STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 92-159

) CASE NO. 92-7553 VINCENT M. PAUL & V.M.P. )

CORPORATION, )

)

Respondents, )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Don W. Davis, conducted a formal hearing in the above-styled cause on February 26, 1993, in Jacksonville, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Charlene Peterson, Esquire

District 4 Legal Office Department of Health and

Rehabilitative Services Post Office Box 2417

Jacksonville, Florida 32231-0083

Amy M. Jones, Esquire Environmental Health Office Department of Health and

Rehabilitative Services 1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

For Respondents: Sidney F. Ansbacher, Esquire

Post Office Box 4548 Jacksonville, Florida 32201-4548

STATEMENT OF THE ISSUES

The issues are:

(1.) Whether Respondents' request for variance from requirements of Rule Chapter 10D-6, Florida Administrative Code, should be granted.

(2.) Whether Respondents are guilty of violation of certain provisions of Chapter 381 and Chapter 403, Florida Statutes, and Rule Chapter 10D-6, Rule Chapter 17-550, and Rule Chapter 17-555, Florida Administrative Code, regulating the operation of onsite sewage disposal systems.

PRELIMINARY STATEMENT

On December 16, 1992, Respondents Vincent M. Paul and V.M.P. Corporation requested formal administrative proceedings with regard to an Administrative Complaint issued by Petitioner in Division of Administrative Hearings (DOAH) Case No. 92-7553, alleging violation of provisions of Chapter 381 and Chapter 403, Florida Statutes, as well as Rule Chapter 10D-6, Rule Chapter 17

Rule Chapter 17-555, Florida Administrative Code.

Respondents also requested a formal hearing in DOAH Case No. 92-159 in conjunction with Petitioner's denial of their request for variance from regulatory requirements governing onsite sewage disposal systems.

Further, Respondents filed a Petition For Administrative Hearing For Determination Of Rule Invalidity. That petition is the subject of DOAH Case No. 92-7443RX, and challenges Rule 10

invalid exercise of delegated authority. Respondents' challenge to the rule is addressed in the final order issued in that case. 1/

All three cases were consolidated for purpose of final hearing. At the final hearing, Respondents presented the testimony of three witnesses and 19 exhibits. Petitioner presented testimony of four witnesses and three exhibits.

The transcript of the final hearing was filed with the Division of Administrative Hearings on March 29, 1993. Proposed findings of fact submitted by the parties are addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. Respondent V.M.P. Corporation (VMP) operates a lounge known as Stud's Pub in Jacksonville, Florida. Licensed for 75 seats, the lounge actually contains 50-55 seats and employs five people full time. Additionally, 10-15 independent entrepreneurs known as dancers may be present at times. The dancers are not employees of Respondents. Less than 25 people, other than patrons, are present at the facility at any time. Respondent Vincent M. Paul (Paul) owns the facility and the corporation. The lounge is on lots that were platted prior to 1972.

   
   

2. Petitioner is the statutory entity with authority for granting variances for onsite sewage disposal systems regulated by Petitioner pursuant to provisions of Section 381.0065(8)(a), Florida Statutes (1991).

   
   

3. The lounge is serviced by a septic tank with a drainfield which is covered by an asphalt parking lot. The portion of the parking lot over the drainfield is bounded to the west by a dirt city street, to the north by other pervious surfaces, to the east by the lounge and to the south by the remainder of the asphalt parking lot. A sign on the premises which advertises the business is protected from automobile traffic by concrete barriers.

   
   

4. The septic tank system and drainfield were installed prior to 1972 by a previous owner. Respondent Paul retrofitted the septic tank system after 1972. Respondent Paul was responsible for paving over the drainfield after he purchased the property.

5. Petitioner's representatives inspected the lounge, determined the drainfield to be covered by the asphalt parking lot and requested Respondents to remove the asphalt covering.

