STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KENNETH W. BARRON, )

)

Petitioner, )

)

vs. ) CASE NO. 82-3177

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in the above case before the Division of Administrative Hearings by its duly designated Hearing Officer, DONALD R. ALEXANDER, on February 4, 1983, in Jacksonville, Florida.

APPEARANCES

For Petitioner: Frank E. Maloney, Jr., Esquire

5 West Macclenny Avenue Macclenny, Florida 32063

For Respondent: Reese A. Waters, Jr., Esquire

Post Office Box 2417-F Jacksonville, Florida 32231

BACKGROUND

By application filed on June 29, 1982, Petitioner, Kenneth W. Barron, sought the issuance of a septic tank permit from Respondent, Department of Health and Rehabilitative Services, Baker County Health Department. The proposed installation site was located on Lot 14, Deerwood Estates in Baker County, Florida.

On October 13, 1982 Petitioner was advised by letter that the requested permit had been denied on the ground the septic tank and drainfield installation was placed thirteen inches lower than the construction permit specified in violation of Rule 10D-6.30(2), Florida Administrative Code.

Petitioner thereafter requested a formal hearing to contest the denial of his application pursuant to Subsection 120.57(1), Florida Statutes. The matter was referred to the Division of Administrative Hearings by Respondent on November 19, 1982 with a request that a Hearing Officer be assigned to conduct a formal hearing. By notice of hearing dated December 30, 1982 the final hearing was scheduled for February 4, 1983 in Jacksonville, Florida. This cawe was heard on a consolidated record with Case No. 82-3178 involving a similar application in the same general location. However, separate recommended orders are being entered.

At the final hearing Petitioner presented the testimony of George W. Rhoden and Richard H. Davis, the mortgagees of the property, and offered Petitioner's Exhibits 1-5; all were received in evidence. Exhibits 1-3 are the depositions of James K. Beverlin, Glenn F. Williamson and Frederick Raulerson which were taken after the hearing by agreement of the parties. Beverlin and Williamson are professional engineers while Raulerson is the Baker County building inspector. Respondent presented the testimony of John H. Adams, Baker County environmental health director, Hance Brince Jones and Michael Green, the septic tank installers, Norman Porter, district conservationist with the Soil Conservation Service, and Kenneth S. Manuel, Department district program specialist, and offered Respondent's Exhibits 2-4; all were received in evidence.

The transcript of hearing was filed on February 22, 1983. The depositions were filed on April 7, 1983. Although Respondent requested the right position, it did not do so in a timely fashion; accordingly, the record was closed by the undersigned on April 22, 1983 in view of the time that had transpired since the final hearing. Proposed findings of fact and conclusions of law filed in this cause have been considered by the undersigned in the preparation of this order. Findings of fact not included in this order were considered irrelevant to the issues, immaterial to the results reached, or were not supported by competent and substantial evidence.

The issue herein is whether Petitioner's application for a septic tank permit should be approved.

Based upon all the evidence the following findings of fact are determined: FINDINGS OF FACT

1. Petitioner, Kenneth W. Barron, filed an application for a septic tank permit with Respondent, Department of Health and Rehabilitative Services on June 29, 1982. The application sought authority to install a septic tank and drainfield on Lot 14, Deerwood Estates in Baker County, Florida.

   
   

2. After reviewing the application the Department issued a construction permit on an undisclosed date which contained certain conditions. This permit was not introduced in evidence. However, written notations on the application by the county sanitarian revealed the following apparent conditions: "backfill

   - 33 inches," "absorption bed size - 225 square feet," "drainfield size - area 900 square feet." The reference to backfill means that applicant was required to raise the grade of the property at the installation site by thirty-three inches so that the septic tank could be installed at a higher elevation.

   
   

3. Notwithstanding the above conditions, the mortgagee of Barron's property instructed that the septic tank be installed at only thirteen inches above the ground level, and that the finished grade be six inches higher. He did so because he relied upon other advice that the installation would be in conformity with all health and sanitation requirements. He also acquiesced to Barron's desire that a large "mound" not be built on his homesite. The installation was completed, and the ground covered, in September, 1982. Petitioner moved a trailer onto the premises the end of that month and has lived there since that time.

