STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 92-7376

)

JILL PETERSON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, P. Michael Ruff, on May 4, 1993, in Gainesville, Florida.

APPEARANCES

For Petitioner: Ralph J. McMurphy, Esquire

Department of Health and Rehabilitative Services

1000 Northeast 16th Avenue Gainesville, Florida 32609

For Respondent: Robert Peterson

Qualified Representative 835 Northwest 109th Drive Gainesville, Florida 32606

STATEMENT OF THE ISSUES

The issues to be resolved in this proceeding concern whether the Respondent violated Chapters 381 and 386, Florida Statutes, specifically Sections 386.041, 381.0061, 381.065, and 386.03, and Rules 10D-6.043(2) and 10D-6.0571. If the

Respondent committed the charged violations, it must be determined whether a fine should be imposed and the amount of any such fine.

PRELIMINARY STATEMENT

This action arose on July 23, 1992 after a repair permit was issued for the Respondent's on-site sewage disposal system (OSDS). A notice to abate a sanitary nuisance was issued, after Department of Health and Rehabilitative Services (HRS) personnel allegedly observed a continuing sanitary nuisance involving sewage effluent discharging on the surface of the Respondent's property. On October 25, 1992, an investigation allegedly disclosed that the OSDS on the property was repaired incorrectly, without inspection or approval by HRS personnel and accordingly, on September 19, 1992, a "notice of intended action" was issued advising that the agency intended to impose a fine if corrections were not made within three (3) days of receipt of that notice. The

corrections were not made as late as October 22, 1992, according to the position enunciated by HRS in this proceeding. This allegedly resulted in a continuing sanitary nuisance involving sewage effluent discharging to the surface of the property.

An Administrative Complaint was issued and received by the Respondent on November 5, 1992. The Petitioner seeks a fine of $200.00 per day starting from the date of receipt of the Administrative Complaint by the Respondent until the date the violation was corrected. The violation was corrected by the installation of the required mounded septic tank and drain-field system and the work was completed on November 10, 1992. Final approval was granted on November 17, 1992 after HRS's inspector approved final sodding and other stabilization measures for the mound system. The Respondent chose to contest the allegations in the Administrative Complaint with the result that this formal proceeding ensued.

The cause came on for hearing as noticed, at which HRS adduced the testimony of five (5) witnesses. The Respondent adduced the testimony of one witness, Terry Shipley, an employee of HRS, who also was a witness in HRS' case. The Petitioner presented six (6) exhibits which were admitted into evidence.

The Respondent offered three (3) exhibits, of which Exhibits A and C were admitted into evidence, although Exhibit B was not admitted due to lack of proper authentication. The parties submitted Proposed Recommended Orders subsequent to the hearing. Proposed findings of fact contained in those pleadings have been considered in the rendition of this Recommended Order and specifically ruled upon in the Appendix attached hereto and incorporated by reference herein.

FINDINGS OF FACT

1. The Petitioner is an agency of the State of Florida charged with regulating the installation and continued maintenance of OSDS's, within the guidelines of the statutes and rules cited below. In the event violations of the rules regarding the safe operation and maintenance of OSDS's are detected, HRS has the authority to require correction of the unsafe, human-health conditions involving such systems and to impose penalties for the failure to adequately correct such unsafe health situations. In order to secure enforcement of the statutes and rules concerning the installation and operation of OSDS's, HRS has the authority to issue Administrative Complaints initiating formal enforcement proceedings such as the one at bar.

   
   

2. The Respondent is a citizen of the State of Florida and owns the property located at 835 N.W. 109th Drive in Gainesville, Alachua County, Florida. The Respondent owns and operates an OSDS on that property which serves her personal residence for the on-site containment, disposal and treatment of sewage generated by that residence.

