STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GLENN E. WOODARD, )

)

Petitioner, )

)

vs. ) Case No. 98-1003

)

DEPARTMENT OF HEALTH, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, William R. Cave, an Administrative Law Judge for the Division of Administrative Hearings, held a formal hearing in this matter on July 15, 1998, in Lakeland, Florida.

APPEARANCES

For Petitioner: Glenn E. Woodard, pro se

Post Office Box 2000

Eaton Park, Florida 33801

For Respondent: Roland Reis, Esquire

Polk County Health Department

1290 Golfview Avenue, Fourth Floor Bartow, Florida 33830-6740

STATEMENT OF THE ISSUE

Did Petitioner violate Section 386.041 and Section 381.0065, Florida Statutes, as alleged in the Citation for Violation Onsite Sewage Program/Sanitary Nuisance?

PRELIMINARY MATTERS

On December 9, 1997, the Department of Health (Department) through the Polk County Health Department issued a Citation for

Violation Onsite Sewage Program/Sanitary Nuisance to Petitioner alleging that Petitioner was maintaining a septic tank and drainfield on his property that violated Section 386.041 and Section 381.0065, Florida Statutes. Petitioner denied the allegation and requested a formal hearing under Section 120.57(1), Florida Statutes. By Notice dated March 2, 1998, the Department referred this matter to the Division of Administrative Hearings (Division) for the assignment of an Administrative Law Judge and for the conduct of a hearing.

At the hearing, Petitioner testified in his own behalf but offered no other witness. Petitioner did not offer any documentary evidence. The Department presented the testimony of Wade Schulz and Tony Warr. The Department’s Exhibits One through Three were received as evidence.

There was no transcript of this proceeding filed with the Division. The Department timely filed its proposed findings of fact and conclusions of law. Petitioner elected not to file any proposed findings of fact and conclusions of law.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:

1. At all times pertinent to this proceeding, the Department, through the Polk County Health Department, was the agency of the State of Florida charged with the responsibility of

   issuing permits for the construction, installation, modification, abandonment, or repair of onsite sewage treatment and disposal systems.

2. The property in question is a duplex apartment building owned by Respondent and located at 1101-1103 Old South Drive, Lakeland, Florida.

3. The two apartments in the duplex are serviced by a single septic tank and drainfield.

4. In the summer of 1997, Petitioner determined that the drainfield needed repair and engaged the services of an individual who was not licensed to repair drainfields. Additionally, Petitioner did not obtain a permit for the repair to the drainfield.

5. During the fall of 1997, Petitioner continued to experience trouble with the drainfield. Thereafter, on two separate occasions, Petitioner engaged the services of Burns Septic Tank Company (Burns) and Central Fla. Septic Tank Co. (Central) to pump-out the septic tank.

6. Both Burns and Central indicated on their invoices for pumping out the septic tank that the drainfield was in need of repair.

7. On December 9, 1997, after receiving a complaint from one of Petitioner’s tenants, the Department’s Environmental Specialist, Wade Schulz, made an inspection of the septic tank and drainfield at 1101-1103 Old South Drive, Lakeland, Florida.

8. Schulz’s inspection revealed that the septic tank was backing up at the duplex apartments and that the septic tank D-box, old rock, and the drainfield pipe were exposed to the

   ground. Additionally, it was discovered that septage was flowing directly from the system to a wet drainage ditch.

9. On December 9, 1997, Schulz verbally notified Petitioner that the system was in violation of: (a) Section 386.041, Florida Statutes (Nuisance injurious to health); (b) Section 381.0065, Florida Statutes (Prior approved system shall remain in operating condition); and (c) Section 381.0065, Florida Statutes (No person shall repair without permit).

10. A written copy of the Citation for Violation Onsite Sewage Program/Sanitary Nuisance (Citation) was mailed to Petitioner but was returned as undeliverable. A copy of the Citation was personally served on Petitioner on January 23, 1998.

11. After receiving the verbal citation from Schulz, Petitioner engaged Robby’s Septic Tank Service and had the septic tank pumped out.

12. Other than pumping out the septic tank, Petitioner has made no other effort to correct the problem.

13. After receiving the Citation, Petitioner met with the Department’s representative in an attempt to work out a solution. However, Petitioner contended that there was nothing wrong with the drainfield and refused to pay any fine.

14. On July 9, 1998, the Department visited the site again and found that nothing had been done to correct the problem. Furthermore, the Department found that the system was still being improperly maintained.

15. It was the opinion of both Schulz and Tony Warr, the Department’s Environmental Supervisor, that the only way to correct the problem was to completely repair the drainfield.

16. It was Petitioner’s contention that the drainage ditch was clogged up resulting in a high water table around the drainfield and that if Polk County cleaned out the drainage ditch, allowing the water to flow off, it would resolve the problem of the drainfield.

