STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANN HARVEY and HARVEY ) ENTERPRISES AND COMPANY, INC., )

)

Petitioners, )

)

vs. ) Case No. 98-4676

)

DEPARTMENT OF HEALTH, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held pursuant to notice, on February 9, 1999, in Palatka, Florida, by Stephen F. Dean, assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Ron Harvey, pro se

Route 2, Box 1650

Palatka, Florida 32177

Ann B. Harvey, pro se

102 Williams Street Palatka, Florida 32177

For Respondent: Susan E. Lindgard, Esquire

Department of Health

1000 Northeast 16th Avenue Box 19

Gainesville, Florida 32601 STATEMENT OF THE ISSUE

Petitioner is charged pursuant to a Citation for Violation, Onsite Sewage Program/Sanitary Nuisance with a violation of Section 386.04(1)(a) and (b), Florida Statutes (1997), which describes conditions that are prima facie evidence of a sanitary

nuisance injurious to health.

PRELIMINARY STATEMENT

On August 11, 1998, Petitioner was issued a Notice to Abate within 3 days a sanitary nuisance, that is, ponded wastewater in the backyard of property at 101 Williams Street, Palatka, Florida. This notice was mailed via certified mail, return receipt requested, to Petitioner's husband, and signed for on August 25, 1998, by Ann B. Harvey. On September 12, 1998, a Citation for Violation, Onsite Sewage Program/Sanitary Nuisance was issued pursuant to Section 381.0065, Florida Statutes (1997), to the Petitioner for a violation of Sections 386.041(1)(a) and (b), Florida Statutes (1997), which describes conditions which constitute a sanitary nuisance injurious to health. The citation noted the same continuing conditions which were first cited on August 11, 1998, in the Notice to Abate. The citation was mailed via certified mail, return receipt requested, and signed for by Ron Harvey on September 25, 1998. Fourteen days were given to correct the cited violations and a $500 fine was levied payable in forty-five days. The Petitioner did not begin to repair or remedy the nuisance until November 2, 1998.

At hearing, Petitioner presented testimony of three witnesses, Ms. Lucille C. Harvey, property manager; Thomas Harvey, handyman; and Ann B. Harvey, owner. Petitioner offered four exhibits into evidence, all of which were accepted.

Respondent presented the testimony of four witnesses: Mr. Kenneth F. Burnett, Environmental Specialist I, with the Putnam County Health Department; Mr. Geoffrey Batteiger, Environmental Specialist III with the Putnam County Health

Department; Mr. David Flowers, Environmental Specialist II with the Putnam County Health Department; and Ms. Laurey Gauch, Planning Manager and Environmental Health Director of the Putnam County Health Department. Respondent offered two exhibits into evidence both of which were accepted.

A request by the Administrative Law Judge for stipulations to change the style of the case and the address location of the violation were accepted. The style was noted to be Ann B. Harvey, Sole Owner, Harvey Enterprises and Company, Inc., as the Petitioner, and the address where the violations occurred is 102 Williams Street, Palatka, Florida.

Both parties were afforded the opportunity to file post- hearing briefs. The Respondent filed proposed findings which were read and considered.

FINDINGS OF FACT

1. It was stipulated that Petitioner, Ann B. Harvey, through her company Harvey Enterprises and Company, Inc., owns the home at 102 Williams Street, Palatka, Florida. At all times relevant to the alleged violation, the home was occupied by tenants. The tenants vacated the house on or about October 13, 1998.

2. Kenneth F. Burnett, Environmental Specialist I, with the Putnam County Health Department, first investigated a complaint regarding the property at 102 Williams Street, Palatka, Florida, on August 5, 1998. He witnessed faulty plumbing in the home and ponded wastewater at the back of the home.

3. On August 11, 1998, Mr. Burnett drafted and mailed a Notice to Abate. The notice was mailed by certified mail return receipt requested and received by Ann B. Harvey on August 25, 1998. Ann B. Harvey signed the return receipt for the Notice to Abate on August 25, 1998.

4. Mr. Burnett again inspected the property on September 2, 1998, and found no change in the status of the faulty plumbing and ponded wastewater.

5. On September 9, 1998, Mr. Burnett again inspected the property and determined there had been no changes.

6. David Flowers, Environmental Specialist II, became involved in the case on September 18, 1998, when he inspected the property. Mr. Flowers observed that wastewater ponded on the ground at the back of the home, and that the plumbing inside the home was in disrepair.

7. Ms. Laurey Gauch, Environmental Health Director for Putnam County Health Department testified. She inspected the property in question on September 18, 25, and 28, 1998.

   Ms. Gauch observed ponded wastewater in the backyard and plumbing in disrepair inside the home on each visit. Ms. Gauch opined

   that the condition of the property was a sanitary nuisance in violation of Section 386.041(1)(a) and (b), Florida Statutes (1997), because the ponded wastewater would breed disease (bacteria, viruses, etc.) and contamination.

8. A Citation for Violation was received and signed for by Ronald Harvey on September 25, 1998, pursuant to statutory authority at Section 381.0065, Florida Statutes (1997). The citation cites the Petitioner for violation of Section 386.041(1)(a) and (b), Florida Statutes (1997).

