The Issue Whether the Petitioner's request for variance should be granted.
Findings Of Fact Petitioner owns a parcel of land in Palm Beach, County on which is housed Petitioner's paving and landscapping business and which is zoned for industrial use. Petitioner intends to install a manufactured building for use as an office. To provide sewage treatment for the bathroom of the office, Petitioner had a septic tank designed and applied for a septic tank permit which was denied as was its variance request. As a result of a complaint, Petitioner was inspected in August, 1988, by the Palm Beach County Department of Environmental Resources Management and by the Florida Department of Environmental Regulation. Both inspections yielded citiations for soil contamination by oil and other hazardous waste. Petitioner represented that most of the infractions had been rectified by the date of the hearing in this matter and pledged full cooperation with the County and State rules. To oversee the operation of the business and assure that no further problems arose, Petitioner decided to establish its office on site. The closest sewage treatment plant is at full capacity and does not intend to provide service to the parcel in the near future. The adjoining properties are serviced by septic tanks. As such, the proof did not demonstrate that alternative methods of waste disposal were available to the site However, as part of its business operation, Petitioner does minor repair of its equipment on site and may include oil changes and other such services. Although Petitioner does not intend to pollute the groundwater and intends to use the proposed septic tank for office use only, the proof demonstrated that waste disposal into a septic tank from the maintenance and repair of its equipment could result in the disposition of prohibited hazardous waste into the groundwater. Further, the proof failed to demonstrate that the septic tank would be protected from use by those who handled the hazardous waste. Although the hardship, if any, caused by the denial of the variance was not caused by Petitioner and the proof failed to demonstrate reasonable alternatives of waste disposal, the potential for an adverse affect of the operation to the groundwater is great. Additionally, the proof failed to establish the ameliorating conditions of soil, water table or setback conditions or whether the property was platted prior to 1972. Accordingly, the denial of the variance was proper.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying the variance. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 6th day of July 1989. JANE C. HAYMAN 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 6th day of July 1989. COPIES FURNISHED: Hattie Parker 160 Toneypenna Drive Jupiter, Florida 33468 Peggy G. Miller, Esquire Department of Health and Rehabilitative Services 111 Georgia Avenue Third Floor West Palm Beach, Florida 33401 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 General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issues in this case are whether Petitioner was responsible for maintaining a sanitary nuisance on his property by piping sewage onto the ground from the septic system and by ignoring the need to repair a failed septic system; and whether the Department of Health properly issued a citation to Petitioner for violation of Sections 386.041(1)(a) and (b).
Findings Of Fact In November, 1995, a Department of Health, Volusia County Health Department employee, Sherry Rodriguez, was performing a sanitary survey of the water system at 479 Maytown Road, Osteen, Florida, when she observed sewage on the ground. The property in questions consists of a large, two-story house which contains rental units. The house is provided water by a well on the property and sewage is handled by an onsite septic system. On November 6, 1995, Ms. Rodriguez issued a Notice of Violation for the sanitary nuisance which stated that the violation must be corrected by November 20, 1995. The septic system was not repaired by November 20, 1995. Ms. Rodriguez subsequently issued a Notice of Intended Action (NIA), giving Petitioner a deadline of December 5, 1995, to repair his system. When Ms. Rodriguez went to the property to serve the NIA, she observed PVC pipe on the ground, with one end at the septic tank and the other at the read of the property. Sewage was on the ground at the end of the pipe. Ms. Rodriguez took photographs of the pipe before she departed. Agency employee, Britt Williams, visited Petitioner's property on November 1, 1996, and observed sewage on the ground. Mr. Williams issued a follow-up NIA to Petitioner on January 30, 1997, which required Petitioner to repair the septic system by February 3, 1997. Petitioner did not obtain a repair permit to correct the violations, therefore, Mr. Williams issued a citation for the violations of sewage on the ground and having an improperly maintained septic system.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That a final order be entered affirming the civil penalty against Petitioner and requiring Petitioner to repair his septic system. DONE AND ENTERED this 8th day of April, 1998, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 8th day of April, 1998. COPIES FURNISHED: John Gee 1245 Gee Whiz Lane Osteen, Florida 32764 Charlene J. Petersen, Esquire Department of Health 420 Fentress Boulevard Daytona Beach, Florida 32114 Angela T. Hall, Agency Clerk Department of Health Building 6 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Dr. James Howell, Secretary Department of Health Building 6, Room 306 Tallahassee, Florida 32399-0700
