STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, ) SEMINOLE COUNTY HEALTH DEPARTMENT, ) f/k/a DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 96-5560

)

HYACINTH D. WYNTER, ) n/k/a HYACINTH D. WYNTER WALLACE, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was heard before the Division of Administrative Hearings by Administrative Law Judge, Daniel M. Kilbride, on March 25, 1997 in Sanford, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Sonia Nieves Burton, Esquire

Department of Health

400 West Robinson Street Orlando, Florida 32801

For Respondent: Michael D. Jones, Esquire

Atrium II Building

301 West State Road 434, Suite 317 Winter Springs, Florida 32708

STATEMENT OF THE ISSUES

Whether Respondent is guilty of creating, keeping, or maintaining a nuisance injurious to health in violation of

Section 386.041(1)(b), Florida Statutes, as set forth in the Citation for Violation, dated August 19, 1996.

PRELIMINARY STATEMENT

The Petitioner filed a one-count Citation for Violation charging Respondent, a Florida property owner, with a violation of the provisions of Section 386.041(1)(b),Florida Statutes, and sought corrective action and to impose a monetary fine against Respondent. The Citation was served on Respondent on August 19, 1996 and she filed a request for a formal hearing, pursuant to Section 120.57(1), Florida Statutes on September 11, 1996. This matter was forwarded to the Division of Administrative Hearings on November 20, 1996 and this proceeding followed. This cause was set for hearing, but continued in order to permit newly retained counsel adequate time to prepare for hearing.

At the formal hearing, Petitioner presented the testimony of three witnesses, and six documents were admitted in evidence.

Respondent testified in her own behalf and presented the testimony of three witnesses, and submitted ten exhibits in evidence. The hearing was recorded but not transcribed.

Petitioner has not filed proposed findings of fact or conclusions of law, as of the filing of this order. Respondent filed a “summary of the evidence”, in lieu of proposed findings of fact and conclusion of law, which has been carefully reviewed in the preparation of this order

FINDINGS OF FACT

1. Petitioner, Department of Health, the successor agency to the Department of Health and Rehabilitative Services, is the state agency charged with the responsibility of investigating and correcting sanitary nuisances in this state.

2. The Respondent, Hyacinth D. Wynter, now known as Hyacinth D. Wallace, has owned a private residence and kennels located at 2323 Tuscawilla Road, Winter Springs, Florida, from 1996 to the present.

3. On or about June 19, 1996, the Seminole County Public Health Unit received a complaint of a possible sanitary nuisance existing on the Respondent’s property.

4. On June 21, 1996, an inspection of Respondent’s property revealed that the property contained a large home with a septic tank and drain field in the front yard and another in the back yard. A kennel for small animals and an apartment was also located in the rear of the property. The septic tank and drain field in the rear of the property was located in a low spot which was subject to the accumulation of surface water runoff from the kennel and during periods of above-average rainfall.

5. Observation revealed standing water in the back yard. The water showed discoloration and had a pungent odor. However, no solid waste was visible. Subsequent tests for sewage contamination was inconclusive.

6. This observation indicated the drain field had failed.

7. Respondent was given a Sanitary Nuisance form letter which recommended that the septic tank be pumped, the ground disinfected and the drainfield be repaired within ten days.

8. Respondent contacted two septic tank companies in late June and received estimates on pumping the septic tank and on the repair and improvement of the septic system.

9. Respondent retained one of the companies to pump the septic tank. The septic tank company was unable to complete the job prior to Petitioner’s reinspection on July 2, 1997, because of above normal rainfall and the inability to get its truck into the Respondent’s back yard.

10. Petitioner reinspected Respondent’s property on July 2, 1997 and observed the same conditions as was observed on June 21, 1997. A three day extension was granted to Respondent, in order for the tank to be pumped.

11. On July 3, 1997, Orlando Septic Tank Service, Inc. pumped the septic tank and disinfected the area. It also advised Respondent that the drainfield had failed and would need to be replaced.

