12-003368 Florida Department Of Health vs. Carlos M. Casanova, And Busy Bee Septic, Inc. Status: Closed Recommended Order on Wednesday, February 13, 2013.

Summary: Clear and convincing evidence proved Casanova & Busy Bee dumped approximately 3,000 gallons of septage on vacant land in Lee County. In light of previous violations and severity of the offense registration and certifications should be revoked.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF HEALTH , )

)

Petitioner , )

)

vs. ) Case No. 12 - 3368

)

CARLOS M. CASANOVA AND )

BUSY BEE SEPTIC, INC. , )

)

Respondent s. )

)

RECOMME NDED ORDER

Administrative Law Judge John D. C. Newton, II, of the

Division of Administrative Hearings (Division) heard this case by

video conference on December 11, 2012 , at locations in Fort Myers

and Tallahassee, Florida.

APPEARANCES

For Petitioner: De nise Duque, Esquire

Department of Health

Room 206

2295 Victoria Avenue

Fort Myers, Florida 33901 - 3866

For Respondent: H. Richard Bisbee, Esquire

Law Office of H. Richard Bisbee, P.A.

Suite 206

1882 Capital Circl e Northeast

Tallahassee, Florida 32308 - 4568

STATEMENT OF THE ISSUE S

A. Did Respondents violate Florida Administrative Code

Rule s 64E - 6.010(5) and (7) by dumping untreated septage

(untreated septic tank waste) on to the ground , instead of

transporti ng it to an approved treatment facility?

B. Did Respondents commit gross negligence, incompetence,

and/or misconduct by dumping untreated septage onto the ground in

violation of r ule 64E - 6.022(1)( n )?

C. Did Respondents create a sanitary nuisance, exposin g

human and animal life to untreated human waste and endangering

the public ' s health and safety by dumping untreated septage onto

the ground in violation of r ule 64E - 6.022(1)(q)?

D. If Respondents committed any of the offenses described

above, what penalt ies should be imposed?

PRELIMINARY STATEMENT

On July 27, 2012, Petitioner, Department of Health

(Department), filed an Administrative Complaint seeking to revoke

the septic contractor ' s registration of Respondent, Carlos M.

Casanova, and the septage collec tion and disposal permits of

Mr. Casanova and Busy Bee Septic, Inc. (Mr. Casanova and/ or Busy

Bee). On August 15, 2012, Mr. Casanova disputed the Department ' s

proposed action and requested a formal administrative hearing.

The Department referred the matt er to the Division to conduct the

requested hearing.

On November 1, 2012, the Division scheduled the hearing to

begin December 11, 2012. The undersigned conducted the hearing

as noticed. The parties appeared and were represented by

counsel. The Departme nt presented testimony from Taylor Brown,

John Hendrick, Laurie Hendrick, Richard Orth, and Barlow Smith.

Department Exhibits 1 through 3, 6, 7, 9 through 11, 13, and 1 5

through 17 were entered into evidence. Mr. Casanova testified on

his own behalf and offered no exhibits.

The parties ordered a Transcript, which was filed

January 15, 2013. The parties timely filed proposed recommended

orders. They have been considered in the preparation of this

Recommended Order.

FINDING S OF FACT

1. Mr. Casanova is a registered septic tank contractor,

r egistration no. SR0041469. Mr. Casanova is the qualifying

registered septic tank contractor for Busy Bee Septic, Inc.

2. Mr. Casanova is authorized to provide septic tank

contracting services through Busy Bee Septic, Inc., a uthorization

no. SA0041225.

3. Permit n o. 36 - QA - 29343, issued by Lee County Health

Department, authorizes Busy Bee to provide septage collection and

disposal services. The permit authorizes Busy Bee to pump out

septic tanks and transport septage collected from the tanks to an

authorized disposal site. The permit does not authorize

treatment of septage. It also requires Busy Bee to dispose of

the septage at a permitted wastewater treatment facility.