Findings Of Fact V.M.P. Corporation operates a facility known as Stud's Pub in Jacksonville, Florida. Vincent M. Paul owns the facility and the corporation. The facility is on lots that were platted prior to 1972. Respondent is the statutory entity with authority for granting variances for onsite sewage disposal systems regulated by Respondent pursuant to provisions of Chapter 381, Florida Statutes. Section 381.0065(8)(a), Florida Statutes (1991) specifically provides: The department may grant variances in hardship cases which may be less restrictive than the provisions specified in this section. A variance may not be granted pursuant to this section until the department is satisfied that: The hardship was not caused intentionally by the action of the applicant; No reasonable alternative exists for the treatment of the sewage; and The discharge from the individual sewage disposal system will not adversely affect the health of the applicant or other members of the public or significantly degrade the ground or surface waters. Where soil conditions, water table elevation, and setback provisions are determined by the department to be satisfactory, special consideration shall be given to those lots platted prior to 1972. Rule 10D-6.045(3), Florida Administrative Code, is the portion of the rule which is the subject of this proceeding and, in pertinent part, reads as follows: Upon consideration of the merits of each application and the recommendations of the review board, the Deputy Secretary for Health or his designee has discretionary authority to either grant a variance as requested, grant a provisional variance or deny the variance request. A variance may be granted to relieve or prevent excessive hardship only in cases involving minor deviation from established standards when it is clearly shown that the hardship was not caused intentionally by the action of the applicant, where no reasonable alternative exists for the treatment of sewage and where proper use of the onsite sewage disposal system will not adversely affect the health of the applicant, any persons using or living on the property, or other members of the public. An applicant must also show that the granting of a variance will not significantly degrade ground or surface waters. Variances shall only be granted to the permit applicant and are not transferable to other persons unless specifically authorized by the department as a stipulation of the variance approval. . . . (emphasis added). The rule also tracks the language of Section 381.0065(8)(a), Florida Statutes (1991), and requires that "special consideration" be given to those lots platted prior to 1972 in those instances where soil conditions, water table elevation and setback provisions are deemed by Respondent to be "satisfactory." While minor amendments to the rule were made March 17, 1992, the substantive content of Rule 10D-6.045(3), Florida Administrative Code, has remained virtually unchanged since February 5, 1985. Two adjective modifiers in the rule, the terms "minor" and "excessive" which respectively modify the terms "deviation" and "hardship", have not been formally defined by Respondent in the rule. Respondent's rationale for this failure, as professed in the testimony of Respondent's policy representative at the final hearing, was to permit Respondent's review board maximum freedom to evaluate and consider the merit of each application for variance on an individual basis within the statutory authority of Section 385.0065(8)(a), Florida Statutes, i.e., variances may be recommended by the board where the hardship is not intentionally caused by the applicant, where no reasonable alternatives exist and where no evidence of adverse effect upon public health or ground and surface waters is demonstrated.
The Issue The issue in this case is whether Petitioner is entitled to the issuance of a septic tank permit.
Findings Of Fact Petitioner owns land located at 6765 Narcoosee Road in Orange County. He purchased the land in 1983, at which time it was undeveloped and zoned for agricultural use. On June 25, 1990, the Orange County Commission approved the rezoning of the land for industrial use. Petitioner wants to build a mini-warehouse and caretaker's residence on the land. The site is not served by central sewer. The nearest sewage system is a package plant located 0.38 miles north of the site. The package plant serves a mobile home park. Orange County policy forbids any connection to the mobile home park's sewage disposal system until the package plant is replaced by a lift station that would pump the wastewater to the closest central sewer line operated by the County. This point would be at Crossen Drive and Charlin Parkway, which is about 1 to 1 1/2 miles from Petitioner's land. The only other central sewer line in the vicinity is on Lee Vista Boulevard, but it is 1.1 miles west of Petitioner's land. In June, 1990, Petitioner's engineering consultant submitted a request for a permit to install two septic tanks on Petitioner's property. The capacity of the two septic tanks would be 1000 gallons with a drainfield of 417 square feet elevated at least 36 inches above grade. The site plan, which was noted as subject to change, showed one septic tank and drainfield located near the front of the property and the other in the center of the property between the two warehouse buildings. Representatives of the Orange County Health Department found several problems with the request. By letter dated July 3, 1990, the Orange County Health Department noted that, contrary to information contained in the application, the wet season water table was only about 12 inches, not 36-48 inches, from the bottom of the drainfield. Thus, the size of the required fill- pad would preclude locating the septic tank in the middle of the property. More relevant to the present case, the letter asks Petitioner to advise when the property was rezoned from agricultural to industrial. The letter concludes by advising that, if the Health Department determined that it was necessary