STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 84-4152

)

MARATHON TRAILERAMA, INC., )

d/b/a MARATHON TRAILERAMA, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came to be heard on April 5, 1955 in Marathon, Florida before Donald D. Conn, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented as follows:

For Petitioner: Morton Laitner, Esquire

1350 Northwest 14th Street Miami, Florida 33125

For Respondent: Alfred K. Frigola, Esquire

Post Office Box 177 Marathon, Florida 33050

The Department of Health and Rehabilitative Services, hereinafter referred to as Petitioner, has filed an Administrative Complaint against Marathon Trailerama, Inc., d/b/a Marathon Trailerama, hereinafter referred to as Respondent, which seeks a civil penalty of up to $1500 for the alleged maintenance of a public nuisance in violation of Sections 381.031(1)(g) and 356.041, F.S. as well as Rules 10D-6.41 and 10D-6.54, F.A.C. Specifically, Petitioner has alleged that cesspools are being utilized for sewage disposal at Respondent's trailer park, and that said cesspools constitute a public nuisance which is injurious to health and which is not an approved method of sewage disposal.

At the hearing Petitioner called three witnesses and introduced ten exhibits, and Respondent called five witnesses and introduced two exhibits. A transcript of the hearing was filed on April 22, 1985.

Following the conclusion of Petitioner's case in chief, Respondent moved to dismiss the Administrative Complaint, alleging that Petitioner had failed to establish a prima facie case. The Hearing Officer reserved ruling on the motion since a ruling on a motion in opposition to a petition which is dispositive of the matter must be incorporated in a recommended order pursuant to Rules 22I- 6.16(3) and 28-5.205, F.A.C. Upon review of the evidence presented in Petitioner's case in chief and the grounds for Respondent's motion as stated on the record, the motion to dismiss is hereby denied.

FINDINGS OF FACT

1. Mr. Dayton Andrews is the President and owner of half of the stock of Marathon Trailerama, Inc. d/b/a Marathon Trailerama, Respondent, located at 1571 Overseas Highway, Marathon, Florida. Mr. Andrews acquired his interest in Marathon Trailerama in 1972, and has maintained the sewage disposal system in place at the time he acquired Respondent. He states that he has received no complaints about the system from the residents of the trailer park, and the two residents who testified stated they had no complaints about the system.

   
   

2. Respondent has a 99 year lease for the property on which the trailer park is located, and the term of the lease began in 1962. The property owner, Juanita Matheny, testified that under the terms of the lease she has no responsibility, in her opinion, for the operation or maintenance of a sewage disposal system in the trailer park.

   
   

3. Respondent holds trailer park permit number 44-067-85 which was most recently issued by Petitioner on January 1, 1985. This permit authorizes 125 independent trailer spaces, and grants Respondent the authority to operate as long as health laws and rules are observed. The permit is revokable at any time for failure to properly operate the trailer park.

   
   

4. The original permit to operate a trailer park where Respondent is now located was issued in 1985 to Seven Mile Bridge Trailer Park and was for 45 trailers. On the application for this original permit, the method of sewage disposal to be used was shown as "cesspools 15 ft. below sea level (vented)." State Board of Health records from 1956 show the sanitarian for the Monroe County Health Department described and complained to the State Board of Health about the method of sewage disposal being used at Seven Mile Bridge Trailer Park, and that in response to said complaint the Chief of the Environmental Sanitation Section of the State Board of Health advised that " . . . we have not been able to locate any reference in our records in regard to the approval by the State Board of Health for a connection of this type . . . It is our opinion that this sewage collection device is undesirable because it permits the possible harborage of vermin and result in the creation of a sanitary nuisance." Despite this expression of concern in 1956, no enforcement action has ever been taken against Respondent, or its predecessor Seven Mile Bridge Trailer Park, prior to this action.

   
   

5. In connection with the issuance of an operational permit for Marathon Trailerama in 1971, Petitioner notified the Monroe County Health Department that sewage flows in excess of 1200 gallons per day (more than 5 trailers) are required to be centrally collected for approved disposal, and flows in excess of 2000 gallons per day (more than 13 trailers) require a licensed engineer to prepare plans and specifications for the treatment process and disposal works in compliance with state health rules. The former owner of Marathon Trailerama, B.

