STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 88-1790

)

FRANK AND DENISE REPPA, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Ft. Myers, Florida, on July 19, 1988, before Arnold H. Pollock, Hearing Officer. The issue for consideration is whether Respondents committed the violations outlined in the Administrative Complaint, and if so, what penalty should be imposed.

APPEARANCES

For the Petitioner: Eugenie G. Rehak, Esquire

Staff Attorney Department of Health and Rehabilitative Services Post Office Box 06085

Ft. Myers, Florida 33906

For the Respondents: Frank Lee Reppa, pro se

Denise J. Reppa, pro se 3863 Plumosa Drive

St. James, Florida 33986 BACKGROUND INFORMATION

On April 12, 1988, Eugenie G. Rehak, Senior Attorney with the Department of Health and Rehabilitative Services (DHRS) Health Program Office in Ft. Myers, Florida, signed an Administrative Complaint against the Respondents, Frank and Denise Reppa, seeking cumulative per diem penalties for their unlawful maintenance of a septic system by permitting the system to overflow and discharge effluent on the ground. On March 8, 1988, Mrs. Reppa, on her behalf and on behalf of her husband demanded a formal administrative hearing on the allegations.

The case was forwarded to the Division of Administrative Hearings for appointment of a Hearing Officer, and on May 16, 1988, Hearing Officer Veronica

1. Donnelly set the matter for hearing on July 14, 1988. By Amended Notice of Hearing dated July 8, 1988, the hearing date was changed to July 19, 1988 at which time it was heard by the undersigned to whom it had been transferred in the interim.

   At the hearing, Petitioner presented the testimony of Stephen E. Havig, Environmental Specialist with DHRS and the Lee County Health Department and introduced Petitioner's Exhibits 1 and 2. Respondents both testified in their own behalf. No documentary evidence was introduced by the Respondent. The Hearing Officer took Official Recognition of Rules 10D-6.0046 and 10D-6.0501, Florida Administrative Code.

   
   

   No transcript of the proceedings was furnished. Neither party submitted Proposed Findings of Fact.

   
   

   FINDINGS OF FACT

   
   

   1. The Respondents, Frank L. Reppa and Denise J. Reppa, own and reside in their dwelling located at 3863 Plumosa Drive, St. James, Florida. The property is a narrow canal front lot. All lots in the area are small and narrow and the dwellings thereon, mostly mobile homes, are placed closely together.

      
      

   2. On January 11, 1988, as the result of a nuisance complaint by the Reppa's next door neighbor, Stephen E. Havig, an Environmental Specialist with the Lee County Health Department, a part of the State of Florida DHRS, inspected the property in question and observed that effluent from the Respondents' drain field, a malodorous liquid, had run from Respondent's property down onto the driveway of their neighbors.

      
      

   3. On January 13, 1988, he returned to the property and spoke with Mrs. Reppa who admitted to living on the property. He again observed that the drain field in the Reppas' septic system was heavily saturated and had failed. Effluent was coming to the surface due to the high water table resulting from heavy recent rains and the failure of the system, and there was still a sewage odor to the effluent. The effluent showed in stains on the neighbor's drive.

      
      

   4. Mr. Havig told Mrs. Reppa that the problem had to be corrected as it was a violation of the law to allow it to remain. In response, Mrs. Reppa indicated they had no money to effect the repairs and because of that, Mr. Havig, who could have cited them immediately, indicated he would return to his office to see if they could be given some additional time to have the work done. After checking with his supervisor, Mr. Havig, on the same day issued an "Official Notification of Insanitary Nuisance" and a "Notice of Intended Action", both of which were sent by Certified Mail and receipted for by Mrs. Reppa on January 19, 1988. The Notice gave the Reppas until January 28, 1988 to correct the problem.

      
      

   5. On January 14, 1988, Mr. Havig again talked with Mrs. Reppa, telling her what he was sending and advising her how she could get the problem fixed. When he again went out to the property on January 28, 1988, he noted that the property had dried out due to a lack of rain. However, he could see no evidence that any repairs had been effected. He returned to the property on February 1, 1988 after a rain and observed that the problems had reoccurred.

      
      

   6. Mr. Havig again spoke with Mrs. Reppa on February 8, 1988, at which time she advised him the problem was to be repaired, but they were without funds to pay for it. At that time, Mr. Havig gave the Reppas three weeks to have the work completed with a contractor to be retained within one week. When he spoke with Mrs. Reppa on February 16, 1988, she stated she was still having trouble getting a contractor. She had contacted one contractor who looked at the system on February 15, 1988 and who proposed to remove the washing machine from the drain system. When Mr. Havig talked with Mrs. Reppa on February 19, 1988, she

      indicated she would have to discuss the matter with her husband. Mr. Havig stated at that time that the Department would have to proceed with enforcement action if work was not started on the correction by February 22, 1988. No corrective action was taken by the Reppas and the Administrative Complaint was filed as a result.

