STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
JEFFERY BENEFIELD,
Petitioner,
vs.
DEPARTMENT OF HEALTH,
Respondent,
and
ROBERT SCHWEIGEL and WANDA SCHWEIGEL,
Intervenors.
)
)
)
)
) Case No. 04-1758
)
)
)
)
)
)
)
)
)
)
)
)
RECOMMENDED ORDER
On January 28, 2005, a final administrative hearing was held in this case in Tavares, Florida, before J. Lawrence Johnston, Administrative Law Judge, Division of Administrative Hearings.
APPEARANCES
For Petitioner: Jeffery Benefield, pro se
Post Office Box 120121 Clermont, Florida 34712
For Respondent: Charlene Peterson, Esquire
Department of Health
1955 U.S. Highway 1, South
Suite 100
St. Augustine, Florida 32086
For Intervenors: James F. Feuerstein, Esquire
205 North Joanna Avenue Tavares, Florida 32778
STATEMENT OF THE ISSUE
The issue in this case is whether the Department of Health (Department or DOH) should fine the Petitioner, Jeffery Benefield, $500 and require him to move the drainfield of his onsite sewage disposal system so that no part of it is within ten feet of the potable water line of his neighbors, the Intervenors, Robert and Wanda Schweigel.
PRELIMINARY STATEMENT
On or about March 26, 2004, the Department issued and served on the Petitioner a Citation for Violation Onsite Sewage Program/Sanitary Nuisance alleging that the Petitioner had violated Florida Administrative Code Rule 64E-6.005(2)(b) by installing his drainfield within 4 feet, 8 inches from a potable water line, seeking a $500 fine, and ordering him to move or relocate his drainfield to meet the setback requirements of the Rule. The Petitioner disputed the material facts and requested an administrative hearing.
Initially, a final hearing was scheduled for July 9, 2004, but the Petitioner requested a continuance, and the final hearing was continued until July 28, 2004. On July 2, 2004, the Schweigels moved without objection to intervene, and intervention was granted. The Intervenors then moved for a
"final summary judgment," but the Petitioner and the Department moved for an abeyance while the Petitioner sought a variance, and the case was placed in abeyance over the objection of the Intervenors until October 26, 2004.
On October 6, 2004, the Petitioner gave notice that he no longer was seeking a variance and wanted to schedule the final hearing. On November 1, 2004, the Intervenors requested a ruling on their Motion for Final Summary Judgment. On November 4, 2004, the parties were ordered to show cause why jurisdiction should not be relinquished to the Department under Section 120.57(1)(i), Florida Statutes (2004), for further proceedings under Sections 120.569 and 120.57(2), Florida Statutes (2004), if there no longer was any genuine issue as to any material fact, as the Intervenors contended.
Based on the Petitioner's response to the Order to Show Cause, the final hearing was rescheduled for January 6, 2005.
On December 1, 2004, the Petitioner moved to dismiss the Intervenors; and the Intervenors moved to continue the final hearing. A telephone hearing was scheduled and held on the pending motions on December 7, 2004. Based on the matters presented, the Petitioner's motion to dismiss the Intervenors was denied, and the final hearing was continued to January 28, 2005.
When the Petitioner raised questions regarding subpoenas duces tecum served on him and his wife by the Intervenors for depositions on January 12, 2005, and no notice of taking deposition had been filed, a telephone hearing was scheduled and held on January 11, 2005. The Intervenors did not participate in the telephone hearing, but counsel for the Department confirmed that the Department had no prior notice of the depositions and was unable to participate in depositions the next day. As a result, the subpoenas were quashed.
On January 20, 2005, the Intervenors moved for a new hearing date, citing their inability to coordinate with the Department to reschedule the depositions of the Petitioner and his wife. Since the time for written responses would not expire prior to the scheduled final hearing, and the Petitioner indicated his inability to participate in a telephone hearing on the Intervenors' motion prior to then, the motion was deferred until the final hearing.
At the final hearing, the Intervenors presented a substitute Motion for Continuance filed by new counsel. The Motion for Continuance was denied, subject to proof of prejudice to the Intervenors during the final hearing. As there was no proof of prejudice to the Intervenors, the Motion for Continuance is denied.
