STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )
)
Petitioner, )
)
vs. ) CASE NO. 87-4242
)
JACK VAIL, d/b/a ) ST. GEORGE INN RESTAURANT, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on February 1, 1988, in Tallahassee, Florida.
The Petitioner, the Department of Environmental Regulation (hereinafter referred to as the Department), was represented at the formal hearing by Richard
Windsor, Assistant General Counsel. The Respondent, Jack Vail, d/b/a St. George Inn Restaurant, represented himself.
INTRODUCTION
On September 8, 1987, the Department issued an Administrative Complaint for Revocation of Permit (Notice of Violation)(hereinafter referred to as the "Administrative Complaint") against Mr. Vail. Pursuant to the Administrative Complaint, the Department sought to revoke a permit to construct and operate an on-site wastewater treatment and disposal system issued to Mr. Vail on July 11, 1985.
In response to the Administrative Complaint, Mr. Vail filed a Petition for Administrative Proceeding. The Petition was forwarded to the Division of Administrative Hearings by Request for Assignment of Hearing Officer and Notice of Preservation of Record dated September 29, 1987, from the Department.
At the formal hearing, the Department presented the testimony of Toni Touart, Mr. Vail, Paul Sarvis and Norm Morrissette. The Department's exhibits 1-5 and 7-12 were accepted into evidence. No exhibit 6 was offered by the Department.
Mr. Vail testified on his own behalf. Mr. Vail's exhibits 1-4 and 6-13 were accepted into evidence. Respondent's exhibit 5 was rejected.
The parties have filed proposed recommended orders containing proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto.
ISSUE
Whether Permit No. DO19-101251 issued to Mr. Vail on July 11, 1985 to construct and operate an on-site wastewater treatment and disposal system should be revoked?
FINDINGS OF FACT
Mr. Vail is the owner and operator of a business called the St. George Inn and Restaurant (hereinafter referred to as the "Inn"). The Inn is located at the southeast corner of the intersection of Franklin Boulevard and Pine Avenue on St. George Island, Florida.
In May of 1984 Mr. Vail spoke with an employee of the Department of Health and Rehabilitative Services about obtaining a permit to construct a septic tank on his property for use by the Inn for the treatment and disposal of wastewater. Mr. Vail was instructed to submit a design of the septic tank for approval.
Mr. Vail contracted with McNeill Septic Tank Company for the design and construction of the septic tank.
The evidence failed to prove when Mr. Vail applied with the Department of Health and Rehabilitative Services for a permit. As of March, 1985, however, Mr. Vail had not received approval or disapproval of his application from the Department of Health and Rehabilitative Services. Mr. Vail, therefore, went to the Governor's office to seek help in getting a response.
Shortly after contacting the Governor's office, the Department of Health and Rehabilitative Services informed Mr. Vail that he needed to obtain a permit from the Department and not from the Department of Health and Rehabilitative Services.
On or about March 18, 1985, Mr. Vail filed an Application to Operate/Construct Industrial Wastewater Treatment and Disposal Systems (hereinafter referred to as the "Application"), with the Department. The Application was prepared by Brown and Associates Civil Engineers and Land Surveyors, Inc., Mr. Vail's engineering consultant. The Application was certified by Benjamin E. Brown, Professional Engineer. Mr. Vail signed the Application as "owner" and indicated that he was aware of the contents of the Application.
In the Application, "St. George Inn Restaurant" is listed as the "Source Name." Under Part II, A of the Application, the applicant is asked to "[d]escribe the nature and extent of the project." In response to this request, the following answer was given:
This project will provide a sewage disposal system for a one hundred and fifty (150) seat restaurant on St.
George Island. Sizing of the septic tank system is based on 50 GPD/seat and secondary treatment will be provided by the design proposed.
Under Part III, A of the Application, the applicant is asked to provide the following information and the following answers were given:
Type of Industry Restaurant
. . . .
3. Raw Materials and Chemicals Used Food preparation only.
Normal Operation 12 hrs/day 7 days/week
. . . .
If operation is seasonal, explain This restaurant will be used the most during the summer months which corresponds with ocean/beach recreation & the tourist trade.
Nowhere in the Application is it indicated that the permit applied for involved anything other than a restaurant. The Application gives no information from which the Department could have known that the proposed wastewater treatment and disposal system would handle waste from guest rooms or an apartment.