to apply for a variance, Petitioner would have to submit a $150 fee. By letter dated July 17, 1990, Petitioner's engineer enclosed a check for $150 and requested a variance. By letter dated July 23, 1990, the Orange County Health Department returned the check and requested the additional information concerning the rezoning. By letter dated August 20, 1990, Petitioner's engineer again enclosed a check for $150 and requested a variance. On August 22, 1990, Petitioner executed an application for a variance from Chapter 10D-6 on the grounds of hardship. The request is for two 1000-gallon septic tanks. By letter dated September 26, 1990, Respondent acknowledged Petitioner's request for a variance from the requirements of Chapter 10D-6 and advised that the request had been placed on the agenda of the Variance Review Group, which was meeting on October 4, 1990. The Variance Review Group met and recommended that the variance be granted. However, by letter dated October 24, 1990, Respondent advised Petitioner that the request for variance was denied. The reason for the denial was that recent legislation prohibited septic tanks in areas rezoned from agricultural to industrial uses after July 5, 1989. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.) Section 381.272(9) provides in relevant part: No construction permit may be issued for an on-site sewage disposal system in any area zoned or used for industrial or manufacturing purposes, or its equivalent, where a publicly owned or investor-owned sewage treatment system is available, or where a likelihood exists that the system may receive toxic, hazardous, or industrial waste. In areas which are either zoned, rezoned, platted, or subdivided for industrial, manufacturing, or equivalent purposes after July 5, 1989, the department shall not authorize onsite sewage disposal system construction. The two sentences set forth in the preceding paragraph are not in conflict. The first sentence applies to all land. The second sentence applies a more stringent requirement to land first zoned for industrial or manufacturing uses after July 5, 1989. Petitioner's land was first zoned for industrial use after July 5, 1989. Thus, Respondent lacked the authority to authorize the use of a septic tank on Petitioner's land.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Health Rehabilitative Services enter a final order denying Roy Rumpza's request to permit the installation of two septic tanks on this property. ENTERED this 21 day of June, 1991, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21 day of June, 1991. COPIES FURNISHED: Charles G. Stephens Messer, Vickers, et al. Bayport Plaza, Suite 1040 6200 Courtney Campbell Cswy. Tampa, FL 33607 Sonia Nieves District 7 Legal Office Department of Health and Rehabilitative Services 400 West Robinson St. South Tower, Suite 5827 Orlando, FL 32801 Linda K. Harris, Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Sam Power Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
Findings Of Fact Petitioner owns an undeveloped parcel of land in Palm Beach, County which is zoned industrial and on which he intends to construct a storage building to house and repair farm equipment. To provide sewage treatment at the site, Petitioner had designed an on site sewage disposal system and applied for a septic tank permit which was denied as was his variance request. The closest public sewage treatment plant to the property is over five miles from the site, and the closest private treatment is approximately three miles from the subject site. Petitioner has no easement to either site if capacity were available and if he chose to connect. However, the proof did not show capacity at either site. Although Petitioner does not intend to pollute the groundwater, the proof demonstrated that waste disposal into a septic tank from the maintenance and repair of farm equipment could result in the disposition of prohibited hazardous waste into the groundwater. Alternative methods of waste disposal are available which would properly dispose of the waste and, yet, protect the groundwater from contamination by hazardous waste. Such systems include certain aerobic treatment units and package plants. The monetary costs of these systems is greater than the septic tank proposal; however, the proof did not demonstrate that the cost was prohibitive or a hardship. Although the hardship, if any, caused by the denial of the variance was not caused by Petitioner, the proof failed to demonstrate lack of reasonable alternatives of waste disposal and the absence of adverse effect of the operation to the groundwater. Additionally, the proof failed to establish the ameliorating conditions of soil, water table or setback conditions although a survey of the property dated September 3, 1985, indicates that the subject parcel was not platted. Accordingly, the denial of the variance was proper.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying the variance. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 6th day of July 1989. JANE C. HAYMAN 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 6th day of July 1989. COPIES FURNISHED: Lee B. Sayler, Esquire 50 South U.S. Highway One Suite 303 Jupiter, Florida 33477 Peggy G. Miller, Esquire Department of Health and Rehabilitative Services 111 Georgia Avenue Third Floor West Palm Beach, Florida 33401 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 General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether the August 30, 1988 application of Petitioner James R. Regan for a permit to operate a wastewater (sewage) treatment facility should be granted in that Petitioner has provided reasonable assurances that the operation of the facility will not discharge, emit, or cause pollution in contravention of Department of Environmental Regulation standards or rules.
