22-001620 Department Of Environmental Protection vs. Scott Thomson
 Status: Closed
Recommended Order on Friday, August 5, 2022.


View Dockets  
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.

1S TATE OF F LORIDA

6D IVISION OF A DMINISTRATIVE H EARINGS

13D EPARTMENT OF E NVIRONMENTAL

18P ROTECTION ,

20Petitioner , Case No s . 22 - 0070

2822 - 0074

31vs. 22 - 1620

35S COTT T HOMSON ,

39Respondent .

41/

42R ECOMMENDED O RDER

46Administrative Law Judge Andrew D. Manko of the Division of

56Administrative Hearings ( Ñ DOAH Ò ) presided over the final hearing in these

70consolidated cases, pursuant to sections 120 .569 and 120.57(1 ), Florida

81Statutes (20 2 2 ) , on June 21, 2022, in Orlando, Florida .

94A PPEARANCES

96For Petitioner: Jay Patrick Reynolds, Esquire

102John Ryen Morgan - Ring, Esquire

108Department of Environmental Protection

112Office of General Counsel

116Douglas Bu ilding, Mail Station 35

1223900 Commonwealth Boulevard

125Tallahassee, Florida 32399 - 3000

130For Respondent: S cott Thomson , p ro s e

139Mathis and Sons Septic, LLC

1444947 South Orange Avenue

148Orlando, Florida 32806

151S TATEMENT OF T HE I SSUE S

159(1) Case No. 22 - 0070 Ï w hether Petitioner , Department of Environmental

172Protection ( Ñ DEP Ò ) , may impose fine s against Respondent , Scott Thomson

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

19762 - 6.015(6), and 6 2 - 6.022(1) (d) and (1) (p), as al leged in the Citation dated

216May 3, 2021 ( Ñ Citation I Ò ) ; (2) Case No. 22 - 1620 Ï w hether DEP may impose

237fine s against Respondent for violati ng rule 62 - 6.022(1)( l ), as alleged in the

254Citation dated April 29, 2022 ( Ñ Citation II Ò ) ; and (3) Case No. 22 - 0074 Ï

273wh ether DEP may impose fines against Respondent for viol ati ng

285section 381.0065(4), Florida Statutes, and rules 6 2 - 6.003(1) and 62 -

2986.022(1)(b)1 . , as alleged in the Administrative Complaint (ÑComplaintÒ) .

308P RELIMINARY S TATEMENT

312On May 3, 202 1 , the Florida Depa rtment of Health ( Ñ DOH Ò ) issued

329Citation I , seeking to levy fines against Respondent for work performed on a

342septic system at 7629 Arlene Avenue ( Ñ Arlene Avenue Ò ) . 1 Citation I alleged

359that Respondent violated several rules by improperly repair ing a septic

370system, us ing spoils material to replace a drainfield, fail ing to contact DOH

384for a required inspection, and cover ing the drainfield without first obtaining

396such inspection. On the same day, DOH issued an identical Citation for the

409same alleged misconduct against Jeffrey Mathis ( Ñ Mathis Citation Ò ) , the

422owner of Mathis and Sons for whom Respondent works. Respondent and

433Mr. Mathis disputed the material allegations and timely requested an

443administrative hearing.

4451 As of July 1, 2021, DEP took over for DOH as the agency enforcing section 381.0065,

462including imposing discipline for viol ations of that section, other provisions of chapter 381,

476and any rules adopted thereunder. Ch. 2020 - 150, § 7, Laws of Fl a . In these consolidated

495cases, DOH investigated the allegations, issued the citations and the Complaint, and sought

508to impose fines aga inst Respondent; DEP is prosecuting these cases to enforce the requested

523fines against Respondent. Although the rules cited in the citations and the Complaint are to

538DOHÔs rule set ( Florida Administrative Code C hapter 64E - 6), those rules were transferred t o

556DEPÔs rule set (chapter 62 - 6) in 2021 based on the statutory changes noted above; thus, DEP

574now seeks to levy fines against Respondent based on violations of chapter 62 - 6. Even if

591Respondent had argued that DEP cannot seek to levy fines under chapter 62 - 6 given that the

609citations and the Complaint cited to provisions of chapter 64E (he did not), Respondent was

624put on adequate notice of the factual allegations against him and the substance of the

639specific violations on which DEP seeks to levy fines.

648On June 1, 202 1 , DOH issued a Complaint seeking to levy fines against

662Respondent and Mr. Mathis for work performed on a septic system at

6742566 Conway Gardens Road ( Ñ Conway Gardens Road Ò ) . The Complaint

688alleged that they both violated a statute and two rules by start ing the repair

703of a septic system and c omplet ing it without a permit. 2 Respondent and

718Mr. Mathis denied the allegations and requested an administrative hearing.

728On January 7, 2022, DEP transmitted C itation I, the Mathis Citation, and

741the Complaint to DOAH . DOAH assigned Case No. 22 - 0070 to Cit ation I ,

757Case No. 22 - 0071 to t he Mathis Citation , and Case No. 22 - 0074 to t he

776Complaint .

778In the Response to Initial Order in case number 22 - 0070 and the Joint

793Response to Initial Order in Case No. 22 - 0074 , DEP acknowledged that it

807would be dismissing Cas e No. 22 - 0071 against Mr. Mathis and requested that

822Case Nos. 22 - 0070 and 22 - 0074 against Respondent be consolidated for all

837purposes. On January 18, 2022, DEP filed a Notice of Voluntary Dismissal

849and Motion to Relinquish Jurisdiction in Case No. 22 - 0071 and a Notice of

864Dropping a Party and Voluntary Dismissal as to Jeffrey N. Mathis in Case

877No. 22 - 0074 . On January 19, 2022, the undersigned issued an Order Closing

892File and Relinquishing Jurisdiction in Case No. 22 - 0071 and an Order

905Dismissing Jeffrey N. Ma this and Amending Case Style in Case No. 22 - 0074 .

921On the same date, the undersigned issued an Order consolidating Case Nos.

93322 - 0070 and 22 - 0074 for all purposes.

943On January 20, 202 2 , the undersigned issued a Notice of Hearing and

956scheduled a live hearing in Orlando for March 16 and 17, 2022. On March 4,

9712022, the parties filed an Agreed Motion for Continuance based on the need

9842 At the hearing, DEP dropped the allegation about improperly completing the repair without

998a permit. DEP now seeks to impose a $250 fine for the remaining violation.

1012for more time to conduct a site assessment. On March 7, 2022, the

1025undersigned granted the request and reset the h earing for May 4 a nd 5, 2022.

1041On April 20, 2022, DEP filed a Motion to Relinquish Jurisdiction as to

1054Case No. 22 - 0074. DEP argued that Respondent had admitted to the alleged

1068violations in the Complaint and that relinquishment was appropriate because

1078there no longer were an y disputed issues of fact. On April 26, 2022,

1092Respondent filed a r esponse in opposition based on several attached exhibits,

1104including several statutes and rules. On April 28, 2022, after holding a

1116telephonic motion hearing , the undersigned issued an Order Denying Motion

1126to Relinquish Jurisdiction as to Case No. 22 - 0074 . The undersigned found

1140that disputed issues of fact remained as to the propriety of the fine sought to

1155be levied by DEP , including consideration of aggravation and mitigation

1165factors as requi red by section 381.0061(2 ) .

1174On April 29, 2022, DOH issued Citation II , levying another fine against

1186Respondent for work performed at Arlene Avenue. Citation II alleged that

1197Respondent engaged in gross negligence, incompetence, or misconduct by

1206falsely cer tifying that the existing septic tank was free of observable defects

1219even though it defectively had two inlet pipes installed .

