STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

)

Petitioner, )

)

vs. ) Case No. 97-5979

)

RICHARD A. SIMON, d/b/a )

ANYTIME SIMON'S SEPTIC )

SERVICE, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Fort Myers, Florida, on April 27, 1998.

APPEARANCES

For Petitioner: Susan Mastin Scott

Chief Legal Counsel Department of Health Post Office Box 9309

Fort Myers, Florida 33902-9309

For Respondent: John Charles Coleman

Coleman & Coleman Post Office Box 2089

Fort Myers, Florida 33902 STATEMENT OF THE ISSUE

The issue is whether Respondent is guilty of discharging untreated septage at a site that Respondent was not permitted to use, in violation of Rule 10D-6.052(7)(b), Florida Administrative Code; and operating two septic pumping trucks, even though authorized to operate only one such vehicle, in

violation of Rules 10D-6.052(2)(a) and 10D-6.052(1), Florida Administrative Code; and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated September 24, 1997, Petitioner alleged that Respondent is a registered septic tank contractor. The Administrative Complaint alleges that, on August 15, 1997, two septic tank pumping trucks operated by Respondent discharged 8000 gallons of untreated septage at a site that Respondent was not permitted to use. The Administrative Complaint alleges that Respondent was permitted to use only one of the two trucks.

The Administrative Complaint alleges that Respondent violated Rules 10D-6.052(1) and (2)(a), Florida Administrative Code, by operating a septage disposal service with a truck lacking a valid operating permit; Rule 10D-6.052(7)(a), Florida Administrative Code, by landspreading untreated septage; Rule 10D-6.052(7)(b)5, by landspreading septage at a site that the County Health Department has not approved; and Rule 10D-6.075(1)(q), Florida Administrative Code, by creating a sanitary nuisance.

At the hearing, Petitioner called five witnesses and offered into evidence eleven exhibits. Respondent called two witnesses and offered into evidence three exhibits. All exhibits were admitted.

The court reporter filed the transcript on May 18, 1998.

FINDINGS OF FACT

1. Since 1989, Respondent has been a registered septic tank contractor. Petitioner annually issues Respondent a separate permit to pump, transport, and dispose of septage.

2. Petitioner or its predecessor has disciplined Respondent on two occasions. On November 15, 1994, Respondent paid a $500 fine after the issuance of an administrative complaint for discharging improperly treated septage, and, on August 19, 1996, Petitioner issued a final order imposing a

   $500 fine and 90-day suspension against Respondent for repairing a septic tank system without a permit. Respondent’s attempts to explain away these violations were unpersuasive.

3. At the time in question, Respondent’s permits allowed him to operate only one truck in transporting septage--a 1988 Ford--and to discharge septage only at one location--Hunter Land Application Site. Respondent’s permits also required him to stabilize septage only at one location--A-1 Septic Tank Service’s Lime Stabilization Facility.

4. On August 15, 1997, Respondent operated or caused to be operated the permitted 1988 Ford truck and another unpermitted truck for the purpose of receiving and

   transporting septage that Respondent had pumped from septic tanks.

5. Respondent and one of his employees drove the loaded trucks to J. R. Brooks & Sons Ranch, where they landspread the septage that they had been transporting. They dumped at this site about 8000 gallons of raw septage containing condoms, tampons, vegetable matter, and other items of the type normally found in unscreened septage pumped from septic tanks and grease traps.

6. Petitioner had not approved the J. R. Brooks site for discharge of septage pumped from septic tanks. The Department of Environmental Protection (DEP) had designated the J. R. Brooks site for use by Resource Tech, which transported wastewater residuals from the Dade County Municipal Treatment Plant and discharged them at the J. R. Brooks site. The permit allowed Resource Tech to discharge wastewater residuals with only minimal levels of pathogens.

7. DEP calculates the carrying capacity of sites such as the J. R. Brooks site based on the amount of material that they receive from permitted, disclosed discharges. After learning that the J. R. Brooks site had received unpermitted discharges, DEP determined that it must close the site and find a new one due to public-safety concerns.

8. Respondent also failed to stabilize the septage with lime prior to discharging it on the J. R. Brooks site. The purpose of adding lime to septage is to kill pathogens.

9. The J. R. Brooks site drains through ditches into nearby wetlands. From there, runoff drains into the Estero Bay. The untreated septage discharged by Respondent presents a greater threat to wildlife and public safety than do the wastewater residuals remaining after wastewater treatment that Residual Tech was authorized to discharge at the site.

10. At the time of the hearing, Respondent was negotiating the sale of the business, but the buyers needed to operate under Respondent’s certificate until they could qualify to obtain one. However, Respondent admitted that he had someone else available to qualify the buyers’ operation for a certificate.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes. All references to Rules are to the Florida Administrative Code.)