Findings Of Fact The sewage treatment plant that is the focus of this proceeding is "Weakley Bayou, Inc.," a corporation. The real property upon which it is located is owned by the wife of James R. Regan. Despite corporate status, Weakley Bayou, Inc. has been operated at the option and control of James R. Regan since its inception in the early 1970's. The permit application here at issue was made in Mr. Regan's name, and he has been treated as if he were the corporation throughout all stages of the permit process. Mr. Regan brought the Petition for Formal Hearing in his own name. He was also accepted as the qualified representative for himself and the corporation. "Weakley Bayou, Inc." is an aerobic gravity flow wastewater treatment plant located in Escambia County. In 1988 James R. Regan applied for a renewal of the operating permit for the facility. The Department of Environmental Regulation (DER) issued an Intent to Deny on December 16, 1988, based on agency perceptions derived from observations, monitoring of Petitioner- generated reports, and grab samples, that the facility did not meet the requirements set down in Rule 17-6 F.A.C. Specifically, the Intent to Deny focused on the following problems: A reclaimed water sample taken on December 6, 1988 revealed the facility was exceeding BOD5 (Biological Oxygen Demand) and TSS (Total Suspended Solids) limits in violation of specific condition number 17 of Permit Number D017-71682. The BOD5 was 232.8 mg/l and TSS was 1,430 mg/l. The same sampling showed the facility was exceeding 200/100 ml for fecal coliform in violation of specific condition number 17 of permit number D017-71682 and Rule 17- 6.180(1)(b)4.d., Florida Administrative Code. The fecal coliform was 79,000/100 ml. Ground water monitoring samples show the levels of nitrates in excess of 10 mg/l in well #l on two out of last four quarterly samples, which is in violation of Rule 17- 6.040(4)(q) paragraph 4.2, Florida Administrative Code. During the inspection on December 6, 1988, the sludge blanket in the clarifier was overflowing the weirs, solids had accumulated in the chlorine contact chamber and percolation ponds in violation of Rule 17- 6.110(3) and 17-6.180(2) (e) , Florida Administrative Code. Auxiliary electrical power is not provided as required by Rule 17-6.040(4) (c) and 17-6.110(3), Florida Administrative Code. The applicant was notified March 14, 1988, that emergency power would be required. During the period (1984-1988) that Petitioner's sewage treatment plant has been permitted by DER, it has been periodically inspected and the Petitioner's self-generated reports have been monitored. From time to time after inspections, Petitioner has been notified of pollution and contaminant hazards or violations pursuant to agency standards, which hazards or violations required corrections in order to retain his permit. Among these hazards and violations have been noted large sewage spills, overflows, poor equipment condition, and substandard plant operation. In most instances, Petitioner cooperated with DER and at least attempted to adjust the plant's operation to conform to the notifications. However, as of December 15, 1988, DER notified Petitioner of the following problems with the plant: sludge blanket in the clarifier overflowing the weir, solids accumulation in the chlorine contact chamber, solids accumulation in both percolation ponds, no auxiliary power on the site, and high levels of nitrates (6.9 ppm) in Monitoring well -1. DER's test of an effluent grab sample tested BOD at 232.8 mg/L and Total Suspended Solids (TSS) at 1430 mg/L. That is, samples taken by DER during an inspection indicated excessive levels of TSS, BOD, and fecal coliform, in violation of Chapter 403 F.S. and Chapter 17-6 F.A.C. Mr. Regan admitted that for approximately four years, broken and unrepaired pipes and fittings at his plant had caused sewage spills or overflows of approximately eight thousand gallons of sewage sludge. He contended that the surface enrichment around Monitoring Well #1 was caused by a separation of a two-inch PVC skimmer line which was corrected in March 1988. Although Mr. Regan established that the leak in the pipe had been repaired, the evidence does not permit a finding that this enrichment was solely from that source, that it will dissipate over a reasonable time, or that it has not polluted the ground water. 1/ Thus, there is no reasonable assurance that fixing the leak, by itself, protects the environment. Over a period of time, Petitioner's own groundwater monitoring reports showed excessive nitrate levels and these have worsened since late 1988, according to witness Ray Bradburn. Petitioner contended that a grab sample is not as accurate as a composite sampling. Although DER witnesses concur in this contention of Petitioner with regard to grab samples generally, and although one DER witness suggested that part of the December 1988 grab sample reading by itself would not cause him to deny the permit, no credible evidence disputes the accuracy of the December 6, 1988 grab sample as a grab sample.2/ Petitioner admitted that it was and continues to be his conscious management decision to keep the plant's auxiliary gasoline powered engine locked away from the plant site so as to discourage theft and vandalism, and so as to discourage childish curiosity which might expose Petitioner