STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 83-2620

)

JANICE PRATHER, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Panama City, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Robert T. Benton, II, on December 12, 1983.

APPEARANCES

For Petitioner: John Pearce, Esquire

2639 North Monroe Street, Suite 200-A Tallahassee, Florida 32303

For Respondent: Ms. Prather appeared on her own behalf.

By notice of intended action dated May 17, 1983, petitioner directed respondent to remove a horse from her subdivision lot and warned that it intended to levy an administrative fine if she failed to remove the horse. Some time before August 4, 1983, petitioner issued an administrative complaint alleging that the horse had not been removed and seeking a civil penalty of $25 for each day that the nuisance remained after Ms. Prather's receipt of the administrative complaint, not to exceed a total of $750.

Ms. Prather requested a formal administrative hearing and the matter was referred for hearing to the Division of Administrative Hearings, pursuant to Section 120.57, Florida Statutes (1981).

In preparation of the following findings of fact, the hearing officer has had the benefit of respondent's proposed order, received by the Division of Administrative Hearings on December 30, 1983. To the extent proposed findings have not been adopted, they have been deemed unsupported by the weight of the evidence, immaterial, cumulative or subordinate.

FINDINGS OF FACT

1. Respondent Janice Prather lives in a subdivision in unincorporated Bay County, Florida. She owns her house, which faces Brookins Road and stands on a lot 135 feet long and 100 feet wide.

   STAR

   
   

2. In April of this year Ms. Prather acquired a six-year old sorrel mare, a Tennessee Walking Horse named Star, who stands 15.2 hands high. Ms. Brunty, whose horse trailer was used to bring the horse to Ms. Prather's home, described Star and Rhonda, Ms. Prather's teenaged daughter, as a "beautiful combination." Star is a gentle horse and small children, including Mr. Serpas grandchildren, have petted her.

   
   

3. Some days Rhonda and her friend Michelle take Star riding and let her graze in Michelle's back yard before bringing her back. She spent one night at Michelle's. But most of the time she is confined to the Prathers' fenced back yard, although she was not there for a week or two around the time of the fair.

   
   

   SIX POUNDS A DAY

   
   

4. Star produces manure at a rate of about six pounds a Day. Ms. Prather has taken some of this manure to church and to the parsonage for use on shrubbery and gardens there. Over an unspecified period, she has also taken horse manure to Mr. Harold B. Taylor of Millville about three times a week. It has made his gardens green. Thelma King has also used Star's excrement in her garden.

   
   

5. Not all of the manure Star has deposited in the Prather back yard has left the premises. Trenches have been dug along the fence line and manure has been buried there. Before removing the manure that she has given away, Ms. Prather or others have gathered it in buckets which are kept in a child's wagon in the back yard, and which may stand there for several days. Nor do the droppings reach the buckets every day. There was testimony that Star's excrement lay where it fell for weeks on end, and Ms. Prather, who holds a full- time job, conceded that she did not remove the manure daily, although she insisted that there was almost daily removal. Sometimes the manure would be covered over with an inch or two of sand. When it rains, some of the waste leaves in the water that flows across the Prather back yard, turns brown and smelly, and covers the neighbors yards. By the time of the hearing, the ground in the Prather back yard, which has a high water table, was saturated with horse urine. Subdivision residents depend on individual wells and septic tanks.

   
   

   A CONGREGATION OF FLIES

   
   

6. Most witnesses conceded that there were houseflies in the area long before Star's arrival, but there was overwhelming agreement that the horse bought with it a significant increase in their number. Mr. Serpas, whose house stands directly behind Ms. Prather's testified to the increase and reported, without contradiction, that a "tremendous number" of these flies enter his house whenever a door is opened. The Atwells, whose house is 100 feet from Ms. Prather's lot line also have more flies inside their house than before Star came to live in the neighborhood. The Clarks, whose house is next door to Ms. Prather's, installed an electronic fly killing device from which they regularly remove handfuls of dead flies. It was Mr. Clark who testified that Star's presence has meant "a congregation of flies" in and over his yard as well as Ms. Prather's. The housefly (Musca domestica) is a real, if familiar, health hazard. Because houseflies eat the same things people do, their control is a crucial element in food hygiene. When they land on food intended for human consumption, they bring with them germs they have picked up elsewhere. Horse manure is among the very best breeding grounds for houseflies. Adult houseflies deposit eggs in horse manure where larvae then pupae thrive before emerging as a

   new generation of adult houseflies seven to ten days later and flying from dung to food. Houseflies are capable of transmitting diseases to human beings and are a major factor in the transmission of some diseases. The wooden fence Ms. Prather has begun building around her back yard has not diminished the number of flies or the "barn yard odor," also attributable to Star's excrement. Both the flies and the excrement were the basis for the neighbors' repeated complaints to the Bay County Health Department (BCHD).