9. On September 25, 1998, Mr. Flowers again inspected the property, and observed that the sewage remained on the ground at the rear of the home. Mr. Flowers flushed dye in the toilet to determine if the standing water was coming from the toilet inside the home. The dye would run out onto the ground if the ponded water was from the toilet.

10. Mr. Flowers inspected the problem on September 28, 1998. Sewage remained ponded on the ground at the rear of the home and the water bubbled when the toilet was flushed.

11. Mr. Flowers re-inspected the property on September 29, 1998, and flushed dye in the toilet. He documented that the dye came to the ground surface. During the visit, Mr. Flowers was accompanied by a County Codes Enforcement Officer who condemned the home.

12. On October 6, 1998, Mr. Flowers returned to the property with his supervisor, Geoff Batteiger. The tenants were

    still living in the home, but were reported to be leaving. The plumbing in the home remained unrepaired. When the toilet was flushed, water bubbled onto the ground surface. The problem had neither been abated, nor were there any signs that the problem was being corrected.

13. No repairs were made to the premises between August 25, 1998, and October 6, 1998, a period of one and one-half months during which tenants lived in the home.

14. On November 17, 1998, the property was reinspected by Mr. Burnett and Mr. Batteiger. They observed that the sanitary nuisance had been remedied.

15. Ms. Lucille Harvey, property manager and sister-in-law to the Petitioner, testified for Petitioner. She collects rents and arranges for repairs. She had contacted one handyman who came to the home, but refused to do the work because of foul odor in the yard and fleas.

16. Ms. Lucille Harvey did not contact anyone else for repairs until after the tenants had vacated the premises. The tenants kept dogs in the backyard where the problem was, and were uncooperative with the landlord.

17. Ms. Lucille Harvey testified that she notified the Petitioner of the sanitary nuisance at the end of August 1998, and the problems she was having making repairs.

18. Petitioner, Ann Harvey, testified she commenced eviction proceedings for the tenant at 102 Williams Street on or

    about July 12, 1998. The proceedings were on-going due to various legal exigencies until the tenants vacated the premises on or about October 13, 1998. Ms. Harvey was out-of-town from approximately July 22, 1998, through August 15, 1998, during which time a judge dismissed the eviction action. The action was recommenced. The tenant made a partial payment of one month, which Petitioner accepted. The judge again dismissed the eviction action.

19. The sanitary nuisance at the property in question was not remedied until the Petitioner evicted the tenants and gained access to the premises.

20. Mr. Thomas Harvey, handyman and brother Ron Harvey, testified that he began working on the repairs at the home at

    102 Williams Street, on November 2, 1998. He testified that he replaced broken lines, cleaned a grease trap, and snaked the kitchen and bathroom. These repairs concluded on or about November 12, 1998.

    CONCLUSIONS OF LAW

    
    

21. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case pursuant to Section 120.57(1), Florida Statutes (1997).

22. Pursuant to Chapter 386, Florida Statutes (1997), the Department of Health is empowered to investigate the sanitary condition of any city, town, or place in the state, and if upon examination, the Department ascertains the existence of any

    sanitary nuisance, it shall serve notice upon the property party to remove or abate the said nuisance or, if necessary, proceed to remove or abate the said nuisance.

23. Section 386.041(1), Florida Statutes (1997), states in part:

    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:

       
       

       1. Untreated or improperly treated human waste, garbage, offal, dead animals, or dangerous waste materials from manufacturing processes harmful to human or animal like and air pollutants, gases, and noisome odors, which are harmful to human or animal life,

          
          

       2. Improperly built or maintained septic tanks, water closets, or privies.

          
          

24. Pursuant to Section 386.04(1), Florida Statutes (1997), the condition existing on the Petitioner's property constituted maintaining a nuisance injurious to health.

25. The burden of proof shifts to the Petitioner to present evidence to meet or explain the presumptive evidence of this prima facie case.

26. The Petitioner showed that she could not gain access to the premises until the tenant was evicted, and that did not occur until October 10, 1998. Of course, after the tenants vacated, the plumbing wasn't used. The repairs commenced shortly

    thereafter, and the condition was fixed.

    
    

27. The Petitioner showed that the tenants were uncooperative, and Petitioner could not gain access to make the repairs without the tenants' cooperation. Although the tenants cooperated with officials of the Health Department, this was not evidence of cooperation with Petitioner. The Petitioner had commenced eviction proceedings prior to the report of a plumbing problem.

28. The Respondent did not present any evidence to contradict Petitioner's evidence of efforts to repair the problem. There is no evidence of bad faith.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law reached, it is

RECOMMENDED:

That the Department of Health enter a final order waiving the fine and payment as stated in the Citation for Violation.

DONE AND ENTERED this 9th day of April, 1999, 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

www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 9th day of April, 1999.

COPIES FURNISHED:

Ron Harvey

Route 2, Box 1650

Palatka, Florida 32177

Ann B. Harvey

102 Williams Street Palatka, Florida 32177

Susan E. Lindgard, Esquire Department of Health

1000 Northeast 16th Avenue Box 19

Gainesville, Florida 32601

Angela T. Hall, Agency Clerk Department of Health

2020 Capital Circle, Southeast Bin A02

Tallahassee, Florida 32399-1701

Dr. Robert G. Brooks, Secretary Department of Health

2020 Capital Circle, Southeast Bin A02

Tallahassee, Florida 32399-1701

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: 98-004676

Orders for Case No: 98-004676