STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

)

Petitioner, )

)

vs. ) Case No. 99-2639

)

SHANE WHITFIELD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was held in this case before Carolyn S. Holifield, Administrative Law Judge, Division of Administrative Hearings, on October 19, 1999, by telephone conference call between New Port Richey, Florida and Tallahassee, Florida.

APPEARANCES

For Petitioner: Barbara A. McPherson, Esquire

300 31st Street North, Suite 338 St. Petersburg, Florida 33713

For Respondent: No Appearance

STATEMENT OF THE ISSUES

Whether Respondent violated Rule 64E-6.003, Florida Administrative Code, by repairing a septic tank and/or drainfield without a permit and, if so, what penalty should be imposed on him.

PRELIMINARY STATEMENT

On May 18, 1999, the Pasco County Health Department issued a citation to Respondent, Shane Whitfield, for installing and/or repairing a septic tank and/or drainfield without a permit. The citation indicated that on April 16, 1999, an initial notice of violation had been issued to Respondent directing him to abate a sanitary nuisance.

Respondent contested the citation and requested a hearing. On June 14, 1999, the matter was forwarded to the Division of Administrative Hearings for assignment of an Administrative Law Judge to conduct the hearing.

At hearing, Petitioner, the Department of Health presented the testimony of one witness, Gregory Crumpton, an Environmental Specialist with the Pasco County Health Department and offered and had three exhibits received into evidence. Respondent failed to appear at hearing and no testimony or documentary evidence was presented on his behalf.

The proceeding was recorded but was not transcribed. The Department timely filed a Proposed Recommended Order. No post-hearing submittal was filed by or on behalf of Respondent.

FINDINGS OF FACT

1. Petitioner, the Department of Health (Department), is the state agency charged with administering and enforcing

   laws and rules relating to sanitation. Section 381.0011(4), Florida Statutes.

2. Respondent failed to appear at the duly-appointed time and place for the administrative hearing in this matter.

3. On April 22, 1999, Gregory Crumpton, Environmental Specialist with the Pasco County Health Department, responded to a sanitary nuisance complaint regarding Respondent's property located at 7111 Lofty Drive, Port Richey, Florida. Based on that complaint, on April 22, 1999, Mr. Crumpton inspected Respondent's property. His inspection revealed the presence of untreated or improperly treated human waste from an improperly maintained septic tank.

4. Based on his April 22, 1999, inspection of Respondent's property and his determination that the condition existing on Respondent's property constituted a sanitary nuisance, Mr. Crumpton issued an Official Notice to Abate a Sanitary Nuisance. The notice was left on Respondent's property. Moreover, on April 22, 1999, a copy of the notice was mailed to Respondent by certified mail. Respondent signed the return receipt acknowledging that he had received the notice.

5. On April 26, 1999, Mr. Crumpton received a second complaint from a neighbor of Respondent who reported that

   Respondent's septic tank was being repaired without a permit. Upon inspecting Respondent's property on April 27, 1999, Mr. Crumpton observed that repair work was being performed on Respondent's septic tank without a permit.

6. On April 27, 1999, Mr. Crumpton met with Respondent regarding the inspection and issued to Respondent a second Official Notice to Abate a Sanitary Nuisance, which was sent by certified mail. This notice was issued to Respondent because of the installation and/or repair to septic tank and/or drainfield without a permit.

7. The April 27, 1999, notice advised Respondent that his failure to secure a septic tank repair permit could result in his being fined up to $500.00 per day until he obtained the required permit.

8. Although Respondent was advised that he could be fined up to $500.00 per day for failing to secure a permit to repair his septic tank, as of May 18, 1999, Respondent had not secured the permit.

9. On May 18, 1999, Mr. Crumpton issued a citation alleging that Respondent had installed and/or repaired a septic tank and/or drainfield without a permit.

10. As of the date of the final hearing in this matter, October 19, 1999, Respondent had failed to secure a septic tank repair permit.

    CONCLUSIONS OF LAW

    
    

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

12. Petitioner, the Department of Health, is the state agency charged with administering and enforcing laws and rules relating to sanitation. Section 381.0011(4), Florida Statutes.

13. Pursuant to its authority, the Department is required to promulgate rules and to issue permits associated with the repair of on-site sewage treatment and disposal systems. Section 381.0065(3), Florida Statutes. That section provides in relevant part the following:

    1. DUTIES AND POWERS OF THE DEPARTMENT OF HEALTH.--The department shall:

       1. Adopt rules to administer ss. 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 for a residence or establishment with an estimated domestic sewage flow of 10,000 gallons or less per day, or an estimated commercial sewage flow of 5,000 gallons or less per day, which is not currently regulated under chapter 403.

14. Consistent with its rulemaking authority, the Department promulgated Rule 64E-6.003(1), Florida Administrative Code, which provides that no portion of an

    on-site 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 Form DH4016.

15. Section 381.0065(5)(b), Florida Statutes, authorizes the Department to issue citations that contain an order to correct or an order to pay a fine or both for violations of laws and rules related to the operation and maintenance of sewage treatment and disposal systems. That section provides in pertinent part the following:

    (b)1. The department may issue citations that may contain an order of correction or an order to pay a fine, or both, for violations of ss. 381.0065- 831.0067, part I of chapter 386, or part III or chapter 489 or the rules adopted by the department, when a violation of these sections or rules is enforceable by an administrative or civil remedy, or when a violation of these sections or rules is a misdemeanor of the second degree. A citation issued under ss.

    381.0065-381.0067, part I of chapter 386, or part III of chapter 489 constitutes a notice of proposed agency action.

    1. A citation must be in writing and must describe the particular nature of the violation, including specific reference to the provisions of law or rule allegedly violated.

    2. The fines imposed by a citation issued by the department may not exceed

    $500 for each violation. Each day the violation exists constitutes a separate violation for which a citation may be issued.

16. In the instant case, the Department has established by clear and convincing evidence that Respondent made or attempted to make repairs to his septic tank without first obtaining a permit for such repair.

17. The undisputed evidence also established that the although the Department issued a citation to Respondent advising him of the violation and allowing him time to secure a permit, he failed to comply.

18. Furthermore, the evidence established that the Department properly issued a second citation to Respondent after he failed to secure a septic tank permit.

Nonetheless, as of the date of the final hearing in this matter, Respondent had failed to obtain the required permit.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

RECOMMENDED that the Respondent be ordered to pay a fine in the amount of $500.00, obtain a septic tank repair permit, and effect repairs.

DONE AND ENTERED this 2nd day of December, 1999, in Tallahassee, Leon County, Florida.

CAROLYN S. HOLIFIELD

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of December, 1999.

COPIES FURNISHED:

Barbara A. McPherson, Esquire Department of Health

300 31st Street North Suite 338

St. Petersburg, Florida 33713

Shane Whitfield 7111 Lofty Drive

Port Richey, Florida 34668

Angela T. Hall, Agency Clerk Department of Health

2020 Capital Circle, Southeast Bin A02

Tallahassee, Florida 32399-1701

Pete Peterson, General Counsel Department of Health

2020 Capital Circle, Southeast Bin A02

Tallahassee, Florida 32399-1701

Dr. Robert G. Brooks, Secretary Department of Health

2020 Capital Circle, Southeast Bin A00

Tallahassee, Florida 32399-1701

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: 99-002639

Orders for Case No: 99-002639