STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JERRY SEYMOUR, )

)

Petitioner, )

)

vs. ) CASE NO. 75-1059

)

BROWARD COUNTY HEALTH ) DEPARTMENT, STATE OF FLORIDA, ) DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

A public hearing was held pursuant to notice in the above styled cause for Room 234, Broward County Health Department, 2421 S.W. 6th Avenue, Fort Lauderdale, Florida; however, because of difficulties with the facilities available and by agreement of all the parties the hearing was held in the auditorium of the Department of Transportation Building which was next door.

Appropriate notice of the change was placed upon the door of Room 234 above, and all witnesses were advised and were in attendance.

Jerry Seymour was a property owner in Broward County who applied to the Broward County Health Department (BCHD) for a septic tank or waste treatment permit. Seymour had made three applications for such a permit and this matter arose when his third application was not approved and he was advised of his right to a formal hearing pursuant to Section 120.57, Florida Statutes. Seymour petitioned for a formal hearing.

APPEARANCES

For Petitioner: Christopher B. Knox, Counsel For Respondent: Barbara Dell McPherson, Counsel

Witnesses: The Broward County Health Department called two witnesses: Willis A. Hillyer and Norman Tuckett.

The applicant, Jerry Seymour, testified on his own behalf, and called

three witnesses: James M. McLaughlin, Frank L. Kleeman and Raymond L. Payton.

ISSUES

The position of BCHD regarding the application was stated in its letter dated May 14, 1975 which denied the application on two grounds:

1. The proposed installation would not be 36 inches above the water table elevation during the wettest season of the year, and

2. The proposed installation would require more than reasonable maintenance and that without maintenance it would not function in a sanitary manner, create a nuisance, health hazard or endanger the safety of any domestic water supply.

Seymour's position was that the system proposed in the third application was designed by a sanitary engineer to overcome the objective stated above when installed according to the plans submitted.

FINDINGS OF FACT

1. Testimony developed that the application under consideration was the third such application submitted by the applicant. A copy of said application and supporting documents were made a part of the original petition. This application was investigated by Willis A. Hillyer who had taken the photographs introduced as Exhibit 1 relative to the investigation of the preceding application. These photographs indicated that there was standing water on the property from October 7 until October 25, 1974, which had been during the wettest portion of the year 1974. Hillyer concluded from the duration of the water standing on the low lying areas of Seymour's property that the water table was approximately five (5) inches above the lowest levels of the property. Hillyer then determined that the average height of the pad on the property was

   25.7 inches above the lowest level of the property, and nineteen (19) inches above the crown in the road adjoining the property. This resulted in a difference of nineteen (19) inches between the highest water level at the wettest time of the year from the lowest point in the proposed drain field.

   
   

2. Hillyer also testified that having such a drain field built on a pad filled in above the normal ground level was a potential health hazard because effluent could leak out from the edges of the pad. The pad shown in Exhibit 1 is not, however, the size of the pad proposed in the third application (100' x 140'). Hillyer's testimony was corroborated by Norman Tuckett who stated further than the plans attached to the third application indicated a gravity flow system which would be prone to maintenance problems and which, if it malfunctioned, would be potentially hazardous.

   
   

3. Frank L. Kleeman and Raymond L. Payton testified for the applicant explaining the system which they had designed and drawn to overcome the grounds given by BCHD for rejection of the applicant's second application which were similar to those given for denial of the third application. Kleeman's design would take influent from the proposed single family residence to he placed on the property and placed it into a CA900 aerobic treatment tank. In this unit solids would be separated and allowed to filter slowly to the bottom of the tank. Periodically the liquid would be pumped through tubing above the liquid level of the tank where air would be drawn into the stream by the venturi principle accelerating the oxidation of waste. There are provisions for the auxiliary pumping of compressed air into diffusers mounted on the bottom of the tank, if required to achieve the optimum aerobic effect. A portion of of the liquid being pumped would be diverted into a settling tank where it would be held for a predetermined period of time to allow any remaining solids to settle. Thereafter, this "liquor" would be pumped through a chlorinator, have an amount of chlorine dissolved in it and be pumped into a chlorine contact chamber to allow the chlorine a chance to eliminate coliform bacteria. This tank would be constructed so that incoming fluids are pumped in at the bottom forcing the treated fluids up and out a gravity flow into the drain field. The tank's size (although not indicated on the plans) would be dependent upon the needed

