22-000074 Department Of Environmental Protection vs. Scott Thomson Status: Closed Recommended Order on Friday, August 5, 2022.

Summary: DEP proved Respondent improperly started repairs without a permit, failed to get a reinspection, finished repairs without final approval, and used spoil in drainfield, resulting in $1,750 in fines; DEP failed to prove Respondent was grossly negligent.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

D EPARTMENT OF E NVIRONMENTAL

P ROTECTION ,

Petitioner , Case No s . 22 - 0070

22 - 0074

vs. 22 - 1620

S COTT T HOMSON ,

Respondent .

/

R ECOMMENDED O RDER

Administrative Law Judge Andrew D. Manko of the Division of

Administrative Hearings ( Ñ DOAH Ò ) presided over the final hearing in these

consolidated cases, pursuant to sections 120 .569 and 120.57(1 ), Florida

Statutes (20 2 2 ) , on June 21, 2022, in Orlando, Florida .

A PPEARANCES

For Petitioner: Jay Patrick Reynolds, Esquire

John Ryen Morgan - Ring, Esquire

Department of Environmental Protection

Office of General Counsel

Douglas Bu ilding, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

For Respondent: S cott Thomson , p ro s e

Mathis and Sons Septic, LLC

4947 South Orange Avenue

Orlando, Florida 32806

S TATEMENT OF T HE I SSUE S

(1) Case No. 22 - 0070 Ï w hether Petitioner , Department of Environmental

Protection ( Ñ DEP Ò ) , may impose fine s against Respondent , Scott Thomson

(ÑRespondentÒ) , for violati ng Florida Administrative Code Rules 62 - 6.003(2),

62 - 6.015(6), and 6 2 - 6.022(1) (d) and (1) (p), as al leged in the Citation dated

May 3, 2021 ( Ñ Citation I Ò ) ; (2) Case No. 22 - 1620 Ï w hether DEP may impose

fine s against Respondent for violati ng rule 62 - 6.022(1)( l ), as alleged in the

Citation dated April 29, 2022 ( Ñ Citation II Ò ) ; and (3) Case No. 22 - 0074 Ï

wh ether DEP may impose fines against Respondent for viol ati ng

section 381.0065(4), Florida Statutes, and rules 6 2 - 6.003(1) and 62 -

6.022(1)(b)1 . , as alleged in the Administrative Complaint (ÑComplaintÒ) .

P RELIMINARY S TATEMENT

On May 3, 202 1 , the Florida Depa rtment of Health ( Ñ DOH Ò ) issued

Citation I , seeking to levy fines against Respondent for work performed on a

septic system at 7629 Arlene Avenue ( Ñ Arlene Avenue Ò ) . 1 Citation I alleged

that Respondent violated several rules by improperly repair ing a septic

system, us ing spoils material to replace a drainfield, fail ing to contact DOH

for a required inspection, and cover ing the drainfield without first obtaining

such inspection. On the same day, DOH issued an identical Citation for the

same alleged misconduct against Jeffrey Mathis ( Ñ Mathis Citation Ò ) , the

owner of Mathis and Sons for whom Respondent works. Respondent and

Mr. Mathis disputed the material allegations and timely requested an

administrative hearing.

1 As of July 1, 2021, DEP took over for DOH as the agency enforcing section 381.0065,

including imposing discipline for viol ations of that section, other provisions of chapter 381,

and any rules adopted thereunder. Ch. 2020 - 150, § 7, Laws of Fl a . In these consolidated

cases, DOH investigated the allegations, issued the citations and the Complaint, and sought

to impose fines aga inst Respondent; DEP is prosecuting these cases to enforce the requested

fines against Respondent. Although the rules cited in the citations and the Complaint are to

DOHÔs rule set ( Florida Administrative Code C hapter 64E - 6), those rules were transferred t o

DEPÔs rule set (chapter 62 - 6) in 2021 based on the statutory changes noted above; thus, DEP

now seeks to levy fines against Respondent based on violations of chapter 62 - 6. Even if

Respondent had argued that DEP cannot seek to levy fines under chapter 62 - 6 given that the

citations and the Complaint cited to provisions of chapter 64E (he did not), Respondent was

put on adequate notice of the factual allegations against him and the substance of the

specific violations on which DEP seeks to levy fines.

On June 1, 202 1 , DOH issued a Complaint seeking to levy fines against

Respondent and Mr. Mathis for work performed on a septic system at

2566 Conway Gardens Road ( Ñ Conway Gardens Road Ò ) . The Complaint

alleged that they both violated a statute and two rules by start ing the repair

of a septic system and c omplet ing it without a permit. 2 Respondent and

Mr. Mathis denied the allegations and requested an administrative hearing.

On January 7, 2022, DEP transmitted C itation I, the Mathis Citation, and

the Complaint to DOAH . DOAH assigned Case No. 22 - 0070 to Cit ation I ,

Case No. 22 - 0071 to t he Mathis Citation , and Case No. 22 - 0074 to t he

Complaint .

In the Response to Initial Order in case number 22 - 0070 and the Joint

Response to Initial Order in Case No. 22 - 0074 , DEP acknowledged that it

would be dismissing Cas e No. 22 - 0071 against Mr. Mathis and requested that

Case Nos. 22 - 0070 and 22 - 0074 against Respondent be consolidated for all

purposes. On January 18, 2022, DEP filed a Notice of Voluntary Dismissal

and Motion to Relinquish Jurisdiction in Case No. 22 - 0071 and a Notice of

Dropping a Party and Voluntary Dismissal as to Jeffrey N. Mathis in Case

No. 22 - 0074 . On January 19, 2022, the undersigned issued an Order Closing

File and Relinquishing Jurisdiction in Case No. 22 - 0071 and an Order

Dismissing Jeffrey N. Ma this and Amending Case Style in Case No. 22 - 0074 .

On the same date, the undersigned issued an Order consolidating Case Nos.

22 - 0070 and 22 - 0074 for all purposes.

On January 20, 202 2 , the undersigned issued a Notice of Hearing and

scheduled a live hearing in Orlando for March 16 and 17, 2022. On March 4,

2022, the parties filed an Agreed Motion for Continuance based on the need

2 At the hearing, DEP dropped the allegation about improperly completing the repair without

a permit. DEP now seeks to impose a $250 fine for the remaining violation.

for more time to conduct a site assessment. On March 7, 2022, the

undersigned granted the request and reset the h earing for May 4 a nd 5, 2022.

