STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 93-6180

)

JOHN E. DAVIS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on February 23, 1994, in Key West, Florida.

APPEARANCES

For Petitioner: Carmen D. Frick, Esquire

Department of Health

and Rehabilitative Services District Legal Counsel

401 Northwest 2nd Avenue, N-1014 Miami, Florida 33128

For Respondent: John E. Davis

824 Seabreeze Drive

Ruskin, Florida 33570 STATEMENT OF THE ISSUES

The issues presented are whether Respondent is required to obtain an annual operating permit for the aerobic treatment unit located on his property, and whether an administrative fine should be imposed against Respondent for failure to obtain that permit.

PRELIMINARY STATEMENT

By Notice of Intended Action dated July 30, 1993, the Department advised Respondent that his continued failure to obtain an annual operating permit for his aerobic treatment unit must be corrected within 14 days or the Department would initiate action to impose an administrative fine. Respondent requested a formal hearing regarding the necessity for him to obtain such a permit, and the Department thereafter transferred this matter to the Division of Administrative Hearings to conduct that formal proceeding.

At the commencement of the formal hearing, the style of this cause was amended sua sponte as reflected hereinabove.

The Department presented the testimony of Homer J. Rhode, III, and Respondent testified on his own behalf. Additionally, the Department's Exhibits numbered 1-4 and Respondent's Exhibits numbered 1-3 were admitted in evidence.

Both parties submitted post-hearing proposed findings of fact in the form of proposed recommended orders. A specific ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. On or about February 5, 1990, Respondent and his wife filed with the Department an application for an onsite sewage disposal system construction permit attendant to a residence which they proposed to construct on Lot 7 of Block 15 in Breezeswept Beach Estates on Ramrod Key, in Monroe County, Florida. That application sought the Department's approval for the construction of a standard septic tank.

   
   

2. The Department advised Respondent that he could not place a standard septic tank on that property. Accordingly, on approximately March 6, 1990, Respondent amended his application, this time seeking approval for the construction of an aerobic treatment unit.

   
   

3. Respondent obtained final installation approval for his aerobic treatment unit from the Department on December 4, 1991.

   
   

4. By letter dated August 3, 1992, the Department advised Respondent that changes in the law made by the 1991 Legislature which became effective on July 1, 1991, established the requirement for yearly operating permits for aerobic treatment units. That letter enclosed an application form for obtaining the operating permit and gave instructions on where to mail the completed application. Respondent did not submit an application for the operating permit and pay the fee in response to that letter.

   
   

5. On July 30, 1993, the Department sent Respondent its Notice of Intended Action advising Respondent that his failure to pay the operating permit fee and obtain the permit within 14 days of receipt of that Notice would result in the imposition of an administrative fine. Thereafter, Respondent requested this formal proceeding. Respondent has, to date, failed to obtain an operating permit for any year and has not paid the fees associated with an operating permit.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Section 120.57(1), Florida Statutes.

   
   

7. The 1991 Legislature made numerous changes to Chapter 381, Florida Statutes. One of those changes established the annual operating permit for aerobic treatment units and established a minimum fee for the 1991-1992 fiscal

   year, i.e., as of July 1, 1991. With its effective date of July 1, 1991, Section 381.0066, Florida Statutes, which is entitled "Onsite sewage disposal systems; fees," now reads, in pertinent part, as follows:

   
   

   1. The department is authorized to collect fees for services provided with respect to on- site sewage disposal systems. It is the intent of the Legislature that the total fees assessed under this section be in an amount sufficient to meet the cost of carrying out the provisions of this section.

   2. The fee schedule for fiscal year 1991- 1992 shall be the following minimum fees pro- vided in this section, and such schedule shall remain in effect until the effective date of a fee schedule promulgated by rule by the department:

      * * *

      (c) Annual operating permit for aerobic treat- ment units, including quarterly evaluation, annual sampling, and laboratory analysis of effluent from aerobic treatment units: a fee

      of not less than $150, or more than $300.

      
      

8. In compliance with the statutory direction, the Department amended its Rule 10D-6.043(4), Florida Administrative Code, to read, in pertinent part, as follows:

   
   

   (c) Property owners served by an aerobic treatment unit installed prior to July 1, 1991, and businesses which are located in industrial, manufacturing, or equivalent areas, which are served by an onsite sewage disposal system in- stalled prior to July 5, 1989, shall not be required to obtain an operating permit at

   their present location. If ownership or tenancy of a building changes, the owner of the system or the owner's agent must make ap- plication to obtain an operating permit for the system.

   * * *

   (e) Persons using aerobic treatment sys- tems meeting the standards set forth in sec- tion 10D-6.0541 shall obtain an annual operat- ing permit from the HRS county public health unit for the aerobic treatment unit. The fee collected for this permit as set forth in 10D- 6.059(1)(f) shall be used by the department to carry out periodic monitoring and effluent sampling of the unit. Persons operating an aerobic treatment unit shall permit department personnel right of entry to the property during normal working hours to allow for effluent sampling or evaluating the general state of repair or function of the system.

