13-000462 Department Of Health vs. Virgil Cardin, D/B/A Virgil Cardin Septic Tank Service Status: Closed Recommended Order on Monday, May 6, 2013.

Summary: Respondent performed work that required an inspection and permit without first obtaining authority to repair the septic system. Repeat offense warrants suspension and fine.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH , )

)

Petitioner , )

)

vs. ) Case No. 13 - 0462

)

VIRGIL CARDIN, d/b/a VIRGIL )

CARDIN SEPTIC TANK SERVICE , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice this case was heard by video

teleconference at sites in Tallahassee and Lakeland, Florida, on

March 21, 2013, before J. D. Parrish, an Administrative Law Judge

with the Division of Administrative Hearings (DOAH).

APP EARANCES

For Petitioner: Shawee Smith, Esquire

Roland Reis, Esquire

Polk County Health Department

1290 Golfview Avenue, Fourth Floor

Bartow, Florida 33830 - 6740

For Respondent: Tony C. Dodds, Esquire

Law Office of Tony C. Do dds

904 South Missouri Avenue

Lakeland, Florida 33803 - 1034

STATEMENT OF THE ISSUE S

Whether Respondent, Virgil Cardin, d/b/a Virgil Cardin

Septic Tank Service (Respondent or Cardin), committed the

violations alleged in the Administrative Compl aint for Imposition

of Administrative Fines and Revocation of Septic Tank Contractor

License and Business Authorization , dated December 28, 2012, and,

if so, what penalty should be imposed.

PRELIMINARY STATEMENT

The Florida Department of Health (Petitioner ), through the

Polk County Health Department , filed an Administrative Complaint

against Respondent that alleged violations of Florida

Administrative Code Chapter 64E - 6. More specifically, Petitioner

claimed : Respondent had initiated work on a septic syst em

without first obtaining a permit ; had failed to call for pre - work

inspections ; had practiced fraud or deceit ; had committed

misconduct which caused no monetary or other harm to a customer ;

and , because he has been found in violation of these provisions

in the past, should have his license or authorization revoked.

Respondent timely contested the proposed action and requested a

hearing on the disputed issues of fact.

The case was forwarded to DOAH for formal proceedings on

February 6, 2013. Thereafter , the case was scheduled for hearing

in accordance with the Joint Response to Initial Order.

At the hearing , Petitioner presented testimony from Kevin

King and Bart Harriss. Petitioner ' s Exhibits 1 through 9 were

admitted into evidence. Respondent testifie d in his own behalf

and presented testimony from Tom and Judy Digan ( the Digans) .

A transcript of the proceedings was not ordered. The

parties were granted ten days within which to file their proposed

recommended orders. Both parties timely filed propos ed orders

that have been fully considered in the preparation of this

Recommended O rder.

FINDING S OF FACT

The Parties

1. Petitioner is the state agency charged with the

responsibility of administering the Standards for Onsite Sewage

Treatment and Disposal Systems (SOSTDS). The installation,

repair, and/or alteration of any septic tank system fall within

the purview of Petitioner's authority. Public health concerns

mandate that all septic tank systems be operated according to

governing laws and rules.

2. Respondent is a resident of the State of Florida and is

registered by Petitioner to provide septic tank contracting

services within the state. Respondent's registration number is

SR0890865.

3. Respondent owns and operates Virgil Cardin Septic Tank

Servic e located in Lakeland, Florida, and the company is

authorized to provide septic tank contracting services. The

company's authorization number is SE093690.

4. Septic tank contracting services are governed by SOSTDS.

The Controversy

5. It is undisputed that a permit must be obtained prior to

performing repairs to a septic tank system. In Polk County

(where all actions complained of occurred) , a septic tank service

company is required to apply for a permit before work is

performed, obtain an inspection by appropriate authorities before

beginning work, and complete all work in accordance with

designated standards.

6. A septic tank pump - out does not require a permit. Any

work that would involve the exposure of the drain fields and/or

the refitting of p ortions of the septic system would require a

permit.

7. The controversy in this case stems from Respondent's

failure to obtain a permit before beginning repairs to a septic

tank system located at 4931 Rolling Meadows Drive, Lakeland,

Florida. It is undis puted that Respondent did not, in advance of

starting work at the home, obtain a permit.

