Findings Of Fact Prior to November, 1987, Petitioners purchased adjoining Lots 56 and 57 located in West Vic Holiday Sands subdivision in Santa Rosa County. 1/ The two lots constitute substantially less than a fourth of an acre of land. Petitioners intended to place two two bedroom mobile homes on the lots for use as a weekend retreat for their families. When Petitioners purchased the two lots, the lots had an existing 900 - 1050 gallon septic tank on the property. The tank had been previously approved by the Department of Pollution Control in 1973 for Recreational vehicle/campsite use. The tank had never been permitted for use as a homesite, such as a two bedroom mobile home would require. A Recreational Vehicle (RV) is generally considered by HRS to be a motor vehicle with a maximum size of 8'x 35'. Anything substantially over that size, as Petitioners' two mobile homes were, would not be considered for RV use and would be required to obtain a homesite type permit. Petitioners were required by their proposed use of the property to obtain a homesite permit. However, Petitioners did not discover the homesite permit requirement until after they had purchased the two lots and after they had purchased two mobile homes at considerable monetary cost to themselves. The Petitioners did not think about investigating whether a septic tank permit would be required because the subdivision area had permanent residences already in place. However, the evidence demonstrated the majority of these residences are located on four lots. There are a few residences located on fewer than four lots and on lots the size of Petitioners. 2/ The residences with nonconforming septic tanks were permitted by HRS under a mistaken interpretation of the law by the local Health Department office. However, about a year prior to Petitioners' permit and at the request of the local office, the local office was audited and its interpretation was brought into compliance with state law. Petitioners were, therefore, no longer entitled to rely on the local office's previous misinterpretation of the law and in previously issuing permits authorized under that misinterpretation of the law. Petitioners applied for an existing septic tank permit on November 23, 1987. Because the existing tank did not have enough capacity or drainage area for the Petitioners' desired use and the size of the property was under one- quarter acre, Respondent informed Petitioners they would have to seek a variance from the usual septic tank permit requirements. 3/ Petitioners applied for a variance. Petitioners felt a hardship variance should be granted due to the amount of money they had spent on the property and the fact Respondent had granted other nonconforming permits under its mistaken interpretation of the septic tank law. Neither of the Petitioners appeared at the variance review committee meeting in Ocala, Florida, which considered their variance request. However, the local health official recommended approval of the variance since other tanks had been mistakenly approved previously. The committee reviewed Petitioners' application and other relevant information about the property. The committee determined that no hardship existed and denied the permit. Petitioners received the committee's letter of denial on February 20, 1988. The evidence showed that Petitioners had spent close to $14,000.00 in purchasing the property and preparing it for occupancy. However, monetary expenditures alone have never been considered sufficient to establish a hardship in permitting cases. Petitioners presented no evidence which would cause such expenditures to amount to a hardship. Use of their property is still available, although that use is not exactly what Petitioners had in mind. Moreover, Petitioners may still recoup the money spent on the mobile homes by renting or selling them. Under these facts, no hardship was shown by Petitioners. In essence, Petitioners failed to show any monetary losses as opposed to expenditures of a significant nature. Likewise, Petitioners failed to establish justifiable reliance on the Respondent's previous mistakes, i.e., estoppel. Respondent's mistakes were not known by Petitioners at the time the majority of Petitioners' expenditures were incurred. The evidence regarding the general appearance of the subdivision was insufficient to establish a basis for such reliance. Moreover, Petitioners had the opportunity and the initial burden to investigate any potential governmental requirements prior to their purchase of the property. Again, no hardship was established by Petitioners' utilizing the theory of estoppel. Finally, Petitioners failed to present any reliable evidence that the discharge from their septic tank would not adversely affect the health of the public or would not significantly degrade the ground or surface waters of the State. The fact that other nonconforming tanks are in place with relatively few observable problems does not support the further inference that one more nonconforming tank won't hurt in an already overloaded area. Under these facts, Petitioners are not entitled to a variance from the Department's septic tank requirements; and therefore, are not entitled to a septic tank permit.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Respondent request for a variance from the septic tank permit requirements be DENIED and the request for a septic tank permit be DENIED. DONE and ORDERED this 11th day of January, 1989, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The Oakland Building 2900 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of January, 1989.
