STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

)

)

Petitioner, )

)

vs. ) CASE NO. 92-1017

) WILLIAM LOIACANO, d/b/a GULF ) COAST FOOD DISTRIBUTORS, INC.,1/ )

)

)

Respondent. )

)

RECOMMENDED ORDER

On April 14, 1992, a formal administrative hearing was held in this case in New Port Richey, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Thomas W. Caufman, Esquire

Department of Health and Rehabilitative Services

District 5 Legal Office 701 94th Avenue North

St. Petersburg, Florida 33702 For Respondent: William Loiacano, pro se.

STATEMENT OF THE ISSUES

The issue in this case is whether the Petitioner, the Department of Health and Rehabilitative Services (HRS), should fine the Respondent, William Loiacano, d/b/a Gulf Coast Food Distributors, Inc., for maintaining a sanitary nuisance.2/

PRELIMINARY STATEMENT

On or about December 13, 1991, the Petitioner, the Department of Health and Rehabilitative Services (HRS), served an Amended Administrative Complaint against the Respondent, William Loiacano, d/b/a Gulf Coast Food Distributors, Inc.,3/ charging him with maintenance of a failing septic system which constituted a sanitary nuisance under Section 386.041(1), Fla. Stat. (1991), and seeking the imposition of a fine in the amount of $13,000.4/ On or about January 8, 1992, the Respondent served a Petition for Formal Hearing, in which he denied the allegations. On February 17, 1992, HRS referred the matter to the Division of Administrative Hearings for formal administrative proceedings under Section 120.57(1), Fla. Stat. (1991).

HRS called six witnesses and had Petitioner's Exhibits 1 and 2 admitted in evidence in its case-in-chief.5/ During the course of the HRS presentation, the Respondent clarified that he was not disputing whether he had maintained a failing septic system which constituted a sanitary nuisance under Section 386.041(1), Fla. Stat. (1991). To the contrary, he stipulated to his maintenance of a sanitary nuisance. He clarified that he was contesting only the reasonableness of the fine under the circumstances of the case.

The Respondent testified in his own behalf and also called the assistant county administrator for utility services for Pasco County.

The Respondent did not file a proposed recommended order. Explicit rulings on the proposed findings of fact contained in the Petitioner's proposed recommended order may be found in the attached Appendix to Recommended Order, Case No. 92

FINDINGS OF FACT

1. In 1990,6/ the Respondent, William Loiacano, d/b/a Gulf Coast Food Distributors, Inc., purchased property at 8402 Lemon Road, Port Richey, Florida, for purposes of relocating his on-going food distributing business. The prior owner operated a carpet business, with approximately five employees, at the location. The Respondent had about 45-50 employees.

   
   

2. Shortly after the Respondent started doing business at the new location, he began to have problems with the existing septic tank system. The problem seemed to relate to the increased use of the toilets in the building by the added number of the Respondent's employees.

   
   

3. In September, 1990, an HRS environmental health specialist inspected the premises and observed evidence of raw sewage bubbling to the surface from the septic system's drain field and flowing into a stormwater retention pond on the property.7/ The Respondent was directed to abate the nuisance, and a discussion of the Respondent's alternatives ensued. The Respondent rejected the first proposed alternative of connecting to a central public sewer. The nearest connection was over 1000 feet away and would entail significant cost to the Respondent. (The cost would have been even higher if gravity flow was not possible, and it became necessary to pump to the connection point.) The Respondent chose, with HRS' permission, the next alternative of trying to solve the problem by installing a second septic tank system on the property.

   
   

4. The second septic tank system for which the Respondent applied, and which he had built, was designed for domestic use by 15 employees. In addition, after installation of the second septic tank system, the Respondent began processing a relish pack and a salad mix on the premises. The processing method for these products required the use of a great deal of water.

   
   

5. On or about February 7, 1991, another HRS environmental health specialist inspected the premises and again found evidence of raw sewage bubbling to the surface, this time from the new septic system's drain field, and flowing into the stormwater retention pond. The amount of water flowing into the drainfields, from a combination of the use of the toilets in the building, together with the new processing operations taking place in the building, had overtaxed the double septic tank system, and the system failed. Given the quantities of water needed to process the new products, the Respondent should have anticipated, and probably was aware of, the system failure. The Respondent

   was directed to fix the problem within a week or stop the processing the new products on the premises.

   
   

6. The Respondent tried several water conservation methods in an attempt to address the problem without having to either stop processing the new products or incur the cost of connecting to the central public sewer system. He knew, or should have known, that his efforts were futile, given the quantities of water needed to process the relish pack and salad mix.

