15-000664 Department Of Health In Hernando County vs. Anthony Crescenzo And Johns By Johns Ii, Inc. Status: Closed Recommended Order on Thursday, May 21, 2015.

Summary: The Department did not establish by clear and convincing evidence that Respondents committed the violations alleged in the Administrative Complaint.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH

IN HERNANDO COUNTY,

Petitioner,

vs. Case No. 15 - 0664

ANTHONY CRESCENZO AND

JOHNS BY JOHN II, INC.,

Respondent.

_______________________________/

RECOMMENDE D ORDER

On April 24, 2015, Administrative Law Judge Lisa Shearer

Nelson conducted an evidentiary hearing pursuant to section

120.57(1), Florida Statutes (2014), in Brooksville, Florida.

APPEARANCES

For Petitioner: Roland Reis, Esquire

Florida Depar tment of Health

1290 Golfview Avenue, Fourth Floor

Bartow, Florida 33830

For Respondent: Samuel Travis Lea, Esquire

Jeffry Cario, P.A.

12435 Cortez Boulevard, Suite 201

Brooksville, Florida 34613

STATEMENT OF THE ISSUE

The iss ue to be determined is whether Respondent s, Anthony

Crescenzo and Johns by John II, Inc. ( collectively, Respondents),

violated Florida Administrative Code Rule 64E - 6.022(1)(g), (k),

(l)2 . , and (p), and if so, what penalty should be imposed.

PRELIMINARY STA TEMENT

On January 5, 2015, Petitioner, Department of Health in

Hernando County (the Department or DOH) , filed an Administrative

Complaint for Imposi tion of Administrative Fines against

Respondents, charging them with violating rule 64E - 6.022(1)(g),

(k), (l )2 . , and (p), with respect to repair work performed at the

home of Winston and Dianne Wescott. On February 2, 2015,

Respondents executed an Answer to Administrative Complaint and

Request for Hearing, in which they disputed the allegations in

the Administr ative Complaint and requested a hearing pursuant to

section 120.57(1). The case was transmitted to the Division of

Administrative Hearings on February 10, 2015, for the assignment

of an administrative law judge.

The case was noticed for hearing to commenc e on April 24,

2015, and proceeded as scheduled. Petitioner presented the

testimony of Winston Wescott, Dianne Wescott, Albert Gray, Steven

Kataro, and Bart Hari ss, and PetitionerÓs Exhibits A and C - K were

admitted into evidence. Respondents presented th e testimony of

Anthony Crescenzo and Jeremiah Blake . The proceedings were

recorded but no transcript was ordered. Accordingly, pursuant to

Florida Administrative Code Rule 28 - 106.216(2), the parties we r e

accorded 10 days from the date of the hearing to s ubmit proposed

recommended orders. Both parties timely filed post - hearing

submissions, which were considered in the preparation of this

Recommended Order. All references are to the 2014 codification

of the Florida Statutes unless otherwise specified.

FI NDING S OF FACT

1. The Department is the state agency charge d with the

licensing and regulation of the standards for onsite sewage

treatment and disposal systems (OSTDS), pursuant to chapters 381

and 489, Florida Statutes, and Florida Administrative Code

C hapter 64E - 6.

2. Respondent Anthony Crescenzo is a resident of the State

of Florida and holds DOH registration number SR0061541, to

provide septic tank contracting services in Florida.

3. Mr. Crescenzo owns and operates Johns by John II, Inc.

(Johns by J ohn), a Florida corporation located at 6252 Commercial

Way, Weeki Wachee, Hernando County, Florida. Johns by John is

authorized by the Department to provide septic tank services

under Business Authorization number SA0041171.

4. Johns by John provides OST DS services pursuant to rules

adopted by the Department and under the license, registration,

and direction of Anthony Crescenzo .

5. Winston and Dianne Wescott reside at 2245 Ring Road in

Spring Hill, Florida, and have done so for approximately 19

years. Sometime in April 2014, Mr. Wescott noticed a depression

and some saturated soil in his y ard, near his septic tank.

Mr. Wescott was concerned because of prior sink hole activity.

After some telephone calls and an inspection by the insurance

adjuster, Mr. Winston called Johns by John. On or about

Saturday, June 7, 201 4 , a worker from Johns by John came to the

residence and pumped out the drainfield . At that time, waste was

coming out of the ground but was not backing up into the home.