In the Application Mr. Vail sought approval of a permit to construct and operate a wastewater treatment and disposal system to serve a 150 seat restaurant. In the Application Mr. Vail sought a permit for a system which was to have a design flow of 7,500 gallons per day based on 50 gallons, per seat, per day water usage.
An employee of the Department wrote a memorandum dated May 5, 1985, recommending approval of the Application.
The Department determined, however, that the size of the property on which the Inn was to be located was not large enough for the drain field necessary to accommodate a 150 seat restaurant. Therefore, Mr. Brown modified the proposed system and resubmitted application data indicating that a 108 seat restaurant would be constructed. The design flow of the new proposal was 2,160 gallons per day based on 20 gallons per seat per day.
Mr. Brown had requested that the Department approve a system based upon the newly submitted design flow. The Department and Mr. Brown both agreed that this design flow was adequate; that it was reasonable to anticipate and provide for the treatment and disposal of a maximum of 2,160 gallons per day design flow. The effect of reducing the design flow and the number of seats was to allow a shortened drain field which could be accommodated by the size of the property the Inn was to be located on.
On June 27, 1985, Mr. Vail arranged for a notice to be published in the Apalachicola Times. That notice provided, in pertinent part, the following:
State of Florida
Department of Environmental Regulation Notice of Proposed Agency Action on
Permit Application
The department gives notice of its intent to issue a permit to Jack Vail to construct a restaurant and on-site
wastewater treatment and disposal system [sic] at Franklin Boulevard and Pine Avenue, St. George Island.
The treatment consists of grease trap, septic tank, and sand filter followed by disposal into a drainfield. The project meets applicable standards and will not impair the designated use of the underlying ground water. There is no anticipated impact on surface waters or air quality.
. . . .
This notice was sent to Mr. Vail by the Department and he made arrangements for it to be published. Nowhere in the notice is it indicated that the system to be approved by the Department is for anything other than a restaurant.
On July 11, 1985, less than four months after the Application was filed with the Department, the Department issued Permit Number DO19-101251 (hereinafter referred to as the "Permit"). In the cover letter sent with the Permit the Department indicated that the Permit allowed Mr. Vail "to construct and operate a 2,160 gallon per day, on-site wastewater treatment and disposal system serving St. George Inn Restaurant. . . ." The Department also indicates in the Permit that it is for the "St. George Inn Restaurant." The Permit also provides, in pertinent part, the following with regard to the purpose of the Permit:
The above named applicant, hereinafter called Permittee, is hereby authorized to perform the work or operate the facility shown on the application and approved drawing(s), plans, and other documents attached hereto or on file with the department and made a part hereof and specifically described as follows:
Construct and operate a 108 seat restaurant with an on-site wastewater treatment and disposal system.
Wastewater flows shall be a maximum of 2,160 gallons per day generated by domestic facilities and kitchen wastes
. . .
Construction shall be in accordance with application dated March 18, 1985 and additional information submitted April 29, 1985, specifications and other supporting documents prepared by Brown and Associates and certified by Benjamin E. Brown, P.E. and submitted to the Department on June 5, June 17, and June 20, 1985.
The Permit also contains the following "General Condition" number 2 and "Specific Condition" number 15:
. . . .
2. This permit is valid only for the specific processes and operations applied for and indicated in the approved drawings and exhibits. Any unauthorized deviation from the approved drawings, exhibits, specifications, or conditions of this permit may constitute grounds for revocation and enforcement action by the department.
. . . .
15. The Department shall be notified and prior approval shall be obtained of any changes or revisions made during construction.
. . . .
The Permit provides the following with regard to the effect of the conditions of the Permit:
The terms, conditions, requirements, limitations, and restrictions set forth herein are "Permit Conditions", and as such are binding upon the permittee and enforceable pursuant to the authority of sections 403.161, 403.727, or 403.859 through 403.861, Florida Statutes. The permittee is hereby placed on notice that the Department will review this permit periodically and may initiate enforcement action for any violation of the "Permit Conditions" by the permittee
. . . .
During the week after the Permit was issued, Mr. Vail obtained a building permit from Franklin County for the construction of the "inn."