   
   

4. On October 13, 1982 Respondent advised Petitioner by letter that the application was denied on the ground ". . . .the septic tank and drainfield installation was placed 13 inches lower than tbe septic tank construction. . .

   .specified." The Department relied upon Rule 10D-6.30(2) Florida Administrative Code, as authority for its denial. The letter of denial precipitated the instant proceeding.

   
   

5. Lot 14 is one of thirty-five lots in a mobile home development known as Deerwood Estates. The development lies in an unincorporated area of Baker County and is adjacent to the Northeastern corner of the City of Macclenny, Florida. The subdivision generally slopes south to north. It is bounded by a swampy low-lying area on its northern boundary. Drainage ditches run around and through the development to handle runoff water.

   
   

6. Petitioner's lot lies in the southeastern corner of the development. It measures 88.16'x 262.95'x 185.07' x 184.01' and is approximately five to ten feet above a flood prone area which dips into the northeastern portion of the subdivision. The vegetation on the lot is that found typically in low-lying areas. Respondent made no soil percolation tests on the property. However, a soil percolation test conducted for Petitioner by the Macclenny city engineer produced a percolation rate of three inches per minute on the lot. Another set of percolation tests was made by a second professional engineer hired by Petitioner; this test also produced a percolation rate of approximately three

   inches per minute. Whether the methodologies and results of the tests conformed with Department rules was not disclosed.

   
   

7. An inventory and evaluation analysis was performed by the district conservationist of the United States Soil Conservation Service at the mortgagee's request. The purpose of the analysis was to determine the soil's limitations for septic tank drainfields. The analysis revealed the soil type on Lot 14 to be soil number 71 which is sapelo fine sand. Therefore, the soil characteristics were unfavorable for the desired purpose, and had severe limitations for septic tanks and drainfields due too wetness. The witness concluded, however, that no flood hazard existed on Lot 14.

   
   

8. After the tank was installed and covered, a environmentalist conducted an on-site inspection of the lot on September 28, 1982. He noted that several ditches and culverts in the development were filled or partially filled with washed out sand resulting from recent heavy rains, and contained some standing water.

   
   

9. Soil discoloration was found approximately four inches beneath the ground surface which indicated the highest point at which the water table had previously risen. When a hole was dug, water protruded into the hole at a depth of eighteen to twenty inches. Hardpan, which is an impervious soil, was noted at a depth of twelve inches, and made water percolation more difficult. Based on these observations and tests, he concluded the tank was installed thirteen inches lower than specified on the permit, and would "give trouble" during rainy weather.

   
   

10. An on-site investigation was conducted for Petitioner by two professional engineers. Based upon a soil percolation test and a visual observation of the lot, one engineer concluded the installation would operate "hydraulically as well as biologically in the manner in which (it) was installed," and "in accordance with principles of sanitary engineering." The other made a comparable analysis and concluded the area in which Lot 14 was located was "relatively good" for a septic tank installation, and that the tank was functioning properly and in accordance with "proper engineering standards." However, neither witness was familiar with the conditions stated on Barron's construction permit, or with Department rules and standards.

11. Barron has used the sewerage system since the fall of 1982 without any apparent difficulty. However, it is not unusual for tanks to operate satisfactorily on a short-term basis and to then develop a problem at a later time.

    
    

    CONCLUSIONS OF LAW

    
    

12. Administrative Hearings has jurisdicton over the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.

    
    

13. Petitioner bears the burden of proving its entitlement to the requested permit. Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981). As such, it must establish a prima facie case, which if not rebutted, or if non-equivalent evidence is not submitted, requires the issuance of a permit.