4. Carlos Casanova and Busy Bee are authorized to, and have

provided, septic tank contractor services in Lee, Charlotte, and

Collier Counties. The business operates 24 hours a day, seven

days a week.

5. Mr. Casanova and Busy Bee own and operate three

4,000 - gallon septage collection trucks. Each t ruck has a

passenger cab with a large tank behind it.

6. Mr. Casanova delegates most field work to four male

Busy Bee employees. Field work includes pumping septic tank

contents into the trucks ' tanks and transporting the septage to

proper storage and disposal sites. Busy Bee is authorized to

dispose of septage at Crews Environmental and Charlotte County

Utility.

7. On June 15, 2012, at approximately 10:45 p.m., a Busy

Bee truck parked pointing east on the north side of Jacaranda

Boulevard in Cape Co ral, Lee County, Florida. Individuals with

the truck ran a hose from the truck ' s tank into the wooded area

beside Jacaranda Boulevard and discharged untreated septage into

the wooded area through the hose.

8. This is an area of palmetto and pine woods, with sandy

soil. The water table lies about two feet below the surface.

9. The next day the area where the contents of the Busy Bee

truck had been discharged smelled strongly of sewage. Sewage

sludge and bits of toilet paper were visible on the groun d and

palmetto fronds, along with marks in the dirt where the hose

discharging the septage from the tanks had lain.

10. Four days later, the 20 - by - 3 0 - foot wooded area where

the Busy Bee truck pumped out septage was still saturated with

sewage and sludge. Traces of toilet paper remained, and the area

still smelled of sewage. The hose marks remained also.

11. The Busy Bee truck had discharged approximately 3000

gallons of septage into the area.

12. The septage was soaking down through the sandy, porous

soil to the groundwater. Septage discharged like this is a

sanitary nuisance dangerous to human and animal life. It exposes

animals and humans to pathogenic viruses.

13. Eye witness testimony and photographs clearly and

convincingly establish the prese nce of septage in the area

alongside Jacaranda Boulevard. The same is true of the marks

showing hoses had been run from the edge of the road to the area

where the truck discharged the septage.

14. The fact that a Busy Bee truck discharged septage onto

t he ground beside Jacaranda Boulevard the night of June 15, 2012,

is also established by clear and convincing evidence.

15. The evidence includes the very credible testimony of

John Hendrick. The testimony of Laurie Hendrick corroborates his

testimony. So , to o, d id photographs of the area where the

septage was dumped and photographs of Busy Bee trucks.

16. On June 15, 2012, Mr. and Ms. Hendrick were taking an

evening drive in the area, which is close to their home, as was

their custom. They both saw the truck when they first passed it.

At that time , the truck was turning around on a side street.

17. Mr. Hendrick was concerned when he saw the truck in a

lightly populated residential area surrounded by wetlands. For

this reason he drove past it again a t the end of their drive to

observe what the truck was doing and identify the name on the

company ' s truck.

18. Mr. Hendrick focused on identifying the truck by

reading the name painted on it. The name Busy Bee was

prominently displayed on the truck.

1 9. Mr. Hendrick ' s testimony that Busy Bee was the name on

the truck is credible, clear, and convincing for a number of

reasons. He was paying close attention and concentrating on the

name on the truck. Mr. Hendrick took the time needed to make

sure he re ad the name. He slowed to 25 miles per hour to make

sure that he could read the name.

20. Although it was an evening, it was a summer evening,

and there was enough light , especially with the aid of the car

headlights. Mr. Hendrick ' s memory is clear and is his own. No

one suggested the name Busy Bee to him. His emails the next day ,

trying to draw the authorities ' attention to the septage

discharge , identified the truck as a Busy Bee truck.

21. Mr. Hendrick is also a trained observer. Before

retiring , he worked 18 - to - 20 years in an emergency room where

careful observation is an important skill.

22. There is no indication that Mr. Hendrick ' s eyesight is

impaired. Mr. Casanova argues that Mr. Hendrick ' s eyesight is

deficient , because Mr. Hendrick had not had his eyes tested in

three years. No evidence establishes that a person whose

eyesight has not been tested in three years presumptively has

impaired vision.