After the pump - out was complete, Mr. Wescott showed the

technician the depressed area, and an exposed area that revealed

that the outlet pipe to the septic systemÓs distribution box

(D - box) was defective. The area had been exposed by either the

insurance adjuster or the homeowner before the technician

arrived. The technician telephoned Mr. Crescenzo , who advised

that he w ould come out the following Monday or Tuesday to inspect

the system and see what addition al repairs were necessary.

Mr. Wescott paid $205.72 for the pu mp - out of the drainfield .

6. On Wednesday, June 11, 2014, Mr. Crescenz o met with

Mr. Wescott to assess what repairs were necessary. When he

arrived, the homeowner had already dug around the area, leaving

the tank and the D - box at least partially exposed. Mr. Crescenz o

advised that a new drainfield might be necessary, but did not

state that it was absolutely required. He also explained that

the repair would require a permit, and that they would do what

they could to repair, as opposed to replace , the exi sting system.

Mr. Crescenzo also explained that because of the need to obtain a

permit, it might be four to six weeks before the job was

completed.

7. Mr. Crescenz o prepared , and Mr. Wescott signed , a Work

Order/Proposed Drainfield Estimate form. Under ÐJob

Description,Ñ the following handwritten notation was provided:

D - box collapsed down [illegible] point may

have to replace entire system $2,500 - $3,500 .

System will need to go in the front due to

site conditions 4 bedroom house deposit

required $1,000.

8. The preprinted text on the form provided the following

statements in bold - faced type:

* NOT RESPONSIBLE FOR SPRINKLERS , WIRES,

BROKEN PIPES, YARD, SOD OR DRIVEWAY DAMAGE

Deposits are non - refundable.

9. The form also provided for a 10 - year warra nty of any work

performed. Although the languag e of the form is not clear,

Mr. Crescenzo testified credibly that the warranty was applicable

to repairs of the existing system as well as to replacement of the

system. While the maximum the homeowner might have to pay is

clearly indicated on the form, the costs of a repair short of

replacement is not listed. Mr. Crescenzo testified that a $1,000

deposit is required for any job requiring a permit, as the permit

itself is $300, and that he told the homeowner that he would not

know the extent of the repair needed until he started the work.

10. Mr. Wescott signed the estimate. Despite the language

on the estimate that a new drainfield may be needed, Mr. Wescott

understood that his drainfield would be replaced . While he admits

signing it, he did not recall seeing the statement that deposits

are non - refundable, notwithstanding th at it is printed in bold

type . His understanding appears to be based, in part, on a

discussion between Mr. Wescott and Mr. Crescenzo about the

continued vitality of the D - box. Mr. Wescott understood

Mr. Crescenzo to say that the life of the septic system was

approximately 19 years (the age of his home), and that if the

drainfield was not replaced, the Wescotts would in all likelihood

b e calling him back in a matter of months to replace it because it

was nearing the end of its expected life - span. He also understood

Mr. Crescenzo to say that the D - box was obsolete and would not be

replaced when the drainfield was replaced.

11. Mr. Cre scenzo, on the other hand, testified that he

always maintained that they would try to repair the existing

drainfield but may have to replace it. In the event that the

system was replaced, D - boxes are no longer used and the existing

one would not be replac ed. Mr. Crescenzo denied stating that the

life of a drainfield is 19 years, stating that drainfields do not

have a standard life expectancy. 1/ Mr. Crescenzo also emphasized

that the work performed, whether a repair to the existing

drainfield or a replace ment, was subject to a 10 - year warranty,

thus making any statement that the company would just have to come

back in a few months nonsensical. Mr. CrescenzoÓs testimony is

credited.

12. Mr. Crescenzo applied for a permit on June 18, 2014 ,

which costs $30 0 . The permit application was to repair or replace

the distribution box, not to replace the drainfield , and noted

that the D - Box had collapsed. Mr. Crescenzo stated on the

application that it may be possible to fix the D - Box and remove

roots.

13. The permit was issued for OSTDS repair on June 20, 2014.

According to Stephen Kataro, an engineer for the septic tank

program for Hernando County who approved the application and

inspected the repair, the permit gave the option to replace the

drainfield if n ecessary, based upon what was found during the

repair. This approval is consistent with Department policy.