to liability. He was reluctant to secure the engine on the premises as a hedge against emergency shutdowns of the plant. Mr. Regan, upon advice of outside engineers, has attempted to correct many of the cited errors and omissions. However, notwithstanding the DER's express disapproval of such a method, Mr. Regan has instructed his plant operators to curtail the input of air from the plant's blower to the sewage at night so as to create a "belching" effect designed to clear out certain wastes and thereby attempt denitrification in the clarifier. DER witnesses did not explain in any detail why Regan's belching procedure was unacceptable except that addition of an expensive denitrification unit was preferable and constituted a "reasonable assurance," whereas Mr. Regan's method had not been demonstrated to be successful in the past. Mr. Regan, who bears the burden of proof in these proceedings, did not demonstrate that his "belching" system was a reasonable assurance of denitrification or offer expert witnesses to support such a theory. This sewage treatment plant is subject to a Notice of Violation which became final on September 21, 1989. 3/
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Regulation enter a Final Order denying the pending permit application. DONE and ENTERED this 31st day of January, 1990, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 January, 1990.
The Issue The issue in these consolidated cases is whether the agency should grant variances from Rule 10D-6, F.A.C. regarding construction of on-site sewage disposal systems on the lots in question.
Findings Of Fact Jerry Gagliardi is the developer and engineer for an 8-lot subdivision on Merritt Island, Brevard County, Florida. Mr. Gagliardi is a self-employed civil and mechanical engineer. The small subdivision has a long, narrow configuration, extending west to east. It is bounded on the north by an existing drainage ditch and a large tract of undisturbed wetlands. Its south boundary is a finger canal, and its east boundary is Pelican Creek. With the exception of the wetlands, most of the property in the area is already developed. There are no residences built yet on the eight lots. Hook-up to an existing sanitary sewer system is available within one- quarter mile of the subdivision. The entire area, with several finger canals, is served by the sanitary sewer system. Mr. Gagliardi planned to install on-site disposal systems (septic tanks) in the subdivision. When his plan was rejected he applied for variances for lots 1 and 2 in July 1992, stating economic hardship as the basis for the request. The applications were reviewed by Gregory D. Wright, Supervisor for Brevard County Consumer Health Services and his staff. Several site visits were made and a site evaluation was completed. Mr. Wright recommended denial of the variance because the sanitary sewer system is available; the soils (mostly sand and shell) are unsuitable for on- site disposal systems; and the area, virtually surrounded by water, is environmentally very sensitive. Mr. Wright is also concerned that a variance for the two lots will establish a precedent for variances on the remaining lots in the subdivision. Mr. Wright also observed that there is an existing irrigation well on a neighboring lot within thirty feet of the proposed septic tank on lot #1. This well does not appear on Mr. Gagliardi's plans. The Department of Health and Rehabilitative Services Review Group for Individual Sewage Disposal concurred with the local agency's recommendation after consideration of Mr. Gagliardi's hardship argument. The request was not considered to be a minor deviation from the minimum requirements of the law and regulations. For approximately three years Jerry Gagliardi has been providing information on his development plans to the local county staff. He has become extremely frustrated with the process. However, he has still failed to produce the evidence which he must have to justify the variances he is seeking. At the hearing, Mr. Gagliardi claimed that hook-up to the existing sanitary sewer system is impossible because there is insufficient elevation for gravity feed and there is not enough room on Banana River Drive for another sewer line easement. He did not submit evidence to support that claim and it is unclear whether he has made that claim to the local staff for their verification. He has consistently claimed that hook-up to the existing system is prohibitively expensive. He has estimated that the cost of installing hook-up to the existing system would be $52,642 for the entire subdivision, or $6580.25 per lot. He has estimated that installation of aerobic on-site septic systems would cost $28,000.00 or $3500 per lot. This estimate does not include the cost of culverting the ditch along the north boundary of the property. The culvert may be necessary to meet the water body set-back requirements and, assuming that a permit would be granted for its construction, the culvert would substantially increase the cost of the septic tank project. As recently as three weeks prior to hearing, Mr. Gagliardi provided information to the staff that the value of the lots in the subdivision is $60,000.00 each, for lots #1 through #6; and $115,000.00 and $120,000.00, for lots #7 and #8, respectively. At hearing he repudiated that information as being based on three year old appraisals. He now asserts that the value of the lots is closer to $40,000.00 each. Petitioner's exhibit #2 is a cover letter dated January 4, 1993, to Mr. Gagliardi from the Brevard County Property Appraiser. Attached to the letter are four property management print-outs reflecting the value of two lots as $35,000.00, and two others as $65,000.00. The record does not reflect which lots those are in the subdivision and there is no explanation for the inflated values provided to the staff after the printouts were received. It is impossible from the confused and conflicting evidence provided at hearing to determine that the petitioners are entitled to a variance.