Judges: D. R. ALEXANDER
Agency: Department of Health
Latest Update: Sep. 08, 1982
Summary: Application for septic tank permit in Broward County approved.
82-1038STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
ROBERT S. HOPKINS, )
)
Petitioner, )
)
vs. ) CASE NO. 82-1038
)
DEPARTMENT OF HEALTH and )
REHABILITATIVE SERVICES, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in the above case by the Division of Administrative Hearings, before its duly designated Hearing Officer, DONALD R. ALEXANDER, on July 1, 1982, in Fort Lauderdale, Florida.
APPEARANCES
For Petitioner: Joel Miller, Esquire
500 Northeast Third Avenue
Fort Lauderdale, Florida 33301
For Respondent: John M. Carlson, Esquire
2421 Southwest Sixth Avenue Fort Lauderdale, Florida 33315
BACKGROUND
By application filed on February 19, 1982, Petitioner, Robert S. Hopkins, sought the issuance of a septic tank permit from Respondent, Department of Health and Rehabilitative Services, Broward County Health Department, to authorize the construction of a septic tank and drainfield at Lot 236A, Pine Tree Estates in Parkland, Florida. By letter dated March 16, 1982, the Department denied the request on the ground Petitioner had not complied with certain rules contained in Chapter 10D-6, Florida Administrative Code.
Petitioner requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes, to contest the denial of his application. The matter was transmitted by Respondent to the Division of Administrative Hearings on April 21, 1982, with a request that a Hearing Officer be assigned to conduct a hearing. By agreement of the parties, the final hearing was scheduled for July 1, 1982, in Fort Lauderdale, Florida.
At the final hearing Petitioner testified on his own behalf, presented the testimony of George M. Park, Jr., a professional engineer, and offered Exhibits 1-9; all were received into evidence except Exhibits 4 and 6 upon which a ruling was reserved. Exhibit 2 is the deposition of David G. Bissett, a sanitary engineer employed by Respondent. Respondent presented the testimony of Norman
Tuckett, Jr., its Director of Environmental Engineering, and offered Exhibits 1 and 2, each of which was received in evidence.
There is no transcript of hearing in this proceeding. The parties were given the opportunity to file proposed findings of fact and conclusions of law; however, none were filed.
The issue herein is whether Petitioner's application for a septic tank permit should be granted.
Based upon all the evidence, the following findings of fact are determined: FINDINGS OF FACT
Petitioner, Robert S. Hopkins, is the owner of Lot 236A in Pine Tree Estates (unrecorded) located at 6959 NW 66th Way, Parkland, Florida.
On February 19, 1982, Petitioner filed an application wish Respondent, Department of Health and Rehabilitative Services, Broward County Health Department, seeking the issuance of a septic tank permit to authorize the construction and installation of a septic tank and drainfield on his property in Pine Tree Estates. He wishes to construct a new home on the lot, and in order to do so, must first obtain a septic tank permit.
The application was denied by letter dated March 16, 1982, on the grounds (a) the proposed installation would create a nuisance or health hazard and endanger the safety of a domestic water supply, (b) soil of sufficient quality or character from ground surface to the water table at the wettest season of the year or to a depth of six feet, whichever is lesser, did not exist, (c) the water table elevation during the wettest season of the year was not at least thirty-six inches below the finished grade at the drainfield or absorption bed site, (d) the proposed installation would create a sanitary nuisance, (e) the percolation test report was improperly prepared, and (f) the fill placed on the property would create a nuisance injurious to health. The letter of denial precipitated the instant hearing.
Parkland Estates is a partially developed subdivision in the City of Parkland, located in the northeastern portion of Broward County. It is bounded on the west by a Florida Power and Light Company power line easement and on the east by U.S. Highway 441. The subdivision is divided by Holmberg Road which runs in an east-west direction. Lot 236A lies to the north of Holmberg Road. The northern half of the subdivision is largely undeveloped except for a Girl Scout Camp and a home situated two lots south of Lot 236A. Unlike the southern half of the subdivision, the northern half has no canals or planned drainage system by which to handle the discharge of stormwater runoff.
Lot 236A is rectangular shaped and appears to be approximately one acre in size. Its elevation varies from approximately 16 1/2 feet above sea level (ASL) on the eastern side which fronts Northwest 66th Way to 15.1 feet ASL at the center of the lot. The property is populated with pine trees, palmetto, and several cypress trees.
The characteristics of the existing soil were not disclosed. However, in February, 1982, Petitioner excavated the existing material at the site of the absorption bed site to a depth of four feet. He then added suitable granular fill and mechanically compacted the fill as required by the Department rule.
A water percolation test was conducted on the newly added soil on February 15, 1982. A percolation rate of .156 minute per inches was obtained which meets Department standards. Compaction tests and moisture density tests were also made the same date.
Petitioner intends to elevate the height of the finished grade over the septic tank and drainfield from 15.1 feet to 17.0 feet by adding fill material to the ground surface. This technique is known as "mounding" and is intended to raise the elevation of the absorption bed site. The floor of the house will be constructed at 18.5 feet above sea level.