   S. Ford, from whom Mr. Dayton Andrews acquired his interest, was copied on this notice.

   
   

6. Currently Respondent has 125 trailer spaces in the park. Many of the trailer owners reside at Marathon Trailerama for only part of the year although there are some permanent residents.

   
   

7. Petitioner inspected Marathon Trailerama on May 3 and 7, 1984 and also February 26, 1985. During the course of those inspections, thirty-two cesspools were identified in the trailer park, and the evidence presented supports Petitioner's contention that these cesspools were, and continue to be, in use.

   A cesspool is basically a hole in the ground into which raw sewage is deposited. The sides of a cesspool are usually porous, and the tidewater and ground water can pass directly into the cesspool and carry raw, untreated sewage away. Based on the evidence presented, the Respondent's cesspools fit this general description. Although there is no evidence of their presence in this case, dangerous diseases can result from the seepage of raw sewage from cesspools since the effluent is not properly treated before discharge. Petitioner did not take any water samples from nearby canals, nor were any tests done on the sewage in the cesspools to determine if diseases were present. Based upon standards for sewage produced per trailer, Petitioner estimates that 200 gallons of raw sewage are produced each day by each trailer, and therefore up to 25,000 gallons of raw sewage per day may be deposited in Respondent's cesspools when all trailer spaces are occupied. However, there is evidence of one septic tank and a community toilet facility in the park which is not on a cesspool, and these factors would reduce the total amount of sewage disposal using cesspools.

   
   

8. On July 27, 1984 Petitioner notified Respondent that the operation of cesspools was a violation of the law and had to be corrected within ten days.

   
   

9. Respondent regularly pumps out the cesspools and immediately corrects any leaks. However, there is minimal benefit to health from pumping out a cesspool since the raw sewage immediately passes through the porous walls and does not remain in the cesspool for treatment. Unlike a septic tank in which the resulting effluent is treated, and solid materials deposited in the bottom of the tank over a long time can be pumped out, there is an almost immediate discharge of raw sewage from a cesspool. Therefore pumping would have to be almost constant in order to avoid the discharge of raw sewage and, thus, be beneficial.

   
   

10. One of Respondent's cesspools is located seven feet from an adjacent canal which is used for boating and fishing.

    
    

11. There was evidence of occasional, but not frequent, cesspool failure with resulting spillage of raw sewage on the grounds of the trailer park. Respondent promptly corrected such failures when they occurred.

    
    

12. Petitioner's representatives saw German cockroaches and palmetto bugs in the cesspools, and testified that these insects can carry dangerous diseases under these conditions. However, no tests were done to determine if, in fact, disease was present in this case.

    
    

13. Residents at Marathon Trailerama have no concerns or complaints about their sewage disposal. There have been no noxious odors in the park and no adverse effects on the health of the residents.

    
    

14. The parties have submitted posthearing proposed findings of fact pursuant to Section 120.57(1)(b)4, F.S. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order, except where such proposed findings of fact have been rejected as subordinate, cumulative immaterial, or unnecessary.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Section 120.57(1), F.S.

16. Petitioner alleges in its Administrative Complaint that Respondent continues to violate Chapter 386, F.S., relating to nuisances, and Chapter 10D- 6, F.A.C., relating to Sewage Disposal Systems. Following inspections in May, 1984, Petitioner issued a notice of violation on July 27, 1984 stating that the operation of cesspools for sewage disposal is a violation Florida law.

    
    

17. Section 386.041(1), F.S., provides as follows in pertinent part:

    
    

    1. The following conditions existing, permitted, maintained, kept, or caused by any individual, municipal organization, or corporation, governmental or private, shall constitute prima facie evidence of maintaining a nuisance injurious to health:

       1. Untreated or improperly treated human waste, garbage, offal, dead animals, or dangerous waste materials from manufacturing processes harmful to human or animal life and air pollutants, gases; and noisome odors which are harmful to human or animal life.

       2. Improperly built or maintained septic tanks, water closets, or privies.

          * * *

          1. The creation, maintenance, or causing of any condition capable of breeding flies, mosquitoes, or other arthropods capable of transmitting diseases, directly or indirectly to humans.