Findings Of Fact The applicant, Island Village Condominiums, prepared and submitted to the Department of Environmental Regulation a completed application for construction of its extended aeration sewage treatment plant. The relative distance and direction from the proposed treatment plant to major bodies of surrounding surface water are depicted in an aerial photograph which accompanied the application. The elevation of the surrounding waters in all directions is 39 feet. When the treatment plant is operated in compliance with its design features, the effluent from the plant will exceed the Department's standards for effluent discharge. The zone of discharge will be confined to the owners' property. Surface waters will not be involved in discharge. There will be no adverse impact upon ground waters. The treatment plant would not create a hazzard to the deep water wells of Point O' Woods Utilities, Inc. The treatment plant, as designed, meets or exceeds the engineering standards established by the Department. The likelihood of geologic subsurface failure is remote. Ground water levels are included on the schematic plan which accompanied the application to the Department. The tops of the holding ponds are above the 100-year flood level. The treatment plant will produce no noticeable odor. No exterior lights are to be used with the plant. The noise from the plant's operation would not travel more than 200 feet. The holding ponds would be more than 120 feet from the nearest surface water. The estimate of the cost is accurate at $98,000. Martin I. Gunn, Inc., is the developer of the property, which is also owned by the corporation, Island Village Condominiums, also known as Island Village of Inverness. The treatment plant will become the property of the home owners association and will be operated by the association from maintenance fees paid by the home owners. Martin I. Gunn/Island Village is not a public utility.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the permit for the construction and operation of an extended aeration sewage treatment plant be issued to Island Village Condominiums subject to the general and specific conditions stated in the Department's original notice. DONE and ORDERED this 19th day of February, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 1982. COPIES FURNISHED: Thomas V. Infantino, Esquire Post Office Drawer. B Winter Park, Florida 32790 Donald F. Perrin, Esquire New Bank of Inverness Building Highway 41, South Post Office Box 1533 Inverness, Florida 32650 William W. Deane, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 Victoria J. Tschinkel, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact Petitioners own two contiguous residential lots, Lots 7 and 8, in Block 436 of the subdivision of Block 111 in the City of Clewiston, Florida, which were transferred to them by warranty deed dated September 27, 1978. There is no issue regarding ownership of both lots. Petitioners obtained a building permit from the City of Clewiston to construct a duplex residence on Lot 7 at a cost of approximately $40,000 to match the one already existing on Lot 8. Lot 8 now contains a 1050 gallon septic tank for the use of that building and in February, 1985, Petitioners applied for a permit to install another 1050 gallon septic tank for the use of the new construction. The tank was to straddle the property line between Lots 7 and 8. No written denial of the permit was ever furnished to Petitioners. The evidence indicates, however, that at some point around that time, Petitioner Gonzalez was advised verbally, by someone in the County Office, that her application was denied because the projected septic tank was to be located at least partly on both lots which is not permissible unless the lots were to be in some way irrevocably tied together. According to the pertinent DHRS rule, a septic tank may not be located within 5 feet of a property line. Petitioners took no action to install the septic tank (although the second structure was constructed). In late July, 1986, Petitioner again applied for a permit to install the 1050 gallon tank in the same location and again the application was denied, this time in writing. The reason for denial given this time included the fact that the additional tank would far exceed the allowable maximum daily sewage flow for the parcel of land in question. Under applicable rules of DHRS, maximum daily residential sewage flow allowable is 2500 gallons per day per acre. The two lots taken together cover approximately 1/4 acre which would permit approximately 625 gallons of sewage flow per day. The existing tank on Lot 8 utilizes or exceeds the daily allowable sewage flow even without the installation of the subject tank which would double the flow. When the second application was denied, Petitioner requested a variance from DHRS which, on October 22, 1986, was denied for the reasons stated in the paragraph next above. The city of Clewiston's current sewage system is presently at full capacity and a moratorium on new hook-ups is and has, at all times pertinent hereto, been in effect. Consequently, Petitioners have not been able to hook up to the city system which is not expected to have available capacity until 1990 or 1991. In the interim, the new construction cannot be occupied since it cannot be connected to the existing septic tank, a new septic tank, or the city sewer system. When the new city system is available, hook-ups of both the new and the existing construction will be mandatory. The current Environmental Health Director, Mr. McDougle, contends that under the current state of the law regarding the location of septic tanks. The county would consider the property owned by the Petitioners as two separate lots even though they were conveyed on the same warranty deed. Therefore, the lots would be 50 x 115 feet each and the proposed installation, which straddles the joint line between the lots, would violate the setback requirements. This defect could be remedied , however , by the construction of a building on the joint line, by a deed restriction preventing the separation of the lots, or by some other approved action which would insure the two lots would always be treated as one. Petitioners have invested their life savings in the construction of the second building ( the one on Lot 7), which, while completed, perforce stands empty. Economically, the current situation is hurting them. There was no evidence to show, even if material, that installation of the septic tank in question would permit occupancy of the building, however.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Petitioners' application for a permit to construct a 1050 gallon septic tank on Lots 7 & 8, Block 436, Clewiston, Florida be denied. RECOMMENDED this 12th day of October, 1987, at Tallahassee, Florida. ARNOLD H. POLLOCK 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 12th day of October, 1987. COPIES FURNISHED: Elvira Gonzalez 601 Saginaw Avenue Clewiston, Florida 33440 Anthony N. DeLuccia, Jr., Esquire District Legal Counsel Department of Health and Rehabilitative Services Post Office Box 06085 Fort Myers, Florida 33906 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700
The Issue The issue for consideration in this case is whether Respondents should pay two fines of $500 each for allegedly violating Section 386.041, Florida Statutes (1997). (All chapter and section references are to Florida Statutes (1997) unless otherwise stated.)
