The Issue Whether Petitioner may be granted a variance from Rule 64E-6.001(4), Florida Administrative Code, pursuant to Section 381.0065(4)(h)1., Florida Statutes.
Findings Of Fact Tony and Alma Moreno are owners of the building and premises located at 8250 Scenic Highway, Pensacola. They own the real property at that location all the way to road frontage right-of-way at Scenic Highway. The building had been in continuous existence in the same location for twenty or more years before Petitioner became connected with it. During that period of time, except for short hiatuses, either the Morenos or their lessees operated it as a licensed bar, most often under the name, "The Lighthouse Tavern." Sewage lines exist in the right-of-way at Scenic Highway, within 400 feet of the premises. The tavern is equipped with a septic tank. There has never been any history of septic problems on the tavern premises. The Lighthouse Tavern has always been a neighborhood bar of limited success. Martin MacAndrews has been putting amusement games in the tavern since 1978. He testified that during those twenty-two years, the average number of patrons has been eight to 14. Jim McDaniel has sold paper products to successive lessees since the 1970's. He has seen an average of 10 patrons during the day and up to 20 patrons at night. Charles Barcia, a more recent patron, has observed a maximum of nine patrons in the tavern. Denise Powell (nee´ Williams) leased the premises from August 7, 1998, until approximately September 28, 1998, during which time she operated the Lighthouse Tavern. She had approximately ten customers per day, used plastic barware, and had no septic problems. During the month or so she operated the tavern, she did not have the septic tank pumped. Ms. Powell's lease with the Morenos was not due to expire until July 31, 1999. However, on or about September 28, 1998, Hurricane Georges damaged the Lighthouse Tavern and wreaked destruction on Pensacola and much of the Florida Panhandle. The area was declared both a state and federal "disaster area." Ms. Powell immediately notified the Morenos, and they cancelled the lease by mutual agreement, because the premises were uninhabitable due to substantial water damage. Ms. Powell testified that but for Hurricane Georges, she would have continuously operated the Lighthouse Tavern under the terms of her lease from the Morenos. As it was, she abandoned the lease and the property. The Morenos made no repairs to the building. No commercial activity, as a tavern or otherwise, occurred on the subject property from September 28, 1998, through May 1, 2000, approximately a year-and-a-half. City water service to the property was terminated from October 12, 1998 until April 7, 2000. On April 5, 2000, Petitioner, a widowed mother, applied to Escambia County for an occupational license to run a tavern at that location. On or about April 7, 2000, Petitioner negotiated a new lease with the Morenos. It involved rate and terms favorable to Petitioner in exchange for her substantial investment (approximately $35,000, as of the date of hearing) in renovating the Lighthouse Tavern. Among other renovations to the property, Petitioner has replaced the tavern's back wall and outside deck, added two pool tables, coolers, two complete bathrooms, a three compartment sink, and a handwash sink. Very few of the fixtures, etc. are removable, let alone subject to resale. A five-year lease, Exhibit P-2, was executed on May 1, 2000. It limits Petitioner's use of the property to use as a tavern, so she cannot get her renovation money back by converting to another business. Paragraph 21 of the lease, purporting to be a lease/purchase option, has not been filled- out, so Petitioner's option to purchase the property is potentially unenforceable. Current Florida Administrative Code rules require septic tanks to have a minimum capacity of 1050 gallons, a filter, and a baffle. A baffle is a device to keep water and waste from going into the drainfields. On May 15, 2000, Ensley Septic Tank Service, operated by Agnes and Joe Nelson, pumped, inspected, and certified the existing septic tank as structurally sound. However, the existing septic tank is twenty years old and provides only 750 gallons. It is not baffled and does not have a filter. Its two drainfields are 75 feet and 69 feet, respectively, from the waterfront, whereas by Escambia County Ordinance, the current setback requirement is 100 feet. On May 25, 2000, the Department denied Petitioner a permit to utilize the existing septic tank, based on the contents of her application, which stated that the tavern occupancy would be 75 seats. Departmental analysis showed that 75 patrons would result in 1,000 gallons per day usage. The existing septic tank does not have that capacity. Before the execution of the lease, Petitioner made no inquiries of Respondent Agency. Likewise, no one told her before the execution of the lease that she would not be able to utilize the existing septic tank or use the premises for a tavern. Rather, Petitioner relied on her own interpretation of an Escambia County Ordinance providing additional time to meet County regulations for reopening a business (or nonconforming use) after closing the business due to Acts of God, and on the fact that Denise Powell's lease, by its terms, did not expire until July 31, 1999. When she was denied a permit to use the existing system, Petitioner applied for a variance for 75 patrons. Petitioner also filed a second application for variance and requested 24 patron occupancy. Petitioner went before the Department's Variance Review Board, which recommended granting the variance with the provisos offered by Petitioner. However, on July 18, 2000, the Department denied the requested variance, stating that the information provided by Petitioner failed to show that no reasonable alternative exists for the treatment of the sewage or that the discharge from the septic tank will not significantly degrade the groundwater or surface waters. The Department offered to permit the tavern to operate either with a connection to the existing sewer system or with a septic tank that meets the current requirements of the Florida Administrative Code. At hearing, Petitioner established that the tavern's water bills from 1996 to 1998 show a use of only 430 to 588 gallons of water per month. This amount reflects the low number of 10-20 patrons per day during that period of time (See Finding of Fact 4), but it also is only approximately three- quarters of the capacity of the existing septic tank. At hearing, Petitioner offered the following cumulative provisos to reduce water flow to the system: limit tavern hours to 11:00 a.m. to 2:00 a.m. (15 hours) daily; use plastic or paper cups; not serve food or mixed drinks; restrict beverages to beer and wine; and limit occupancy to 24 patrons. She offered to pump the existing septic tank more frequently and provide "port-a-potties," as needed. Petitioner anticipates using 24 seats inside, plus picnic tables on the deck. She offered to eliminate the outside seating. The deck constitutes one-quarter of the 900 square feet of the establishment. She will upgrade the septic system as her income from operating the tavern recoups her investment. She will close-up and terminate her lease if she cannot bring the premises "up to Code," that is, to meet the current Florida Administrative Code requirements for septic tanks and/or sewer connections, in one year's time. She has no objection to such provisos being attached to a variance, if one is granted. At hearing, certified septic tank engineers, Agnes Nelson and Joe Nelson, testified that the existing 750-gallon septic tank should handle 24 patrons and the water use would be further limited by using plastic or paper drink containers. In Mr. Nelson's opinion, since he found no salt water from the Bay or water table inversion in the tank when he inspected it, and since the drainfield slopes away from the building, the only way salt water would enter the existing septic tank is if it got above ground. Agnes Nelson conceded that high tide could fill the tank up. If, for any reason, the drainfields were not working, then the current septic tank would not work. However, because the building is between the beach and the drainfields; because, in her opinion, 24 patrons probably could not fit inside the building; and because there was so little solid waste in the tank when it was pumped, Ms. Nelson doubted that the tide and the drainfields would create a problem, even in ordinary rainy weather. Unfortunately, in rendering her opinion, Ms. Nelson did not consider the seating capacity of the tavern's deck or the effect on the surface waters of Escambia Bay of operating the tavern with the existing system. As of the date of hearing, the Morenos were in agreement with all of Petitioner's efforts to obtain a variance. They also will allow her to bring the premises "up to Code," if she can. The Department's current opposition to granting a variance with the provisos offered by Petitioner is based in part on immaterial disputes between the parties over who signed the original application for variance and who filled in the number of seats as 75. The Department also is mistrustful of Petitioner because her second variance application stated the building constituted 1,200 square feet. Because the Department and Petitioner now agree that the premises comprise 900 square feet, the error in the second application is also irrelevant. The Department's current opposition to granting the variance with the foregoing provisos volunteered by Petitioner is at least in part due to the on-site audit, wherein Departmental staff determined that the premises, including the outside deck, actually could accommodate 60-75 living, but not necessarily seated, patrons. The Department sees this as an impediment to occupancy being limited to 24 patrons, in practice. Human nature is such that if a bar has a large, outside deck in a tropical climate, it will probably have more patrons then those sitting in the 24 "seats" provided. While this concern might be speculative in other realms, in dealing with possible contaminants to groundwater or to the surface waters of Escambia Bay, it is a legitimate, if uncodified, concern. Joseph Scott Hale, Environmental Health Supervisor I, made the following suggestions which do not require a variance. Petitioner could connect her premises to the existing sewer at the 75-person occupancy limit; or could install a septic tank or tanks and drainfield(s) in accordance with Departmental rules for a 47-person occupancy limit; or could install a much more modest tank and drainfield system for a 24-person occupancy limit. Petitioner has received written bids to accomplish such alternatives in the following ranges. (1) Installation of the necessary plumbing and pumps to connect to an accessible sewer line is available at a cost of $27,628 to $28,450, although these costs could be inflated to more than $40,000 by adding a grinder station and by charges from CSX railroad for access across its right-of-way to the existing sewer lines; and (2) Installation of one or more septic tanks and drainfield systems in accordance with current rules and in a size for an occupancy capacity of 47 is available for a price ranging from $28,032 to $29,465. Neither of these