1229On April 29, 2022, DEP filed a Motion for Continuance of the final hearing

1243based on the issuance of Citation II. DEP acknowled ged that Respondent had

125621 days to take corrective action and that, if he failed to do so, judicial

1271economy would be served by resolving Citation II at the final hearing with

1284the other two consolidated matters. Respondent agreed with a continuance in

1295Case No. 22 - 0070 but objected to a continuance in Case No. 22 - 0074 .

1312Agreeing with DEP that a continuance would serve the interests of judicial

1324economy and efficiency, the undersigned issued an Order Granting

1333Continuance and Rescheduling Hearing on May 2, 2022, which rescheduled

1343the final hearing for June 21, 2022.

1350On June 1, 2022, DEP transmitted Citation II to DOAH , which was

1362assigned Case No. 22 - 1620. On June 3, 2022, the undersigned held a pre -

1378hearing conference . Based on the agreement of the parties, the undersigned

1390issued a Second Order of Consolidation on June 6, 2022, which consolidated

1402Case Nos. 22 - 0070 , 22 - 0074 , and 22 - 1620 for all purposes and confirmed that

1420the final hearing remained as scheduled.

1426At t he final hearing , DEP presented the testimony of four witnesses:

1438(1) Lindsey Hochreiter , the owner of 7629 Arlene Avenue; (2) Alexis Negron ,

1450a sanitary nuisance investigation coordinator with DOH ; (3) Brendan Brock ,

1460an environmental specialist with DOH ; and (4) Bart Harriss , an

1470environmental manager w ith DOH . Respondent testified on his own behalf.

1482DEPÔs Corrected Exhibits 1 through 28 were admitted in evidence without

1493objection. Respondent Ô s Composite Exhibits 1 through 3 were admitted in

1505evidence over DEPÔs relevancy objections.

1510The two - volume Tran script of the hearing was filed on July 6, 2022. Prior

1526to the filing of the Transcript, Respondent filed his Proposed Recommended

1537Order ( Ñ PRO Ò ) on June 24, 2022. DEP timely filed its PRO on July 18, 2022 .

1557Both PROs were duly considered in preparing this Re commended Order.

1568For ease of reference, a ll citations are to the 2022 versions of the Florida

1583Statutes , which have not changed in any material way to the issues herein.

1596In making the findings below, the undersigned only considered hearsay

1606evidence that su pplemented or explained other evidence or would be

1617admissible over objection in civil actions. § 120.57(1)(c), Fla. Stat.

1627F INDINGS OF F ACT

16321. DEP is the state agency charged with regulating onsite sewage

1643treatment and disposal systems , including enforcemen t activities against

1652septic tank contractors for violations of part I of chapter 38 1 and any rules

1667adopted thereunder . As part of this regulatory authority, DEP may issue

1679citations , enforce citations issued by other regulatory agencies, such as DOH

1690in Oran ge County, and impose fines against septic tank contractors.

17012. Respondent is a registered septic tank contractor in Florida

1711(SR0161774) . 3 He serves as the qualifying contractor for Mathis and Sons

1724Septic , LLC ( Ñ Mathis and Sons Ò ) , which is a Florida - certif ied septic tank

1742contractor (SA0141851). Respondent is the vice president of employees,

1751licenses, and permits for Mathis and Sons . Respondent previously served as

1763the environmental manager for DOH in Orange County for 19 years.

17743. In these consolidated case s, DEP seeks to impose administrative fines

1786against Respondent for alleged violations concerning repairs made at two

1796different properties Ð Conway Gardens Road and Arlene Avenue.

1805Conway Gardens Road

18084. The Conway Gardens Road property is in the Rest Haven su bdivision in

1822Orange County . As originally platted in 1926 , the subdivision Ô s lots are 25

1837feet wide. Th e property contains a single - family house on one parcel that is

185362.5 feet wide , consisting of Lot 1 (25 feet wide), Lot 2 (25 feet wide), and half

1870of Lot 3 (12.5 feet wide). The house sits on all three lots .

18845. In or around August 2020, Respondent visited the property and

1895evaluated the existing septic system. At the time, the drainfield was located

1907behind the house on Lots 1 and 2 ; it was not within close proximity to the

1923property line as it was fairly centered behind the house .

19343 Respondent was the registered contractor who signed the permit application to authorize

1947M athis and Sons to conduct the repair at issue . Thus, he had to ensur e that all contracted

1967work Ð performed by him or others under his supervision Ð complie d with the requirements of

1984Florida law . Fla. Admin. Code R. 62 - 6.022(1). Thus , Ñ Respondent Ò is used herei n to refer to

2005actions taken directly by him and by M athis and SonsÔ employees under his supervision.

20206. On August 28, 2020 , at approximately 12:19 p.m., Respondent

2030submitted a permit application to DOH to repair the system and install a

2043new drainfield. The application was compl eted on Form 4015, as required . 4

2057Respondent attached a diagram to scale , replicated below, showing the lot

2068lines ( vertical dashes ) , the house, the location of the old drainfield (#2), and

2083the location of the new drainfield (#3) to be installed on Lots 2 an d 3 .

21007. Two business days later, o n September 1, 2020, at about 4:30 p.m .,

2115DOH notified Respondent that a binding utility easement ( Ñ BUE Ò ) would be

2130required before a permit could be approved . A BUE is a notarized document

21444 In April 2020, DOH served as the agency regulating septic systems and its rules required

2160the use of Form DH 4015. DEP now serves as the agency regulating such systems and its

2177rules require the use of Form DEP 4015. The forms are substantively identical and will be

2193referred to herein as ÑForm 4015.Ò

2199recorded in the official count y records that provide s notice to subsequent

2212owners that a septic system or part thereof is located on the property.

2225A lthough Lots 2 and 3 were owned by the same person, DOH required the

2240BUE because one of those lots could be sold to a different owner in t he future .

22588. On September 2, 2020, Respondent emailed DOH an unsigned and

2269incomplete BUE . He indicated that it would be signed that day and would

2283take the comptroller three to five days to record. He requested that the

2296permit be issued and held for final system approval once the recorded BUE

2309was filed. DOH replied that day and confirmed that the permit could not be

2323issued until the BUE was received.

23299. On September 10, 2020, Respondent emailed DOH to inform it that the

2342drainfield installation was schedule d for September 14, 202 0 , and that a BUE

2356would be recorded . H e requested that the permit be issued and held for final

2372system approval. DOH replied several minutes later to confirm again that the

2384system could not be installed without a permit.

239210. On Septem ber 14, 2020, the installation of the new drainfield began

2405without a permit. This fact was confirmed by Mr. Brock, the DOH inspector

2418who visited the property around 12:00 p.m. He directed the workers to stop

2431because they could not be working without a perm it .

244211. At some point around 1:00 p.m., Respondent physically brought a copy

2454of the recorded BUE to DOH . The BUE was signed, notarized, and filed in the

2470official records that same day . Respondent demanded issuance of the permit,

2482which DOH did not do immedi ately. Instead, at a round 3:00 p.m. , the

2496inspector went back to the property only to discover Ð contrary to the

2509directive to stop work immediately Ð that the drainfield installation was even

2521further along than when he had visited the property earlier that day.

253312. On September 15, 2020, the next business day, DOH issued the

2545permit . Respondent conceded under oath that the repair work began before

2557the permit was issued and that doing so was a technical violation.

256913. Notwithstanding Respondent Ô s concession, he justified h is decision to

2581start without a permit because he believed the system was a sanitary

2593nuisance and the property owner wanted it repaired . In his mind, he knew

2607the permit would be granted because the sole hold - up concerned the BUE,

2621which the owner of all three lots would unquestionably sign ; as such, the

2634violation did not adversely affect public health . Respondent also believed that

2646DOH was simply taking too long because a BUE should not have been

2659required and, regardless, it routinely issues permit s with a hold for final

2672approval pending receipt of a BUE.

