The Issue The issue in this case is whether the Department of Environmental Protection (DEP) should issue a permit to Out of Bounds, Inc. (Out of Bounds, or applicant), to construct, operate, and close a construction and demolition debris disposal facility (C&D facility) in Hernando County.
Findings Of Fact On September 8, 2008, Out of Bounds applied to DEP for a permit to construct, operate, and close an unlined C&D facility on 26 acres located at 29251 Wildlife Lane, Brooksville, Hernando County, Florida, to be known as the Croom C&D Debris Landfill and Recycling Facility. There were four requests by DEP for additional information, which was provided, and the application was complete on September 3, 2009. In 1994, a previous owner of the property was issued a permit to construct, operate, and close an unlined C&D facility on the property. That owner did not proceed with construction, and the permit expired in 1999. The Out of Bounds application was for a new permit, not for the renewal of an existing permit. Robert McCune owns property adjacent to the proposed C&D facility. He and his wife reside on the property, keep horses in stables on the property, and use the property for horseback riding business, which includes hosting public horseback riding events. Hernando SSK was formed by David Belcher and one or more others to continue the business being operated by Paige Cool when she died during this proceeding. The business is conducted on ten acres of property Cool owned approximately one mile west of the proposed C&D facility. Belcher is one of two co-personal representatives of Cool’s estate. Belcher and his wife hold a mortgage on the property. When the estate is finalized, the Belchers plan to assign their mortgage to Hernando SSK. It is not clear who will own the property after the estate is finalized, or how Hernando SSK will be authorized to continue the business on the property. Western pleasure and trail-riding horses are boarded on the Cool property, which is known as At Home Acres. The business also has access to 20 adjoining acres to the east, which are used for grazing. Access to the horseback riding trails in the Withlacoochee State Forest is conveniently located just across Wildlife Lane from the property, to the north. A manager resides in a double-wide trailer on the property, and another trailer and a barn to the east of it are leased out. There is a potable water well on the property, which is the source of drinking water for the manager and lessees. Well Setback In the application process, Out of Bounds disclosed two potable water wells within 500 feet of the proposed landfill disposal area. The application provided that those wells would be converted to non-potable use. Out of Bounds did not disclose the existence of a third potable water well, on property owned by Daniel Knox, which is within 500 feet of the proposed landfill disposal area. When the Knox well was brought to the attention of DEP, Out of Bounds admitted that the well was permitted for potable use but took the position that it was not for potable use because it was not in use, was not connected to a source of electricity, and appeared to be abandoned. Daniel Knox and his brother, Robert Knox, had the Knox well dug and permitted in 1979 in anticipation of using it as the source of potable water for a residence to be built on the property for their parents and sister. The Knoxes have not yet built a residence on the property, but it still is their intention to do so and to use the well as the source of potable water. Since its construction, the well had been maintained and operated periodically using a gasoline-powered generator so that it will be ready for use when needed. During the application process, Out of Bounds also did not disclose the existence of a fourth potable water well within 500 feet of the proposed landfill disposal area on property once owned by Larry Fannin and now owned by his daughter and son-in- law, Robert McCune. The McCune well was permitted and installed in mid-2005 while the sale of the land from Fannin to the McCunes was pending. The intended purpose of the well was to provide potable water for the use of the McCunes when they started to reside on the property. Despite this intent, and unbeknownst to the McCunes, Fannin had the well permitted as an irrigation well. In mid-2008, the McCunes began to reside on their property. At first, they resided in a mobile home. They ran pipes from the well to the mobile home to provide drinking water. Eventually, later in 2008, they began construction of a residence on the property and ran pipes from the well to the house to provide drinking water to the house. The well was being used for drinking water before the Out of Bounds application was complete. (They also use water from the well from time to time for irrigation purposes--i.e., when they host horseback-riding events on weekends, they truck water from the well to their horseback-riding arena to apply to the ground to control dust.) Groundwater flows from the disposal area of the proposed landfill to the west and southwest. The Knox and McCune wells are down-gradient of the groundwater flow from the proposed disposal area. Out of Bounds represented at the hearing that it would accept a permit condition that no C&D debris, but only clean debris, would be disposed within 500 feet of the Knox and McCune wells. See Fla. Admin. Code R. 62-701.200(15)-(16) and (24). However, there was no evidence of new designs, plans, or operations that would be used to meet such a permit condition. Liner and Leachate Collection Existing unlined C&D facilities in the Southwest District report various parameters that exceed groundwater quality standards and criteria. These include arsenic, benzene, iron, aluminum, nitrate, ammonia, vinyl chloride, methylene chloride, 3- and 4-methyl phenols, sulfate, and total dissolved solids (TDS). Arsenic and benzene are primary (health-based) groundwater quality standards. The others are secondary standards that relate to taste, odor, and aesthetics. The likely source of the reported arsenic violations in the Southwest District is wood treated with chromate copper arsenate (CCA). See Fla. Admin. Code R. 62-701.200(11). Out of Bounds proposes to not accept CCA-treated wood and to use a trained “spotter” to exclude CCA-treated wood from the landfill. This is an appropriate measure to prevent arsenic violations, and is now required for C&D facilities. See Fla. Admin. Code R. 62-701.730(7)(d), (8), and (20). It was not clear from the evidence whether the C&D facilities in the Southwest District with arsenic violations accepted CCA-treated wood. Even if they did, the operational plan proposed by Out of Bounds to exclude CCA-treated wood and to use a trained spotter is not a guarantee that no CCA-treated wood will enter the landfill. A C&D facility would not be expected to dispose of material that would result in benzene contamination. The reported benzene violations suggest that unauthorized material contaminated with benzene nonetheless makes its way into C&D facilities in the Southwest District. The evidence was not clear whether a trained spotter was used at those facilities. Whether or not a spotter was used at those facilities, having a trained spotter would not guarantee that no benzene-contaminated material will enter the landfill proposed by Out of Bounds. Out of Bounds suggested that ammonia violations result from C&D facilities accepting yard trash. However, there was no evidence of a connection between acceptance of yard trash and ammonia violations. The operational plan proposed by Out of Bounds to “cover as you go” is the accepted best practice to control hydrogen sulfide odor, which comes from wet drywall. Out of Bounds suggested that its cover plan would prevent any sulfate violations, but there was no evidence to prove it. There was no evidence as to whether the C&D facility proposed by Out of Bounds would be substantially different from the other existing C&D facilities in DEP’s Southwest District. Absent such evidence, Out of Bounds did not provide reasonable assurances that its proposed facility would not cause groundwater quality violations. The site for the C&D facility proposed by Out of Bounds is internally drained. There are no surface waters onsite or within a mile of the site. There was no evidence of a surficial aquifer above the Floridan aquifer. Rainfall entering the Out of Bounds property migrates downward into the Floridan aquifer. Once in the aquifer, there is a horizontal component of groundwater water flow in a generally southwest direction, towards the Knox and McCune wells. Contaminated leachate from the proposed C&D facility would migrate with the groundwater. Out of Bounds suggests that a thick clay layer under the site of its proposed facility would prevent the downward migration of groundwater into the Floridan aquifer. There are several reasons why the clay layer does not provide the reasonable assurance of a liner that contamination from the proposed landfill would not reach the Floridan aquifer. Clay is much more permeable than a geomembrane meeting DEP’s specifications for use as a liner. The clay on the proposed site is on the order of at least a thousand times more permeable. (Out of Bounds appeared to confuse the permeability of such a geomembrane with the allowable permeability of the geosynthetic clay layer or compacted clay layer underlying the geomembrane. Cf. Fla. Admin. Code R. 62-701.730(4)(f).) In the application process, Out of Bounds relied on the clay layer for purposes of sinkhole prevention and mitigation, not for reasonable assurance that no liner was needed. The limestone formation underlying the site is highly variable, with numerous pinnacles; for that reason, the thickness of the clay layer also is highly variable, making it difficult to excavate the proposed landfill with complete assurance that the clay layer would not be penetrated. To provide reasonable assurance for purposes of sinkhole prevention and mitigation, Out of Bounds proposed to leave or create a clay layer at least six feet thick underlying the bottom of the proposed landfill. Because the site is in an area of high recharge to the Floridan aquifer and drains entirely internally, the clay layer alone does not provide reasonable assurance that there will be no downward migration of contaminated groundwater to the Floridan aquifer. Reasonable assurance requires a liner and leachate collection system.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DEP deny the application for a C&D facility made by Out of Bounds. DONE AND ENTERED this 8th day of December, 2011, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of December, 2011. COPIES FURNISHED: Ronda L. Moore, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Stop 35 Tallahassee, Florida 32399-3000 John R. Thomas, Esquire Law Office of John R. Thomas, P.A. 233 Third Street North, Suite 101 St. Petersburg, Florida 33701-3818 Timothy W. Weber, Esquire Battaglia, Ross, Dicus & Wein, P.A. Post Office Box 41100 St. Petersburg, Florida 33743-1100 Herschel T. Vinyard, Jr., Secretary Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Stop 35 Tallahassee, Florida 32399-3000 Thomas Beason, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Stop 35 Tallahassee, Florida 32399-3000 Lea Crandall, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Stop 35 Tallahassee, Florida 32399-3000
The Issue Whether a septic tank permit, should be granted for lot 2, Whispering Oaks Subdivision. More specifically, does the' requirement of no more than four lots per acre require a minimum lot size of 1/4 acre? In the alternative, must the subject lot be grouped with three contiguous lots to determine whether the density requirement is met? If a permit should be denied, is a variance appropriate under HRS' rules and the circumstances of the case?