options is currently feasible for Petitioner, because she has spent her savings on the completed renovations and has only $1,000 +/-, on deposit at this time. She has no current income. Without a contract to purchase the tavern property, she does not believe she can obtain financing. She is not eligible for an upgrade grant from the State because the tavern is commercial property. Petitioner feels that it would be necessary for her to run the tavern at a profit for a year at a minimum capacity of 24 seats in order to be able to pay for either of the foregoing possibilities. She cannot get an alcoholic beverage license without the variance. Petitioner is satisfied that if she cannot make a go of the tavern within one year, she can rescind the lease. The Morenos were silent on this issue. It is not necessary to interpret the lease on this score in order to resolve this case. Respondent construes part of Mr. and Mrs. Nelson's testimony as providing a third, cost-effective, and reasonable alternative for Petitioner in the form of a septic tank and drainfield which could be installed according to current Code with an occupancy capacity of 24 patrons at an approximate cost of $3,600 to $4,000. This oral estimate was testified to by Mrs. Nelson, who, although a certified septic tank inspector, does not actually do installing of septic tanks. She conceded that dollar figure was purely a guess and based on one elevated tank of 1050 gallons with a baffle. Mr. Nelson, who does the actual installing, estimated that more than one tank, a mount system, and a pump or two might be necessary, at additional cost. His thinking is in line with the components of the other written estimates Petitioner has received. Accordingly, it is found that the estimate that Ensley Septic Tank Service can bring the existing system up to Code at a cost of $3,600 to $4,000 to Petitioner is speculative and not a reasonable alternative. As is common, expert opinions were mixed on the danger, if any, to the groundwater and surface waters which would be occasioned by Petitioner operating the tavern under her foregoing proposed provisos without upgrading the current septic system. Petitioner's expert in civil engineering and degradation of groundwater did soil borings on the premises and hit no groundwater at 15 inches, even after two weeks of significant rain. However, his experience with soil analysis from "mottling" was limited, and accordingly, his opinion that water in the ground will never or rarely rise above 15 inches, so as to endanger groundwater or surface waters was not persuasive. Instead, I accept the greater weight of the evidence as a whole in order to make the following findings of fact. The top of the drainfields are located 12 to 22 inches below grade and occupy a one foot area, 24-34 inches below grade. The seasonal high water table is 15 inches below grade. The drainfields operate within the groundwater table. Current rules require drainfields to have a separation from the bottom of the drainfield to the top of the seasonal high water table so as to provide space for aerobic biological action. When a drainfield operates within the water table, no opportunity exists for aerobic biological action. Anaerobic biological action is not effective in killing viruses and other pathogens. Viruses can travel in soil from a drainfield to surface water at a rate of 100 feet in eight hours. Mr. Hale, (see Finding of Fact 30), who was accepted as an expert in groundwater table determination, has an impressive list of credentials, and among other qualifications, is State-certified in OSTDSs. He has personally witnessed water rising to the level of the leechfield in this location. Mr. Hale also took borings, but not in the leechfield. Even though standing water was not found until 32 inches below grade, the soil was saturated at 15 inches, which is the seasonal high water table and mean high water mark of Escambia Bay at Petitioner's waterfront. The usual groundwater high water table in this location is 24 inches below natural grade, and the temporary water table rises and falls, as affected by Escambia Bay tides and by rainfall. Another concern is that the leechfields average only 15 inches below grade, and soil "capillary action" or water "wicking" through the soil can result in contamination of the groundwater if they become saturated. The close proximity of the property to Escambia Bay presents the potential for pollution of surface waters. Mr. Hale reported that the tavern location is not subject to frequent flooding. However, it can, and probably will, flood, as before, during a hurricane. Mr. Hale testified further that but for the length of the cessation of business as a result of the hurricane (more than one year), the tavern could have continued to operate with eight seats and no danger to the groundwater. In his opinion, the existing system, unaltered, can handle waste disposal for only eight patrons. A 47-seat occupancy is the maximum allowable for a 1,000 gallon flow. Even though 24 seats would not be expected to exceed 1,000 gallons a day, 24 seats would not be accommodated by the existing system's 750 gallon tank, drainfields, leechfields, and insufficient set back footage. Mr. Hale reluctantly conceded that 22 seats might be "feasible," with all proposed provisos in place, plus the substitution of low flow toilets, but that solution would not be his best recommendation nor acceptable to the Department. According to Dr. Malcomb Shields, who was accepted as an expert microbiologist in the field of migration of pollutants from drainfields to surface waters, Escambia Bay is already above its threshold in dangerous nutrients. Dr. Shields further opined, with impressive scientific detail, that narrowing the zone in the drainfield, as on the Lighthouse Tavern property, makes the drainfields susceptible to more pathogens. In his opinion, the offered provisos would have absolutely no effect on the existing septic tank and system efficiency except to limit water and waste into the septic tank itself. Dr. Shields conceded that a variance granted upon the terms requested would not, by itself, cause significant degradation of water quality. However, he felt that perpetual use of the variance, even with the foregoing provisos, would, combined with all other factors present, contribute to surface water degradation, which is the test under the rule. Dr. Shields did not feel that a variance absolutely limited to one year's duration would have the same effect.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Health enter a final order which: Permits Petitioner to operate her tavern either with a connection to the existing sewer system or with installation of a septic tank and drainfield system in accordance with the current Florida Administrative Code rules for an occupancy capacity of 24 patrons; and alternatively Grants Petitioner a 12-month variance to utilize the existing tank and drainfield system upon the following terms: Petitioner shall obtain and maintain an annual OSTDS operating permit allowing inspection at will by the Department; Petitioner shall maintain an annual contract with a licensed septic tank contractor to inspect and service the existing OSTDS at least once per month, or more frequently as necessary; Upon notification by the septic tank contractor of any problem with the OSTDS, Petitioner shall provide port-a- potties sufficient for 22 patrons; During the 12 months the variance is in place, Petitioner shall provide a port-a-potty on any occasion of rain over eight hours' duration. Petitioner shall not open for business until low- flow toilets are substituted; Petitioner shall operate the premises as a tavern for no more than 12 months, during which 12 months Petitioner shall take all necessary steps to bring the system up to Code or to connect to the sewer line; During the 12 months the variance is in place, Petitioner shall limit hours of operation to 15 hours daily; eliminate all deck seating; provide no more than 22 seats inside; use only paper or plastic ware; serve no food or mixed drinks; and actively limit occupancy to 22 patrons at any one time; and At the end of the 12 months, the system shall be in compliance or the tavern shall be closed and remain closed until compliance is achieved. DONE AND ENTERED this 12th day of February, 2001, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 12th day of February, 2001. COPIES FURNISHED: Steven E. Melei, Esquire 3603 Mobile Highway Pensacola, Florida 32505 Rodney Johnson, Esquire Department of Health 1295 West Fairfield Drive Pensacola, Florida 32501 Theodore M. Henderson, Esquire Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Dr. Robert G. Brooks, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701
Findings Of Fact On October 15, 1982, Hal Thomas Reid Associates applied for a septic tank permit to serve a 16-room motel. On February 2, 1983, this application was amended to a 5,800 gallon septic tank to serve a 32-unit condominium and office. The lot on which this drain field is to be located is 70 feet by 100 feet. When the application was filed, the lot was inspected by the Citrus County Health Department. The elevation of the land averaged 2.5 to 2.9 feet above mean sea level. The 10-year flood plane in this area is 4.9 feet. Occasional high tides inundate this area; however, the water drains off rapidly and no one testified that water ever remained standing as long as seven consecutive days. Usually the water drains off in less than 24 hours. On March 1, 1983, an extremely high tide flooded this area and roads in the vicinity to a depth of approximately one foot. This water remained on the site less than 24 hours. The site is not located adjacent to state waters, is not an area designated as wetlands, and is without the dredge and fill permitting jurisdiction of the United States Army Corps of Engineers and the Florida Department of Environmental Regulation (Exhibits 20 and 21). By adding five feet of fill to the site, the bottom of the gravel below the drain pipes will be above the 10-year flood plane. The drain field capacity is adequate to handle the flow from 33 bathrooms of residential units. In approving this permit, the Citrus County Health Department used the 150 gallons per day discharge for residential units rather than the 100 gallons per day discharge from a motel unit. The water table at this location is two feet above mean sea level. This is determined by the elevation reached at high tides for 14 consecutive days. As a condition to Citrus County withdrawing as an intervenor in these proceedings, Applicant agrees: To revegetate and restore any alleged wetlands affected by the permit to a like or similar condition; To install three shallow draft monitor wells around the drain field towards the wetlands area adjacent to the site and towards Woods 'n Waters subdivision, establish an existing level of bacteria count prior to the activation of the septic tank, and to monitor said wells through the Citrus County Health Department on a quarterly basis; and In the event any monitor wells shall test at an unsatisfactory level, Applicant will forthwith correct this condition to the satis- faction of the Citrus County Health Department. This application meets all of the code requirements of Chapter 10D-6, Florida Administrative Code.