The Arguments

8. The Digan s own a home located at 4931 Rolling Meadows

Drive, Lakeland, Florida. For several years , the Digans have

experienced problems with their s eptic tank system to the point

that waste from the septic system has backed up into their home.

9. Previously , Respondent addressed the Digans' septic tank

system problems by pumping the waste from the tank , thereby

eliminating pressure on the overwroug ht system. On or about

August 24, 2012, Respondent went to the Digans' home and pumped

out the septic tank. A permit for the work done that date was

not required.

10. Given the history of the problems with the Digans'

system, it became apparent to the o wners and Respondent that

comprehensive repairs to the system were necessary. As there was

no way to predict when another pump - out might be required , it was

not surprising that approximately one week later Respondent

returned to the Digans' property for a dditional work.

11. On that date, September 1, 2012, Respondent could not

pump out the Digans' tank , because his truck was already full.

Instead, Respondent took a backhoe to the Digans' property and

began to dig trenches for the drain field. Responde nt's employee

began to construct a septic drain line header pipe with drain

field chamber end plates attached. Respondent exposed the

Digans' septic system as if he were going to make repairs to the

system.

12. When confronted by two environmental superv isors who

observed Respondent's actions, Respondent readily admitted he did

not have a permit for the work. At first , Respondent stated that

the homeowners could not afford permits. Later , Respondent

maintained that the work he performed on September 1, 2012 , did

not require a permit.

13. Petitioner maintains that Respondent went to the

Digans' home on September 1, 2012, to make repairs to the septic

tank system without prior inspection or a required permit.

The Analysis

14. Prior to September 1, 2012 , Respondent knew or should

have known that the Digans' septic tank system needed extensive

repairs. Respondent had pumped out the tank several times and

should have known that the system was not functioning as

intended.

15. Prior to September 1, 2012, R espondent knew or should

have known that repairs to any septic tank system require an

inspection and permit.

16. On September 4, 2012, after being caught the prior

Saturday on the Digans' property, Respondent applied for a permit

for the repairs to the Di gans' septic tank system.

17. On September 5, 2012, a repair permit was issued for

the Digans' property.

18. On September 7, 2012, the repairs to the Digans' system

were inspected and approved.

19. There was no emergency on September 1, 2012, that

neces sitated repairs to the Digans' septic tank system on that

date. Pumping out the Digans' tank on that date would have

addressed any immediate concern.

20. On - site inspections before septic tank systems are

repaired are critical to public health because they assure that

groundwater contamination is avoided, that the existing tank is

sound and will function as intended, and that setbacks to other

properties, wells, or systems are adequate.

21. Respondent knew or should have known that performing

any wor k before an inspection negates the safeguards to public

health concerns.

22. Respondent knew or should have known that the materials

needed to adequately repair the Digans' septic tank system

exceeded the chambers he took to the site on September 1, 2012.

23. Digging up the Digans' system on September 1, 2012,

created a sanitary nuisance.

Respondent ' s History

24. In the event a violation is found in this case,

Respondent's disciplinary history would be relevant in

considering what penalty, if any, shou ld be imposed. To that end

the following findings are made:

A. Respondent has previously been found in violation of

failing to call for a required inspection; and

B. Respondent has previously been found in violation of

practicing fraud or deceit, making misleading or untrue

misrepresentations, or misconduct that causes no monetary harm to

a customer.

CONCLUSIONS OF LAW

25 . DOAH has jurisdiction over the parties to and the

subject matter of these proceedings. § 120.57(1 ) , Fla. Stat.

(2012 ).

26. In th is matter, Petitioner bears the burden of proof to

establish that Respondent engaged in the conduct complai ned of in

the Administrative Complaint. To that end, Petitioner must

establish by clear and con vincing evidence the allegations

against Respondent. See Dep ' t of Banking & Fin . , Div . of Sec . &

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

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

27 . Clear and convincing evidence " requires more proof than

a ' preponderance of the evidenc e , ' but less than ' beyond and to

the exclusion of a reasonable doubt. '" In re Graziano , 696

So. 2d 744, 753 (Fla. 1997). Evidence that is credible, denoted

by precise facts and information that a witness distinctly

remembers , is sufficient to support the burden of clear and

convincing evidence. See In re Davey , 645 So. 2d 398 (Fla.