Findings Of Fact The essential facts in this case are uncontroverted. Ben F. Ward is the President and sole stockholder of Ben Ward, Incorporated. His business for over eighteen years has been real estate, construction and development. He has built over 300 homes and is familiar with the procedures for developing a subdivision, including obtaining septic tank permits. In 1979, Ben Ward purchased the property now designated Whispering Oaks Subdivision, located in the City of Oviedo, Seminole County, Florida. The property contains approximately six acres, net. That is, the paved right of ways have been disregarded. There are no streams, lakes or other bodies of surface water on the property. Ward subdivided his property into 26 lots, two of which, lots number 12 and 17, are dedicated for recreational use and will not have homes. Some of the lots are less than 1/4 acre; others are more. Lot number 2 has 9,137 square feet, 1,753 square feet less than 1/4 acre. As a condition of plat approval, the City of Oviedo required Ward to obtain approval from the Seminole County Health Department. Val Roberts was the county health officer with whom Ward consulted. A process was devised for "borrowing" acreage from lots of over 1/4 acre to meet the minimum requirements for lots less than 1/4 acre. In other words, it was determined that the total net acreage in the subdivision would be considered in computing the four lots per acre minimum. The plat was approved and was recorded in 1980. Between 1981 and 1987, 19 residences were built and septic tank permits were obtained. There is city water service in the subdivision. In 1985, Ward sold 16 lots to the Erie Land Company, a partnership comprised of Mary Ellen Hines and her husband. In reliance on the arrangement worked out with the health department, Ward assured ELC that the lots were buildable. He remained trustee of the property. On February 26, 1987, the Seminole County Health Department (HRS) denied Ward's application for a septic tank permit for lot number 2, including a 3-bedroom, 2-1/2-bath home, comprising 2100 square feet. The denial letter cites rule 10D-6.46(7)(b), F.A.C., and says "Four lots grouped together lack approximately 3000 square feet of meeting the required lot size...". The letter provides the procedure for petition for a variance to Rule 10D-6, F.A.C. Ward applied for the variance, and its approval was recommended by a vote of 3-2 by the HRS Review Group for Individual Sewage Disposal. The recommendation was denied by the HRS State Health Officer, E. Charlton Prather, M.D. in a letter dated May 7, 1987 which states, in pertinent part: Grouping of lots to determine whether the subdivision meets the four lot per acre requirement must be done in a logical manner to maximize the homogenous dissemination of sewage effluent or prevent a concentration of sewage effluent in a small or limited area. Once a specific area is utilized in calculating sewage flow dispersal for a group of lots, that area cannot be further used for another lot or group of lots. Lot number 2 meets all requirements of HRS for septic tanks, with the exception of the density methodology. Ward surveyed the homes built and occupied for approximately a year and found that the subdivision as a whole is about 60% of allowable capacity. Ms. Haynes has lived on lot number 22 for six years and has never had septic tank problems. She holds an inactive real estate license, and before purchasing the property found the subdivision high and dry and well-developed.
Recommendation Based on the foregoing, it is, hereby RECOMMENDED: That the application for septic tank permit for lot 2, Whispering Oaks subdivision, be GRANTED. DONE and RECOMMENDED this 18th day of February, 1988, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of February, 1988. COPIES FURNISHED: Ben F. Ward, Jr. Ben Ward Agency, Inc. P. O. Box 670 Oviedo, Florida 32765 John A. Baldwin, Esquire Baldwin & Baum 7100 S. Highway 17-92 Fern Park, Florida 32730 James A. Sawyer, Jr., Esquire HRS District 7 Legal Counsel 400 W. Robinson St., Suite 911 Orlando, Florida 32801 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Suite 407 Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, Esquire Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Respondent committed the violations as set forth in the Citation for Violation, Onsite Sewage Program/Sanitary Nuisance dated April 28, 2000.