On April 20, 2022, DEP filed a Motion to Relinquish Jurisdiction as to

Case No. 22 - 0074. DEP argued that Respondent had admitted to the alleged

violations in the Complaint and that relinquishment was appropriate because

there no longer were an y disputed issues of fact. On April 26, 2022,

Respondent filed a r esponse in opposition based on several attached exhibits,

including several statutes and rules. On April 28, 2022, after holding a

telephonic motion hearing , the undersigned issued an Order Denying Motion

to Relinquish Jurisdiction as to Case No. 22 - 0074 . The undersigned found

that disputed issues of fact remained as to the propriety of the fine sought to

be levied by DEP , including consideration of aggravation and mitigation

factors as requi red by section 381.0061(2 ) .

On April 29, 2022, DOH issued Citation II , levying another fine against

Respondent for work performed at Arlene Avenue. Citation II alleged that

Respondent engaged in gross negligence, incompetence, or misconduct by

falsely cer tifying that the existing septic tank was free of observable defects

even though it defectively had two inlet pipes installed .

On April 29, 2022, DEP filed a Motion for Continuance of the final hearing

based on the issuance of Citation II. DEP acknowled ged that Respondent had

21 days to take corrective action and that, if he failed to do so, judicial

economy would be served by resolving Citation II at the final hearing with

the other two consolidated matters. Respondent agreed with a continuance in

Case No. 22 - 0070 but objected to a continuance in Case No. 22 - 0074 .

Agreeing with DEP that a continuance would serve the interests of judicial

economy and efficiency, the undersigned issued an Order Granting

Continuance and Rescheduling Hearing on May 2, 2022, which rescheduled

the final hearing for June 21, 2022.

On June 1, 2022, DEP transmitted Citation II to DOAH , which was

assigned Case No. 22 - 1620. On June 3, 2022, the undersigned held a pre -

hearing conference . Based on the agreement of the parties, the undersigned

issued a Second Order of Consolidation on June 6, 2022, which consolidated

Case Nos. 22 - 0070 , 22 - 0074 , and 22 - 1620 for all purposes and confirmed that

the final hearing remained as scheduled.

At t he final hearing , DEP presented the testimony of four witnesses:

(1) Lindsey Hochreiter , the owner of 7629 Arlene Avenue; (2) Alexis Negron ,

a sanitary nuisance investigation coordinator with DOH ; (3) Brendan Brock ,

an environmental specialist with DOH ; and (4) Bart Harriss , an

environmental manager w ith DOH . Respondent testified on his own behalf.

DEPÔs Corrected Exhibits 1 through 28 were admitted in evidence without

objection. Respondent Ô s Composite Exhibits 1 through 3 were admitted in

evidence over DEPÔs relevancy objections.

The two - volume Tran script of the hearing was filed on July 6, 2022. Prior

to the filing of the Transcript, Respondent filed his Proposed Recommended

Order ( Ñ PRO Ò ) on June 24, 2022. DEP timely filed its PRO on July 18, 2022 .

Both PROs were duly considered in preparing this Re commended Order.

For ease of reference, a ll citations are to the 2022 versions of the Florida

Statutes , which have not changed in any material way to the issues herein.

In making the findings below, the undersigned only considered hearsay

evidence that su pplemented or explained other evidence or would be

admissible over objection in civil actions. § 120.57(1)(c), Fla. Stat.

F INDINGS OF F ACT

1. DEP is the state agency charged with regulating onsite sewage

treatment and disposal systems , including enforcemen t activities against

septic tank contractors for violations of part I of chapter 38 1 and any rules

adopted thereunder . As part of this regulatory authority, DEP may issue

citations , enforce citations issued by other regulatory agencies, such as DOH

in Oran ge County, and impose fines against septic tank contractors.

2. Respondent is a registered septic tank contractor in Florida

(SR0161774) . 3 He serves as the qualifying contractor for Mathis and Sons

Septic , LLC ( Ñ Mathis and Sons Ò ) , which is a Florida - certif ied septic tank

contractor (SA0141851). Respondent is the vice president of employees,

licenses, and permits for Mathis and Sons . Respondent previously served as

the environmental manager for DOH in Orange County for 19 years.

3. In these consolidated case s, DEP seeks to impose administrative fines

against Respondent for alleged violations concerning repairs made at two

different properties Ð Conway Gardens Road and Arlene Avenue.

Conway Gardens Road

4. The Conway Gardens Road property is in the Rest Haven su bdivision in

Orange County . As originally platted in 1926 , the subdivision Ô s lots are 25

feet wide. Th e property contains a single - family house on one parcel that is

62.5 feet wide , consisting of Lot 1 (25 feet wide), Lot 2 (25 feet wide), and half

of Lot 3 (12.5 feet wide). The house sits on all three lots .

5. In or around August 2020, Respondent visited the property and

evaluated the existing septic system. At the time, the drainfield was located

behind the house on Lots 1 and 2 ; it was not within close proximity to the

property line as it was fairly centered behind the house .

3 Respondent was the registered contractor who signed the permit application to authorize

M athis and Sons to conduct the repair at issue . Thus, he had to ensur e that all contracted

work Ð performed by him or others under his supervision Ð complie d with the requirements of

Florida law . Fla. Admin. Code R. 62 - 6.022(1). Thus , Ñ Respondent Ò is used herei n to refer to

actions taken directly by him and by M athis and SonsÔ employees under his supervision.

6. On August 28, 2020 , at approximately 12:19 p.m., Respondent

submitted a permit application to DOH to repair the system and install a

new drainfield. The application was compl eted on Form 4015, as required . 4

Respondent attached a diagram to scale , replicated below, showing the lot

lines ( vertical dashes ) , the house, the location of the old drainfield (#2), and

the location of the new drainfield (#3) to be installed on Lots 2 an d 3 .

7. Two business days later, o n September 1, 2020, at about 4:30 p.m .,

DOH notified Respondent that a binding utility easement ( Ñ BUE Ò ) would be

required before a permit could be approved . A BUE is a notarized document

4 In April 2020, DOH served as the agency regulating septic systems and its rules required

the use of Form DH 4015. DEP now serves as the agency regulating such systems and its

rules require the use of Form DEP 4015. The forms are substantively identical and will be

referred to herein as ÑForm 4015.Ò

recorded in the official count y records that provide s notice to subsequent

owners that a septic system or part thereof is located on the property.

A lthough Lots 2 and 3 were owned by the same person, DOH required the

BUE because one of those lots could be sold to a different owner in t he future .

8. On September 2, 2020, Respondent emailed DOH an unsigned and

incomplete BUE . He indicated that it would be signed that day and would

take the comptroller three to five days to record. He requested that the

permit be issued and held for final system approval once the recorded BUE

was filed. DOH replied that day and confirmed that the permit could not be

issued until the BUE was received.