267814. Respondent is correct that the violation neither result ed in monetary

2690or other harm to the customer nor did it adversely affect or endanger public

2704health . Indeed, this was not a situation where the permit was withheld

2717because the design of the system was faulty or there was some other issue

2731that could affect public health, which certainly would be a far more severe

2744offense. Respondent also began the work because he believed that the owner Ô s

2758inab ility to use the system served as a nuisance.

276815. That said, the weight of the credible evidence established that

2779Respondent started the repair without a permit and knowingly decided to

2790violat e Florida law by doing so . Although he may have believed he was doing

2806the right thing, he knew Ð especially given his 19 - year stint at DOH and his

2823extensive experience in the private sector since leaving DOH Ð that the law

2836did not authorize him to unilaterally decide that he could start the repair

2849without a permit. Respon dent also acknowledged under oath that DOH had

2861the authority to wait to issue the permit pending the recorded BUE. And,

2874although he testified that DOH Ô s practice is to issue permits with a hold for

2890final approval , the weight of the credible evidence confir med that DOH only

2903issues conditional approvals where the septic system is contained entirely

2913within one lot and a BUE is only precautionary because the system is within

2927close proximity to an adjacent lot. That exception did not apply here because

2940the new d rainfield was unquestionably on more than one lot.

2951Arlene Avenue Ï Citation I

295616. The Arlene Avenue residential property is located in Orlando and

2967utilizes a septic tank system and drainfield. Ms. Hochreiter , the property

2978owner, had issues with the septic system when she purchased the property

2990and contacted Mathis and Sons to diagnose the issue.

299917. On March 30, 2020, Ms. Hochreiter hired Mathis and Sons to install a

3013new drainfield for $5,117.00. The contract did not include pricing for sand or

3027clean fi ll for the drainfield , as those w ere to - be - decided.

304218. On April 7, 2020, Respondent completed the required application on

3053Form 4015 for a repair permit to install the new drainfield. Form 4015 is

3067comprised of several individuals forms, includ ing a site e valuation and

3079system specifications form and an existing system and system repair

3089evaluation form.

309119. Respondent completed Form 4015 and signed it. As required on the

3103form, Respondent certified that the existing tank was pumped by Mathis and

3115Sons on Apri l 5, 2020, that he determined the volumes specified based on the

3130tank Ô s dimensions, that the tank was Ñ free of observable defects or leaks, Ò and

3147that it had a solids deflection device installed.

315520. On April 15, 2020, DOH issued a repair permit to install the new

3169drainfield (#48 - SX - 2053996) . The permit acknowledged that no fill was

3183required, but mandated the removal of spoil prior to inspection. The permit

3195stated that Ñ spoil material cannot be used in system repair. Ò The permit also

3210provided that, Ñ [i]f an y spoils are left onsite at the time of inspection[,] a re -

3229inspection must be conducted. Ò

323421. In the days thereafter, the installation of the new drainfield began .

3247T he existing drainfield was dug up and the removed dirt was placed in piles

3262along the fence o f the property . This dirt contained spoil material that could

3277not be used for the new drainfield. The new drainfield was installed and DOH

3291was contacted for an inspection.

329622. On April 20, 2020, DOH sent Mr. Brock to inspect the repair work .

3311The existi ng tank remained buried underground, though it had a lid that

3324could be accessed to see inside the tank. T he newly - installed drainfield was

3339uncovered. Mr. Brock verified that that the soil underneath the drainfield

3350was acceptable and also noted that there w ere large piles of leftover soil and

3365dirt around the drainfie l d. B ecause t he owner reported that the system was

3381backing up into the house , Mr. Brock believed there was an issue with the

3395outlet device . He testified that he could not verify the outlet device because

3409the tank was full , so he disapproved the repair work . He conceded, however,

3423that he did not check the volume and instead assumed at the time that the

3438tank had to be full because the system w as backing up into the house.

345323. On April 21, 2020, Mr. Brock sent written confirmation to Mathis and

3466Sons that he disapproved the repair work because he could not verify the

3479outlet device. The letter confirmed that correcti ve action needed to be taken

3492before a final inspection could be done, that a reinspecti on fee would apply,

3506and that DOH should be contacted once the items had been completed to

3519schedule a final inspection.

352324. Even though DOH disapproved of the repair work, Respondent never

3534called for a reinspection as required . Instead, he covered the drai nfield

3547without final approval from DOH .

355325. In Sept ember 202 0 , Ms. Hochreiter submitted a complaint to DOH

3566because sewage continued to back up into the house . On September 14, 2020,

3580Mr. Negron, an environmental specialist, inspected the system and took so il

3592samples from several places around the new drainfield . The samples

3603cont ained spoil material, including pieces of clay pipe.

361226. In October 202 0 , Mr. Brock and Mr. Harriss, the environmental

3624manager for DOH in Orlando, visited the property and took addi tional soil

3637samples from in and around the drainfie l d. Those samples also contained a

3651substantial amount of spoil material, including pieces of clay pipe and

3662lime/white rock . Because these materials had not been used in septic systems

3675for 20 - 30 years , DOH believed that Respondent improperly reused the soil

3688and dirt from the old drainfi e ld to cover the new drainfield.

370127. In May 2021, DOH issued Citation I against Respondent. Citation I

3713alleged that Respondent violated several rules by improperly repairing a

3723septic system, using spoil material to replace a drainfield, failing to contact

3735DOH for a required reinspection , and covering the drainfield without

3745obtaining such a reinspection .

375028. Based on the weight of the credible evidence, the undersigned finds

3762t hat Respondent failed to contact DOH to conduct a reinspection after

3774Mr. Brock failed the inspection and thereafter covered the drainfield without

3785obtaining a final approval after such a reinspection .

379429. Based on the weight of the credible evidence, the u ndersigned finds

3807that spoil material was used when Respondent installed the new drainfield.

3818Although Mr. Brock confirmed that there was no issue with the soil

3830underneath the drainfield, a substantial amount of old clay pipe and lime

3842rock was later found in the soil above the new drainfield . Because those

3856materials have not been used in drainfields for many years, spoil material

3868from the old drainfield must have been used for the new drainfield. Indeed,

3881Ms. Hochreiter testified credibly that the same dirt th at had been placed

3894against the fence when the old drainfield was excavated was used to fill in

3908the new drainfield. She also was never charged for remov ing spoil material

3921from the old drainfield or for clean soil o r fill for the new drainfield.

393630. Respond ent Ô s testimony on this issue was not credibl e . He testified

3952that no spoil material was reuse d . He admitted that he had no idea what

3968happened to the spoil material. He was only able to speculate that it could

3982have been hauled off or buried elsewhere on the property.

399231. Respondent generally testified that the alleg ations in Citation I were

4004not violations at all , or , at most , they were technical violations that should

4017have subjected him to a mere warning letter rather than a fine. Respondent

4030is correct tha t the violations neither resulted in monetary or other harm to

4044the customer. Indeed, DOH witnesses generally agreed that the work

4054performed by Respondent to install the new drainfield is not the likely cause

4067of the sewage backing up into the house. Respond ent also explained that the

4081fines impacted his livelihood because they were pre v enting him from

4093becoming a master septic tank contractor.

409932. Importantly, however, Respondent has extensive experience in this

4108industry and should have known that his actions violated several provisions

4119of chapter 62 - 6. The weight of the credible evidence also did not support his

4135contention that DOH Ô s customary practice was to issue warnings for these

4148violations.

4149Arlene Avenue Ï Citation II

415433. On April 25, 2022, Mr. Harris s returned to the property at the request

4169of Ms. Hochreiter because the system continued to back up into her house .