Findings Of Fact Petitioner is the state agency responsible for issuing citations under Chapter 386. Respondents own an apartment complex located at 1202 Shadow Drive, Lakeland, Florida. In the two weeks preceding December 29, 1997, Respondents received complaints from several tenants regarding an overflowing sewer system in their rental units. On December 29, 1997, Respondents responded to the complaints by pumping sewage from the dosage chamber in the septic tank onto a vacant lot adjacent to the apartment complex. On December 30, 1997, Petitioner received a complaint that sewage was being discharged onto the neighboring lot of the apartment complex. Petitioner inspected the site on December 30, 1997, and advised Respondent, Shirley Crawford, and an employee named "Fred" that it was illegal to dump untreated sewage onto the open ground. Petitioner ordered them to immediately turn off the pump so that no more sewage could be discharged onto the adjacent lot. Respondent, Shirley Crawford, failed to respond immediately to the order. Respondents were unwilling to cooperate with Petitioner. Petitioner issued a citation to Respondents for violating Section 386.041. Although Respondents did unplug the pump later that same day, the pump was reset to work through the night. They continued pumping discharge onto the adjacent lot during the following day. Petitioner received another complaint on January 5, 1998, alleging that the septic tank at the same address was discharging from the tank onto the ground surrounding the rental units. Petitioner inspected the site. The drain field was breaking out. A probe placed into the drain field verified that the discharge on the ground was coming from the septic tank. It was determined that there was a hole in the drain field. Furthermore, a PVC pipe used to drain the system on December 30, 1997, had not been removed from the system as required on December 30, 1997. A second citation was issued for violating Chapter 386. As part of the citation, Petitioner instructed Respondents to pull a permit by the following week to repair the system so that they could accommodate the needs of the apartment complex. Respondents pulled a permit within the following week. However, they failed to repair or replace the septic system according to the specifications and requirements of the permit. Respondents failed to supply Petitioner with a schedule for pumping sewage out of the tank until the system was repaired according to the specifications and requirements of the permit. The work Respondents performed on the system was completed on March 15, 1998. Respondents modified the faulty system by covering or plugging pipes leading into the faulty system from another older system. It took approximately 45 minutes to one hour to plug these pipes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that Petitioner enter a Final Order sustaining the two citations issued on December 30, 1997, and January 9, 1998, imposing fines of $1,000, and denying the request to dismiss the citations. DONE AND ENTERED this 2nd day of July, 1998, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of July, 1998. COPIES FURNISHED: Wayne and Shirley Crawford 4732 Highway 98, North Lakeland, Florida 33810 Roland Reis, Esquire Department of Health 1290 Golfview Avenue, 4th Floor Bartow, Florida 33830 Angela T. Hall, Agency Clerk Department of Health 1317 Winewood Boulevard Building 6, Room 136 Tallahassee, Florida 32399-0700 Dr. James Howell, Secretary Department of Health 1317 Winewood Boulevard Building 6, Room 306 Tallahassee, Florida 32399-0700
Findings Of Fact At all times pertinent to the allegations herein, the Petitioner, Pinellas County Construction Licensing Board, (Board), was the Pinellas County agency responsible for the certification and regulation of construction specialties. Respondent was certified by the Board as an irrigation systems specialty contractor under license C-5997 in force at the time. Respondent was the qualifying contractor for Sun City Lawn Irrigation. On or about May 17, 1994, Respondent contracted with William J. Schneider, who resided at 5661 25th Avenue North in St. Petersburg, to install a lawn irrigation system in Mr. Schneider's front lawn. The automatic system was to incorporate 2 zones and was, according to the contract and the testimony of Mr. Schneider, to be connected to Schneider's then existing 1/2 horsepower electric pump which drew water from several wells on his property. Mr. Schneider claims there are four wells. No evidence was introduced to contradict that. On the day the system was installed, Mr. Schneider was not at home. Respondent's employees performed a test of the water capacity on Mr. Schneider's property. At first, the wells produced 10 