At the final hearing, the Department had DOH Exhibits 1-6 and 8-10 admitted in evidence and called the following witnesses: Paul Butler, Jr.; Roger Amon; Mark Edwards; Chris Bryan; John Kiley; and the Intervenor, Wanda Schweigel. The Petitioner testified in his own behalf and also called the following witnesses: the Intervenor, Robert Schweigel; the Petitioner's wife, Cassandra Benefield; "Skip" Nemecek; Carmen Carroll; and Russ Melling. In addition, the Petitioner had Petitioner's Exhibits 5-7, 9, 10, and 20-22 admitted in evidence during the final hearing. The Petitioner also offered Petitioner's Exhibits 11-14, 16-19, and 20a in evidence, but ruling was reserved on objections to their admission in evidence. At this time, the objections are sustained as to Petitioner's Exhibits 16 and 18, but overruled as to Petitioner's Exhibits 11-14, 17, 19, and 20a; and Petitioner's Exhibits 11-14, 17, 19, and 20a also are admitted in evidence. In rebuttal, the Intervenors testified and had Intervenors' Exhibits 1-A through 1-K admitted in evidence.
After presentation of evidence, no transcript was
ordered, and the parties were given ten days to file proposed recommended orders (PROs). It appears that only the Intervenors filed a PRO but that it might have been filed on behalf of the Department as well.1 The PRO has been considered in the preparation of this Recommended Order.
The PRO includes a request for costs and attorney's fees under Sections 120.595 and 57.105, Florida Statutes.
FINDINGS OF FACT
The Petitioner's home at 10920 Lake Minneola Shores Road (Lake County Road 561-A) was built in 1977. It included an onsite septic tank and drainfield sewage disposal system.
On March 31, 2003, the Petitioner personally applied for a permit to repair his existing sewage disposal system by replacing the drainfield. His application did not identify any potable water lines. Department personnel evaluated the site and calculated system specifications, and the Department issued a construction permit on April 3, 2003, based on the estimated size of the existing system.
To replace the existing drainfield and meet specifications, 375 square feet of drainfield was required. However, the Petitioner wanted to add 125 square feet to what was required by the specifications, which is acceptable so long as required setbacks are maintained.
The Petitioner's drainfield was replaced by a licensed contractor on April 29, 2003. Some work may have been done the following day to complete the job, but it appears that the contractor called for the final inspection on April 29, 2003.
On inspection, it was clear that the new drain line
closest and (like the other three) parallel to the property line was less than ten feet from a water line, riser, and spigot on the neighboring property, which was owned by Robert and Wanda Schweigel. Specifically, the closest of the new drain lines was estimated to be just five feet from the Schweigels' water line, riser, and spigot. (The next closest was just under ten feet from the Schweigels' water line, riser, and spigot.) As a result, the Department disapproved the installation.
The Petitioner disputed the disapproval, initially contending that the Schweigels' water line, riser, and spigot did not convey potable water. It was decided that the new drainfield should be covered while pending a decision as to whether the water line was potable.
By the end of July 2003, the Department decided that the Schweigels' water line was indeed potable. In that approximate time frame, the Petitioner's contractor offered to pay to have the Schweigels' water line "sleeved" to a distance at least ten feet from the nearest portion of the Petitioner's drainfield.2 He believed that solution would be much simpler and less costly than moving the Petitioner's drainfield to a distance at least ten feet from any part of the Schweigels' potable water line. This alternative was presented to the
Schweigels in that approximate timeframe, but they refused (and continue to refuse.)
In August 2003, the Petitioner took the position that, regardless whether the Schweigels' water line was potable, the Petitioner's new drainfield was in the same location as the existing drainfield, and the part of the water line closest to the new drainfield (i.e., the part including the riser and spigot) was not there until after the middle of April 2003 and was recently installed either just before or while the Petitioner's new drainfield was being installed.
The evidence was not clear as to the configuration and precise location of the drain lines in the Petitioner's original drainfield. However, it appears to have had three drain lines emanating from the septic tank, starting in the direction of the Schweigels' property and then curving away in the direction of Lake Minneola, which is behind the Petitioner's and the Schweigels' properties, before terminating. The replacement drainfield had pipe emanating from the septic tank and running towards the Schweigels' property line before making a 90-degree turn towards the lake before connecting to the middle of a header pipe. Connecting to the header pipe are four equally-spaced drain lines, one on either end of the header pipe and two in between, that are perpendicular to the header pipe and parallel to each other
and to the Schweigels' property line (and potable water line) and run towards the lake.
As indicated, it was not clear from the evidence precisely where all of the old drain lines were located, or how close they got to the Schweigels' property (and potable water line.) However, it does not appear that they got as close as two of the four new drain lines in the replacement system. See Petitioner's Exhibits 13 and 21.
There was conflicting evidence as to when the Schweigels' potable water line was installed. It is clear from the evidence that there are now three "T's" off the water line from the potable water source near the street. One "T- off" leads to near the front corner of the house, one leads to the middle of the side of the house, and one leads to near the rear corner of the house. The line then extends past the last "T" to the location of the water riser and spigot.
