STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 93-1300

)

CARL L. and DEBORAH J. )

FORRESTER, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on April 27, 1993, in Jacksonville, Florida.

APPEARANCES

For Petitioner: Charlene J. Petersen, Esquire

Post Office Box 2417 Jacksonville, Florida 32231-0083

For Respondents: J. Gary Baker, Esquire

Post Office Box 1177 Callahan, Florida 32011

STATEMENT OF THE ISSUE

The issue is whether respondents should have a civil penalty imposed against them for failing to repair allegedly faulty on-site sewage disposal units.

PRELIMINARY STATEMENT

In an undated administrative complaint issued in early 1993, petitioner, Department of Health and Rehabilitative Services, charged that respondents, Carl

1. and Deborah J. Forrester, had violated Sections 381.0065 and 386.041(1)(a) and (b), Florida Statutes, and two agency rules, by "failing to repair their failing drainfield" and by "maintaining a sanitary nuisance" at their home in Nassau County, Florida. For these violations, the agency proposed to assess a civil penalty of $50 per day against respondents until the corrections were made, up to a maximum penalty of $1,500.

   
   

   Respondents disputed this allegation and requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes, to contest the proposed agency action. The matter was referred by petitioner to the Division of Administrative Hearings on March 3, 1993, with a request that a Hearing Officer

   be assigned to conduct a hearing. By notice of hearing dated March 26, 1993, a final hearing was scheduled on April 27, 1993, in Jacksonville, Florida.

   
   

   At final hearing, petitioner presented the testimony of Stanley Stoudenmire, a Nassau County environmental health care specialist and accepted as an expert in sanitary nuisances and drainfield failures, Betty Bailey and Susan Lewis. Also, it offered petitioner's exhibits 1-4. All exhibits were received in evidence. Respondent Carl L. Forrester testified on his own behalf. Respondents also presented the testimony of Ronald K. Earl and Wilbert Lindemann and offered respondents' exhibits 1 and 2 which were received in evidence.

   
   

   There is no transcript of hearing. Proposed findings of fact and conclusions of law were filed by petitioner and respondents on May 17 and 18, 1993, respectively. A ruling on each proposed finding is set forth in the Appendix attached to this Recommended Order.

   
   

   FINDINGS OF FACT

   
   

   Based upon all the evidence, the following findings of fact are determined:

   
   

   1. Respondents, Carl L. and Deborah J. Forrester, have resided on Lem Turner Road in Callahan, Nassau County, Florida, since December 1988. Their home is serviced by two underground sewage disposal systems, both located in the back yard and installed prior to 1983. In the fall of 1991, Betty Bailey and her now deceased husband began construction of a new home on the lot adjacent to the Forresters. The home was completed in early 1992. As a result of a complaint filed by Bailey with the Nassau County Public Health Unit, which is an arm of respondent, Department of Health and Rehabilitative Services (HRS), respondents were required to obtain a construction permit to repair their sewage disposal systems. Because HRS concluded that respondents did not repair their systems as required by the permit, it contends they should be assessed a civil penalty until the violations are corrected, but that such fine not exceed $1500. This preliminary decision is embodied in an administrative complaint issued against respondents in early 1993.

      
      

   2. The street on which respondents live, Lem Turner Road, runs in a north- south direction. Beginning at the northern end of the block and going south are the Lindemann, Forrester, Bailey, and Campbell home sites, respectively. The natural slope of the land runs north to south so that water runs from the Lindemann property, which is the high point on the block, south over the Forrester property, then over the Bailey property, and finally through the Campbell property and into a small pond on an adjacent lot. Directly behind the Forrester lot is a home owned by Susan Lewis and her husband while Ronald K. Earl's home is located on a 3-acre home site directly behind Bailey's lot.

      There is also a sod farm which lies to the south and east of the block and, at its closest point, is no more than seventeen hundred feet from the Earl property. Since there is no central wastewater treatment plant, each of the homes in this area must use an individual sewage disposal unit (septic tank and drainfield). It is noted that because of the low elevation in the area, and the seasonal high water table elevation, at least 95 percent of all new systems currently installed in Callahan must use a septic tank with a mound-type of drainfield.

