STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ELINOR BURGER, )

)

Petitioner, )

)

vs. ) CASE NO. 79-2489

) ALEX RUTKOWSKI and DEPARTMENT ) OF HEALTH AND REHABILITATIVE ) SERVICES, )

)

Respondent. )

)

)

RECOMMENDED ORDER

Pursuant to notice an administrative hearing was held before Delphene C. Strickland, Hearing Officer of the Division of Administrative Hearings, in Courtroom "D" of the Pinellas County Courthouse, 315 Haven Street in Clearwater, Florida, at 9:30 a.m. February 12, 1980

APPEARANCES

For Petitioner: William W. Gilkey, Esquire

Richards Building 1253 Park Street

Clearwater Florida 33516

For Respondent: Barbara Dell McPherson, Esquire

Department of HRS Post Office Box 5046

Clearwater, Florida 33518

ISSUES

1. Whether a septic tank construction permit should be issued by the Respondent, Department of Health and Rehabilitative Services, for use by the Respondent, Alex Rutkowski, owner of Lot number 6, Block E, Carlton Terrace Subdivision First Addition, in Clearwater, Florida.

   
   

2. Whether the filling in of Lot number 6 and the construction of a septic tank will damage the residence of the Petitioner, Elinor Burger, on Lot number 5.

FINDINGS OF FACT

1. The Respondent, Alex Rutkowski, and his wife own Lot number 6, Block E, Carlton Terrace Subdivision, First Addition, in Clearwater, Florida in which the sixteen (16) lots are approximately 70 feet wide and 105 to 150 feet deep. The soil in the area is Mayakka Fine Sand, a poorly drained soil which has a water

   table normally at a depth of ten (10) to thirty (30) inches below ground surface, but which rises to the surface for a short time during wet periods.

   
   

2. After respondent Rutkowski's initial application for a permit to install a septic tank on Lot number 6 had been denied, he employed an engineer and filed a plan for proposed site modification. The plan was received by the Respondent, Department of Health and Rehabilitative Services, and Rutkowski was notified on December 6, 1979, that the plan to remove the existing land fill, replace it with Astatula Fine Sand and raise the building pad appeared to be acceptable for the issuance of a septic tank construction permit, but that no further action on the application for the permit could be taken until after an administrative ruling on a protest by a neighboring property owner (Respondent' Exhibits 1, 4 and 5). The Pinellas County Engineering Department had approved the drainage for the area on October 9, 1979 (Respondent's Exhibit 2).

   
   

3. The Petitioner, Elinor Burger, has lived on Lot number 5, which adjoins Lot number 6, since 1957. When there is a heavy rain of three (3) to four (4) inches, her septic tank fails to operate, and water stands in her back yard.

   She has seen and smelled polluted water standing in the street in front of her home. Water also stands on a second lot she owns adjoining her residence after a heavy rain preventing the mowing of the lot for long periods of time. Ms.

   Burger has unsuccessfully sought to connect to a sewer system by petitions for sewer connection on at least- three (3) occasions and has laid additional drainage lines to help solve her problem. In the spring, summer and fall of 1979, she had severe water problems. Ms. Burger believes the elevation of Lot number 6 would cause further water damage to her property, and that a septic tank on Lot number 6 would add more sewage problems to the area

   
   

4. A witness for Petitioner, Alan Flandreau, who lives with his wife and three (3) children on lot number 13 adjoining Lot number 5 in the subdivision, has a septic tank that fills up in rainy weather and runs into the street, resulting in a stench and green slime. Flandreau has had his septic tank pumped out a number of times since 1968, when he bought his home. His lot is low, and water drains onto his property from other lots.

   
   

5. A witness for Petitioner, Burl Crowe, owns Lot number 11 and lives on Lot number 12. Lot number 11 adjoins Lot number 6, and Lot number 12 borders on the property of Petitioner Burger. Crowe has lived on Lot number 12 for fourteen (14) years and on many occasions had water entering his garage and standing in his yard when it rains. He has seen Lot number 6 under water and water standing on the street in front of his house,

   
   

6. A witness for the Respondents was Gerald Goulish, the professional engineer who prepared the site modification plan (Respondent's Exhibits 4 and 8). Goulish has studied the site together with Rule 10D-6 of the Florida Administrative Code (infra) and believes the plan to fill the location of the septic tank site will cause the soil to percolate and evaporate and the proposed elevation of Lot number 6 two (2) feet will cause the water to drain toward the street and not onto adjoining property. He suggested that the adjoining and adjacent property owners cooperate and construct common swales to eliminate the surface water problems.