          2. Any other condition determined to be a sanitary nuisance as defined in s. 356.01. (Emphasis Supplied)

          
          

18. A sanitary nuisance is defined by Section 356.01, F.S., as:

    
    

    . . . the commission of any act, by an individual, municipality, organization, or corporation, or the keeping, maintaining, propagation, existence, or permission of anything, by an individual, municipality, organization, or corporation, by which the health or life of an individual, or the health or lives of individuals, may be threatened or impaired, or by which or through which, directly or indirectly, disease may be caused. (Emphasis supplied).

    
    

19. Rule 10D-6.41, F.A.C., states in part:

    
    

    1. The purpose of this Chapter is to provide minimum standards, provisions, and requirements for the design, construction, installation, utilization, operation and maintenance of onsite sewage disposal systems used for disposal of human excreta and domestic sewage.

    2. Any onsite sewage disposal system (also referred to as system), as defined in this Chapter, hereafter designed, constructed, installed, utilized, operated and maintained in the State of Florida shall conform to the requirements of this Chapter. Any previously installed system which was inspected and approved by the permitting authority, shall remain valid for use under the terms of the regulation and permit under which it was approved . . . .

       
       

20. The evidence presented establishes that there are thirty-two cesspools on Respondent's property which is comprised of 125 trailed spaces. It has also been established that untreated sewage can pass directly into the tidewater and ground water from cesspools and that dangerous diseases may result from this untreated effluent. Respondent's witnesses confirm the existence of cesspools which are regularly maintained and pumped out. Respondent does not dispute the general description of a cesspool, and the evidence does not refute the description that untreated effluent results therefrom. Joseph H. Jewell, Jr., who has maintained Respondent's system for two years, testified that there is nothing unique or unusual about Respondent's system.

    
    

21. The fact that untreated or improperly treated human waste results from cesspools and that Respondent has thirty-two cesspools on the property is prima facie evidence of maintaining a nuisance injurious to health according to Section 386.041(1)(a), cited above. Although Respondent conscientiously maintains this nuisance by repairing any leaks that occur and by providing regular pumping; this does not overcome or rebut the fact that this ; prima facie a nuisance.

    
    

22. Petitioner points out that there are basically two approved methods of sewage disposal septic tanks and sewage treatment plants. Respondent's cesspools clearly do not meet the design standards for septic tanks set forth in Rule 10D-6.54(1), F.A.C., and Respondent does not contend that a sewage treatment plant is located on the property. As such, Respondent is maintaining an unapproved system through which disease may be caused, either directly or indirectly, and is therefore maintaining a sanitary nuisance, as defined in Section 386.01, cited above. Actual disease does not have to result for a sanitary nuisance to exist. When there is a likelihood of disease or a threat to human health, Petitioner is empowered by Section 386.03, F.S., to take corrective action, including the imposition of administrative fines under Section 381.112, F.S.

    
    

23. Respondent correctly points out that the original permit to operate a trailer park at this location in 1948, authorized the use of cesspools and that Rule 10D-6.41(2), cited above, provides a grandfather clause for previously installed systems which have been approved and permitted. However, this grandfather provision applies only for the use and terms for which the original permit was issued. The original permit was issued for 45 trailers and Respondent now has almost three times that number of trailer spaces. Thus, conditions on the property have changed considerably and significantly, and Respondent cannot rely on a grandfather provision meant to authorize the continued operation of previously approved systems when the growth of Respondent's trailer park has far surpassed the terms of that initial permit.

24. Finally the permit issued by Petitioner to Respondent on January 1, 1985 is revokable at any time for failure to properly operate the trailer park. Petitioner is not barred from instituting this action simply because this permit was issued after this action was initiated. The facts establish that Petitioner's investigation began in May, 1984 and concluded in February 1985. The permit was issued during this investigation and while this action was pending in order to allow Respondent to continue to operate until these matters were finally determined through a hearing requested by Respondent.

RECOMMENDATION

Based upon the foregoing, it is recommended that Petitioner issue a Final Order imposing a $1500 fine against Respondent.

DONE and ENTERED this 16th day of May, 1985 at Tallahassee, Florida.

DONALD D. CONN, 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 16th day of May, 1985.

COPIES FURNISHED:

Morton Laitner, Esquire 1350 N.W. 14th Street Miami, Florida 33125

Alfred K. Frigola Esquire Post Office Box 177 Marathon, Florida 33050

David Pingree, Secretary Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

Steve Huss Esquire Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 84-004152

Orders for Case No: 84-004152