   
   

6. Respondents requested a variance pursuant to Rule 10D

   Administrative Code, for the asphalt covered drainfield and other deficiencies of the onsite sewage disposal system. Petitioner's review board recommended denial of the request on the basis that the variance would not constitute a "minor deviation" from rule requirements. Although the term is not defined by Petitioner's rule, Petitioner's usage of this term was the result of the consideration by Petitioner's review board of the application for variance within the context of Section 385.0065(8)(a), Florida Statutes, which authorizes Petitioner to grant variances only where the hardship is not intentionally caused by the applicant, where no reasonable alternatives exist and where no evidence of adverse effect upon public health or ground and surface waters is demonstrated.

   
   

7. Respondent has no record of failure of the septic tank or drainfield. Water samples from the onsite potable water well filed with Petitioner tested below detectable limits for nitrates and coliforms, the only parameters Petitioner is required to analyze. Respondents' records of water flow or usage from the well into the lounge show daily flow rates of between 320 and 580 gallons, with an average rate of between 450 and 480 gallons. Respondent Paul is responsible for the installation of an unpermitted chlorinator on the water supply system which provided actual flow information.

   
   

8. The only onsite water well has no grout sealant. It is the only well of which the parties are aware that lies within 100 feet of the septic system. The potable water well is located approximately 42 feet from the edge of the covered drainfield. The well head does not extend above line surface and there is no concrete pad around the wellhead. The exact depth of the well is unknown, although the well is located upgradient of the drainfield and a nearby junkyard.

   
   

9. Denial of the variance would require that Respondents uncover the drainfield since there is no practically available offsite sewage system currently available. Soil in the area of the drainfield is classified as well- draining sand.

   
   

10. Due to the impervious surface covering the drainfield, Petitioner's representative was unable, during his inspection, to discern any symptoms of drainfield failure in the form of "blow

    field should be totally unobstructed to allow aerobic processes to take place in the drainfield which will permit the breakdown of contaminants.

    
    

11. A portion of Respondents' 1200 gallon septic tank is located partially under and immediately adjacent to Respondents' facility. A dousing tank which retains liquid waste and operates as part of the septic system is also totally covered by the asphalt pavement. Although there has been no detectable failure of the system, every eight or nine months Respondents have the septic tank and dousing tank pumped out. The tanks never get full.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. Section 120.57, Florida Statutes.

    THE VARIANCE

    
    

13. With regard to the requested variance, Respondents must show to a preponderance of the evidence that they are entitled to the relief sought. Florida Department of Transportation v. J. W. C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981).

    
    

14. Respondents have requested a variance with regard to Petitioner's requested alterations to the onsite sewage disposal system. Specifically, variance was requested with regard to the asphalt covered drainfield, the inclusion of the septic tank under the facility, and the short distance between the onsite potable water well and the drainfield. Resolution of whether that variance with regard to these differences should be granted is best resolved by application of the criteria set forth in Section 381.0065(8)(a), Florida Statutes (1991) which provides:

    
    

    The department may grant variances in hardship cases which may be less restrictive than the provisions specified in this section. A variance may not be granted pursuant to this section until the department is satisfied that:

    1. The hardship was not caused intentionally by the action of the applicant;

    2. No reasonable alternative exists for the treatment of the sewage; and

    3. The discharge from the individual sewage disposal system will not adversely affect the health of the applicant or other members of the public or significantly degrade the ground or surface waters.

       Where soil conditions, water table elevation, and setback provisions are determined by the department to be satisfactory, special consideration shall be given to those lots platted prior to 1972.

       
       

15. As previously noted, Respondent Paul was responsible for paving over the drainfield after he acquired the property. The hardship in the instant case is the result of Respondent Paul's own action. Petitioner is not permitted to grant a variance for this deficiency under the foregoing noted provisions of Section 381.0065(8)(a), Florida Statutes (1991).