   
   

7. HRS also referred the matter to the Florida Department of Environmental Regulation. DER inspected on or about February 18, 1991, and told the Respondent that he could not dispose of the industrial waste from the operation of his business in the on-premises septic system without an industrial waste disposal permit. In connection with this, DER apparently advised the Respondent that he would be required to test the water in the stormwater retention pond for certain contaminants. The Respondent was unable to understand what he needed to test for, and how, and sought assistance from DER and HRS. Although there is evidence that HRS tried to help the Respondent by referring him to certain individuals employed by the DER for answers, the Respondent did not follow HRS' guidance. In any case, the efforts would have been futile, as the Respondent did not have enough property to dispose of the industrial wastes from the operation of his business on-site using a septic tank system.

   
   

8. On or about June 19, 1991, a neighbor complained to the Respondent about the smell of raw sewage coming from the Respondent's septic system. The Respondent did not receive his neighbor's observations kindly. The neighbor complained to HRS and the Pasco County Sheriff's office. An HRS inspection on June 20, 1991, confirmed the existence of a sanitary nuisance on the premises. Again, raw sewage was bubbling to the surface from the new septic system's drain field and was flowing into the stormwater retention pond. HRS arranged for another meeting with the Respondent on June 27, 1991.

   
   

9. At the June 27, 1991, meeting, HRS required that the Respondent stop processing the relish pack and the salad mix until he could hook up to the central public sewer. It was felt that the septic tank systems might be adequate pending connection to the central public sewer if the quantities of water required for processing those products on the premises were eliminated and if other preventive measures were taken.

   
   

10. From June 27, 1991, forward to the date of the hearing, the Respondent purchased relish pack and salad mix from other suppliers rather than process them on the premises at 8402 Lemon Road. In addition, the Respondent continued to attempt to conserve water, had the septic tanks pumped out as frequently as required (sometimes practically daily), and had his employees utilize portable toilets in an attempt to avoid additional septic tank failures. After learning that excessive water use at the premises was partially a result of plumbing leaks, the Respondent also had the plumbing fixed.

    
    

11. The Respondent also immediately initiated the long process of connecting to the central public sewer. He had a meeting with the assistant county administrator for utilities service for Pasco County on July 3, 1991. They discussed alternatives for connecting the Respondent's business.

    Initially, the County wanted the Respondent to pay to run a sewer line over 1000 feet to the south of his property to enable the County to efficiently connect other businesses and property owners in that area. But this option would have been costly to the Respondent, and there was no guarantee that gravity flow was

    possible between the Respondent's property and the connection point. If not, the Respondent also would have to pay the cost of pumping to the connection point.

    
    

12. The Respondent hired an engineer to design an alternative that would be less costly. He also sought the cooperation of his neighbors, who would be required to connect to central sewer when the Respondent did. The engineer also worked with those neighbors in designing an alternate connection.

    
    

13. On or about September 9, 1991, another meeting was held among the Respondent and his engineer and the county's utilites construction team. As a result of this meeting, the County agreed to modify the connection route in accordance with the Respondent's proposal. The Respondent's engineer continued his work on the design of the connection.

    
    

14. HRS inspections on or about September 11 and 25, 1991, revealed that the Respondent's septic system was failing again and that raw sewage again was bubbling to the surface from the new septic system's drain field and flowing into the stormwater retention pond. HRS arranged to meet with the Respondent again on October 4, 1991, along with a Pasco County deputy sheriff and a DER industrial wastewater compliance inspector. At this meeting, the Respondent felt that the deputy sheriff was threatening to arrest him for violation of the law, and he angrily terminated the meeting and asked all of them to leave the premises.

    
    

15. In December, 1991, the Respondent arranged a meeting with the County and his neighbors to discuss sharing the cost of the connection route the Respondent was proposing to build. The neighbors, realizing the Respondent's weak bargaining position, refused to share the Respondent's costs. At this point, the County conceded to pay the approximate $9,000 to jack and bore under the road, but the Respondent was required to pay to run a sewer line approximately 300 feet to the south and to construct a manhole on his neighbors' side of the road, as well as on his side of the road. (The second manhole would be used by the neighbors to connect their properties to the line the Respondent was building when the County required them to connect.) The total cost to the Respondent for his part of the construction of the connection to the public sewer will be approximately $24,000.

    
    

16. On January 17, 1992, the Respondent paid a $3,428 impact fee for connecting to the central public sewer, based on projected water use. On January 23, 1992, the Respondent applied for a force main interconnect permit. At the time of the final hearing, the jack and bore and the construction of the new sewer line connecting the Respondent's property to the central sewer were about to begin.