4183She informed Mr. Harriss for the first time that a plumber had installed a

4197second inlet pipe into the tank when the prior owners added a new bathroom

4211at some point before she purchased the property in 2020 . DOH dug down to

4226expose the sides of the tank and discovered the two inlet pipes , which it

4240believed was a defect in the tank that Respondent should have observed

4252when he completed Form 4015 i n April 2020 .

426234. On April 29, 2022, DOH issued Citation II against Respondent.

4273Citation II alleged that Respondent engaged in gross negligence,

4282incompetence, or misconduct under rule 62 - 6.022(1) ( l ) by falsely certifying

4296that the existing septic tank was f ree of observable defects even though it

4310defectively had two inlet pipes installed.

431635. At the final hearing, Mr. Harris s testified that the tank was defective

4330because it had a second inlet pipe . Rather than install a second inlet pipe

4345directly into the ta nk, which compromises its structural integrity, the

4356plumber should have connected the new and existing pipes closer to the

4368house so that the tank continued to have only one inlet pipe as originally

4382manufactured. He supported this position by pointing to th e use of the phrase

4396Ñinlet and outlet devicesÒ in rule 62 - 6.013(2)(f) to suggest that tanks can only

4411have one inlet device. Mr. Harriss believed that Respondent was required to

4423visually inspect the inside of the tank for observable cracks or leaks after it

4437had been pumped out. By using a flashlight or mirror during that process,

4450Respondent should have observed the second inlet pipe and indicated that

4461the tank could not be certified on Form 4015.

447036. That said , Mr. Harriss confirmed that both inlet pipes we re high

4483enough to allow for proper flow to the outlet device, that the second inlet

4497would likely not contribute to the back - up that the owner was experiencing in

4512the house, and that the new drainfield appeared to be functioning properly.

4524In short, he did n ot believe that the system failure was the result of an issue

4541with the tank or the new drainfield installed by Respondent .

455237. Respondent acknowledged that he signed the certification form based

4562on the information provided to him by the worker who pumped the tank . He

4577also conceded that a plumber installing a second inlet pipe into a tank is

4591improper . However, he testified that the second inlet pipe in this tank was

4605not a defect he could observe while conducting the evaluation required to

4617complete Form 4015 . He credibly explained that the rules do not require a

4631contactor to stick their heads inside of an existing tank or use a mirror, as

4646doing so is a health hazard given the sewage and bacteria contained inside.

4659He also explained that, unlike the outlet devi ce, the inlet pipe is not located

4674directly below the lid that would make it easy to inspect . To observe defects

4689with the inlet device, the tank would have to be dug up , which i s not required

4706when completing Form 4015 to install a new drainfield.

471538. Based on the weight of the credible evidence, the undersigned finds

4727that the existence of the second inlet pipe was not an observable defect , much

4741less one that could support a finding that Respondent committed gross

4752negligence, incompetence, or misconduct for failing to discover it when

4762making his certification. Neither the rules nor Form 4015 define what

4773constitutes an observable defect or otherwise specify what contractors must

4783do when certifying that a tank is free of observable defects, which alone

4796undermin es a finding that Respondent committed gross negligence,

4805incompetence, or misconduct that should subject him to discipline.

481439. Further , t he owner never informed Respondent about the second inlet

4826pipe prior to making his certification, which could have pu t him on notice

4840that he needed to look for such a defect. DOH staff also inspected the system

4855several times based on the ownerÔs repeated complaints about the system

4866backing up and never discovered this as a possible defect. For instance,

4878although Mr. Broc k knew that the system was not functioning properly when

4891he initial ly inspected the drainfield , he assumed the tank was full and never

4905tried to look inside to verify the outlet device with a mirror or flashlight ,

4919which undermines the claim that this is wha t Respondent was required to do

4933when completing the certification on Form 4015 . In deed , DOH did not

4946discover the second inlet pipe until it dug down to expose the area around the

4961tan k , which no witness suggested was an action Respondent had to take .

4975C ONC LUSIONS OF L AW

498140. DOAH has jurisdiction over the subject matter in these consolidated

4992cases and the parties thereto . §§ 120.569 and 120.57(1), Fla. Stat.

500441. DEP is the state agency c harged with regulating onsite sewage

5016treatment and disposal systems . § 3 81.0065(2)( l ) and (3), Fla. Stat . DEP is

5033authorized to adopt rules to administer this authority that, among other

5044things, set s forth the application and permit requirements for maintaining

5055such systems. Id . § 38 1 .0065(3)(a). DEP also enforces septic tank c ontractor

5070requirements in part I of chapter 38 1 and any rules adopted thereunder,

5083including the imposition of fines for violations . Id . § 381.0065(3) (h) .

509742. DEP seeks to impose fines against Respondent and, thus, bears the

5109burden of proving the allegatio ns by clear and convincing evidence. Dep Ô t of

5124Bank ing & Fin. v. Osborne Stern & Co. , 670 So. 2d 932 (Fla. 1996); Ferris v.

5141Turlington , 510 So. 2d 292 (Fla. 1987).

514843. Clear and convincing evidence Ñ requires more proof than a

5159Ó preponderance of the evidence Ô but less than Ó beyond and to the exclusion of a

5176reasonable doubt. ÔÒ In re Graziano , 696 So. 2d 744, 753 (Fla. 1997) (quoting In

5191re Davey , 645 So. 2d 398, 404 (Fla. 1994) ) . As stated by the Florida Supreme

5208Court:

5209Clear and convincing evidence requires tha t the

5217evidence must be found to be credible; the facts to

5227which the witnesses testify must be distinctly

5234remembered; the testimony must be precise and

5241explicit and the witnesses must be lacking in

5249confusion as to the facts in issue. The evidence

5258must be of such weight that it produces in the mind

5269of the trier of fact a firm belief or conviction,

5279without hesitancy, as to the truth of the allegations

5288sought to be established.

5292In re Henson , 913 So. 2d 579, 590 (Fla. 2005) (quoting Slomowitz v. Walker ,

5306492 So . 2d 797, 800 (Fla. 4th DCA 1983)). Ñ [E] ven when the evidence is in

5324conflict, the proof may be more than sufficient to meet the standard of clear

5338and convincing evidence. Ò In re Henson , 913 So. 2d at 59 2 (quoting In re

5354Bryan , 550 So. 2d 447, 448 n.* (Fla. 1989) ).

536444. Florida law provides a detailed process for making repairs to an

5376existing septic tank system, which is defined as the:

5385r eplacement of or modifications or additions to a

5394failing system which are necessary to allow the

5402system to function in acc ordance with its design or

5412must be made to eliminate a public health or

5421pollution hazard. Servicing or replacing with like

5428kind mechanical or electrical parts of an approved

5436onsite sewage treatment and disposal system; or

5443making minor structural correction s to a tank, or

5452distribution box, does not constitute a repair. The

5460use of any treatment method that is intended to

5469improve the functioning of any part of the system,

5478or to prolong or sustain the length of time the

5488system functions, shall be considered a r epair. The

5497use of any non - prohibited additive by the system

5507owner, through the building plumbing, shall not be

5515considered a repair. Removal of the contents of any

5524tank or the installation of an approved outlet filter

5533device, where the drainfield is not dis turbed, shall

5542not be considered a repair. Replacement of a broken

5551lid to any tank shall not be considered a repair.

5561Splicing a drip emitter line where no emitter is

5570eliminated shall not be considered a repair.