23. Mr. Casanova also argues that because Mr. Hendrick

expressed some uncertainty about t he color scheme of the truck,

his testimony about the name on the truck should be discounted.

The argument is not persuasive. Mr. Hendrick focused on the name

on the truck to make sure he could identify it. His memory of

that focused observation is pers uasive.

24. Mr. Casanova ' s efforts to create the impression that

Mr. Hendrick may have observed a truck of a septic tank

contractor in Collier County with the name Beebe Septic were not

persuasive for a number of reasons. The reasons include th e fact

that the Beebe name is not painted on the trucks and the fact

that nothing in the name Beebe Septic resembles the " Busy " in

Busy Bee. Mr. Casanova ' s other efforts to undermine the

testimony of Mr. Hendrick are equally unpersuasive.

25. Clear and convincing ev idence proved that on the night

of June 15, 2012, individuals operating a Busy Bee truck pumped

untreated septage onto the ground adjacent to Jacaranda Boulevard

in Cape Coral, Florida.

26. The odor, the presence of toilet paper, the physical

characteristi cs of the sludge, and the fact that the Busy Bee

trucks were designed and permitted for transporting untreated

septage establishes by clear and convincing evidence that the

septage was untreated.

27. The Department of Health has taken disciplinary action

a gainst Carlos Casanova three times in matters resolved by

settlement agreements. The agreements expressly provide for

consideration of them in subsequent disciplinary actions.

28. On February 13, 2012, the Department entered Final

Order No. DOH - 12 - 0251 - FOI - HST against Carlos Casanova imposing an

administrative fine in the amount of $1,000.00 to resolve charges

filed October 6 , 2011. On February 13, 2012, the Department

entered Final Order No. DOH - 12 - 0252 - FOI - HST against Carlos

Casanova imposing an admin istrative fine in the amount of

$1,000.00 to resolve charges filed on November 18, 2011.

Finally, on February 13, 2012, the Department entered Final Order

No. DOH - 12 - 0253 - FOI - HST against Carlos Casanova imposing a fine

in the amount of $1,500 to resolve c harges filed September 14,

2011.

CONCLUSIONS OF LAW

29. Sections 120.569 and 120.57(1), Florida Statutes

(2012) , 1/ grant the Division jurisdiction over the subject matter

of this proceeding and of the parties.

30. The Department seeks to impose penalties u pon

Mr. Casanova and Busy Bee. Therefore , the statutes and rules the

Department charges were violated must be strictly construed, with

ambiguities resolved in favor of Mr. Casanova and Busy Bee.

Lester v. Dep ' t of Prof ' l & Occ upational Reg. , 348 So. 2d 9 23,

925 (Fla. 1st DCA 1977). The Department must prove the charges

specifically alleged in the A dministrative C omplaint by clear and

convincing evidence. Ferris v. Turlington , 510 So. 2d 292, 294

(Fla. 1987); McKinney v. Castor , 667 So. 2d 387, 388 (Fla. 1st

DCA 1995); Kinney v. Dep ' t of State , 501 So. 2d 129, 133 (Fla.

5th DCA 1987).

31. Clear and convincing evidence is an " intermediate

standard, " " requir[ing] more proof than a ' preponderance of the

evidence ' but less than ' beyond and to the exclusion o f a

reasonable doubt. '" In re Graziano , 696 So. 2d 744, 753 (Fla.

1997). For proof to be considered ,

" c lear and convincing " . . . the evidence

must be found to be credible; the facts to

which the witnesses testify must be

distinctly remembered; the test imony must be

precise and explicit and the witnesses must

be lacking in confusion as to the facts in

issue. The evidence 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 tru th of the

allegations sought to be established.