   
   

7. A second witness for the Respondents was Burt Fraser, a sanitary supervisor for the Pinellas County Health Department, who denied the first application for installation of a septic tank on Lot number 6 but notified Respondent Rutkowski that the lot could be modified. Thereafter, he wrote Rutkowski that a modification plan had been received which meets the minimum

   requirements of the Florida Administrative Code. Fraser stated that he will issue a permit for construction of a septic tank upon completion of the administrative hearing procedure unless directed not to issue such a permit. Fraser agreed that the conditions as described by Petitioner Burger and her witnesses are accurate, and that the subdivision has problems which will not be solved until sanitary sewers are installed, but he believes that he has no alternative except to issue a permit if an applicant meets the requirements of Rule 10D-6.25 Florida Administrative Code. He knows of no requirement to make a study of adjacent and adjoining properties, and Respondent Department has not made a study.

   
   

8. There are seven (7) houses in the sixteen (16) lot subdivision. The area is low and subject to flooding because of soil texture. There is an undisputed drainage problem in the area which causes a septic tank problem to the residents. The addition of more houses and septic tanks will increase the already serious drainage conditions which are public health nuisances.

   
   

9. The Respondent, Department of Health and Rehabilitative Services, submitted proposed findings of fact, memorandum of law and a proposed recommended order. These instruments were considered in the writing of this order. To the extent the proposed findings of fact have not been adopted in or are inconsistent with factual findings in this order, they have been specifically rejected as being irrelevant or not having been supported by the evidence.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction of this matter and the parties thereto pursuant to Section 120.57, Florida Statutes.

    
    

11. Section 301.031 Duties and powers of the Department of Health and Rehabilitative Services -- provides:

    
    

    1. It shall be the duty of the Department of Health and Rehabilitative Services to:

       1. Formulate general policies of affecting the public health of the state.

    (h) Supervise generally the enforcement of laws rules and regulations relating to sanitation

    (g) Adopt, promulgate, repeal, and amend rules consistent with law regulating: . . .

    1. Prevention and control of public health nuisances.

    2. Sanitary practices relating to drinking water made accessible to the public; water-

sheds used for public water supplies; the disposal of excreta, sewage, or other wastes; . . .

1. The execution of any other purpose or

   intent of the laws enacted for the protection of the public health of Florida . . . .

   1. The department may commence and maintain all proper

      and necessary actions and proceedings for any or all of the following purposes:

      1. To enforce its rules and regulations...

      2. 3. In addition to the authority granted by this law, the department may commence and

         maintain all proper and necessary actions and proceedings to enjoin and abate nuisances dangerous to the health of persons, fish, and livestock.

      3. To compel the performance of any act specifically required of any person, officer, or board by

         any law of this state relating to public health.

      4. To protect and preserve the public health.

         
         

2. The foregoing statute requires the Respondent, Department of Health and Rehabilitative Services, to promulgate rules and regulations to prevent and control public health nuisances and to regulate the disposal of excrete, sewage and other waste.

   
   

3. Rule 10D-6.25 Non-use of Septic Tank System provides:

   
   

   (2) A septic tank system shall not be used on a parcel, lot or building site unless in compliance with all the requirements of this Chapter and the following:

   1. The water table elevation during the wettest season of the year shall be at least thirty-six (36) inches below the finished grade at the drainfield

   or absorption bed site....

   
   

4. The proposed site modification would bring the subject property into compliance with Rule 10D-6.25, Florida Administrative Code, although there has been no long-term experience with this type of land modification.

   
   

5. Rule 10D-6.24 Location and Installation. provides:

   
   

   1. An individual sewage disposal system shall be located and installed so that with reasonable maintenance it functions in a sanitary manner, does not create nuisances or health hazards and does not endanger the safety of any domestic water supply . . . .

      (5) Installation shall not be made in filled areas unless thoroughly and mechanically compacted or until allowed to settle for a period of at least six (6) months, and shall not be made in low swampy

      areas with a permanent high water table, or in areas subject to flooding based on ten year flood elevations. . . .

      
      

6. If a septic tank is to be installed, Rule 10D-6.24(1) requires that it be installed so that "with reasonable maintenance it [will] function in a sanitary manner and does not create nuisances or health hazards. "

   
   

7. Rule 10D-6.24(5) prohibits installation in filled areas unless thoroughly and mechanically compacted or allowed to settle at least six (6) months, and is not to be installed "in low swampy areas with a permanent high water table, or in areas subject to flooding based on ten year flood elevations.

   
   

8. Respondent Rutkowski failed to show that the plan he proposes for Lot number 6 meets these criteria.

RECOMMENDATION

Based on the foregoing Findings and Conclusions of Law, the Hearing Officer recommends that Respondent Rutkowski's application for a permit for the construction of a septic tank on Lot number 6 be denied without prejudice to the Respondent to reapply if there should be a change in circumstances.

DONE and ORDERED this 10th day of April 1980, in Tallahassee, Leon County, Florida.

DELPHENE C. STRICKLAND

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED

Barbara Dell McPherson, Esquire Department of HRS

Post Office Box 5046 Clearwater, Florida 33518

William W. Gilkey, Esquire Richards Building

1253 Park Street

Clearwater, Florida 33516

Mr. Alex Rutkowski

30 North Evergreen Clearwater, Florida

Docket for Case No: 79-002489

Orders for Case No: 79-002489