    
    

16. The variance request as it relates to the septic tank buried under the building should be denied in view of the existence of other reasonable alternatives and to insure that discharge from the individual sewage disposal system will not adversely affect public health or significantly degrade ground or surface waters. Respondent should install an appropriate septic tank or tanks that will be at least five feet from the building, as opposed to partially under it. This corrective action should be taken in compliance with requirements of Rule Section 10D

    than continuing to have the existing septic and dousing tanks pumped out every eight or nine months.

    
    

17. The variance request relating to requirements of Rule 10D

    is based upon the fact that Respondents' onsite potable water well is located approximately 42 feet from the drainfield as opposed to the rule's requirement

    of a minimum of 100 feet. Respondents should be required to comply with the rule to the maximum extent possible and variance, if any is necessary, granted only for the minimal distance required to relocate the well as far as possible on Respondents' property from the drainfield. Respondent should apply for a permit to construct the public water supply system from the Duval County Public Health Unit and conform to all permitting requirements until operational approval is obtained.

    
    

    THE ADMINISTRATIVE COMPLAINT

    
    

18. With regard to the violations alleged to have been committed by Respondent Paul in the Administrative Complaint in DOAH Case No. 92-7553, Petitioner bears the burden of proving those violations by a preponderance of the evidence.

    
    

19. Petitioner is authorized by Rule 10D-6.069(2)(b), Florida Administrative Code, to impose an administrative penalty not to exceed $500 for each day a violation continues after Notice of intent to impose the penalty is provided Respondent.

    
    

20. Respondent Paul is charged with violation of Section 381.0065, Florida Statutes, and Rule Section 10D-6.046(2), Florida Administrative Code, in that the existing septic tank is located under and immediately adjacent to the lounge. Petitioner is guilty of this offense to the extent that he has maintained the system since the inception of his ownership of the property and facility and the facility's operating corporation.

    
    

21. Respondent Paul is not guilty of the violation of Rule 10D-6.048, Florida Administrative Code, alleged in the Administrative Complaint relating to septic system size determination. Actual flow data presented at the final hearing establishes an actual flow cap of 580 gallons per day, less than the 1200 gallon septic tank capacity required by the rule. Further, Respondents have only five employees and an actual seating capacity of 50-55 seats. The dancers noted on the sign are independent entrepreneurs who are not paid by Respondents.

    
    

22. Respondent is charged with violation of Section 381.0065, Florida Statutes, and Rule Sections 10D-6.046(1) and 17-555.312(1), Florida Administrative Code, concerning the location of the onsite potable water well at a distance of less than 100 feet from the drainfield. The well is located approximately 42 feet from the drainfield. Respondent is guilty of this violation.

    
    

23. Respondent is charged with violation of Rule Section 10D

    Florida Administrative Code, concerning the location of the drainfield under a covering of asphalt. Respondent is guilty of this violation.

    
    

24. Petitioner has withdrawn the allegation set forth in paragraph (3)(e) of the Administrative Complaint.

    
    

25. Respondent is charged with violation of Rule Section 17

    Florida Administrative Code, concerning Respondents' failure to obtain approval to operate the facility's water system when placed in service. Since Respondents did not place the system in service, this violation is not proven.

    
    

26. Respondent is charged with violation of Rule Sections 17

and 17-555.540(2)(b), Florida Administrative Code, concerning Respondents'

failure to obtain a required construction permit and approval from Petitioner when altering the water system by installing a chlorinator. Respondent is guilty of this violation.

RECOMMENDATION

Based on the foregoing, it is hereby

Recommended that a final order be entered by Petitioner denying the variance requested by Respondent with exception of such minimal distance as may be required to relocate the water well as far as possible from the drainfield on the Respondent property, and,

Further Recommended that such final order also assess Respondent Paul an administrative penalty of $500 for each of the four violations contained in the Administrative Complaint which were proven in this proceeding for a total of

$2000, and a continuing assessment of $500 per day for each violation for a total of up to $2000 per day after first allowing Respondents a 60 day period within which to correct all four violations.