   
   

   ACTION BY THE AUTHORITIES

   
   

7. With the neighbors' complaints, there began a series of visits by BCHD employees. BCHD records reflect that the inspector concluded that the neighbors' complaints were "invalid" on April 13, 1983, and reached the same conclusion on April 18, 1983, when the "yard was clean." Respondent's Exhibit No. 3. On May 2, 1983, the BCHD inspector found "[e]ight piles of horse manure in yard. One wagon full of manure also," Respondent's Exhibit No. 3, which, however, was at the BCHD's request, "cleaned up" by May 6, 1983. Before visiting thereafter, the BCHD inspector called ahead, as Ms. Prather had requested. On May 13, 1983, a BCHD employee took pictures of the horse manure he found on that visit. On May 24, 1983, two BCHD employees found "[s]ome manure" but "no flies." Respondent's Exhibit No. 5.

   
   

8. Early on BCHD employees suggested to Ms. Prather informally that she board Star somewhere else. They eventually directed her in writing to remove the horse and threatened to initiate the present proceedings to impose an administrative fine if she did not. She received the administrative complaint on or before August 4, 1983.

   
   

9. Photographs taken on November 19, 1983, Petitioner's Exhibit No. 1 show an accumulation of dung that must have been at least four days in the making. Star was in residence on November 5, 1983, and, indeed, during the whole period between August 4, 1983, and the time of the hearing, with the possible exception of a two-week period.

   
   

   CONCLUSIONS OF LAW

   
   

10. Petitioner is authorized to "impose a fine, which shall not exceed

    $500 for each violation . . . for the violation of any of the provisions of chapter 386." Section 381.112(1), Florida Statutes (1981). The same statute specifies: "Each day that a violation continues may constitute a separate violation."

    
    

11. Section 386.01, Florida Statutes (1981) defines a sanitary nuisance broadly to include "the keeping . . . or permission of anything . . . by which or through which, directly or indirectly, disease may be caused," and "any condition capable of breeding flies," Section 386.041(1)(e), Florida Statutes (1981), has been statutorily declared "prima facie evidence of maintaining a nuisance injurious to health." Section 386.041(1), Florida Statutes (1981).

    The evidence showed that, at divers times, on or before May 17, 1983, respondent Prather maintained a sanitary nuisance by keeping Star confined to so small a space so much of the time and by cleaning up after her so infrequently.

    
    

12. Petitioner was therefore authorized to order abatement of the nuisance. When respondent failed to comply, petitioner had various options, including undertaking "required correctional procedures" itself, but elected to proceed under Section 386.03(2)(d), Florida Statutes (1981), by filing the administrative complaint with which the present formal administrative proceeding

began. In this administrative complaint, petitioner seeks "a cumulative per diem civil penalty in the amount of Twenty-Five Dollars ($25) per day . . . from the date when this complaint is received by the Respondent . . . until the violation has been corrected." The evidence did not show respondent to have received the administrative complaint before August 4, 1983. It was incumbent on petitioner, therefore, to prove uncorrected violations day by day thereafter. Although there was much testimony as to the course of events generally, petitioner met its burden of proof as to the time after August 4, 1983, with respect to four days in late November only. There was no showing that Star's urine, as opposed to the manure in which the flies bred, constituted a health hazard.

RECOMMENDATION

Accordingly, it is RECOMMENDED:

That petitioner impose a fine against respondent in the amount of one hundred dollars ($100.00).

DONE and ENTERED this 6th day of January, 1984, in Tallahassee, Florida.

ROBERT T. BENTON

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 1984.

COPIES FURNISHED:

JOHN PEARCE, ESQUIRE SUITE 200-A

2639 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32303

JANICE PRATHER 3013 BROOKINS ROAD

PANAMA CITY, FLORIDA 32405

DAVID PINGREE, SECRETARY DEPARTMENT OF HEALTH AND

REHABILITATIVE SERVICES 1323 WINEWOOD BOULEVARD

TALLAHASSEE, FLORIDA 32301

Docket for Case No: 83-002620

Orders for Case No: 83-002620