STATE OF FLORIDA DEPARTMENT OF HEALTH DEPARTMENT OF HEALTH, BREVARD COUNTY > HEALTH DEAPRTMENT, | O- N33 Petitioner, VS, LEON MEACHAM and PATRICIA MEACHAM, Respondents. f ameter tt CN ADMINISTRATIVE COMPLAINT Petitioner, Florida Department of Health, Brevard County Health Department (‘Department’), through undersigned counsel and pursuant to Chapters 120, 381 and 386, Fla. Stat., and Chapter 64E-6 Florida Administrative Code brings this Administrative Complaint against Leon and Patricia Meacham (“Respondents”), owners of real property located at 809 Cardinal Road, Cocoa, Brevard County, Florida 32926 (“Property”), to request an order voiding any and all previously issued Onsite Sewage and Disposal Treatment System (‘OSDTS’) Permits for the above mentioned address thus requiring the Respondents to apply for and install a new OSDTS which must meet all current code requirements and impose an administrative fine of $12,000.00. The Department alleges: 1. Petitioner, Florida Department of Health/ Brevard County Health Department, is an agency of the State of Florida, charged with instituting administrative proceedings set forth in s. 381.0012, Fla, Stat., (2009) and 4o0f17 MEACHAM & CLARK LLC 5.381.0061, Fla. Stat., (2009), to protect the health or lives of individuals throughout the State of Florida. . Respondents, Leon and Patricia Meacham, are the owners of real property located at 809 Cardinal Road, Cocoa, Florida 32926. (“Property”). Parcel Id: 24-35-34-81-00000.0-0021.00. See attached Warranty Deed and Property Appraiser’s information attached hereto as Petitioner's Exhibit “A.” _ The Department of Health has jurisdiction over this action by virtue of Chapters 120, 381 and 386, Fla. Stat. (2009) and Florida Administrative Code 64E-6. _ On October 14, 2009, Department received a report fronvan employee of the Brevard County Code Enforcement that a homeowner was “reblocking” his septic system. The employee contacted the Department to inquire if the homeowner had obtained a repair permit for the work indicating that he thought that “reblocking” a septic tank was unusual activity and not normally approved by the Department. An inspection on October 14, 2009 of aforesaid property, pursuant to $.381 .0065(4) and 386.041(1)(b), Fla. Stat. (2009) and Chapter 64E-6,003(1), F.A.C., revealed the following: a. Respondents’ septic tank had been modified without a permit. “A person may not construct, repair, modify, abandon or operate an OSTDS without first obtaining a permit approved by the Department.” Chapter 64E- 6.003(1) F.A.C. and s. 381.0065(4) Fla. Stat. (2009). b. Respondents existing septic tank is improperly built and is currently being maintained in a manner dangerous to public health. 5 of 17 MEACHAM & CLARK LLC _ §.386.044()), Fla. Stat.(2009), provides: “The following conditions existing, permitted, maintained, kept, or caused by an individual, municipal organization, or corporation, governmental or private, shall constitute prima facie evidence of maintaining a nuisance injurious to health: (b) Improperly built or maintained septic tanks, water closets, or privies . Aseptic tank that has been improperly modified is a sanitary nuisance as defined by $.386.01, Fla. Stat. (2009). . Respondent has violated Chapters 381.0065 and 386.001 Fla. Stat. (2009), by the installation of concrete cinder blocks to the inside of their septic tank without a permit issued by the Department on the aforementioned property located at 809 Cardinal Way, Cocoa, Florida 32926. _ Pursuant to s.386.03 and 381. and 381.0061, Fla. Stat., on October 15, 2009 the Department notified Respondents that they were maintaining the above existing conditions on aforesaid property, in violation of the Florida Statutes and Florida Administrative Code. . The October 15, 2009 letter notified Respondents that failure to apply fora repair permit within eight (8) days of receipt of the letter could result in further enforcement action. A copy of the letter is attached hereto as Petitioner's Exhibit “B.”. 10. The Department also provided the Respondents two photographs that were taken on October 14, 2009 documentating the modification work being performed on the Respondents’ septic system without a permit. A copy of the photographs is attached hereto as Petitioner's Exhibit “C.” 6 of 17 MEACHAM & CLARK LLC 14. The Respondents did not submit a repair application in accordance with the timeline outlined by the Department in the October 15, 2009 letter. Therefore, on October 28, 2009 Department sent Respondents’ a Pre- Lawsuit Conference Notice. This notice again outlined the on-going violations of s. 381.0064(4) Fla. Stat. and 64E-6.003(1) “a person may not construct, repair, modify, abandon, or operate an OSDTS without first obtaining a permit by the Department.” 