The Petitioner's evidence proved that the water line riser and spigot now within ten feet of the Petitioner's drainfield were not there either in May 1999 or on April 14, 2003. But the Schweigels maintained, and the evidence as a whole was persuasive, that the potable water lines currently in place were installed in 1996 or 1997, but were cut and moved to enable the Schweigels to install footers for construction of a concrete privacy wall in approximately 1999.
After installation of the footers, the water line had to be moved several inches closer to the Schweigels' house when replaced, and the "T's" were reconnected to the line. In approximately April 2003, the water line riser and spigot were damaged (the evidence was not clear how) and had to be replaced.
The evidence was that the Schweigels got a permit to build their privacy wall but did not get a permit for the plumbing work that was necessary in conjunction with the installation of the footers for the wall. Although it appears from the evidence that a plumbing permit was required, the Schweigels did not think a separate plumbing permit was necessary.
It is not found that the Petitioner participated in this proceeding for an "improper purpose"--i.e., "primarily to harass or to cause unnecessary delay or for frivolous purpose or to needlessly increase the cost of litigation, licensing, or securing the approval of an activity."
CONCLUSIONS OF LAW
Under Section 381.0065(3), Florida Statutes (2004),3 the Department of Health has the duty and power to:
Adopt rules to administer ss. 381.0065-381.0067, including definitions
that are consistent with the definitions in this section, decreases to setback requirements where no health hazard exists, increases for the lot-flow allowance for
performance-based systems, requirements for separation from water table elevation during the wettest season, requirements for the design and construction of any component part of an onsite sewage treatment and disposal system, application and permit requirements for persons who maintain an onsite sewage treatment and disposal system, requirements for maintenance and service agreements for aerobic treatment units and performance- based treatment systems, and recommended standards, including disclosure requirements, for voluntary system inspections to be performed by individuals who are authorized by law to perform such inspections and who shall inform a person having ownership, control, or use of an onsite sewage treatment and disposal system of the inspection standards and of that person's authority to request an inspection based on all or part of the standards.
* * *
(c) 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, used, operated, 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 department is the final administrative interpretive authority regarding rule interpretation. In the event of a conflict regarding rule interpretation, the Division Director for Environmental Health of the department, or his or her designee, shall timely assign a staff person to resolve the dispute.
* * *
(h) Conduct enforcement activities, including imposing fines, issuing
citations, suspensions, revocations, injunctions, and emergency orders for violations of this section, part I of chapter 386, or part III of chapter 489 or for a violation of any rule adopted under
this section, part I of chapter 386, or part III of chapter 489.
* * *
(13) Adopt rules pursuant to ss. 120.536(1) and 120.54 to implement the provisions of law conferring duties upon it. This subsection does not authorize the department to require a permit or license unless such requirement is specifically provided by law.
Under Subsection (5)(b) of the statute, enforcement authority specifically includes the issuance of "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, or when a violation of these sections or rules is a misdemeanor of the second degree." Under paragraph 2. of Subsection (5)(b), "fines imposed by a citation . . . may not exceed $500 for each violation"; but "[e]ach day the violation exists constitutes a separate violation for which a citation may be issued."
The version of Florida Administrative Code Rule 64E-
6.005(2) in effect when the Petitioner replaced his drainfield provided in pertinent part:
(b) Systems shall not be located within 10 feet of potable water lines unless such lines are sealed with a water proof sealant within a sleeve of similar material pipe to a distance of at least 10 feet from the nearest portion of the drainfield. In no case shall the sleeved water line be located within 24 inches of the onsite sewage treatment and disposal system. The sleeved water line shall not be located at an elevation lower than the drainfield absorption surface.
Changes to the rule in 2004 would not benefit the Petitioner in this case. See Fla. Admin. Weekly, Vol. 30, Nos. 4, 15, and 21, Jan. 23, Apr. 9, and May 21, 2004.
In this case, it is clear from the evidence that the Petitioner's replacement drainfield is too close to the Schweigels' potable water line--i.e., parts of it are less than ten feet from parts of the Schweigels water line.
The Petitioner defends against the charge that he had the replacement drainfield installed in violation of Rule 64E-6.005(2)(b) on the ground that the replacement drainfield is in the same location as the original drainfield installed in 1977, clearly at least twenty years before the Schweigels' water line was installed. But the more persuasive evidence was to the contrary.
The Petitioner also defends against the charge on the ground that the offending portion of the Schweigels'
potable water line was not installed until after he received his permit to replace the drainfield of his failing system. But, again, the more persuasive evidence was to the contrary.