9. On September 10, 2020, Respondent emailed DOH to inform it that the

drainfield installation was schedule d for September 14, 202 0 , and that a BUE

would be recorded . H e requested that the permit be issued and held for final

system approval. DOH replied several minutes later to confirm again that the

system could not be installed without a permit.

10. On Septem ber 14, 2020, the installation of the new drainfield began

without a permit. This fact was confirmed by Mr. Brock, the DOH inspector

who visited the property around 12:00 p.m. He directed the workers to stop

because they could not be working without a perm it .

11. At some point around 1:00 p.m., Respondent physically brought a copy

of the recorded BUE to DOH . The BUE was signed, notarized, and filed in the

official records that same day . Respondent demanded issuance of the permit,

which DOH did not do immedi ately. Instead, at a round 3:00 p.m. , the

inspector went back to the property only to discover Ð contrary to the

directive to stop work immediately Ð that the drainfield installation was even

further along than when he had visited the property earlier that day.

12. On September 15, 2020, the next business day, DOH issued the

permit . Respondent conceded under oath that the repair work began before

the permit was issued and that doing so was a technical violation.

13. Notwithstanding Respondent Ô s concession, he justified h is decision to

start without a permit because he believed the system was a sanitary

nuisance and the property owner wanted it repaired . In his mind, he knew

the permit would be granted because the sole hold - up concerned the BUE,

which the owner of all three lots would unquestionably sign ; as such, the

violation did not adversely affect public health . Respondent also believed that

DOH was simply taking too long because a BUE should not have been

required and, regardless, it routinely issues permit s with a hold for final

approval pending receipt of a BUE.

14. Respondent is correct that the violation neither result ed in monetary

or other harm to the customer nor did it adversely affect or endanger public

health . Indeed, this was not a situation where the permit was withheld

because the design of the system was faulty or there was some other issue

that could affect public health, which certainly would be a far more severe

offense. Respondent also began the work because he believed that the owner Ô s

inab ility to use the system served as a nuisance.

15. That said, the weight of the credible evidence established that

Respondent started the repair without a permit and knowingly decided to

violat e Florida law by doing so . Although he may have believed he was doing

the right thing, he knew Ð especially given his 19 - year stint at DOH and his

extensive experience in the private sector since leaving DOH Ð that the law

did not authorize him to unilaterally decide that he could start the repair

without a permit. Respon dent also acknowledged under oath that DOH had

the authority to wait to issue the permit pending the recorded BUE. And,

although he testified that DOH Ô s practice is to issue permits with a hold for

final approval , the weight of the credible evidence confir med that DOH only

issues conditional approvals where the septic system is contained entirely

within one lot and a BUE is only precautionary because the system is within

close proximity to an adjacent lot. That exception did not apply here because

the new d rainfield was unquestionably on more than one lot.

Arlene Avenue Ï Citation I

16. The Arlene Avenue residential property is located in Orlando and

utilizes a septic tank system and drainfield. Ms. Hochreiter , the property

owner, had issues with the septic system when she purchased the property

and contacted Mathis and Sons to diagnose the issue.

17. On March 30, 2020, Ms. Hochreiter hired Mathis and Sons to install a

new drainfield for $5,117.00. The contract did not include pricing for sand or

clean fi ll for the drainfield , as those w ere to - be - decided.

18. On April 7, 2020, Respondent completed the required application on

Form 4015 for a repair permit to install the new drainfield. Form 4015 is

comprised of several individuals forms, includ ing a site e valuation and

system specifications form and an existing system and system repair

evaluation form.

19. Respondent completed Form 4015 and signed it. As required on the

form, Respondent certified that the existing tank was pumped by Mathis and

Sons on Apri l 5, 2020, that he determined the volumes specified based on the

tank Ô s dimensions, that the tank was Ñ free of observable defects or leaks, Ò and

that it had a solids deflection device installed.

20. On April 15, 2020, DOH issued a repair permit to install the new

drainfield (#48 - SX - 2053996) . The permit acknowledged that no fill was

required, but mandated the removal of spoil prior to inspection. The permit

stated that Ñ spoil material cannot be used in system repair. Ò The permit also

provided that, Ñ [i]f an y spoils are left onsite at the time of inspection[,] a re -

inspection must be conducted. Ò

21. In the days thereafter, the installation of the new drainfield began .

T he existing drainfield was dug up and the removed dirt was placed in piles

along the fence o f the property . This dirt contained spoil material that could

not be used for the new drainfield. The new drainfield was installed and DOH

was contacted for an inspection.

22. On April 20, 2020, DOH sent Mr. Brock to inspect the repair work .

The existi ng tank remained buried underground, though it had a lid that

could be accessed to see inside the tank. T he newly - installed drainfield was

uncovered. Mr. Brock verified that that the soil underneath the drainfield

was acceptable and also noted that there w ere large piles of leftover soil and

dirt around the drainfie l d. B ecause t he owner reported that the system was

backing up into the house , Mr. Brock believed there was an issue with the

outlet device . He testified that he could not verify the outlet device because

the tank was full , so he disapproved the repair work . He conceded, however,

that he did not check the volume and instead assumed at the time that the

tank had to be full because the system w as backing up into the house.

23. On April 21, 2020, Mr. Brock sent written confirmation to Mathis and

Sons that he disapproved the repair work because he could not verify the

outlet device. The letter confirmed that correcti ve action needed to be taken

before a final inspection could be done, that a reinspecti on fee would apply,

and that DOH should be contacted once the items had been completed to

schedule a final inspection.

24. Even though DOH disapproved of the repair work, Respondent never

called for a reinspection as required . Instead, he covered the drai nfield

without final approval from DOH .

25. In Sept ember 202 0 , Ms. Hochreiter submitted a complaint to DOH

because sewage continued to back up into the house . On September 14, 2020,

Mr. Negron, an environmental specialist, inspected the system and took so il

samples from several places around the new drainfield . The samples

cont ained spoil material, including pieces of clay pipe.

26. In October 202 0 , Mr. Brock and Mr. Harriss, the environmental

manager for DOH in Orlando, visited the property and took addi tional soil

samples from in and around the drainfie l d. Those samples also contained a

substantial amount of spoil material, including pieces of clay pipe and

lime/white rock . Because these materials had not been used in septic systems

for 20 - 30 years , DOH believed that Respondent improperly reused the soil

and dirt from the old drainfi e ld to cover the new drainfield.

27. In May 2021, DOH issued Citation I against Respondent. Citation I

alleged that Respondent violated several rules by improperly repairing a

septic system, using spoil material to replace a drainfield, failing to contact

DOH for a required reinspection , and covering the drainfield without

obtaining such a reinspection .