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner violated Florida Administrative Code Rules 64E-6.022(1)(b)2, 64E-6.022(1)(d), and 64E-6.022(1)(p) by making repairs to an on-site sewage disposal system without a permit, and by missing required inspections of the system, as outlined in the citation issued by the Respondent Agency dated August 29, 2005.
Findings Of Fact The State of Florida, Department of Health and Duval County Health Department (Department) is an Agency of the State of Florida, charged with enforcing the statutory and regulatory provisions regarding septic tank and drain field installations and repairs, in Florida, in accordance with Section 381.0065, Florida Statutes, and Florida Administrative Code Rule Chapter 64E-6. The Petitioner is the qualifying registered septic tank contractor for All Florida Septic Tank Service, Inc. (All Florida). He holds registration number SR00011389. He has 15 years of experience in the field of septic tank system construction and repair. All repairs of on-site sewage treatment and disposal systems (septic systems), are required to be performed under the supervision and control of a registered septic tank contractor. Mr. David Adeeb is president of United Properties of North Florida, Inc. He owned property (a residence) at 375 North Cahoon Road, in Duval County Florida. He was informed by his tenants at that residence that the septic tank and drain field were malfunctioning and needed to be repaired or replaced, sometime in April 2004. He therefore contacted All Florida, asking them to inspect the septic system at that residence and advise what repairs might be needed. He was advised by some representative of All Florida that the drain field needed to be replaced and was quoted a price of $2,000.00. All Florida requested that payment be made before the work was performed. Since Mr. Adeeb was out-of-town at the time he asked his tenant to temporarily pay All Florida for the cost of the repairs and/or installation, which they agreed to do. All Florida then issued a contract/proposal to United Properties on April 12, 2004. It was signed by a representative of All Florida, Michael Carver. Mr. Carver was an employee of All Florida. The contract/proposal indicated that a 360 square foot drain field would be installed at 375 Cahoon Road, for a price of $2,000.00, to be paid in cash. The contract/proposal was on All Florida letterhead and included a warranty. Mr. Adeeb was told by his tenant that the Petitioner, who is personally known to that tenant, was on the property while the work was being performed. No one applied for a permit to make any repairs to the septic system and the work was completed without a permit being obtained. Some five months later the system began leaking sewage from the new drain field. It had malfunctioned. Mr. Adeeb therefore again called All Florida to demand that they repair any malfunctions pursuant to the warranty. All Florida informed Mr. Adeeb that a new drain field with a mounded system and pump was needed. When Mr. Adeeb told a representative of All Florida that they had just replaced the drain field in April of that year, he was told that another $2,000.00 would be required to correct the drain field problem. Mr. Adeeb had just recently entered into a contract to sell the property at 375 Cahoon Road so, time being of the essence in closing the sale of the property, he felt he had no choice but to ask All Florida to go ahead with the repair work on the system which All Florida had been asked by him to repair five months previously in April of 2004. After the new system was installed Mr. Adeeb found that a permit had never been obtained for the first drain field work which he had requested from All Florida and that All Florida had done the work incorrectly. Mr. Adeeb objected to paying another $2,000.00 for the second repair job, performed in approximately September of 2004 and after much discussion with All Florida's representatives agreed to pay $1,000.00 dollars for the second stint of repair work. He made the payment and he received a warranty from All Florida for one year, good through September 22, 2005. The warranty was signed by Mr. Wayne Joyner, operations manager for All Florida. Mr. Joyner is also the qualifying registered septic tank contractor for AA Septic Tank Service, Inc., apparently a second corporation domiciled at the same facility and address as All Florida Septic Service, Inc. In May of 2005 Mr. Adeeb was again contacted by the now former tenant who had purchased the property from Mr. Adeeb. He was thus informed that the system had failed again and sewage was leaking onto the surface of the property from the drain field. Mr. Adeeb again contacted All Florida on May 23, 2005. A representative of All Florida informed him that he should fax a copy of the paid receipt and the warranty to them and that they would take care of the problem. On June 20, 2005, the home owner again contacted Mr. Adeeb and told him that no one from All Florida had repaired the drain field as yet. A faxed copy of the paid receipt and warranty was requested once again by All Florida. After numerous phone calls with representatives of All Florida, Mr. Adeeb was told that the problem was not due to All Florida's repair work and that Mr. Adeeb would need to get someone else to repair the system. The Petitioner, James L. Smith, the registered qualifying septic tank contractor for All Florida, testified that Michael Carver had performed the initial repair job in April of 2004 for Mr. Adeeb without the knowledge of the Petitioner or All Florida. He claims that Michael Carver never worked for All Florida. He introduced into evidence a letter purported to be from Michael Carver which was dated September 30, 2005, but signed on October 5, 2005. That letter states that Mr. Carver performed the first drain field repair job without the knowledge of All Florida and that he had created the receipt form which was apparently given to either the tenants at the residence in question, or to Mr. Adeeb, on All Florida letterhead without the knowledge of any officer, employee, or representative of All Florida. That letter, however, was not authenticated because Mr. Carver was not present at the hearing and could not be examined concerning it, or the details of Mr. Carver's involvement with the initial repair project. Moreover, the Petitioner was unable to explain how Mr. Carver would have known about the job at all if he had never worked for All Florida. This is because Mr. Adeeb established that in obtaining all of the repair work during 2004-2005 he had only contacted representatives of All Florida. He had never had contact with Mr. Carver. The Petitioner denied ever telling counsel for the Department in a telephone conversation that Michael Carver had worked for him during the week (i.e. All Florida) but that he let Mr. Carver do "side jobs" on his own on weekends. He claimed that Mr. Carver did the job in question in April of 2004 because the tenants knew him personally and arranged for him to do the work. The testimony of Mr. Adeeb and the Department's evidence in the form of its composite exhibit, is accepted as more credible than the self-serving testimony of the Petitioner, and it is found that All Florida and the Petitioner were responsible for the repair jobs at issue in this case because Mr. Adeeb contracted with All Florida for the work in question. Even if the initial job was performed by Mr. Carver, it is determined that he did so as employee or agent of All Florida and the Petitioner. Under the authority cited herein the Petitioner was responsible, as the qualifying, registered septic system contractor for All Florida, with performance and supervision of the work in question.
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 by the Respondent Department finding that the violations charged have been established and that a fine of $2,500.00 dollars be imposed for the violations. DONE AND ENTERED this 30th day of March, 2006, in Tallahassee, Leon County, Florida. S 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 30th day of March, 2006. COPIES FURNISHED: James L. Smith 8300 West Beaver Street Jacksonville, Florida 32220 Catherine R. Berry, Esquire Department of Health 515 West Sixth Street Jacksonville, Florida 32206-4311 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Timothy M. Cerio, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue Whether the Petitioner is qualified for licensure as a septic tank system contractor.