DONE AND ENTERED this 3rd day of May, 1993, in Tallahassee, Leon County, Florida.

DON W. DAVIS

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 3rd day of May, 1993.

ENDNOTE

1/ By way of prehearing stipulation, the parties have agreed that to the extent Rule 10-6.045, Florida Administrative Code, is determined to be an invalid exercise of delegated authority, the variance issues will be addressed using the standards set out in Chapter 381, Florida Statutes.

APPENDIX

The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties.

Proposed Findings of Petitioner HRS.

Petitioner's findings numbered 21, none of which were accompanied by record citation. Most of the findings were those stipulated to between the parties and were accordingly adopted. The remaining uncited findings were reviewed and are addressed by the foregoing findings of fact to the extent possible.

Proposed Findings of Respondent Paul and VMP, Inc.

1.-9. Accepted.

11. Rejected, not supported by weight of the evidence. 12.-13. Accepted.

14. Rejected, weight, subordinate to HO findings. 15.-17. Accepted.

1. Accepted with exception of last sentence which is rejected as subordinate to HO findings.

2. Accepted.

COPIES FURNISHED:

Sidney F. Ansbacher, Esquire Post Office Box 4548 Jacksonville, FL 32201-4548

Charlene Peterson, Esquire District 4 Legal Office Department of Health and

Rehabilitative Services Post Office Box 2417 Jacksonville, FL 32231-0083

Amy M. Jones, Esquire Environmental Health Office Department of Health and

Rehabilitative Services 1317 Winewood Boulevard

Tallahassee, FL 32399-0700

John Slye General Counsel

Department of Health and Rehabilitative Services

1323 Winewood Boulevard

Tallahassee, FL 323399-0700

Robert L. Powell, Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, FL 323399-0700

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.

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES

VINCENT M. PAUL,

Petitioner,

CASE NO.: 92-0159

vs. FPSS NO.: 92-7553

RENDITION NO.: HRS-93-235-FOF-HST

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,

Respondent.

/

FINAL ORDER

This cause came on before me for the purpose of issuing a final agency order. The Hearing Officer assigned by the Division of Administrative Hearings (DOAH) in the above-styled case submitted a Recommended Order to the Department of Health and Rehabilitative Services (HRS). The Recommended Order entered May 3, 1993 by Hearing Officer Don W. Davis is incorporated by reference.

RULINGS ON EXCEPTIONS

Counsel for Vincent M. Paul and V. M. P. Corporation has filed 8 exceptions to the Recommended Order. First, counsel urges that the Hearing Officer erred in finding of fact 10 where it is stated: "A drainfield should be totally unobstructed to allow aerobic process to take place in a drainfield which will permit the breakdown of contaminants." Counsel concedes there is some competent substantial evidence in the record to support the quoted language, but apparently objects to the weight accorded the evidence supporting said language by the Hearing Officer. Counsel points to evidence in the record that such a drainfield, covered by an asphalt parking lot, would not necessarily fail to destroy coliform bacteria; that it can function properly but would not eliminate nitrates as readily as an uncovered drainfield. The Hearing Officer could properly infer from the evidence in the record that a drainfield should be unobstructed. The exception is denied.

The second exception takes exception to the failure of the Recommended Order, in finding of fact 11, to cite the capacity of the "dosing" tank. This exception is clearly without merit, as Respondent is not guilty of violating rule s. 10D-6.048, Fla. Admin. Code, concerning adequacy of septic tank size.

The third exception is denied. The evidence supports the Hearing Officer's conclusion of law that the hardship is the result of Paul's own action of paving over the drainfield.

The fourth exception disagrees with the Hearing Officer's recommendation in conclusion 16 that the septic tank currently located under and adjacent to the building be closed. Counsel points to evidence that could support the exception; i.e., variances granted in other cases; that the septic tank has never failed; and that the location of the tank provides no hindrance to the maintenance of the septic tank. Such evidence does not require a conclusion contrary to that reached by the Hearing Officer. The exception is denied.