gpm, which was adequate for the system, but after a few minutes of drawdown, they found that the wells were producing only 4 gpm, along with some air. At that time Mr. Freestone, Respondent's sales manager, spoke with Mrs. Schneider about the situation, advising her there were two options open. One was to install a larger pump and the second was to connect the system to the city water supply. Mrs. Schneider returned to the house, presumably to call Mr. Schneider to get his decision on the matter. He claims she did not reach him. Respondent claims that she thereafter returned with directions to install a water line for connection to the city system. This is completely contrary to what Mr. Schneider had wanted and to what is included in the contract. Mr. Schneider claims he did not want to connect to city water because of the added expense of doing so, and he claims he made this very clear to Respondent's employees at the beginning and at all times thereafter. In any case, the system was installed and was, somehow, connected to the city water system near the place where the water line enters the house. In addition, no backflow preventer was installed to insure against contamination getting into the water system as is required by the building code. Most, if not all, the work on this project was completed by Respondent's son and employee, Scott, who was not present at the hearing. Respondent attempted to introduce an unsworn written statement by Scott Bosworth, but it was not accepted. Scott advised Mr. Schneider, when he returned from work that day, that they had been unable to use his pump and wells. Nonetheless, Mr. Schneider paid Respondent in full for the work for which he had contracted, except for a supplemental charge in the amount of $190.95 for the tie in to the city water and the valves and other items connected therewith. Mr. Schneider claims that he made several calls to Respondent's office in an effort to correct the situation but was unable to reach anyone who could give him satisfaction. However, the evidence indicates that on at least one occasion, Mr. Schneider got through and was called back by Mr. Freestone with whom he discussed the situation and the additional charges. He was subsequently advised by counsel that he did not have to pay the additional sum and did not do so. Some time thereafter, Mr. Schneider was advised by the city that he would be fined because of the illegal installation. He then contacted another irrigation company, run by Mr. Williams, who examined the system and determined that the irrigation system installed by Respondent had been connected to the city water system and that no backflow preventer had been installed. A check with the city's building department revealed that no permit had been procured for this installation. Respondent's license to install irrigation systems does not include authority to connect that system with the public water system. That procedure must be done by a licensed plumber. Respondent and Mr. Freestone, the only individuals in the company who had the authority to arrange with a plumber to make the actual hook up to the city system, both deny that any arrangement was made by them to have the system connected to the city water system. Mr. Schneider arrived home on the day in question to find only Respondent's son, Scott, at work on the project. Scott indicated it would be necessary to move two bushes near the house to facilitate connection of the system with the water supply. Mr. Schneider contracted with Scott to move the bushes and remove them from the premises. Scott moved them but failed to remove them. In light of the fact that Scott was working on the system at the time Mr. Schneider arrived home, and the system was found to be connected to the city system thereafter without anyone else touching it, it must be concluded that the connection was made him. Respondent admits he did not come to the property in question while the system was being installed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be issued by the Board suspending the license of the Respondent for a period of six months with provision for withholding execution of the suspension for a period of one year conditioned upon such criteria as may be deemed appropriate by the Board. RECOMMENDED this 31st day of March, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 31st day of March, 1995. COPIES FURNISHED: William J. Owens Executive Director Pinellas County Construction Licensing Board 11701 Belcher Road Largo, Florida 34643-5116 Larry J. Bosworth 8901 14th Street North St. Petersburg, Florida 33716
The Issue Whether the Petitioner's Application for Variance from Chapter 10D-6, FAC Standards for Onsite Sewage Disposal Systems should be approved?