In re Davey , 645 So. 2d 398, 404 (Fla. 1994) ( quoting, with

approval, from Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th

DCA 1983 ) ); see also In re Adoption of Baby E. A. W. , 658 So. 2d

961, 967 (Fla. 1995) ( " The evidence [in order to be clear and

convincing] must be sufficient to convince the trier of fact

without hesitancy. " ). " Although this standard of proof may be

met where the evidence is in conflict . . . it seems to preclude

evidence that is amb iguous. " Westinghouse Elec . Corp. v. Shuler

Bros., Inc. , 590 So. 2d 986, 989 (Fla. 1st DCA 1991).

Violations Charged

32. Chapter 489, Part III, Florida Statutes, establishes

regulation of septic tank contracting. Section 489.556 permits

suspension or rev ocation of a certificate of registration upon a

showing that the registrant has violated a provision of

c hapter 489, p art III (regulating septic tank contracting),

violated any lawful order or rule of the Department, or been

found guilty of gross misconduc t in the profession.

33. The Department charges Mr. Casanova and Busy Bee with

three violations. The first is dumping untreated septage onto

the ground , instead of transporting it to an approved treatment

facility in violation of r ules 64E - 6.010(5) and ( 7). Rule

64E - 6.010(5) requires a registered septic contractor to transport

untreated septage or food establishment sludge to an approved

treatment facility in such a manner as to preclude leakage,

spillage, or the creation of a sanitary nuisance. The cle ar and

convincing evidence proved that Mr. Casanova and Busy Bee

disposed of untreated septage in the wooded area beside Jacaranda

Boulevard. It further established that dumping the untreated

septage in that area created a sanitary nuisance.

34. Rule 64E - 6.010(7) prohibits application of untreated

domestic septage or food establishment sludge to the land. It

further provides that criteria for approved stabilization methods

and the subsequent land application of domestic septage or other

domestic onsite w astewater sludges shall be in accordance with

the specified criteria for land application and disposal of

domestic septage. The only relevant prohibition is the

prohibition against disposal on land. There is no claim or

evidence that the ground where the Busy Bee truck discharged its

septage was an acceptable location for disposal of treated or

untreated septage. The clear and convincing evidence proved this

violation also.

35. The second charge is committing gross negligence, being

incompetent, and/or committing misconduct by dumping untreated

septage onto the ground in violation of r ule 64E - 6.022(1)( n) .

The clear and convincing evidence proved that the contents of the

Busy Bee truck were dumped on the ground. Clear and convincing

evidence proves thi s charge.

36. The third charge is creating a sanitary nuisance,

exposing human and animal life to untreated human waste , and

endangering the public ' s health and safety by dumping untreated

septage onto the ground in violation of r ule 64E - 6.022(1)(q).

Sect ion 386.041(1)(a) states:

(1) The following conditions existing,

permitted, maintained, kept, or caused by

any individual, municipal organization, or

corporation, governmental or private, shall

constitute prima facie evidence of

maintaining a nuisance inj urious to health:

(a) Untreated or improperly treated human

waste, garbage, offal, dead 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 h uman or animal life.

37. The strength and longevity of the sewage smell, the

physical characteristics of the sludge, and the presence of

toilet paper prove that the septage dumped from the Busy Bee

truck was untreated. The clear and convincing evidence a lso

establishes that Mr. Casanova and Busy Bee created a sanitary

nuisance as defined in r ule 64E - 6.022(1)(q) and s ection

386.041(1)(a).

38. The Department has adopted Standards of Practice and

Disciplinary Guidelines in r ule 64E - 6.022.

3 9 . The provisi ons relevant here are:

Fla. Admin. Code R. 64E - 6.022(1)(n)

Failure to properly treat or properly

dispose of septage, holding tank waste,

portable restroom waste, or food service

sludge. First violation, letter of warning

or fine up to $500 per violation of Rule

64E - 6.010, F.A.C.; repeat violation,

revocation.

Fla. Admin. Code R. 64E - 6.022(1)(q)

Creation or maintenance of a sanitary

nuisance as defined by Section 386.041, F.S.

First violation, letter of warning or fine

up to $500; repeat violation, 90 d ay

suspension or revocation.