12. Petitioner must prove the material allegations by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern and Company, Inc., 670 So. 2d 932

    (Fla. 1996) and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

13. Section 489.556 provides that Petitioner may suspend or revoke a registration certificate for any violation of Chapter 489, Part III, Florida Statutes, or any rule of Petitioner.

14. Rule 10D-6.052 provides in relevant part:

    
    

    1. No septic tank, grease interceptor, privy, portable toilet, holding tank or other receptacle associated with an onsite sewage treatment and disposal system shall be cleaned or have its contents removed until the service person has obtained an annual written permit Such

       authorization applies to all septage produced in the State of Florida, all holding tanks containing domestic waste, all portable toilet waste and food establishment sludge which is collected for disposal from onsite sewage treatment and disposal systems.

       * * *

       
       

    2. Application for a service permit shall be made to the HRS county public health unit . . .. The following must be provided for evaluation prior to issuance of a service permit:

       1. Evidence that the applicant possesses adequate such as a tank truck .

          . . Equipment may be placed into service only after it has been inspected and approved by the HRS public health unit. .

          . .

          
          

          * * *

          
          

          1. The food establishment sludge and contents from onsite waste disposal systems shall be disposed of at a site approved by the HRS county public health unit and by an approved disposal method.

             Untreated domestic septage or food establishment sludges shall not be applied to the land. . . . Disposal of these liquid wastes shall be in compliance with provisions found in (a) through (v).

             Criteria for approved stabilization methods and the subsequent land application of domestic septage or other domestic onsite wastewater sludges shall be in accordance with the following criteria for land application and disposal of domestic septage.

             1. Land application of domestic septage and sludges shall be permitted provided such septage and sludges have been properly treated by an approved septage-stabilization process, including lime stabilization . . ..

             2. No land application of stabilized septage or food service sludge may occur until . . . the site has been inspected and approved by department personnel . . .

                .

             3. No person shall dispose of domestic septage or sludge by land application unless they have complied with approved treatment and disposal methods described in rule 10D-6.052.

15. Petitioner has proved three distinct violations.

    Respondent violated Rule 10D-6.052(2)(a) by transporting septage in an unpermitted truck, Rule 10D-6.052(7)(a) by landspreading septage prior to treatment by lime stabilization or other approved means, Rule 10D-6.052(7)(b)1 by discharging septage at an unapproved site.

16. Additionally, as alleged by Petitioner, Respondent violated Section 386.01 and 386.041, Florida Statutes, by creating a sanitary nuisance. Section 386.01 defines a sanitary nuisance as “an act . . . by which the health or life of an individual, or the health or lives of individuals, may

    be threatened or impaired, or by which or through which, directly or indirectly, disease may be caused.” Section

    386.041 expressly includes as a sanitary nuisance the release of “[u]ntreated or improperly treated human waste.”

17. Rule 10D-6.0751 provides disciplinary guidelines for some of these violations. Addressing the failure to treat or dispose septage properly, Rule 10D-6.0751(2)(n) provides a fine of $500 for the first offense and revocation for a repeat violation.

18. Rule 10D-6.0751(2)(q) provides for a $500 fine or, if a repeat violation, a 90-day suspension or revocation for the creation of a sanitary nuisance.

19. Rule 10D-6.0751(2)(m) provides for a $500 fine, or, if a repeat violation, revocation for “[o]perating a septage disposal service without a valid department operating permit.”

20. Rule 10D-6.0751(3) provides that a repeat violation does not have to be of the same provision. The rule warns that, for a repeat violation of the same rule, Petitioner will increase the penalty beyond what is suggested for repeat violations.

21. Respondent has previously discharged improperly treated septage; thus, he has violated the same provision twice. A repeat violation involving a different previous violation carries the recommended penalty of revocation; the rules warn that a repeat violation of the same provision is

even more serious. Adding the use of an unpermitted truck and discharge at an unauthorized site, the most suitable penalty is revocation.

RECOMMENDATION

It is

RECOMMENDED that the Department of Health enter a final order revoking Respondent’s certificate as a septic tank contractor.

DONE AND ENTERED this 9th day of September, 1998, in Tallahassee, Leon County, Florida.

ROBERT E. MEALE

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 9th day of September, 1998.

COPIES FURNISHED:

Susan Mastin Scott Chief Legal Counsel Department of Health Post Office Box 9309

Fort Myers, Florida 33902-9309

John Charles Coleman Coleman & Coleman Post Office Box 2089

Fort Myers, Florida 33902

Angela T. Hall, Agency Clerk Department of Health

Bin A02

2020 Capital Circle Southeast Tallahassee, Florida 32399-1703

Pete Peterson, General Counsel Department of Health

Bin A02

2020 Capital Circle Southeast Tallahassee, Florida 32399-1703

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 must be filed with the agency that will issue the final order in this case.

Docket for Case No: 97-005979

Orders for Case No: 97-005979