12. This correspondence advised the Respondents that their failure to comply would result in “an administrative fine of $100.00 per day against Leon and Patricia Meacham, homeowners for property located at 809 Cardinal Road, Cocoa, Florida 32926, until compliance is met.” 13.Further, the October 28, 2009 letter invited the Respondents to meet with the Department to discuss the on-going violations. A meeting was scheduled for November 9, 2009 at 9 am. A copy of the Pre-Lawsuit Conference Notice is attached hereto as Petitioner's Exhibit “D.” 14.A conference was held at 9 am on November 9, 2009 to discuss the on- going violations at the Respondents’ property. Respondents’ attomey, Darren Meacham, and Ben Elliot of Plata Engineering attended the conference for the Respondents. During the meeting several outcomes were discussed, including removal of the concrete blocks and applying for a permit to correct the violations. 15.On November 13, 2009, Department's Environmental Manager, Melissa Brock, sent a letter fo the Respondents’ attorney outlining the options 7 of 17 MEACHAM & CLARK LLC discussed at the conference on November 9, 2009. Those options included the following: a) b) c) qd) Removing all improperly installed concrete blocks while the Department is present to observe removal. Once removal is completed then a water tightness test must be performed as per Chapter 64E- 6.013(1) (b) 3. Apply for an existing system approval. The existing system approval would be denied by the Department because the system does not meet the current rule requirements. However, once the existing system application had been denied, Respondents’ would have the opportunity to apply for a variance and argue to the variance board their position and to see if approval would be granted that way. Apply for a repair permit with the Department and repair the system as outlined in the permit. The repair system application would be denied by the Department because the system does not meet the current rule requirements. However, once the repair system application had been denied, Respondents’ would have the opportunity to apply for a variance and argue to the variance board their position and to see ifa permit could be issued in accordance with their proposed system design. Apply for a new system permit and abandoned the existing septic system. 8 of 17 MEACHAM & CLARK LLC The letter required the Respondents’ to notify the Department no later then November 20, 2009 as to which option the Respondents have selected. A copy of the letter is attached hereto as Petitioners Exhibit “E.” 16. The November 20, 2009 deadline past and the Respondents’ did not inform the Department as to how they were going to correct their on-going violations. 17,Respondents’ attorney has expressed interest in removing the blocks and 18. performing the water tightness test. However, Respondents have indicated that they will only remove the blocks and perform the water tightness test if the Department agrees that if the tank fails the test the Respondents can 1) apply for a repair permit and 2) install a precast tank in the same location. The Department, in good faith, could not agree to that outcome. In issuing of a septic repair permit the Department is required to look at many documents including a repair application, existing system evaluation, water records and a site plan. Without the opportunity to review all the documents and understand the current conditions of the Respondents’ drainfield the Department could not agree to such a solution. Further, once the system was altered from the original permitted conditions, the approval was voided and only anew system permit could be issued. The Respondents’ have never submitted any documentation to the Department including an existing system evaluation, a repair application, a waiter tightness test, water records, a site plan or anything else that would help the Department evaluate the structural integrity of their septic tank, the 9 of 17 MEACHAM & CLARK LLC workings of their drainfield and determine whether or not the tank was leaking sewage into the ground and potentially contaminating the ground water supply and surrounding surface water bodies. 