In February, 1986, after construction of the Inn had begun, Department inspectors went to the construction site of the Inn. The Permit authorized this inspection and other inspections carried out by the Department. The Department determined that the Inn being constructed by Mr. Vail included a restaurant, an apartment on the third floor of the Inn with two bathrooms, and eight guest rooms on the second floor, each containing a bathroom. This was the first time that the Department knew that Mr. Vail's facility was to include guest rooms and living quarters in addition to containing a 108 seat restaurant.
In March of 1986, the Department sent a warning letter to Mr. Vail notifying him of the violation of the General Conditions of his Permit: the use of the approved system for the treatment and disposal of wastewater from the ten bathrooms in the guest rooms and the two bathrooms in the apartment in addition to the 108 seat restaurant.
On April 1, 1986, Department personnel met with Mr. Vail and Mr. Brown. The Department reminded Mr. Vail and Mr. Brown that the Permit requested and approved by the Department was for a 108 seat restaurant only. The Department had not authorized a system which was to be used for a 108 seat restaurant and ten additional bathrooms. Pursuant to General Condition 14, the Department informed Mr. Vail that it needed an engineer's evaluation of the ability of the system which had been approved to handle the additional flow which could be expected from the additional ten bathrooms. By letter dated April 1, 1986, the Department memorialized the meeting and indicated that Mr. Vail could operate a 100 seat restaurant and the apartment during the interim.
By letter dated May 8, 1986, Mr. Brown asked for additional time to submit the evaluation requested by the Department. The Department approved this request by letter dated May 14, 1986.
By letter dated May 16, 1986, Mr. Brown submitted an engineering evaluation which proposed modifications to the approved system to handle the additional ten bathrooms. By letter dated June 13, 1986, the Department indicated that the evaluation was generally acceptable" but requested additional information.
In January, 1987, before the additional information was submitted, Mr. Brown died in an airplane accident. No evidence was presented to explain why the information requested by the Department in June of 1986 had not been submitted before January, 1987.
In March, 1987, the Department inspected Mr. Vail's facility again.
In April, 1987, the Department informed Mr. Vail that the Department would take action to revoke the Permit.
Before the Administrative Complaint was issued, the Department requested that certain information be provided on behalf of Mr. Vail by an engineer in an effort to resolve the dispute. Mr. Vail did not, however, obtain the services of an engineer. Instead, Mr. Vail sent the Department information purporting to show the amount of water which had been used at the Inn. That information failed to prove the ability of the system that the Department had approved to handle the maximum wastewater which could be expected from maximum use of the 108 seat restaurant and ten additional bathrooms. At best, the information submitted by Mr. Vail is partial proof that the system is capable of handling the wastewater that has been generated at the Inn for the period of time for which the information relates. No competent substantial proof has been submitted to indicate that the system is capable of handling the maximum wastewater flows which may be experienced or even that the system is adequately handling the current flow. All that has been proved is that there is no apparent problem with the system in handling the current flow.
In September, 1987, the Department issued the Administrative Complaint. Pursuant to this Complaint, the Department has sought the revocation of the Permit and prescribed certain orders for corrective action.
No application has been submitted by or on behalf of Mr. Vail to the Department to construct and operate a wastewater treatment facility designed to accommodate the sewage flows which may be generated by the Inn as it has been constructed. Although the Department of Health and Rehabilitative Services and other agencies were aware that the Inn includes a restaurant and guest rooms, the Department was never so informed.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties to, and the subject matter of, this proceeding. Section 120.57(1), Florida Statutes (1987).
Section 403.121(2)(b), Florida Statutes, authorizes the Department, in cases involving violations of Chapter 403, Florida Statutes, to institute an administrative proceeding "to order the prevention, abatement, or control of the conditions creating the violation or other appropriate corrective action."
Section 403.161(1)(b), Florida Statutes, provides, in pertinent part, the following:
(1) It shall be a violation of this chapter, and it shall be prohibited:
. . . .
(b) To fail to obtain any permit required by this chapter or by rule or regulation, or to violate or fail to comply with any rule, regulation, order, permit, or certification adopted or issued by the department pursuant to its lawful authority.
Finally, Rule 17-4.100(3)(b), Florida Administrative Code, provides that the Department may revoke any permit issued by it if the Department finds that the permit holder has "violated law, Department orders, rules or regulations or permit conditions."
