STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

)

Petitioner, )

)

vs. ) CASE No. 91-7141

)

LARRY G. DELUCENAY d/b/a )

MADHATTER UTILITIES, INC., )

)

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a formal hearing in this case on February 20, 1992, in New Port Richey, Florida.

APPEARANCES

For Petitioner: Thomas W. Caufman, Esquire

HRS District V Legal Office 701-94th Avenue North

St. Petersburg, Florida 33702

For Respondent: Randall C. Grantham, Esquire

COTTERILL GONZALEZ & GRANTHAM

1519 North Dale Mabry Highway Suite 100

Lutz, Florida 33549 STATEMENT OF THE ISSUES

Whether or not Respondent allowed improperly treated human waste to flow from its waste water treatment system into a public subdivision creating a public nuisance and failed to abate said sanitary nuisance after notification, and, if so, what, if any, administrative penalty should be imposed.

PRELIMINARY STATEMENT

By its Administrative Complaint served on Respondent on September 17, 1991, Petitioner, Department of Health and Rehabilitative Services, seeks to impose an administrative fine of $4,000.00 against Respondent for allegedly creating a sanitary nuisance and failing to abate it in a timely manner. Respondent denies the allegation of the complaint and timely petitioned for a formal hearing by its counsel. On October 31, 1991, the matter was transferred to the Division of Administrative Hearings for the assignment of a hearing officer to conduct a formal hearing. Following responses from the parties, on December 13, 1991, the

matter was scheduled for hearing for February 20, 1992 and was heard as scheduled.

At the hearing, Petitioner presented the testimony of Glenn Thompson, an environmental health supervisor with the Pasco County Public Health Department, Donald VanKamper, a supervisor in the Pasco County, New Port Richey Health Department; William C. Burke, an environmental health specialist employed by Pasco County; Norma Mayor, a supervisor employed at Petitioner's Tampa laboratory, who is a licensed clinical biologist; Gary Roderick, a professor employed at the University of Florida who was tendered and received as an expert; Dr. Mark Yacht, the medical director of the Pasco County Public Health Office, who was received as an expert in public health; and Ken Swann, Petitioner's director of environmental health. Respondent presented the testimony of Robert William Griffiths, a professional engineer; Gerald Towson, a consulting civil engineer; and Respondent, Larry G. Delucenay, the president of Madhatter Utility, Inc. since approximately 1967. Petitioner's Exhibits 1-5 were offered and received in evidence and Respondent's Exhibits A-G were also offered and received in evidence at the hearing.

The parties were allowed through March 6, 1992 to submit proposed recommended orders. The parties submitted proposed recommended orders which were considered in preparation of this Recommended Order. Proposed findings of fact which are not incorporated herein are the subject of specific rulings in an Appendix.

Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received, and the entire record compiled herein, I hereby make the following relevant factual findings:

FINDINGS OF FACT

1. Petitioner, Department of Health and Rehabilitative Services, is the state agency charged with regulating waste water treatment facilities and any sanitary nuisance which may emanate as a result of such operations pursuant to Chapters 381 and 386, Florida Statutes.

   
   

2. Respondent, Larry G. Delucenay d/b/a Madhatter Utilities, Inc., owns and operates the Foxwood Waste Water Treatment Plant which is permitted and certified by the Department of Environmental Regulation.

   
   

3. Respondent, in operating the Foxwood system, discharges its treated effluent water by means of two percolation ponds and a drip field located adjacent to the Cypress Cove Subdivision in Pasco County, Florida.

   
   

4. Respondent owns and controls percolation ponds which are located adjacent to the Cypress Cove Subdivision and pumps human waste from a sewage treatment plant to percolation ponds in the Cypress Cove Subdivision. Respondent's percolation ponds are located approximately 50 ft. west of several residences and the ponds are accessible to the public. The ponds are elevated from 3 ft. to 5 ft. above the adjacent residential lots in the subdivision. However, there is a sand berm approximately 8 ft. high with a 12 yd. base which serves as a barrier between the percolation ponds and the Cypress Cove residences.