    
    

14. When installing an individual sewage disposal facility, certain preliminary steps must be followed. These are set out in Chapter 10D-6, Florida Administrative Code. Triggering the process is the requirement that an application be submitted to the appropriate county health unit, together with a site location map and other supportive data (Rule 10D-6.23, F.A.C.). This data includes the results of a percolation test, a soil profile test, and water table elevations. Although an application was obviously filed, it is not known whether the other data was initially submitted. The Code also provides that where fill is added because of wet conditions, the area must be thoroughly and mechanically compacted and allowed to settle for a period of at least six months [Rule 10D-6.24(5) F.A.C.]. Whether this requirement was met or even required by the local health unit was not disclosed. There is also a requirement that the "water table elevation during the wettest season of the year. . .be at least thirty-six (36) inches below the finished grade at the drainfield or absorption bed site" [Rule 10D-6.25(2)(e), F.A.C.], and that "soils of satisfactory quality or characteristics. . . .exist from the ground surface to the water table at the wettest season of the year or to a depth of six (6) feet whichever is the lesser." [Rule 10D-6.25(2)(a), F.A.C.] The record is devoid of any evidence concerning these rules. There are certain other requirements, but they need not be repeated since neither party apparently believes them to be a concern. Once the above requirements are met, an applicant is sti1l prohibited from "covering with earth or material" the tank and drainfield before having a final inspection performed by the Department [Rule 10D-6.30(2), F.A.C]. Finally, an applicant may not use such a system without having "prior written approval" from the appropriate county health unit. Rule 10D-6.21(2), F.A.C.]. The latter two rules were ignored by the applicant.

    
    

15. With the foregoing procedures in mind, a review of the letter denying the permit reveals the sole ground to be that ". . . .the septic tank and drainfield installation was placed 13 inches lower than the septic tank construction permit. . . . specified." The Department relied upon Rule 10D- 6.30(2), Florida Administrative Code, as authority for this ground. That rule provides as follows:

    
    

    (2) Final inspection - Any person installing or constructing a septic tank, drainfield, or other approved device on completion and before covering with earth or other material and before placing into

    service shall have the installation inspected

    for compliance with the requirements of this Chapter by the Department through its CHUs. If approved, a Septic Tank Permit is issued by the Department through its CHUs.

    
    

    The two clearly do not seem to mesh. However, Petitioner was obviously apprised as to the nature of his omissions, did not complain of any shortcomings in the letter of denial, and was afforded a full evidentiary hearing to counter the objections. Therefore, no error has occurred. Cf. Jacker v. School Board of Dade County, 426 So.2d 1149 (Fla. 3rd DCA 1983). 1/

    
    

16. A proper analysis of this case is difficult since the permit was never introduced into evidence, because the letter of denial is in error, and because most of the applicable rules and tests relating to the installation of septic tanks were not referred to by the parties. Adding to the difficulty is the fact that the tank has already been installed without a permit in contrast to the more typical case where initial approval is sought. The evidence does reveal that only eighteen or nineteen inches of fill was added at the installation site by Petitioner. The tank itself was installed at only thirteen inches above grade. Whether this installation is in non-conformity with Department rules and will create a sanitary nuisance appears to be the real issue.

    
    

17. There is conflicting evidence on the issue. However, the Department's evidence is more persuasive, and it is concluded that the application should be denied. This conclusion is based upon testimony that established that the area was subject to wetness, had severe soil limitations for a septic tank and drainfield installation, and that only by raising the height of the tank could a sanitary nuisance be avoided.

    
    

18. In view of the fact that Petitioner has already moved a mobile home onto the premises and currently resides there, he should be given thirty days after the final order is rendered in which to raise the tank to Department specifications; in the event he does not, the Department possesses sufficient statutory mechanisms to ensure compliance.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the application of Kenneth W. Barron for a septic tank be

DENIED; however, applicant should be given thirty days from date of the final order in which to raise the tank to a height consistent with the construction permit.

DONE and RECOMMENDED this 29th day of April, 1983, in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 1983.

ENDNOTE

1/ The improper height of the tank would appear to violate Rule 10D-6.25(2)(e)

, Florida Administrative Code, rather than Rule 10D-6.30. The latter rule merely requires a final inspection to be made prior to covering the tank. If that was the objection of the Department, it should have so stated in its letter of denial rather than mixing the two. However, as noted above, the error was harmless under these particular circumstances.

COPIES FURNISHED:

Frank E. Maloney, Jr., Esquire

5 West Macclenny Avenue Macclenny, Florida 32063

Reese A. Waters, Jr., Esquire Post Office Box 2417-F Jacksonville, Florida 32231

David Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

Alicia Jacobs, Esquire General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 82-003177

Orders for Case No: 82-003177