011; however,

Mr. Sanders act ually pumped out the 900 - gallon tank earlier ( i n

the January 18 through 21 , 2011 , time period ) and pumped the

other two tanks on February 11 , 2011 . Neither the February 11

Certi fication , nor the 2008 Certification , is completely

accurate in all respects, but they are sufficiently accurate to

provide the Department the information it require d .

17. The purpose of a septic tank certification is to

ensure that the tank is free from o bservable defects or leaks.

As of October 6 through 8, 2008, Mr. Sanders believed the three

tanks at the Property were in good condition. He did not have

any knowledge whether they were in good condition as of the date

he provided the January 31 Certific ation to the owner of the

Property. However, Mr. Sanders could have relied upon his 2008

Certification at that time, thus , no further inspection was

absolutely necessary.

18. There is no evidence that Mrs. Sanders was personally

aware of the errors mad e by Mr. Sanders concerning the

activities at the Property ; n or is there evidence that

Mrs. Sanders had any knowledge that Mr. Sanders had prepared a

certification (or three of them) containing her signature.

However, Mrs. Sanders authorized Mr. Sanders t o act on her

behalf and must be held accountable for his actions in that

regard.

19. There were three prior disciplinary actions taken

against Mrs. Sanders by the Department: In July 2003, the

Department entered a Final Order imposing a fine of $1,000.00

for failing to properly abandon a septic tank and creating a

sanitary nuisance; i n May 2009, a Final Order was entered fining

Mrs. Sanders $1,000.00 for failing to remove the entire contents

of an onsite septic sewage treatment and disposal system and for

doing business under an unauthorized name; and i n June 2007, a

Final Order imposed a fine of $1.000.00 for failing to remove

the entire contents of an onsite septic treatment and disposal

system.

20. There is no evidence in this case that consideration

of the three prior offenses would be necessary in order to prove

a material fact in the present action.

21. Mrs. Sanders became a septic tank contractor after

marrying her husband. It has become her life's work and is the

only thing she is qualified to do in order to make a living.

She is responsible for operations of both her and her husband's

businesses , and if she is not certified, both businesses could

fail. Her husband is not in good health , and Mrs. Sanders is

concerned that loss of her certificatio n would be financially

devastating for her and Mr. Sanders.

CONCLUSIONS OF LAW

22. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to s ections 120.569 and 120.57(1), Florida

S tatutes (2011) .

23. This case involves the potential loss of a license to

engage in septic tank contracting. As such, the Department has

the burden of proof to prove all elements of the alleged

violation by clear and convincing evidence. Dep't of Banking

and Fin., Div. of Sec. and Investor Prot. v. Osborne Stern and

Co. , 670 So. 2d 292 (Fla. 1996); Ferris v. Turlington , 510

So. 2d 291 (Fla. 1987).

24. Clear and convincing evidence is an intermediate

standard of proof , which is more than the "preponderance of the

evidence" standard used in most civil cases , but less than the

"beyond a reasonable doubt" standard used in criminal cases.

See State v. Graham , 240 So. 2d 486 (Fla. 2d DCA 1970). Clear

and convincing evidence has been defined as evidence which:

[ R ] equires that the evidence must be found

to be credible; the facts to which the

witnesses testify must be distinctly

remembered; the testimony must be precise

and explicit and the witnesses must be

lacking in confusion as to the facts in

issue. The evi dence must be of such weight

that it produces in the mind of the trier of

fact a firm belief or conviction, without

hesitancy, as to the truth of the

allegations sought to be established.

Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983)

(cita tions omitted).

25. Section 381.0065 sets forth the regulations for onsite

sewage treatment and disposal systems. Subsection (3) of that

statute provides the Department with authority to regulate

septic tank contractors and authority to adopt rules to

adm inister the statute.

26. Chapter 489, Part III , addresses septic tank

contracting, including the application for and monitoring of

certifications. The Department is authorized to regulate septic

tank contracting certifications under that statutory authori ty.

27. The standards of practice and disciplinary guidelines

for septic tank contractors are set forth in r ule 64E - 6.022.

