STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHIRLEY DAVIS,

Petitioner,

vs.

DEPARTMENT OF HEALTH,

Respondent.

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) Case No. 02-1930

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RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal proceeding and hearing before P. Michael Ruff, duly-designated Administrative Law Judge of the Division of Administrative Hearings on July 17, 2002, in New Smyrna Beach, Florida. The appearances were as follows:

APPEARANCES

For Petitioner: No Appearance

For Respondent: John D. Lacko, Esquire

Department of Health

420 Fentress Boulevard Daytona Beach, Florida 32114

STATEMENT OF THE ISSUE

The issue to be resolved in this proceeding concerns whether the Petitioner violated the provisions of Chapter 381, Florida Statutes, and Chapter 64E-6, Florida Administrative

Code, referenced herein, by allegedly illegally connecting a second dwelling to an existing, approved septic system.

PRELIMINARY STATEMENT

This cause arose upon the issuance of Notices of Violation dated January 17, 2002, January 30, 2002, and February 28, 2002. The alleged violations concerned Section 381.0065(4), Florida Statutes, as well as Rules 64E-6.001(2) and (4), 64E-6.003,

64E-6.002, and 64E-6.004, Florida Administrative Code. In January 17, 2002, an agent for the Respondent, Noble Bielby, observed a second mobile home installed on property owned by the Petitioner. The second mobile home, according to Mr. Bielby, was illegally connected to the sewer connection for the Petitioner's original home on that lot. The Petitioner was notified that the connection was not authorized according to relevant law and would have to be disconnected and the new home not occupied. The Petitioner was again advised of this on January 30, 2002, and a recheck by the Respondent agency on February 28, 2002, found the subject sewer line re-connected to the second mobile home in issue. As the Respondent's inspector approached the home an individual ran out and disconnected the sewer connection once again. The citations were issued and the Petitioner elected to dispute material facts and to initiate a formal proceeding before the Division of Administrative

Hearings. The cause was ultimately assigned to the undersigned Administrative Law Judge for formal proceeding and hearing.

The cause came on for hearing as noticed on July 17, 2002. At the formal hearing the Respondent presented the testimony of Nobel Bielby, the inspector for the Respondent agency and introduced three exhibits which were admitted into evidence.

The Petitioner failed to appear at the hearing and after waiting in excess of one-half hour for the Petitioner to appear, the hearing was formally convened and the Respondent agency presented its case in chief. During the course of the hearing the Petitioner never appeared and has never contacted the undersigned Judge since that time with any showing of cause as to why the Petitioner failed to appear and advance its cause in the formal hearing. Subsequent to the hearing the Respondent elected to submit a Proposed Recommended Order which has been considered in the rendition of this Recommended Order.

FINDINGS OF FACT

1. On January 17, 2002, the Petitioner was given a written Notice of Violation and advised that an illegal sewer connection from a new or second mobile home on her property to her existing sewer system, serving her primary residence would have to be disconnected. It was an illegal second connection on a single, permitted sanitary sewer system. The second home was not

   occupied and could not be legally occupied until the proper sewer connection and relevant permitting was obtained.

2. On January 30, 2002, the inspector again visited the premises and determined the illegal connection to still exist and the Petitioner was then advised that the illegal connection would have to be disconnected. On February 28, 2002, the inspector returned and found that the illegal connection had been restored to the existing system. He observed a person hurriedly disconnect the system as he approached. The relevant pipe joint had been left un-glued so that it could be readily connected or disconnected. He again notified the Petitioner, in person, that the illegal connection would have to be disconnected.

3. The Respondent cited the Petitioner for the illegally connected sewer system and seeks to impose a $500.00 fine. The Petitioner elected to formally dispute the position of the Respondent agency and pursued a formal hearing to contest the allegations. The Petitioner failed to actually appear at hearing and contest the evidence adduced by the Respondent agency. That evidence is credible and is accepted as unrefuted and supportive of the above Findings of Fact.

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this

   proceeding. Sections 120.569 and 120.57(1), Florida Statutes (2001).

5. The Department of Health has the authority granted by Section 381.0065, Florida Statutes, to issue permits, inspect sites, issue citations and impose fines for violations of adopted rules which govern on-site sewage treatment and disposal systems and their installation and operation.