5577Fla. Admin. Code R. 62 - 6.002(47). Importantly , the law is clear that Ñ [a]

5592person may not È repair È an onsite sewage treatment and disposal system

5605without first obtaining a permit approved by the department. Ò § 381.0065(4),

5617Fla. Stat.; accord Fla. Admin. Code R. 62 - 6.003(1) ( Ñ No portion of an onsite

5634sewage treatment and disposal system shall be È repaired È or replaced

5646until a construction permit has been issued on Form DEP 4016, 08/09,

5658Construction Permit, herein incorporated by reference . Ò ).

566745. DEP rules set forth the application and permitting req uirements that

5679must be met before making a repair to an existing septic system. Rule 62 -

56946.015 , entitled Permitting and Construction of Repairs , provides as follows:

5704All repairs made to a failing onsite sewage

5712treatment and disposal system shall be made onl y

5721with prior knowledge and written approval from

5728the Department having jurisdiction over the

5734system. Approval shall be granted only if all of the

5744following conditions are met:

5748(1) Any property owner or lessee who has an onsite

5758sewage treatment and dispos al system which is

5766improperly constructed or maintained, or which

5772fails to function in a safe or sanitary manner shall

5782request from the Department, either directly or

5789through their agent, a permit to repair the system

5798prior to initiating repair of the syst em. A permit

5808shall be issued on Form DEP 4016 only after the

5818submission of an application accompanied by the

5825necessary exhibits and fees. Form DEP 4015 shall

5833be used for this purpose, and can be obtained from

5843the Department. Applications shall contain the

5849following information:

5851(a) A site plan showing property dimensions, the

5859existing and proposed system configuration and

5865location on the property, the building location,

5872potable and non - potable water lines, within the

5881existing and proposed drainfield repair area, the

5888general slope of the property, property lines and

5896easements, any obstructed areas, any private or

5903public wells, or any surface water bodies and

5911stormwater systems in proximity to the onsite

5918sewage system which restricts replacement or

5924relocation of the drainfield system. The existing

5931drainfield type shall be described. For example,

5938mineral aggregate, non - mineral aggregate,

5944chambers, or other.

5947(b) The size of the septic tank or other treatment

5957tank currently in use and the approximate square

5965foot age and elevation of the drainfield existing on

5974the site.

5976(c) The quantity and type of waste being discharged

5985to the system. Where water use records cannot be

5994obtained, estimates shall be made from values

6001found in Rule 62 - 6.008, Table I, F.A.C.

6010(d) The s oil textures encountered within the

6018existing and proposed drainfield areas, and the

6025estimated water table during the wettest season of

6033the year.

6035(e) Any unusual site conditions which may

6042influence the system design or function such as

6050sloping property, dr ainage structures such as roof

6058drains or curtain drains, and any obstructions such

6066as patios, decks, swimming pools or parking areas.

6074(f) The person performing the site evaluation shall

6082provide a brief description of the nature of the

6091failure which is occ urring.

609646. Rule 62 - 6.001 (4) provides additional detail s about the permit

6109application , which must be submitted on Form 4015 :

6118Except as provided for in Section 381.00655, F.S.,

6126any existing and prior approved system which has

6134been placed into use and which remains in

6142satisfactory operating condition shall remain valid

6148for use under the terms of the rule and permit

6158under which it was approved. Alterations that

6165change the conditions under which the system was

6173permitted and approved, sewage characteristics or

6179increase sewage flow will require that the owner, or

6188their authorized representative, apply for and

6194receive reapproval of the system by the

6201Department, prior to any alteration of the

6208structure, or system. If an applicant requests that

6216the Department consid er the previous structure Ô s or

6226establishment Ô s most recent approved occupancy,

6233the applicant must provide written documentation

6239that the onsite sewage treatment and disposal

6246system was approved by the Department for that

6254previous occupancy.

6256(a) An applica nt will be required to complete Form

6266DEP 4015, 08/09, Application for Construction

6272Permit, herein incorporated by reference, and

6278provide a site plan in accordance with paragraph

628662 - 6.004(3)(a), F.A.C., to provide information of the

6295site conditions under wh ich the system is currently

6304in use and conditions under which it will be used.

6314(b) The applicant shall have all system tanks

6322pumped by a permitted septage disposal service. A

6330registered septic tank contractor, state - licensed

6337plumber, person certified unde r Section 381.0101,

6344F.S., or master septic tank contractor shall

6351determine the tank volume and shall perform a

6359visual inspection of the tank when the tank is

6368empty to detect any observable defects or leaks in

6377the tank. The tank volume shall be obtained fro m

6387the tank legend or shall be calculated from

6395measured internal tank dimensions for length,

6401width and depth to the liquid level line or from the

6412measured outside dimensions for length and width

6419minus the wall thickness and depth to the liquid

6428level line. F or odd shaped tanks and tanks without

6438a legend, metered water flows from the refilling of

6447the tank may be used in lieu of measured inside or

6458outside tank dimensions. The person performing

6464the inspection shall submit the results to the

6472Department as part of the application using of

6480Form DEP 4015.

648347. Form 4015 is the application that septic contractors must submit to

6495obtain a permit to conduct a repair on an existing septic system. Form 4015 is

6510incorporated by reference in rules 62 - 6.001(4) , 62 - 6.015(1) , a nd 62 - 6.004(1) .

652748. Consistent with the dictates in rules 62 - 6.001(4) and 62 - 6.015(1) ,

6541Form 4015 requires contractor s to certify the following details about the

6553existing tank: (1) it was pumped and by whom ; (2) it has the volume specified

6568and the manner i n which that was determined ; (3) it is free of observable

6583defects or leaks ; and (4) whether it has a solids deflection device or outlet

6597filter device installed. If the tank cannot be certified, Form 4015 requires the

6610contractor to explain why. Importantly, neither the rules nor Form 4015

6621define Ñ observable defects Ò or otherwise explain what a contractor is expected

6634to do in order to observe defects with the tank.

664449. Along with Form 4015 , contractors must submit all other required

6655documentation . Of particu lar importance here, a recorded BUE is required

6667for a residential parcel consisting of multiple lots if the septic system

6679operates on more than one lot. Rule 62 - 6.004(7) (a) provides as follows :

6694Where a property owner proposes to build or has

6703built a single residence or a single business or

6712multiple residences or businesses on multiple lots,

6719and the residence Ô s or business Ô s authorized sewage

6730flow requires the use of multiple lots, or parts

6739thereof, for the onsite sewage treatment and

6746disposal system, the pr operty owner must submit,

6754prior to issuance of a permit, a written utility

6763easement executed and recorded in the public

6770property records at the county courthouse. The

6777utility easement must bind the required property

6784together so that the original lots and t heir

6793collective size, or part thereof, is retained for

6801purposes of the onsite sewage treatment and

6808disposal system, and must include provisions for

6815maintaining the onsite sewage treatment and

6821disposal system. For example, a residence or

6828business built on t hree lots with a sewage flow

6838which is large enough to require the land from all

6848three lots must have a written utility easement

6856executed and recorded in the public property

6863records before an onsite sewage treatment and

6870disposal system construction permit m ay be issued.

6878In order to obtain a repair permit, the property

6887owner must submit a copy of the recorded utility

6896easement demonstrating the retention of the

6902original lots and their collective size for purposes of

6911the onsite sewage treatment and disposal sys tem

6919and a method for maintaining the system.

6926S ee also § 381.0065(2)(j) , Fla. Stat. (defining l ot as Ñ a parcel or tract of land

6944described by reference to recorded plats or by metes and bounds, or the least

6958fractional part of subdivided lands having limited fixed boundaries or an

6969assigned number, letter, or any other legal description by which it can be

6982identified Ò ).

698550. Upon receipt of Form 4015 , DEP or the local regulatory agency ( e.g. ,

6999DOH in Orlando) Ñ shall make every effort to issue a permit within 2 w orking

7015days after receiving the application for system repair . Ò Fla. Admin. Code R.