   capacities as determined by existing table and formulas to provide a 30 minute treatment time as stated in the plan. This exposure time was generally accepted to be sufficient to kill the bacteria. Kleeman and Payton also testified that the contact chlorinator was relatively simple and was maintained on a service contract by the installers of the system. Such maintenance of a system, represented by Tuckett to be commonly used in home swimming pools, would appear to meet the reasonable maintenance standards of the rules. Kleeman indicated that if the system malfunctioned the pumps were designed to shut down and stop the flow of untreated materials from the aerobic treatment tank. After these pumps shut down, an alarm would sound in the treatment utility room warning the users that the equipment required maintenance. The aerobic tank would have enough capacity that it could accept raw sewage for 3-4 days after the equipment malfunctioned giving the users a time cushion in which to obtain maintenance assistance. The drain field according to Kleeman would be installed just under the surface of a pad (100' x 140') which would be filled to 18 inches from the crown of the adjoining road. According to Kleeman this would be sufficient to place the drain field 42 inches above the water table and to prevent leakage from the pad area.

   
   

4. Kleeman's testimony raised a factual dispute between Kleeman and Hillyer, because Hillyer's measurements indicated that the existing pad was more than 18 inches above the crown of the road. If Hillyer was correct then the level of drain field designed by Kleeman would not be 36 inches away from the highest water table measured in October, 1974.

   
   

5. The applicant presented evidence that the water level since October, 1974, has not been as high. The Division presented evidence that the area was suffering a drought which had lowered the water table. The Hearing Officer notes the application in question was submitted in January, 1975, and it would appear procedural sound and expedient for the BCHD to utilize water table data from October, 1974 for a January, 1975 application.

   
   

6. The applicant indicated on the record his willingness to build or fill a pad which would place the drain field 42 inches above the high water table level as designed by Kleeman. The Hearing Officer finds that the water table level existing in October, 1974, would he the appropriate measure for considering this January, 1975 application.

   
   

7. The Hearing Officer having examined Exhibit 1 finds that the water surrounding the pad is of uniform level in many photos approaches the edge of the paved road indicated in the Kleeman plan. It would appear therefore that measurements taken by Hillyer would be corrected assuming that the crown would be 3 to 6 inches above the water level, an estimate made by James M. McLaughlin, the applicant's surveyor. Although McLaughlin's testimony is not conclusive, the Hearing Officer finds that the evidence taken as a whole supports the proposition that a pad 18 inches above the crown of the road would not raise the proposed drain field sufficiently to place it 36 inches away from the water table level existing in October, 1974.

   
   

   CONCLUSIONS OF LAW

8. Rule 10D-6.04, F.A.C., provides in pertinent part as follows: "Location and installation. (1) Individual

   sewage disposal system shall be located and

   installed so that with reasonable maintenance it will function in a sanitary manner, not

   create nuisance, health hazard or endanger safety of any domestic water supply.

   Consideration shall be given size and shape of lot, slope of ground surface, water table elevation, characteristics of soils, proximity of existing or future water supplies and possible expansion of system."

9. Rule 10D-6.05, F.A.C., provides in pertinent part as follows: "Non-use of Septic Tank System. (2) A septic

   tank system shall not be used on a parcel, lot or building site unless in compliance with the following requirements: (e) Water table elevation during wettest season of year at least thirty-six (36) inches below finished grade of building site."

   
   

10. The testimony of Kleeman and Payton indicates that the proposed system properly installed 42 inches above the highest water table level and maintained would overcome the health and nuisance objections raised by BCHD. This testimony also indicates that the system as designed would be relatively "fail safe" and require only reasonable maintenance. The requirements of Rule 10D- 6.04, F.A.C., would be met. The Hearing Officer notes the testimony of Tuckett who indicated his professional reluctance to allow any septic tank or similar system using drain fields in the area of the Seymour property until primary and secondary drainage is installed; however, it would appear that the system under consideration installed 42 inches from the October, 1974, high water table level would meet the criteria established by Rule 10D-6.05, F.A.C.

RECOMMENDED ORDER

Wherefore, the Hearing Officer finds that if the planned drain field is installed on a 100' x 140' pad filled an additional 23 inches above its current pad level it will be 42 inches from the October, 1974 high water able measure, meeting the criteria established by law and I would recommend its approval.

DONE and ORDERED this 10th day of October, 1975.

STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Christopher B. Knox, Esquire BURDICK AND DONAHOE

1001 South Andrews Avenue

Fort Lauderdale, Florida 33316

Barbara Dell McPherson, Esquire Staff Attorney

Division of Health Post Office Box 210

Jacksonville, Florida 32201

Docket for Case No: 75-001059

Orders for Case No: 75-001059