28. Based on the weight of the credible evidence, the undersigned finds

t hat Respondent failed to contact DOH to conduct a reinspection after

Mr. Brock failed the inspection and thereafter covered the drainfield without

obtaining a final approval after such a reinspection .

29. Based on the weight of the credible evidence, the u ndersigned finds

that spoil material was used when Respondent installed the new drainfield.

Although Mr. Brock confirmed that there was no issue with the soil

underneath the drainfield, a substantial amount of old clay pipe and lime

rock was later found in the soil above the new drainfield . Because those

materials have not been used in drainfields for many years, spoil material

from the old drainfield must have been used for the new drainfield. Indeed,

Ms. Hochreiter testified credibly that the same dirt th at had been placed

against the fence when the old drainfield was excavated was used to fill in

the new drainfield. She also was never charged for remov ing spoil material

from the old drainfield or for clean soil o r fill for the new drainfield.

30. Respond ent Ô s testimony on this issue was not credibl e . He testified

that no spoil material was reuse d . He admitted that he had no idea what

happened to the spoil material. He was only able to speculate that it could

have been hauled off or buried elsewhere on the property.

31. Respondent generally testified that the alleg ations in Citation I were

not violations at all , or , at most , they were technical violations that should

have subjected him to a mere warning letter rather than a fine. Respondent

is correct tha t the violations neither resulted in monetary or other harm to

the customer. Indeed, DOH witnesses generally agreed that the work

performed by Respondent to install the new drainfield is not the likely cause

of the sewage backing up into the house. Respond ent also explained that the

fines impacted his livelihood because they were pre v enting him from

becoming a master septic tank contractor.

32. Importantly, however, Respondent has extensive experience in this

industry and should have known that his actions violated several provisions

of chapter 62 - 6. The weight of the credible evidence also did not support his

contention that DOH Ô s customary practice was to issue warnings for these

violations.

Arlene Avenue Ï Citation II

33. On April 25, 2022, Mr. Harris s returned to the property at the request

of Ms. Hochreiter because the system continued to back up into her house .

She informed Mr. Harriss for the first time that a plumber had installed a

second inlet pipe into the tank when the prior owners added a new bathroom

at some point before she purchased the property in 2020 . DOH dug down to

expose the sides of the tank and discovered the two inlet pipes , which it

believed was a defect in the tank that Respondent should have observed

when he completed Form 4015 i n April 2020 .

34. On April 29, 2022, DOH issued Citation II against Respondent.

Citation II alleged that Respondent engaged in gross negligence,

incompetence, or misconduct under rule 62 - 6.022(1) ( l ) by falsely certifying

that the existing septic tank was f ree of observable defects even though it

defectively had two inlet pipes installed.

35. At the final hearing, Mr. Harris s testified that the tank was defective

because it had a second inlet pipe . Rather than install a second inlet pipe

directly into the ta nk, which compromises its structural integrity, the

plumber should have connected the new and existing pipes closer to the

house so that the tank continued to have only one inlet pipe as originally

manufactured. He supported this position by pointing to th e use of the phrase

Ñinlet and outlet devicesÒ in rule 62 - 6.013(2)(f) to suggest that tanks can only

have one inlet device. Mr. Harriss believed that Respondent was required to

visually inspect the inside of the tank for observable cracks or leaks after it

had been pumped out. By using a flashlight or mirror during that process,

Respondent should have observed the second inlet pipe and indicated that

the tank could not be certified on Form 4015.

36. That said , Mr. Harriss confirmed that both inlet pipes we re high

enough to allow for proper flow to the outlet device, that the second inlet

would likely not contribute to the back - up that the owner was experiencing in

the house, and that the new drainfield appeared to be functioning properly.

In short, he did n ot believe that the system failure was the result of an issue

with the tank or the new drainfield installed by Respondent .

37. Respondent acknowledged that he signed the certification form based

on the information provided to him by the worker who pumped the tank . He

also conceded that a plumber installing a second inlet pipe into a tank is

improper . However, he testified that the second inlet pipe in this tank was

not a defect he could observe while conducting the evaluation required to

complete Form 4015 . He credibly explained that the rules do not require a

contactor to stick their heads inside of an existing tank or use a mirror, as

doing so is a health hazard given the sewage and bacteria contained inside.

He also explained that, unlike the outlet devi ce, the inlet pipe is not located

directly below the lid that would make it easy to inspect . To observe defects

with the inlet device, the tank would have to be dug up , which i s not required

when completing Form 4015 to install a new drainfield.

38. Based on the weight of the credible evidence, the undersigned finds

that the existence of the second inlet pipe was not an observable defect , much

less one that could support a finding that Respondent committed gross

negligence, incompetence, or misconduct for failing to discover it when

making his certification. Neither the rules nor Form 4015 define what

constitutes an observable defect or otherwise specify what contractors must

do when certifying that a tank is free of observable defects, which alone

undermin es a finding that Respondent committed gross negligence,

incompetence, or misconduct that should subject him to discipline.

39. Further , t he owner never informed Respondent about the second inlet

pipe prior to making his certification, which could have pu t him on notice

that he needed to look for such a defect. DOH staff also inspected the system

several times based on the ownerÔs repeated complaints about the system

backing up and never discovered this as a possible defect. For instance,

although Mr. Broc k knew that the system was not functioning properly when

he initial ly inspected the drainfield , he assumed the tank was full and never

tried to look inside to verify the outlet device with a mirror or flashlight ,

which undermines the claim that this is wha t Respondent was required to do

when completing the certification on Form 4015 . In deed , DOH did not

discover the second inlet pipe until it dug down to expose the area around the

tan k , which no witness suggested was an action Respondent had to take .

C ONC LUSIONS OF L AW

40. DOAH has jurisdiction over the subject matter in these consolidated

cases and the parties thereto . §§ 120.569 and 120.57(1), Fla. Stat.

41. DEP is the state agency c harged with regulating onsite sewage

treatment and disposal systems . § 3 81.0065(2)( l ) and (3), Fla. Stat . DEP is

authorized to adopt rules to administer this authority that, among other

things, set s forth the application and permit requirements for maintaining

such systems. Id . § 38 1 .0065(3)(a). DEP also enforces septic tank c ontractor

requirements in part I of chapter 38 1 and any rules adopted thereunder,

including the imposition of fines for violations . Id . § 381.0065(3) (h) .

42. DEP seeks to impose fines against Respondent and, thus, bears the

burden of proving the allegatio ns by clear and convincing evidence. Dep Ô t of

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

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

43. Clear and convincing evidence Ñ requires more proof than a

Ó preponderance of the evidence Ô but less than Ó beyond and to the exclusion of a

reasonable doubt. ÔÒ In re Graziano , 696 So. 2d 744, 753 (Fla. 1997) (quoting In

re Davey , 645 So. 2d 398, 404 (Fla. 1994) ) . As stated by the Florida Supreme

Court:

Clear and convincing evidence requires tha t 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 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 truth of the allegations

sought to be established.

