Judges: D. R. ALEXANDER
Agency: Department of Health
Latest Update: Jun. 21, 1983
Summary: Application to install septic tank denied.
82-3178.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
JAY HALL, )
)
Petitioner, )
)
vs. ) CASE NO. 82-3178
)
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 August 12, 1982 Petitioner, Jay Hall, 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 Lot 1, Deerwood Estates in Baker County, Florida.
On October 14, 1982 Petitioner was advised by letter that the requested permit had been denied on the grounds the septic tank and drainfield installation was placed sixteen inches lower than the-construction permit specified, Rule 10D-6.30, Florida Administrative Code, and that the system was a nuisance injurious to health. Subsection 386.041(1)(b), Florida Statutes.
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 18, 1982 with a request that a Hearing Officer be assigned to conduct a formal hearing. By notice of hearing dated December 29, 1982 the final hearing was scheduled for February 4, 1983 in Jacksonville, Florida. This case was heard on a consolidated record with Case No. 82-3177 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. It 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. Respondent requested and was granted the right to take a post-hearing deposition; however, because none was taken in a timely manner, the record was closed by the undersigned on April 22, 1983. 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 is entitled to the issuance of a septic tank permit.
Based upon all the evidence the following Findings of Fact are determined: FINDINGS OF FACT
Petitioner, Jay Hall, filed an application for a septic tank permit with Respondent, Department of Health and Rehabilitative Services, Baker County Health Department (Department) on August 12, 1982. The permit would authorize the construction of an individual sewerage disposal system on Lot 1, Deerwood Estates in Baker County, Florida.
After reviewing the application, the Department issued a construction permit on an undisclosed date. The permit itself was never introduced into evidence. However, written notations on the application reveal the Department apparently placed the following conditions in the construction permit: "backfill
- 42 inches ," "area 675 square feet'" and "absorption bed size - 225 square feet." The first condition required that the height of the installation site be raised by adding 42 inches of fill.
Notwithstanding the above conditions, in September, 1982 the mortgagee of Hall's property instructed that only 22 inches of fill be added at the installation site, and that the septic tank be installed at only 16 inches above grade. In so doing, the mortgagee relied upon other advice which led him to believe the installation would be in conformity with all health and sanitation requirements. However, the mortgagee fully realized he was not in conformity with the conditions specified on the permit. When the tank was actually installed, the installer noted that there was water in the hole, and that the tank should have been raised. A short time later, Hall moved a trailer onto the lot, placed it on blocks above the ground, and has lived on the premises since November, 1982.
On September 28, 1982, the Department inspected Petitioner's facilities and concluded he had failed to conform with the conditions specified in the construction permit. Thereafter, it issued a letter denying the requested permit on October 14, 1982. The denial prompted the instant proceeding.
Petitioner's property is located within a thirty-five lot development known as Deerwood Estates. The project lies in an unincorporated area of Baker County and is adjacent to the northeastern corner of the City of Macclenny, Florida. The sub-division generally slopes south to north and has perimeter ditches of various depth and width around individual lots that are used for drainage purposes.
Petitioner's lot is almost two acres in size. It lies in the northwestern quadrant of the project and backs up to a "swampy" area containing a creek and cypress trees. The Northeastern corner of the lot lies within a flood plain according to geological survey maps. However, the septic tank is located several hundred feet from that area. With the exception of the one corner, the remainder of the lot lies from zero to five feet above the flood prone area. The vegetation on the lot consists primarily of cypress, gallberry bushes and palmetto; all are indicative of wet soil.
At the request of the mortgagee, an inventory and evaluation analysis of the soil on Lot 1 was performed by the district conservationist of the United States Soil Conservation Service. The analysis revealed that the soil make-up on Lot 1 was soil type 64 which is Pelham fine sand depressional. That type of soil is subject to wetness and ponding. As such, theanalysis concluded that the lot has severe limitations (unfavorable soil properties) for a septic tank and drain field. The witness estimated the seasonal high water table on soil type
64 to be 12 to 18 inches below the ground surface, and concluded there was no danger of flooding on this type of soil.
