STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

)

Petitioner, )

)

vs. ) Case No. 98-0707

)

DONNA STARK, )

)

Respondent. )

)

RECOMMENDED ORDER

An administrative hearing was conducted in this proceeding on May 20, 1998, in Lakeland, Florida, before Daniel Manry, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For the Petitioner: Roland Reis, Esquire

Department of Health

1290 Golfview Avenue, 4th Floor Bartow, Florida 33830

For the Respondent: Donna Stark, pro se

2028 Dante Street

Lakeland, Florida 33801 STATEMENT OF THE ISSUE

The issue in this case is whether Respondent should pay a fine of $500 for an alleged violation of Section 386.041, Florida Statutes (1997). (All chapter and section references are to Florida Statutes (1997) unless otherwise stated.)

PRELIMINARY MATTERS

On January 7, 1998, Petitioner issued a citation for an onsite sewage and sanitary nuisance violation. Respondent timely requested an administrative hearing on January 21, 1998.

At the hearing, Petitioner presented the testimony of one witness and submitted two exhibits for admission in evidence. Respondent testified in her own behalf, called one witness, and submitted no exhibits for admission in evidence.

The identity of the witness and exhibits, and the rulings regarding each, are set forth in the record of the hearing.

Neither party requested a transcript.

Petitioner timely filed its proposed recommended order ("PRO") on May 26, 1998. Respondent filed her PRO on May 29, 1998.

FINDINGS OF FACT

1. Petitioner is the state agency responsible for issuing citations under Chapter 386. Respondent owns apartments located at 2014-2018 Dante Street, Lakeland, Florida.

2. On August 8, 1997, Petitioner discovered a septic tank backing up at Respondent's apartments. Sewage had leaked out of the system and was flowing onto the adjacent area.

3. The sewage included human waste and toilet tissue.

   
   

   Respondent attempted to hide the leaking system by covering up the pipe with a wooden board.

4. Respondent had taken off the cap to the septic system.

   
   

   Petitioner had previously warned Respondent that the cap needed to remain on the system at all times.

5. Respondent replaced the cap on August 8, 1997. She cleared the open sewage within the next day or two.

6. On January 7, 1998, Petitioner again found the cap off of the system. Sewage had leaked out of the system an onto the adjacent area. Petitioner issued the citation that is the subject of this proceeding.

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. The parties were duly noticed for the administrative hearing.

8. Petitioner has the burden of proof in this proceeding.

   
   

   Petitioner must show by a preponderance of the evidence that Respondent violated relevant provisions of Chapter 386.

9. Petitioner satisfied its burden of proof.

   
   

   Under the provisions of Section 386.01, a "sanitary nuisance" is

   
   

   defined as:

   
   

   . . . the commission of any act, by an individual,. . . or the keeping, maintaining, propagation, existence, or permission of anything, by an individual,. . . 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.

   
   

   Under the provisions of Section 386.041, a "nuisance injurious to health" includes improperly built or maintained septic tanks, water closets, or privies.

10. Respondent rented five housing units that fed into a single septic tank. When the septic tank was inspected on August 8, 1997, the cap was off of the pipe and sewage was exposed on the premises, creating a sanitary nuisance to the residents in the area.

11. Petitioner instructed Respondent that she was responsible for keeping the cap on the system at all times and would be monitored accordingly. When Petitioner discovered the same nuisance in the area on January 7, 1998, Respondent had failed to heed her warning and was properly fined for $500 for maintaining a sanitary nuisance.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

RECOMMENDED that the Petitioner enter a Final Order sustaining the citation issued on January 8, 1998, imposing a fine of $500, and denying the request to dismiss the citation.

DONE AND ENTERED this 2nd day of July, 1998, in Tallahassee, Leon County, Florida.

DANIEL MANRY

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 2nd day of July, 1998.

COPIES FURNISHED:

Donna Stark

2028 Dante Street

Lakeland, Florida 33801

Roland Reis, Esquire Department of Health

1290 Golfview Avenue, 4th Floor Bartow, Florida 33830

Angela T. Hall, Agency Clerk Department of Health

1317 Winewood Boulevard

Building 6, Room 136

Tallahassee, Florida 32399-0700

Dr. James Howell, Secretary Department of Health

1317 Winewood Boulevard

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: 98-000707

Orders for Case No: 98-000707