Findings Of Fact By letter dated September 9, 1986, the County Engineer for Volusia County, Florida, denied the Petitioner's request for expedited subdivision. On or about October 15, 1986, the Petitioner filed an Application for Variance from Chapter 10D-6, FAC Standards for Onsite Sewage Disposal Systems (hereinafter referred to as the "Application"). On or about November 12, 1986, the Volusia County Health Department recommended denial of the Application. By letter dated November 24, 1986, the Respondent advised the Petitioner that his Application had been placed on the agenda of the Variance Review Group's December 4, 1986 meeting. By letter dated December 16, 1986, the Respondent informed the Petitioner that the Application was denied. By letter dated January 7, 1987, from the Petitioner's counsel, the Petitioner requested a formal administrative hearing to contest the proposed denial. The property involved in this case is located at 1083 Sheri Boulevard, Daytona Beach, Volusia County, Florida (hereinafter referred to as the "Property"). The Petitioner's parents originally owned 10 acres of property. By warranty deed dated September 12, 1958, the Petitioner's parents gave the Petitioner the Property which consisted of two lots from the ten acres, described as follows: The Easterly 149 feet of the Westerly 295 feet of the Southerly 1/2 (one half) of Lot 140, Blake, as per map in Map Book 1, page 38, of the public records of Volusia County, Florida. The Petitioner's parents also gave five acres of the ten acres to another individual in 1958. This property was developed as a mobile home park. The Property measures 150 feet x 150 feet. The property immediately to the west of the Property is currently owned by the Petitioner's Father. It measures 155 feet x 150 feet. Between 1958 and 1960 the Petitioner began construction of a single- story house on the Property. Also between 1953 and 1960 the Petitioner placed a mobile home on the Property. The Petitioner and his family lived in the mobile home while his house was being constructed. Two septic tanks were placed on the Property sometime between 1958 and 1960. The mobile home located on the Property was hooked up to one of the septic tanks. In 1960 construction of the house was completed and the Petitioner and his family moved into the house. The mobile home remained on the Property until 1961 when it was permanently removed. When construction of the house was completed, both septic tanks were connected to the house. Since 1961, trailers have been temporarily on the Property and have been hooked up to one of the septic tanks. Use of the septic tank by trailers has been infrequent, however, since 1961. Recently the Petitioner placed a mobile home on the Property and hooked it up to one of the septic tanks. The Petitioner was cited by the Volusia County Code Compliance Board for having the mobile home located on the Property. Subsequent to the action by the Volusia County Code Compliance Board the Petitioner attempted to subdivide the Property. The Petitioner proposes using a portion of the Property and a portion of his Father's adjoining property to create a lot 60 feet by 150 feet. The evidence failed to prove how much of the Property and how much of the Petitioner's Father's property would be used to create the new lot. The Petitioner wants to put a mobile home on the new lot and hook it up to one of the existing septic tanks on the Property. The Petitioner plans to provide the mobile home as a home for his daughter who is unemployed. Both of the existing septic tanks on the Property would remain on the Property if the subdivision is approved. The Property is .39 acres and the Petitioner's Father's adjoining lot is .48 acres. The Property and the Petitioner's Father's adjoining property have existing single story residences and use wells located on the property. The private well on the Property is less than 75 feet from the septic tanks. If a new lot is created, it will be located between the Property and the Petitioner's Father's property and all three lots will be less than 1/2 acre in size. The two septic tanks on the Property are larger than normal and the Petitioner is not aware of any problem with the two tanks. The Petitioner does not believe that there has been any contamination of his well caused by the septic tanks. Mobile homes are located in the mobile home park and on other lots in the area of the Property. The mobile homes are located on lots of less than 1/2 acre and they use septic tanks. There is therefore, a high concentration of septic tanks in the area. Mobile homes are frequently moved on and off property in the area but other lots do not remain vacant for any appreciable time. The Respondent reviewed the Petitioner's Application in accordance with its Rules.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner's Application be denied. DONE and ENTERED this 24th day of April, 1987, in Tallahassee, Florida. LARRY J. SARTIN 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 24th day of April, 1987. COPIES FURNISHED: Mr. Sam Power, Clerk Department Of Health and Rehabilitative Services 1323 Wine wood Boulevard Tallahassee, Florida 32399-0700 Mr. Gregory Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 James L. Rose, Esquire Rice and Rose Post Office Box 2599 Daytona Beach, Florida 32015 Frederick J. Simpson, Esquire District IV Legal Counsel Department of Health and Rehabilitative Services Post Office Box 2417 Jacksonville, Florida 32231-0083
The Issue Whether Respondent, Virgil Cardin, d/b/a Virgil Cardin Septic Tank Service (Respondent or Cardin), committed the violations alleged in the Administrative Complaint for Imposition of Administrative Fines and Revocation of Septic Tank Contractor License and Business Authorization, dated December 28, 2012, and, if so, what penalty should be imposed.