   
   

3. In the spring of 1992, the Respondent detected problems with the OSDS on her property. The problems were noticed because of a difficulty in flushing the toilets in her home and the unusual greening of the grass in a pattern of rows above the septic tank's drain field. The abnormal greening of grass in this pattern indicates that the OSDS is malfunctioning by allowing incompletely treated sewage effluent (waste water) to escape upward towards the surface of the ground instead of percolating in a downward direction into the underlying soil, for appropriate filtration and treatment, which is the pattern of effluent disposal if such a system is operating correctly.

4. Mr. Ron Meyers of Meyers Septic Tank Company was contacted for correction of the problem by the Respondent. On April 15, 1992, he applied for an OSDS repair permit to the Alachua County Public Health Unit of HRS on behalf of the Respondent.

   
   

5. The permit application described that the repairs for which authority was requested would be to the existing system which was a below-ground-level septic tank and drain-field system (conventional system) in the Respondent's front yard.

   
   

6. Mr. Dennis Chesky is an environmental specialist with the HRS Health Unit for Alachua County. He conducted a site inspection of the OSDS site on April 16, 1992 and determined that a repair of the existing system would not result in compliance with the applicable standards of Chapter 10D-6, Florida Administrative Code cited below. He made a determination that a mounded drain- field system would be required in order to comply with HRS rules. HRS rules require that when repairs are made to an existing OSDS and inspection reveals that proper percolation and other indicia of soil-borne treatment of the effluent will not be adequately performed in accordance with HRS rules, then alterations to the OSDS, including the requirement of a mounded drain-field system, so as to acquire a sufficient treatment zone of appropriate fill soil, can be imposed. Mr. Chesky had noted that a sanitary nuisance existed due to insufficiently treated effluent escaping to the ground surface and pooling on the surface of the ground, rather than percolating downward below the drain field, as a properly operating system would perform.

   
   

7. In accordance with the permit application and the results of Mr. Chesky's inspection, a repair permit with specifications requiring a mounded septic tank and drain-field system was issued by Mr. Chesky on April 16, 1992. The permit required the system to be installed in the Respondent's front yard. Because such a mound in the Respondent's front yard would destroy the aesthetic character of the Respondent's property and landscaping, Mr. Meyers requested, on the Respondent's behalf, that the permit be modified to allow installation of the mounded system in the backyard of the Respondent's property. On April 22, 1992, this request was granted by Terry Shipley, Mr. Chesky's supervisor, and the relocation was duly noted on the permit.

   
   

8. The permit issued was valid for a period of ninety (90) days. The letter transmitting the permit to the Respondent informed the Respondent, as permittee, that she had ninety (90) days to correct the problem which caused the need for the repair permit. The letter also advised the Respondent that if a sanitary nuisance was present on the property, the problem should be rectified as expeditiously as possible. The permit expired without the repairs having been performed. Mr. Shipley, therefore, directed that a member of his staff visit the Respondent's home to inspect the situation. Mr. Paul Meyers visited the Respondent's home on July 22, 1992 and noted that raw sewage was still existing on the surface of the ground in the form of waste water from the septic tank. Mr. Meyers took photographs of that condition. The photographs were introduced into evidence. One photograph depicted that an area of the ground at the end of the drain field had collapsed or subsided, leaving a hole through which waste water was seeping to the ground surface. Mr. Meyers thereupon issued a notice to abate a sanitary nuisance on July 23, 1992. It was received by the Respondent on August 1, 1992.

   
   

9. On August 3, 1992, the problem still existed with effluent being observed on the surface of the site by Mr. Chesky. On August 25, 1992, he returned to the site and observed evidence that a large area of the front yard,

   over the drain-field location, had been disturbed. He determined that the ground and the grass had been disturbed in such a way that repairs had obviously been made to the existing drain field. This was contrary to the permit that had been issued, which had required that a mounded system be installed as a means of effecting necessary repairs. The repaired area had been covered without notification of the repair to HRS.