Pursuant to these provisions, the Department has contended that Mr. Vail has violated General Condition 2 and specific Condition 15 of the Permit. In particular, the Department has alleged that the Permit was issued to treat and dispose of wastewater from a 108 seat restaurant only and that Mr. Vail is using the system for a 108 seat restaurant and ten additional bathrooms associated with eight guest rooms and an apartment in violation of General Condition 2 of the Permit and without notifying the Department or obtaining approval from the Department of this modification in use in violation of Specific Condition 15 of the Permit.
The evidence presented at the formal hearing proved that the Permit issued by the Department authorizes the construction and use of a wastewater treatment and disposal system designed to properly treat wastewater from a 108 seat restaurant. In granting this Permit, the Department and Mr. Vail, through his engineer, agreed that the system approved by the Department would be designed to handle a maximum flow from the 108 seat restaurant of 2,160 gallons per day. This design requirement was agreed upon by the Department and Mr. Brown based upon their determination that the maximum flow which could be reasonably expected from the restaurant was 20 gallons of wastewater per seat, per day.
The evidence also proved that the wastewater treatment and disposal system approved and constructed is being used to treat and dispose of wastewater from a 108 seat restaurant plus eight bathrooms associated with eight guest rooms and two bathrooms associated with an apartment. At no time prior to the approval and issuance of the Permit was the Department put on notice or aware
that the system would be used to treat and dispose of wastewater from these additional ten bathrooms.
Based upon the foregoing, Mr. Vail has violated General Condition 2 and Specific Condition 15 of the Permit.
Mr. Vail has raised a number of arguments in response to the Administrative Complains. First, Mr. Vail has argued that he has always stated that the Inn would contain a restaurant and guest rooms. Although the evidence did prove that Mr. Vail has consistently planned on constructing a restaurant and guest rooms, the evidence also proved that the Department was not so informed until after the permit was issued.
The fact that the Department of Health and Rehabilitative Services and other government bodies knew, or may have known, that the Inn was to include guest rooms is not sufficient to excuse Mr. Vail's actions in this case. First, there are numerous governmental bodies of various sizes at various levels of federal, state and local government. Because of the number and complexity of these governmental bodies, they cannot reasonably be expected to known everything that each other agency knows. Therefore, it is not reasonable to expect the Department to know what the Department of Health and Rehabilitative Services knew about the Inn. Mr. Vail cannot ignore his responsibility in this matter. At no time, based upon the evidence presented at the formal hearing, did anyone ever tell the Department that the project involved anything other than a restaurant. At the formal hearing the undersigned specifically asked Mr. Vail to indicate any person at the Department that had been told orally or in writing by him or any other person that the Inn would include guest rooms. Mr. Vail was unable to so indicate.
Additionally, the evidence presented at the formal hearing indicates that the Department was specifically informed in the Application and throughout its review of the Application that the project only involved a restaurant. Therefore, even if the Department knew that Mr. Vail had informed the Department of Health and Rehabilitative Service that he planned to build guest rooms and a restaurant, the Department was only asked to approve a system for use by a restaurant.
Mr. Vail has also argued that the system which has been constructed is sufficient to handle the 108 seat restaurant and the ten additional bathrooms. Again, the evidence failed to prove this contention. At the very most, Mr. Vail presented evidence that he is not aware of any problem with the system and that he believes the system can handle the wastewater from the Inn. Mr. Vail, however, does not have sufficient knowledge about the design of a wastewater treatment system to support a finding that the system is adequate. It is for this reason that the Department has refused to rely on Mr. Vail's representations and insisted on receiving such assurances from an engineer Mr. Brown's untimely death is indeed unfortunate. But even Mr. Brown evidently agreed that modifications to the system to accommodate the additional ten bathrooms were necessary in light of the changes to the system he suggested in his letter to the Department of May 16, 1986. Until the Department receives assurances from someone with adequate knowledge of wastewater treatment systems, the Department should not allow the system to continue to be used.
At the time that the Department issued its permit, it was agreed between Mr. Brown, on Mr. Vail's behalf, and the Department that a system designed to handle 2,160 gallons of wastewater per day would be an adequate system for a 108 seat restaurant. This agreement was based upon a conclusion
that a 108 seat restaurant could generate such a maximum flow. Therefore, if the flow from ten additional bathrooms were to be added to the system at a time when it was handling the maximum flow from the restaurant, the system might not be able to handle the additional flow. All the Department has attempted to obtain from Mr. Vail is assurances from a knowledgeable person that the system can handle such a situation or that changes to the system which can and will be made to the system to accommodate such a situation will be made. Those assurances have not been made to date.