Findings Of Fact Petitioner is authorized and given the jurisdiction to regulate the construction, installation, modification, abandonment, or repair of onsite sewage treatment and disposal systems, including drainfields, by septic tank contractors. At all times material hereto, Respondent was a registered septic tank contractor and, as such, he was authorized to provide septic tank contracting services, including the installation and repair of drainfields. On or about November 2, 1995, Petitioner issued a permit (Permit No. RP648-95) to Wilmar Rodriguez for the repair of a septic tank system at 417-421 Perry Avenue, Greenacres, Florida. The property was a triplex, which was purchased by Mr. Rodriquez in 1981. Mr. Rodriguez has no knowledge as to whether any drainfields were installed or replaced on the property, prior to 1981. The Permit included the installation of a new multi- chambered septic tank, a dosing tank, a lift station, and a new drainfield. The Permit was also for a filled system and called for the drainfield to be 700 square feet. Respondent was indicated as the "agent" on the Permit. Respondent and/or his employees performed the work under the Permit. Respondent was the septic tank contractor for the repair of the septic tank system under the Permit. On November 9, 1995, the construction of the septic tank system was approved by one of Petitioner's inspectors, who was an Environmental Specialist I. Petitioner's inspectors are not present during the entire construction or repair of a septic tank system or drainfield. Usually, inspections are made after the completion of the construction or repair of the septic tank system. Additionally, the inspection of a drainfield is usually performed after the rock has been placed on top of the drainfield. On February 2, 1996, the same inspector performed the inspection after the completion of the construction of the septic tank system, including after the placing of the rock on top of the drainfield. Even though the Permit reflects a filled system, the filled/mound system section on the inspection sheet was crossed out. The inspector considered the system to be a standard system, not a filled or mound system, and, therefore, inspected it as a standard system. In inspecting a drainfield, the inspection by an inspector includes checking to ensure that a drainfield has 42 inches of clean soil below the drainfield. An inspector uses an instrument that bores down through the rock and brings up a sample of the soil, which is referred to as augering. Augering is randomly performed at two locations. For the instant case, the inspector performed the augering in two random locations of the drainfield, which were in the area of the middle top and the middle bottom. The samples failed to reveal anything suspect; they were clean. On February 2, 1996, the inspector issued a final approval for the septic tank system. Final approval included the disposal of "spoil" and the covering of the septic tank system with "acceptable soil". The inspector mistakenly inspected the system as a standard system. He should have inspected the system as a filled system.1 After the repair and installation of the septic tank system by Respondent, Mr. Rodriguez continued to have problems with the septic tank system. He contacted Respondent three or four times regarding problems with the system, but the problems persisted. Each time, Respondent was paid by Mr. Rodriguez. Sewage water was flowing into the street where the property was located and backing-up into the inside of the triplex. Having gotten no relief from Respondent, Mr. Rodriguez decided to contact someone else to correct the problem. Mr. Rodriguez contacted Richard Gillikin, who was a registered septic tank contractor. On October 14, 1999, a construction permit was issued to Mr. Rodriguez for the repair of the septic tank system. Mr. Gillikin was indicated as the agent. Mr. Gillikin visited the property site of the triplex and reviewed the problem. He determined that the drainfield was not properly functioning, but he did not know the cause of the malfunctioning. With the assistance of Petitioner's inspectors, Mr. Gillikin and Mr. Rodriguez attempted to determine the best method to deal with the problem. After eliminating options, Mr. Rodriguez decided to replace the drainfield. To replace the drainfield, Mr. Gillikin began excavating. He began removing the soil cover and the rock layer of the drainfield. Mr. Gillikin also wanted to know how deep he had to dig to find good soil. After digging for that purpose and for 10 to 12 inches, he discovered a drainfield below Respondent's drainfield. The drainfield that Mr. Gillikin discovered was a rock bed 12 inches thick in which pipes were located and, as indicated, 10 to 12 inches below Respondent's drainfield. Mr. Gillikin also dug a hole two to three feet deep, pumped the water out of the hole, and saw the old drainfield. Mr. Gillikin determined that the old drainfield extended the full length of Respondent's drainfield. As a result of Mr. Gillikin's determining that the old drainfield was below Respondent's drainfield, both drainfields had to be removed and the expense of a new drainfield increased. Leon Barnes, an Environmental Specialist II for Petitioner, who was also certified in the septic tank program, viewed the drainfield site. He determined that the old drainfield was below Respondent's drainfield and that, therefore, Respondent had not removed the old drainfield. On or about November 6, 1999, Mr. Barnes' supervisor, Jim Carter, and co-worker, Russell Weaver, who is an Engineer, also visited the drainfield site. Mr. Weaver determined that the old drainfield covered a little more than 50 percent of the area under Respondent's drainfield. On November 8, 1999, a construction inspection and a final inspection of the system installed by Mr. Gillikin were performed. The system was approved. Respondent admits that a new drainfield is prohibited from being installed over an old drainfield. However, Respondent denies that he installed a new drainfield over the old drainfield on Mr. Rodriguez's property. In 1995, Respondent failed to completely remove the old drainfield before he installed the new drainfield. The soil and rocks from the old drainfield, which was not functioning, were contaminated spoil material. Because the old drainfield was not completely removed, the contaminated spoil material remained in the drainfield and was used as part of the material in the installation of the new drainfield. Leaving the contaminated spoil material in the new drainfield, prevented the sewage water from being able to percolate through the ground, which is a method of cleansing the sewage water. Without being able to percolate through the ground, the sewage water remained on the surface of the drainfield, creating a serious sanitary nuisance and health hazard. The sewage water spilled onto the street and backed-up into the triplex. Respondent was issued a Citation for Violation, Onsite Sewage Program/Sanitary Nuisance by Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Palm Beach County Health Department, enter a final order: Affirming the Citation for Violation, Onsite Sewage Program/Sanitary Nuisance and finding that Noel Sanfiel violated Section 381.0065, Florida Statutes (1995), and Rule 10D- 6.0571(4), now Rule 64E-6.015(6), and Rule 10D-6.0751(1)(l)1, now 64E-6.022(1)(l)1, Florida Administrative Code. Imposing a fine of $500. DONE AND ENTERED this 13th day of February, 2001, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 13th day of February, 2001.
The Issue Whether Petitioner was wrongfully denied general permits to construct an extension to a public water supply distribution system and to construct a waste water treatment system at a camp being constructed by Petitioner.
Findings Of Fact On December 11, 1991, the Department of Environmental Regulation (DER), Ft. Myers office, received applications from the Orange Blossom Baptist Association, Petitioner, submitted by its project engineer, for general permits to install an extension to provide water to, and construct a waste water treatment facility for, a camp being built by Petitioner. These applications were reviewed by the Respondent, and on January 2, 1992, James Oni telephoned Petitioner's engineer to tell him the applications were incomplete and additional information was required. Some of this additional information was submitted by Petitioner on January 7, 1992, but the word "vertical" was left out of the application to indicate what the 18 inch separation of the water and sewer lines represented; no pump out was provided for the lift station; the flotation formula as submitted contained a typographical error where an "s" was substituted for a "5", leaving the calculation of storage capacity of the system indeterminable; the lift station was only 4.5 feet deep and should normally be 10 feet; the configuration of the sump to insure solids would settle to the bottom was not provided, nor was the amount of concrete to be used to obtain this configuration shown; and the type of equipment to be used was not clearly shown. In summary, when submitted the application was not technically correct, and it remained technically incorrect after the additional information was submitted by the applicant. General permits are required to be processed by DER within 30 days of their receipt, and if not denied within that 30 day period they must be approved regardless of their compliance with the statutes and regulations.
Recommendation It is recommended that a Final Order be entered denying Orange Blossom Baptist Association general permits to install a waste water treatment facility and to construct an extension to a public water supply distribution system in Highlands County, Florida. ORDERED this 6th day of May, 1992, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 1992. COPIES FURNISHED: William N. Clark, P.E. 233 E. Park Avenue Lake Wales, FL 33853 Francine M. Ffolkes, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Carol Browner Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue The issues are (1) whether Respondent violated Chapters 381, 386, and 489, Florida Statutes; and if so, (2) whether Respondent is subject to an administrative fine; and if so, (3) what penalty should be imposed.