   
   

5. On August 5, 1991, environmental health specialist Burke observed liquid flowing through the sand berm. He also observed erosion patterns in the sand on the berm which indicated liquid was flowing through it. Mr. Burke,

   while in the company of two other employees of Petitioner, observed liquid flowing from the percolation ponds onto Lake Floyd Drive to the south of the ponds.

   
   

6. An improperly designed nearby lake exacerbated the flooding into Lake Floyd Drive. Respondent's waste water treatment system is designed according to the manufacturer's specifications. Pasco County allowed a number of developments to be built in the area without an adequate drainage system which adversely impacts Respondent's system to the point whereby untreated drainage outfall is draining into the southeast areas in Cypress Cove. Specifically, Respondent's pond #4 is designed to handle a water level up to 67.33 ft. During the investigation of the case, the water level in that pond was approximately 3 1/2 ft. higher than the designed capacity and was therefore causing overflow into the southeast areas of the development. (Respondent's Exhibits A, B and C.) Noteworthy also was the fact that a developer failed to complete a connection which has impacted Respondent's percolation pond and has forced the water to rise approximately 9 ft. higher than the designed capacity which has resulted in an overflow approximately 3 ft. to 4 ft. into the neighboring subdivision. As a result of the overflow, waste water spills over the percolation ponds and prevents the water from draining through the berms as designed.

   
   

7. Petitioner's consulting engineer, Robert William Griffiths, credibly testified that a number of agencies having oversight responsibility such as Pasco County, the Southwest Florida Water Management District and the Department of Environmental Regulation, mandated that the drainage system be completed prior to the entire build-up of Cypress Cove. Despite the mandate, the drainage system was not completed and the County allowed the development to continue.

   
   

8. Respondent is properly treating and chlorinating sewage in its plant which complies with Petitioner's requirements for the treatment of sewage in systems designed such as Respondent's.

   
   

9. Respondent properly treats sewage flowing through its ponds and its berms are properly maintained.

   
   

10. As early as October 1989, Respondent consulted and retained an engineer, Gerald E. Towson, who was commissioned to investigate the specifics of designing a waste water treatment plant based on concerns raised by the Department of Environmental Regulation (DER). As a result of that charge, Towson investigated the area and observed flooding and the stormwater runoff in the Cypress Cove neighborhood and attempted to find a solution to alleviate the problem. Consultant Towson also investigated Respondent's treatment plant to determine if the system was functioning as designed. Based on his observation and inspection of the treatment facility, the facility was operating as it was designed and properly filters and treats the effluent. However, based on Respondent's inability to control the stormwater runoff in the neighborhood created by the excess buildup, Towson concluded that there was no workable solution to the problem.

    
    

11. As a result of Towson's inability to find a workable solution to handle the concerns raised by DER, Respondent suggested that Towson locate another wastewater treatment site which he found in a surrounding area. Respondent negotiated a lease arrangement with the landowner and initiated the permit process with DER. After the completion of numerous documents and engineering studies required by the Department of Environmental Regulation, Respondent was able to get the leased site permitted by DER as a slow drip irrigation system

    during March 1991. However, while construction of the system was scheduled to start during March 1991, as a result of vigorous protests from area neighbors, construction was delayed. Respondent thereafter investigated several sites but was unable to fine a suitable area near Cypress Cove.

    
    

12. Towson completed a lengthy and cumbersome process in getting Respondent's construction application processed by DER. Initially the application was filed and following a DER review, a Notice of Intent to Issue was given. Hillsborough County thereafter reviewed the project and following their review, Hillsborough County issued its Notice of Intent to Grant and public notice was given. Based on Respondent's inability to comply with the neighbor's concerns regarding setback problems, DER withdrew its permit during May of 1991. Thereafter, Petitioner became involved in connecting with the Pasco County Public System. That connection was ultimately made and the County gave its approval following a delay based on a review occasioned by an employee who had been on vacation. Upon getting the approval, Petitioner ordered the equipment from a supplier which included installation of a magnetic meter and the necessary hookups into the Pasco County System. A "phased in" connection has been completed and the stormwater runoff problem has been abated.