Findings Of Fact The Parties Petitioner is the state agency charged with the responsibility of administering the Standards for Onsite Sewage Treatment and Disposal Systems (SOSTDS). The installation, repair, and/or alteration of any septic tank system fall within the purview of Petitioner's authority. Public health concerns mandate that all septic tank systems be operated according to governing laws and rules. Respondent is a resident of the State of Florida and is registered by Petitioner to provide septic tank contracting services within the state. Respondent's registration number is SR0890865. Respondent owns and operates Virgil Cardin Septic Tank Service located in Lakeland, Florida, and the company is authorized to provide septic tank contracting services. The company's authorization number is SE093690. Septic tank contracting services are governed by SOSTDS. The Controversy It is undisputed that a permit must be obtained prior to performing repairs to a septic tank system. In Polk County (where all actions complained of occurred), a septic tank service company is required to apply for a permit before work is performed, obtain an inspection by appropriate authorities before beginning work, and complete all work in accordance with designated standards. A septic tank pump-out does not require a permit. Any work that would involve the exposure of the drain fields and/or the refitting of portions of the septic system would require a permit. The controversy in this case stems from Respondent's failure to obtain a permit before beginning repairs to a septic tank system located at 4931 Rolling Meadows Drive, Lakeland, Florida. It is undisputed that Respondent did not, in advance of starting work at the home, obtain a permit. The Arguments The Digans own a home located at 4931 Rolling Meadows Drive, Lakeland, Florida. For several years, the Digans have experienced problems with their septic tank system to the point that waste from the septic system has backed up into their home. Previously, Respondent addressed the Digans' septic tank system problems by pumping the waste from the tank, thereby eliminating pressure on the overwrought system. On or about August 24, 2012, Respondent went to the Digans' home and pumped out the septic tank. A permit for the work done that date was not required. Given the history of the problems with the Digans' system, it became apparent to the owners and Respondent that comprehensive repairs to the system were necessary. As there was no way to predict when another pump-out might be required, it was not surprising that approximately one week later Respondent returned to the Digans' property for additional work. On that date, September 1, 2012, Respondent could not pump out the Digans' tank, because his truck was already full. Instead, Respondent took a backhoe to the Digans' property and began to dig trenches for the drain field. Respondent's employee began to construct a septic drain line header pipe with drain field chamber end plates attached. Respondent exposed the Digans' septic system as if he were going to make repairs to the system. When confronted by two environmental supervisors who observed Respondent's actions, Respondent readily admitted he did not have a permit for the work. At first, Respondent stated that the homeowners could not afford permits. Later, Respondent maintained that the work he performed on September 1, 2012, did not require a permit. Petitioner maintains that Respondent went to the Digans' home on September 1, 2012, to make repairs to the septic tank system without prior inspection or a required permit. The Analysis Prior to September 1, 2012, Respondent knew or should have known that the Digans' septic tank system needed extensive repairs. Respondent had pumped out the tank several times and should have known that the system was not functioning as intended. Prior to September 1, 2012, Respondent knew or should have known that repairs to any septic tank system require an inspection and permit. On September 4, 2012, after being caught the prior Saturday on the Digans' property, Respondent applied for a permit for the repairs to the Digans' septic tank system. On September 5, 2012, a repair permit was issued for the Digans' property. On September 7, 2012, the repairs to the Digans' system were inspected and approved. There was no emergency on September 1, 2012, that necessitated repairs to the Digans' septic tank system on that date. Pumping out the Digans' tank on that date would have addressed any immediate concern. On-site inspections before septic tank systems are repaired are critical to public health because they assure that groundwater contamination is avoided, that the existing tank is sound and will function as intended, and that setbacks to other properties, wells, or systems are adequate. Respondent knew or should have known that performing any work before an inspection negates the safeguards to public health concerns. Respondent knew or should have known that the materials needed to adequately repair the Digans' septic tank system exceeded the chambers he took to the site on September 1, 2012. Digging up the Digans' system on September 1, 2012, created a sanitary nuisance. Respondent's History In the event a violation is found in this case, Respondent's disciplinary history would be relevant in considering what penalty, if any, should be imposed. To that end the following findings are made: Respondent has previously been found in violation of failing to call for a required inspection; and Respondent has previously been found in violation of practicing fraud or deceit, making misleading or untrue misrepresentations, or misconduct that causes no monetary harm to a customer.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent's authorizations to perform septic tank services be suspended for a period not less than 90 days. Additionally, it is RECOMMENDED that Respondent be required to pay an administrative fine in an amount not less than $2,000.00. DONE AND ENTERED this 6th day of May, 2013, in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 6th day of May, 2013. COPIES FURNISHED: John H. Armstrong, M.D., F.A.C.S. State Surgeon General Department of Health Bin A00 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 Jennifer A. Tschetter, General Counsel Department of Health Bin A02 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 Althea Gaines, Agency Clerk Department of Health Bin A02 4052 Bald Cypress Way Tallahassee, Florida 32399-1703 Tony C. Dodds, Esquire Law Office of Tony C. Dodds 904 South Missouri Avenue Lakeland, Florida 33803-1034 Roland Reis, Esquire Polk County Health Department 1290 Golfview Avenue, Fourth Floor Bartow, Florida 33830-6740
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner violated the provisions of Chapter 381, Florida Statutes, and Chapter 64E-6, Florida Administrative Code, referenced herein, by allegedly illegally connecting a second dwelling to an existing, approved septic system.