      
      

   7. DHRS considers it important to properly dispose of effluent because, since it contains human waste, it carries bacteria, viruses and a danger of parasites. Agency policy requires that the septic system be continually monitored and that the tank be pumped and the drain field be repaired when necessary. The Department has no funds available to assist those who cannot afford to make repairs.

      
      

   8. In order to be properly processed, effluent drainage from septic tanks needs a minimum of two feet of soil between the discharge outlet of the tank and the water table. The soil acts as a filter to remove harmful organisms and contaminants from the effluent before it reaches the water table. A high water table, due to heavy rains or other causes, prevents this filtration and causes the effluent to come to the surface. The situation is correctable. Two methods of correction are: 1) elevate the system above the water table, or 2) remove the saturated soil and replace it with a good grade of sand.

      
      

   9. In October, 1985, another complaint against the Reppas, relating to the same situation, was filed with DHRS. At that time, the Reppas paid $650.00 to have the system repaired by an individual who replaced the drain field, drawing it away from adjoining property and toward the road. Though the contractor assured them this would fix the problem, wash water would continue to come to the surface. As a result, Mrs. Reppa has refrained from washing clothes at her home and takes them to the laundry in town.

      
      

   10. Because of the actions they have taken, such as having the drain field expanded and moved, the pumping out of the septic tank in January, 1988, and the cessation of washing clothes at home, Mr. and Mrs. Reppa are convinced the system is not overflowing and that the water on the neighbor's property is the accumulation of surface water drainage when it rains. The Reppa property is higher than the neighbor's property and Mrs. Reppa believes that rain water drains down there. The new part of the drain field works and the water in question, she feels, cannot be effluent. The evidence of record, however, indicates to the contrary and that it is waste effluent.

       
       

   11. Inquiry by the Reppas indicates that it would take $750.00 more to fix the system and the Reppas do not have that money. They are still paying back the money they borrowed from Mrs. Reppa's parents to make the first repairs.

       Mr. Reppa is a commercial fisherman whose income has been substantially reduced due to the restrictions placed on the taking of redfish. Many neighbors in the area, according to the Reppas, discharge sewage directly into the abutting canal and allow wash water to run out onto the ground. The Reppas cannot comprehend why these individuals, mostly three month winter visitors, are not cited while they, full time residents, are.

       
       

       CONCLUSIONS OF LAW

       
       

   12. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.

   13. Rule 10D-6.046, Florida Administrative Code provides the guidelines for the installation and operation of sewage disposal systems and, in pari materia provides:

       
       

       "All systems shall be located and installed so that with proper maintenance the systems function

       in a sanitary manner, do not create sanitary nuisances or health hazards and do not endanger the safety of any domestic water supply. Sewage waste and effluent from individual onsite sewage disposal systems shall

       not be discharged into the ground ..."

       Rule 10D-6.050(1), Florida Administrative Code, provides: "Any person owning or controlling

       property upon which an onsite sewage

       disposal system is installed shall be responsible for maintenance of the system. The following criteria are provided for guidance in proper system maintenance.

       
       

       1. Systems shall be maintained at

all times to prevent seepage of sewage or effluent to the surface of the ground."

Here the evidence clearly shows that the Reppas own and control the property on which the offending septic system is located and that the system is not operating properly. As a result, effluent is allowed to seep to the surface and thereafter create a sanitary nuisance by flowing onto a neighbor's property.

Consequently, the Reppas are in violation of the rules and pertinent statutes. That they cannot afford to effect the required repairs is unfortunate and may constitute grounds for mitigation of the enforcement action available to the Department. By the same token, the fact that others in the area may also be guilty of improper maintenance of their systems is also regrettable. Neither situation, however, constitutes a defense to the Administrative Complaint or justification for allowing the situation to continue.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

Recommended that an administrative fine of $50.00 per day be assessed against the Reppas for the violation established, said fine to be effective upon entry of a Final Order herein, with provision that the fine be remitted upon satisfactory proof that the violation has been corrected.

Recommended in Tallahassee, Florida this 24th day of August, 1988.

ARNOLD H. POLLOCK

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 24th day of August, 1988.

COPIES FURNISHED:

Eugenie G. Rehak, Esquire Staff Attorney Department of Health and

Rehabilitative Services Post Office Box 06085 Ft. Myers, Florida 33906

Frank Lee Reppa, pro se Denise J. Reppa, pro se 3863 Plumosa Drive

St. James, Florida 33986

R. S. Power, Agency Clerk Department of Health and

Rehabilitative Services 1323 Winewood Blvd.

Tallahassee, Florida 32399-0700

Gregory L. Coler, Secretary Department of Health and

Rehabilitative Services 1323 Winewood Blvd.

Tallahassee, Florida 32399-0700

Docket for Case No: 88-001790

Orders for Case No: 88-001790