12. On July 8, 1997, Respondent inspected the area again and observed the same conditions as on the prior inspections. An Official Notice to Abate a Sanitary Nuisance and a Notice of Intended Action was issued by Respondent on July 11, 1997. It was served on Respondent, by posting and by certified mail, on July 12, 1997. Respondent was directed to abate the nuisance

    within 7 days of the notice or an administrative fine would be imposed.

13. Respondent began to disinfect the area with lime on a daily basis, until the drainfield was repaired. The low area with the standing water was bordered off with visible construction type ribbon and visitors coming to the premises were advised to stay clear of the area.

14. Respondent authorized Orlando Septic Tank Service to submit a permit application to replace the drainfield in accordance with the specifications approved by the Petitioner. The application was submitted on July 17, 1996. The permit was issued on July 24, 1996.

15. On July 25, 1997, Respondent received a proposal from Orlando Septic Service to install an elevated drainfield on the site for the sum of $4,288.50. Respondent was not able to financially afford to authorize this work without obtaining financing for the project. When financing was obtained, Respondent accepted the proposal and then authorized the work on August 8, 1996.

16. Due to other obligations, Orlando Septic was not able to give a proposed starting date for the project until August 26, 1996.

17. On August 13, 1996, Petitioner inspected the Respondent’s property again and observed the same conditions as on previous inspections. Petitioner was informed of the

    projected starting date for repair of the drainfield, however, a Citation for Violation was issued on August 16, 1996 calling for corrective actions to abate the condition by 4:00 p.m. August 19, 1996.

18. On August 27, 1996, the septic tank was pumped again.

    
    

19. Orlando Septic Service was scheduled to begin work on the repair of the drainfield on August 26, 1996. On that same date, the company called Respondent and informed her that they were delayed on another job and could not begin repair of Respondent’s drainfield until sometime in September.

20. Respondent immediately called another company and gave them the contract. The repair was completed on September 10, 1996.

21. The evidence was insufficient to establish that a sanitary nuisance existed on Respondent’s property on August 16, 1996.

    CONCLUSIONS OF LAW

    
    

22. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to subsection 120.57(1), Florida Statutes.

23. The Department of Health, the successor agency to the Department of Health and Rehabilitative Services, is charged with the duty to protect and improve the state’s public health, in general, Chapter 381, Florida Statutes, and abate sanitary

    nuisances, in particular, Chapter 386, Part I, Florida Statutes. The Department has the authority to investigate and remove or abate a sanitary nuisance that it determines to exist by criminal, civil or administrative proceedings. Sections 386.02 and 386.03, Florida Statutes.

24. In an administrative proceeding to abate an alleged sanitary nuisance, the burden of proof to establish the facts upon which the Petitioner seeks to impose an administrative fine is on the Petitioner. Balino v. Department of Health and Rehabilitative Services, 348 So2d 349 (Fla. 1st DCA 1977); Florida Department of Transportation v. J. W. C. Company, Inc.,

    396 So.2d 778, 778 (Fla. 1st DCA 1981). In addition, since this statute is penal in nature, it must be construed strictly in favor of the person accused of its violation. State v. Winters, 346 So.2d 991(Fla. 1977).

25. The following provisions of Chapter 386, Florida Statutes, are relevant. The provisions provide in pertinent part:

    1. Sanitary nuisance.-

       A sanitary nuisance is the commission of any act, by an individual . . . or the keeping, maintaining, . . . existence . . . of anything, by an individual . . . by which the health or life of an individual . . . may be threatened or impaired, or by which or through which, directly or indirectly, disease may be caused.

       
       

    2. Duty of Department.-

       The Department . . . shall investigate the sanitary condition of any . . . place in the state; and if, upon examination, the department shall ascertain the existence of any sanitary nuisance as herein defined, it shall serve notice upon the proper party or parties

       to remove or abate the said nuisance or, if necessary, proceed to remove or abate the said nuisance in the manner provided in 823.01.