19.On February 4, 2010 Department sent 4 final letter to the Respondents’ attorney again advising the attorney that these violations remained outstanding, that the November 20, 2009 deadline past with no word from Respondents and that additional legal and administrative action would commence forthright. A copy of this letter is attached hereto as Plaintiff's Exhibit “F.” 20. The Respondents remain in violation of the Florida Statutes and-Florida Administrative Code. Chapter 84E-6.003(1) of the F.A.C. “no portion of an OSTDS shall be installed, repaired, altered, modified, abandoned or replaced until an OSTDS permit has been issued.” It is the contention of the Department that the Respondents’ modified the conditions of their septic system by installing the concrete blocks into the walls of the tank. This work was done without a permit, an inspection by the Department, or by a licensed contractor. The Department has no knowledge as to the current structural integrity of the Respondents’ septic system and has no way to verify that sewage is not seeping out of tank contaminating the ground water and surrounding surface water bodies. 21.$.381.0061(1), Fla. Stat. (2009), provides: The Department may impose a fine, which shall not exceed $500.00 for each violation, for a violation of s. 381. 0065 Fla. Stat. or for any violation of any rule adopted under this chapter, or for 10 of 17 MEACHAM & CLARK LLC a violation of any of the provision of chapter 386. Each day that a violation continues may constitute 4 separate violation. 22. As of February 24, 2010, Respondents still unlawfully maintain the above existing conditions on aforesaid property. Further, the Respondents still use the existing OSTDS on daily basis. 23.Respondents are hereby notified that the Department is requesting an order voiding any and all OSTDS permits previously issued to the Respondents at 809 Cardinal Road, Cocoa, Florida 32940, thus requiring the Respondents to apply for and install a new OSDTS at their property pursuant to Chapter 64.6.003(4) F.A.C. 24. Respondents are further hereby notified that the Department is requesting an order imposing an administrative fine of $12,000.00, pursuant to §.381,0061 (1), Fla. Stat. (2009). 25. Pursuant to $.120.57, Fla. Stat.(2009), Respondent has a right to request an administrative hearing, to be represented by counsel or other qualified representative, to take testimony, to call and cross-examine witnesses, to have subpoena and subpoena duces tecum (production of records) issued, and to present written evidence or argument if you request a hearing. 26. (1) Any hearing request or answer to this administrative complaint shall be made in writing and the response should include the following: (a) An admission or denial of each factual matter alleged in the complaint. (b) Ashort and plain statement of each relevant affirmative defense the Respondents may have. 11 of 17 MEACHAM & CLARK LLC (2) Except for good cause: (a) Factual matters alleged in this complaint and not denied in the Request for hearing shall be presumed admitted. (b) Failure to raise a particular defense in the Request for Hearing will be considered a waiver of such defense. (3) Any new matter raised in the Request for Hearing shall be presumed to be denied by the Department. (4) Evidence shall not be taken on any issue not raised in the administrative complaint and the Request for Hearing. 27. The Respondent is given full notice of this agency action. Unless a request for a hearing is received within thirty (30) days of receipt of this complaint, the Department will issue 4 Final Order. 28. Hearing request shall be mailed to: Sam Power, Agency Clerk for the Department of Health, 4052 Bald Cypress Way, Bin #A02, Tallahassee, Florida 32399-1703 Respectully submitted on the 25° day of February 2010, , A Lennore Satkowski Turcotte, Esquire Senior Legal Counsel Florida Department of Health Brevard County Health Department 1601 Lake Ellenor Dr. Orlando, Florida 32809 (407) 858-1400 Office (407) 858-5516 Facsimile 12 of 17 MEACHAM & CLARK LLC CERTIFICATE OF SERVICE | HEREBY CERTIFY that a true and correct copy of the foregoing has been sent to Leon and Patricia Meacham, owner of property located at 809 Cardinal Road, Cocoa, Florida 32926 by U.S. Certified Mail and Respondents’ Attorney, Darren G. Meacham, Meacham & Clark, LLC, 7025 N. Wickham Road, Suite 113B, Melbourne, Florida 32940-7535 