    
    

17. The evidence indicates that, once HRS made it clear to the Respondent on or about June 27, 1991, that connection to the central public sewer was the Respondent's only remaining option, the Respondent moved with reasonable dispatch. The time it took to arrange to be connected to the public sewer was within normal ranges, and there is no evidence that the Respondent did anything to cause unnecessary delays. (Delays, if any, were caused by the need for the Respondent's engineer to work with and get cooperation from the Respondent's neighbors, who were not as anxious as the Respondent to have the new sewer line built.) There also is no evidence that the Respondent processed relish pack or salad mix on the premises after June 27, 1991. In addition, the Respondent continued to attempt to conserve water, had the septic tanks pumped out

    frequently (sometimes practically daily), and had his employees utilize portable toilets in an attempt to avoid additional septic tank failures.

    
    

18. The evidence also indicates that, after June 27, 1991, all concerned were hopeful that the measures the Respondent was taking would prevent, or at least minimize, septic system failures pending connection to the public sewer. After June 27, 1991, HRS presented direct evidence of septic tank system failures only on two occasions in September, 1991.

    
    

19. The evidence is that, after becoming aware of the system failures in September, 1991, HRS sought the imposition of a fine against the Respondent. The evidence suggests two other important motivating reasons for HRS' action: first, not being aware of the actions the Respondent took between June 27 and September, 1991, to connect to the central sewer, HRS mistakenly believed that the Respondent was ignoring its instructions; and, second, HRS mistook the

    Respondent's angry outburst at the meeting at the Respondent's place of business in September, 1991, when he felt he was being threatened with arrest for violation of the law, as being evidence that the Respondent was not genuine in his apparent concern and efforts to respond to HRS' guidance and instruction.

    
    

    CONCLUSIONS OF LAW

    
    

20. Section 386.01, Fla. Stat. (1991), defines a sanitary nuisance as "the commission of any act . . . or the keeping, maintaining, propagation, existence, or permission of anything . . . by which the health or life of an individual, or the health or lives of individuals, may be threatened or impaired, or by which or through which, directly or indirectly, disease may be caused."

    
    

21. Section 386.041(1)(b), Fla. Stat. (1991), provides that improperly built or maintained septic tanks constitute prima facie evidence of maintaining a nuisance injurious to health.

    
    

22. Section 386.03(3), Fla. Stat. (1991), directs HRS to notify someone who is committing, creating, keeping, or maintaining a sanitary nuisance to remove it, or cause it to be removed, within 24 hours, or such other reasonable time as may be determined by HRS. Otherwise, Section 386.03(2)(d) authorizes HRS to institute administrative proceedings authorized by Section 381.0061, Fla. Stat. (1991).

    
    

23. Section 381.0061(1), Fla. Stat. (1991), authorizes HRS to "impose a fine, which shall not exceed $500 for each violation, for a violation of . . . any of the provisions of chapter 386." It also provides: "Each day that a violation continues may constitute a separate violation." Section 381.0061(2) provides:

    
    

    In determining the amount of fine to be imposed, if any, for a violation, the following factors shall be considered:

    1. The gravity of the violation, including the probability that death or serious physical or emotional harm to any person will result or has resulted, the severity of the actual or potential harm,

       and the extent to which the provisions of the applicable statutes or rules were violated.

    2. Actions taken by the owner or operator to correct violations.

    3. Any previous violation.

       
       

24. In this case, the evidence is clear (indeed, there is no dispute) that the Respondent maintained a sanitary nuisance on his property at 8402 Lemon Road in Port Richey. There is direct evidence of a sanitary nuisance existing on an occasion in September, 1990, on or about February 7, 1991, on June 19 and 20, 1991, and on two occasions in September 25, 1991. There also is evidence that the Respondent initially made timely efforts to deal with the problem by installing a second septic tank system. But when the Respondent began to process relish pack and salad mix on the premises, he knew or should have known that the septic systems would fail. When HRS pointed out the failure to him on or about February 7, 1991, he should have initiated the process of connecting to the public sewer instead of waiting until the June 27, 1991, meeting. The imposition of a fine for maintaining a failing sewer system during that time frame is appropriate. But, in view of all the circumstances, the $13,000 fine sought by HRS seems excessive.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Health and Rehabilitative Services (HRS) enter a final order fining the Respondent, William Loiacano, d/b/a Gulf Coast Food Distributors, Inc., in the amount of $5,000.

RECOMMENDED this 29 day of April, 1992, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON 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 day of April, 1992.