Findings Of Fact At all times material to this proceeding, Petitioner was registered with Respondent as a septic tank contractor, under the authorized name of LA Ford Septic Tank. As of March 1, 1995, single compartment septic tanks must be used in series or in conjunction with a outlet filter which has been approved by Respondent. An outlet filter is designed to prevent solid wastes from reaching the drainfield of a septic system. Removal of an outlet filter will cause the premature failure of a drainfield system and create a potential sanitary nuisance. In September of 1996, Rita Haynes contracted with Petitioner for the installation of a septic system for her mobile home. The system received construction approval from the Suwannee County Health Department on September 5, 1996. At that time, the outlet filter was attached to the system. On September 12, 1996, the Suwannee County Health Department re- inspected the system. The inspector discovered that the filter was missing. Ms. Haynes did not remove the filter or authorize anyone else to do so. Removal of the outlet filter constituted theft of Ms. Haynes' property. Allegations concerning the removal of the outlet filter on Ms. Haynes' property are included in the Administrative Complaint at issue here. In September of 1996, Tracy Fernandez contracted with Petitioner to install a septic system for her mobile home. The system received construction approval from the Suwannee County Health Department on September 4, 1996. At that time, the outlet filter was present. The filter was missing when the Suwannee County Health Department re-inspected the system on September 10, 1996. Ms. Fernandez did not remove the filter or authorize anyone else to do so. Removal of the outlet filter constituted theft of Ms. Fernandez's property. Allegations concerning the removal of the outlet filter on the property of Ms. Fernandez are included in the Administrative Complaint at issue here. In July of 1996, Laura Landen contracted with Ford to install a septic system for her mobile home. Petitioner told Ms. Landen that he would save her some money by removing the outlet filter after the initial inspection. The system received construction approval from the Suwannee County Health Department on July 24, 1996. At that time, the outlet filter was attached to the septic tank. The filter was missing when the Suwannee County Health Department re-inspected the system on September 11, 1996. Ms. Landen did not remove the filter or authorize anyone else to do so. Removal of the outlet filter constituted theft of Ms. Landen's property. Allegations concerning the removal of the outlet filter on Ms. Landen's property are included in the Administrative Complaint at issue here. In October of 1996, John and Mary Phillips contracted with Petitioner to install a septic system for their home. The system received construction approval from the Columbia County Health Department on October 23, 1996. At that time, the outlet tee filter was present. Subsequently, the Phillips' daughter saw Petitioner take something out of the septic tank. The filter was missing when the Columbia County Health Department re-inspected the system on October 25, 1996. Mr. and Mrs. Phillips did not remove the filter or authorize anyone else to do so. Removal of the outlet filter constituted theft of the Phillips' property. Allegations concerning the removal of the outlet filter on the Phillips' property are included in the Administrative Complaint at issue here. In April of 1996, Marshall and Karen Merriman contracted with Petitioner to install a septic tank system on their property. The outlet filter was attached to the septic tank at the time of an initial inspection by the Suwannee County Health Department on April 22, 1996. Subsequently, Mr. Merriman saw Petitioner drive up and remove the outlet filter from the septic tank. Petitioner's removal of the outlet filter constituted theft of the Merrimans' property. A re-inspection by the Suwannee County Health Department on April 23, 1996, revealed that the outlet filter was missing. The inspector also discovered that Petitioner had not placed enough rock in the Merrimans' drainfield. Accordingly, the system did not pass final inspection. Mr. Merriman stopped payment on his check made payable to Petitioner in the amount of $909.50. Another septic tank contractor was hired to properly install the septic system on the Merrimans' property. Mr. Merriman's complaint to the Suwannee County Health Department resulted in a citation for a $1,500 fine against Petitioner for violating the following rules: (1) Rule 10D-6.0751(1)(k), Florida Administrative Code, practicing fraud or deceit; (2) Rule 10D-6.0751(1)(l)2, Florida Administrative Code, misconduct causing harm to customer; and (3) Rule 10D-6.055(3)(a), Florida Administrative Code, removal of outlet filter. Petitioner acknowledged receipt of the citation on September 24, 1996. That same day he requested an informal administrative hearing to contest the citation. The Suwannee County Health Department referred Petitioner's request for an informal hearing concerning the above-referenced citation to Respondent on September 27, 1996. Respondent then requested its District 3 Administrator to conduct the necessary proceedings and submit a Recommended Order to Respondent. The record does not reveal the disposition of Petitioner's request for an informal hearing regarding the citation. The Administrative Complaint at issue here does not contain any allegations relative to Mr. Merriman's complaint. However, since Petitioner did not dispute the material allegations contained in the citation, they may be considered as true in aggravation of any penalty imposed in the instant proceeding. In addition to the missing filters referenced above, the Columbia County Health Department found filters missing from Petitioner's installations on property owned by Richard Johnson and David Timmerman in September of 1996. The filters had been present during prior inspections of Petitioner's installations on the Johnson and Timmerman properties. The removal of the outlet filters from the Johnson and Timmerman properties constituted theft of their property. The Administrative Complaint at issue here contains allegations concerning Petitioner's removal of these outlet filters. The Suwannee County Health Department and the Columbia County Health Department had many citizen complaints about Petitioner's work. They performed a random check of all recent septic tank installations in their respective counties. They re- inspected the septic tank installations of other registered septic tank contractors as well as Petitioner's installations. They found missing outlet filters only in Petitioner's installations. The two health departments began spray painting a spot on filters during initial inspections to stop anyone from using the filters at multiple installations and inspections. Petitioner habitually, and as a routine business practice, removed the outlet filter from the septic tanks he installed after the initial inspection but before he covered the tank with dirt. He was responsible for stealing the required outlet filters on the property of Rita Haynes, Tracy Fernandez, Laura Landen, John and Mary Phillips, David Timmerman, and Richard Johnson. In each of these instances, Petitioner acted fraudulently and deceitfully. His gross misconduct created a potential sanitary nuisance and caused his customers monetary harm. An outlet tee filter costs approximately $50. Petitioner was able to underbid his competitors by removing the filter from an inspected system and using the same filter on another installation. From time to time, septic tanks need to be pumped out to prevent the flow of sludge and solids from the tank into the drainfield. Sludge and solids will clog the drainfield causing the system to fail. A failed system is expensive to repair or replace. A failed system also creates a public health hazard. When a septic tank is pumped out, all of the sludge should be removed. After the tank is empty, it should be washed down with a hose and inspected for cracks. If the tank is in good condition, a septic tank contractor is supposed to sign an inspection slip. In September of 1996, Allen Donaway contracted with Petitioner to pump out his septic tank and install a new drainfield. Petitioner's employees arrived at Mr. Donaway's residence on or about September 18, 1996, to pump out the tank. They claimed they had completed the job even though they left 12 or more inches of sludge at the bottom of the tank. Despite Mr. Dunaway's demands, Petitioner's employees refused to pump any more septage from the tank. When Mr. Donaway contacted Petitioner to complain that his employees had only partially pumped the tank, Petitioner demanded immediate payment. Mr. Donaway gave Petitioner a check for $135 which Petitioner cashed immediately. Mr. Donaway had to pay another registered septic tank contractor to pump the rest of the sludge from the tank and to install the new drainfield. Allegations concerning Petitioner's failure to completely pump out the sludge from Mr. Donaway's septic tank are contained in the Administrative Complaint at issue here. In a Letter of Warning dated July 15, 1996, the Columbia County Health Department informed Petitioner that Debbie Gregory had filed a complaint against him for an unsatisfactory septic pump-out. This letter requested a response to an allegation that Petitioner, without good cause, had abandoned a project which he was under a contractual obligation to perform in violation of Rule 10D-6.0751(1)(g), Florida Administrative Code. Petitioner was advised that he could avoid the imposition of a $500 fine or a disciplinary action against his contractor's license by correcting the problem within five working days. As of August 6, 1996, Petitioner had not responded to the health department's inquiry. He made no attempt to correct the problem by completely removing the solids and greases from Ms. Gregory's septic tank. Petitioner was advised by letter that Respondent intended to initiate enforcement procedures. Allegations concerning the unsatisfactory septic pump-out on Debbie Gregory's property were included in the Administrative Complaint at issue here. Petitioner's failure to completely pump out all of the sludge from the septic tanks of Allan Donaway and Debbie Gregory created a potential health hazard. Additionally, his gross misconduct caused these customers monetary harm. They had to pay another septic tank contractor to complete Petitioner's work so that they could avoid the expense of prematurely replacing their drainfields. In August of 1996, Petitioner installed an onsite sewage treatment and disposal system on the property of Johnny Howard, Jr. The Suwannee County Health Department subsequently determined that Petitioner had installed the septic system on the wrong side of the Howard residence with the drainfield extending across the property line of the adjoining property. The inspector also discovered that the septic tank was installed next to a dryer vent opening in the Howard residence. When Petitioner refused to correct the problems at the Howard residence, the county health unit paid another septic tank contractor to correct the septic system. Respondent then filed an Administrative Complaint seeking revocation of Petitioner's septic tank contractor's registration and imposition of an administrative fine. On July 22, 1997, Respondent entered a Final Order in