      
      

   3. When the Baileys were constructing their home, Betty Bailey noticed that the elevation of her property was lower than the Forresters' lot, and the area in the back yard immediately adjacent to the Forresters' property line was always "wet" and "mushy". Indeed, it was so wet that on occasion construction

      trucks would get stuck. She also observed water bubbling up out of the Forresters' yard adjacent to her property line. In an effort to eliminate the wet area, Bailey added a considerable amount of fill dirt to her lot and sodded the area. She recalls adding some twenty loads or so while Carl Forrester says it was much more than that. In any event, the elevation on her lot increased to a height slightly greater than that of the Forrester lot, and this changed the natural flow of stormwater runoff from over her lot to a ditch which straddles her property line. Even so, she says the fill and sod did not correct the wet condition near the property line and it still remained wet as of the date of hearing.

      
      

   4. After moving into her home in February 1992, Bailey began noticing a sewage odor emanating from the soggy area of ground running from her back yard to the Forresters' back yard. The odor, which was worst in the evening and when it rained, was so bad that it prevented her from using her screened back porch and swimming pool in the evening or entertaining friends outside. The condition still existed as of the date of hearing.

      
      

   5. Bailey spoke to Carl Forrester about the odor and mushy ground on several occasions. Once he told her there was an underground spring causing the wet ground and suggested she install a french drain system to convey stormwater runoff from her back yard. He also suggested the odor was caused by the nearby sod farm which used manure to fertilize the sod.

      
      

   6. Bailey contacted the Nassau County Public Health Unit on March 2, 1992, and requested that it check out the source of the problem. Shortly thereafter, Stanley Stoudenmire, a Nassau County environmental health care specialist, inspected the area where respondents' property abuts the Bailey property and observed "mushy" ground, standing water, flies, and bright green algae growth. He also smelled hydrogen sulfide, which is indicative of a failing drainfield, and observed water coming out of the ground. Without the need to take water samples, Stoudenmire identified the pooling liquid as effluent flowing from respondents' drainfields. All of these conditions were indicative of a failed sewage system and constituted a sanitary nuisance. It is noted that an improperly operating system is a threat to human life and safety since it can cause a number of diseases. After advising Carl Forrester that there was a problem with his drainfield, Stoudenmire was told by Forrester that his systems had been checked out by two septic tank firms and nothing was wrong. Nonetheless, Stoudenmire advised Forrester to repair the systems.

      
      

   7. Stoudenmire continued to monitor the situation and even ran a red dye test on one visit. This produced no evidence of a faulty system, but the test is not a conclusive indicator of a failed system. After Bailey continued to make complaints and further inspections revealed that no repairs had been made, Stoudenmire advised Forrester by letter dated July 9, 1992, that he must obtain a permit to correct the systems. On July 13, 1992, Carl Forrester made application for a permit. The application required him to make a site and soil evaluation and prepare a drawing of the proposed corrections. The next day, Stoudenmire conducted a soil and site evaluation on the Forrester property as an aid to them in determining the type of repairs that they needed and the specifications for the drainfield. According to the soil borings, which were not contradicted, the bottom of the existing drainfields were not separated from the seasonal high water table elevation by at least twelve inches, as required by Rule 10D-6.0571(4), Florida Administrative Code. Further, the area had a clay subsurface, which means that water percolation is not good.

   8. On July 16, 1992, respondents made application for a construction permit. The permit contained specifications consistent with Stoudenmire's evaluation and required respondents to disconnect both existing systems and install a mound-type drainfield, like that in Betty Bailey's back yard, so that the required 12-inch separation could be achieved. The permit required the work to be completed within ninety days.