   
   

10. A notice of intended action was issued on September 16, 1992 and received by the Respondent on September 19, 1992. This notice gave the Respondent three (3) days to take action toward correcting the problem. The Respondent was thus advised that if the problems and violations were not corrected, then an Administrative Complaint seeking imposition of a fine would be issued. Within several days of receipt of that notice, the Respondent's husband called Mr. Shipley and Ms. Wilson of HRS to advise them that repairs had been delayed by the necessity of removing some trees in the backyard of his property where the mounded system would have to be placed. The Petersons were also having difficulty securing the necessary financing to pay for the installation of the mounded system required by HRS during the summer and early fall of 1992. Although Mr. Peterson advised HRS of the delay caused by the necessity to remove some trees with attendant expense, apparently HRS was not advised of the financing problem at that time, although the Respondent's testimony shows it to be the case.

    
    

11. During this period of time, on September 22, October 1, and October 22, 1992, inspections by HRS revealed that the problem of effluent escaping on the surface of the ground had not yet been corrected. Since repairs had not been visibly commenced by the time of the last inspection on October 22, 1992, HRS elected to seek imposition of a fine and issued an Administrative Complaint to the Respondent, which was received by the Respondent on November 5, 1992. The Complaint sought a fine in the amount of $200.00 per day dating from the receipt of the Administrative Complaint until the date the violation was corrected.

    
    

12. The Respondent obtained a second contractor to begin construction of the required mounded system which was completed on November 10, 1992. The contractor on that day called for an inspection by HRS. The inspection was conducted on November 12, 1992, but final approval could not be issued although all essential work was completed because the required sodding and stabilization measures had not yet been completed on the surface of the mound. Final approval was granted on November 17, 1992 by HRS.

    
    

13. Installation of a new below-ground, drain-field system, as originally requested, similar to the one which was already installed and malfunctioning, would have cost approximately $1,000.00. The mounded system required by HRS' permit, pursuant to the relevant rules cited below, cost approximately

    $5,000.00. In addition to the approximate $5,000.00 expended for the installation of the mounded system, the Respondent had to expend approximately

    $7,000.00 related to tree removal and re-landscaping of their yard to repair damage caused by installation and the requirement to install a facility to pump sewage from the front yard outlet to the mounded system in the backyard. The Respondent apparently attempted to repair the existing below-ground system after receiving the notice regarding sanitary nuisance in August of 1992 in order to avoid the high costs related to the mounded system.

    
    

14. The effluent pooling on the ground surface, as it was on the Respondent's property at times pertinent hereto, can pose a threat to public health. In order to adequately treat sewage effluent, it must filter in a

    downward direction through at least 24 inches of suitable soil medium in order to be sufficiently decontaminated. Improperly treated effluent on the surface of the ground can cause the transmission of human pathogens to persons who come into contact with the effluent in and near the area of the discharge. There is no evidence to indicate that any such harm came to any specific persons or to the public's health generally, in the subject situation.

    
    

15. Ms. Wilson, the supervisor responsible for issuance of the Administrative Complaint, decided to seek a fine of $200.00 per day after considering both the aggravating and mitigating factors set forth in the statutory authority cited herein, contained in Chapter 381, Florida Statutes. HRS has fining authority in the amount of up to $500.00 per day for each of the claimed violations. The unrefuted evidence establishes that the violations occurred and persisted over the period time described in the above Findings of Fact. In fairness to the Respondent, however, it should be pointed out that the Respondent and her husband were not in Florida for most of the summer of 1992 because their work required them to be in Dallas, Texas. Even so, they had secured the services of an OSDS contractor to attempt to alleviate the problem. Due no doubt to the high cost and their reluctance to be encumbered by it, they delayed actual installation of the mounded system, however. It is also true that they had difficulties obtaining financing for such a costly system but ultimately did so and satisfactorily completed the work. They ultimately expended approximately $14,000.00 for all phases of the work involved, including site preparation, re-landscaping and related expenses. They have thus have undergone a severe cost burden to alleviate the inoperable condition of the previous OSDS.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

17. Section 386.041, Florida Statutes, provides pertinently as follows:

    
    

    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...