Department of Health Case Number 97-154 which revoked Petitioner's septic system contractor's registration and imposed a fine in the amount of $1000 due to the improper installation of the septic system at the Howard residence. This Final Order approved and adopted a Recommended Order in DOAH Case Number 96-5543, finding that Respondent was guilty of violating Rule 10D-6.0751(1)(b)2, Florida Administrative Code, for completing contracted work at the Howard residence without a permit and Rule 10D-6.0751(1)(l)2, Florida Administrative Code, gross misconduct causing monetary harm. Allegations concerning Petitioner's improper installation of the septic system on Mr. Howard's property were not contained in the instant Administrative Complaint. However, they may be considered in aggravation of any administrative fine imposed in the instant case. In the course of investigating citizen complaints against Petitioner, Respondent learned that Petitioner was advertising his business using the name of Ford Septic Tank and/or Ford Septic Tank Service(s) on his trucks and in the Yellow Pages. Petitioner's authorized business name is LA Ford Septic Tank. Respondent sent Petitioner a Letter of Warning dated August 27, 1996, advising him that advertising his services in a form other than his authorized business name violated part III of Chapter 489, Florida Statutes, and Rule 10D-6.0751(1)(a), Florida Administrative Code. The letter informed Petitioner that continued violations could result in an administrative fine of $500 per day. The letter stated that the violations might be cited in a future complaint based on repeat violations. Petitioner did not exercise his option to request an administrative hearing to contest the allegations contained in the Letter of Warning. On November 20, 1996, employees of the Suwannee County Health Department took photographs of Petitioner's business sign using an unauthorized name on a county road in Suwannee County. On November 22, the same employees took photographs of Petitioner's trucks bearing an unauthorized name. Petitioner's persistence in using an unauthorized business name was especially egregious because other septic tank contractors with the last name of Ford, who were not affiliated with Petitioner, worked in the same commercial and residential areas. For example, Mr. Merriman contracted with Wilbur Ford to correct the septic system that Petitioner improperly installed. North Florida Septic Tank was owned by Robert and Donna Ford. Their Yellow Page advertisement specifically disclaimed any affiliation with Petitioner. The instant Administrative Complaint contains allegations concerning Petitioner's use of an unauthorized name to advertise his business. Petitioner filed an application to become a registered septic tank contractor on August 6, 1991. Petitioner was convicted of grand theft and stopping payment on a check with intent to defraud on October 28, 1991, in the circuit court of Hernando County, Florida. Petitioner was convicted of these two felonies before he took the septic tank contractor's examination in November of 1991. Petitioner did not inform Respondent about the two convictions. Petitioner obtained his septic tank registration through fraud or misrepresentation by failing to disclose his felony convictions. The instant Administrative Complaint contains allegations concerning Petitioner's failure to disclose the two felony convictions. Respondent's efforts to persuade Petitioner to correct his improper installations and/or unsatisfactory pump-outs were not successful. He made no attempt to replace the filters he removed. He did not heed Respondent's warnings regarding his use of an unauthorized business name. He has failed to make any effort to rehabilitate himself or to mitigate the effects of his behavior despite the following: (1) the severity of his offenses; (2) the danger to the public that he created; (3) the number of times that he repeated the offenses; (4) the number of complaints filed against him; and (5) the monetary harm he caused his customers.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent enter a Final Order imposing an administrative fine in the amount of $7,000 against Petitioner. DONE AND ENTERED this 5th day of September, 1997, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 5th day of September, 1997. COPIES FURNISHED: Thomas D. Koch, Esquire Department of Health Building 6, Room 133 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Larry A. Ford 25295 CR 137 O'Brien, Florida 32071 Angela T. Hall, Agency Clerk Department of Health Building 6 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Pete Peterson, Esquire Department of Health Building 6, Room 102-E Tallahassee, Florida 32399-0700 James Howell, Secretary Department of Health Building 6, Room 306 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMENDED that the application of Jay Hall for a septic tank permit at Lot 1, Deerwood Estates, Baker County, Florida be DENIED. However, applicant should be given thirty days from date of the final order in this cause to raise the height of the system to Department recommended specifications. DONE and RECOMMENDED this 29th day of April, 1983, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 1983.
The Issue This case concerns the entitlement of Petitioner to be granted a permit to operate a .0075 MGD wastewater treatment facility with reclaimed water applied through spray irrigation. See Chapter 403, Florida Statutes, and Chapter 17- 610, Florida Administrative Code.
Findings Of Fact The exceptions filed by Cordes are deficient either in lacking materiality or in failing to cite to any Support in the record. The Department cannot substitute its interpretation of the facts unless a review of the whole record shows that the findings made by the Hearing Officer are not supported by competent and Substantial evidence. See, e.g., Tuveson v. Florida Governors Council on Indian Affairs, Inc., 495 So.2d 790, 793 (Fla. 1st DCA 1986), rev. denied, 504 So.2d 767 (Fla. 1987). A review of the record in this case shows that, with one exception, competent and substantial evidence does support each of the findings of fact to which Cordes takes exception. Exception 1 objects that contrary to the finding in paragraph 5 of the Recommended Order, Cordes submitted the information requested by the Department, on time. The exception also urges that the Department misled Cordes, because the additional information requested by the Department to complete the first application (the short form) for renewal differed from the bases ultimately relied on by the Department in denying the application. The Hearing Officer found that the Department had denied the first application for renewal because of a delay in providing the additional information. Cordes points to no evidence in support of his exception to the finding that there was a delay. The transcript of the hearing in this matter reveals that Cordes's own witness admitted that there was a delay in providing the requested information, leading to the denial of the short-form application and a request for submittal of the long-term application, instead. As for the charge that the Department misled Cordes, Exception 1 confuses the two permit proceedings. The request for information on the short-form application is irrelevant to the denial of the long-form application at issue. The alleged discrepancy between the additional information requested and the bases for ultimately denying the application is also immaterial. The Department cannot estop itself from denying an application on one ground (on which the information originally submitted with the application is adequate) merely by requesting additional information on another ground. See generally State Department of Revenue v. Anderson, 403 So.2d 397 (Fla. 1981). I therefore reject all of Exception 1. Exception 2 attacks the findings in paragraphs 9-12 of the Recommended Order on pollution problems resulting from Cordes's Spray irrigation System. Cordes argues that because the Department (and a complaining neighbor) allegedly suggested that Cordes change his method of spray irrigation to a garden hose and sprinkler system, the Department should be estopped from denying the permit. The testimony on whether a Department representative suggested the use of a garden hose is conflicting. Likewise, although Cordes's engineer testified that no pollution problems had resulted from using the garden hose for Spray irrigation, the engineers from the Department testified that ponding and consequent nutrient-loading problems would result from that method and had actually been observed at the facility in question. Because competent Substantial evidence Supports the findings in paragraphs 9-12 of the Recommended Order, I will not disturb them. As for the estoppel argument, that is addressed below, in the rulings on the exceptions to conclusions of law. I therefore must reject Exception 2. I accept Exception 3, which challenges the Hearing Officer's finding in paragraphs 15-18 of the Recommended Order that Cordes' expert witness stated in the first application for permit renewal that the system had a storage capacity of three days, yet testified at the hearing that the Storage capacity was Sixteen hours. Neither the exception nor the finding, however, is material to the decision in this case, because other grounds form the basis for the decision, as explained below. RULINGS ON EXCEPTIONS TO CONCLUSIONS OF LAW Cordes's exceptions to the conclusions of law fare no better. At the outset, I note that Cordes did not number his exceptions to the conclusions of law. I shall take them up in the order in which Cordes presented them. The first such exception to the conclusions of law conclusorily asserts that the decision in State Department of Revenue v. Anderson, 403 So.2d 397 (Fla. 1981), is distinguishable but fails to identify the specific basis for distinguishing it. See Fla. Admin. Code Rule 17-103.200(1) (requiring that the grounds for exceptions be bet forth with particularity). The Hearing Officer cited the Anderson case in support of his conclusion that the Department did nothing to estop it from denying the application at issue. The court in Anderson noted that estoppel will be applied only rarely to the state and only in exceptional circumstances. The court set forth the general test for finding such an estoppel, requiring (1) a representation of material fact contrary to a position asserted later by the person or entity to be estopped, (2) reasonable reliance on that representation by the person claiming the estoppel, and (3) detriment to that person as a result of relying on the representation. Id. at 398. The court specifically pointed out that the state cannot be estopped through mistaken statements of the law. Id. (citing Department of Revenue v. Hobbs, 368 So.2d 367 (Fla. 1st DCA), appeal dismissed, 378 So.2d 345 (Fla. 1979); Austin v. Austin, 350 So.2d 102 (Fla. 1st DCA 1977), cert. denied, 357 So.2d 184 (Fla. 1978)). Even assuming (contrary to the finding of the Hearing Officer supported by competent substantial evidence) that a representative of the Department told Cordes at some point that the use of a garden hose would satisfy the legal requirements for spray irrigation as asserted by Cordes, that mistaken statement of law would provide no basis for estoppel. Moreover, the inadequate storage capacity of the system and its proximity to a potable well provide other grounds that require