14. On approximately July 3, 2014, Jeremiah Blake, a

technician for Johns by John , went to the Wescott home to work on

the septic system. Mr. B lak e drove a Johns by John truck equipped

with the standard equipment to install a drainfield. When he

arrived at the home, the system was already uncovered. Mr. Blake

discussed the repairs with Mr. Wescott, stating that he could do

the drainfield or fix th e D - Box . He determined that replacement

of the outlet pipe leading to the D - Box addressed the problem, and

that there was no need to replace the drainfield , as all drains

were taking water . Mr. Blake co mpleted the repair and used

Mr. WescottÓs garden hos e with a jet - spray nozzle to spray inside

the D - Box and clean out the lines.

15. There is a n alternative repair method referred to as

ÐjettingÑ that requires a separate permit that Respondents did not

obtain. Jetting requires specialized equipment that Respondent s

do not own. The unrebutted testim ony of both Mr. Wescott and

Mr. Blake is that Mr. Blake used a simple garden hose to clear the

lines. He is familiar with what the Department refers to as

jetting, but has never operated jetting equipment. H e uses the

term ÐjettingÑ because it is an easier way to describe what he

does with a simple garden hose to clear the D - Box of sand.

16. When Mr. Blake replaced the pipe leading to the D - Box,

he broke sprinkler lines in the area. Sprinkler lines are ofte n,

if not always, damaged in OSTDS repairs .

17. Respondents had arranged the day before for a timed

inspection, for which they paid an additional fee. The purpose of

a timed inspection is to be able to complete the job and have it

inspected as soon as it is finished. Mr. Kataro came out to the

property at approximately 9:00 a.m. , inspected the work performed,

determined that it met permit requirements to restore function,

and approved it. 2 / Mr. Kataro left the site before Mr. Blake

covered the system, consistent with standard practice. While

Mr. Wescott was present when Mr. Kataro arrived to inspect the

work, there was no testimony to indicate Mr. Wes cott advised the

inspector that he was unhappy with the scope of work perfo r med.

18. Mr. Blake had a backhoe on the premises for use in

covering the area. He testified that he covered the system,

including the broken sprinkler pipes, and that he always does so

and then notifies the homeowner about the need to fix the

sprinkler pipes . Both Mr. Blake and Mr. Wescott testified that

Mr. Wescott asked Mr. Blake to remove some sod for him nearby, and

paid him cash for doing so. According to Mr. Blake, Mr. Wescott

seemed satisfied at this point. It seems inconceivable that

Mr. Wescott would be willing to pay additional funds for Mr. Blake

to remove sod if he had not covered the system he was supposed to

cover and if he was unhappy with the work (or lack of work)

performed , and yet not say anything to Mr. Blake about covering

the completed repair.

19. Mr. We scott expected that since the drainfield was not

replaced, he would receive some portion of the $1,000 he paid

b ack. Had he realized that the repair would cost that much, he

would have gotten estimates from other contractors. He viewed

replacing the drai nfield as preventative maintenance. Based on

this belief, a fter M r. Blake left the premises, Mr. Wescott called

Mr. Crescenzo and asked about a refund. He did not complain,

however, about the system not being covered. Mr. Crescenzo

informed him that the re would be no refund, as the work order

clearly indicates that deposits are non - refundable.

20 . The Wescotts called the Johns by John office to get an

itemized receipt for insurance purposes. There was some delay in

receiving a receipt, so they went to t he office to obtain it in

person. Initially, they were given a receipt stating that the D -

box had been replaced. When they questioned this and told the

person working in the office that the D - box had not been replaced,

she made some phone calls to verify the work performed. The

office worker prepared a new receipt while speaking to someone,

presumably Jeremiah Blake, on the phone. The new receipt stated,

Ðconnected tank to distribution box. Leveled D - Box to drainfield.

Jetted drainfield lines.Ñ The c hange in the description appears

to have occurred more because the person working in the office

misunderstood the scope of work performed, rather than any

nefarious intent to defraud. Further, the reference to jetting

was consistent with both Mr. Blake an d Mr. CrescenzoÓs shorthand

notation for cleaning the line with the garden hose, as opposed to

the alternative repair method requiring additional permitting.

2 1 . As noted in paragraph 16, the sprinkler lines were

broken during the repairs. Mr. Wescott re placed the broken pipes,

and placed bricks underneath them to hold them in place. He was

st ill unhappy about not having a new drainfield in place, and felt

that he had been defrauded. On August 4, 2014, Mr. Wescott filed

a complaint with Albert Gray, the Environmental Manager at the

Department. At the very end of his two - page letter, Mr. Wescott

stated that the broken irrigation pipes have been repaired and the

hole is still wide open with the tank cover exposed.