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: that the agency enter its final orders denying Petitioners applications for variances. DONE AND RECOMMENDED this 11th day of May, 1993, in Tallahassee, Florida. MARY CLARK 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 11th day of May, 1993. COPIES FURNISHED: Sonia Nieves Burton, Esquire Department of Health and Rehabilitative Services District 7 Legal Office 400 West Robinson Street, Suite S-827 Orlando, Florida 32801 Jerry Gagliardi, Agent for Phil Sperli and Gail Bobzein Post Office Box 541061 Merritt Island, Florida 32954 Robert L. Powell, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Slye, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issues to be resolved in this proceeding concern whether the Petitioner is entitled to an on-site sewage disposal system permit ("OSDS") or the grant of a variance for installation of such a system on property the Petitioner owns on the Suwannee River in Dixie County, Florida, in accordance with the provisions of Section 381.272, Florida Statutes and Chapter 10D-6, Florida Administrative Code.
Findings Of Fact The Petitioner, Spencer B. Miller, owns real property in Dixie County, Florida, more ill described as Lot 2, Block A, Riverbend Estates. The lot in question is approximately 1.61 acres in size and was purchased in 1973, but was not platted until 1974. On March 19, 1990, the Petitioner applied for an OSDS permit in order to become entitled to install an on-site sewage disposal septic tank and drain-field system on the subject lot for purposes of serving a single- family dwelling. There is no existing OSDS on the lot. Upon receiving the application, the Department's local public health official informed the Petitioner that he would have to obtain a benchmark elevation for the surface of his property and also establish the ten-year flood plain elevation for the property. Accordingly, the Petitioner obtained the services of Daniel M. Kroft, a registered land surveyor, who established a benchmark elevation for the subject lot of 11.34 feet above mean sea level (MSL). That benchmark is twelve inches above the actual grade level elevation of the lot, which is, therefore, 10.34 feet above MSL at the site of the proposed OSDS installation. The groundwater table cat the time of the evaluation was 36 inches below the surface of the, existing grade of the lot. Due to "mottling" coloration found in the soil, it was established that the wet season water table was 18 inches below the surface of the grade of the lot. Thus, the clearances between the water table levels and the surface of the lot are not sufficient so that the installation of drain field trenches or absorption beds into the original grade surface of the lot would leave a sufficient clearance, required by the rules cited below, between the bottom of the drain field and the water table in order for adequate treatment of the disposed effluent to occur before it communicates with the groundwater. In this connection, at some time in the past, a mound has been installed on the lot in question of approximately 36 inches elevation. On the site of the mound, it has been shown that the water' table level shown by mottling in the soil is approximately 66 inches below the surface of the mound. Thus, if the septic tank and drain field system proposed were installed in that mound, the required clearances between the bottom of the drain field trenches and the water table level could be met. However, even with the mound elevating the surface of the lot from 36 to 48 inches, the property would still be a maximum of 14.34 feet above MSL on the surface of the mound, which is beneath the ten-year flood elevation, which was established in this record to be 15 feet above MSL. Further, if the drain field trench was installed beneath the surface of the mound, the bottom of the drain field trench would be substantially less than 14.34 feet above MSL; and, thus, a significantly greater distance below the 15- foot, ten-year flood elevation. In addition to lying beneath the `ten-year flood elevation even at the top of the mound, the property lies within the regulatory floodway of the Suwannee River. This means that any mounding in order to install a system above the ten-year flood elevation would have to be certified by a registered engineer to be of such a nature that the installation of the required volume of fill dirt would not cause an elevation of the "base flood". No such engineering testimony or evidence has been adduced in this case; however, and, thus, this portion of Rule 10D-6.047(6) has not been complied with. In 1987, the Petitioner was granted a variance for the installation of the OSDS in question