STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN GEE, )

)

Petitioner, )

)

vs. ) Case No. 97-3521

)

DEPARTMENT OF HEALTH, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held in Daytona Beach, Florida, on January 27, 1998, by Stephen F. Dean, assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: No appearance

For Respondent: Charlene J. Petersen, Esquire

Department of Health

420 Fentress Boulevard Daytona Beach, Florida 32114

STATEMENT OF THE ISSUES

The issues in this case are whether Petitioner was responsible for maintaining a sanitary nuisance on his property by piping sewage onto the ground from the septic system and by ignoring the need to repair a failed septic system; and whether the Department of Health properly issued a citation to Petitioner for violation of Sections 386.041(1)(a) and (b).

PRELIMINARY STATEMENT

Respondent observed sewage on the ground at Petitioner's property. Respondent returned to inspect property and found a pipe with one end placed at the septic tank and the other end at the rear of Petitioner's property. Raw sewage was observed at the end of the pipe. On July 17, 1997, a citation was issued to the Petitioner for having an improperly maintained septic system and sewage on the ground.

Petitioner requested an administrative hearing in response to receiving the Department's citation. At the formal hearing, Respondent presented testimony of Britt Williams. Respondent introduced six exhibits which were admitted into evidence.

Petitioner did not appear.

FINDINGS OF FACT

1. In November, 1995, a Department of Health, Volusia County Health Department employee, Sherry Rodriguez, was performing a sanitary survey of the water system at 479 Maytown Road, Osteen, Florida, when she observed sewage on the ground. The property in questions consists of a large, two-story house which contains rental units. The house is provided water by a well on the property and sewage is handled by an onsite septic system.

2. On November 6, 1995, Ms. Rodriguez issued a Notice of Violation for the sanitary nuisance which stated that the violation must be corrected by November 20, 1995.

3. The septic system was not repaired by November 20, 1995. Ms. Rodriguez subsequently issued a Notice of Intended Action (NIA), giving Petitioner a deadline of December 5, 1995, to repair his system.

4. When Ms. Rodriguez went to the property to serve the NIA, she observed PVC pipe on the ground, with one end at the septic tank and the other at the read of the property. Sewage was on the ground at the end of the pipe. Ms. Rodriguez took photographs of the pipe before she departed.

5. Agency employee, Britt Williams, visited Petitioner's property on November 1, 1996, and observed sewage on the ground.

6. Mr. Williams issued a follow-up NIA to Petitioner on January 30, 1997, which required Petitioner to repair the septic system by February 3, 1997.

7. Petitioner did not obtain a repair permit to correct the violations, therefore, Mr. Williams issued a citation for the violations of sewage on the ground and having an improperly maintained septic system.

   CONCLUSIONS OF LAW

   
   

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

9. The duties and powers of the Department of Health as the regulating agency over onsite sewage treatment and disposal systems are set forth in Section 381.0065(3), Florida Statutes.

   The applicable sections state:

   
   

   The Department shall:

   
   

   1. Adopt rules to administer s. 381.0065- 381.0067.

      
      

   2. Perform application reviews and site evaluations, issue permits, and conduct inspections and complaint investigations associated with the construction, installation, maintenance, modification, abandonment, or repair of an onsite sewage treatment and disposal system . . .

      
      

   3. Develop a comprehensive program to ensure that onsite sewage treatment and disposal systems regulated by the department are sized, designed, constructed, installed, repaired, modified, abandoned, and maintained in compliance with this section and rules adopted under this section to prevent groundwater contamination and surface water contamination and to preserve the public health. The State health Office is the final administrative interpretive authority regarding rule interpretation.

      
      

   4. Conduct enforcement activities, including imposing fines, issuing citations, suspensions, revocations, injunctions, and emergency orders for violations of this section, part III of Chapter 489, or Chapter

      396 or for a violation of any rule adopted under this section, part III of Chapter 489, or Chapter 386.

10. Section 381.0065(4), Florida Statutes, details the law pertaining to permits, installation and conditions of an onsite sewage treatment and disposal system. The section requires that:

    A person may not construct, repair, modify, abandon or operate an onsite sewage treatment and disposal system without first obtaining

    a permit approved by the Department of Health . . ..

    Statutory authority to issue citations and impose fines is set forth in Subsection 381.0065(5), Florida Statutes.

11. Florida law concerning sanitary nuisances is found in Florida Statutes, Chapter 386, which authorizes the Department of Health to investigate suspected violations and serve notice upon the proper parties to remove or abate the said nuisance. Subsections 386.041(1)(a)(a) and (b), Florida Statutes, define nuisances injurious to health as "untreated or improperly treated human waste" and "improperly built or maintained septic tanks." The law further delineates in Subsection (1) that the conditions of untreated or improperly treated human waste and improperly built and maintained septic tanks "shall constitute prima facie evidence of maintaining a nuisance injurious to health."

12. Petitioner owns a house which contains several rental units. The septic system has failed, causing raw sewage to surface on the ground. Petitioner was well aware of the failure because he tried to remedy the situation. He hooked up a pipe from the septic tank to the rear of his property, in order to allow the raw sewage to drain onto the ground at the end of the pipe. Apparently, he hoped the temporary pipe would relieve the failing system, preventing sewage from backing up in the bathrooms inside the Petitioner's house.

13. The Department has tried to encourage Petitioner to repair his failed septic system. Petitioner has received a Notice of Violation from the Department on November 6, 1995; a

    Notice of Intended Action on November 28, 1995; and a Notice Intended Action on January 30, 1997. Department representatives discussed the septic problems with Petitioner and his wife.

    After Petitioner ignored the notices, the Department issued a citation for having an improperly maintained septic system and levied a fine of $500.

14. There is an alternative to repairing the system. Petitioner could cease having tenants in his house. If there were no tenants, the septic system would remain dry. So long as the system is not being utilized, the Department has no fear of contamination of ground water and Petitioner would not have to repair his system. However, Petitioner must understand that this alternative is only acceptable so long as the building is not occupied.

15. State rules and regulations pertaining to the environment have become more stringent in recent years due to the need to protect our resources. A safe, plentiful source of water is fundamental to every citizen. Permitted onsite sewage and disposal systems are required as one method to protect our water supplies. Every person must adhere to the laws in order to preserve out limited resources. The Department must uniformly enforce the public health laws of the State. The Department issued a citation only after all other means of enforcement did not bring about compliance.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is

RECOMMENDED:

That a final order be entered affirming the civil penalty against Petitioner and requiring Petitioner to repair his septic system.

DONE AND ENTERED this 8th day of April, 1998, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 8th day of April, 1998.

COPIES FURNISHED:

John Gee

1245 Gee Whiz Lane Osteen, Florida 32764

Charlene J. Petersen, Esquire Department of Health

420 Fentress Boulevard Daytona Beach, Florida 32114

Angela T. Hall, Agency Clerk Department of Health Building 6

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Dr. James Howell, Secretary Department of Health Building 6, Room 306

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date 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: 97-003521

Orders for Case No: 97-003521