22 . The Department does not regulate the prices to be

charged for repairs or installation of new systems: that is

between the contrac tor and the homeowner. There is more i nvolved

to complete the job than the time that the workman is on the

premises actually performing the repair. For example, in addition

to the cost of the permit application, additional time is

necessary to perform a site evaluation and soil test. Whether or

not the drainfield must be replaced, the materials must be

available to install should it be necessary, as well as the

skilled workman and equipment (truck, backhoe, etc.). Further, i t

is clear that, had Respondents installed a new drainfield, the

cost would have been much higher than what the Wescotts actually

paid , not only to pay for the drainfield, but also to replace a

large section of sod and a larger portion of the sprinkler system .

23 . Regardless of whether a new drainfield is installed ,

contractors are required to cover the OSTDS when they work on it.

2 4 . As a result of the WescottÓs complaint, Inspector Kat aro

went back out to the Wescott home to inspect the site. He found

that the D - Box was lying open and exposed, with no earth covering

the system. He took pictures of the area, which were admitted

into evidence as PetitionerÓs Exhibits J and K.

2 5 . The p ictures show two exposed sprinkler pipes, supported

at one end by bricks. One picture shows a bucket positioned over

the distribution box, while the other shows the box sealed but not

covered .

2 6 . Mr. Kataro testified that the pictures look similar to

what he saw when he inspected the property after the repair was

completed in July 2014. However, he could not say whether the

sprinkler system pipes were broken before, or whether the bricks

supporting the pipes were there previously. The testimony is

cl ear that, after the job was inspected, Mr. Wescott made repairs

to the sprinkler system that would require the area to be

uncovered and Mr. Wescott acknowledged that he placed the bricks

under the sprinkler pipes . Mr. Kataro recalled that Mr. Blake had

a backhoe on the premises at the time of repair, but Mr. Kataro

left the site before the area would have been covered.

2 7 . There is credible testimony that Mr. Blake covered the

area and credible testimony that he did not. Other evidence

presented is mor e consistent with a finding that the area was

covered, at least minimally. The equipment for covering the area

was by all accounts on site, and Mr. Blake used that equipment to

remove sod for Mr. Wescott. It makes little sense for him to use

the equi pmen t to remove the sod but not use it for covering the

D - Box and surrounding area. Moreover, had Mr. Blake covered the

area, it would have to be uncovered to fix the sprinkler pipes.

The Department did not prove by clear and convincing evidence that

Mr. Bl ake, as an agent of Respondents, failed to cover the D - box.

2 8 . Respondent Crescenzo happened to be at the Department on

August 14, 2014, picking up permits when he learned of the

complaint from Mr. Wescott. He was very upset about the complaint

and imm ediately wrote a response while still at the Department .

In his response, he denied stating that the drain field would

definitely be replaced, and emphasized that by repairing the pipe

leading to the D - Box the homeowner saved a substantial amount of

money , including not only the cost of installing the drain field,

but the re - sodding of his yard and more substantial repair of his

sprinkler system. Although clearly unhappy about the complaint,

Respondent Crescenzo stated , ÐIf the homeowner wants the system

just replaced they should have said that at the time of the job.

Or we could still do it if they insist for the original agreed

price.Ñ Mr. Wescott has not elected to accept RespondentsÓ offer.

In his response, Crescenzo also referred to Ðjetting,Ñ but used it

in the same informal manner as Mr. Blake. His informal reference

did not change the unrebutted testimony regarding the scope of

work performed.

CONCLUSIONS OF LAW

29 . The Division of Administrative Hearings has

jurisdiction over the subject mat ter and the parties to thi s

action in accordance with s ections 120.569 and 120.57(1), Florida

Statutes.

3 0 . The Department has disciplinary jurisdiction over

septic tank contractors pursuant to the provisions of c hapters

381 and 489, part III, Florida S tatutes.

3 1 . As the entity seeking to impose discipline, the

Department bears the burden of proving the allegations in the

Administrative Complaint by clear and convincing evidence. De pÓt

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

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

3 2 . Clear and convincing evidence Ðrequires more proof than

a Òpreponderance of the evidenceÓ but less than Òbeyond and to

the exclusion of a reasonable doubt.ÓÑ In re Graziano , 696 So.

2d 744, 753 (Fla . 1997). As stated by the Florida Supreme Court:

Clear and convincing evidence requires 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 lacking in c onfusion as to the

facts in issue. The evidence must be of such

a 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.