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

492 So . 2d 797, 800 (Fla. 4th DCA 1983)). Ñ [E] ven when the evidence is in

conflict, the proof may be more than sufficient to meet the standard of clear

and convincing evidence. Ò In re Henson , 913 So. 2d at 59 2 (quoting In re

Bryan , 550 So. 2d 447, 448 n.* (Fla. 1989) ).

44. Florida law provides a detailed process for making repairs to an

existing septic tank system, which is defined as the:

r eplacement of or modifications or additions to a

failing system which are necessary to allow the

system to function in acc ordance with its design or

must be made to eliminate a public health or

pollution hazard. Servicing or replacing with like

kind mechanical or electrical parts of an approved

onsite sewage treatment and disposal system; or

making minor structural correction s to a tank, or

distribution box, does not constitute a repair. The

use of any treatment method that is intended to

improve the functioning of any part of the system,

or to prolong or sustain the length of time the

system functions, shall be considered a r epair. The

use of any non - prohibited additive by the system

owner, through the building plumbing, shall not be

considered a repair. Removal of the contents of any

tank or the installation of an approved outlet filter

device, where the drainfield is not dis turbed, shall

not be considered a repair. Replacement of a broken

lid to any tank shall not be considered a repair.

Splicing a drip emitter line where no emitter is

eliminated shall not be considered a repair.

Fla. Admin. Code R. 62 - 6.002(47). Importantly , the law is clear that Ñ [a]

person may not È repair È an onsite sewage treatment and disposal system

without first obtaining a permit approved by the department. Ò § 381.0065(4),

Fla. Stat.; accord Fla. Admin. Code R. 62 - 6.003(1) ( Ñ No portion of an onsite

sewage treatment and disposal system shall be È repaired È or replaced

until a construction permit has been issued on Form DEP 4016, 08/09,

Construction Permit, herein incorporated by reference . Ò ).

45. DEP rules set forth the application and permitting req uirements that

must be met before making a repair to an existing septic system. Rule 62 -

6.015 , entitled Permitting and Construction of Repairs , provides as follows:

All repairs made to a failing onsite sewage

treatment and disposal system shall be made onl y

with prior knowledge and written approval from

the Department having jurisdiction over the

system. Approval shall be granted only if all of the

following conditions are met:

(1) Any property owner or lessee who has an onsite

sewage treatment and dispos al system which is

improperly constructed or maintained, or which

fails to function in a safe or sanitary manner shall

request from the Department, either directly or

through their agent, a permit to repair the system

prior to initiating repair of the syst em. A permit

shall be issued on Form DEP 4016 only after the

submission of an application accompanied by the

necessary exhibits and fees. Form DEP 4015 shall

be used for this purpose, and can be obtained from

the Department. Applications shall contain the

following information:

(a) A site plan showing property dimensions, the

existing and proposed system configuration and

location on the property, the building location,

potable and non - potable water lines, within the

existing and proposed drainfield repair area, the

general slope of the property, property lines and

easements, any obstructed areas, any private or

public wells, or any surface water bodies and

stormwater systems in proximity to the onsite

sewage system which restricts replacement or

relocation of the drainfield system. The existing

drainfield type shall be described. For example,

mineral aggregate, non - mineral aggregate,

chambers, or other.

(b) The size of the septic tank or other treatment

tank currently in use and the approximate square

foot age and elevation of the drainfield existing on

the site.

(c) The quantity and type of waste being discharged

to the system. Where water use records cannot be

obtained, estimates shall be made from values

found in Rule 62 - 6.008, Table I, F.A.C.

(d) The s oil textures encountered within the

existing and proposed drainfield areas, and the

estimated water table during the wettest season of

the year.

(e) Any unusual site conditions which may

influence the system design or function such as

sloping property, dr ainage structures such as roof

drains or curtain drains, and any obstructions such

as patios, decks, swimming pools or parking areas.

(f) The person performing the site evaluation shall

provide a brief description of the nature of the

failure which is occ urring.

46. Rule 62 - 6.001 (4) provides additional detail s about the permit

application , which must be submitted on Form 4015 :

Except as provided for in Section 381.00655, F.S.,

any existing and prior approved system which has

been placed into use and which remains in

satisfactory operating condition shall remain valid

for use under the terms of the rule and permit

under which it was approved. Alterations that

change the conditions under which the system was

permitted and approved, sewage characteristics or

increase sewage flow will require that the owner, or

their authorized representative, apply for and

receive reapproval of the system by the

Department, prior to any alteration of the

structure, or system. If an applicant requests that

the Department consid er the previous structure Ô s or

establishment Ô s most recent approved occupancy,

the applicant must provide written documentation

that the onsite sewage treatment and disposal

system was approved by the Department for that

previous occupancy.

(a) An applica nt will be required to complete Form

DEP 4015, 08/09, Application for Construction

Permit, herein incorporated by reference, and

provide a site plan in accordance with paragraph

62 - 6.004(3)(a), F.A.C., to provide information of the

site conditions under wh ich the system is currently

in use and conditions under which it will be used.

(b) The applicant shall have all system tanks

pumped by a permitted septage disposal service. A

registered septic tank contractor, state - licensed

plumber, person certified unde r Section 381.0101,

F.S., or master septic tank contractor shall

determine the tank volume and shall perform a

visual inspection of the tank when the tank is

empty to detect any observable defects or leaks in

the tank. The tank volume shall be obtained fro m

the tank legend or shall be calculated from

measured internal tank dimensions for length,

width and depth to the liquid level line or from the

measured outside dimensions for length and width

minus the wall thickness and depth to the liquid

level line. F or odd shaped tanks and tanks without

a legend, metered water flows from the refilling of

the tank may be used in lieu of measured inside or

outside tank dimensions. The person performing

the inspection shall submit the results to the

Department as part of the application using of

Form DEP 4015.

47. Form 4015 is the application that septic contractors must submit to

obtain a permit to conduct a repair on an existing septic system. Form 4015 is

incorporated by reference in rules 62 - 6.001(4) , 62 - 6.015(1) , a nd 62 - 6.004(1) .