6. Section 64E-6.001(4), Florida Administrative Code, states in relevant part:

   Alterations that change the conditions under which the system was permitted and approved, sewage characteristics or increase sewage flow will require that the owner, or the authorized representative, apply for and receive re-approval of the system by the Department of Health, County Health Department, prior to any alteration of the structure, or system.

   
   

7. Section 64E-6.003(1), Florida Administrative Code, states in part:

   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 Form DH4016 . . .

   
   

8. A person or property owner who occupies a dwelling which has an illegal, un-permitted connection or suffers a dwelling on the permitted premises to be served by a sewage system, or portion thereof, which is not properly permitted and

   approved is subject to an Order of Correction and a fine in accordance with Section 381.01165(5), Florida Statutes. The fine may not exceed $500.00 for each violation. Each day of a violation constitutes a separate violation for which a citation may be issued. In the instant situation the Department observed the violations occurring on three different occasions and issued three citations. Nevertheless, it seeks to impose only a

   $500.00 fine.

   
   

9. In the instant situation the owner of the home in question was advised on January 17, 2002, that the additional residence on her lot was not an authorized septic tank sewer system connection and that the newly constructed portion of the sewer system, or septic system, was not approved to serve two dwelling units. She was advised that the additional home should be disconnected from the newly constructed septic system and should not be occupied.

10. The owner was advised by telephone on January 30, 2002, that the additional home had to be disconnected from the newly-constructed portion of the septic system and should not be occupied. The owner was advised that the newly constructed septic system was not approved to serve two dwelling units; further, that an application for existing septic system approval, specifying an additional dwelling unit, or an application for a new septic system construction permit for a

    septic system to serve the additional dwelling, should be filed with the Department. The owner disconnected the additional dwelling unit from the newly constructed septic system sometime prior to January 31, 2002.

11. The owner then re-connected the additional dwelling unit to the newly constructed septic system sometime before February 28, 2002. On February 28, 2002, the inspector observed the sewer line from the second or additional home again connected to the newly constructed septic system, with the circumstances found above. The inspector advised the owner herself that day that the violation had been observed and that a citation and fine would be forthcoming.

12. In the instant case the owner and permit holder of the original septic system who is the subject of the citation and proposed fine had repetitive warnings that the additional septic system connection was illegal and should be corrected. Those warnings were ignored and deliberately flouted. The regulatory scheme for residential septic systems, including the permitting regulations embodied in Chapter 381, Florida Statutes and Chapter 64E-6, Florida Administrative Code, are designed to ensure that septic systems are installed, function and operate properly, in a manner to allow sufficient, on-site treatment of human waste so as to prevent pollution and violation of water quality standards of surrounding waters, specifically, the

groundwater contained in the surficial aquifer and other related water bodies. Consequently, there is a great public interest in regulating the design, installation, construction, and operation of such septic sewage treatment systems in the interest of public safety. The Department is charged by statute, and the rules enacted pursuant to its statutory authority in this subject area, with uniformly enforcing the public health laws pertaining to this subject matter. Indeed, the Department has done so and issued the citations only after all other means of voluntary enforcement did not result in compliance with the referenced statute and rules. Accordingly, the evidence adduced by the Respondent being unrefuted and the penalty sought being amply justified in the circumstances, it is, therefore,

RECOMMENDATION

RECOMMENDED that a final order be entered by the State of Florida Department of Health denying the Petition of Shirley Davis in its entirety and that a final order be entered imposing a $500.00, fine for the violations described in the above Findings of Fact and Conclusions of Law.

DONE AND ENTERED this 16th day of September, 2002, in Tallahassee, Leon County, Florida.

P. MICHAEL RUFF 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 Clerk of the

Division of Administrative Hearings this 16th day of September, 2002.

COPIES FURNISHED:

Shirley Davis

140 West Putnam Grove Road Oak Hill, Florida 32759

John D. Lacko, Esquire Department of Health

420 Fentress Boulevard Daytona Beach, Florida 32114

R. S. Power, Agency Clerk Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701

William W. Large, General Counsel Department of Health

4052 Bald Cypress Way, Bin A02 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: 02-001930

Orders for Case No: 02-001930