disapproval of the application. In any event, the complaint that the Department misled Cordes is contrary to the Hearing Officer's well-supported findings of fact. I reject this exception. Cordes then attacks the Hearing Officer's conclusion of mixed fact and law that the evidence presented by Cordes at the hearing did not overcome the showing of the problems associated with the lack of sufficient capacity of the storage system and the proximity of the irrigation field to a potable well. Cordes argues that the Department allows an exemption from the storage capacity requirement in some circumstances and implicitly granted Cordes such an exemption by approving the permit for the facility in 1983. But the record does not show that Cordes ever requested an exemption or even addressed the issue at the hearing. Moreover, the provision of exemptions by rule for applicants in general (who comply with the requirements for the exemption) does not demonstrate the adequacy of the storage system at Cordes's facility. Nor does the granting of a permit for the facility in 1983 necessarily imply that the Department granted any exemption for the facility. Rather, the Department may well have made a mistake of law in issuing the permit then without addressing the question of an exemption. On the record before me, and in light of the well-settled law as explained above, I cannot conclude that Cordes has shown any basis for estopping the Department on this issue. The complaint by Cordes that the Department never advised him that it would require a larger storage tank until he received the permit denial letter overlooks the existence of the rule requiring three days storage capacity. See Fla. Admin. Code Rule 17- 610.414(2)(c). The complaint that the Department did not request additional information on this point is immaterial. The information submitted with the permit application and confirmed at the hearing showed clearly that the storage capacity (sixteen hours) failed to satisfy the rule, in the absence of an exemption. I reject the exception to the Hearing Officer's conclusion on the adequacy of the storage capacity of the facility. Likewise without merit is' Cordes's exception to the Hearing Officer's conclusion that the spray irrigation field is located too close to a potable well to meet the requirements of rule 17- 610.421(3) of the Florida Administrative Code. The evidence showed that the field is only 200 feet from a potable well. Cordes's complaint that the application form did not request information about the proximity of the field to potable wells but only to shallow water supply wells of any kind is immaterial. Regardless of the form of the application, an applicant must meet the requirements of the rules to show entitlement to a permit. The Department did not deny the application for lack of information but for lack of a sufficient buffer zone between the irrigation field and the potable well. The information submitted was sufficient for the Department to determine that the facility would not meet the buffer zone requirement. Without explication, Cordes quotes from a letter granting his nursing center an exemption from monitoring requirements in 1983. Cordes fails to show the relevance of that exemption from monitoring to the adequacy of the buffer zone in question, given the specific requirements of rule 17-610.421(3). I therefore reject this final exception.
Recommendation Upon the consideration of the facts and the conclusions of law, it is, recommended that a Final Order be entered which denies the permit to operate a .0075 MGD wastewater treatment facility with reclaimed water applied by spray irrigation. RECOMMENDED this 19th day of June, 1990, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of June, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-4461 The following discussion is given concerning the proposed facts of the parties. Petitioner's Facts All sentences in Paragraph 1 save the second sentence are not necessary to the resolution of the facts. The second sentence is subordinate to facts found. Paragraph 2 is subordinate to facts found. In Paragraph 3 the suggestion by Dr. Nayak that he does not believe that the treatment plant is polluting at present begs the question. What is incumbent upon Petitioner is a requirement that the facility meet the rules. It does not. Likewise, remarks attributable to Mr. Reining to the effect that he saw no problems at the time of his visit does not supply an adequate answer to address reasonable assurances. Paragraph 4 in discussing the opinion held by Mr. Morrissette about whether he would have permitted operation in 1983 is not relevant. What is relevant is whether the most recent application should be granted. It should not. Paragraph 5 is subordinate to facts found except to the extent that it suggests that reasonable assurance has been given. In that respect, it is contrary to facts found. Paragraph 6 is recitation of testimony. It is not fact-finding. Paragraph 7 is unacceptable in that it does not address inclement conditions. It also fails to recognize that the present disposition of the effluent is not uniform. Paragraph 8 has been addressed by consideration of the testimony de novo. This clarified that the purposes of the final hearing was to consider the case de novo as opposed to appellate review of the agency's preliminary response to the application. Likewise, in Paragraph 9 although it would have been advantageous to have the wetted area better described in the attached map, that was clarified at hearing and has been reported in the fact-finding set forth in the Recommended Order. As to Paragraph 10 the explanation of the use of Rule 610.423, Florida Administrative Code, is set out in the fact-finding and conclusions of law in the Recommended Order and puts to question the applicant's response to the requirements in that rule. As to Paragraph 11 the reference to Rule 610.423, Florida Administrative Code, is not the critical rule that pertains to potable water wells. That requirement is announced at Rule 17-610.421(3), Florida Administrative Code. Concerning Paragraph 12 in the same way that it would have been helpful for the applicant to designate the wetted area, it would have been helpful for the [agency to remind the applicant to make that designation. That failing does not preclude consideration of those matters at hearing and that was done. Paragraph 13 is subordinate to facts found with the exception of reference to Mr. Morrissette in his lack of licensing in Florida. That lack of license does not preclude his testimony. Paragraph 14 is subordinate to facts found with the exception that suggestion by Dr. Nayak that there is an even distribution by the use of a hose is rejected. Paragraph 15 as described in the fact-finding the resort to the above- ground spray heads can be had absent problems with the sizing in the reclaimed water storage system. Paragraph 16 is addressed in the Recommended Order. Paragraph 17 is addressed in the Recommended Order as is Paragraph 18. Paragraph 19 is subordinate to fact found. The reference at Paragraph 20 to the exemption set out in Rule 17- 610.414(1), Florida Administrative Code, was not spoken to at hearing. The project does not contemplate the use of an alternative system which discharges surface water through deep wells. Paragraph 21 is contrary to facts found. The requirements in the rules are not site specific. Concerning Paragraph 22, while DER issued a permit under similar conditions in 1983 that does not preclude them refusing to issue the permit in 1988. Concerning Paragraph 23. The issuance of the permit in 1983 is seen as not being an exemption. It is seen as an oversight. Paragraph 24 is not necessary to the resolution of the dispute. Paragraph 25 is subordinate to facts found as is Paragraph 26. Paragraph 27 has been spoken to in the Recommended Order as has Paragraph 28. Concerning Paragraph 29, while the application does not indicate that the buffer zone must be drawn per se, it could be fairly inferred that the designation is contemplated by the rule which requires the establishment of the buffer zone. Concerning Paragraph 30 see discussion of Paragraph 29. Paragraph 31 is subordinate to facts found. Concerning Paragraph 32, whatever the application form may say the requirements of Rule 17-610.421, Florida Administrative Code, must be complied with. The same response pertains to Paragraph 33. The suggestion that the exemption from monitoring that was granted on September 2, 1983, relieves the applicant of the requirements of Rule 17-610.421, Florida Administrative Code, is rejected. Respondent`s Facts Paragraphs 1-27 are subordinate to facts found, with the exception that any suggestion that the applicant is limited in its proof to those matters set forth in the application is rejected. The applicant is allowed to present necessary evidence in furthering the request for permit at final hearing. Paragraph 28 is not accepted in that the evidence indicated that the soaker hose was the principle method but not the sole method of effluent distribution. In Paragraph 29 it is acknowledged that the Petitioner claims that the change in the method of distribution was at the instigation of a neighbor's complaint. It is also acknowledged that there was no reference to a written communication from the Respondent to the Petitioner concerning the use of the alternative means of distribution. The problems associated with this communication are spoken to in the Recommended Order and they would attend the suggestions made in Paragraph 31. As set forth in Paragraph 32 it is acknowledged that the employees cannot create the authority for changes. Nonetheless, they may mislead an applicant into a course of conduct in pursuing the application. Any problems of that sort associated with this project have addressed in the Recommended Order. Paragraphs 33-56 are subordinate to facts found with the exception that suggestion to the effect that the application constitutes the sole basis for considering the entitlement to permit is rejected in favor of a consideration of evidence presented at the hearing de novo. The discussion in Paragraphs 57-59 as to the nature of the potable water well is acknowledged. The exemption from monitoring in 1983 does not preclude the agency's ability to examine the issue in the 1989 application. It is found that the potable well is a deep well. In Paragraph 60, while it is acknowledged that the preliminary intent to deny was based upon an examination of the permit in association with applicable statutes and rules, the decision reached in this Recommended Order was based upon the evidence presented at hearing. That decision is not reached in an attempt to appease concerns by neighbors as alluded to in Paragraph 61. Paragraph 62 is considered to be argument. COPIES FURNISHED: Steven K. Hall, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Baya Harrison, Esquire 400 North Meridian Street Tallahassee, FL 32301 Dale H. Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 =================================================================
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the application of Kenneth W. Barron for a septic tank be DENIED; however, applicant should be given thirty days from date of the final order in which to raise the tank to a height consistent with the construction permit. DONE and RECOMMENDED this 29th day of April, 1983, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 1983.