48. Consistent with the dictates in rules 62 - 6.001(4) and 62 - 6.015(1) ,

Form 4015 requires contractor s to certify the following details about the

existing tank: (1) it was pumped and by whom ; (2) it has the volume specified

and the manner i n which that was determined ; (3) it is free of observable

defects or leaks ; and (4) whether it has a solids deflection device or outlet

filter device installed. If the tank cannot be certified, Form 4015 requires the

contractor to explain why. Importantly, neither the rules nor Form 4015

define Ñ observable defects Ò or otherwise explain what a contractor is expected

to do in order to observe defects with the tank.

49. Along with Form 4015 , contractors must submit all other required

documentation . Of particu lar importance here, a recorded BUE is required

for a residential parcel consisting of multiple lots if the septic system

operates on more than one lot. Rule 62 - 6.004(7) (a) provides as follows :

Where a property owner proposes to build or has

built a single residence or a single business or

multiple residences or businesses on multiple lots,

and the residence Ô s or business Ô s authorized sewage

flow requires the use of multiple lots, or parts

thereof, for the onsite sewage treatment and

disposal system, the pr operty owner must submit,

prior to issuance of a permit, a written utility

easement executed and recorded in the public

property records at the county courthouse. The

utility easement must bind the required property

together so that the original lots and t heir

collective size, or part thereof, is retained for

purposes of the onsite sewage treatment and

disposal system, and must include provisions for

maintaining the onsite sewage treatment and

disposal system. For example, a residence or

business built on t hree lots with a sewage flow

which is large enough to require the land from all

three lots must have a written utility easement

executed and recorded in the public property

records before an onsite sewage treatment and

disposal system construction permit m ay be issued.

In order to obtain a repair permit, the property

owner must submit a copy of the recorded utility

easement demonstrating the retention of the

original lots and their collective size for purposes of

the onsite sewage treatment and disposal sys tem

and a method for maintaining the system.

S ee also § 381.0065(2)(j) , Fla. Stat. (defining l ot as Ñ a parcel or tract of land

described by reference to recorded plats or by metes and bounds, or the least

fractional part of subdivided lands having limited fixed boundaries or an

assigned number, letter, or any other legal description by which it can be

identified Ò ).

50. Upon receipt of Form 4015 , DEP or the local regulatory agency ( e.g. ,

DOH in Orlando) Ñ shall make every effort to issue a permit within 2 w orking

days after receiving the application for system repair . Ò Fla. Admin. Code R.

62 - 6.015(5). I f an application is deficient or additional information is needed,

the deficiencies must be corrected before the permit can be issued .

51. Once th e permit i s issued, the contractor shall conduct the repairs in

accordance with the requirements of chapter 381 and rule chapter 62 - 6 . One

such requirement prohibits making a repair to a drainfield using spoil

material , which is defined as:

any part of the existing drainfield, any adjacent soil

material within 24 inches vertically and 12 inches

horizontally of the drainfield, and any soil that has

visible signs of effluent that has been removed as

part of a repair, modification or abandonment of an

onsite sewage trea tment and disposal system.

Fla. Admin. Code R. 62 - 6.002(50). Th is prohibition is set forth in rule 62 -

6.015 (6) as follows:

Construction materials used in system repairs shall

be of the same quality as those required for new

system construction. Aggregate and soil in spoil

material from drainfield repairs shall not be used

in system repair in any manner. Undamaged

infiltration units, pipes and mechanical

components may be reused on the original site. Any

spoil material taken off site shall be disposed of i n a

permitted landfill or shall be limed and stockpiled

for at least 30 days to prevent a sanitary nuisance.

Offsite spoil material stockpile areas shall meet the

prohibition requirements of subsection 62 -

701.300(2), F.A.C. The resulting lime - treated

mater ial shall not be used for drainfield repair, or

construction of any onsite sewage treatment and

disposal system . Any use of the lime treated

material shall not cause a violation of chapter 386

F.S., and shall not impair groundwater or surface

water. Minera l aggregate and soil in spoil material

may, at the option of the septic tank contractor and

the property owner, be buried on site if limed before

burial. Lime amount must be sufficient to preclude

a sanitary nuisance. Depth of seasonal high water

table to the spoil material must be at least six

inches. Setbacks for buried spoil material shall be

the same as for onsite sewage treatment and

disposal system drainfields. A minimum of six

inches of slightly or moderately limited soil shall

cover the spoil materi al and shall extend to at least

five feet around the perimeter of the burial site. È

52. After completing the repairs, a contractor must notify the agency and

have the system inspected before placing it back into service. As to the

required inspection, r ule 62 - 6.003 provides as follows:

(2) System Inspection -- Before covering with earth

and before placing a system into service, a person

installing or constructing any portion of an onsite

sewage treatment and disposal system shall notify

the Department of the completion of the

construction activities and shall have the system

inspected by the Department for compliance with

the requirements of this chapter, except as noted in

subsection 62 - 6.003(3), F.A.C., for repair

installations.

(a) If the system const ruction is approved after an

inspection by the Department, the Department

shall issue a Ñ Construction Approval Ò notice to the

installer.

(b) If the system installation does not pass the

construction inspection on any type of system

installation, the insta ller shall make all required

corrections and notify the Department of the

completion of the work prior to reinspection of the

system. A reinspection fee shall be charged to the

installer for each additional inspection leading up

to construction approval.

(c) Final installation approval shall not be granted

until the Department has confirmed that all

requirements of this chapter, including building

construction and lot grading are in compliance with

plans and specifications submitted with the permit

applica tion.

* * *

(3) Repair Inspections -- A system repair shall be

inspected by the Department or a master septic

tank contractor to determine compliance with

construction permit standards prior to final

covering of the system. Inspections shall comp ly

with subsection 62 - 6.003(2) È .

53. Registered c ontractors must ensure Ñ 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 Flor ida

Statutes and Chapter 62 - 6, F.A.C. Ò Fla. Admin. Code R. 62 - 6.022(1). If they

fail to do so , DEP may impose discipline based on the penalty guidelines .

54. Section 381.0065(5)(b) 3. provides that Ñ [t]he fines imposed by a

citation issued by the departmen t may not exceed $500 for each violation. Ò

Similarly, s ection 381.0061 (1) provides that, Ñ [i] n addition to any

administrative action authorized by chapter 120 or by other law, the

department may impose a fine, which may not exceed $500 for each violation,

for a violation of s. 381.006(15), s. 381.0065, s. 381.0066, s. 381.0072, or È for

a violation of any rule adopted under this chapter . Ò

55. Rule 62 - 6.022(1) also sets forth disciplinary guidelines for specific

violations and provides as follows:

The fol lowing actions by a person included under

this rule shall be deemed unethical and subject to

penalties as set forth in this section. The penalties

listed shall be used as guidelines in disciplinary

cases, absent aggravating or mitigating

circumstances and subject to other provisions of

this section.

* * *

(b) Permit violations.