702962 - 6.015(5). I f an application is deficient or additional information is needed,

7043the deficiencies must be corrected before the permit can be issued .

705551. Once th e permit i s issued, the contractor shall conduct the repairs in

7070accordance with the requirements of chapter 381 and rule chapter 62 - 6 . One

7085such requirement prohibits making a repair to a drainfield using spoil

7096material , which is defined as:

7101any part of the existing drainfield, any adjacent soil

7110material within 24 inches vertically and 12 inches

7118horizontally of the drainfield, and any soil that has

7127visible signs of effluent that has been removed as

7136part of a repair, modification or abandonment of an

7145onsite sewage trea tment and disposal system.

7152Fla. Admin. Code R. 62 - 6.002(50). Th is prohibition is set forth in rule 62 -

71696.015 (6) as follows:

7173Construction materials used in system repairs shall

7180be of the same quality as those required for new

7190system construction. Aggregate and soil in spoil

7197material from drainfield repairs shall not be used

7205in system repair in any manner. Undamaged

7212infiltration units, pipes and mechanical

7217components may be reused on the original site. Any

7226spoil material taken off site shall be disposed of i n a

7238permitted landfill or shall be limed and stockpiled

7246for at least 30 days to prevent a sanitary nuisance.

7256Offsite spoil material stockpile areas shall meet the

7264prohibition requirements of subsection 62 -

7270701.300(2), F.A.C. The resulting lime - treated

7277mater ial shall not be used for drainfield repair, or

7287construction of any onsite sewage treatment and

7294disposal system . Any use of the lime treated

7303material shall not cause a violation of chapter 386

7312F.S., and shall not impair groundwater or surface

7320water. Minera l aggregate and soil in spoil material

7329may, at the option of the septic tank contractor and

7339the property owner, be buried on site if limed before

7349burial. Lime amount must be sufficient to preclude

7357a sanitary nuisance. Depth of seasonal high water

7365table to the spoil material must be at least six

7375inches. Setbacks for buried spoil material shall be

7383the same as for onsite sewage treatment and

7391disposal system drainfields. A minimum of six

7398inches of slightly or moderately limited soil shall

7406cover the spoil materi al and shall extend to at least

7417five feet around the perimeter of the burial site. È

742752. After completing the repairs, a contractor must notify the agency and

7439have the system inspected before placing it back into service. As to the

7452required inspection, r ule 62 - 6.003 provides as follows:

7462(2) System Inspection -- Before covering with earth

7470and before placing a system into service, a person

7479installing or constructing any portion of an onsite

7487sewage treatment and disposal system shall notify

7494the Department of the completion of the

7501construction activities and shall have the system

7508inspected by the Department for compliance with

7515the requirements of this chapter, except as noted in

7524subsection 62 - 6.003(3), F.A.C., for repair

7531installations.

7532(a) If the system const ruction is approved after an

7542inspection by the Department, the Department

7548shall issue a Ñ Construction Approval Ò notice to the

7558installer.

7559(b) If the system installation does not pass the

7568construction inspection on any type of system

7575installation, the insta ller shall make all required

7583corrections and notify the Department of the

7590completion of the work prior to reinspection of the

7599system. A reinspection fee shall be charged to the

7608installer for each additional inspection leading up

7615to construction approval.

7618(c) Final installation approval shall not be granted

7626until the Department has confirmed that all

7633requirements of this chapter, including building

7639construction and lot grading are in compliance with

7647plans and specifications submitted with the permit

7654applica tion.

7656* * *

7659(3) Repair Inspections -- A system repair shall be

7668inspected by the Department or a master septic

7676tank contractor to determine compliance with

7682construction permit standards prior to final

7688covering of the system. Inspections shall comp ly

7696with subsection 62 - 6.003(2) È .

770353. Registered c ontractors must ensure Ñ that work for which they have

7716contracted and which has been performed by them or under their supervision

7728is carried out in conformance with the requirements of all applicable Flor ida

7741Statutes and Chapter 62 - 6, F.A.C. Ò Fla. Admin. Code R. 62 - 6.022(1). If they

7758fail to do so , DEP may impose discipline based on the penalty guidelines .

777254. Section 381.0065(5)(b) 3. provides that Ñ [t]he fines imposed by a

7784citation issued by the departmen t may not exceed $500 for each violation. Ò

7798Similarly, s ection 381.0061 (1) provides that, Ñ [i] n addition to any

7811administrative action authorized by chapter 120 or by other law, the

7822department may impose a fine, which may not exceed $500 for each violation,

7835for a violation of s. 381.006(15), s. 381.0065, s. 381.0066, s. 381.0072, or È for

7850a violation of any rule adopted under this chapter . Ò

786155. Rule 62 - 6.022(1) also sets forth disciplinary guidelines for specific

7873violations and provides as follows:

7878The fol lowing actions by a person included under

7887this rule shall be deemed unethical and subject to

7896penalties as set forth in this section. The penalties

7905listed shall be used as guidelines in disciplinary

7913cases, absent aggravating or mitigating

7918circumstances and subject to other provisions of

7925this section.

7927* * *

7930(b) Permit violations.

79331. Contractor initiates work to install, modify, or

7941repair a system when no permit has been issued by

7951the Department. A permit is issued after

7958construction is started but prior to completion of

7966the contracted work. No inspections are missed.

7973First violation, letter of warning or fine up to

7982$500.00; repeat violation, $500.00 fine and 90 day

7990suspension or revocation.

7993* * *

7996(d) Failure to call for required inspection s. First

8005violation, letter of warning or fine up to $500.00;

8014repeat violation, letter of warning or fine up to

8023$500.00 and 90 day suspension or revocation.

8030* * *

8033(l) Gross negligence, incompetence, or misconduct

8039which:

80401. Causes no monetary or o ther harm to a

8050customer, or physical harm to any person. First

8058violation, letter of warning or fine up to $500.00;

8067repeat violation, $500.00 fine and 90 day

8074suspension or revocation.

80772. Causes monetary or other harm to a customer, or

8087physical harm to any person. First violation, letter

8095of warning or fine up to $500.00 and 90 day

8105suspension; repeat violation, $500.00 fine and

8111revocation.

8112* * *

8115(p) Installation, modification, or repair of an onsite

8123sewage treatment and disposal system in violation

8130of the standards of S ection 381.0065 or 381.00655,

8139F.S., or Chapter 62 - 6, F.A.C. First violation, letter

8149of warning or fine up to $500.00 per specific

8158standard violated; repeat violation, 90 day

8164suspension or revocation.

816756. In applying the penalty guidel ines and determining the appropriate

8178penalty , if any, DEP is required to consider aggravating and mitigating

8189factors . Section 381.0065(5)(b) 5. authorizes DEP to Ñ reduce or waive the fine

8203imposed , Ò upon consideration of Ñ the gravity of the violation, the pe rson Ô s

8219attempts at correcting the violation, and the person Ô s history of previous

8232violations including violations for which enforcement actions were taken . Ò

8243Section 381.0061 (2) is largely in accord and requires DEP to consider the

8256following factors in dete rmining the amount of a fine:

8266(a) The gravity of the violation, including the

8274probability that death or serious physical or

8281emotional harm to any person will result or has

8290resulted, the severity of the actual or potential

8298harm, and the extent to which the provisions of the

8308applicable statutes or rules were violated.

8314(b) Actions taken by the owner or operator to

8323correct violations.

8325(c) Any previous violations.

832957. Pursuant to rule 62 - 6.022(2), DEP also must consider the following

8342circumstances for purpose s of mitigation or aggravation of the penalty:

8353(a) Monetary or other damage to the registrant Ô s

8363customer, in any way associated with the violation,

8371which damage the registrant has not relieved, as of

8380the time the penalty is to be assessed.