In re Henson , 913 So. 2d 579, 590 (Fla. 2005)(quoting Slomowitz v.

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

standard of proof may be met where the evidence is in conflict, it

seems to preclude evidence that is ambiguous.Ñ Westinghouse

Elect. Corp. v. Shuler Bros. , 590 So. 2d 986, 989 (Fla. 1991).

3 3 . Section 381.0065 , Florida Statutes, provides the

Department the following regulatory authority :

(3) DUTIES AND POWERS OF THE DEPARTMENT OF

HEALTH. -- The department shall:

(a) Adopt rules to administer ss. 381.0065 -

381.0067, including definitions that are

consistent with the defi nitions in this

section,

* * *

(h) Conduct enforce ment activities,

including imposing fines, issuing citations,

suspensions, revocations, injunctions, and

emergency orders for violations of this

section, part I of chapter 386, or part III

of chapter 489 or for a violation of any rule

adopted under this se ction, part I of chapter

386, or part III of chapter 489.

* * *

(5) (b)1. The department may issue citations

that may contain an order of correction or an

order to pay a fine, or both, for violations

of ss. 381.0065 - 381.0067, part I of chapter

386, or pa rt III of chapter 489 or the rules

adopted by the department, when a violation

of these sections or rules is enforceable by

an administrative or civil remedy, or when a

violation of these sections or rules is a

misdemeanor of the second degree. A citation

issued under ss. 381.0065 - 381.0067, part I of

chapter 386, or part III of chapter 489

constitutes a notice of proposed agency

action.

2. A citation must be in writing and must

describe the particular nature of the

violation, including specific reference to

the provisions of law or rule allegedly

violated.

3. The fines imposed by a citation issued by

the department may not exceed $500 for each

violation. Each day the violation exists

constitutes a separate violation for which a

citation may be issued.

4. The department shall inform the

recipient, by written notice pursuant to ss.

120.569 and 120.57, of the right to an

administrative hearing to contest the

citation within 21 days after the date the

citation is received. The citation must

contain a con spicuous statement that if the

recipient fails to pay the fine within the

time allowed, or fails to appear to contest

the citation after having requested a

hearing, the recipient has waived the

recipient's right to contest the citation and

must pay an amou nt up to the maximum fine.

5. The department may reduce or waive the

fine imposed by the citation. In determining

whether to reduce or waive the fine, the

department must consider the gravity of the

violation, the person's attempts at

correcting the vio lation, and the person's

history of previous violations including

violations for which enforcement actions were

taken under ss. 381.0065 - 381.0067, part I of

chapter 386, part III of chapter 489, or

other provisions of law or rule.

* * *

8. This section provides an alternative

means of enforcing ss. 381.0065 - 381.0067,

part I of chapter 386, and part III of

chapter 489. This section does not prohibit

the department from enforcing ss. 381.0065 -

381.0067, part I of chapter 386, or part III

of chapter 489, o r its rules, by any other

means. However, the department must elect to

use only a single method of enforcement for

each violation.

3 4 . The Administrative Complaint in this case alleges that

the Respondents violated rule 64E - 6.022(1)(g), (k), (l)2., an d

(p). The pertinent portions of rule 64E - 6.022 provide as

follows:

(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 i s

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. Th e penalties listed shall be

used as guidelines in disciplinary cases, absent

aggravating or mitigating circumstances and

subject to other provisions of this section.

* * *

(g) Abandoning for 30 consecutive days, without

good cause, a project in which th e 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:

* * *

2. Causes monetary or other harm to a customer,

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 or revocation.

3 5 . The evidence is not clear and convincing that

Respondents abandoned the job for 30 consec utive days without

good cause , in violation of rule 64E - 6.022(1)(g) . The evidence

presented indicates that the work order was signed on June 11; a

permit application was filed on June 18; the permit was obtained

on June 20; and Respondents finished the re pair, which passed

inspectio n that same day, on July 3, 2014 . The evidence did not

demonstrate that Respondents promised to replace the drainfield,

but rather informed the homeowner that it might be required.

Respondents were not under an obligation to r eplace the

drainfield if it was not necessary.

36 . The evidence does not demonstrate by clear and

convincing evidence that Respondents committed fraud or deceit,

or made misleading or untrue representations in violation of rule

64E - 6.022(1)(k) . To prove this violation, the Department must

prove that Respondents acted with fraudulent intent. Morris v.