Mr. Vail has suggested that the Department has caused excessive delays in resolving this matter. The evidence proved that it has taken a great deal of time to deal with this matter. The evidence failed to prove, however, that the Department is the cause of all the delays. First, a great deal of time passed before the Department ever became involved in this case. During that time, it is not clear whether delays were caused by the Department of Health and Rehabilitative Services or Mr. Vail's representatives. Secondly, once an application was filed with the Department, it issued a permit within four months. The Department may have acted sooner but for negotiations between Mr. Brown and the Department concerning the size of the restaurant-- it was reduced from 150 seats to 108 seats. Finally, the delays which have occurred since July, 1985, when the license was issued, have been caused by the failure of Mr. Vail to inform the Department of the fact that the Inn would include ten bathrooms for guest rooms and an apartment and the failure to provide reasonable assurances that the system will adequately handle these bathrooms.
Based upon the foregoing, it is concluded that the proposed corrective actions sought by the Department in the Administrative Complaint are proper, except to the extent that the Department has sought a reimbursement of its expenses. No evidence was presented at the formal hearing concerning the amount of expenses incurred by the Department in this matter.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a Final Order requiring that Mr. Vail
comply with all of the corrective orders, except Paragraph 18, contained in the Administrative Complaint.
DONE and ORDERED this 11th day of March, 1988, in Tallahassee, Florida.
LARRY J. SARTIN
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 11th day of March, 1988.
APPENDIX TO RECOMMENDED ORDER, CASE NUMBER 87-4242
The parties have submitted proposed findings of fact. It has been noted below which Proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.
The Department's Proposed Findings of Fact
Proposed Finding Paragraph Number in Recommended Order of Fact of Acceptance or Reason for Rejection
1 | Conclusion of law. | |
2 | 1. | |
3 | 6. | |
4 | 10. | |
5 | 12 and | 13. |
6 | 14. | |
7 | 15. | |
8 | 18. | |
9 | 19. | |
10 | 20. | |
11-12 | 16. | |
13 | 21. | |
14 | 23. | |
15 | 24. | |
16 | 25. | |
17 | 26. | |
18-19 | 27. | |
20 | 28. | |
21 | 29 | |
22 | Hereby | accepted. |
Mr. Vail's Proposed Findings of Fact 1A 15.
Not supported by the weight of the evidence and irrelevant.
Hearsay and irrelevant.
Although technically true, this is not the issue in this case.
The evidence did not prove that the system "can in actuality handle three times the amount permitted."
Not supported by the weight of the evidence and irrelevant.
2A Not supported be the weight of the evidence.
Exhibit 6 indicates that the Department was aware that the Inn included "hotel rooms" but not the number.
Irrelevant.
The evidence did not prove that the Department was aware of the scope of the project.
Not supported by the weight of the evidence.
3A Irrelevant.
Not supported by the weight of the evidence and irrelevant.
Even if this were true, the fact remains that the Department was unaware that the Inn included guest rooms or an apartment.
Irrelevant.
4A-B Irrelevant.
5A-B Irrelevant.
6A 2-4.
B 5.
6 and 11.
Not supported by the weight of the evidence. See 12.
13 and 15.
Not supported by the weight of the evidence and irrelevant.
Not supported by the weight of the evidence.
7A-C Not supported by the weight of the evidence and irrelevant.
8A-D Not supported by the weight of the evidence and irrelevant.
9A-B Not supported by the weight of the evidence and irrelevant.
10-12 Not supported by the weight of the evidence and irrelevant.
COPIES FURNISHED:
Richard L. Windsor, Esquire State of Florida Department of
Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road
Tallahassee, Florida 32399-2400
Mr. John Vail St. George Inn
Post Office Box 222
St. George Island, Florida 32328
Dale Twachtmann, Secretary State of Florida Department of
Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road
Tallahassee, Florida 32399-2400
Daniel H. Thompson, Esquire General Counsel
State of Florida Department of Environmental Regulation
Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
| Issue Date | Proceedings |
|---|---|
| Mar. 11, 1988 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| May 11, 1988 | Agency Final Order | |
| Mar. 11, 1988 | Recommended Order | DER may revoke permit for on-site wastewater treatment and disposal. Conditions of the permit not being met. |