The level of the groundwater table on the proposed installation site is in dispute. Petitioner relies upon water table contours published by the U.S. Geological Survey which reflect the water table in the general area of the county where the subdivision is located as ranging from 10.4 feet to 13.2 feet between May, 1972 and October, 1980. From this, Petitioner's expert concluded that the water table is approximately 10.8 feet below the ground surface on Petitioner's lot. After adding fill, the distance between the groundwater table and the top of the absorption bed will be 6.2 feet, which is greater than the minimum distance of 6.0 feet required by Department rule.
Respondent did not suggest a specific elevation for the water table but asserts it is at or above ground level at the 7 present time. This conclusion is based upon Respondent's view that no adequate drainage in the area exists, and the fact that standing water is frequently observed on the lot. Photographs introduced into evidence confirm that standing water was on the lot during various times in 1982.
A private water supply well will be installed by Petitioner in the eastern part of his lot. It will sit more than seventy-five feet from the absorption bed. This distance complies with Department requirements.
The Department suggests that only after a planned drainage system is installed in the northern half of the subdivision will the area become suitable for installing septic tank systems. Otherwise, the water table cannot be controlled, and no means will exist by which to comply with health and sanitation requirements.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.
The requirements for installing an individual sewage disposal system are set forth in Chapter 10D-6, Florida Administrative Code. The Department relies upon the following provisions of Chapter 10D-6, in denying the requested permit:
10D-6.24(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.
10D-6.25(2)(a) - Soils of satisfactory quality or characteristics must exist from the ground surface to the water table at the wettest season of the year or to a depth of six (6) feet, whichever is the lesser.
10D-6.25(2)(e) - 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.
It also relies upon the grounds that percolation tests were not conducted in a manner satisfactory to the Department, and that the installation would create a sanitary nuisance within the meaning of Section 386.01, Florida Statutes.
After considering argument of counsel, Petitioner's Exhibits 4 and 6 are received in evidence. See Subsections 90.803(8) and 120.58(1)(a), Florida Statutes.
Respondent's contention that the percolation test was not conducted in a satisfactory manner is unavailing. The Department suggests that the test may not be conducted on "imported material"--but Rule 10D-6.31, Florida Administrative Code, provides no such proscription.
The remaining objections of the Department center around the elevation of the water table under Petitioner's property, and whether the applicable rules of the Department can be met. The evidence is conflicting as to the actual level of the water table. Data prepared by the U.S. Geological Service indicates the elevation ranged from 10.4 feet to 13.2 feet between 1972 and 1980. A professional engineer employed by Petitioner used an elevation figure of 10.8 feet in developing his construction plans; Respondent suggested that the water table was at or above the level of the ground surface since no drainage plan was in use. It is concluded that the greater weight of evidence supports Petitioner's position, and that his elevation figures should be used.
If fill material is added to an elevation of 17.0 feet as reflected on the construction plans, the water table elevation at the wettest season of the year will be at least 36 inches below the finished grade at the drainfield or absorption bed site. Rule 10D-6.25(2)(e), supra. Further, if a mound of at least two feet in height is built on the absorption bed site, the granular soil deposited thereon will satisfy the requirements of Rule 10D-6.25 (2)(a), supra. Respondent's remaining objection concerns a possible sanitary nuisance created by the lateral movement of sewage effluent if the water table rises to the natural ground surface. But the weight of the evidence does not support the 7 premise which underlies this concern, and it is concluded that no violation will occur.
RECOMMENDATION
Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Robert S. Hopkins for a septic tank
permit be APPROVED.
DONE and ENTERED this 22nd day of July, 1982, in Tallahassee, Florida.
DONALD R. ALEXANDER
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 22nd day July, 1982.
COPIES FURNISHED:
Joel Miller, Esquire
500 Northeast Third Avenue
Fort Lauderdale, Florida 33301
John M. Carlson, Esquire 2421 Southwest Sixth Avenue
Fort Lauderdale, Florida 33315
David H. Pingree, Secretary Department of Health and
Rehabilitative Services 1323 Winewood Boulevard
Tallahassee, Florida 32301
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AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF REHABILITATIVE SERVICES
ROBERT S. HOPKINS,
Petitioner,
vs. CASE NO. 82-1038
DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,
Respondent.
/
FINAL ORDER
The Department of Health and Rehabilitative Services, after having made a complete review of the record in this proceeding and having considered the Recommended Order, Exceptions To Recommended Order, and Response To Exceptions, hereby adopts the findings of fact and conclusions of law contained in the July 22, 1982 Recommended Order entered by Hearing Officer Donald R. Alexander, except for the following exceptions to the findings of fact and conclusions of law:
FINDINGS OF FACT
The first sentence of Paragraph 5 of the findings of fact in the Recommended Order is deleted as not being supported by substantial competent evidence. The following addition is made to the findings of fact and is supported by substantial competent evidence in the record: The characteristic of the existing soil on the lot in question is that it is impervious and of a generally rocky nature.