The fifth exception states no legal reason why the $500.00 fine referred to is not authorized by law. The exception is denied.

Exception 6 is granted to the extent that conclusion 21 misstates the capacity stated in rule s. 10D-6.048 for sewage flow of 580 gallons per day. That part of the exception which disagrees with the $500.00 penalty for maintenance of a well within fewer than 100 feet from the septic system is denied. Counsel urges that the penalty is unreasonable because there is virtually nowhere on the property that would allow a 100 foot setback. I disagree that the fine is unreasonable. A variance is granted to relocate the water well as far as possible from the drainfield on the Respondent's property. Exception 6 is denied.

Exception 7 opposes the $500.00 penalty for failure to obtain a construction permit and approval from the department prior to altering the water system by installing a chlorinator. Counsel points to evidence that the offending chlorinator was simply a replacement for a worn out one. This does not excuse V. M. P.'s failure to comply with the rules regarding permitting.

The exception is accordingly denied.

Counsel argues in exception 8 that assessment of continuing fines on a daily basis is without support as being outside of the scope of the pleadings. Counsel states that the Administrative Complaint does not request continuing daily penalties, thus the Hearing Officer's recommendation that the same be imposed is without record support. Section 381.0061(1), Fla. Stat., provides that "[e]ach day that a violation continues may constitute a separate violation." The department does not construe this statutory authorization for continuing, separate violations and fines for the separate violations as requiring notice in the Administrative Complaint. The notice of imposition of a fine, even if such notice in' an Administrative Complaint does not mention continuing, separate violations (such as $500.00 per day for each day the violation continues unabated), is sufficient. The purpose of the Administrative Complaint is to effect compliance with the health laws, not just to collect a fine. The Hearing Officer's recommendation is proper. Exception 8 is denied.

FINDINGS OF FACT

The department hereby adopts and incorporates by reference the findings of fact set forth in the Recommended Order, except where inconsistent with the above rulings on exceptions.

CONCLUSIONS OF LAW

The department hereby adopts and incorporates by reference the conclusions of law set forth in the Recommended Order, except where inconsistent with the following: tank capacity for sewage flow of 580 gallons per day is 1050 gallons, per rule s. 10D-6.048, Fla. Admin. Code.

Based upon the foregoing, it is

ADJUDGED, that the variance requested by Respondent be and the same is hereby DENIED, with the exception of such minimal distance as may be required to relocate the water well as far as possible from the drainfield on the Respondent's property. It is

FURTHER ADJUDGED that a fine of $2,000.00 ($500.00 for each violation contained in the Administrative Complaint that was proven in this proceeding), is hereby imposed, after which there is imposed a continuing assessment of

$500.00 per day for each violation for a total of up to $2,000.00 per day after first allowing Respondents a 60 day period within which to correct all four violations.

DONE and ORDERED this 2nd day of June, 1993, in Tallahassee, Florida.

Buddy MacKay Acting Secretary

Department of Health and Rehabilitative Services

State Health Officer

COPIES FURNISHED:

Don W. Davis Hearing Officer

DOAH, The DeSoto Building 1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Charlene J. Peterson, Esquire District 4 Legal Office

5920 Arlington Expressway Post Office Box 2417

Jacksonville, Florida 32231-0083

Amy Jones, Esquire (HSE) Environmental Health Office 1317 Winewood Boulevard

Tallahassee, Florida 32399

Sidney F. Ansbacher, Esquire Post Office Box 4548

Jacksonville, Florida 32201-4548

Richard G. Hunter, Ph.D. Assistant Health Officer for Environmental Health

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing was sent to the above named people by U.S. Mail this 4th day of June, 1993.

for Robert L. Powell, Sr. Agency Clerk

Assistant General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407

Tallahassee, Florida 32399-0700

(904)488-2381

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF HRS, AND A SECOND COPY, ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

Docket for Case No: 92-000159

Orders for Case No: 92-000159