STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARING

DEPARTMENT OF HEALTH, )

)

Petitioner, )

)

vs. ) Case Nos. 98-0706

) 98-0786

WAYNE CRAWFORD and )

SHIRLEY CRAWFORDS, )

)

Respondents. )

)

RECOMMENDED ORDER

An administrative hearing was conducted in this proceeding on May 20, 1998, in Lakeland, Florida, before Daniel Manry, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Roland Reis, Esquire

Department of Health

1290 Golfview Avenue, 4th Floor Bartow, Florida 33830

For Respondents: Wayne and Shirley Crawford, pro se

4732 Highway 98, North

Lakeland, Florida 33810 STATEMENT OF THE ISSUE

The issue for consideration in this case is whether Respondents should pay two fines of $500 each for allegedly violating Section 386.041, Florida Statutes (1997). (All chapter and section references are to Florida Statutes (1997) unless otherwise stated.)

PRELIMINARY STATEMENT

On December 30, 1997, and January 9, 1998, Petitioner issued two citations for onsite sewage and sanity nuisance violations. Respondents timely requested an administrative hearing.

At the hearing, Petitioner presented the testimony of five witnesses and submitted six exhibits for admission in evidence. Respondents presented the testimony of five witnesses and submitted three exhibits for admission in evidence.

The identity of the witnesses and exhibits, and the rulings regarding each, are set forth in the record of the administrative hearing. Neither party requested a transcript of the hearing.

Petitioner timely filed its proposed recommended order ("PRO") on May 26, 1998. Respondents timely filed their PROs on May 29, 1998.

FINDINGS OF FACT

1. Petitioner is the state agency responsible for issuing citations under Chapter 386. Respondents own an apartment complex located at 1202 Shadow Drive, Lakeland, Florida.

2. In the two weeks preceding December 29, 1997, Respondents received complaints from several tenants regarding an overflowing sewer system in their rental units. On December 29, 1997, Respondents responded to the complaints by pumping sewage from the dosage chamber in the septic tank onto a vacant lot adjacent to the apartment complex.

3. On December 30, 1997, Petitioner received a complaint that sewage was being discharged onto the neighboring lot of the apartment complex. Petitioner inspected the site on December 30, 1997, and advised Respondent, Shirley Crawford, and an employee named "Fred" that it was illegal to dump untreated sewage onto the open ground.

4. Petitioner ordered them to immediately turn off the pump so that no more sewage could be discharged onto the adjacent lot.

   Respondent, Shirley Crawford, failed to respond immediately to the order. Respondents were unwilling to cooperate with Petitioner. Petitioner issued a citation to Respondents for violating Section 386.041.

5. Although Respondents did unplug the pump later that same day, the pump was reset to work through the night. They continued pumping discharge onto the adjacent lot during the following day.

6. Petitioner received another complaint on January 5, 1998, alleging that the septic tank at the same address was discharging from the tank onto the ground surrounding the rental units. Petitioner inspected the site.

7. The drain field was breaking out. A probe placed into the drain field verified that the discharge on the ground was coming from the septic tank.

8. It was determined that there was a hole in the drain field. Furthermore, a PVC pipe used to drain the system on December 30, 1997, had not been removed from the system as required on December 30, 1997. A second citation was issued for violating Chapter 386.

9. As part of the citation, Petitioner instructed Respondents to pull a permit by the following week to repair the system so that they could accommodate the needs of the apartment complex. Respondents pulled a permit within the following week. However, they failed to repair or replace the septic system according to the specifications and requirements of the permit. Respondents failed to supply Petitioner with a schedule for pumping sewage out of the tank until the system was repaired according to the specifications and requirements of the permit.

10. The work Respondents performed on the system was completed on March 15, 1998. Respondents modified the faulty system by covering or plugging pipes leading into the faulty

    system from another older system. It took approximately 45 minutes to one hour to plug these pipes.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1). The parties were duly noticed for the administrative hearing.

12. Petitioner has the burden of proof in this proceeding.

    
    

    Petitioner must show by a preponderance of the evidence that Respondents violated relevant provisions in Chapter 386.

13. Petitioner satisfied its burden of proof. Under the provisions of Section 386.01, a "sanitary nuisance" is defined

    as:

    
    

    . . . the commission of any act, by an individual,. . . . or the keeping, maintaining, propagation, existence, or permission of anything, by an individual,. . . 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.

    
    

    Under the provisions of Section 386.041, a "nuisance injurious to health" includes improperly built or maintained septic tanks, water closets, or privies.

14. Respondents rented housing units located in a residential area of Lakeland. When Petitioner investigated this

    area on December 30, 1997, there was an open discharge of sewage onto a vacant lot adjacent to the apartment complex.

15. Petitioner warned Respondents that it was illegal to discharge sewage in this manner. Petitioner ordered Respondents to immediately cease the discharge by turning off the pump.

16. The order from Petitioner was reasonable under the circumstances. Respondents were properly cited for violating

    386.041. The amount of $500 is also reasonable under the circumstances.

17. Petitioner also ordered Respondents to remove the PVC pipe that led from the tank to the adjacent lot. However, the pipe continued to be used to discharge effluent from the system.

18. Upon inspection on January 8, 1998, the PVC pipe had still not been removed from its connection with the dosage unit and septic tank. Petitioner properly issued a second citation to Respondents for continued violations of Section 386.041 on January 8, 1998. The amount of $500 is reasonable under the circumstances.

19. The citation for January 8, 1998, instructs Respondents to take further corrective action to correct the deficiencies in the current system. Respondents have failed to implement the prescribed corrective actions. Respondents may be subject to further citations in the event of further outbreaks or hazards resulting from the current system.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is,

RECOMMENDED that Petitioner enter a Final Order sustaining the two citations issued on December 30, 1997, and

January 9, 1998, imposing fines of $1,000, and denying the request to dismiss the citations.

DONE AND ENTERED this 2nd day of July, 1998, in Tallahassee, Leon County, Florida.

DANIEL MANRY

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 2nd day of July, 1998.

COPIES FURNISHED:

Wayne and Shirley Crawford 4732 Highway 98, North

Lakeland, Florida 33810

Roland Reis, Esquire Department of Health

1290 Golfview Avenue, 4th Floor Bartow, Florida 33830

Angela T. Hall, Agency Clerk Department of Health

1317 Winewood Boulevard

Building 6, Room 136

Tallahassee, Florida 32399-0700

Dr. James Howell, Secretary Department of Health

1317 Winewood Boulevard

Building 6, Room 306

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: 98-000706

Orders for Case No: 98-000706