vs. ) Case No. 97-0432
Respondent. )
An administrative hearing was conducted in this proceeding on August 25, 1998, in Orlando, Florida, before Daniel Manry, Administrative Law Judge, Division of Administrative Hearings.
For Petitioner: Stephen D. Milbrath, Esquire
Allen, Dyer, Doppelt, Milbrath, and Gilchrist, P.A.
The issue in this case is whether Petitioner failed to obtain a permit for abandoning an on-site sewage treatment and disposal system septic tank, and failed to notify Respondent so that Respondent could inspect the system prior to abandonment, in violation of Section 386.0065, Florida Statutes (1997), and, if so, whether Petitioner should pay a $500 fine. (All Chapter and
On August 28, 1996, Respondent issued a citation to Petitioner for an on-site sewage sanitary nuisance and imposed a
$500 fine. Petitioner timely requested an administrative hearing.
At the hearing, the parties agreed that Respondent would proceed first with its case in chief. Respondent presented the testimony of two witnesses and submitted two exhibits for admission in evidence. Petitioner called four witnesses and submitted two exhibits for admission in evidence.
The identity of the witness and exhibits, and the rulings regarding each, are set forth in the transcript of the hearing filed on September 8, 1998. The parties timely filed their respective Proposed Recommended Orders ("PROs") on October 8, 1998.
Respondent is the state agency responsible for issuing citations under Chapter 386 and is the licensing authority for Petitioner. The Osceola County Health Department (the "Department") is an agency of Respondent.
All Pro Services ("All Pro") practices septic tank contracting in Osceola, Orange, and Seminole counties. All Pro is a Florida corporation wholly-owned by Mr. Wayne H. Crotty.
Mr. Crotty is licensed in the state as a septic contractor pursuant to Chapter 386.
Mr. Crotty has been in the septic tank business for over
25 years. He has extensive experience in septic tank repair and contracting.
Mr. Crotty also has had experience in the rule-making process conducted by Respondent pursuant to Florida Administrative Code Chapter 10D-6. He has participated in various committees and held offices in the Florida Septic Tank Association. (Unless otherwise stated, all references to rules are to rules promulgated in the Florida Administrative Code in effect on the date of this Recommended Order.)
In the summer of 1996, Petitioner submitted an application to the Department for a repair permit. Petitioner sought to install a standard drainfield utilizing gravity fall from the existing septic tank of a mobile home owner who used the mobile home facility as a day-care center.
The existing drainfield was antiquated, clogged, and had ceased disposing effluent properly. Petitioner made arrangements for the day-care center to refrain from using water or sewage for a period of hours so that the drainfield could be repaired.
The application came to the attention of Mr. Thomas Franklin Wolf, Director of the Department's Environmental Health Section. Mr. Wolf did not accept the site evaluation in the
application. He chose to perform his own evaluation of the repair site.
When Mr. Wolf performed a site evaluation, he placed the seasonal high water table two inches higher than the high water table stated by Petitioner in the application for a repair permit. As a result, Mr. Wolf issued the permit at an elevation that would have required either the use of a pump system or elevated plumbing lines in the existing septic tank to meet the higher elevation deemed necessary by Mr. Wolf.
The higher elevation established in the permit could be accommodated in either of two ways. The plumbing underneath the mobile home, along with the septic tank, could be raised. Alternatively, a new pump, and other equipment meeting the requirements of Chapter 10D-6, could be installed.
The repair permit issued by Mr. Wolf contemplated the use of a new pump chamber complete with alarm. Pumps fail, are problematic, and are expensive. A conventional gravity-fed drainfield line is preferable, whenever feasible, to the use of a pump chamber system and is less expensive.
Petitioner determined that the plumbing and septic tank could be elevated to meet the higher elevation requirements thereby avoiding the need for a pump system and its increased cost. This lower-cost alternative satisfied the requirements of Chapter 10D-6 for a septic tank drainfield.
