STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LAWRENCE DECKER, )

)

Petitioner, )

)

vs. ) Case No. 97-3519

)

DEPARTMENT OF HEALTH, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for final hearing before the Honorable Stephen F. Dean, Administrative Law Judge, Division of Administrative Hearings, at 210 North Palmetto Avenue, Room 440, Daytona Beach, Florida, commencing at 10:00 a.m., on January 27, 1998.

APPEARANCES

For Petitioner: Lawrence Decker, pro se

5960 John Anderson Highway Flagler Beach, Florida 32136

For Respondent: Charlene J. Petersen, Esquire

Department of Health

420 Fentress Boulevard Daytona Beach, Florida 32114

STATEMENT OF THE ISSUE

The issues in this case are:

1. Whether Mr. Decker had an improperly maintained septic system on his property.

2. Whether Mr. Decker illegally repaired his on-site sewage treatment and disposal system.

3. Whether the Department of Health properly issued a citation to Mr. Decker for violation of Sections 381.0065(4) and 386.041(1)(b), Florida Statutes.

PRELIMINARY STATEMENT

An inspector for the Department observed sewage on the ground at Mr. Decker's property and notified him that the septic systems should be repaired. Mr. Decker informed the Department that he had repaired the drainfield himself. The site was

re-inspected, and it had not been repaired as required by a previously issued permit. The Department issued Mr. Decker a citation which imposed a $500 fine for the violations.

Mr. Decker requested an administrative hearing in response to receiving the Department's citation, and the matter was referred to the Division of Administrative Hearings. Notwithstanding his designation as Petitioner, the Department seeks to change the status quo, and has the burden to go forward and the burden of proof. The case was noticed for hearing by Charles C. Adams, Administrative Law Judge of the Division of Administrative Hearings; however, the case was reassigned to the undersigned Administrative Law Judge at the last moment due to scheduling conflicts.

At the formal hearing, the Department presented the testimony of David Stark. The Department introduced five (5)

exhibits which were admitted into evidence. Mr. Decker testified in his own behalf and introduced four (4) exhibits which were admitted into evidence. After hearing, the Department submitted proposed findings which were read and considered. Mr. Decker submitted a letter outlining his position which was also read and considered.

FINDINGS OF FACT

1. On April 25, 1997, an employee of the Department of Health, Volusia County Health Department, David Stark, inspected Mr. Decker's property known as Bulow Creek Farm. Mr. Decker provides low-cost rental housing on this property which utilizes an onsite well to provide drinking water. Mr. Stark observed a wet area in the ground with the smell of sewage near the building identified as Apartment Building C, which houses seven (7) apartments. Mr. Stark identified this area as a sewage leak.

2. On May 28, 1997, Mr. Stark returned to Mr. Decker's property with another Volusia County Health Department employee, Ed Williams. They both observed a wet area in the ground with the smell of sewage in the vicinity of the septic tank serving Apartment Building C. Mr. Stark identified this area as a sewage leak.

3. Mr. Stark issued a Notice of Violation (NOV) to Mr. Decker which stated the raw sewage leak was a sanitary

   nuisance and provided that Mr. Decker should have his drainfield repaired in accordance with the repair permit Mr. Decker had

   previously obtained from the Department. The NOV stated the repair should be completed no later than June 11, 1997.

4. A repair permit is valid for a period of eighteen (18) months. Mr. Decker's permit expired on April 20, 1997. Repairs must be inspected by the Department as they are made.

5. On June 13, 1997, Mr. Stark mailed Mr. Decker a letter reiterating the need for repair of his septic system and enclosed a Notice of Intended Action giving Mr. Decker a deadline of

   June 20, 1997 to make the needed repairs.

   
   

6. Mr. Stark received a letter dated June 29, 1997, from Mr. Decker, informing him that Mr. Decker, himself, had repaired the drainfield for Apartment Building C. The letter described the new tank and drainfield which Mr. Decker had installed, and Mr. Decker stated his repair was a "cheaper version of what you wanted me to do in the first place."

7. Mr. Decker had not sought the required inspections for the repairs which he had made to the septic system, and the repairs were not inspected and approved by the Department.

8. The Department cited Mr. Decker for having an improperly built or maintained septic system, and for failing to repair the system in accordance with the terms of the permit. The citation levied a $500 civil fine for Mr. Decker's violation.

   CONCLUSIONS OF LAW

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

10. The duties and powers of the Department of Health as the regulating agency over on-site sewage treatment and disposal systems are set forth in Section 381.0065(3), Florida Statutes. The applicable subsections state:

    The Department shall:

    
    

    1. Adopt rules to administer Section 381.0065-381.0067.

       
       

    2. Perform application reviews and site evaluations, issue permits, and conduct inspections and complaint investigations associated with the construction, installation, maintenance, modification, abandonment, or repair of an onsite sewage treatment and disposal system . . . [.]

       
       

    3. Develop a comprehensive program to ensure that onsite sewage treatment and disposal systems regulated by the department are sized, designed, constructed, installed, repaired, modified, abandoned, and maintained in compliance with this section and rules adopted under this section to prevent groundwater contamination and surface water contamination and to preserve the public health. The State Health Office is the final administrative interpretive authority regarding rule interpretation . . . [.]