Findings Of Fact The Petitioner applied for Septic Tank Contractor Registration on or about June 1, 1993. Mr. Gerald Briggs, Environmental Health Specialist III for the Department, notified the Petitioner that his application was not complete on or about July 7, 1993, and returned the Petitioner's application to the Petitioner. In November 1993, the Petitioner refiled his application with the Department. By letter dated December 9, 1993, the Department notified the Petitioner of its decision to deny his application for septic tank contractor's registration because the Petitioner lacked the required three years of active experience as a worker who has learned the trade as an apprentice under a registered septic tank contractor. William A. Kerce, a registered septic tank contractor in Florida, testified at the hearing. He stated that he had employed the Petitioner prior to the Petitioner's graduation from high school in 1985, and continued to employ him up until he sold the business to Donald Rose. The Petitioner's duties for installation of new septic tanks and for repairs of existing systems were to dig up an area, prepare it to install a septic tank in the ground, prepare the drainfield, and recover the tank and drainfield with soil. In addition, Mr. Kerce used the Petitioner to assist him in pumping septic tanks. Mr. Kerce stated that he did not consider the Petitioner an employee, but considered him an independent contractor. Mr. Kerce would have had to pay social security and provide worker's compensation benefits if he had considered the Petitioner an employee. Mr. Kerce provided all the materials and equipment used on the job. Mr. Kerce used the Petitioner's services five or six days a week for well over three years. Petitioner did not work for Mr. Kerce when Mr. Kerce did not have work to do, about two weeks per year. Mr. Kerce paid the Petitioner by the job, $200-$300 for installing a system, and $15-20 for helping him pump a system. The Petitioner worked for Mr. Kerce, except when he was working for another septic tank contractor doing the same type of work. If the Petitioner was working for another man, Mr. Kerce waited and scheduled his work until the Petitioner was available. While Mr. Kerce was not present on the job constantly, Mr. Kerce did supervise and approve all work done by the Petitioner. He was required by law to do so. Mr. Kerce sold his business to Donald Rose in 1992. To Mr. Kerce's knowledge, Mr. Rose continued to use the Petitioner. Mr. Rose could not get qualified as a contractor with the Department. As a result, Mr. Kerce had to step back in and run the business. The Petitioner assisted Mr. Rose in installing unpermitted systems. When confronted, the Petitioner assisted in the investigation of Mr. Rose, under threat of prosecution. As a result, the court withheld adjudication in the Petitioner's case and placed him on probation which he has not completed. The Petitioner was employed by Rotor Rooter in Jacksonville, Florida, for six months, installing and repairing septic systems. The Petitioner has been employed by AA Septic since April 15, 1994. The Petitioner took steps in June, 1993, to start a septic tank business as C&J, including listing in the Yellow Pages. However, his application was not approved. He did install a system for Eleanor Rake at about that time without a permit; however, he later returned Ms. Rake's money when confronted by the authorities. The Petitioner was on probation when he did the work for Ms. Rake.
Recommendation Based upon the consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That the Department deny the Petitioner certification until he completes his probation for violations of laws directly related to installation of septic systems; and further, that upon the completion of that probation and reapplication, the Department register the Petitioner, who has established that he met the work experience requirements. DONE and ENTERED this 27th day of June, 1994, in Tallahassee, Florida. STEPHEN F. DEAN, 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 27th day of June, 1994. APPENDIX TO RECOMMENDED ORDER CASE NO. 94-0954 The following findings were adopted or rejected for the reason stated: Respondent's Findings Recommended Order Paragraph 1 Paragraph 1 Paragraph 2 Paragraph 2 Paragraph 3 Paragraph 3, 4 Paragraph 4 Subsumed in paragraph 4 and Preliminary Statement. Paragraph 5 Subsumed in paragraphs 5 and 6 which are based upon best evidence. Paragraph 6 Subsumed in paragraphs 8 - 11, which are based on best evidence. Paragraph 7 Subsumed in Preliminary Statement. COPIES FURNISHED: Edward Jackson, Esquire 515 W. Adams Street Jacksonville, FL 32202 Teresa Donnelly, Esquire Department of Health and Rehabilitative Services 1000 N.E. 16th Avenue Building H Gainesville, FL 32601 Robert L. Powell, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Kimberly J. Tucker, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
The Issue The issue in this case is whether the Petitioner, the Department of Health and Rehabilitative Services (HRS), should fine the Respondent, William Loiacano, d/b/a Gulf Coast Food Distributors, Inc., for maintaining a sanitary nuisance.2/
Findings Of Fact In 1990,6/ the Respondent, William Loiacano, d/b/a Gulf Coast Food Distributors, Inc., purchased property at 8402 Lemon Road, Port Richey, Florida, for purposes of relocating his on-going food distributing business. The prior owner operated a carpet business, with approximately five employees, at the location. The Respondent had about 45-50 employees. Shortly after the Respondent started doing business at the new location, he began to have problems with the existing septic tank system. The problem seemed to relate to the increased use of the toilets in the building by the added number of the Respondent's employees. In September, 1990, an HRS environmental health specialist inspected the premises and observed evidence of raw sewage bubbling to the surface from the septic system's drain field and flowing into a stormwater retention pond on the property.7/ The Respondent was directed to abate the nuisance, and a discussion of the Respondent's alternatives ensued. The Respondent rejected the first proposed alternative of connecting to a central public sewer. The nearest connection was over 1000 feet away and would entail significant cost to the Respondent. (The cost would have been even higher if gravity flow was not possible, and it became necessary to pump to the connection point.) The Respondent chose, with HRS' permission, the next alternative of trying to solve the problem by installing a second septic tank system on the property. The second septic tank system for which the Respondent applied, and which he had built, was designed for domestic use by 15 employees. In addition, after installation of the second septic tank system, the Respondent began processing a relish pack and a salad mix on the premises. The processing method for these products required the use of a great deal of water. On or about February 7, 1991, another HRS environmental health specialist inspected the premises and again found evidence of raw sewage bubbling to the surface, this time from the new septic system's drain field, and flowing into the stormwater retention pond. The amount of water flowing into the drainfields, from a combination of the use of the toilets in the building, together with the new processing operations taking place in the building, had overtaxed the double septic tank system, and the system failed. Given the quantities of water needed to process the new products, the Respondent should have anticipated, and probably was aware of, the system failure. The Respondent was directed to fix the problem within a week or stop the processing the new products on the premises. The Respondent tried several water conservation methods in an attempt to address the problem without having to either stop processing the new products or incur the cost of connecting to the central public sewer system. He knew, or should have known, that his efforts were futile, given the quantities of water needed to process the relish pack and salad mix. HRS also referred the matter to the Florida Department of Environmental Regulation. DER inspected on or about February 18, 1991, and told the Respondent that he could not dispose of the industrial waste from the operation of his business in the on-premises septic system without an industrial waste disposal permit. In connection with this, DER apparently advised the Respondent that he would be required to test the water in the stormwater retention pond for certain contaminants. The Respondent was unable to understand what he needed to test for, and how, and sought assistance from DER and HRS. Although there is evidence that HRS tried to help the Respondent by referring him to certain individuals employed by the DER for answers, the Respondent did not follow HRS' guidance. In any case, the efforts would have been futile, as the Respondent did not have enough property to dispose of the industrial wastes from the operation of his business on-site using a septic tank system. On or about June 19, 1991, a neighbor complained to the Respondent about the smell of raw sewage coming from the Respondent's septic system. The Respondent did not receive his neighbor's observations kindly. The neighbor complained to HRS and the Pasco County Sheriff's office. An HRS inspection on June 20, 1991, confirmed the existence of a sanitary nuisance on the premises. Again, raw sewage was bubbling to the surface from the new septic system's drain field and was flowing into the stormwater retention pond. HRS arranged for another meeting with the Respondent on June 27, 1991. At the June 27, 1991, meeting, HRS required that the Respondent stop processing the relish pack and the salad mix until he could hook up to the central public sewer. It was felt that the septic tank systems might be adequate pending connection to the central public sewer if the quantities of water required for processing those products on the premises were eliminated and if other preventive measures were taken. From June 27, 1991, forward to the date of the hearing, the Respondent purchased relish pack and salad mix from other suppliers rather than process them on the premises at 8402 Lemon Road. In addition, the Respondent continued to attempt to conserve water, had the septic tanks pumped out as frequently as required (sometimes practically daily), and had his employees utilize portable toilets in an attempt to avoid additional septic tank failures. After learning that excessive water use at the premises was partially a result of plumbing leaks, the Respondent also had the plumbing fixed. The Respondent also immediately initiated the long process of connecting to the central public sewer. He had a meeting with the assistant county administrator for utilities service for Pasco County on July 3, 1991. They discussed alternatives for connecting the Respondent's business. Initially, the County wanted the Respondent to pay to run a sewer line over 1000 feet to the south of his property to enable the County to efficiently connect other businesses and property owners in that area. But this option would have been costly to the Respondent, and there was no guarantee that gravity flow was possible between the Respondent's property and the connection point. If