Findings Of Fact On January 17, 2002, the Petitioner was given a written Notice of Violation and advised that an illegal sewer connection from a new or second mobile home on her property to her existing sewer system, serving her primary residence would have to be disconnected. It was an illegal second connection on a single, permitted sanitary sewer system. The second home was not occupied and could not be legally occupied until the proper sewer connection and relevant permitting was obtained. On January 30, 2002, the inspector again visited the premises and determined the illegal connection to still exist and the Petitioner was then advised that the illegal connection would have to be disconnected. On February 28, 2002, the inspector returned and found that the illegal connection had been restored to the existing system. He observed a person hurriedly disconnect the system as he approached. The relevant pipe joint had been left un-glued so that it could be readily connected or disconnected. He again notified the Petitioner, in person, that the illegal connection would have to be disconnected. The Respondent cited the Petitioner for the illegally connected sewer system and seeks to impose a $500.00 fine. The Petitioner elected to formally dispute the position of the Respondent agency and pursued a formal hearing to contest the allegations. The Petitioner failed to actually appear at hearing and contest the evidence adduced by the Respondent agency. That evidence is credible and is accepted as unrefuted and supportive of the above Findings of Fact.
Recommendation RECOMMENDED that a final order be entered by the State of Florida Department of Health denying the Petition of Shirley Davis in its entirety and that a final order be entered imposing a $500.00, fine for the violations described in the above Findings of Fact and Conclusions of Law. DONE AND ENTERED this 16th day of September, 2002, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with Clerk of the Division of Administrative Hearings this 16th day of September, 2002. COPIES FURNISHED: Shirley Davis 140 West Putnam Grove Road Oak Hill, Florida 32759 John D. Lacko, Esquire Department of Health 420 Fentress Boulevard Daytona Beach, Florida 32114 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue Whether Petitioner's application for a septic tank permit application should be granted?
Findings Of Fact On July 29, 1987, Petitioner applied for a septic tank permit for a proposed individual sewage disposal system to serve a single family residence on Lot 40, Block P, Killearn Lakes Unit I (Unit 1), in Leon County, Florida. A septic tank system consists of a tank and a drainfield which is wholly or partly underground. The decision of whether to grant a septic tank system permit is greatly influenced by the elevation of the wet season water table in the area where the septic tank system will be located. Under normal circumstances, the elevation of the wet season water table can be determined by taking a boring of the ground in question using an auger. If water is found at the time the boring is conducted, that is an indication of where the water table is located. If no water is found, the elevation of the wet season water table can be determined by examining the soil removed from the ground for signs of mottling. Mottling is the discoloration of the soil caused by the interaction of water with the minerals in the soil. The process of mottling takes place over hundreds of years. Therefore, a rapid change in conditions may cause the elevation of the wet season water table to be different than what would be indicated by mottling. Because of the development of Unit I and the drainage method used in Unit I (sheetflow), the elevation of the wet season water table in Unit I is estimated to be between 12 and 20 inches higher than what is indicated by mottling. On July 7, 1987, a boring was taken on an indeterminate area on Lot 40, by Certified Testing, Inc., a private engineering firm. The evaluation of the boring resulted in mottling being present at a depth of 60 inches. On August 3, 1987, Ms. Teresa A. Hegg, an Environmental Health Specialist with HRS, took two borings on Lot 40. The first boring was taken in an area other than where the septic tank system's drainfield would be located. This boring resulted in mottling being present at a depth of 45 inches. The second boring was taken in the area where the septic tank system's drainfield would be located. This boring resulted in mottling being present at a depth of 22 inches. Based on the boring taken at the proposed site for the septic tank system, showing mottling at 22 inches, and the estimate that the wet season water table in Unit I is from 12 to 20 inches higher than mottling would indicate, the estimated wet season water table for Lot 40 is between 2 to 10 inches below the ground surface. Unit I has a history of septic tank system failures. Unit I was platted prior to January 1, 1972. There exists a very high probability that any septic tank system, even a mound system, installed in Lot P-40 will fail.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent issue a final order denying Petitioner's application for a septic tank permit. DONE and ENTERED this 28th day of July, 1988, in Tallahassee, Florida. JOSE A. DIEZ-ARGUELLES 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 28th day of July, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4085 The Respondent has submitted proposed findings of fact which are addressed below. Paragraph numbers in the Recommended Order are referred to as "RO ." The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection First phrase accepted. Remainder of paragraph supported by competent evidence but unnecessary to the decision reached. First two sentences accepted. Third sentence supported by competent evidence but unnecessary to the decision reached. Accepted. Accepted. 