on this 25 day of February 2010. Sa Se 1 me // Lénnore Sat Esquire kowski Turcotte 13 of 17 MEACHAM & CLARK LLC DEPARTMENT OF HEALTH, BREVARD COUNTY HEALTH DEPARTMENT, PETITIONER, vs. LEON MEACHAM And PATRICIA MEACHAM RESPONDENT, RESPONDENTS’ ANSWER TO ADMINISTRATIVE COMPLAINT DATED FEBRUARY 25, 2010 AND REQUEST FOR ADMINISTRATIVE HEARING Respondents LEON & PATRICIA MEACHAM, by and through the undersigned counsel, hereby submits its ANSWER, AFFIRMATIVE DEFENSES, AND REQUEST FOR ADMINISTRATIVE HEARING in response to petitioner’s administrative complaint, together with the attached exhibits. Respondents hereby request a final hearing pursuant to Rule 28- 106 PART TWO INVOLVING DISPUTED ISSUES OF MATERIAL FACT, 1. The events that give rise to the complaint pertain to the above respondents’ residence located at 809 Cardinal Rd. Cocoa, Fl. 32926 having a Brevard County property Identification Number of 24-35-34- 81-00000.0-0021.00. 2. All papers are requested to be served to the undersigned, at the firm of Meacham & Clark LLC, 7025 N. Wickham Rd. Suite 113B, Melbourne, Fl. 32940, 3. The respondents dispute many of the factual allegations in the complaint, and hereby respectfully moves for a hearing. 4. As a threshold matter, petitioner’s complaint fails to set forth, and misstates, a significant amount of the events and communications which gave rise to the complaint. 5. With respect to the Petitioner’s complaint, Respondents offer the following responses corresponding to each of Petitioner’s numbered allegations: 14 of 17 1 MEACHAM & CLARK LLC 1) Respondents admit that the Florida Department of Health is an agency of the state of Florida. Without knowledge as to the remainder and therefore, DENIED. 2) Respondents admit that they are the owners of real property located at 809 Cardinal Road, Cocoa Florida 32926, any remainder DENIED. 3) Respondents are without knowledge and therefore DENIED. 4) Respondents are without knowledge and therefore DENIED. 5) Florida Statutes speak for themselves, any remainder DENIED. 6) DENIED. 7) DENIED. 8) Respondents admit to receiving some of the notifications. Any remainder DENIED. 9) DENIED. 10) DENIED. 11) RESPONDENTS admit that they never submitted a repair application. Any remainder, DENIED. 12) DENIED. 13) Admitted that a pre-lawsuit conference was arranged and did occur. Any remainder, DENIED. 14) Ben Elliot and Darren Meacham did attend a pre-lawsuit conference. Any remainder, DENIED. 15) DENIED. 16) DENIED. 17) . RESPONDENTS admit that many measures were proposed in an attempt to resolve the dispute. Any remainder, DENIED. 18) DENIED. 19) DENIED. 20) DENIED. 21) Florida Statutes speak for themselves. Any remainder DENIED. 22) DENIED. 23) Not an allegation and no response is required. 24) Not an allegation and no response is required. 25) Not an allegation and no response is required. 26) Not anallegation and no response is required. 27) Not an allegation and no response is required. 28) Not an allegation and no response is required. FIRST AFFIRMATIVE DEFENSE The petitioner's administrative complaint fails to state a claim on which 15 of 17 MEACHAM & CLARK LLC rm relief can be based. SECOND AFFIRMATIVE DEFENSE Petitioners have, at all times, made a good faith compliance with all applicable statutes and ordinances. THIRD AFFIRMATIVE DEFENSE Petitioner is not entitled to the relief requested. FOURTH AFFIRMATIVE DEFENSE ESTOPPEL. Petitioner’s various, unbearably egregious statements, bureaucratic ineptitude, indifference, dishonesty, illegality, and misconduct wrongly attempts to inflict. severe economic consequences against Petitioner. FIFTH AFFIRMATIVE DEFENSE The parties reached a settlement agreement and petitioner's are in breach. Respectfully submitted, Darren G. Meacham Meacham & Clark, LLC 7025 North Wickham Rd. Suite 113-B Melbourne, Florida 32940 (321) 274-3103 (321) 253-2322 Fax Fla. Bar No. 772461 USPTO Reg. No. 55789 Attorney for the Firm 16 of 17 MEACHAM & CLARK LLC ERTIFICATE OF SERVICE CERTIFICATE OF 5th I CERTIFY THAT A TRUE AND CORRECT COPY OF THE ABOVE AND FOREGOING HAVE BEEN FURNISHED TO BY FIRST CLASS MAIL ON THE 10th DAY OF APRIL 2010, ADDRESSED AS: Sam Power Agency Clerk for the Department of Health 4052 Bald Cypress Way, Bin #A02 Tallahassee Florida 32399 FAX (850) 410-1448 Lennore Turcotte Florida Department of Health 1601 Lake Ellenor Dr. Orlando Florida 32809 au Darren G. Meacham 17 of 17 MEACHAM & CLARK LLC

Docket for Case No: 10-002336