Based on past experience, Mr. Crotty believed he could obtain the Department's approval of this alternative to the pump chamber requirements of the permit. The Department had no objection to an alternative that achieved the higher elevation requirement with a gravity-fed system.
One risk associated with Petitioner's alternative was that the existing septic tank might not withstand the rigors of being excavated and raised and could break during the repair process. After conferring with the homeowner about the matter, Petitioner proceeded to elevate the existing plumbing lines and septic tank.
Petitioner began excavation and removed the lid from the existing septic tank. Petitioner then determined that it would not be feasible to lift the tank up and reinstall it at the higher elevation due to the age and style of the tank.
Petitioner determined that the best way to proceed was to abandon the old tank and to install a new tank at the higher elevation.
Petitioner replaced the existing septic tank without obtaining a separate abandonment permit. Petitioner did not need a separate abandonment permit. The repair permit was inclusive of the abandonment of the existing tank.
In a previous repair effort for another customer, Petitioner broke the existing septic tank while attempting to elevate the tank to a higher location. The prior incident led to a disagreement between Petitioner and the Department over whether
a separate abandonment permit was required for replacing a tank in the course of a repair.
Petitioner wrote a certified letter to the Department and Department's counsel memorializing an understanding reached during discussions with Department representatives. Any requirement for a separate abandonment permit in the course of a repair was tabled pending further review by the state health office in Tallahassee. The letter further stated Petitioner's understanding that under Chapter 10D-65, the replacement of an existing tank was provided for through a repair permit, and that no separate abandonment permit is necessary for an abandonment which occurs in conjunction with a repair effort. The letter was received by Mr. Wolf on behalf of the Department.
In response, the Department specifically informed Petitioner that the replacement of an existing tank is provided for through the repair permit. Mr. Wolf never retracted this position in his dealings with Petitioner.
At about the same time, the state health office, through its acting Health Officer for Environmental Health, issued an interoffice memorandum advising every district administrator in the state that a separate abandonment permit is not required when an existing tank is abandoned during repair. The interoffice memorandum stated, in relevant part:
This addresses permitting procedures when a septic tank is abandoned in conjunction with a system repair. Since the repair and tank abandonment inspections can be conducted at
the same time, a separate permit and fee is not required if a tank is abandoned in conjunction with a repair permit. The repair permit should specify the abandonment requirements from s. 10D-6.053, F.A.C., and the requirements to have the abandonment inspected. If an additional inspection visit is required for either the repair or abandonment, the unit should charge the
$25.00 re-inspection fee.
Respondent's memorandum served as the Department's official interpretation of its rules relating to abandonment procedures.
The memorandum made a separate abandonment permit unnecessary because the repair permit "is inclusive of the abandonment if the abandonment is necessary." The repair permit in this case suffices as an abandonment permit.
Petitioner relied upon the representations of Mr. Wolf personally as well as the Department memorandum of February 18, 1996. Based upon Department policy, Petitioner was not required to amend its permit application to seek specific approval for abandonment of the existing tank, because the tank was being abandoned in conjunction with a repair permit.
Petitioner pumped out, ruptured, and demolished the old septic tank with the exception of the inlet end wall and the sidewall closest to the tank. Petitioner left intact the latter portions of the old septic tank for inspection purposes and for stabilization. Petitioner placed the lids and the broken pieces of concrete from the tank alongside the new septic tank that was installed.
Mr. Crotty requested an inspection by the Department. Inspector Garner arrived on the scene with a standard probe. The probe is a tool useful for inspecting on-site sewage disposal systems.
Mr. Crotty informed Mr. Garner that Petitioner had abandoned the old tank and replaced it with a new one. Mr. Crotty took Mr. Garner over to the site and specifically pointed out the remaining sidewall of the old tank and the lids piled up on-site and remaining from the old tank.
