STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ENGLEWOOD WATER DISTRICT, )

)

Petitioner, )

)

vs. ) CASE NO. 84-0810

) RALPH A. HARDIN d/b/a POLYNESIAN ) VILLAGE MOBILE HOME PARK, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on March 21, 1984, at Englewood, Florida.

APPEARANCES

For Petitioner: Robert A. Dickinson, Esquire

460 South Indiana Avenue Englewood, Florida 33533

For Respondent: Ralph A. Hardin, pro se

2201 Pineview Circle

Sarasota, Florida 33581

By Citation dated March 2, 1984, the Englewood Water District, Petitioner, seeks to revoke the operational permit, require forfeiture of the operational bond, or take other enforcement action against Ralph A. Bardin, d/b/a Polynesian Village Mobile Home Park, Respondent. As grounds there for it is alleged that in the operation of Respondent's waste water treatment facility at Polynesian Village he is in violation of Englewood Water District Regulations in that he is creating a public nuisance, and effluent from Respondent's drain field is discharging into public roadways and drainage ditch.

At the hearing Petitioner called five witnesses, including Respondent, Respondent testified in his own behalf; and eleven exhibits were admitted into evidence.

FINDINGS OF FACT

1. Respondent owns and operates a waste water treatment facility at Polynesian Village Mobile Home Park, owns the land at this village, leases these lots to mobile home owners, and provides them with waste water treatment. He was last issued an operating permit on January 18, 1983, by Petitioner.

2. Respondent posted an Operational Bond (Exhibit 2) in the amount of

   $7,500 with Northwestern National Insurance Company as surety to faithfully operate the treatment facility and comply with all Rules and Regulations of the Petitioner.

   
   

3. Englewood Water District, petitioner, was established by special act of the Florida Legislature in Chapter 59-931, Florida Statutes, and is given authority in Section 4 thereof to regulate use of sewers, fix rates, enjoin or otherwise prevent violations of the act or any regulation adopted by Petitioner pursuant to the act, and to promulgate regulations to carry out the provisions of the act.

   
   

4. Pursuant to this authority, Petitioner promulgated Waste Water Treatment Facilities Design, Construction and Operation Regulations dated June 19, 1980, and revised April 28, 1983.

   
   

5. During an inspection of Respondent's waste water treatment facility on October 17, 1983, leaching was observed at both the north and south drain fields with effluent from the system rising to the surface. Samples of this effluent when tested showed a fecal coliform count of 2800/100 ml. The basic level of disinfectant shall result in not more than 200 fecal coliform values per 100 ml of effluent sample (Rule 17-6.060(1)(b)3a, F.A.C.). Following this test, Notice of Violation (Exhibit 4) was served on Respondent.

   
   

6. No action was taken by Respondent to correct this condition and on January 6, 1984, a Citation (Exhibit 5) was issued to Respondent scheduling a hearing for January 26, 1984.

   
   

7. Following the issuance of that Citation frequent inspections of the facility were conducted by employees of Respondent to ascertain if steps were being taken by Respondent to correct the deficiencies. Additionally, inspections were made by inspectors from Sarasota County Pollution Control. Inspections were conducted January 9, 16, 17, 18, 20, 23, and 31; February 1, 8, 13, 14, 16, 21, 24, 25, 26, 27, 28, and 29; and March 2, 5, 8, and 9, 1984.

   
   

8. These inspections revealed what appears to be a "blow-out" in the south drain field where effluent bubbles to the surface and flows onto the adjacent streets and propert (Exhibits 9 and 11). Effluent tested from this source had fecal coliform counts as high as 9440/100 ml.

   
   

9. During one of these inspections effluent from the treatment plant was being discharged directly onto the road to a drainage ditch adjacent to the plant (Exhibit 8). The coliform count of a sample taken from this ditch was 13500/100 ml.

   
   

10. Respondent was issued a second Citation on March 2, 1984, and this hearing was held on the violations alleged in that Citation, to wit: creating a public nuisance and leaching from drain field.

11. Respondent contends that he is dealing with the Sarasota County Engineer to correct the problems and, after failing in his attempt to get the county to provide drainage from his property, he is now in the process of installing drain pipes. Respondent contends that the natural drainage of surface waters from his land to adjacent land was stopped by development on the adjacent land and the heavy rains this winter has saturated his land and inhibited percolation in the drain fields. Accordingly, the effluent from his plant could not be absorbed by the drain field. Respondent also contends that the drain field worked fine for several years before the drainage problem arose and believes it will again work well when the drainage situation is corrected.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

13. Rule 1.2.21 of Englewood Water District Waste Water Treatment Facilities Design, Construction and Operation defines public nuisance as "A condition detrimental to the safety, health or welfare of the public."

    
    

14. Rule 3.1.5 provides in part:

    
    

    All wastewater treatment plants shall incorporate filtration of the plant effluent. Design of final filters shall be in accordance with Chapter 5.

    
    

15. From the evidence submitted it is apparent that Respondent's waste water treatment plant is not providing adequate chlorination to the effluent to reduce the coliform count to acceptable levels. It is more evident that Respondent has adopted a somewhat cavalier attitude toward the operation of his facility in the anticipation that if he did not take remedial action at his own expense, Sarasota County would pay for the drainage Respondent says is needed to correct the problem. In the interim, raw sewage has been pumped from the plant into an adjacent ditch and effluent has bubbled up from the drain field and flowed onto property occupied by residential dwellings and onto roads serving those residents.

    
    

16. Pumping raw sewage into a ditch adjacent to residences and onto public thoroughfares transversed by children as well as adults creates a very serious health hazard and constitutes a public nuisance. Allowing effluent to leach from the drain field is prima facie evidence that the filtration system is not working properly and requires correction. No evidence was submitted to rebut this prima facie case.

From the foregoing it is concluded that Respondent has created a public nuisance as defined in Rule 1.2.21 and has failed to provide proper filtration for his wasted water treatment plant in violation of Rule 3.1.5 as alleged. It is

RECOMMENDED that Respondent's bond in the amount of seven thousand five hundred dollars ($7,500) be forfeited and that Respondent be allowed thirty (30) days from the issuance of the Final Order in this case to correct the leaching problems. In the event Respondent fails to comply, it is further recommended that his operating permit be revoked.

ENTERED this 9th day of April, 1984, at Tallahassee, Florida.

K. N. AYERS 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 April, 1984.

COPIES FURNISHED:

Robert A. Dickinson, Esquire

460 South Indiana Avenue Englewood, Florida 33533

Ralph A. Hardin

2201 Pineview Circle

Sarasota, Florida 33581

Docket for Case No: 84-000810

Orders for Case No: 84-000810