STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HENRY I. WHATLEY, HANK'S )

SEPTIC TANK SERVICE, )

)

Petitioner, )

)

vs. ) CASE NO. 88-0543

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Lakeland, Florida on July 1, 1988, before Arnold H. Pollock, Hearing Officer. The issue for consideration was whether Respondent should be issued a permit to operate a septic tank cleaning service.

APPEARANCES

Petitioner: Henry I. Whatley, pro se,

127 Strain Boulevard Lakeland, Florida 33801

Respondent: Edward Haman, Esquire

HRS District VI Legal Counsel

W. T. Edwards Facility 4000 East Buffalo Avenue Tampa, Florida 33614

BACKGROUND INFORMATION

On December 31, 1987, the Respondent, Department of Health and Rehabilitative Services, (DHRS), advised Petitioner, Henry I. Whatley, for Hank's Septic Tank Service, that his Application for Permit to Operate Septic Tank Cleaning Service had been denied. By letter dated January 18, 1988, Petitioner's counsel, on his behalf, requested a formal hearing and the matter was referred to the Division of Administrative Hearings for appointment of a Hearing Officer. On February 10, 1988, the undersigned, to whom the case had been assigned, set the matter for hearing on March 1, 1988. Thereafter, Petitioner requested two separate continuances and on June 14, 1988, after Petitioner's counsel had withdrawn from representation, the undersigned, to allow Petitioner time to secure counsel at his request, set the hearing for July 1, 1988, at which time it was held as scheduled. Petitioner was not represented by counsel at the hearing.

Petitioner testified in his own behalf but presented no exhibits.

Respondent presented the testimony of Richard Lee Coleman, a Commissioner of the Winter Haven Lake Region Boat Course District; Roger Quarles, a police officer

with the Winter Haven Police Department; John A. Hartley, an environmental specialist with the Polk County Public Health Unit; Darryl E. Tucker, a biological scientist with the Polk County Health Department; Karen Ann Dennis, formerly a chemist at the Winter Haven water department; and John H. Dame, Director of Environmental Health for Polk County, Florida. Respondent also introduced Respondent's Exhibits A through E.

Neither party provided the Hearing Officer with a transcript of the hearing nor did either party submit Proposed Findings of Fact. Petitioner submitted a letter dated July 18, 1988, a copy of which was sent to counsel for Respondent, and to which were attached several letters relating to Petitioner from satisfied customers. These letters, which are accepted as evidence of Petitioner's good work, do not bear upon the issues at hand in this hearing, however.

FINDINGS OF FACT

1. At all times pertinent to the issues involved herein, Petitioner, Henry

   I. Whatley, owner of Hank's Septic Tank Service, was the holder of a permit to operate a septic tank cleaning service issued by the Polk County Health Unit of DHRS. DHRS was the agency charged with regulating operation by the Petitioner.

   
   

2. In early June, 1987, Richard Lee Coleman, a Commissioner with the Winter Haven Lake Region Boat Course District, along with members of the press, was involved in a boat-borne examination of several of the northern lakes in the lake chain which made up a part of the District's jurisdiction. As the party was leaving Lake May, going south on the canal joining Lake May with Lake Shipp, Mr. Coleman noticed a white liquid storage truck parked on property abutting the canal, property identified as owned by Petitioner. At the back of the truck, a young man, later identified as Petitioner's son, had opened a valve allowing a 4 to 6 inch stream of grey-brown material pour out from the truck to the ground. When the young man saw the boat coming, he immediately stopped the dumping and started to drive off. Another Commissioner in the group yelled at him to stop, which he did.

   
   

3. The Coleman party pulled its boat over to the bulkhead and received permission from Petitioner's son to come on the property. While the group was talking with the young man, Mr. Coleman walked over to the dump site, a filled area which sloped off toward a swampy wetland to the east which constitutes an extension of the lake system. He observed the effluent which had come from the truck draining across the area into the swamp. Mixed in with the effluent were such solid materials as tampon containers and lumps of waste material which, from the smell, was from septic tanks.

   
   

4. Mr. Coleman took a sample of the effluent materiel in a sample bottle which had been provided to him by the health department. Just as Mr. Coleman finished taking the sample, Mr. Whatley came up to the group and in the course of the ensuing conversation, indicated he had been dumping effluent there for 10 years without problem and felt there was no harm in it. Mr. Coleman did not want to discuss the matter with Petitioner and left the area. In the company of a reporter who was on the trip with him, Mr. Coleman took the sample to the health department where he left part for analysis, and took the remainder to the Winter Haven water department where the chemist, Ms. Dennis, agreed to analyze it for systems the health department analyst could not look for.

