STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 84-0156

)

TOBY CHAPEL, )

)

Respondent. )

)

RECOMMENDED ORDER

This is a license denial controversy arising from denial of an amended mobile home park license.

This case was heard on April 17, 1984, in Sebring, Florida, by Stephen F. Dean, Assigned Hearing Officer of the Division of Administrative Hearings.

Department of Health and Rehabilitative Services denied the application for licensure of DeSoto Mobile Home Park, which is owned by Respondent Tony Chapel. The denial of the application for licensure was based upon the inspection by Department of Health and Rehabilitative Services and its determination that the mobile home park contained dry wells for the disposal of gray water contrary to Rule 10D-6.41, Florida Administrative Code and Chapter 515, Florida Statutes.

APPEARANCES

For Petitioner: Amelia M. Park

Department of Health & Rehabilitative Services

4000 West Buffalo Avenue Tampa, Florida 33614

For Respondent: James W. Kelly

Post Office Box 1880

Avon Park, Florida 33825 ISSUES

The primary issue presented at hearing was whether the dry wells which were discovered by Department of Health and Rehabilitative Services in its inspection of the mobile home park were subject to the grandfathering provision of the rules and were an acceptable means of disposing of gray water.

It was determined that the dry wells did not meet the criteria for grandfathering and therefore were an unacceptable means of disposing of gray water and were in violation of the applicable rules and statutes.

FINDINGS OF FACT

1. Respondent Toby Chapel is a co-owner of and operates DeSoto Mobile Home Park located at 132 DeSoto Park, Sebring, Florida, 33870.

   
   

2. Robert Wolgast is employed as an environmental specialist at Highlands County Health Department.

   
   

3. On November 10, 1983, Wolgast inspected the DeSoto Mobile Home Park as part of relicensing.

   
   

4. During the inspection, Wolgast observed that a washing machine was discharging wastewater into the ground. Upon questioning the lady who was washing her clothes, he determined that the discharge was into a dry well. (Tr. 5)

   
   

5. A dry well is an unapproved system that is generally made out of concrete blocks and which has no drainfield. The untreated wastewater ferments into the soil. (Tr. 8, 23, 27, 37) Dry wells have not be permitted for at least

   20 years (Tr. 24). Prior to the existing rule, a waterproof tank with a drainfield was permitted for the disposal of gray water.

   
   

6. Wolgast observed a dry well being installed at the trailer park and one being repaired on Lot 25 in the trailer park. These dry wells were made from concrete blocks and did not have drainfields. There were drains from the clothes washing areas to similar installations throughout the park.

   
   

7. Respondent admitted to Wolgast that dry wells were being used in the trailer park. (Tr. 5, 11, 20)

   
   

8. The subject trailer park has a central sewage system approved by the Department of Environmental Regulation and has the capacity to handle all its wastewater to include the gray water being disposed into the dry wells. (Tr. 31, 34)

   
   

9. The wastewater from washing machines could be piped into the central sewage system. The costs of disposing of the gray water in the central sewage system would be the pipe and labor to connect up to the system. (Tr. 19)

   
   

10. Petitioner offered to give Respondent one year until relicensing to come into compliance. (Tr. 19)

    
    

11. George A. Wolfe, Highlands County Environmental Health Director, testified that no employee under his supervision permitted dry wells at the DeSoto Mobile Home Park. Prior to November 1983, Wolfe was not aware that dry wells were being used in any trailer park in Highlands County (Tr. 25, 26) If Wolfe had been so advised, he would have had a notice issued for correction of this deficiency (Tr. 25).

    
    

12. James Brooks, a health department employee between April 1973 and March 1979, testified that he never had a conversation with Respondent regarding dry wells and that dry wells were not permitted. (Tr. 31, 32)

    
    

13. Howard E. Short testified that he was employed by the health department from October 1973 through October 1977, that dry wells were not permitted, and that he never had a conversation with Respondent regarding dry wells. (Tr. 36, 38)

14. No evidence was received that dry wells at the subject trailer park had ever been inspected or approved prior to the promulgation of the existing rules.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings enters this order pursuant to the provisions of Section 120.57(1), Florida statutes. The Department of Health and Rehabilitative Services has authority pursuant to Chapter 513, Florida Statutes to permit mobile home parks and to regulate waste disposal within such parks. Substantial and competent evidence was received that dry wells exist within the trailer park contrary to the rules and regulations of the Department of Health and Rehabilitative Services and contrary to the statutes governing the disposal of wastewater. The primary issue presented in this case is whether these dry wells are subject to being grandfathered; i.e., could they be acceptable for the disposal of wastewater by having pre-existed the regulation prohibiting their use.

    
    

16. Substantial and competent evidence was received that dry wells have been prohibited for 20 to 30 years. Substantial and competent evidence was received that the rule which pre-existed the current rule required that facilities for disposal of gray water have a drainfield. Substantial and competent evidence was received that the dry wells in question do have drainfields. Therefore, the dry wells did not meet the criteria of the rule which preceded the current rule and which had been in effect for 20 to 30 years. In addition, no evidence was received that the dry wells at the subject trailer park had been inspected and approved, which is a specific condition for being grandfathered under the existing rule. The rule which preceded the current rule required inspection and approval.

    
    

17. Therefore, the dry wells in question are in violation of Rule 10D- 6.01(2), 6.21(2), and 6.41(3), Florida Administrative Code, and do not meet the basic criteria to be "grandfathered." By failing to comply with these rules, the application of Respondent for licensure of the subject mobile home park should be disapproved for failing to meet the criteria of Sections 513.02, 513.055, and 513.08, Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the mobile home park not be licensed until the system for the disposal of wastewater is inspected and approved by DHRS upon being determined that it complies with the applicable rules and regulations for the disposal of the gray water.

DONE and ENTERED this 3rd day of August, 1984, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN, 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 3rd day of August, 1984.

COPIES FURNISHED:

David Pingree, Secretary Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

Amelia M. Park Department of Health and

Rehabilitative Services 4000 West Buffalo Avenue Tampa, Florida 33614

James W. Kelly

P. O. Box 1880

Avon Park, Florida 33825

Docket for Case No: 84-000156

Orders for Case No: 84-000156