9. The statutory language is clear. An annual operating permit fee for aerobic treatment units shall be collected by the Department as of July 1, 1991. The Department promulgated rules to comply with the Legislature's directive. In interpreting the statute the Department chose to "grandfather" those units which had been permitted by the Department by July 1, 1991, until such time as the occupancy of the building served by the aerobic treatment unit changed. Respondent did not have a completed, installed, and approved unit by that date and is, therefore, not exempted from the requirement that he obtain an annual operating permit and pay the fee therefor.

   
   

10. Respondent argues that he should be exempted because he started installation of his unit before July 1, 1991. Neither the statute nor the rule offers such an exemption. Respondent also argues that the Department should have told him in advance that the law would be changing effective July 1, 1991, because he might have completed his installation sooner. No authority has been cited for that proposition or Respondent's concomitant proposition that he need not comply with the law for that reason.

    
    

11. Respondent alleges that he did not receive approval of his installation until December 4, 1991, because he was delayed by a different state agency instituting litigation concerning his construction. Although there is some evidence that Respondent's construction was delayed several months by litigation involving the Department of Community Affairs, the record reveals that his construction progress was also controlled by his vacation schedule. No evidence was offered that the Department responsible for approving his aerobic treatment unit installation in any way delayed its inspection(s) or approval.

    
    

12. Respondent's argument that the permit he received upon final approval of his onsite sewage disposal system constitutes a contract between him and the Department which the Department cannot unilaterally amend by adding requirements for the operation of his system is without merit. No legal authority has been found for Respondent's belief that a permit is a contract. Further, Respondent fails to acknowledge that the Legislature changed the law, which the Department is merely implementing. Similarly unpersuasive is Respondent's stated fear that he will be criminally prosecuted if he refuses to pay the fee so that the operating permit and fee requirement constitutes an ex post facto law. The Legislature passed a law effective in the future which applies to persons who choose to operate an aerobic treatment unit after the effective date of that law.

    
    

13. In its Notice of Intended Action issued July 30, 1993, the Department notified Respondent that if he did not obtain the required operating permit within 14 days, then the Department would initiate action to impose an administrative fine. Respondent requested this formal proceeding as a result of that Notice. Although Section 381.0061(1), Florida Statutes, authorizes the Department to impose a fine of up to $500 a day for each violation of Section 381.0066 or any rule adopted thereunder, the evidence reveals that the Department did not do so but chose to give Respondent one last chance to comply with the law first.

    
    

14. In its proposed recommended order filed herein, the Department does recommend that Respondent be fined but fails to suggest what amount of fine would be appropriate. Respondent has not been subject to the imposition of a fine during the pendency of this proceeding while he contests the Department's preliminary agency action. Respondent has operated his onsite sewage disposal

system since December 4, 1991, without paying the fee and obtaining the permit required by statute. Should Respondent continue to do so, it is appropriate that he be fined the amount of the fee on a daily basis.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered:

1. Requiring Respondent to pay the fee and obtain an annual operating permit for his aerobic treatment unit forthwith;

   
   

2. Advising Respondent that his failure to comply by a date certain will result in the imposition of an administrative fine; and

   
   

3. Fining Respondent in the amount of $155 a day commencing the day after the deadline contained in the Final Order and continuing every day thereafter until Respondent complies with the law.

DONE and ENTERED this 6th day of April, 1994, at Tallahassee, Florida.

LINDA M. RIGOT

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 6th day of April, 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-6180

1. Petitioner's proposed findings of fact numbered 1, 3, and 6-8 have been adopted either verbatim or in substance in this Recommended Order.

2. Petitioner's proposed finding of fact numbered 2 has been rejected as being irrelevant to the issues under consideration in this cause.

3. Petitioner's proposed findings of fact numbered 4 and 5 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony.

4. Respondent's proposed findings of fact numbered 1 and 4 have been adopted either verbatim or in substance in this Recommended Order.

5. Respondent's proposed findings of fact numbered 2, 3, 8, and 12 have been rejected as being irrelevant to the issues under consideration in this cause.

6. Respondent's proposed findings of fact numbered 5-7 and 9-11 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony.

COPIES FURNISHED:

Carmen D. Frick, Esquire

Department of Health and Rehabilitative Services District Legal Counsel

401 N.W. 2nd Avenue, N-1014 Miami, Florida 33128

John E. Davis

824 Seabreeze Drive

Ruskin, Florida 33570

Robert L. Powell, Agency Clerk

Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Kim Tucker, 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 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: 93-006180

Orders for Case No: 93-006180