   
   

5. A week later, on June 13, 1988, Officer Quarles was operating the police patrol boat in the area when he received a call that a truck was dumping sewage into the canal. When he got to the purported site, he did not see a

   truck at or near the canal, but saw one about 100 feet east of the canal, parked on an incline with the rear hatch open. On top of the truck, up near the front, he saw Mr. Whatley with a hose, running water into the top hatch. A powerful smelling pile of sand was on the ground outside the back hatch where the water was coming out. This was the same odor of sewage he detected from the water when he entered the canal from Lake May.

   
   

6. Officer Quarles called for someone to bring him a sample container into which he placed a sample of the sludge from the center of the pile. Quarles asked Petitioner to stop washing out the truck and Petitioner complied. The sludge at the back of the truck was up to twelve inches deep in parts but the water it contained did not seem to be running off the site. Instead, it was going into the ground.

   
   

7. The sludge sample gathered by Mr. Quarles was taken to the Winter Haven health department where it was analyzed for fecal coliform bacteria and fecal streptococci.

   
   

8. In October, 1987, Petitioner pleaded no contest in Polk County Court to a charge of depositing a deleterious substance in a lake and was fined $106.00. After the entry of the Court's order, the Department revoked Petitioner's permit to operate a septic tank cleaning service and in place thereof, issued him an interim permit under which he could operate until the expiration of his period of probation. When he submitted his application for a new permit, on December 23, 1987, it was denied because his activities were considered to constitute a pollution hazard.

   
   

9. Petitioner does not deny either he or his son was washing out the truck on the dates and at the sites in question. He had been having difficulty stopping the truck because of the heavy buildup of sand in the tank which had to be removed so the truck could pass inspection. As a result, he was cleaning out the truck on his own property, a four acre piece of land which contains its own small lake and which is bordered on one side by 900 feet of the canal between Lake May and Lake Shipp. He was not arrested on either occasion, but several months after the last incident, he was notified to appear in County Court. He was advised by his attorney that he would be fined $106.00 and would be required to do some community service and, thereafter, upon the advice of counsel, pleaded no contest to a charge of illegal dumping of septic tank seepage into the lake chain in the county. He contends that he was told by both the judge and his lawyer that his license to operate his business would not be affected by his plea. As a result of the refusal to renew his permit, he has been relegated to doing repair work in his own name and has been able to continue to service his accounts with a truck borrowed from a competitor. He contends that if he does not get his own permit, he will be put out of business and will have to dispose of his land, the end sought by his wife who is in the process of divorcing him and who wants the land.

   
   

10. Both Lake May and Lake Shipp consistently have the highest bacteria count in the chain. Both are used for fishing, water skiing, and other recreational purposes and the bacteria count, checked periodically, usually twice a year, is "alarmingly" high. Admittedly, there are sources other than Petitioner's property which cause bacterial pollution to the lakes, such as storm water drains and industry. Based on tests run in the area, however, it does not appear the industrial waste contains human waste bacteria. Though Petitioner was not dumping directly into the canal, the effluent from his dump was observed to run into the swamp which carries into the lake system.

11. The water samples taken to the health department in this case were initially reviewed by Mr. Tucker, a biological scientist, who routinely chemically tests water from the lakes using the Environmental Protection Agency approved "most probable number" test. He checks for total coliform bacteria, (either animal or vegetable), fecal coliform bacteria, (animal), and fecal streptococci which can determine what animal provided the contamination. The lakes involved here are usually very low in fecal coliform bacteria, showing an average of less than 16 - 200 colonies per ml of water. Fecal streptococci count is usually in the low teens. With these levels, the water in the chain is usually pretty good except for the few trouble spots such as the storm drains and industrial inflows described above.

    
    

12. The tests he ran on the water sample submitted by Mr. Coleman showed extremely high bacteria count. The concentration was so high he was unable to distinguish individual colonies even at a dilution rate of 1 to 10,000. The ample, which at this level was off the scale, showed a solid mass of bacteria. The streptococcus count was also well above what normal lake water would show. The sample obtained by Mr. Quarles running water through the sand was also so high as to be off the scale. Ordinarily an incubation period of 48 hours is required to get a reading on tests such as these. In this case, Mr. Tucker got a reading after only 8 hours even using a different method for analysis than that used on the Coleman sample. The sample's bacteria count was so concentrated, a comparison with normal lake water was impossible. Ordinarily, introduction of bacteria like this in the concentrations shown here, could destroy the lake and produce in humans anything from scarlet fever to simple diarrhea.