ENDNOTES

1/ In the pleadings, the Respondent was misidentified by the name of Joseph Loiacano. At final hearing, the Respondent clarified that he should have been identified as William Loiacano, his true name.

2/ Initially, according to the pleadings, another issue was whether the Respondent was guilty of maintaining a sanitary nuisance. But at final hearing, the Respondent clarified that he was not disputing, and that he would stipulate to, his maintenance of a sanitary nuisance, but that he contested the reasonableness of the fine under the circumstances of the case. See Preliminary Statement.

3/ See footnote 1, above.

4/ The record in this case does not include an initial Administrative Complaint. The evidence at final hearing indicates that an initial Administrative Complaint was filed approximately at the end of September, 1991.

5/ At the end of its presentation, HRS asked for and, without objection, was given permission to late file an additional exhibit, but no late exhibit ever was filed.

6/ The evidence did not prove the precise date.

7/ Human beings can contract hepatitis and other serious diseases from exposure to raw sewage or from being bitten by mosquitos that breed in it.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-1017

To comply with the requirements of Section 120.59(2), Fla. Stat. (1991), the following rulings are made on the Petitioner's proposed findings of fact (the Respondent not having filed any):

1. Rejected as not proven that the sanitary nuisance was maintained "at all times material hereto." The Respondent stipulated that he maintained a sanitary nuisance but did not specify "at all times material hereto." The evidence would indicate that the sanitary nuisance was maintained at least during the times when the Respondent was processing relish pack and salad mix on the premises. The Respondent presented undisputed evidence that this processing has not taken place on the premises since June 27, 1991. In addition, other steps were taken to prevent or minimize septic systems failures after that date, and there was direct evidence of only two failures after that date (on two occasions in September, 1991).

   
   

2. Accepted and incorporated.

   
   

3. First sentence, accepted and incorporated. Second sentence, rejected in part as not proven. The evidence suggests that the Respondent was not yet operating his business at 8402 Lemon Road on May 18, 1990. In any event, HRS did not prove the precise date the Respondent changed the location of his operation. There was no evidence whether the previous location was on public sewer. At the time, the Respondent had about 45-50 employees. By the time of the final hearing, the Respondent had about 100 employees.

   
   

4. Rejected as not proven. See 3., above.

   
   

5. Accepted and incorporated. However, the Respondent also is in the business of distributing food processed elsewhere and purchased for distribution.

   
   

6. Accepted and incorporated.

   
   

7. Accepted and incorporated to the extent not subordinate or unnecessary.

8.-9. Accepted and incorporated.

10. First sentence, accepted and incorporated. Second sentence, rejected as not proven. The evidence was that the Respondent and Mr. Gozo also discussed the alternative of adding a second septic tank system in a good faith effort to

address the problem. The evidence was that the portable toilets were not added until later.

11.-12. Accepted and incorporated.

1. Rejected as not proven.

   
   

2. Rejected as not proven that it was just a "general inquiry." Otherwise, accepted and incorporated.

   
   

3. Accepted and incorporated.

16.-17. Accepted and incorporated to the extent not subordinate or unnecessary.

1. Accepted and incorporated.

   
   

2. Rejected as not proven.

   
   

3. The date is rejected as not proven, but otherwise accepted and incorporated.

   
   

4. Rejected as not proven as to October 2; accepted and incorporated as to September 25, 1991.

   
   

5. The asserted explanation for the Respondent's actions are rejected as not proven; otherwise, accepted and incorporated.

   
   

6. Rejected as not proven. (The evidence is that she did not seek access to the premises on that date, other than to meet with the Respondent in his office.)

   
   

7. Accepted and incorporated.

   
   

8. First sentence, accepted but subordinate and unnecessary. (Also, she again did not ask to see any other part of the premises, as her purpose was to view the area where the Respondent's vehicles are washed.) Second sentence, rejected as not proven. (The witness did not seem sure what the cracking indicated and, in any event, did not specify a "failing," as opposed to a "failed" system.)

   
   

9. Accepted and incorporated.

COPIES FURNISHED:

Thomas W. Caufman, Esquire Department of Health and

Rehabilitative Services District 5 Legal Office 701 94th Avenue North

St. Petersburg, Florida 33702

William Loiacano, President

Gulf Coast Food Distributors, Inc. 8402 Lemon Road

Port Richey, Florida 34668

R. S. Power, Esquire Assistant General Counsel Agency Clerk

Department of Health and Rehabilitative Services

1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

John Slye, Esquire General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT TO THE DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST TEN DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONSULT WITH THE DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES CONCERNING ITS RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER.

Docket for Case No: 92-001017

Orders for Case No: 92-001017