After the tank was installed, a Department district program environmentalist made an on-site inspection of the lot on September 28, 1982. At that time the drainage ditches were partially filled with standing water and contained washed out sand from previous heavy rains. Discoloration of the soil
appeared approximately two inches below the ground surface. This means that the water table rose to this level at some point during prior years. When a hole was dug, water began protruding into the hole at a depth of fifteen inches. It was also noted that the lot was located at the edge of a cypress swamp and that an impervious soil (hardpan) was beneath the ground surface making water percolation more difficult. No soil percolation tests were conducted by the Department. The environmentalist concluded that "the tank was installed more than 20 inches lower than requirements specified by the permit," and that because of the wetness of the area, "trouble" would ensue during rainy weather.
Soil percolation tests and on-site investigations were made on behalf of Petitioner by two professional engineers. Witness Beverlin's percolation test revealed a rate of one and one-fourth inches per minute. He also concluded that the tank should be installed between 25 and 38 inches above grade. The percolation test performed by Witness Williamson reflected a rate of five- eighths inch per minute. Williamson concluded that the tank as installed would function in accordance with principles of sanitary engineering. However, there was no evidence that either engineer was familiar with Department rules or standards, or the conditions specified in the construction permit. Further, it was not disclosed whether their tests were conducted in accordance with Department rules. Also, Williamson did not know how high above grade the tank had been installed.
There have been no problems with the tank and drainfield since their installation. However, it is not unusual for improperly installed tanks to operate satisfactorily on a short-term basis and to then develop problems at a later point.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.
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.
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 still 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.
Having noted in general terms the process for obtaining a permit, a review of the record depicts a somewhat confusing picture as to why the permit was denied. This confusion arises because certain rules may be used as a basis for denying a permit application while others trigger the Department's authority to impose an administrative fine under Section 381.112, Florida Statutes. The letter of denial refers to both. 1/ Petitioner's failure to object to this lack of clarity waives any objection that he may have had, and it is concluded that no error occurred. Cf. Jacker v. School Board of Dade County, 426 So.2d 1149 (Fla. 3rd DCA 1983).
The Petitioner does not deny that it covered the tank before a final inspection was made, and has used the facility without Department approval.
Both are cited as reasons for denying the permit. However, these admissions appear to be grounds for imposing an administrative fine rather than denying the permit, or perhaps issuing an order requiring corrective action. (Section 381.291, F.S.)
The remaining grounds for denying the permit are (a) the allegation that ". . . the septic tank and drainfield installation was placed 16 inches lower than the septic tank construction permit specified. . ." 2/ and (b) that Hall was maintaining a nuisance injurious to health. The latter ground is one of enforcement rather than licensing, and as such, need not be considered herein. Unfortunately, the construction permit was never introduced into evidence. However, the application does contain written notations which supposedly track the conditions in the permit. One of these is a requirement that 42 inches of backfill be added to the installation area.
The record reflects that only 22 inches of backfill were added by Hall at the installation site rather than the required 42 inches. The tank itself was actually only 16 inches above grade. The Department contends it should be raised an additional 16 inches in order to operate in a safe and healthful manner. The evidence is conflicting as to whether the Department's condition was reasonable--but the evidence is more persuasive that it was, and should be adhered to. This conclusion is based upon the testimony which established that the soil has severe limitations for a septic tank, that the site is in an extremely low area of the development, that the land is subject to wetness and ponding, and that only by raising the height of the tank can a sanitary nuisance be avoided. It is noteworthy that at its present height above grade (16 inches), the tank does not meet the conditions imposed by Petitioner's own witness (Beverlin). Finally the fact that the tank has operated in a satisfactory manner to date is immaterial, for the threat of being a nuisance remains.
In view of the above conclusion, the application should be denied. However, because Hall has been living on the premises for at least six months, he should be given thirty days from date of the final order rendered in this proceeding to raise the tank to Department specifications. Should he fail to do so, the Department should then pursue its statutory remedies to require corrective action.
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMENDED that the application of Jay Hall for a septic tank permit at Lot
1, Deerwood Estates, Baker County, Florida be DENIED. However, applicant should
be given thirty days from date of the final order in this cause to raise the height of the system to Department recommended specifications.
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/ Adding to the confusion is the fact that most of the pertinent rules governing the installation of septic tanks were never mentioned by either party.
2/ Respondent's reliance upon Rule 10D-6.30(2), Florida Administrative Code, as authority for raising the above objection is misplaced. However, as noted earlier, Petitioner did not object to this confusion, and was apparently adequately apprised as to the actual grounds of denial.
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: 82-003178
Orders for Case No: 82-003178