The subsections of that rule which the Department alleges

Mrs. Sanders violated are as follows:

(k) Practicing fraud or deceit, mak ing

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 harm 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.

28. There is no evidence in this case that Mrs. Sanders

or, by extension, Mr. Sanders as her agent, practiced fra ud or

deceit by their actions. The representations by Mr. Sanders on

the January 31 Certification were incorrect, but they were not

made with the intent of defrauding or deceiving the Department.

Mr. Sanders was certainly not very careful and did not pay

attention to detail, but it appears from the weight of the

testimony that his actions were not intentional.

29. Nor is there any evidence of gross negligence, which

has been defined as the absence of the exercise of slight care

and is the omission or comm ission of an act with a conscious

indifference to consequences so far as other persons are

concerned. See generally Faircloth v. Hill , 85 So. 2d 870 (Fla.

1956); Glaab v. Caudill , 236 So. 2d 180 (Fla. 2d DCA 1970).

Those cases, having to do with automobi le accidents, provide

some definition of gross negligence in the absence of a

definition in relevant statutes or rules concerning septic tank

contractors. Nothing in Mr. or Mrs. Sanders' behavior suggests

an indifference to potentially harmful consequence s to their

customers which would rise to the level of gross negligence.

30. There is, however, clear and convincing evidence that

Mrs. Sanders, or her agent, engaged in activities relative to

the tank certifications that constitute misconduct on her, or

hi s, part. Therefore, Mrs. Sanders violated a provision of ru le

64E - 6 .022(1)(l) . By failing to properly and accurately identify

the tanks which are certified to be free of defects,

Mrs. Sanders acted improperly.

3 1 . Paragraph (2) of rule 64E - 6.022 sets for th certain

mitigating and aggravating factors that may be considered by the

Department when imposing a penalty, including:

(a) Monetary or other damage to the

registrant's customer, in any way associated

with the violation, which damage the

registrant h as not relieved, as of the time

the penalty is to be assessed.

* * *

(c) The severity of the offense.

(d) The danger to the public.

(e) The number of repetitions of the

offense.

* * *

(g) The length of time the contractor has

prac tice and the registration category.

(h) The actual damage, physical or

otherwise, to the customer.

(i) The effect of the penalty on the

contractor's livelihood. . . .

3 2 . There was no known monetary damage to Mrs. Sanders'

customers associated wit h the mistakes made in the tank

certifications. The nature of the errors, while serious, would

not be called severe. Mrs. Sanders has been practicing for a

long period of time , and it is certain that revocation of her

license would be significantly detri mental to her.

3 3 . The errors that were made warrant a penalty, but do

not rise to the level of violation for which revocation is

required.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final orde r be entered by Petitioner,

Department of Health, imposing a fine against Respondent,

Connie H. Sanders , in the amount of $500.00 and that a letter of

warning be issued stating the potential penalty for any repeat

violation.

DONE AND ENT ERED this 8 th day of September, 2011 , in

Tallahassee, Leon County, Florida.

S

R. BRUCE MCKIBBEN

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 8 th day of September , 2011 .

ENDNOTES

1/ Unless stated specifically otherwise herein, all references

to Florida Statutes will b e to the 2010 version.

2/ Mr. Sanders sa id the "in series" reference indicate d the

existence of more than one tank and is , thus , an attempt to

describe the totality of the tanks' volume.

3/ There was no testimony provided at final hearing as to

whethe r Mr. Sanders discussed with Department representatives

his surprise that his January 31 Certification had been used as

part of the permit application.

COPIES FURNISHED :

H. Frank Farmer, MD., Ph.D., Secretary

State Surgeon General

Department of Health

4 052 Bald Cypress Way, Bin A00

Tallahassee, Florida 32399 - 1701

Nicholas Romanello, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

R. S. Power, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1703

Neysa Borkert, Esquire

Pavese Law Firm

1833 Hendry Street

Fort Myers, Florida 33901

Denise Duque, Esquire

Jennifer O'Connell, Esquire

Department of Health

2295 Victoria Avenue, Room 206

Fort Myers, Florida 33901

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.