not, the Respondent also would have to pay the cost of pumping to the connection point. The Respondent hired an engineer to design an alternative that would be less costly. He also sought the cooperation of his neighbors, who would be required to connect to central sewer when the Respondent did. The engineer also worked with those neighbors in designing an alternate connection. On or about September 9, 1991, another meeting was held among the Respondent and his engineer and the county's utilites construction team. As a result of this meeting, the County agreed to modify the connection route in accordance with the Respondent's proposal. The Respondent's engineer continued his work on the design of the connection. HRS inspections on or about September 11 and 25, 1991, revealed that the Respondent's septic system was failing again and that raw sewage again was bubbling to the surface from the new septic system's drain field and flowing into the stormwater retention pond. HRS arranged to meet with the Respondent again on October 4, 1991, along with a Pasco County deputy sheriff and a DER industrial wastewater compliance inspector. At this meeting, the Respondent felt that the deputy sheriff was threatening to arrest him for violation of the law, and he angrily terminated the meeting and asked all of them to leave the premises. In December, 1991, the Respondent arranged a meeting with the County and his neighbors to discuss sharing the cost of the connection route the Respondent was proposing to build. The neighbors, realizing the Respondent's weak bargaining position, refused to share the Respondent's costs. At this point, the County conceded to pay the approximate $9,000 to jack and bore under the road, but the Respondent was required to pay to run a sewer line approximately 300 feet to the south and to construct a manhole on his neighbors' side of the road, as well as on his side of the road. (The second manhole would be used by the neighbors to connect their properties to the line the Respondent was building when the County required them to connect.) The total cost to the Respondent for his part of the construction of the connection to the public sewer will be approximately $24,000. On January 17, 1992, the Respondent paid a $3,428 impact fee for connecting to the central public sewer, based on projected water use. On January 23, 1992, the Respondent applied for a force main interconnect permit. At the time of the final hearing, the jack and bore and the construction of the new sewer line connecting the Respondent's property to the central sewer were about to begin. The evidence indicates that, once HRS made it clear to the Respondent on or about June 27, 1991, that connection to the central public sewer was the Respondent's only remaining option, the Respondent moved with reasonable dispatch. The time it took to arrange to be connected to the public sewer was within normal ranges, and there is no evidence that the Respondent did anything to cause unnecessary delays. (Delays, if any, were caused by the need for the Respondent's engineer to work with and get cooperation from the Respondent's neighbors, who were not as anxious as the Respondent to have the new sewer line built.) There also is no evidence that the Respondent processed relish pack or salad mix on the premises after June 27, 1991. In addition, the Respondent continued to attempt to conserve water, had the septic tanks pumped out frequently (sometimes practically daily), and had his employees utilize portable toilets in an attempt to avoid additional septic tank failures. The evidence also indicates that, after June 27, 1991, all concerned were hopeful that the measures the Respondent was taking would prevent, or at least minimize, septic system failures pending connection to the public sewer. After June 27, 1991, HRS presented direct evidence of septic tank system failures only on two occasions in September, 1991. The evidence is that, after becoming aware of the system failures in September, 1991, HRS sought the imposition of a fine against the Respondent. The evidence suggests two other important motivating reasons for HRS' action: first, not being aware of the actions the Respondent took between June 27 and September, 1991, to connect to the central sewer, HRS mistakenly believed that the Respondent was ignoring its instructions; and, second, HRS mistook the Respondent's angry outburst at the meeting at the Respondent's place of business in September, 1991, when he felt he was being threatened with arrest for violation of the law, as being evidence that the Respondent was not genuine in his apparent concern and efforts to respond to HRS' guidance and instruction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Health and Rehabilitative Services (HRS) enter a final order fining the Respondent, William Loiacano, d/b/a Gulf Coast Food Distributors, Inc., in the amount of $5,000. RECOMMENDED this 29 day of April, 1992, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 day of April, 1992.
Findings Of Fact At all times material to this proceeding, Respondent, James A. Tipton ("Tipton"), has been a registered professional engineer in the State of Florida, having been issued license number PE 0018147, which expires on January 31, 1987. Tipton employed the services of Robert Corno as a field man for taking samples to establish soil profiles, site characteristics and existing water tables for septic tank applications prepared and filed by Tipton. Corno had actual authority from Tipton to conduct tests, site examinations and evaluations and to submit his findings to Tipton. Sometime before April 8, 1985, Tipton was retained to perform professional engineering services in connection with the preparation and filing of an application for a septic tank on lot 168, block 3, Charlotte Ranchettes Subdivision in Charlotte County ("lot 168"), owned by Joseph Duseo. Tipton sent Corno to lot 168 on April 13, 1985, to examine and evaluate the site, take soil samples and make other observations that would have to be reported to Tipton in connection with Tipton's work. Corno completed his work and reported to Tipton. Corno did not bring Tipton the actual soil samples. On April 8, 1985, Duseo's general contractor told Corno about a well on lot 168. When Corno visited the site, he observed the well. The well is an artesian well, about 3 feet high and six inches in diameter. The well is an irrigation-type well and is non-potable. The well was within fifty feet of the drain field of the septic system Tipton proposed for lot 168. The well also is approximately 5 to 10 feet from the north property line. Corno knew at the time of his visit to the site that the well was not plugged. However, Corno understood that Duseo was in the process of arranging with the Southwest Florida Water Management District to have the well plugged. Corno did not tell Tipton about the well before Tipton prepared and filed the application for the proposed septic tank. Therefore, Tipton did not know there was a well on lot 168 when he was preparing the application for the septic tank permit. Tipton did not ask Corno any questions calculated to reveal whether there was a well on lot 168. Corno held the belief that non-potable wells, especially those that were to be plugged, did not have to be shown on septic tank permit applications. There was evidence about a survey of lot 168 certified by a land surveyor employed by a firm of professional engineers which did not show any well on lot 168. However, Tipton did not have access to the survey before he prepared the septic tank permit application on lot 168. (The survey bears two dates, April 17 and April 18, and was not signed until April 25, 1985.) On or about April 15, 1985, Tipton signed and certified the septic tank permit application for lot 168. The application was filed at the Charlotte County Public Health Unit (Health Department) on April 16, 1985. The application indicates "none" in the space provided to indicate the "location of wells within 75 feet of property lines." The well on lot 168 is an important consideration which should have been depicted on the application. Septic tank drain fields could pollute a well. Even if Tipton had known that the well was supposed to be plugged, it was not plugged until July 1985. Failure to show the well was a serious omission. Tipton was negligent for relying on Corno without having an understanding whether Corno would report to him the existence of non-potable wells within 50 feet of the drain field of a septic system or within 75 feet of a property line if the well was likely to be plugged. If he had used due care, Tipton would have either made explicit inquiry of Corno sufficient to reveal the existence of the well or ascertained from Corno in advance that he would report to Tipton the existence of any well within 50 feet of the drain field of a proposed septic system or within 75 feet of property lines. Having failed to exercise due care, Tipton did not realize that Corno would not be reporting to him the existence of a non-potable well which was supposed to be plugged in the future. A few days after he filed the application, Tipton learned about the well on lot 168. But at about the same time, Duseo and his contractor began discussing construction alternatives that would change the septic system and require a new septic tank application. Therefore, Tipton did not immediately amend the April 15 application to show the well. In mid-May, Tipton filed a new application for the different septic system. The new application, not in issue in this case, showed the well. The application also contained a soil profile which probably is not accurate. However, Tipton's soil profile simply reflects the information reported to him by Corno. While Tipton's soil profile does not correspond with soil profiles from other test holes dug in the area of the proposed drain field by the Health Department and an expert witness, the information Corno reported to Tipton was well within the realm of possibilities for soil in the area of lot 168. Corno generally seemed to be a qualified and experienced field man who used proper tools to do his job. There was nothing suspicious about Corno's information, and there was no reason for Tipton to suspect that it was false or fraudulent. While it is the better practice for a professional engineer to require his field man to deliver the actual soil sample to support a soil profile report, this is not required of professional engineers if there is no reason to suspect that a field man's soil profile report is false or fraudulent. On the application, Tipton estimated the high water table on lot 168 at 2.2 feet below existing grade. While other expert witnesses estimated a higher high water table, the evidence did not prove that Tipton was negligent in his estimate. Some of the conflicting estimates were Health Department estimates which, the evidence indicates, tend to be high to be on the safe side. Others were estimates on permit applications which may have been influenced by the Health Department's desires and which may not reflect the engineers' actual estimates. Of all the estimates, only Tipton's was supported by testimony how the estimate was derived. (Tipton used what he called Darcy's Law.) Finally, Petitioner's own expert witness testified that Tipton's high water table estimate could not be called negligent.