1994) , and Slomowitz v. Walker , 429 So. 2d 797 (Fla. 4th DCA

1983).

28. Rule 64E - 6.022 provides in part:

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 contracted and

which has been performed by them or under

their supervision is carried out in

conformance with the requirements of all

applicable Flori da 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, abse nt aggravating or

mitigating circumstances and subject to

other provisions 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 permi t

is issued after construction is started but

prior to completion 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 wo rk 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

$1000; repeat violation, r evocation.

* * *

(d) Failure to call for required

inspections. First violation, letter of

warning or fine up to $500; repeat

violation, letter of warning or fine up to

$500 and 90 day suspension or revocation.

* * *

(l) Gross negligence, inc ompetence, 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) Ci rcumstances 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 h as 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

contractor, which have not been corrected as

of the time the penalty i s 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 contractor.

29. Section 489.556, Florida Statute s (2012) , provides:

Susp ension or revocation of registration. -- A

certificate of registration may be suspended

or revoked upon a showing that the

registrant has:

(1) Violated any provision of this part.

(2 ) Violated any lawful order or rule

rendered or adopted by the departme nt.

(3 ) Obtained his or her registration or any

other order, ruling, or authorization by

means of fraud, misrepresentation, or

concealment of material facts.

(4 ) Been found guilty of gross misconduct

in the pursuit of his or her profession.

30. Secti on 381.0065, Florida Statutes (2012) , provides, in

part:

(1) LEGISLATIVE INTENT. --

(a ) It is the intent of the Legislature

that proper management of onsite sewage

treatment and disposal systems is paramount

to the health, safety, and welfare of the

pub lic.

(b ) It is the intent of the Legislature

that where a publicly owned or investor -

owned sewerage system is not available, the

department shall issue permits for the

construction, installation, modification,

abandonment, or repair of onsite sewage

trea tment and disposal systems under

conditions as described in this section and

rules adopted under this section. It is

further the intent of the Legislature that

the installation and use of onsite sewage

treatment and disposal systems not adversely

affect t he public health or significantly

degrade the groundwater or surface water.

* * *

(4) PERMITS; INSTALLATION; AND CONDITIONS. --

A person may not construct, repair, modify,

abandon, or operate an onsite sewage

treatment and disposal system without fir st

obtaining a permit approved by the

department . . . .

31. Petitioner has established by clear and convincing

evidence that Respondent violated provisions of law as alleged in

the Administrative Complaint. Moreover, Petitioner has

established that this Respondent is a repeat offender.

Petitioner has established that Respondent initiated work without

first applying for a permit and calling for an inspection as

required by law. Second, Petitioner has proved that Respondent

misrepresented the circumstanc es of the repairs to be made for

the Digans. Under any circumstance, repair to the Digans' septic

tank system required a permit, required inspections before and

after the work was performed, and required that appropriate

materials be used to address the f ailing septic system. It is

concluded that the work performed by Respondent on September 1,

2012, required a permit. Respondent's self - serving testimony

that he did not intend to make repairs on September 1, 2012, has

not been deemed credible. The drain age fields were being

excavated when Respondent was observed by authorities. The

outlet pipe and other connections were in the stage of being

assembled. Respondent may meant well trying to save the

homeowners a costly repair with added permit fees , but t hat is

unacceptable as a matter of law. Moreover, this Respondent has

been disciplined on at least two prior occasions for violations

of the rules governing septic tank services.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Respondent's authorizations to

perform septic tank services be suspended for a period not less

than 90 days. Additionally, it is RECOMMENDED that Respondent be

required to pay an administrative fine in an amount not less than

$2,000.00.

DONE AND ENTERED this 6th day of May , 2013 , in Tallahassee,

Leon County, Florida.

S

J. D. PARRISH

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahas see, 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 6th day of May , 2013 .

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 Cypress Way

Tallahassee, Florida 32399 - 1701

Althea Gaines, Agency Clerk

Department of Heal th

Bin A02

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 1703

Tony C. Dodds, Esquire

Law Office of Tony C. Dodds

904 South Missouri Avenue

Lakeland, Florida 33803 - 1034

Roland Reis, Esquire

Polk County Health Department

1290 Golfview Avenue, Fourth F loor

Bartow, Florida 33830 - 6740

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 agen cy that

will issue the Final Order in this case.