    
    

13. When the problems raised by DER and ultimately Petitioner was first brought to Respondent's attention, Pasco County did not have the capacity to handle the hookups required by Respondent's system.

    
    

14. Respondent, has been involved in the installation of waste water treatment plants since 1967. Respondent is qualified as a Class "A" Licensee Waste Water Operator. He has been accepted as an expert in numerous administrative hearings.

    
    

15. Respondent purchased the Foxwood System during 1982. Respondent utilized a 13 acre tract near Lake Floyd Drive. The system was licensed and designed with a flow capacity of 300,000 plus gallons per day. During the time when the Administrative Complaint was issued, the flow capacity was 220,000 gallons per day.

    
    

16. The storm water system which was to have been completed by developers in the area was not connected to the public system and the County granted numerous other permits to daycare centers and several parking lots were constructed for other newly constructed commercial buildings in the area. As a result of the excess runoff created by the development in the area, Respondent's system was impacted and the water level was raised in the percolation ponds to the point whereby an overflow resulted. Petitioner adduced no evidence which showed that any physical or emotional harm resulted from the runoff.

    
    

17. At all times while the concerns were being raised by Petitioner and other oversite agencies, the effluents in Respondent's systems were properly treated. Respondent vigorously attempted to abate the runoff created by the excess buildup in the area despite the fact that the problem was raised by Pasco County and over which Respondent had no control. Throughout the process of attempting to find alternate solutions and ultimately getting permitting approval to start construction of an alternative waste water treatment system, Respondent operated in good faith. When no alternate site became available, Respondent initially made application to connect with Pasco County System and that connection has now been made.

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this action pursuant to Section 120.57(1), Florida Statutes.

    
    

19. The parties were duly noticed pursuant to Chapter 120, Florida Statutes.

    
    

20. The authority of the Petitioner is derived from Chapters 381 and 386, Florida Statutes.

    
    

21. Petitioner has the burden of establishing that Respondent maintained a nuisance in violation of Section 386.03(2)(d), Florida Statutes. What the evidence showed, is that Pasco County's permitting authorities allowed the development in question to be overbuilt without the requisite water treatment and drainage facilities to control the overflow in the low lying areas surrounding Land O'Lakes and the adjoining communities where the overflow occurred. Throughout this process, when Respondent was notified of the overflow, Respondent immediately took steps to abate the problem to the extent feasible. In this regard, consultant engineers were brought in and the system was analyzed and tested and was found to be working as designed. The nuisance came about as a result of matters which were not in Respondent's control. In these circumstances, insufficient evidence was offered to establish that Respondent maintained a nuisance and failed to timely abate it as alleged in the Administrative Complaint and imposition of an administrative fine in these circumstances is not warranted.

RECOMMENDATION

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

Petitioner enter a Final Order dismissing the Administrative Complaint herein in its entirety.

DONE and ENTERED this 29 day of April, 1992, in Tallahassee, Leon County, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 29 day of April, 1992.

COPIES FURNISHED:

THOMAS W CAUFMAN ESQ

HRS DISTRICT V LEGAL OFFICE 11351 ULMERTON RD - STE 407

LARGO FL 34648

RANDALL C GRANTHAM ESQ COTTERILL GONZALEZ & GRANTHAM 1519 N MABRY - STE 100

LUTZ FL 33549

RICHARD S POWER AGENCY CLERK

DEPT OF HEALTH AND REHABILITATIVE SERVICES

1323 WINEWOOD BLVD

TALLAHASSEE FL 32399 0700

JOHN SLYE ESQ/GENERAL COUNSEL DEPT OF HEALTH AND

REHABILITATIVE SERVICES 1323 WINEWOOD BLVD

TALLAHASSEE FL 32399 0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 91-007141

Orders for Case No: 91-007141