Recommendation Based upon the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Board of Professional Engineers enter a final order holding Respondent, James A. Tipton, guilty of negligence in the practice of engineering under Count I of the Amended Administrative Complaint (but dismissing Count II of the Amended Administrative Complaint) and imposing an administrative fine in the amount of five hundred dollars ($500.00). RECOMMENDED this 19th day of May, 1986, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of May, 1986. COPIES FURNISHED: Ms. Sarah Logan Executive Director Board of Professional Engineers 130 North Monroe Street Tallahassee, FL 32301 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 Salvatore A. Carpino, Esq. General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 Wings Slocum Benton, Esq. Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 John Charles Heekin, Esq. C-1 Ocean Plaza 21202 Ocean Blvd. Port Charlotte, FL 33952 APPENDIX The following are specific rulings on all the parties' proposed Findings of Fact as required by Section 120.59(2), Florida Statutes (1985). Rulings on Petitioner's Proposed Findings of Fact Petitioner's Proposed Findings of Fact 1 through 3, 9, 10, 13 through 16, 19, 21 and 22 are accepted as substantially factually accurate and are incorporated in the Findings Of Fact in the same or similar format to the extent necessary. Petitioner's Proposed Finding Of Fact 4 would have been included in paragraph 1 above except that the last sentence is unnecessary. Petitioner's Proposed Finding Of Fact 5 would have been included in paragraph 1 above except that the third sentence is unnecessary. Petitioner's Proposed Findings Of Fact 17, 18 and 27 would have been included in paragraph 1 above except that they are unnecessary. Petitioner's Proposed Finding Of Fact 26 would have been included in paragraph 1 above except that whether Alligator Creek is a "significant" drainage feature would depend on the definition of "significant" which was not established by the evidence. In addition, Petitioner's Proposed Finding Of Fact 26 is unnecessary. Petitioner's Proposed Findings Of Fact 6 through 8 are rejected as conclusions of law and because the last sentence of Proposed Finding Of Fact 6 is cumulative. Petitioner's Proposed Finding Of Fact 11 is rejected because the first sentence is contrary to the greater weight of the evidence and Findings Of Fact and the second sentence is, subordinate to Findings Of Fact. Petitioner's Proposed Findings Of Fact 12, 20, 23 and 24 are rejected as subordinate to Findings Of Fact. Petitioner's Proposed Finding Of Fact 25 is rejected because the first sentence is subordinate to Findings Of Fact and the second sentence is contrary to the greater weight of the evidence. Rulings on Respondent's Proposed Findings of Fact. Respondent's Proposed Findings Of Fact 1 through 3, 5 and 12 are accepted as substantially factually accurate and are incorporated in the Findings Of Fact in the same or similar format to the extent necessary. Respondent's Proposed Finding Of Fact 4 would have been included in paragraph 1 above except that the second sentence is unnecessary. Respondent's Proposed Finding Of Fact 8 would have been included in paragraph 1 above except that it is unnecessary. Respondent's Proposed Finding Of Fact 9 would have been included in paragraph 1 above except that it is in part unnecessary. Respondent's Proposed Finding Of Fact 11 would have been included in paragraph 1 above except that it is contrary to the greater weight of the evidence and Findings Of Fact that there is "no way" for an engineer to avoid relying on a field man's error such as Corno's error in omitting to report the existence of the well. Respondent's Proposed Finding Of Fact 14 would have been included in paragraph 1 above except that it is irrelevant. Respondent's Proposed Finding Of Fact 6 is rejected because it is subordinate to Findings Of Fact and is unnecessary. Respondent's Proposed Finding Of Fact 7 is rejected because it is simply a recitation of conflicting evidence, some of which is accepted but some of which is rejected as contrary to the greater weight of the evidence and Findings Of Fact. Specifically, it was found that Corno did not tell Tipton about the well and that Tipton did not have the survey in his possession at the time the application was filed. Respondent's Proposed Finding Of Fact 10 is rejected as contrary to the greater weight of the evidence and Findings Of Fact. Specifically, the evidence supported a finding of negligence on the part of Tipton for failure to utilize due care and to have due regard for acceptable standards of engineering principles whether or not practicing in Charlotte County. In addition, Mr. Murray's expert testimony must be disregarded because it was given upon a hypothetical assumption that an engineer had possession of a sealed survey showing no improvements on the property as the time of the application, a fact not proved by the evidence. Respondent's Proposed Finding Of Fact 13 is rejected as contrary to the greater weight of the evidence and Findings Of Fact. Specifically, personnel in the Health Department, part of the "general public," were misled. (The general public also reasonably could have been led to a fallacious conclusion, but there was no "misconduct" on Tipton's part. See Conclusions of Law.) ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF PROFESSIONAL ENGINEERS DEPARTMENT OF PROFESSIONAL REGULATION, FLORIDA BOARD OF PROFESSIONAL ENGINEERS Petitioner, vs. DOAH CASE NO. 85-2684 DPR CASE NO.0058289 JAMES A. TIPTON, Respondent. /
The Issue The issue presented is whether Respondent Seanic Corporation's application for an operating permit for a domestic wastewater treatment facility should be granted.
Findings Of Fact On January 20, 1994, Respondent Seanic Corporation submitted to Respondent Department of Environmental Protection an application to construct a wastewater treatment and disposal facility. The application requested approval to construct a facility with a design capacity of 15,000 gallons per day and to discharge its treated effluent to G-III groundwater through two Class V injection wells. Although the Department had no rules with specific depth requirements for such wells, the plans that accompanied the application contemplated wells with a total depth of 90 feet below land surface, which would be cased down to a depth of 60 feet below land surface. On February 23, 1994, the Department gave notice of its intent to issue the requested construction permit. Petitioners did not challenge the issuance of the construction permit, and the Department issued the permit on April 22, 1994, with an expiration date of five years after the issuance of the permit. On February 17, 1999, Seanic began construction of the permitted facility, including the construction of the two Class V injection wells. At the time the wells were first drilled, there were no statutes or rules regarding the appropriate depth of underground injection wells at a facility like Seanic's. Construction of the Seanic facility was completed before April 12, 1999, as reflected by the Certificate of Completion of Construction for the permitted facility. On April 21, 1999, Seanic filed with the Department its application to operate the facility. Chapter 99-395, Laws of Florida, became effective on June 18, 1999, approximately two months after the facility was constructed and the operating permit application was submitted. Section 5 of Chapter 99-395 defines the term "existing" to mean "permitted by the Department of Environmental Protection or the Department of Health as of the effective date of this act." Chapter 99-395 imposes different effluent limitations for "existing sewage facilities" than those that are applied to new facilities. For facilities that have a design capacity of less than 100,000 gallons per day, new facilities must provide treatment that will produce an effluent that contains no more, on a permitted annual basis, than the following concentrations: Biochemical Oxygen Demand (CBOD5) of 10 mg/L Suspended Solids of 10 mg/L Total Nitrogen of 10 mg/L Total Phosphorus of 1 mg/L These standards are frequently referred to as the "10-10-10-1 Standard." In accordance with Section 6(4) of Chapter 99-395, "existing sewage facilities" have until July 1, 2010, to comply with the 10-10-10-1 standard. Prior to that date, "existing sewage facilities" must meet effluent limitations of 20 mg/L for both CBOD5 and suspended solids and must monitor their effluent for concentrations of total nitrogen and total phosphorus. The Seanic facility is an "existing" facility, as that term is defined in Chapter 99-395, and, therefore, has until July 1, 2010, to comply with the 10-10-10-1 standard. Section 6(7)(a) of Chapter 99-395 requires Class V injection wells for facilities like Seanic's to be "at least 90 feet deep and cased to a minimum depth of 60 feet or to such greater cased depth and total well depth as may be required by Department of Environmental Protection rule." The Department has not promulgated any rules requiring Class V injection wells to be deeper than the depth prescribed in Chapter 99-395, Laws of Florida. As of January 26, 2000, the total depth of Seanic's injection wells measured 92 and 94.5 feet, respectively. On November 24, 1999, the Department entered its notice of intent to issue the operating permit applied for by Seanic and attached to the notice a "draft permit" with the conditions and effluent limitations that would be applied to the facility. In issuing the notice, the Department determined that Seanic had provided reasonable assurance that the facility will not discharge, emit, or cause pollution in contravention of applicable statutes or the Department's standards or rules. The draft permit included effluent limitations of 20 mg/L for both CBOD5 and suspended solids and required Seanic to monitor its effluent for total nitrogen and total phosphorus, in accordance with Chapter 99-395, Laws of Florida, and the Department's rules for existing sewage facilities. The draft permit notes that Seanic must comply with the 10-10-10-1 standard by July 1, 2010. Because Seanic's condominium development has not been completed and the wastewater treatment facility is not expected to go into operation for approximately one year, the draft permit also requires that the facility be re-inspected and re-certified immediately prior to going into operation. The Seanic facility was designed to create an effluent that is several times cleaner than required by Department rules. The facility uses an extended aeration process that is expected to reduce levels of both biological oxygen demand ("BOD") and total suspended solids ("TSS") to lower than 5 mg/L, concentrations that are 75 percent lower than the effluent limitations in the draft permit. Similar facilities in the Florida Keys have shown that they can achieve BOD and TSS concentrations of less than 5 mg/L. The Seanic facility has also been designed to provide a greater level of disinfection than required by law. While the draft permit requires only that the facility maintain a chlorine residual of 0.5 mg/L after fifteen minutes' contact time, the facility has been designed with larger chlorine contact tanks to provide a chlorine contact time of approximately one hour at anticipated flow rates. The facility operator can also increase residual chlorine concentrations. These facts, along with the reduced TSS levels at this facility, will provide considerably greater levels of disinfection than the law requires. Although the draft permit does not contain effluent limitations for total nitrogen or total phosphorus, the levels of these nutrients expected to be present in the Seanic facility's effluent are approximately 5 mg/L and 2-3 mg/L, respectively. Studies conducted on the rate of movement of phosphorus in the subsurface indicate that some of the phosphorus is rapidly immobilized through chemical reactions with the subsurface soil matrix. Specifically, studies conducted on injection wells in the Florida Keys report that 95 percent of the phosphorus is immobilized within a short time after entering the injection well. Studies conducted on the rate of movement of nitrates in the subsurface indicate that some nitrate migration is also retarded through chemical reactions with the subsurface soil matrix. More specifically, studies conducted with injection wells in the Florida Keys report