1. Contractor initiates work to install, modify, or

repair a system when no permit has been issued by

the Department. A permit 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

$500.00; repeat violation, $500.00 fine and 90 day

suspension or revocation.

* * *

(d) Failure to call for required inspection s. First

violation, letter of warning or fine up to $500.00;

repeat violation, letter of warning or fine up to

$500.00 and 90 day suspension or revocation.

* * *

(l) Gross negligence, incompetence, or misconduct

which:

1. Causes no monetary or o ther harm to a

customer, or physical harm to any person. First

violation, letter of warning or fine up to $500.00;

repeat violation, $500.00 fine and 90 day

suspension or revocation.

2. Causes monetary or other harm to a customer, or

physical harm to any person. First violation, letter

of warning or fine up to $500.00 and 90 day

suspension; repeat violation, $500.00 fine and

revocation.

* * *

(p) Installation, modification, or repair of an onsite

sewage treatment and disposal system in violation

of the standards of S ection 381.0065 or 381.00655,

F.S., or Chapter 62 - 6, F.A.C. First violation, letter

of warning or fine up to $500.00 per specific

standard violated; repeat violation, 90 day

suspension or revocation.

56. In applying the penalty guidel ines and determining the appropriate

penalty , if any, DEP is required to consider aggravating and mitigating

factors . Section 381.0065(5)(b) 5. authorizes DEP to Ñ reduce or waive the fine

imposed , Ò upon consideration of Ñ the gravity of the violation, the pe rson Ô s

attempts at correcting the violation, and the person Ô s history of previous

violations including violations for which enforcement actions were taken . Ò

Section 381.0061 (2) is largely in accord and requires DEP to consider the

following factors in dete rmining the amount of a fine:

(a) The gravity of the violation, including the

probability that death or serious physical or

emotional harm to any person will result or has

resulted, the severity of the actual or potential

harm, and the extent to which the provisions of the

applicable statutes or rules were violated.

(b) Actions taken by the owner or operator to

correct violations.

(c) Any previous violations.

57. Pursuant to rule 62 - 6.022(2), DEP also must consider the following

circumstances for purpose s of mitigation or aggravation of the penalty:

(a) Monetary or other damage to the registrant Ô 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 contractor,

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 publi c.

(e) The number of repetitions of the offense.

(f) The number of complaints filed against the

contractor.

(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 Ô s

livelihood.

(j) Any efforts at rehabilitation.

(k) Any other mitigating or aggravating

circumstances.

Conway Gardens Road

58. The Complaint alleged that Respondent violated section 381.0065(4)

and rule 6 2 - 6.003(1) by starting the repair of a septic system without a

permit. DEP seeks to impose a $250 fine for this violation.

59. Based on the Findings of Fact above, DEP proved by clear and

convincing evidence that Respondent violated section 381.0065(4) a nd

rule 62 - 6.003(1) by starting to install a new drainfield without a permit.

60. Respondent Ô s arguments to the contrary must be rejected. Respondent

primarily argued that a BUE should not have been required because the lots

were platted before the 1970s and, regardless, DOH should have issued the

permit and held it for final approval upon receipt of the BUE consistent with

its usual practice. However, a BUE is required even where a parcel consisting

of several lots is owned by the same person, so long as the septic system

requires the use of more than one of those lots to operate. § 381.0065(2)(j) ,

Fla. Stat.; Fla. Admin. Code R. 62 - 6.004(7)(a) . The fact that the lots were

platted before the 1970s only exempts the property from the lot size

requirements re lating to minimum surface water setbacks and limits on

projected daily flows; it does not exempt the property from the requirement to

submit a BUE when the septic system is installed on more than one lot.

§ 381.0065(4)(g) , Fla. Stat. Indeed, the purpose of the BUE is to ensure that

subsequent owners are on notice that a system is being utilized by all of the

lots . Further, the weight of the credible evidence did not support

Respondent Ô s argument that DOH contravened its customary practice by

refusing to con ditionally issue a permit in these circumstances.

61. DEP seeks to impose a $250 fine against Respondent for this violation.

Pursuant to rule 62 - 6.022(1)(b)1 . , DEP has discretion to impose discipline for

this violation ranging from a letter of warning u p to a maximum fine of $500.

Based on the Findings of Fact above, DEP Ô s requested fine of $250 is

appropriate considering the balance of all applicable mitigation and

aggravation factors set forth in sections 381.0065(5)(b)5 . and 381.0061(2) ,

and in rule 6 2 - 6.022(2).

Arlene Avenue Ï Citations I and II

62. Citation I alleged that Respondent committed the following violations:

(1) failing to contact DOH for a required reinspection prior to covering the

drainfield , in violation of rule 6 2 - 6.022(1) (d) ; (2) cov er ing the drainfield before

obtaining a reinspection and final approval , in violation of rule 62 - 6.003(2) ;

and (3) improperly repairing a septic tank system by using spoil material to

replace the drainfield, in violation of rules 62 - 6.015(6) and 62 - 6.022 (1 ) (p) .

63. Based on the Findings of Fact above, DEP proved by clear and

convincing evidence that Respondent violated rule 6 2 - 6.022(1) (d) by failing to

call for a reinspection after failing an initial inspection. The weight of the

credible evidence confirme d that Respondent knew that DOH disapproved of

the repair work after the inspection , that corrective action had to be taken,

and that he had to call for a reinspection before closing the drainfield.

64. DEP seeks to impose a $500 fine against Respondent for this violation.

Pursuant to rule 62 - 6.022(1)( d), DEP has discretion to impose discipline for

this violation ranging from a letter of warning up to a maximum fine of $500.

Based on the Findings of Fact above, DEP Ô s requested fine of $ 500 is

appropriate considering the balance of all applicable mitigation and

aggravation factors set forth in sections 381.0065(5)(b)5 . and 381.0061(2) ,

and in rule 62 - 6.022(2).

65. Based on the Findings of Fact above, DEP proved by clear and

convincing evidence that Respon dent violated rule 6 2 - 6.0 03(2) by covering up

the drainfield without a final approval being issued by DOH. The weight of

the credible evidence confirmed that Respondent covered the drainfield

without obtaining final approval from DOH after a reinspection .

66. DEP seeks to impose a $500 fine against Respondent for this violation.

Pursuant to rule 62 - 6.022(1)( d), DEP has discretion to impose discipline for

this violation ranging from a letter of warning up to a maximum fine of $500.

Based on the Findings of Fact above, DEP Ô s requested fine of $500 is

appropriate considering the balance of all applicable mitigation and

aggravation factors set forth in sections 381.0065(5)(b)5 . and 381.0061(2) ,

and in rule 62 - 6.022(2).