17. While the drainage ditch may be a problem, there was insufficient evidence to show that unclogging the drainage ditch would resolve the problem of the drainfield.

18. It is clear that Petitioner’s drainfield is not operating properly and is in need of repair.

    CONCLUSIONS OF LAW

    
    

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

    20. Sections 381.065(1), (2)(i) and (k), (3)(b) and (c), (4), and (5)(b)1., 3., 5., Florida Statutes, in pertinent part provide as follows:

    1. LEGISLATIVE INTENT. - It is intent of the Legislature that where a publicly owned or

       investor-owned sewerage system is not available, the department shall issue permits for the construction, installation, modification, abandonment, or repair of onsite sewage treatment and disposal systems under condition as described in this section and rules adopted under this section. It is further the intent of the Legislature that the installation and use of onsite sewage treatment and disposal systems not adversely affect the public health or significantly degrade the groundwater or surface water.

       * * *

    2. DEFINITIONS. - As used in ss. 381.065- 381.067, the term:

       * * *

       1. “Onsite sewage treatment and disposal system” means a system that contains a standard subsurface, filled, or mound drainfield system; . . . a septic tank; . . . that is installed or proposed to be installed beyond the building sewer on land of the owner or on other land to which the owner has the legal right to install a system. . . .

          * * *

          (k) “Septage” means a mixture of sludge, fatty materials, human feces, and wastewater removed during the pumping of an onsite treatment and disposal system.

          * * *

    3. DUTIES AND POWERS OF THE DEPARTMENT OF HEALTH. - The department shall:

       * * *

       1. 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 for a residence or establishment with an estimated domestic sewage flow of 10,000 gallons or less per day which is not currently regulated under Chapter 403.

          * * *

       2. Develop a comprehensive program to ensure that onsite sewage treatment and disposal systems regulated by the department are . . . repaired . . . and maintained in compliance with this section and rules

       adopted under this section to prevent groundwater contamination and to preserve the public health. . . .

       
       

    4. PERMITS; INSTALLATION; AND CONDITIONS. - 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. . . .

       
       

    5. ENFORCEMENT; RIGHT OF ENTRY; CITATIONS.-

* * *

(b)1. The department may issue citations that may contain an order of correction or an order to pay a fine, or both, for violations of ss. 381.0065-381.0067, part I of chapter 386, or part III of chapter 489 or the rules adopted by the department, when a violation

of these sections or rules is enforceable by an administrative or civil remedy, . . . .

* * *

3. The fines imposed by a citation issued by the department may not exceed $500 for each violation. Each day the violation exists constitutes a separate violation for which a citation may be issued.

* * *

5. The department may reduce or waive the fine imposed by the citation. In determining whether to reduce or waive the fine, the department must consider the gravity of the violation, the person’s attempts at correcting the violation, and the person’s history of previous violations including violations for which enforcement actions were taken under ss. 381.0065-3481.0067, part I of chapter 386, part III of chapter 489, or other provisions of law or rule. (Emphasis furnished.)

1. Section 386.041(1)(b), Florida Statutes, provides as follows:

   1. The following conditions existing, permitted, maintained, kept, or caused by any individual, municipal organization, or corporation, governmental or private, shall constitute prima facie evidence of maintaining a nuisance injurious to health:

      * * *

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

      
      

2. The burden of proof is the party asserting the affirmative of an issue before an administrative tribunal. Florida Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 2d DCA 1981). To meet this burden, the Department must establish facts upon which its allegations of misconduct are based by a preponderance of the evidence. The Department has met its burden to show that Petitioner violated

Section 381.0065, Florida Statutes, by failing to maintain prior approved onsite sewage treatment and disposal system in a properly operating condition and attempting to repair the onsite sewage treatment and disposal system without first obtaining a permit. Furthermore, the Department has met its burden to show that Petitioner violated Section 386.041, Florida Statutes, by maintaining a nuisance injurious to health.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order finding the Petitioner guilty of the violations as charged and requiring Petitioner to pay a fine in the amount of $1,500.00 as set forth in the Citation for Violation Onsite Sewage Program/Sanitary Nuisance, Part 6.

DONE AND ENTERED this 11th day of August, 1998, in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

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) 921-6947

Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 1998.

COPIES FURNISHED:

Angela T. Hall, Agency Clerk Department of Health

Bin AO2

2020 Capital Circle, Southeast Tallahassee, Florida 32399-1703

Dr. James Howell, Secretary Department of Health

1317 Winewood Boulevard

Building 6 Room 306

Tallahassee, Florida 32399-0700

Glenn E. Woodard, pro se Post Office Box 2000

Eaton Park, Florida 33801

Roland Reis, Esquire Department of Health

1290 Golfview Avenue, Fourth Floor Bartow, Florida 33830

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: 98-001003

Orders for Case No: 98-001003