    
    

13. Ms. Dennis, the water plant chemist who conducted the additional tests on the water sample brought in by Mr. Coleman, evaluated chemical oxygen demand, (COD), biological oxygen demand, (BOD), and the PH factor which, in this case, was neutral. The COD test, which shows how much oxygen is used by chemical activity caused by the presence of chemicals or organics, normally averages 430 in raw sewage. Here, the sample showed 11,552. The BOD test, which shows how much oxygen is being used by organisms in the water averages 150 - 250. Here, the sample showed 1400. The higher the number on these two tests, the greater the degree of contamination.

    
    

14. Ms. Dennis also ran other tests. Ammonia in the water shows what the microorganisms use for food. Whereas the average is usually 10 - 40 ppm in raw sewage, the sample in question showed 41. Organic nitrogen is usually 1 - 10 ppm in raw sewage. Here it was 200 ppm. Nitrate levels were not significantly above average. Taken together, the tests run by Ms. Dennis on the Coleman samples showed counts much higher than the counts for raw sewage generally in Winter Haven.

    
    

15. Mr. Whatley claims he has been in business for 19 years without having any difficulty with the health department. He denies any health hazard, claiming that any harmful bacteria in the waste are killed by the many household chemicals which end up in the septic tank with the waste. He holds himself out as an example, claiming he has worked with this substance for years and has never been made sick by it. Chemical analysis, however, is far more significant and convincing evidence of danger than Mr. Whatley's health and clearly indicates that bacteria in the waste were alive and active.

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Section 120.57(1), Florida Statutes.

    
    

17. Under the provisions of Section 381.031(1), Florida Statutes, DHRS is charged with the duty of supervising the enforcement of laws, rules and regulations relating to sanitation, control of communicable diseases among humans, and the general health of the state, and is given authority to adopt and promulgate rules governing, inter alia, the prevention and control of public health nuisances.

    
    

18. Section 386.041, Florida Statutes, provides that the maintenance of untreated or improperly treated human waste shall constitute a nuisance injurious to health. Section 387.08, Florida Statutes, makes it a second degree misdemeanor to deposit any deleterious substance into any lake, river, stream or ditch, or to place it in such a place where it may be washed into such waters.

    
    

19. Rule 10D-6.52, F.A.C., prohibits the cleaning of or removal of contents from a septic tank without a permit from DHRS. The permit will not be issued until the department has evaluated, among other items, the proposed disposal method and the site to be used for disposing of onsite sewage disposal septage.

    
    

20. In this case, the department determined that Mr. Whatley's method of disposal, as demonstrated by the misconduct described herein, constituted an improper disposal method and that determination was within the authority of the department to make. The determination appears neither arbitrary nor capricious but instead is based on clear evidence of record.

    
    

21. No doubt Mr. Whatley has operated his business for a number of years in a manner which was very satisfactory to his customers and he has done so without making himself sick. However, the evidence of record also clearly shows that he has, at least in this case, disposed of the septage in a manner totally incompatible with the public health interests of his neighbors and the citizens of this state who use the public waters for recreational and other purposes. There is little doubt the septage drained from his truck onto the land which slopes toward the marsh areas which connect with the lakes will ultimately drain into those waters, and with the extraordinarily high bacteria count shown to be present, it clearly constituted a public health nuisance which is within the authority of the department to regulate either by denial or by revocation.

    
    

22. Since the department has shown by clear and convincing evidence that Mr. Whatley's disposal methods are inconsistent with its rules and with the public interest, the department can properly deny him a permit to operate his septic tank cleaning and disposal business. However, his 19 years of trouble- free service should be considered in mitigation and future applications, submitted a reasonable time period after the denial of the instant application should be considered independent of this action.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is therefore:

RECOMMENDED that Petitioner's application for a permit to operate a septic tank cleaning service be denied.

RECOMMENDED this 29th day of July, 1988, at Tallahassee, Florida.

ARNOLD H. POLLOCK, 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 July, 1988.

COPIES FURNISHED:

Henry I. Whatley

127 Strain Blvd. Lakeland, Florida 33801

Edward Haman, Esquire

HRS District VI Legal Counsel

W. T. Edwards Facility 4000 E. Buffalo Avenue Tampa, Florida 33614

Gregory L. Coler, Secretary Department of HRS

1323 Winewood Blvd.

Tallahassee, Florida 32399-0700

R. S. Power, Agency Clerk Department of HRS

1323 Winewood Blvd.

Tallahassee, Florida 32399-0700

Docket for Case No: 88-000543

Orders for Case No: 88-000543