67. Based on the Findings of Fact above , DEP proved by clear and

convincing evidence that Respondent violated rule 62 - 6.015(6) , which

prohibits the use of spoil material when installing a drainfield . T he weight of

the credible evidence established that Respondent dug up the dirt containing

spoi l material from the old drainfield, piled it along the fence on the property,

and then used the same dirt with the spoil material to fill the new drainfield.

68. In both Citation I and in its PRO, DEP requests imposition of a $500

fine against Respondent for violating rule 62 - 6.015(6) and a separate $500

fine for violatin g rule 62 - 6.022(1)(p). However, the two violations are not

independent bases for imposing separate fines. That is because the factual

allegation is the same Ð i.e. , that Respondent improperl y used spoil material

in the drainfield Ð and the basis for DEP Ô s authority to impose up to a $500

fine for such conduct is through rule 62 - 6.022(1)(p). In other words, rule 62 -

6.015(6) makes Respondent Ô s conduct improper and rule 62 - 6.022(1)(p)

authorizes D EP to impose a $500 fine for that improper conduct.

69. Based on the Findings of Fact above, DEP Ô s requested fine of $500 for

the violation of rule 62 - 6.015(6), as authorized in rule 62 - 6.022(1)(p), is

appropriate considering the balance of all applicable mitigation and

aggravation factors set forth in sections 381.0065(5)(b)5 . and 381.0061(2) ,

and in rule 62 - 6.022(2).

70. Citation II alleged that Respondent violated rule 62 - 6.022(1)( l ) by

engag ing in gross negligence, incompetence, or misconduct by fals ely

certif ying that the existing septic tank was free of observable defects , even

though it defectively had two inlet pipes installed .

71. Based on the Findings of Fact above, DEP failed to prove by clear and

convincing evidence that Respondent committed gross negligence,

incompetence, or misconduct in violation of rule 62 - 6.022(1)(l) . The weight of

the credible evidence did not establish that the second inlet pipe was an

observable defect that Respondent was required to discover when signing the

certifica tion on Form 4015 for installation of a new drainfield .

72. Further, r ules 62 - 6.015 (1) and 62 - 6.001(4) , and Form 4015 neither

define the term Ñ observable defect Ò n or specify what contractors must do

other than Ñ perform a visual inspection of the tank when the tank is empty to

detect any observable defects or leaks in the tank . Ò Fla. Admin. Code R. 62 -

6.001(4) . Thus , d iscipl in ing Respondent for failing to inspect the inside of the

tank with a flashlight or mirror to discover the second inlet pipe and identif y

it as a defect on Form 4015 would be improper . See McCloskey v. Dep Ô t of Fin.

Servs. , 115 So. 3d 441, 444 (Fla. 5th DCA 2013) ( Ñ Where a statute imposes

sanctions and penalties in the nature of denial or revocation of a license to

practice for violating i ts proscriptions, such a statute Ó must be strictly

construed and no conduct is to be regarded as included within it that is not

reasonably proscribed by it. ÔÒ ) (quoting Lester v. Dep Ô t of Pro . & Occ. Reg ul . ,

348 So. 2d 923, 925 (Fla. 1st DCA 1977)); Elmari ah v. Dep Ô t of Pro . Reg ul . ,

574 So. 2d 164, 165 (Fla. 1st DCA 1990) (holding that a statute imposing

Ñ sanctions or penalties Ò is Ñ penal in nature and must be strictly construed,

with any ambiguity interpreted in favor of the licensee Ò ); cf . Breesmen v. Dep Ô t

of Pro . Reg ul . , 567 So. 2d 469, 471 (Fla. 1st DCA 1990) ( Ñ Basic due process

requires that a professional or business license not be suspended or revoked

without adequate notice to the licensee of the standard of conduct to which he

or she must adhere. Ò ) . The lack of any specificity at to what defects are

observable and what contractors are expected to do when conducting a visual

inspection of a tank for such defects also p recludes a finding that Respondent

committed gross negligence, incompetence, or mis conduct.

73. The undersigned rejects DEP Ô s argument that rule 62 - 6.013(2)(f),

which uses Ñinlet Ò in singular form as part of the phrase Ñinlet and outlet

devices , Ò sufficiently put Respondent on notice that tank s should only have

one inlet and that a tan k with two is an observable defect. However, the last

sentence of the same subdivision refers to Ñ[i]nlets and outletsÒ in plural

form, undermining the suggestion that this rule makes clear that tanks can

only have one inlet. DEP Ô s argument is also undermi ned by rule 62 -

6.013(4)(h)4., which provides a list of Ñ unacceptable defects Ò that must be

reported when conducting an annual inspection of a septic tank

manufacturer Ô s inventory. That rule uses the terms Ñ inlets and outlets Ò in

plural form when discussing the type of defects that must be reported and,

importantly, does not identify multiple inlets as a defect. Even assuming the

tank was defective for this reason, DEP failed to prove by clear and

convincing evidence that it was observable.

R ECOMMENDATION

B ased on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that the Department of Environmental Protection issue a

final order imposing administrative fines against Respondent in the amount

of $1,750.00, comprised of $2 50 for the viol ations in the Complaint, $ 1,000 for

the violations in Citation I, and $500 for the violations in Citation II.

D ONE A ND E NTERED this 5th day of August , 2022 , in Tallahassee, Leon

County, Florida.

S

A NDREW D. M ANKO

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 5th day of August, 2022 .

C OPIES F URNISHED :

Jay Patrick Reynolds, Esquire S cott M . T homson

Department of Environmental Protec tion Mathi s and Sons Septic LLC

Doulgas Building, Mail Stop 35 4947 South Orange Avenue

3900 Commonwealth Boulevard Orlando, Florida 32806

Tallahassee, Florida 32399 - 3000

Lea Crandall, Agency Clerk

John Ryen Morgan - Ring, Esquire Department of Environmental Protection

Department of Environmental Protection Douglas Building, Mail Station 35

Office of General Counsel 3900 Commonwealth Boulevard

Douglas Building, Mail Station 35 Tallahassee, Florida 32399 - 3000

3500 Commonwealth Boulevar d

Tallahassee, Florida 32399 - 3000 Shawn Hamilton, Secret ary

Department of Environmental Protection

Justin G. Wolfe, General Counsel Douglas Building

Department of Environmental Protection 3900 Commonwealth Boulevard

Legal Department, Suite 1051 - J Tallahassee, FL 32399 - 3000

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

All parties have the right to submit written exceptions within 15 days from

the date of this Recomm ended Order. Any exceptions to this Recommended

Order should be filed with the agency that will issue the Final Order in this

case.