that denitrification removes approximately 65 percent of the nitrates within a short time after the effluent enters the injection well. In addition to the chemical reduction of phosphorus and nitrogen levels in the groundwater, studies conducted on injection wells in the Florida Keys with a total depth of 90 feet and a cased depth of 60 feet have reported extremely high dilution rates by the time effluent injected into such wells would appear in surrounding surface waters. More specifically, studies using chemical and radioactive tracers have reported dilution rates on the range of seven orders of magnitude, i.e., 10 million times. After undergoing chemical reduction in the groundwater as well as extremely high dilution rates, the levels of nitrogen and phosphorus that would be expected to enter Captain's Cove and the adjacent canals will be infinitesimal, i.e., less than one part per trillion. Such levels would be several orders of magnitude below detection limits of currently available analytical methods. The surface waters in the artificial canals and in Captain's Cove surrounding the homes of Petitioners' members are classified by the Department as Class III waters that are predominantly marine. The permitted levels of fecal coliform bacteria in the facility's effluent (as restricted in the draft permit) are identical to the discharge limits for fecal coliform bacteria in Class III waters that are predominantly marine. The operation of Seanic's facility will not result in discharges of fecal coliform bacteria in excess of the applicable effluent limitations. Petitioners' expert witnesses agree that the facility, as designed, will comply with all of the conditions and effluent limitations in the draft permit. No Department rule or standard will be violated by this facility. The Department has not promulgated any effluent limitations or standards for viruses to be discharged to G-III groundwater or Class III surface waters that are predominantly marine. Petitioners' members use and enjoy the clear waters in their canals and in Captain's Cove. They have had the water quality tested four times a year since 1988. Captain's Cove, along with the adjacent canals, has remained a clear, oligotrophic water body with minimal algae growth. Petitioners' members fear that the introduction of viruses and other microorganisms through the facility's effluent will cause swimming in Captain's Cove and the adjacent canals to be harmful to their health. Their fear has been heightened by newspaper stories about viruses and a publicized study which erroneously claimed that Captain's Cove had high levels of harmful bacteria. Petitioner Port Antigua Property Owners Association ("PAPOA") received notice of the Department's intent to issue an operating permit to Seanic. The president discussed the permit with another resident, a microbiologist, who in turn discussed the facility with geologists and reviewed studies performed in the Florida Keys. Their serious concern over the depth of the injection wells and the possible release of viruses and bacteria harmful to the marine environment and to the public health was expressed throughout PAPOA's petition, and a copy of one of the tracer studies upon which they relied was attached to the petition. The president of Petitioner Port Antigua Townhouse Association, Inc. ("PATA"), who is also a member of PAPOA, discussed the Department's notice of intent with the president of PAPOA and the microbiologist. He also discussed the project with a member of PATA who oversees Broward County's wastewater treatment facility, which has the same effluent limitations as the Seanic facility. PATA members believed they should join with PAPOA and the Lower Matecumbe Key Association in requesting a hearing on Seanic's operating permit. PATA and others have also filed litigation in the Circuit Court against Seanic Corporation and others. That litigation is still pending. Petitioners were not able to cite any statute or rule that would be violated by the Seanic facility's discharge. They believe that since the facility is not yet operating, it should be required to adhere to the stricter effluent standards required for new facilities. They also believe that the Department should consider the harmful effects of viruses and bacteria on the marine environment and on the public health. Petitioners did not file their petitions for any improper purpose. They did not file their petitions for any frivolous purpose or to harass or to cause unnecessary delay or to increase Seanic's costs in obtaining an operating permit for its facility. They believed the language in the Department's notice of intent to issue the permit which advises substantially affected persons that they have a right to an administrative hearing and that the Department could change its preliminary agency action as an result of the administrative hearing process. They believe they are simply exercising a right that they have under the law.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered granting Seanic's application for an operating permit for its domestic wastewater treatment facility but denying Seanic's Motion for Attorney's Fees and Costs. DONE AND ENTERED this 13th day of November, 2000, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 November, 2000. COPIES FURNISHED: Francine Ffolkes, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Evan Goldenberg, Esquire White & Case, LLP First Union Financial Center 200 South Biscayne Boulevard Miami, Florida 33131-5309 Lee R. Rohe, Esquire Post Office Box 500252 Marathon, Florida 33050 Kathy C. Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-0300 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-0300
The Issue Whether Respondent is guilty of creating, keeping, or maintaining a nuisance injurious to health in violation of Section 386.041(1)(b), Florida Statutes, as set forth in the Citation for Violation, dated August 19, 1996.
Findings Of Fact Petitioner, Department of Health, the successor agency to the Department of Health and Rehabilitative Services, is the state agency charged with the responsibility of investigating and correcting sanitary nuisances in this state. The Respondent, Hyacinth D. Wynter, now known as Hyacinth D. Wallace, has owned a private residence and kennels located at 2323 Tuscawilla Road, Winter Springs, Florida, from 1996 to the present. On or about June 19, 1996, the Seminole County Public Health Unit received a complaint of a possible sanitary nuisance existing on the Respondent’s property. On June 21, 1996, an inspection of Respondent’s property revealed that the property contained a large home with a septic tank and drain field in the front yard and another in the back yard. A kennel for small animals and an apartment was also located in the rear of the property. The septic tank and drain field in the rear of the property was located in a low spot which was subject to the accumulation of surface water runoff from the kennel and during periods of above-average rainfall. Observation revealed standing water in the back yard. The water showed discoloration and had a pungent odor. However, no solid waste was visible. Subsequent tests for sewage contamination was inconclusive. This observation indicated the drain field had failed. Respondent was given a Sanitary Nuisance form letter which recommended that the septic tank be pumped, the ground disinfected and the drainfield be repaired within ten days. Respondent contacted two septic tank companies in late June and received estimates on pumping the septic tank and on the repair and improvement of the septic system. Respondent retained one of the companies to pump the septic tank. The septic tank company was unable to complete the job prior to Petitioner’s reinspection on July 2, 1997, because of above normal rainfall and the inability to get its truck into the Respondent’s back yard. Petitioner reinspected Respondent’s property on July 2, 1997 and observed the same conditions as was observed on June 21, 1997. A three day extension was granted to Respondent, in order for the tank to be pumped. On July 3, 1997, Orlando Septic Tank Service, Inc. pumped the septic tank and disinfected the area. It also advised Respondent that the drainfield had failed and would need to be replaced. On July 8, 1997, Respondent inspected the area again and observed the same conditions as on the prior inspections. An Official Notice to Abate a Sanitary Nuisance and a Notice of Intended Action was issued by Respondent on July 11, 1997. It was served on Respondent, by posting and by certified mail, on July 12, 1997. Respondent was directed to abate the nuisance within 7 days of the notice or an administrative fine would be imposed. Respondent began to disinfect the area with lime on a daily basis, until the drainfield was repaired. The low area with the standing water was bordered off with visible construction type ribbon and visitors coming to the premises were advised to stay clear of the area. Respondent authorized Orlando Septic Tank Service to submit a permit application to replace the drainfield in accordance with the specifications approved by the Petitioner. The application was submitted on July 17, 1996. The permit was issued on July 24, 1996. On July 25, 1997, Respondent received a proposal from Orlando Septic Service to install an elevated drainfield on the site for the sum of $4,288.50. Respondent was not able to financially afford to authorize this work without obtaining financing for the project. When financing was obtained, Respondent accepted the proposal and then authorized the work on August 8, 1996. Due to other obligations, Orlando Septic was not able to give a proposed starting date for the project until August 26, 1996. On August 13, 1996, Petitioner inspected the Respondent’s property again and observed the same conditions as on previous inspections. Petitioner was informed of the projected starting date for repair of the drainfield, however, a Citation for Violation was issued on August 16, 1996 calling for corrective actions to abate the condition by 4:00 p.m. August 19, 1996. On August 27, 1996, the septic tank was pumped again. Orlando Septic Service was scheduled to begin work on the repair of the drainfield on August 26, 1996. On that same date, the company called Respondent and informed her that they were delayed on another job and could not begin repair of Respondent’s drainfield until sometime in September. Respondent immediately called another company and gave them the contract. The repair was completed on September 10, 1996. The evidence was insufficient to establish that a sanitary nuisance existed on Respondent’s property on August 16, 1996.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED as follows: The Respondent, Hyacinth D. Wynter, be found not guilty of violations Sections 386.041(b), Florida Statutes. The Notice of Intended Action be revoked. DONE and ENTERED this 30th day of May, 1997, in Tallahassee, Florida. DANIEL M. KILBRIDE 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 30th day of May, 1997. COPIES FURNISHED: Sonia Nieves Burton, Esquire Department of Health 400 West Robinson Street Orlando, Florida 32801 Michael D. Jones, Esquire Atrium II Building 301 West State Road 434, Suite 317 Winter Springs, Florida 32708 Catherine H. Berry Legal Office Duval County Health Department 515 West 6th Street Jacksonville, Florida 32206-4397 Gregory D. Venz, Agency Clerk Department of Children & Families Building 2 Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Pete Peterson, Esquire 1317 Winewood Boulevard Building 6 Room 102-E Tallahassee, Florida 32399-0700
Findings Of Fact Petitioner owns a tract of land shaped in a truncated right triangle with the width at the base of 208.7 feet, the length at the altitude of 406.9 feet, and the width at the truncation of 50 feet (Exhibit 1). The tea of this tract is 1.208 acres. Petitioner has lived on this property for nine years with a private well and septic tank without experiencing any difficulty with the septic tank. Some years back Petitioner converted stables on the property into a one bedroom guest house and installed a septic tank for this guest house. Petitioner proposes to construct a residence in the southeastern corner of his property for his daughter and her husband and needs a septic tank permit before a building permit will be issued. The drain field for the proposed septic tank would be located more than 200 feet from any existing well.