Mr. Garner inspected the repairs and satisfied himself that Petitioner had installed a new septic tank in the place of the old tank and had done it in a way that would allow gravity feeding to the new drainfield. The repairs dispensed with the need for a pump and were accomplished at a lower cost to the customer.
After the inspection on August 13, 1998, and a subsequent review on August 14, Inspector Garner approved the installation by Petitioner. The approval specifically approved the use of a gravity-fed line rather than the use of the pump contemplated in the permit. The approval constituted the "construction final" approval for the septic system that was repaired.
Rule 10D-6 does not specify when the inspection for an abandonment of a septic tank in conjunction with a repair is to occur. Nor does it say anything about requesting an inspection
before the tank is filled with sand or other suitable material and covered.
It was Inspector Garner's practice, and the unwritten policy of the Department, to conduct inspections of damaged septic tanks at the same time the Department inspected repair constructions. The practice of the Department in such an inspection was to inspect the abandoned tank after it had been pumped and the bottom ruptured, but before a new tank was installed.
According to Department practice, the inspection of an abandonment in conjunction with a repair must determine that the tank had been pumped and that the bottom of the tank had been opened or ruptured or collapsed to prevent the tank from retaining water. The inspection can only occur after the tank has been pumped out, opened, ruptured or collapsed.
Inspector Garner arrived for the inspection after abandonment of the old tank. Mr. Garner does not dispute that Petitioner abandoned the old tank, but maintains that the abandonment was accomplished without proper notification to the Department.
Mr. Garner approved the construction, but recorded x- marks on the approval form adjacent to a box for abandonments and next to "tank pumped" and "tank flushed and filled." Mr. Garner also recorded on the form under "explanation of violations" a
notation that the old septic tank "was abandoned without any inspection of [sic] verification."
The promulgated rules of the Department and Respondent do not require an inspection before an abandoned tank is filled with sand, or other suitable material, and covered. It was the Department's unwritten policy, evidenced by its practice, to insist that inspection of the abandoned septic tank occurred before the tank is actually crushed.
The promulgated rules of Seminole and Orange counties do not require inspection prior to abandonment of an existing tank. The unwritten policies of Seminole and Orange counties deviate from those of the Department.
The Seminole County Health Department ("Seminole") also received the Department's interpretive memorandum regarding abandonment of septic tanks in conjunction with repairs. Seminole concluded that abandonment inspections should be conducted simultaneously with the final inspection for repairs.
At that point, the old septic tank is already ruptured and filled with sand.
Seminole adopted the practice of inspecting abandoned septic systems with a probe to verify the pump-out and the rupturing of the old tank. It is the same type probe used by Mr. Garner and the Department. The probe allows a department employee to verify all of the requirements of Rule
10D-6.053 for abandonment.
The Orange County Health Department ("Orange County") also received the interpretive memorandum concerning abandonment of septic tanks in the course of repair procedures. By the time the memo was received, however, it was already the practice of Orange County not to require a separate abandonment permit for an abandonment as part of a repair. In Orange County, inspectors permitted abandonment inspections to occur at the point where the tank was already collapsed and covered with sand. The inspection was accomplished with the use of a probe.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject mater and parties to this proceeding Sections 120.57(1) and 381.0065. The parties were duly noticed for the hearing.
Respondent has the burden of proof. E.g., Fla. Dept. of Transp. v. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981). Respondent asserts the affirmative of the issue.
Respondent seeks to impose a civil fine against Petitioner in the amount of $500 in accordance with Section 381.0065(5)(b). Such a proceeding requires a citation against Petitioner which "must be in writing and must describe the particular nature of the violation, including specific references to the provisions of law or rule allegedly violated." Section 381.0065(5)(b)2.