       
       

    4. Conduct enforcement activities, including imposing fines, issuing citations, suspensions, revocations, injunctions, and emergency orders for violations of this section, part III of Chapter 489, or Chapter

       386 or for a violation of any rule adopted under this section, part III of Chapter 489, or Chapter 386.

11. Section 381.0065(4), Florida Statutes, is the law pertaining to permits, installation and conditions for onsite sewage treatment and disposal systems. The section provides that "A person may not construct, repair, modify, abandon or operate an onsite sewage treatment and disposal system without first obtaining a permit approved by the Department of Health . . . [.]" Statutory authority to issue citations and impose fines is set forth in Subsection 381.0065(5), Florida Statutes.

12. Florida law concerning sanitary nuisances is found in Florida Statutes, Chapter 386, which authorizes the Department of Health to investigate suspected violations and serve notice upon the proper parties to remove or abate said nuisance. Subsections 386.041(1)(a) and (b), Florida Statutes, define as nuisances injurious to health "untreated or improperly treated human waste" and "improperly built or maintained septic tanks."

    Subsection (1) further provides that untreated or improperly treated human waste and improperly built or maintained septic tanks "shall constitute prima facie evidence of maintaining a nuisance injurious to health."

13. David Stark, Environmental Health inspector, observed what he identified as sewage on the ground at Mr. Decker's property on April 25 and May 28, 1997. He issued a Notice of Violation requiring Mr. Decker to repair his failing septic system according to the permit Mr. Decker previously had obtained from the Department. Mr. Decker was aware that he had a problem

    with the septic system serving his Apartment Building C because he had obtained the permit some time earlier. The permit expired on April 20, 1997; however, the Department was willing to allow Mr. Decker to extend the permit into June 1997, if he would repair the failing system to resolve the continuing problem of raw sewage surfacing on the ground.

14. When Mr. Decker had not repaired his system by June 1997, having ignored the Notice of Violation and the follow-up Notice of Intended Action, the Department issued him a citation levying a fine of $500 for improperly maintaining a septic tank and for illegally repairing his septic system. The Department has authority to levy a $500 fine per violation per day, but only levied a one-time fine of $500 for both violations.

15. Mr. Decker admitted at the hearing and in a letter, dated June 29, 1997, that he had installed another drainfield and a sump pump to treat gray water as a supplement to his regular drainfield at another location on the property.

16. The Department has not found raw sewage on the ground around Mr. Decker's septic tank; however, the drainfield that Mr. Decker installed was not built and inspected in accordance with State requirements as provided in the permit.

17. Mr. Decker contends that he wants to provide low-cost rental housing on his property. He stated that the County has authorized changing the zoning of his property to a Planned Unit Development (PUD) in support of his goals to provide this type of

    housing. However, the County's resolution granting Mr. Decker's zoning change clearly states that "on-site septic tanks shall conform to the applicable requirements of the County Health Department."

18. Mr. Decker stated that he did not have the money to repair the system; however, it is Mr. Decker's responsibility to bring his septic system up to standards to eliminate the existing nuisance, and to repair his septic system in accordance with the repair permit. Mr. Decker's failure to repair his septic system endangers the safety of the wells which provide drinking water on his property.

19. Permitted on-site sewage and disposal systems are required to protect water supplies. All property owners must adhere to the laws in order to preserve water resources.

    The Department issued a citation only after all other means of seeking compliance failed.

20. Mr. Decker contends that the statute permits the owner of a single family residence to make repairs to the septic system of the residence; and, further, that he cannot contract with himself as required by the statute. (See Mr. Decker's supplemental brief.)

21. Respondent misapprehends the language of the statute. The statute requires septic systems for apartments and commercial building to be constructed and repaired by licensed contractors. His apartments do not qualify for the single-family residential

exemption. The repairs should have been made by a licensed contractor, and the repairs should have been inspected. Mr. Decker violated both there requirements.

RECOMMENDATION

Based upon the findings of fact and conclusions of law, it

is

RECOMMENDED:

That the Department issue a final order affirming the civil

penalty against Mr. Decker and requiring Mr. Decker to repair his septic system according to permit. If Mr. Decker fails to effect the repairs, the Department should initiate action to abate this public health hazard.

DONE AND ENTERED this 6th day of March, 1998, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 6th day of March, 1998.

ENDNOTE

1/ There is an alternative to repairing the system. Mr. Decker could cease having tenants in Apartment Building C. If there were no tenants, the septic system would remain dry. So long as the system is not being utilized, the Department has no fear of contamination of ground water and Mr. Decker would not have to repair his system. However, Mr. Decker must understand that this alternative is only acceptable so long as the building is not occupied.

COPIES FURNISHED:

Charlene J. Petersen, Esquire Department of Health

420 Fentress Boulevard Daytona Beach, Florida 32114

Lawrence Decker

5960 John Anderson Highway Flagler Beach, Florida 32136

Angela T. Hall, Agency Clerk Department of Health Building 6

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Pete Peterson, Esquire Department of Health 1317 Winewood Boulevard Building 6, Room 102-E

Tallahassee, Florida 32399-0700

Dr. James Howell, Secretary Department of Health Building 6, Room 306

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

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.

Docket for Case No: 97-003519

Orders for Case No: 97-003519