      
      

   9. On September 15, 1992, Stoudenmire advised respondents by letter that they "had not notified (his) office of any efforts to correct the problem". They were told that unless corrective action was taken within ten days, "legal action would be pursued". On October 26, 1992, a second letter was sent to the

      Forresters by Stoudenmire advising them that he continued to receive complaints, that the repairs may have been done in "an illegal manner", and that they had "5 days from receipt of this notice to contact (him) for an inspection." In November 1992, Carl Forrester made certain "repairs", but they were not of the type required under the permit. Instead, he installed a french drain system, consisting of a 55-gallon drum, an electric pump and a drain pipe, which simply conveyed stormwater runoff and effluent from his back yard to a percolation system in his front yard. Bailey says that, as a result of these "repairs", she can now smell the sewage odor emanating from the front yard. Forrester also placed lime on the soggy area and sprayed the same area with a chemical. On November 26, 1992, HRS issued another warning letter to the Forresters stating that it was "imperative" that they "cooperate and respond immediately" due to continued complaints by Bailey. Stoudenmire also returned to the site and once again observed insects and "mushy ground", caused by a combination of effluent and stormwater, and could smell a raw sewage odor in an area which straddled the Forrester-Bailey property line. These conditions were the same as those previously observed on prior inspections, were indicative of a failed sewage disposal system, and constituted a sanitary nuisance. There is no evidence that the conditions had been corrected as of the date of hearing.

      
      

   10. During this same period of time, Susan Lewis, who lives directly behind the Forresters, occasionally smelled a raw sewage odor, especially in the evening, coming from the Forresters' back yard. When she spoke with Carl Forrester about the odor, he told her that he was aware of the problem, had "no doubt" there was sewage "going to" the Bailey property, but denied it was from his systems. However, he also told her he intended to correct the problem.

       
       

   11. Testimony by two other neighbors established that they do not smell any foul odors coming from the Forrester property but that when climatic conditions are just right, they can smell an odor from the nearby sod farm. However, it is found that the odor smelled by Stoudenmire, Bailey and Lewis comes from the Forresters' faulty drainfields and is different from that occasionally caused by the sod farm.

       
       

   12. Respondents do not want to incur the cost of disconnecting their two existing systems and installing an unsightly mound system, which would cost almost $3,000.00. In addition, Carl Forrester says that the trucks and equipment used to install a mound system would cause another $2,000.00 in driveway and landscape damage. Because of this, Forrester contends he will sell his home before installing a mound system. Forrester also blamed the newly added fill on Bailey's lot, which disrupted the natural flow of water, for causing the standing water on his property. However, there was no evidence that this condition caused the drainfields to operate in a faulty manner. Forrester also said four septic tank firms found his systems to be in compliance with HRS rules. But this testimony is hearsay in nature and cannot be used to make a

       finding in his favor. Finally, he blamed part of the odor on a rotting gum tree stump in his back yard which eventually dissipated. However, this contention is not accepted as being credible.

       
       

       CONCLUSIONS OF LAW

       
       

   13. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties hereto pursuant to Subsection 120.57(1), Florida Statutes.

       
       

   14. The administrative complaint, which is not a model of clarity, alleges that, by their refusal to install a mound drainfield system as required in the permit specifications, and by maintaining a sanitary nuisance, respondents have violated Sections 381.0065 and 386.041(1)(a) and (b), Florida Statutes, and Rules 10D-6.056 and 10D-6.0571, Florida Administrative Code. Among other things, section 381.0065 authorizes HRS to issue permits for the construction of onsite sewage disposal systems under conditions described in that section while subsections 386.041(1)(a) and (b) define nuisances injurious to health. As is relevant here, they provide that the following conditions shall be prima facie evidence of maintaining a nuisance injurious to health:

       
       

       1. Untreated or improperly treated human waste . . .

       2. Improperly built or maintained septic tanks . . .

          
          

          Although the complaint does not identify which parts of the lengthy rules were allegedly violated, in its proposed order petitioner cites to rule 10D- 6.0571(4). That section of the rule also contains numerous criteria applicable to drainfield repairs, and no specific citation has been given. Accordingly, the undersigned has assumed that petitioner relies upon the following provisions:

          
          

          (4) . . . Any failing system which has sufficient land area to accommodate an onsite sewage system constructed in compliance with the minimum standards found in sections

          10D-6.046, 10D-6.048, or 10D-6.049 shall be

          brought into full compliance with those requirements. Systems unable to meet current requirements due to limited land area, insufficient unobstructed area, or an inability to meet setbacks required by current standards shall, at a minimum, be repaired in accordance with the following criteria:

          * * *

          (d) For systems installed in areas with high wet season water tables or where unsuitable soils exist close to the absorption surface of the drainfield, a minimum 12 inch separation from the bottom surface of the drainfield to wet season high water table and 42 inches to any severely limited soils shall apply to any system permitted prior to 1983.