The Issue Whether a septic tank construction permit should be issued by the Respondent, Department of Health and Rehabilitative Services, for use by the Respondent, Alex Rutkowski, owner of Lot number 6, Block E, Carlton Terrace Subdivision First Addition, in Clearwater, Florida. Whether the filling in of Lot number 6 and the construction of a septic tank will damage the residence of the Petitioner, Elinor Burger, on Lot number 5.
Findings Of Fact The Respondent, Alex Rutkowski, and his wife own Lot number 6, Block E, Carlton Terrace Subdivision, First Addition, in Clearwater, Florida in which the sixteen (16) lots are approximately 70 feet wide and 105 to 150 feet deep. The soil in the area is Mayakka Fine Sand, a poorly drained soil which has a water table normally at a depth of ten (10) to thirty (30) inches below ground surface, but which rises to the surface for a short time during wet periods. After respondent Rutkowski's initial application for a permit to install a septic tank on Lot number 6 had been denied, he employed an engineer and filed a plan for proposed site modification. The plan was received by the Respondent, Department of Health and Rehabilitative Services, and Rutkowski was notified on December 6, 1979, that the plan to remove the existing land fill, replace it with Astatula Fine Sand and raise the building pad appeared to be acceptable for the issuance of a septic tank construction permit, but that no further action on the application for the permit could be taken until after an administrative ruling on a protest by a neighboring property owner (Respondent' Exhibits 1, 4 and 5). The Pinellas County Engineering Department had approved the drainage for the area on October 9, 1979 (Respondent's Exhibit 2). The Petitioner, Elinor Burger, has lived on Lot number 5, which adjoins Lot number 6, since 1957. When there is a heavy rain of three (3) to four (4) inches, her septic tank fails to operate, and water stands in her back yard. She has seen and smelled polluted water standing in the street in front of her home. Water also stands on a second lot she owns adjoining her residence after a heavy rain preventing the mowing of the lot for long periods of time. Ms. Burger has unsuccessfully sought to connect to a sewer system by petitions for sewer connection on at least- three (3) occasions and has laid additional drainage lines to help solve her problem. In the spring, summer and fall of 1979, she had severe water problems. Ms. Burger believes the elevation of Lot number 6 would cause further water damage to her property, and that a septic tank on Lot number 6 would add more sewage problems to the area A witness for Petitioner, Alan Flandreau, who lives with his wife and three (3) children on lot number 13 adjoining Lot number 5 in the subdivision, has a septic tank that fills up in rainy weather and runs into the street, resulting in a stench and green slime. Flandreau has had his septic tank pumped out a number of times since 1968, when he bought his home. His lot is low, and water drains onto his property from other lots. A witness for Petitioner, Burl Crowe, owns Lot number 11 and lives on Lot number 12. Lot number 11 adjoins Lot number 6, and Lot number 12 borders on the property of Petitioner Burger. Crowe has lived on Lot number 12 for fourteen (14) years and on many occasions had water entering his garage and standing in his yard when it rains. He has seen Lot number 6 under water and water standing on the street in front of his house, A witness for the Respondents was Gerald Goulish, the professional engineer who prepared the site modification plan (Respondent's Exhibits 4 and 8). Goulish has studied the site together with Rule 10D-6 of the Florida Administrative Code (infra) and believes the plan to fill the location of the septic tank site will cause the soil to percolate and evaporate and the proposed elevation of Lot number 6 two (2) feet will cause the water to drain toward the street and not onto adjoining property. He suggested that the adjoining and adjacent property owners cooperate and construct common swales to eliminate the surface water problems. A second witness for the Respondents was Burt Fraser, a sanitary supervisor for the Pinellas County Health Department, who denied the first application for installation of a septic tank on Lot number 6 but notified Respondent Rutkowski that the lot could be modified. Thereafter, he wrote Rutkowski that a modification plan had been received which meets the minimum requirements of the Florida Administrative Code. Fraser stated that he will issue a permit for construction of a septic tank upon completion of the administrative hearing procedure unless directed not to issue such a permit. Fraser agreed that the conditions as described by Petitioner Burger and her witnesses are accurate, and that the subdivision has problems which will not be solved until sanitary sewers are installed, but he believes that he has no alternative except to issue a permit if an applicant meets the requirements of Rule 10D-6.25 Florida Administrative Code. He knows of no requirement to make a study of adjacent and adjoining properties, and Respondent Department has not made a study. There are seven (7) houses in the sixteen (16) lot subdivision. The area is low and subject to flooding because of soil texture. There is an undisputed drainage problem in the area which causes a septic tank problem to the residents. The addition of more houses and septic tanks will increase the already serious drainage conditions which are public health nuisances. The Respondent, Department of Health and Rehabilitative Services, submitted proposed findings of fact, memorandum of law and a proposed recommended order. These instruments were considered in the writing of this order. To the extent the proposed findings of fact have not been adopted in or are inconsistent with factual findings in this order, they have been specifically rejected as being irrelevant or not having been supported by the evidence.
