STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SALVATORE CARPINO, )

)

Petitioner, )

)

vs. ) CASE NO. 87-4085

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case in Tallahassee, Florida, on February 15, 1988, before Jose A. Diez-Arguelles, a hearing officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Salvatore A. Carpino, Jr., Esquire

One Urban Centre, Suite 750 4830 West Kennedy Boulevard Tampa, Florida 33609

For Respondent: John R. Perry, Esquire

Assistant District 11 Legal Counsel Department of Health and

Rehabilitative Services

2639 North Monroe Street, Suite 200-A Tallahassee, Florida 32303

BACKGROUND

This case concerns the denial by Respondent, Department of Health and Rehabilitative Services (HRS), of an application for a septic tank permit filed by Petitioner, Mr. Salvatore Carpino.

At the hearing, HRS presented the testimony of Fred Wick, Agustin Maristany, Candace Trimble, Marlene Clay, Teresa A. Hegg and Raymond E. Collins, and offered three exhibits, marked RI, R4 and R5, which were received into evidence. Petitioner testified on his own behalf, presented the testimony of William M. Ungerer and Cecil Wilson, and offered three exhibits, marked PI, P3 and P4 which were received into evidence. Also, the parties offered a joint exhibit, marked P2, which was received into evidence. Finally, at the request of the hearing officer, one exhibit, marked HO1, was received into evidence.

The parties were given an opportunity to file proposed recommended orders within thirty days from the date the transcript was filed with the Division.

The transcript was filed on March 16, 1988. On April 18, 1988, HRS filed Proposed Findings of Fact and Conclusions of Law. Even though they were

untimely filed, HRS's proposed findings of fact are addressed in the Attachment to this Recommended Order. Petitioner did not file a proposed recommended order.

ISSUE

Whether Petitioner's application for a septic tank permit application should be granted?

FINDINGS OF FACT

1. On July 29, 1987, Petitioner applied for a septic tank permit for a proposed individual sewage disposal system to serve a single family residence on Lot 40, Block P, Killearn Lakes Unit I (Unit 1), in Leon County, Florida.

   
   

2. A septic tank system consists of a tank and a drainfield which is wholly or partly underground.

   
   

3. The decision of whether to grant a septic tank system permit is greatly influenced by the elevation of the wet season water table in the area where the septic tank system will be located.

   
   

4. Under normal circumstances, the elevation of the wet season water table can be determined by taking a boring of the ground in question using an auger.

   
   

5. If water is found at the time the boring is conducted, that is an indication of where the water table is located. If no water is found, the elevation of the wet season water table can be determined by examining the soil removed from the ground for signs of mottling.

   
   

6. Mottling is the discoloration of the soil caused by the interaction of water with the minerals in the soil. The process of mottling takes place over hundreds of years. Therefore, a rapid change in conditions may cause the elevation of the wet season water table to be different than what would be indicated by mottling.

   
   

7. Because of the development of Unit I and the drainage method used in Unit I (sheetflow), the elevation of the wet season water table in Unit I is estimated to be between 12 and 20 inches higher than what is indicated by mottling.

   
   

8. On July 7, 1987, a boring was taken on an indeterminate area on Lot 40, by Certified Testing, Inc., a private engineering firm. The evaluation of the boring resulted in mottling being present at a depth of 60 inches.

   
   

9. On August 3, 1987, Ms. Teresa A. Hegg, an Environmental Health Specialist with HRS, took two borings on Lot 40.

   
   

10. The first boring was taken in an area other than where the septic tank system's drainfield would be located. This boring resulted in mottling being present at a depth of 45 inches.

    
    

11. The second boring was taken in the area where the septic tank system's drainfield would be located. This boring resulted in mottling being present at a depth of 22 inches.

12. Based on the boring taken at the proposed site for the septic tank system, showing mottling at 22 inches, and the estimate that the wet season water table in Unit I is from 12 to 20 inches higher than mottling would indicate, the estimated wet season water table for Lot 40 is between 2 to 10 inches below the ground surface.

    
    

13. Unit I has a history of septic tank system failures.

    
    

14. Unit I was platted prior to January 1, 1972.

    
    

15. There exists a very high probability that any septic tank system, even a mound system, installed in Lot P-40 will fail.

    
    

    CONCLUSIONS OF LAW

    
    

16. Petitioner, being the applicant for a permit, has the burden of proving, by a preponderance of the evidence, his entitlement to the permit. Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981). For the reasons set forth below, Petitioner has failed to show that he is entitled to the permit.

    
    

17. Chapter 10D-6, Florida Administrative Code, sets forth the requirements that must be met in order to install a septic tank system.

18. Rule 10D-6.044(3), Florida Administrative Code, states that: The suitability of a lot, property,

    subdivision or building for use of an

    on-site sewage disposal system shall be determined from an evaluation of lot size, anticipated hydraulic load on the system, soil and water table conditions, soil drainage and site topography.

    * * *

    (f) Subdivisions platted and recorded or unrecorded prior to January 1, 1972, will be considered on the basis of an

    elevation of soil characteristics, water table elevations, history of flooding and records of service of existing installations in the same general area.

    
    

19. Rule 10D-6.047(2) requires that the water table elevation at the wettest season of the year [be] at least 24 inches below the bottom surface of the drainfield trench or absorption bed.

    
    

20. Rule 10D-6.049(3), Florida Administrative Code, prohibits the use of a mound system where the size of the mound has to exceed 36 inches. A mound system "is a drainfield constructed at a prescribed elevation in a prepared bed of fill material." Rule 10D-6.042(24), F.A.C.

    
    

21. In this case, the evidence shows that the wet season water table in the area of the proposed drainfield is between 2 and 10 inches below the ground surface. Additionally, the evidence shows that there is a history of septic tank system failures, including failures of mound systems, in Unit I. Finally, the evidence shows that there is a high probability that any septic tank system, including a mound system, installed a Lot P-40 will fail.

Therefore, Petitioner has failed to show that Lot P-40 is suitable for the installation of a septic tank system.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent issue a final order denying Petitioner's

application for a septic tank permit.

DONE and ENTERED this 28th day of July, 1988, in Tallahassee, Florida.

JOSE A. DIEZ-ARGUELLES

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4085

The Respondent has submitted proposed findings of fact which are addressed below. Paragraph numbers in the Recommended Order are referred to as "RO ."

The Respondent's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

1. First phrase accepted. Remainder of paragraph supported by competent evidence but unnecessary to the decision reached.

2. First two sentences accepted. Third sentence supported by competent evidence but unnecessary to the decision reached.

3. Accepted.

4. Accepted.

5,6,7,8,9,10 Supported by competent evidence but

unnecessary to the decision reached.

1. Accepted.

2. Accepted.

13,14 Supported by competent evidence but unnecessary to the decision reached.

15. First sentence accepted. Second sentence rejected; the wet season water table on Lot P-40 is from 2-10 inches below grade. Third sentence accepted.

COPIES FURNISHED:

Salvatore A. Carpino, Jr., Esquire One Urban Centre, Suite 750

4830 West Kennedy Boulevard Tampa, Florida 33609

John R. Perry, Esquire Assistant District II Legal

Counsel

Department of Health and Rehabilitative Services

2639 North Monore Street Suite 200-A

Tallahassee, Florida 32303

Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

John Miller, Acting General Counsel

Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Docket for Case No: 87-004085

Orders for Case No: 87-004085