          * * *

   15. In its complaint, petitioner proposes to assess a civil penalty in the amount of $50 per day until the violation has been corrected, but that the fine not exceed $1,500. Although the complaint does not cite the statutory authority for assessing a civil penalty, such authority is contained in Section 381.0061, Florida Statutes. There, HRS is authorized to impose a penalty which shall not exceed $500 for each violation for, among other things, a violation of any of the provisions of chapter 386 or any rule promulgated by the agency.

       
       

   16. The preponderance of the evidence supports a conclusion that respondents have violated subsections 386.041(1)(a) and (b) and rule 10D- 6.0571(4)(d). This is so because respondents have maintained a "nuisance injurious to health", namely, "untreated or improperly treated human waste" and "improperly built or maintained septic tanks", and they have operated an onsite sewage system which does not have "a minimum 12 inch separation from the bottom surface of the drainfield to wet season high water table". Accordingly, it is concluded that the allegations in the complaint have been established.

       
       

   17. Subsection 381.0061(2)(a), Florida Statutes, provides that in determining the amount of fine, if any, to be imposed for the foregoing violations, 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 provisions of the applicable statutes or rules were violated.

In its proposed order, petitioner urges that the proposed penalty of $1,500 be affirmed and that respondents be ordered to correct the deficiencies within thirty days. Relevant to a penalty determination are the facts that more than a year has passed since the unlawful conditions were first brought to respondents' attention, effluent has been emanating from respondents' drainfields on and around the property line which abuts the Bailey's back yard, and the maintenance of a sanitary nuisance is dangerous to human health. It is true, of course, that a mound system would be expensive and perhaps unsightly. However, the undersigned is not allowed to take these factors into account in determining the merits of this case or the amount of penalty to be assessed. Given these considerations, a civil penalty of $1,000 is appropriate. In addition, respondents should correct their systems within thirty days from date of final order.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered imposing a $1,000 civil penalty

upon respondents for violating Subsections 386.041(1)(a) and (b), Florida

Statutes, and Rule 10D-6.0571(4), Florida Administrative Code. Respondents should also be required to correct their failed system by installing a mound- type drainfield within thirty days from date of final order.

DONE AND ENTERED this 20th day of May, 1993, in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1300

Petitioner:

1-2. Partially accepted in finding of fact 1.

1. Partially accepted in finding of fact 2.

2. Partially accepted in findings of fact 6 and 9.

3. Partially accepted in finding of fact 2.

4. Partially accepted in finding of fact 6.

5. Covered in preliminary statement.

6. Partially accepted in finding of fact 4. 9-10. Partially accepted in finding of fact 7.

1. Partially accepted in finding of fact 12.

2. Partially accepted in finding of fact 2.

Respondents:

1. Partially accepted in findings of fact 1 and 12.

2. Partially accepted in finding of fact 9.

3. Partially accepted in finding of fact 10. 13-14. Partially accepted in finding of fact 11.

15. Partially accepted in finding of fact 12.

Note - Where a proposed finding has been partially accepted, the remainder has been rejected as being unnecessary, irrelevant, subordinate, not supported by the evidence, or a conclusion of law.

COPIES FURNISHED:

Robert L. Powell, Agency Clerk Building One, Room 407

1323 Winewood Boulevard

Tallahassee, FL 32399-0700

John S. Slye, Esquire Building One, Room 407 1323 Winewood Boulevard

Tallahassee, FL 32399-0700

Charlene J. Petersen, Esquire Post Office Box 2417 Jacksonville, FL 32231-0083

J. Gary Baker, Esquire Post Office Box 1177 Callahan, FL 32011

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: 93-001300

Orders for Case No: 93-001300