DepÓt of ProfÓl Reg. , 474 So. 841, 843 (Fla. 5th DCA 1985); see

also The Florida Bar v. Brown , 978 So. 2d 107, 111 (Fla. 2008).

Credible proof of intent to deceive is lacking here. The

estimate clearly states, consistent with Mr. CrescenzoÓs

testimony, that he advised the Wescotts that the drainfield might

need to be replaced, not that it was required. His application

for a repair permit is consistent wi th this representation. It

appears, from the totality of the evidence, that the situation

presented is more the result of a misunderstanding tha n a

deliberate attempt to misrepresent.

37 . Similarly , the confusion regarding the receipt for the

work perfor med appeared to be more the result of confusion by the

person working in the office about what work was completed, than

a deliberate attempt to deceive.

38 . Likewise, the evidence does not demonstrate gross

negligence, incompetence, or misconduct in vio lat ion of rule 64E -

6.022(1)(l )2. The Department has not demonstrated that any o f

the work performed was done negligently: in fact it passed

inspection. Respondents contracted to repair the septic system,

up to and including the replacement of the drainf ield if

necessary . It did not turn out to be necessary, which resulted

in both less work (and less profit) for the Respondents and less

cost for the homeowner. Moreover, once the Wescotts filed their

complaint, Respondents offered to install a drainfield at the

original quoted price, and the homeowners declined.

39 . Finally, the evidence did not indicate that Respondents

installed, modified, or repaired an OSTDS in violation of the

standards of chapter 64E - 6. As a preliminary matter, it would

have bee n helpful had the Administrative Complaint provided

notice of just what standards were in play. While the

DepartmentÓs Proposed Recommended Order discusses the provisions

of sections 386.01 and 386.041(1)(a) and (b) regarding the

definitions of Ðsanitary nuisance,Ñ those provisions are not

referenced in the Administrative Complaint. Further, while the

DepartmentÓs Proposed Recommended Order speaks in terms of

contaminated groundwater and its ability to be carried or spread

to nearby neighboring properties , wetlands, well sites, or other

home sites, no evidence was presented regarding these

possibilities. It is assumed, given the evidence presented and

the wording of the Administrative Complaint, that the alleged

failure is the failure to cover the system following the repair

in violation of rule 64E - 6.014(5)(f).

40 . This charge comes down to two people telling sharply

divergent stories regarding the same encounter. As noted in

paragraph 18, it makes no sense that Respondents would have

failed to cover th e D - box , given that they brought equipment to

the home for that purpose and Mr. Blake used that equipment to

perform additional work for the homeowner while he was there.

Given the heightened burden of proof required of the Department,

clear and convincin g evidence was not presented on this issue.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

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

Final Order dismissing the Administrative Complaint.

DONE AND ENTERED this 21 st day of May , 2015 , in Tallahassee,

Leon County, Florida.

S

LISA SHEARER NELSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(85 0) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 21st day of May , 2015 .

ENDNOTE S

1/ WescottÓs testimony was based on what he believed Respondent

told him, and Crescenzo cre dibly testified that there is no

standard life span for a drainfield. The Department presented no

testimony to establish whether there is a standard life span for

a drainfield, and if so, whether 19 years would be a reasonable

time.

2/ The Wescotts foun d it difficult to believe that a single

person could replace a drainfield alone in such a short time, and

that the arrangement for a timed inspection at 9:00 a.m.

indicated that Respondents never intended to replace the

drainfield. However, the unrebutted testimony is that Mr. Blake

usually worked alone, and preferred to do so. Further , Inspector

Kataro confirmed that Mr. Blake usually works alone and could

install a drainfield in an hour if it was an easy job. According

to Mr. Kataro, Ðhe hustles.Ñ

CO PIES FURNISHED:

Samuel Travis Lea, Esquire

Jeffrey P. Cario, P.A.

12435 Cortez Boulevard , Suite 201

Brooksville, Florida 34613

(eServed)

Roland Reis, Esquire

Department of Health

1290 Golfview Avenue , 4th Floor

Bartow, Florida 33830 - 6740

(eServed)

Sh annon Revels, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1703

(eServed)

Jennifer A. Tschetter, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

(eServed)

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

State Surgeon General

Department of Health

4052 Bald Cypress Way, Bin A00

Tallahassee, Florida 32399 - 1701

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions wit hin

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.