Recommendation Based on the foregoing Findings and Conclusions of Law, the Hearing Officer recommends that Respondent Rutkowski's application for a permit for the construction of a septic tank on Lot number 6 be denied without prejudice to the Respondent to reapply if there should be a change in circumstances. DONE and ORDERED this 10th day of April 1980, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED Barbara Dell McPherson, Esquire Department of HRS Post Office Box 5046 Clearwater, Florida 33518 William W. Gilkey, Esquire Richards Building 1253 Park Street Clearwater, Florida 33516 Mr. Alex Rutkowski 30 North Evergreen Clearwater, Florida
Findings Of Fact The Petitioner is the owner of real property located in Dixie County, Florida, more particularly described as Tract 10, Suwannee Shores Run Subdivision. The property is approximately one acre in size and was purchased in December of 1989. The subdivision is unrecorded, and there was no testimony regarding a platting date thereof. On January 17, 1990, the Petitioner made an application for an OSDS permit for the aforesaid property. The application was for a new single-family mobile home system. The residence involved will contain two bedrooms and a heated and cooled area of approximately 480 square feet, with an approximate 300-gallon-per-day sewage flow. Upon receiving the application, the Department's local public health official informed the Petitioner that he would have to obtain a benchmark elevation for the surface of his property and also establish the ten-year flood elevation for the property. The Petitioner, therefore, obtained the services of a registered land surveyor, who established a benchmark elevation for the subject property of 19.23 feet above mean sea level ("MSL"). The mark is actually 6 inches above ground level. The actual elevation of the surface grade of the property at the proposed septic tank system installation site is 19 feet above MSL. The ground water level at the time of the evaluation of the site by the Department's personnel was 66 inches below the surface of the lot. The wet season ground water or water table level is 60 inches below the surface of the lot. The property is characterized by slight to moderate limited soils, consisting of fine sand from 6 inches depth down to 60 inches depth. The first 6 inches of soil near the surface of the property is organic in nature. The information, contained in a report promulgated by the Suwannee River Water Management District and submitted to the Department by the Petitioner with the permit application, shows that the ten-year flood elevation for the property in question is 23 feet above MSL. That ten-year flood elevation was not refuted. The property, thus, is located within the ten-year flood plain of the Suwannee River; and it is also located within the "regulatory floodway". There is not a central water system available to the property, and potable water for the subject dwelling will come from a well. In addition to lying beneath the ten-year flood elevation, the property lies within the regulatory floodway of the Suwannee River, as mentioned above. This means that if a mounded septic tank and drain-field system were installed, (which would likely result in appropriate treatment of the sewage effluent because of site conditions referenced herein); in order to install such a system, to raise the drain fields above the ten-year flood elevation, a certification by a registered engineer would have to be performed to establish that the installation of the required volume of fill dirt for the mounded system would not cause an elevation of the "base flood". No such engineering testimony or evidence was offered in this proceeding, however. Thus, this portion of Rule 10-6.047(6), Florida Administrative Code, has not been complied with. The OSDS could appropriately be installed from an environmental standpoint, given the depth of appropriate moderate to slightly limited soils prevailing at the site and the depth of the water table. The estimated wet season water table is 60 inches below the existing surface grade, and the normal water table is 66 inches below the surface grade. Although organic soil prevails for the first 6 inches at the site; below the first 6 inches, the soils are characterized as being fine sand. This soil type and condition, as well as the depth of the water table below the location of the drain field and septic tank site establishes that installation and operation of an OSDS in this location would likely be successful. Since the property and the installation site are beneath the ten-year flood elevation, however, a mounded system would have to be installed to raise the bottom of the drain-field trenches or absorption beds above that ten-year flood elevation referenced above. Thus, although a mounded system would appear to be feasible, the appropriate engineering testimony, with regard to its presence in the regulatory floodway, was not offered. Thus, the grant of the permit based upon mounding of the system as a reasonable alternative approach to successful treatment and disposal of the effluent in question has not been established. The Respondent, by letter of April 24, 1990, advised the Petitioner of the denial of the OSDS permit and also advised the Petitioner that he should pursue a formal administrative proceeding before the Division of Administrative Hearings, rather than file an informal variance application before the Respondent's own variance board. The Respondent took the position that a variance could not be granted from the requirements of Rule 10D-6.047(6), Florida Administrative Code, because the property was located within the ten- year flood elevation of the Suwannee River and because of the Respondent's interpretation of the effect of the Governor's Executive Order No. 90-14, which adopted by reference the Suwannee River Task Force recommendation that all such OSDS's be prohibited within the ten-year flood elevation. The Respondent thus declined to exercise its discretion, accorded it in the statute and rules cited hereinbelow, to entertain and consider a variance application. It was established that the lot in question is not subject to frequent flooding. However, because the surface grade is beneath the ten-year flood elevation, the bottom of the drain-field trenches or absorption beds would also be beneath the ten-year flood elevation, although the property is amenable to the installation of an effective OSDS otherwise because of the depth of the wet season water table and the types of soil prevailing at the site. The Petitioner established a hardship due to the fact that he has paid a substantial sum of money for the property and now is unable to develop it unless entitlement to an OSDS or some reasonable alternative is gained. No substantial proof of a truly-effective, reasonable alternative method of treating the effluent in question was established by the Petitioner. The Petitioner did establish, however, that a mounded system could be made to successfully operate, treat and dispose of the sewage effluent. A mounded system, however, would necessitate the required engineering certification and calculations before installation. No such effort has been made with appropriate engineering personnel and no evidence of such was adduced in this proceeding. The Petitioner has also raised the possibility that an aerobic septic tank and drain-field system might be an effective alternative treatment and disposal method for the property in question. An aerobic system involves the injection of air into the attendant septic tank to support aerobic bacteria, which break down and treat sewage at a faster, more effective rate than does the normal, anaerobic bacteria-based system. The resulting effluent is substantially lower in BOD and suspended solids than is the effluent from the normal, subterranean anaerobic septic tank and drain-field disposal system. The problem with such an aerobic system is that it involves mechanical equipment, especially an external electric motor and pump to force air into the system. This is disadvantageous in that if the equipment suffers a malfunction, the high level of treatment and disposal of the effluent is retarded. When the electric motor and/or pump malfunction and air is no longer injected into the septic tank to support the more active aerobic treatment bacteria, the system then ceases functioning as an aerobic system and becomes a simple anaerobic system using less effective anaerobic bacteria. In other words, it functions as a normal septic tank and drain-field system. If it has been installed in an area with marginal or deficient natural treatment conditions, such as inappropriate soils, high-water tables, or low surface elevations, beneath the ten-year flood elevation, for instance; the sewage, which is no longer being treated aerobically, can pose a threat to public health and the quality of the ground or surface waters involved at the site. The untreated or inadequately-treated sewage can rise to the surface of the property, back up in the residential toilets, or otherwise pollute ground or surface waters, if water table levels are too high. Thus, such systems would require inspection periodically to insure that they are in adequate working order, because if the mechanical system malfunctions, the system will continue to put effluent through its drain field, like a normal septic tank drain-field system, but without adequate treatment for a "low elevation" site such as this. In that circumstance, the occupants of the dwelling involved might not notice for long periods of time that the system is inoperative because it can continue to dispose of the effluent without it backing up into the residence. Accordingly, when the motor and air pump system becomes inoperative, there is less incentive for the owner to repair it. Thus, it is likely that if such a system were installed, some means would have to be found to insure that the owner keeps the system in good repair and working order. The means by which such an arrangement for insuring that an aerobic system operates properly at all times was not established in this record, however. The Department does not have the regulatory authority at the present time to conduct such periodic inspections nor the personnel or funds to do so. Consequently, the Petitioner failed to establish that reasonable alternatives to the proposed conventional OSDS exist.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that a Final Order be entered denying the Petitioner's application for an OSDS permit. DONE AND ENTERED this 27th day of February, 1991, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 1991. APPENDIX TO RECOMMENDED ORDER Petitioner's Proposed Findings of Fact Accepted. Accepted, but irrelevant. Rejected, as immaterial. Rejected, as immaterial. Rejected, as immaterial and irrelevant. This is not a rule challenge proceeding, pursuant to Section 120.56, Florida Statutes. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 7-11. Accepted. Respondent's Proposed Findings of Fact 1-10. Accepted. COPIES FURNISHED: Sam Power, Agency Clerk Department of HRS 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Linda K. Harris, Esq. General Counsel Department of HRS 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Richard Remington 165 Forest View Drive Land O'Lakes, FL 34638 Frances S. Childers, Esq. Department of HRS 1000 N.E. 16th Avenue Gainesville, FL 32609