The Issue The issue in this case is whether a variance for a reduced setback from Petitioner's well to Respondent Allen C.D. Scott, II's (Scott) septic system should be granted by the Department of Health.
Findings Of Fact Allen C.D. Scott, II, owns property designated as Lot 13, Block 11, Vilano Beach Subdivision, 40 Viejo Street in St. Johns County, Florida. Mr. Scott's property is undeveloped, except for a drinking water well located in the northwest quadrant of his property. The well was installed within the past year. There are residential homes on the north, south, and west sides of the property. The beach is on the east of the property. The property is 50 feet wide and 125 feet deep. The property is not served by a public or private utility; thus, Mr. Scott must provide his own drinking water well and septic system. Mr. Scott purchased the property from Alexander A. Morese, Jr. Mr. Scott was Morese's attorney of record for issues concerning this property and the proposed septic tank system. The neighboring property to the north of Mr. Scott's property is owned by Petitioner, May Bobbitt. Petitioner has two wells on her property. A fairly recently-installed drinking water well and an irrigation well. The irrigation well, is located 30 feet from a site on Mr. Scott's property proposed for an on-site septic system. The location of the proposed septic tank is less than the required setback from a septic system to an irrigation well of 50 feet. The potable drinking water well is 225 feet deep, pit- cased and terminates in the Floridan aquifer. It is within 65 feet of Ms. Bobbitt's septic tank system and is located 50 feet from the proposed site of Mr. Scott's septic system. The location of the proposed septic tank is less than the required setback from a potable drinking water well to a septic system of 75 feet. The initial permit for Ms. Bobbitt's drinking water well was denied based on its proximity to her septic tank. Ms. Bobbitt challenged the denial in an informal proceeding before DOH (DOH case number 97-023H). Mr. Morese played some role in that proceeding. In the meantime, the initial septic tank permit application filed by Mr. Morese was denied by DOH based on the location of Ms. Bobbitt's drinking water well. Mr. Morese appealed the denial to the DOAH Case No. 98-3283. Sometime in late 1997, DOH granted Ms. Bobbitt a variance for a 65-foot setback distance from her drinking water well to her septic system. The variance resulted after settlement of the administrative actions involving May Bobbitt and Mr. Morese's permitting her well and Mr. Morese's septic tank. The variance was granted because the construction of the well prevents contamination of the well from the septic system. Both cases were separately terminated. On November 5, 1997, Mr. Morese applied to DOH for a variance to reduce the setback distances from Petitioner's two wells to Mr. Morese's proposed septic system. Since Mr. Morese's property was 50 feet wide and Mr. Morese desired to build a two-bedroom home on the property, there was limited area available to construct the septic system. The proposed septic system is located in the only area available for such a system and is the same location proposed by Respondent Scott. A sign was posted on Mr. Morese's property notifying Ms. Bobbitt of Mr. Morese's variance request. The variance committee recommended approval of the Morese variance with specific provisos at their December 1997, meeting. Dr. Richard Hunter, Department of Health Deputy State Health Officer, approved the variance with provisos by letter to Mr. Morese on December 17, 1997. The letter stated the approval as follows: The onsite sewage treatment and disposal system shall be set back from the irrigation well on lot 14 by the maximum distance attainable but not less than 30 feet when installed. The onsite sewage treatment and disposal system shall be set back from the drinking water supply well on lot 14 by the maximum distance attainable but not less than 50 feet when installed. The onsite sewage treatment and disposal system drainfield elevation shall be based on a seasonal high water table no lower than 12 inches below existing grade based on William G. Harb's report of November 13, 1997. The variance approval was not challenged by Petitioner or any other neighbor. The variance was granted for a period of one year from the date of Dr. Hunter's letter. As indicated, Allen C.D. Scott, II, purchased the property from Mr. Morese. When Mr. Scott purchased the property from Mr. Morese, the variance was transferred to Mr. Scott. After Mr. Scott purchased the property, he hired an engineer to assist him in securing a Department of Environmental Protection (DEP) coastal construction control permit. The permit was finally issued on May 13, 1999. The variance granted Mr. Morese and subsequently transferred to Mr. Scott expired December 18, 1998. Thus, by the time Mr. Scott obtained his DEP permit to put fill on his property in order to construct his septic system, the variance for reduced setbacks from Petitioner's wells had expired. On June 14, 1999, Mr. Scott applied to DOH for a variance to reduce the required setbacks from Petitioner's irrigation and drinking water wells to his proposed septic system. Mr. Scott's variance application requested the exact same setbacks that Mr. Morese had been granted in December 1997. For the same reasons the variance review committee recommended approval of the Morese the committee recommended approval of the Scott variance. Dr. Sharon Heber, Director of Environmental Health, DOH, granted the variance by letter on July 2, 1999. The letter contained the same provisions as Mr. Morese received in December 1997. The evidence demonstrated that the requested variance would not adversely impact anyone's health or degrade ground or surface waters. Moreover, the evidence showed that the variance met all other Department criteria for an onsite sewage disposal system. Don Hallman, professional engineer, testified that the pit casing of Ms. Bobbitt's well provides an additional layer of protection from contamination sources. He further explained that Petitioner's deep well was cased in a consolidated formation which furnished protection from surface and lateral contaminants. Mike Turner testified that he has permitted and/or had experience with two thousand or more wells in his job with the St. Johns Water Management District. He stated unequivocally that Ms. Bobbitt's deep, pit-cased well was in no more danger from contamination from Scott's septic system, 50 feet away, than it is from the 65-foot reduced setback distance to her own septic system. Given these facts, Respondent is entitled to a variance for his proposed septic tank system.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the variance should be granted by the Department of Health and Petitioner's challenge dismissed. DONE AND ENTERED this 8th day of June, 2000, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 8th day of June, 2000. COPIES FURNISHED: Charlene J. Petersen, Esquire Department of Health 420 Fentress Boulevard Daytona Beach, Florida 32114 May Bobbitt 41 Zamora Street St. Augustine, Florida 32095 Allen C. D. Scott, II, Esquire 101 Orange Street St. Augustine, Florida 32084 Angela T. Hall, Agency Clerk Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1703 William Langue, General Counsel Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701 Dr. Robert G. Brooks, Secretary Department of Health Bin A00 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701