Respondent must satisfy its burden of proof by clear and convincing evidence. Mr. Crotty is a licensed septic tank contractor in the state pursuant to Chapter 489. All Pro Services is a qualified agency by virtue of Mr. Crotty's license. The imposition of an administrative fine implicates significant property rights against Petitioner and against Mr. Crotty's license. In any subsequent action, the proposed fine would constitute prior discipline. Section 489.556. The imposition of an administrative fine in the present case would be penal in nature and requires that Respondent establish its allegations by clear and convincing evidence. Latham v. Florida Commission on Ethics, 694 So. 2d 83, 85 (Fla. 1st DCA 1997); Ferris v. Turlington, 510 So. 2d 292, 294 (Fla. 1987); Department of Bank & Finance, Division of Securities & Investor Protection v. Osborne Stern & Co., 670 So. 2d 932, 935 (Fla. 1996).
The citation charges Petitioner with two specific violations of Respondent's rules. First, Respondent contends that Petitioner violated Rule 10D-6.043(1) by abandoning a septic tank without prior approval. Second, Respondent contends that Petitioner violated Rule 10D-6.053(2)(a)(b) and (c) by failing to notify Respondent to inspect the abandonment prior to the abandonment.
Rule 10D-6.043(1) states in pertinent part:
System Construction Permit: No portion of an onsite sewage treatment and disposal system shall be installed, repaired, altered, modified, abandoned or replaced until an
"Onsite Sewage Treatment and Disposal System Construction Permit" has been issued on HRS-H Form 4016. (Emphasis supplied).
Form 4016, is a Department construction permit approval form of the type used for septic tank repairs.
Petitioner did not violate Rule 10D-6.043(1). Petitioner applied for a construction repair permit on the appropriate form. The Department issued a permit as modified by Mr. Wolf. Petitioner installed a new system which was approved by the Department as being in compliance with the permit.
Petitioner did not violate Rule 10D-6.043(1), by failing to request a separate abandonment permit. Petitioner could not have known it would be necessary to abandon the old septic tank until Petitioner began construction under the repair permit. The rules and non-rule policy of the Department and Respondent, do not require Petitioner to obtain a separate abandonment permit.
Rule 10D-6.053(2)(a)(b) and (c), provides, in pertinent part:
(2) The following actions shall be taken, in the order listed, to abandon an onsite sewage treatment and disposal system: (a) Property owner or agent shall apply for a permit from the department to abandon the existing onsite sewage system and submit the required fee. Upon receiving a permit: (b) The tank shall be pumped out. (c) The bottom of the tank shall be opened or ruptured, or the entire tank collapsed, so as to prevent the tank from retaining water . . .
Petitioner did not violate Rule 10D-6.053(2)(a). The interpretive memorandum dispenses with the need to apply for a separate permit and to pay a separate fee when the septic tank is abandoned "in conjunction with a system repair." Petitioner abandoned the old septic tank in conjunction with a system repair.
Petitioner satisfied the requirements of Rule 10D- 6.053(2)(b)-(c). Petitioner pumped out the old tank and then ruptured or collapsed the old tank to prevent the tank from retaining water.
Petitioner did not violate any rule by failing to notify Respondent to inspect the abandonment prior to abandonment. There is no requirement for prior notice in the promulgated rules of Respondent or the Department. The non-rule policy of the Department that interpreted Respondent's rules deviated from the non-rule policy of Respondent's other agencies. The Department failed to explicate its non-rule policy.
Respondent had adequate opportunity to conduct an abandonment inspection in a manner considered adequate by other counties. The inspector had a probe of the type used by other counties and it was accepted by Respondent as adequate for such purposes.
Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:
RECOMMENDED that Respondent enter a final order finding Petitioner not guilty of the allegations against it and dismissing the citations.
DONE AND ENTERED this 24th day of November, 1998, in Tallahassee, Leon County, Florida.
Filed with the Clerk of the Division of Administrative Hearings this 24th day of November, 1998.
Stephen D. Milbrath, Esquire Allen, Dyer, Doppelt, Milbrath
and Gilchrist, P.A. Post Office Box 3791
Dr. James Howell, Secretary Department of Health
All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