       
       

    3. Notice to remove nuisances; authority of Department.-

       1. The Department . . . upon determining the existence of anything. . . declared to be nuisances by law, shall notify the person or persons committing, creating . . . the same, to remove or cause to be removed, the same within 24 hours, or such other reasonable time as may be determined by the department, after such notice be duly given.

       2. If the sanitary nuisance condition is not removed by such person or persons within the time prescribed in said notice, the department . . . may within the county where the nuisance exists, remove, cause to remove, or prevent the continuing sanitary nuisance condition in the following manner:

    * * *

    (d) Institute administrative proceedings, authorized by the department as set forth in s. 381.0061.

    
    

    1. Nuisances injurious to health.-

       1. The following conditions existing, permitted, maintained, kept, or caused by an individual . . .shall constitute prima facie evidence of maintaining a nuisance injurious to health:

    * * *

    (b) Improperly built or maintained septic tanks, water closets, or privies.

    
    

26. Respondent’s conduct has not been proven to be a violation of Sections 386.041(b), Florida Statutes.

27. From the evidence, there is no question that there existed a “problem” with the septic tank and drainfield. At issue is whether the Respondent violated Section 386.041(b), Florida Statutes by “maintaining a nuisance injurious to health.”

28. The evidence does not establish that the actions of the Respondent violate the statutory sections cited herein. The septic tank and drainfield in question was located in a low spot

    on the property and was subject to an accumulation of surface water runoff during periods of heavy rainfall. It is undisputed that during the summer months of 1996, there was an abnormal amount of rainfall in Central Florida and, in particular, during the dates in August when the citation was issued. This resulted in drainfield saturation. In addition, there was credible evidence that animal waste was washed into the area by the kennel operator which only added to the problem.

29. However, the test for sewage contamination was inconclusive. The Petitioner relied upon the testimony of its inspectors and their experience in a normal septic tank inspection process. The inspectors testified that the ponding water had characteristics and the odor attributable to a sewage discharge. However, the area was near the animal kennel and some standing water was observed in an existing run. This evidence is insufficient for the Petitioner to meet its burden of proof that the standing water was nuisance injurious to health or that the kennel immediately adjacent to the site did not contribute to the coloration and the odor associated with the standing water.

30. Further, the Respondent used every reasonable effort to abate the problem when she was given the Notice of Violation. After the first inspection of the property in late June, Respondent contacted local septic tank companies to pump the septic tank and to determine what was wrong with the drainfield. When Respondent could not get the tank pumped prior to the July 2,

    1996 reinspection, she received a three day extension and the tank was pumped the next day. The inspector returned on July 8, 1996 and took photographs which showed standing water. The standing water could not have accumulated as a result of excessive sewage discharge within four days after the septic tank had been pumped.

31. Over a two month period of time, the Respondent worked with three different septic tank service companies, had the septic tank pumped several times, made arrangements for financing of the project, and brought a service company to the site as quickly as they would agree to come. When the rains subsided, the drainfield was repaired. The evidence shows that Respondent made a continual effort to address the problem at hand in a timely manner. Respondent did as she was instructed to do, she effected a repair to the drainfield.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED as follows:

1. The Respondent, Hyacinth D. Wynter, be found not guilty of violations Sections 386.041(b), Florida Statutes.

2. The Notice of Intended Action be revoked.

DONE and ENTERED this 30th day of May, 1997, in Tallahassee, Florida.

DANIEL M. KILBRIDE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 30th day of May, 1997.

COPIES FURNISHED:

Sonia Nieves Burton, Esquire Department of Health

400 West Robinson Street Orlando, Florida 32801

Michael D. Jones, Esquire Atrium II Building

301 West State Road 434, Suite 317 Winter Springs, Florida 32708

Catherine H. Berry Legal Office

Duval County Health Department

515 West 6th Street

Jacksonville, Florida 32206-4397

Gregory D. Venz, Agency Clerk Department of Children & Families Building 2 Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Pete Peterson, Esquire 1317 Winewood Boulevard Building 6 Room 102-E

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

All parties have the right to submit written exceptions within 15 days of the issuance of 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: 96-005560

Orders for Case No: 96-005560