8388(b) Actual job - site violations of this rule or

8398conditions exhibiting gross negligence,

8402incompetence or misconduct by the contractor,

8408which have not been corrected as of the time the

8418penalty is being assessed.

8422(c) The severity of the offense.

8428(d) The danger to the publi c.

8435(e) The number of repetitions of the offense.

8443(f) The number of complaints filed against the

8451contractor.

8452(g) The length of time the contractor has practiced

8461and registration category.

8464(h) The actual damage, physical or otherwise, to the

8473customer.

8474( i) The effect of the penalty upon the contractor Ô s

8486livelihood.

8487(j) Any efforts at rehabilitation.

8492(k) Any other mitigating or aggravating

8498circumstances.

8499Conway Gardens Road

850258. The Complaint alleged that Respondent violated section 381.0065(4)

8511and rule 6 2 - 6.003(1) by starting the repair of a septic system without a

8527permit. DEP seeks to impose a $250 fine for this violation.

853859. Based on the Findings of Fact above, DEP proved by clear and

8551convincing evidence that Respondent violated section 381.0065(4) a nd

8560rule 62 - 6.003(1) by starting to install a new drainfield without a permit.

857460. Respondent Ô s arguments to the contrary must be rejected. Respondent

8586primarily argued that a BUE should not have been required because the lots

8599were platted before the 1970s and, regardless, DOH should have issued the

8611permit and held it for final approval upon receipt of the BUE consistent with

8625its usual practice. However, a BUE is required even where a parcel consisting

8638of several lots is owned by the same person, so long as the septic system

8653requires the use of more than one of those lots to operate. § 381.0065(2)(j) ,

8667Fla. Stat.; Fla. Admin. Code R. 62 - 6.004(7)(a) . The fact that the lots were

8683platted before the 1970s only exempts the property from the lot size

8695requirements re lating to minimum surface water setbacks and limits on

8706projected daily flows; it does not exempt the property from the requirement to

8719submit a BUE when the septic system is installed on more than one lot.

8733§ 381.0065(4)(g) , Fla. Stat. Indeed, the purpose of the BUE is to ensure that

8747subsequent owners are on notice that a system is being utilized by all of the

8762lots . Further, the weight of the credible evidence did not support

8774Respondent Ô s argument that DOH contravened its customary practice by

8785refusing to con ditionally issue a permit in these circumstances.

879561. DEP seeks to impose a $250 fine against Respondent for this violation.

8808Pursuant to rule 62 - 6.022(1)(b)1 . , DEP has discretion to impose discipline for

8822this violation ranging from a letter of warning u p to a maximum fine of $500.

8838Based on the Findings of Fact above, DEP Ô s requested fine of $250 is

8853appropriate considering the balance of all applicable mitigation and

8862aggravation factors set forth in sections 381.0065(5)(b)5 . and 381.0061(2) ,

8872and in rule 6 2 - 6.022(2).

8879Arlene Avenue Ï Citations I and II

888662. Citation I alleged that Respondent committed the following violations:

8896(1) failing to contact DOH for a required reinspection prior to covering the

8909drainfield , in violation of rule 6 2 - 6.022(1) (d) ; (2) cov er ing the drainfield before

8926obtaining a reinspection and final approval , in violation of rule 62 - 6.003(2) ;

8939and (3) improperly repairing a septic tank system by using spoil material to

8952replace the drainfield, in violation of rules 62 - 6.015(6) and 62 - 6.022 (1 ) (p) .

897063. Based on the Findings of Fact above, DEP proved by clear and

8983convincing evidence that Respondent violated rule 6 2 - 6.022(1) (d) by failing to

8997call for a reinspection after failing an initial inspection. The weight of the

9010credible evidence confirme d that Respondent knew that DOH disapproved of

9021the repair work after the inspection , that corrective action had to be taken,

9034and that he had to call for a reinspection before closing the drainfield.

904764. DEP seeks to impose a $500 fine against Respondent for this violation.

9060Pursuant to rule 62 - 6.022(1)( d), DEP has discretion to impose discipline for

9074this violation ranging from a letter of warning up to a maximum fine of $500.

9089Based on the Findings of Fact above, DEP Ô s requested fine of $ 500 is

9105appropriate considering the balance of all applicable mitigation and

9114aggravation factors set forth in sections 381.0065(5)(b)5 . and 381.0061(2) ,

9124and in rule 62 - 6.022(2).

913065. Based on the Findings of Fact above, DEP proved by clear and

9143convincing evidence that Respon dent violated rule 6 2 - 6.0 03(2) by covering up

9158the drainfield without a final approval being issued by DOH. The weight of

9171the credible evidence confirmed that Respondent covered the drainfield

9180without obtaining final approval from DOH after a reinspection .

919066. DEP seeks to impose a $500 fine against Respondent for this violation.

9203Pursuant to rule 62 - 6.022(1)( d), DEP has discretion to impose discipline for

9217this violation ranging from a letter of warning up to a maximum fine of $500.

9232Based on the Findings of Fact above, DEP Ô s requested fine of $500 is

9247appropriate considering the balance of all applicable mitigation and

9256aggravation factors set forth in sections 381.0065(5)(b)5 . and 381.0061(2) ,

9266and in rule 62 - 6.022(2).

927267. Based on the Findings of Fact above , DEP proved by clear and

9285convincing evidence that Respondent violated rule 62 - 6.015(6) , which

9295prohibits the use of spoil material when installing a drainfield . T he weight of

9310the credible evidence established that Respondent dug up the dirt containing

9321spoi l material from the old drainfield, piled it along the fence on the property,

9336and then used the same dirt with the spoil material to fill the new drainfield.

935168. In both Citation I and in its PRO, DEP requests imposition of a $500

9366fine against Respondent for violating rule 62 - 6.015(6) and a separate $500

9379fine for violatin g rule 62 - 6.022(1)(p). However, the two violations are not

9393independent bases for imposing separate fines. That is because the factual

9404allegation is the same Ð i.e. , that Respondent improperl y used spoil material

9417in the drainfield Ð and the basis for DEP Ô s authority to impose up to a $500

9435fine for such conduct is through rule 62 - 6.022(1)(p). In other words, rule 62 -

94516.015(6) makes Respondent Ô s conduct improper and rule 62 - 6.022(1)(p)

9463authorizes D EP to impose a $500 fine for that improper conduct.

947569. Based on the Findings of Fact above, DEP Ô s requested fine of $500 for

9491the violation of rule 62 - 6.015(6), as authorized in rule 62 - 6.022(1)(p), is

9506appropriate considering the balance of all applicable mitigation and

9515aggravation factors set forth in sections 381.0065(5)(b)5 . and 381.0061(2) ,

9525and in rule 62 - 6.022(2).

953170. Citation II alleged that Respondent violated rule 62 - 6.022(1)( l ) by

9545engag ing in gross negligence, incompetence, or misconduct by fals ely

9556certif ying that the existing septic tank was free of observable defects , even

9569though it defectively had two inlet pipes installed .

957871. Based on the Findings of Fact above, DEP failed to prove by clear and

9593convincing evidence that Respondent committed gross negligence,

9600incompetence, or misconduct in violation of rule 62 - 6.022(1)(l) . The weight of

9614the credible evidence did not establish that the second inlet pipe was an

9627observable defect that Respondent was required to discover when signing the

9638certifica tion on Form 4015 for installation of a new drainfield .

965072. Further, r ules 62 - 6.015 (1) and 62 - 6.001(4) , and Form 4015 neither

9666define the term Ñ observable defect Ò n or specify what contractors must do

9680other than Ñ perform a visual inspection of the tank when the tank is empty to

9696detect any observable defects or leaks in the tank . Ò Fla. Admin. Code R. 62 -

97136.001(4) . Thus , d iscipl in ing Respondent for failing to inspect the inside of the

9729tank with a flashlight or mirror to discover the second inlet pipe and identif y

9744it as a defect on Form 4015 would be improper . See McCloskey v. Dep Ô t of Fin.