The Petitioner also defends against the charge on the ground that the Schweigels did not obtain a plumbing permit in 1999 for the plumbing work that was necessary in conjunction with the installation of the footers for the wall. This time, the evidence may have proved the facts alleged, but the defense was insufficient as a matter of law. The Schweigels' failure to obtain a plumbing permit to move their potable water line away from the Petitioner's drainfield would not entitle the Petitioner to move his drainfield closer to the Schweigels' water line.
The Department's Citation for Violation seeks a $500 fine, well under the maximum allowable under Section 381.0065(5)(b)2. It also seeks to order the Petitioner to move his drainfield. However, another solution might be to require the Petitioner to pay to have the Schweigels' potable water line "sealed with a water proof sealant within a sleeve of similar material pipe to a distance of at least 10 feet from the nearest portion of the system."4 If available, the latter alternative would be more appropriate under the circumstances of this case. However, it is noted that, to be allowable under the current version of the rule, no portion of
the Schweigels' potable water line "within 5 feet of the drainfield shall be located at an elevation lower than the drainfield absorption surface."
The PRO filed in this case requests costs and attorney's fees under Sections 120.595 and 57.105, Florida Statutes (2004). The former statute provides for such an award "to the prevailing party only where the nonprevailing adverse party has been determined by the administrative law judge to have participated in the proceeding for an improper purpose." § 120.595(1)(b), Fla. Stat. (2004). "'Improper purpose' means participation in a proceeding pursuant to s. 120.57(1) primarily to harass or to cause unnecessary delay or for frivolous purpose or to needlessly increase the cost of litigation, licensing, or securing the approval of an activity." § 120.595(1)(e)1., Fla. Stat. (2004). No finding of improper purpose was made in this case. The latter statute has similar requirements as to the merits. In addition, it has a procedural requirement allowing the service but prohibiting the filing of a motion under the statute "unless, within 21 days after service of the motion, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected." § 57.105(4), Fla. Stat. (2004). This mandatory statutory procedure was not followed in this case.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that the Department of Health enter a final order that the Petitioner pay a $500 fine and either: (1) pay the reasonable cost of having the Schweigels' potable water line "sealed with a water proof sealant within a sleeve of similar material pipe to a distance of at least 10 feet from the nearest portion of the system," so long as no portion of the Schweigels' potable water line "within 5 feet of the drainfield shall be located at an elevation lower than the drainfield absorption surface"; or (2) move or relocate his drainfield to meet the setback requirements of the current Rule 64E-6.005(2)(b).
DONE AND ENTERED this 15th day of February, 2005, in Tallahassee, Leon County, Florida.
S
J. LAWRENCE JOHNSTON 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 15th day of February, 2005.
ENDNOTES
1/ The PRO does not identify the filer. The PRO's proposed Preliminary Statement makes reference to just one PRO--the Intervenors'. However, a request for attorney's fees and costs at the end of the PRO is made on behalf of the "Respondents and Intervenors."
2/ "Sleeving" means "seal[ing] with a water proof sealant within a sleeve of similar material pipe to a distance of at least 10 feet from the nerest portion of the drainfield." See Fla. Admin. Code R. 64E-6.005(2)(b).
3/ The cited portions of Florida Statutes (2004) also were in effect in 2003. For that reason, the 2004 codifications are cited. No statutory changes in 2004 would benefit the Petitioner in this case.
4/ The last word in the current version of the quoted part of Rule 64E-6.005(2)(b) is "system" instead of "drainfield." The change may not make any difference in this case, since the offending part of the Petitioner's system is its drainfield.
But to the extent that the distinction is meaningful (i.e., changes the length of sealing required), the current rule should be used to determine the amount of sealing required at this time under the circumstances of this case. In addition, it is noted that, under the current version of the rule, no portion of the Schweigels' potable water line "within 5 feet of the drainfield shall be located at an elevation lower than the drainfield absorption surface."
COPIES FURNISHED:
Charlene Petersen, Esquire Department of Health
1955 U.S. Highway 1, South
Suite 100
St. Augustine, Florida 32086
Jeffery Benefield
Post Office Box 120121 Clermont, Florida 34712
James F. Feuerstein, Esquire
205 North Joanna Avenue Tavares, Florida 32778
R.S. Power, Agency Clerk Department of Health
4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
Timothy M. Cerio, General Counsel Department of Health
4052 Bald Cypress Way, 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.
| Issue Date | Document | Summary |
|---|---|---|
| Mar. 09, 2005 | Agency Final Order | |
| Feb. 15, 2005 | Recommended Order | Petitioner repaired his drainfield and relocated it to within 10 feet of the neighbors` potable water line. Recommend that Petitioner pay for a sleeve line or move the drainfield and a $500.00 fine. |