5,6,7,8,9,10 Supported by competent evidence but unnecessary to the decision reached. Accepted. Accepted. 13,14 Supported by competent evidence but unnecessary to the decision reached. 15. First sentence accepted. Second sentence rejected; the wet season water table on Lot P-40 is from 2-10 inches below grade. Third sentence accepted. COPIES FURNISHED: Salvatore A. Carpino, Jr., Esquire One Urban Centre, Suite 750 4830 West Kennedy Boulevard Tampa, Florida 33609 John R. Perry, Esquire Assistant District II Legal Counsel Department of Health and Rehabilitative Services 2639 North Monore Street Suite 200-A Tallahassee, Florida 32303 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue This case arises out of the Petitioner's objection to the issuance of a septic tank permit for property adjacent to his lot in Panama City Beach, Florida. The sole issue before the Hearing Officer, as alleged by Petitioner's pleading, is whether the applicant's permit for septic tank should be denied on the basis that it is in violation of Rule 10D-6.24, Florida Administrative Code, which requires that no septic tank be placed within 75 feet of a private water supply well. On November 15, 1982, by certified mail, the Bay County Health Department notified Petitioner of its intent to grant a permit for a septic tank at 6713 Gulf Drive, Panama City Beach, Florida. Thereafter, on December 13, 1982, Respondent filed a petition for formal proceeding, objecting to the issuance of the aforementioned permit and requesting a formal hearing. Pursuant to notice, a formal hearing was held at which the Petitioner testified on his own behalf and also called Paul Miller, an Environmental Sanitarian for the Bay County Health Department as a witness. Respondents called as witnesses Michael Sarra, Bay County Health Department, William Curtis Wright, and Thomas F. Gladstone. Petitioner offered and had admitted two exhibits and Respondents offered and had admitted three exhibits. The Petitioner, subsequent to the formal hearing, filed with the undersigned Hearing Officer two late-filed exhibits. No permission had been granted or requested at the formal hearing for the filing of late-filed exhibits and, therefore, those exhibits were neither considered nor utilized as a basis for the Findings of Fact or Conclusions of Law in this Recommended Order. Petitioner submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that those findings of fact are not adopted herein, they were considered by the undersigned Hearing Officer and determined to be irrelevant to the issues in this cause or not supported by the evidence.
Findings Of Fact On or about June 15, 1982, Mr. Dewayne Dilmore, by and through his contractor, Tom Gladstone, applied for a septic tank permit for a new residence located at 6713 Gulf Drive, Panama City Beach, Florida (See Petitioner's Exhibit B). After a required change in the design drawings reducing the structure from a 3-bedroom to a 2-bedroom residence, the application was determined to be in compliance with all statutory and regulatory requirements and was approved by the Bay County Health Department. Petitioner, Samuel M. Torrence, owns a residence at 6715 Gulf Drive, Panama City Beach, Florida. This home is west of and contiguous to Mr. Dilmore's lot. In response to a Notice of Intent to issue a septic tank permit for the adjacent lot, 6713 Gulf Drive, Mr. Torrence objected on the grounds that such septic tank would be located within 75 feet of his private water supply well. Prior to the June 15, 1982, application by Mr. Dilmore, there was an existing septic tank on Mr. Dilmore's lot. This septic tank had been on the lot since April, 1961. The Petitioner's home at 6715 Gulf Drive was constructed in 1968 or 1969. 4 The replacement septic tank on the applicant's lot will be located farther from the Petitioner's property than the existing septic tank. The testimony of Paul Miller and Michael Sarra, along with the approved application, establish that the application of Dewayne Dilmore and the proposed replacement septic tank meet all requirements of Rule 10D-6.24, Florida Administrative Code, and Florida Statute 381.272(1982). Approximately two years ago, Mr. Torrence had his home at 6715 Gulf Drive hooked into city water, and has no private well hooked up to any of the pipes of his home. Although the Petitioner contended that the replacement septic tank would be within 75 feet of a private well on his property, there was no evidence in the record of the specific location on his property of a private well or any measurements he had made. The evidence does not show that there is in fact a private well within 75 feet of the location of the replacement septic tank. The Department of Health and Rehabilitative Services has an established policy of grandfathering existing septic tanks, and this policy permits the septic tank on the Dilmore property as a replacement of an existing septic tank regardless of whether said tank would be located within 75 feet of a private water supply well on the Petitioner's property.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is:: RECOMMENDED: That the permit for septic tank be issued and Petitioner's request to halt issuance should be denied. DONE and ENTERED this 12 day of May, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12 day of May, 1983. COPIES FURNISHED: Samuel M. Torrence Post Office Box 7106 Dothan, Alabama 36302 John Pearce, Esquire Department of HRS 2639 North Monroe Street Suite 200-A Tallahassee, Florida 32303 Mr. Mike Sarra and Mr. Paul Miller Bay County Health Department Post Office Box 1728 Panama City, Florida 32402 Mr. David H. Pingree Secretary Department of HRS 1323 Winewood Boulevard Tallahassee, Florida 32301