9763Servs. , 115 So. 3d 441, 444 (Fla. 5th DCA 2013) ( Ñ Where a statute imposes

9779sanctions and penalties in the nature of denial or revocation of a license to

9793practice for violating i ts proscriptions, such a statute Ó must be strictly

9806construed and no conduct is to be regarded as included within it that is not

9821reasonably proscribed by it. ÔÒ ) (quoting Lester v. Dep Ô t of Pro . & Occ. Reg ul . ,

9841348 So. 2d 923, 925 (Fla. 1st DCA 1977)); Elmari ah v. Dep Ô t of Pro . Reg ul . ,

9862574 So. 2d 164, 165 (Fla. 1st DCA 1990) (holding that a statute imposing

9876Ñ sanctions or penalties Ò is Ñ penal in nature and must be strictly construed,

9891with any ambiguity interpreted in favor of the licensee Ò ); cf . Breesmen v. Dep Ô t

9909of Pro . Reg ul . , 567 So. 2d 469, 471 (Fla. 1st DCA 1990) ( Ñ Basic due process

9929requires that a professional or business license not be suspended or revoked

9941without adequate notice to the licensee of the standard of conduct to which he

9955or she must adhere. Ò ) . The lack of any specificity at to what defects are

9972observable and what contractors are expected to do when conducting a visual

9984inspection of a tank for such defects also p recludes a finding that Respondent

9998committed gross negligence, incompetence, or mis conduct.

1000573. The undersigned rejects DEP Ô s argument that rule 62 - 6.013(2)(f),

10018which uses Ñinlet Ò in singular form as part of the phrase Ñinlet and outlet

10033devices , Ò sufficiently put Respondent on notice that tank s should only have

10046one inlet and that a tan k with two is an observable defect. However, the last

10062sentence of the same subdivision refers to Ñ[i]nlets and outletsÒ in plural

10074form, undermining the suggestion that this rule makes clear that tanks can

10086only have one inlet. DEP Ô s argument is also undermi ned by rule 62 -

101026.013(4)(h)4., which provides a list of Ñ unacceptable defects Ò that must be

10115reported when conducting an annual inspection of a septic tank

10125manufacturer Ô s inventory. That rule uses the terms Ñ inlets and outlets Ò in

10140plural form when discussing the type of defects that must be reported and,

10153importantly, does not identify multiple inlets as a defect. Even assuming the

10165tank was defective for this reason, DEP failed to prove by clear and

10178convincing evidence that it was observable.

10184R ECOMMENDATION

10186B ased on the foregoing Findings of Fact and Conclusions of Law, it is

10200R ECOMMENDED that the Department of Environmental Protection issue a

10210final order imposing administrative fines against Respondent in the amount

10220of $1,750.00, comprised of $2 50 for the viol ations in the Complaint, $ 1,000 for

10238the violations in Citation I, and $500 for the violations in Citation II.

10251D ONE A ND E NTERED this 5th day of August , 2022 , in Tallahassee, Leon

10266County, Florida.

10268S

10269A NDREW D. M ANKO

10274Administrative Law Judge

102771230 Apalachee Parkway

10280Tallahassee, Florida 32399 - 3060

10285(850) 488 - 9675

10289www.doah.state.fl.us

10290Filed with the Clerk of the

10296Division of Administrative Hearings

10300this 5th day of August, 2022 .

10307C OPIES F URNISHED :

10312Jay Patrick Reynolds, Esquire S cott M . T homson

10322Department of Environmental Protec tion Mathi s and Sons Septic LLC

10333Doulgas Building, Mail Stop 35 4947 South Orange Avenue

103423900 Commonwealth Boulevard Orlando, Florida 32806

10348Tallahassee, Florida 32399 - 3000

10353Lea Crandall, Agency Clerk

10357John Ryen Morgan - Ring, Esquire Department of Environmental Protection

10367Department of Environmental Protection Douglas Building, Mail Station 35

10376Office of General Counsel 3900 Commonwealth Boulevard

10383Douglas Building, Mail Station 35 Tallahassee, Florida 32399 - 3000

103933500 Commonwealth Boulevar d

10397Tallahassee, Florida 32399 - 3000 Shawn Hamilton, Secret ary

10406Department of Environmental Protection

10410Justin G. Wolfe, General Counsel Douglas Building

10417Department of Environmental Protection 3900 Commonwealth Boulevard

10424Legal Department, Suite 1051 - J Tallahassee, FL 32399 - 3000

10435Douglas Building, Mail Station 35

104403900 Commonwealth Boulevard

10443Tallahassee, Florida 32399 - 3000

10448N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

10459All parties have the right to submit written exceptions within 15 days from

10472the date of this Recomm ended Order. Any exceptions to this Recommended

10484Order should be filed with the agency that will issue the Final Order in this

10499case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 08/05/2022
Proceedings: Recommended Order
PDF:
Date: 08/05/2022
Proceedings: Recommended Order (hearing held June 21, 2022). CASE CLOSED.
PDF:
Date: 08/05/2022
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 07/18/2022
Proceedings: Department of Environmental Protection's Proposed Recommended Order filed.
PDF:
Date: 07/06/2022
Proceedings: Notice of Final Hearing Transcript.
PDF:
Date: 07/06/2022
Proceedings: Notice of Final Hearing Transcript.
PDF:
Date: 07/06/2022
Proceedings: Transcript of Proceedings (not available for viewing) (filed in Case No. 22-000074).
PDF:
Date: 07/06/2022
Proceedings: Transcript of Proceedings (not available for viewing) filed.
PDF:
Date: 06/24/2022
Proceedings: Requested Proposed Recommended Order from Respondent filed.
Date: 06/21/2022
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 06/14/2022
Proceedings: Notice of Filing Proposed Exhibits filed (exhibits not available for viewing).
PDF:
Date: 06/14/2022
Proceedings: Notice of Filing Proposed Exhibits filed (exhibits not available for viewing).
Date: 06/13/2022
Proceedings: Respondent's Proposed Exhibits filed (exhibits not available for viewing).
Date: 06/13/2022
Proceedings: Respondent's Proposed Exhibits filed (exhibits not available for viewing).
Date: 06/13/2022
Proceedings: Respondent's Proposed Exhibits filed (exhibits not available for viewing).
Date: 06/13/2022
Proceedings: Respondent's Proposed Exhibits filed (exhibits not available for viewing).
PDF:
Date: 06/06/2022
Proceedings: Second Order of Consolidation (DOAH Case Nos. 22-0070, 22-0074, and 22-1620)
PDF:
Date: 06/03/2022
Proceedings: Notice of Telephonic Pre-hearing Conference (set for June 6, 2022; 9:00 a.m., Eastern Time).
PDF:
Date: 06/01/2022
Proceedings: Initial Order.
PDF:
Date: 06/01/2022
Proceedings: Petition for Formal Administrative Hearing filed.
PDF:
Date: 06/01/2022
Proceedings: Citation for Violation Onsite Sewage Program/Sanitary Nuisance filed.
PDF:
Date: 06/01/2022
Proceedings: Request for Assignment of Administrative Law Judge and Notice of Preservation of Record filed.

Case Information

Judge:
ANDREW D. MANKO
Date Filed:
06/01/2022
Date Assignment:
06/01/2022
Last Docket Entry:
08/05/2022
Location:
Orlando, Florida
District:
Middle
Agency:
Department of Environmental Protection
 

Counsels

Related Florida Statute(s) (9):