          
          

18. The conditions present on the Respondent's property were shown to be a sanitary nuisance, as those conditions are defined and prohibited in Chapter 386, Florida Statutes. The Respondent allowed a sanitary nuisance, about which she had notice, to continue unabated from at least August 1, 1992 through November 5, 1992. It is also true that efforts involving financing, tree removal, and other preparations were being made to install the required system during this time by the Respondent.

19. Rule 10D-6.043, Florida Administrative Code, provides that no portion of an OSDS may be installed, repaired, modified, or replaced without the prior issuance of a permit by HRS. This rule also prohibits covering the system and putting it into use after repairs without an inspection and approval of the work by HRS. Rule 10D-6.0571, Florida Administrative Code, requires a permit prior to any repair work for an OSDS, as well. Additionally, this rule requires that system repairs must comply with the construction standards of Chapter 10D-6, Florida Administrative Code. When systems are repaired, they must be brought into compliance with the current standards for OSDS's contained in Chapter 10D- 6, Florida Administrative Code, where there is sufficient land area to accommodate a system complying with the pertinent provisions of that chapter.

    
    

20. The Respondent attempted to repair the existing below-ground OSDS located in the front yard of her property in order to avoid the greater costs involved in the installation of the mounded system. In doing so, the grass and soil covering was replaced after removal for repair work without the knowledge of HRS and without HRS inspection. The deliberate act of attempting to repair the problem in the existing system with the knowledge that the permit and the rules involved require installation of a mounded system is a violation of Rule 10D-6.0571, Florida Administrative Code. Replacing the soil and grass cover over the system without obtaining a final inspection and approved first violated Rule 10D-6.043(2), Florida Administrative Code.

    
    

21. Section 381.0061, Florida Statutes, provides as follows:

    
    

    1. In addition to any administrative action authorized by chapter 120 or by any other law, the department may impose a fine, which shall not exceed $500 for each violation, for a violation of s. 381.0065,

       s. 381.0066, s. 381.007, s. 381.0072, or part

       III of chapter 489, for a violation of any rule adopted under this chapter, or for a violation of any of the provisions of chapter

       386. Notice of intent to impose such fine shall be given by the department to the alleged violator. Each day that a violation continues may constitute a separate violation.

       
       

    2. In determining the amount of fine to be imposed, if any, for a violation, the following factors shall be considered:

       1. The gravity of the violation, including the probability that death or serious

          physical or emotional harm to any person will result or has resulted, the severity of the actual or potential harm, and the extent to which the provision of the applicable statutes or rules were violated.

       2. Actions taken by the owner or operator to correct violations.

       3. Any previous violations....

          
          

22. Section 381.065, Florida Statutes, establishes the conditions and requirements for OSDS's. This provision authorizes HRS to require permits and to establish rules for enforcement. HRS is authorized to adopt rules to carry

    out its responsibilities for OSDS's pursuant to Section 381.006, Florida Statutes. Chapter 10D-6, Florida Administrative Code, was adopted under the authority given HRS in Chapter 381. It was established by HRS that the Respondent violated Rules 10D-6.043(2) and 10D-6.0571, Florida Administrative Code, as well as Sections 386.03 and 386.041, Florida Statutes. The various soil and water table conditions prevailing at the site and which resulted in the failure of the existing drain-field system so that effluent migrated to the surface of the ground mandated that under the prevailing conditions, an alternative system, such as a mounded system, would have to be installed.

    Because of this, HRS imposed a mounded system as a requirement in the issuance of the repair permit. The prevalence of the soil and water conditions which necessitated HRS' position that 36 inches of new fill in a mounded system was necessary to install an adequately-functioning drain field was not contested after the issuance of the original permit nor was competent evidence adduced in opposition to the position that a mounded system was both factually and legally appropriate for the site in question, at the hearing, taking into account the technical requirements for OSDS's imposed by Rules 10D-6.043-.049, Florida Administrative Code.