on Lot 2. The variance was granted for a period of one year, but was allowed to expire by the Petitioner without ever installing such a system. Thus, there is no variance applicable to the subject lot at the present time. In fact, the Petitioner has not actually formerly applied for a variance in this case, although the Department referred the matter to the Division of Administrative Hearings with a view toward such issues being raised in a formal proceeding, along with the issues concerning the permit denial itself. In this connection, the Petitioner did not establish any proof that any hardship suffered by being unable to install the OSDS could not be alleviated by the installation of reasonable alternative systems or methods of treatment and disposal. Petitioner adduced no such evidence to describe such a reasonable, alternative system, however, and failed to show, in light of the variance criteria enumerated in the statute and rules cited below, that there were no alternative systems available for adequate and safe treatment and disposal of the sewage effluent to be expected. Further, in terms of establishing entitlement to a variance, or to a permit for that matter, he did not establish that the installation of a conventional subterranean septic tank and drain field disposal and treatment system would not pose a threat to public health or an adverse impact on the quality of service and groundwaters in the vicinity of the subject property. That being the case, and the Petitioner not having demonstrated that the bottom of the drain field trenches involved, as proposed, would not be above the ten-year flood elevation, there has been no sufficient proof to establish entitlement to either an OSDS permit itself or a variance from the statutes and rules containing the permitting standards and requirements cited below. The Petitioner was not accorded the opportunity to avail himself of the Department's informal variance procedure because of the Department's interpretation of the Governor's Executive Order 90-14, which was entered January 17, 1990. The Department takes the position that that executive order precludes it from exercising its discretion to grant any such variances for properties which lie beneath the ten-year flood elevation. This led to its advising the Petitioner that to apply for a variance in this instance would be futile. The Governor's Executive Order entered January 17, 1990 incorporated "recommendation 36" of the "Suwannee River Task Force", which urged the prohibition of OSDA installations beneath the ten-year flood elevation. That Executive Order, incorporating the recommendation, has been interpreted by the Department to absolutely prohibit the installation of OSDS's within the ten-year flood plain. Thus, the Department has, in effect, interpreted that Executive Order as precluding it from exercising its discretion to hear and grant or deny any variance applications for property so situated.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, and the evidence of record, it is, therefore RECOMMENDED: That a Final Order be entered denying the application of Spencer B. Miller for an OSDS permit. DONE and ENTERED this 19th day of December, 1990, in Tallahassee, Florida. P. MICHAEL RUFF 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 20th day of December, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-3113 Respondent's Proposed Findings of Fact: 1-8. Accepted. 9. Rejected, as immaterial in this de novo proceeding. 10-11. Accepted. COPIES FURNISHED: Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 Linda Harris, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 Spencer B. Miller Post Office Box 519 Bronson, FL 32621 Frances S. Childers, Esquire Asst. District III Legal Counsel 1000 Northeast 16th Avenue Gainesville, FL 32609
Findings Of Fact The Respondents, Frank L. Reppa and Denise J. Reppa, own and reside in their dwelling located at 3863 Plumosa Drive, St. James, Florida. The property is a narrow canal front lot. All lots in the area are small and narrow and the dwellings thereon, mostly mobile homes, are placed closely together. On January 11, 1988, as the result of a nuisance complaint by the Reppa's next door neighbor, Stephen E. Havig, an Environmental Specialist with the Lee County Health Department, a part of the State of Florida DHRS, inspected the property in question and observed that effluent from the Respondents' drain field, a malodorous liquid, had run from Respondent's property down onto the driveway of their neighbors. On January 13, 1988, he returned to the property and spoke with Mrs. Reppa who admitted to living on the property. He again observed that the drain field in the Reppas' septic system was heavily saturated and had failed. Effluent was coming to the surface due to the high water table resulting from heavy recent rains and the failure of the system, and there was still a sewage odor to the effluent. The effluent showed in stains on the neighbor's drive. Mr. Havig told Mrs. Reppa that the problem had to be corrected as it was a violation of the law to allow it to remain. In response, Mrs. Reppa indicated they had no money to effect the repairs and because of that, Mr. Havig, who could have cited them immediately, indicated he would return to his office to see if they could be given some additional time to have the work done. After