The last sentence of the first paragraph of Paragraph 7 of the findings of fact is deleted as not being based upon competent substantial evidence. The following sentence is added at the end of the first paragraph of paragraph 7 in the findings of fact and is supported by competent substantial evidence: The water table test performed by the U.S. Geological Service survey from May 1972 and October 1980 occurred during a period of extreme drought in South Florida.
The third sentence of the first paragraph of Paragraph 7 of the Findings of Fact refers to Petitioner's expert concluding that the water table is approximately 10.8 feet below the ground surface. This is not supported in the record by substantial competent evidence and is rejected. The evidence shows that Petitioner's expert said the water table is approximately 10.8 feet above sea level.
The following sentences are added at the end of Paragraph 7 of the Findings of Fact in the Recommended Order and are supported by competent substantial evidence in the record: The U.S. Geological Service survey tests are not an indication of the present water table. The water table level is presently above ground level. The water observed standing on the Hopkins lot from April 1982 through June 28, 1982 contained fish and topminnows. This is an indication of the permanent nature of the water standing on the Hopkins lot. The water table level is presently uncontrollable due to the lack of a drainage system and is only controlled by rain.
A new Paragraph 10 is added to the Findings of Fact in the Recommended Order and is based upon competent substantial evidence contained in the record: A lateral dispersion of untreated sewage effluent will occur on the lot in question if a septic tank system is employed. This is due to two factors. The soil characteristics of the Hopkins lot are of an impervious nature. The water table exists presently above ground level. The septic tank drain field will become saturated and this will result in the lateral dispersion of untreated sewage effluent at or near the ground level or along the water table. This lateral dispersion of effluent poses a serious health threat through the threat of contamination of wells and the spread of disease.
CONCLUSIONS OF LAW
The last two paragraphs of Paragraph 4 of the Conclusions of Law are rejected and the following conclusions are inserted: The water table elevation during the wettest season of the year will not be at least 36 inches below the finished grade at the drain field or absorption bed site as required by Rule 10D-6.25(2)(e), F.A.C. The water table elevation is presently above ground level. The ground level of the lot in question ranges from 15.1 to 16.5 feet above sea level. The grade of the drainfield proposed by Petitioner would be 17 feet. Therefore, the 36 inch requirement would not be satisfied.
Additionally, the water table level is presently due to the lack of a drainage system for the Hopkins lot. This lot is located in a subdivision which does not have a drainage system for its northern half, that is, the portion north of Holmberg Road. The satisfaction of the 36 inch requirement will not be met when there is an uncontrollable water table which occurs at or above the ground level.
The following addition is made to the Conclusions of Law: The placing of an individual sewage disposal system on the Hopkins lot will create a sanitary nuisance, pose a health hazard through the spread of disease and will pose a danger to domestic water supplies, and in particular the well to be located on the Hopkins lot. This is in violation of Rule 10D-6.24(1), F.A.C. The existence of the water table above ground level will cause the septic tank drain field to become saturated and will result In the lateral dispersion of untreated sewage effluent on the Hopkins lot. This lateral dispersion will be exacerbated by the rocky and impervious nature of the soil on the Hopkins property, and it is therefore
ORDERED that the application of Robert S. Hopkins for a septic tank permit be DENIED.
DONE and ORDERED this 3rd day of September 1982, in Tallahassee, Florida.
DAVID H. PINGREE
Secretary
================================================================= AGENCY FINAL ORDER ON REMAND
=================================================================
STATE OF FLORIDA
DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES
ROBERT S. HOPKINS, )
)
)
Petitioner, )
)
vs. ) CASE NO. 82-1038
)
DEPARTMENT OF HEALTH AND )
REHABILITATIVE SERVICES, )
)
Respondent. )
)
FINAL ORDER ON REMAND
The Department of Health and Rehabilitative Services, having received the opinion of the District Court of Appeal for the Fourth District of Florida in Robert S. Hopkins vs. Department of Health and Rehabilitative Services, DCA Case No. 82-2034, opinion filed April 13, 1983, and the order of the court also dated April 13, 1983 denying Respondent's motions, and the mandate of the District Court of Appeal dated May 2, 1983 reversing the original final order rendered in this proceeding on September 8, 1982 and directing the Department on remand to adopt the recommended order of the Division of Administrative Hearings Hearing Officer, it is therefore,
ORDERED that the Recommended Order of Donald R. Alexander, Hearing Officer, Division of Administrative Hearings, rendered July 22, 1982 is and the same shall be adopted as the final order in this proceeding, and that the application of Robert S. Hopkins, petitioner, for a septic tank permit is and the same shall be APPROVED.
DONE AND ORDERED at Tallahassee, Leon County, Florida, this 27th day of May, 1983.
DAVID H. PINGREE
Secretary
COPIES FURNISHED:
Joel Miller, Esquire
500 Northeast Third Avenue
Fort Lauderdale, Florida 33301
John M. Carlson, Esquire 2421 Southwest Sixth Avenue
Fort Lauderdale, Florida 33315
Harden King, Esquire Department Clerk
1317 Winewood Boulevard
Tallahassee, Florida 32301
Donald R. Alexander, Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway
Tallahassee, Florida 32301
Docket for Case No: 82-001038
Orders for Case No: 82-001038