    
    

23. HRS met its burden of showing that the violations occurred due to the failure to comply with the terms of the repair permit by the installation of a mounded system and by the showing that the substantial delay referenced in the above Findings of Fact occurred before repairs were effected. HRS has also established that a fine should be imposed. In considering the aggravating and mitigating factors referenced in Section 381.0061, Florida Statutes, however, it should be pointed out that no previous violations were shown to have occurred on the part of the Respondent, that additional actions were taken by the Respondent to correct the violations which were not known to HRS or the circumstances of which were not known to HRS before the Administrative Complaint was issued, to wit, that the Respondent was out of the State for almost the entire summer of 1992, and that the Respondent had difficulty obtaining financing for the high cost of the mounded system required by HRS, which occasioned additional delay, as did the necessity to change contractors. It was also not shown that any harm occurred to any persons or the public's health generally nor that the violations were sufficiently grave or serious as to impose any probability that death or serious physical or emotional harm would occur to any person. There is no showing that the small amount of effluent standing on the surface of the Respondent's property posed any danger of migrating off the site and thus it was not shown that any public health danger was imposed to any one other than persons actually living on or coming onto the Respondent's property.

    
    

24. It is also true that the Respondent appeared to have purposely delayed in actually installing the required system and thus allowed the sanitary nuisance to continue for a substantial part of the three-month period after the actual notice issued by HRS, although the financing problem and the necessity of the Respondent being out of State (during which time the property could have generated little or no sewage) are factors which temper the severity of this conduct. Once the Administrative Complaint was issued, the mounded system was installed within approximately five (5) days and approved within twelve (12) days. Thus, had the Respondent taken appropriate action after receiving the notice to abate on August 1, 1992, the situation could have been corrected much earlier. The Administrative Complaint was received by the Respondent on November 5, 1992, and the system was essentially complete on November 10, 1992, although the necessity for sodding and inspection after that was accomplished resulted in approval of the system on November 17, 1992.

25. Accordingly, in view of these above factors, a fine should be imposed for the violations proven; however, the fine should only cover the period beginning November 5, 1992 and running through November 9, 1992, the last full day of noncompliance because the system was completed sometime during the day of November 10, 1992, except for final inspection of the sodding of the surface of the mound. In consideration of all of the above aggravating and mitigating factors, including the evidence adduced by the Respondent concerning the difficulties in installing and financing such a physically-large and

financially-costly system, it is concluded that a fine in the amount of $100.00 per day for five (5) days should be imposed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is

RECOMMENDED that a Final Order be entered by HRS imposing a fine in the amount of $500.00 against the Respondent.

DONE AND ENTERED this 3rd day of September, 1993, in Tallahassee, Florida.

P. MICHAEL RUFF 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 3rd day of September, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-7376

Petitioner's Proposed Findings of Fact 1-15. Accepted.

16. Rejected, as immaterial in this de novo proceeding. 17-25. Accepted.

Respondent's Proposed Findings of Fact

1. Accepted, although the evidence does not reveal the bank's posture with regard to ownership of the property.

2. Rejected, as contrary to the preponderant weight of the evidence.

3. Rejected, as to its material import because the repairs and installation were not effected until after the issuance of the Administrative Complaint.

4. Accepted, but not dispositive of the material issues presented other than as consideration for mitigation of the fine imposed.

5. Accepted, but not dispositive of the material issues presented other than as consideration for mitigation of the fine imposed.

6. Accepted, but not materially dispositive of the issues presented.

7. Accepted.

COPIES FURNISHED:

Robert L. Powell, Agency Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

John Slye, Esquire General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Ralph J. McMurphy, Esquire Department of Health and

Rehabilitative Services 1000 Northeast 16th Avenue Gainesville, Florida 32609

Robert Peterson

835 Northwest 109th Drive Gainesville, Florida 32606

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency written exceptions to this Recommended Order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the Final Order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 92-007376

Orders for Case No: 92-007376