Fla. Admin. Code R. 64E - 6.022(2)

Circumstances which shall be considered for

the purposes of mitigation or aggravation of

penalty shall include the following:

(a) Monetary or other damage to the

registrant ' s customer, in any way associated

with the violation, which damage the

registrant has not relieved, as of the time

the penalty is to be assessed.

(b) Actual job - site violations of this rule

or conditions exhibiting gross negligence,

incompetence or misconduct by the

contr actor, which have not been corrected as

of the time the penalty is being assessed.

(c) The 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 contracto r.

(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

contractor ' s livelihood.

(j) Any efforts at rehabilitation.

(k) Any other mitigating or aggravating

circumstances.

Fla. Admin. Code R. 64E - 6.022(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 penal ty given

in the above list for repeat violations is

intended to apply only to situations where

the repeat 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 fi rst

violation, the penalty set out above will

generally be increased over what is shown

for repeat violations.

40 . The violations proven in this case are repeat

violations subjecting Mr. Casanova and Busy Bee to the stiffest

penalties. The violation of f ailure to properly dispose of

septage is a repeat violation requiring revocation under r ule

64E - 6.022(1)(n). The violation of creating or maintaining a

sanitary nuisance is a repeat violation of a specific subsection

requiring at least a 90 - day suspension . Fla. Admin. Code

R. 64E - 6.022(1)(q).

4 1 . All three of Mr. Casanova ' s previous violations

occurred in 2011. One, the violation in Final Order

No. DOH - 12 - 0253 - FOI - HST was very similar to the violations here.

In that case , Busy Bee was sanctioned for pum p ing untreated human

waste into a grocery store ' s grease interceptor.

4 2 . The history and timing of Mr. Casanova ' s offenses

demonstrate that sanctions do not modify his behavior.

Mr. Casanova and Busy Bee committed the offenses in this case a

scant four months after entry of three final orders imposing a

total of $3,500 in fines. Given the opportunity for

rehabilitation by the sanctions in the earlier offenses,

Mr. Casanova and Busy Bee did not change.

4 3 . The Department seeks revocation of Mr. Casanova ' s

septic contractor registration and his septage collection and

disposal permit. The offenses proven in this case are severe and

create a danger to the public. The sanction of revocation will

terminate Mr. Casanova ' s ability to make a living in the sewa ge

treatment and transportation profession. It also, however, will

terminate his ability to repeatedly violate governing rules and

create damages to the public health. Revocation is the required

sanction.

4 4 . The Department seeks revocation of Busy Bee ' s

collection and disposal permits. The offenses proven in this

case are severe and create a danger to the public. The sanction

of revocation will terminate Busy Bee ' s ability to engage in the

business of septage collection and disposal. It also, howeve r,

will terminate the company ' s ability to repeatedly violate

governing rules and create damages to the public health.

Revocation is the required sanction.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

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

final order revoking the septage collection and disposal permits

of Petitioners, Carlos M. Casanova and Busy Bee Septic, Inc., and

revoking the septic tank contractor registration of Carlos M.

Casanova.

DONE AND ENTERE D this 13th day of February , 2013 , in

Tallahassee, Leon County, Florida.

S

JOHN D. C. NEWTON, II

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 13th day of February , 2013 .

ENDNOTE

1/ All statutory references are to Florida Statutes (20 12 ),

unless other wise noted.

COPIES FURNISHED:

John H. Armstrong, M.D., F.A.C.S.

State Surgeon General

Department of Health

Bin A00

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 1701

Jennifer A. Tschetter, General Counsel

Department of Health

Bin A02

4052 Bald Cypr ess Way

Tallahassee, Florida 32399 - 1701

Erin Levingston, Agency Clerk

Department of Health

Bin A02

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 1703

H. Richard Bisbee, Esquire

Law Office of H. Richard Bisbee, P.A.

Suite 206

1882 Capital Circle Nort heast

Tallahassee, Florida 32308 - 4568

Denise Duque, Esquire

Department of Health

Room 206

2295 Victoria Avenue

Fort Myers, Florida 33901 - 3866

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.