checking with his supervisor, Mr. Havig, on the same day issued an "Official Notification of Insanitary Nuisance" and a "Notice of Intended Action", both of which were sent by Certified Mail and receipted for by Mrs. Reppa on January 19, 1988. The Notice gave the Reppas until January 28, 1988 to correct the problem. On January 14, 1988, Mr. Havig again talked with Mrs. Reppa, telling her what he was sending and advising her how she could get the problem fixed. When he again went out to the property on January 28, 1988, he noted that the property had dried out due to a lack of rain. However, he could see no evidence that any repairs had been effected. He returned to the property on February 1, 1988 after a rain and observed that the problems had reoccurred. Mr. Havig again spoke with Mrs. Reppa on February 8, 1988, at which time she advised him the problem was to be repaired, but they were without funds to pay for it. At that time, Mr. Havig gave the Reppas three weeks to have the work completed with a contractor to be retained within one week. When he spoke with Mrs. Reppa on February 16, 1988, she stated she was still having trouble getting a contractor. She had contacted one contractor who looked at the system on February 15, 1988 and who proposed to remove the washing machine from the drain system. When Mr. Havig talked with Mrs. Reppa on February 19, 1988, she indicated she would have to discuss the matter with her husband. Mr. Havig stated at that time that the Department would have to proceed with enforcement action if work was not started on the correction by February 22, 1988. No corrective action was taken by the Reppas and the Administrative Complaint was filed as a result. DHRS considers it important to properly dispose of effluent because, since it contains human waste, it carries bacteria, viruses and a danger of parasites. Agency policy requires that the septic system be continually monitored and that the tank be pumped and the drain field be repaired when necessary. The Department has no funds available to assist those who cannot afford to make repairs. In order to be properly processed, effluent drainage from septic tanks needs a minimum of two feet of soil between the discharge outlet of the tank and the water table. The soil acts as a filter to remove harmful organisms and contaminants from the effluent before it reaches the water table. A high water table, due to heavy rains or other causes, prevents this filtration and causes the effluent to come to the surface. The situation is correctable. Two methods of correction are: 1) elevate the system above the water table, or 2) remove the saturated soil and replace it with a good grade of sand. In October, 1985, another complaint against the Reppas, relating to the same situation, was filed with DHRS. At that time, the Reppas paid $650.00 to have the system repaired by an individual who replaced the drain field, drawing it away from adjoining property and toward the road. Though the contractor assured them this would fix the problem, wash water would continue to come to the surface. As a result, Mrs. Reppa has refrained from washing clothes at her home and takes them to the laundry in town. Because of the actions they have taken, such as having the drain field expanded and moved, the pumping out of the septic tank in January, 1988, and the cessation of washing clothes at home, Mr. and Mrs. Reppa are convinced the system is not overflowing and that the water on the neighbor's property is the accumulation of surface water drainage when it rains. The Reppa property is higher than the neighbor's property and Mrs. Reppa believes that rain water drains down there. The new part of the drain field works and the water in question, she feels, cannot be effluent. The evidence of record, however, indicates to the contrary and that it is waste effluent. Inquiry by the Reppas indicates that it would take $750.00 more to fix the system and the Reppas do not have that money. They are still paying back the money they borrowed from Mrs. Reppa's parents to make the first repairs. Mr. Reppa is a commercial fisherman whose income has been substantially reduced due to the restrictions placed on the taking of redfish. Many neighbors in the area, according to the Reppas, discharge sewage directly into the abutting canal and allow wash water to run out onto the ground. The Reppas cannot comprehend why these individuals, mostly three month winter visitors, are not cited while they, full time residents, are.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: Recommended that an administrative fine of $50.00 per day be assessed against the Reppas for the violation established, said fine to be effective upon entry of a Final Order herein, with provision that the fine be remitted upon satisfactory proof that the violation has been corrected. Recommended in Tallahassee, Florida this 24th day of August, 1988. ARNOLD H. POLLOCK 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 24th day of August, 1988. COPIES FURNISHED: Eugenie G. Rehak, Esquire Staff Attorney Department of Health and Rehabilitative Services Post Office Box 06085 Ft. Myers, Florida 33906 Frank Lee Reppa, pro se Denise J. Reppa, pro se 3863 Plumosa Drive St. James, Florida 33986 R. S. Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700
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
