The Issue At issue in this proceeding is whether a citation and imposition of a $1,500.00 fine for installing a septic tank without a permit was properly imposed on Respondent, Paul Ware, a/k/a Paul Montgomery-Ware, by Petitioner, the Department of Health, Polk County Health Department (the "Department").
Findings Of Fact Respondent is the owner of three contiguous lots in Polk County (Bevington Manor, PB 20 PG 47, Lots 100 through 102), purchased via tax deed recorded on October 21, 2003. Respondent's lots are surrounded by property owned by Irma Walker, whose son, William Walker, testified at the hearing. Respondent apparently intended to develop his lots as a commercial enterprise and had erected a Quonset-type structure on the property. From his mother's adjoining property, Mr. Walker regularly observed Respondent's activities. Mr. Walker testified that Respondent was using his property to operate a motorcycle repair shop. On June 4, 2004, Mr. Walker observed Respondent using a backhoe on his property. Mr. Walker testified that Respondent was installing a septic tank. Mr. Walker told his mother, who then initiated inquiries as to whether Respondent had a permit to install a septic tank. When her inquiries met with a negative response, Ms. Walker called in a complaint to the Department. On June 7, 2004, the Department sent environmental specialist Susan Patlyek to the site. Ms. Patlyek observed infiltrator chambers on the site. Infiltrator chambers are used only in connection with OSTD systems. Ms. Patlyek also observed a recently excavated area and a rented backhoe, commonly used to dig out areas for septic tank installation. It was obvious to Ms. Patlyek that a septic tank and drainfield had been installed on Respondent's property, though no permit had been issued by the Department allowing installation of an OSTD system. Installation of an OSTD system without a permit constitutes a sanitary nuisance. The Department sent a letter to Respondent dated June 8, 2004, advising him of the need to abate the nuisance by obtaining a permit. With the letter, the Department enclosed a blank application form that Respondent could have completed and returned to the Department's permitting office. Respondent replied by contending that the Department lacked jurisdiction over activities on his land and suggested that the Department initiate court action. Respondent also returned the application form in its original blank form. The Department then issued Respondent a citation for violations of Subsection 381.0065(4), Florida Statutes (2003), and Florida Administrative Code Rule 64E-6.003(1), constructing an OSTD system without a permit; and for a violation of Subsection 386.041(1)(b), Florida Statutes (2003), maintaining a sanitary nuisance. The citation provides for a $1,500.00 fine. The Department's citation also informed Respondent of his right to a hearing pursuant to Chapter 120, Florida Statutes (2003). Respondent contends that the relegation of this matter to an administrative forum is unconstitutional.
Recommendation RECOMMENDED that Petitioner, the Department of Health, Polk County Health Department, enter a final order imposing a $500.00 fine for the violations described in the above Findings of Fact and Conclusions of Law. DONE AND ENTERED this 30th day of November, 2004, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 30th day of November, 2004. COPIES FURNISHED: Roland Reis, Esquire Polk County Health Department 1290 Golfview Avenue, Fourth Floor Bartow, Florida 33830-6740 Paul Ware 6557 Crescent Lake Drive Lakeland, Florida 33813 R.S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Quincy Page, Acting General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
Findings Of Fact Mr. Dayton Andrews is the President and owner of half of the stock of Marathon Trailerama, Inc. d/b/a Marathon Trailerama, Respondent, located at 1571 Overseas Highway, Marathon, Florida. Mr. Andrews acquired his interest in Marathon Trailerama in 1972, and has maintained the sewage disposal system in place at the time he acquired Respondent. He states that he has received no complaints about the system from the residents of the trailer park, and the two residents who testified stated they had no complaints about the system. Respondent has a 99 year lease for the property on which the trailer park is located, and the term of the lease began in 1962. The property owner, Juanita Matheny, testified that under the terms of the lease she has no responsibility, in her opinion, for the operation or maintenance of a sewage disposal system in the trailer park. Respondent holds trailer park permit number 44-067-85 which was most recently issued by Petitioner on January 1, 1985. This permit authorizes 125 independent trailer spaces, and grants Respondent the authority to operate as long as health laws and rules are observed. The permit is revokable at any time for failure to properly operate the trailer park. The original permit to operate a trailer park where Respondent is now located was issued in 1985 to Seven Mile Bridge Trailer Park and was for 45 trailers. On the application for this original permit, the method of sewage disposal to be used was shown as "cesspools 15 ft. below sea level (vented)." State Board of Health records from 1956 show the sanitarian for the Monroe County Health Department described and complained to the State Board of Health about the method of sewage disposal being used at Seven Mile Bridge Trailer Park, and that in response to said complaint the Chief of the Environmental Sanitation Section of the State Board of Health advised that " . . . we have not been able to locate any reference in our records in regard to the approval by the State Board of Health for a connection of this type . . . It is our opinion that this sewage collection device is undesirable because it permits the possible harborage of vermin and result in the creation of a sanitary nuisance." Despite this expression of concern in 1956, no enforcement action has ever been taken against Respondent, or its predecessor Seven Mile Bridge Trailer Park, prior to this action. In connection with the issuance of an operational permit for Marathon Trailerama in 1971, Petitioner notified the Monroe County Health Department that sewage flows in excess of 1200 gallons per day (more than 5 trailers) are required to be centrally collected for approved disposal, and flows in excess of 2000 gallons per day (more than 13 trailers) require a licensed engineer to prepare plans and specifications for the treatment process and disposal works in compliance with state health rules. The former owner of Marathon Trailerama, B. S. Ford, from whom Mr. Dayton Andrews acquired his interest, was copied on this notice. Currently Respondent has 125 trailer spaces in the park. Many of the trailer owners reside at Marathon Trailerama for only part of the year although there are some permanent residents. Petitioner inspected Marathon Trailerama on May 3 and 7, 1984 and also February 26, 1985. During the course of those inspections, thirty-two cesspools were identified in the trailer park, and the evidence presented supports Petitioner's contention that these cesspools were, and continue to be, in use. A cesspool is basically a hole in the ground into which raw sewage is deposited. The sides of a cesspool are usually porous, and the tidewater and ground water can pass directly into the cesspool and carry raw, untreated sewage away. Based on the evidence presented, the Respondent's cesspools fit this general description. Although there is no evidence of their presence in this case, dangerous diseases can result from the seepage of raw sewage from cesspools since the effluent is not properly treated before discharge. Petitioner did not take any water samples from nearby canals, nor were any tests done on the sewage in the cesspools to determine if diseases were present. Based upon standards for sewage produced per trailer, Petitioner estimates that 200 gallons of raw sewage are produced each day by each trailer, and therefore up to 25,000 gallons of raw sewage per day may be deposited in Respondent's cesspools when all trailer spaces are occupied. However, there is evidence of one septic tank and a community toilet facility in the park which is not on a cesspool, and these factors would reduce the total amount of sewage disposal using cesspools. On July 27, 1984 Petitioner notified Respondent that the operation of cesspools was a violation of the law and had to be corrected within ten days. Respondent regularly pumps out the cesspools and immediately corrects any leaks. However, there is minimal benefit to health from pumping out a cesspool since the raw sewage immediately passes through the porous walls and does not remain in the cesspool for treatment. Unlike a septic tank in which the resulting effluent is treated, and solid materials deposited in the bottom of the tank over a long time can be pumped out, there is an almost immediate discharge of raw sewage from a cesspool. Therefore pumping would have to be almost constant in order to avoid the discharge of raw sewage and, thus, be beneficial. One of Respondent's cesspools is located seven feet from an adjacent canal which is used for boating and fishing. There was evidence of occasional, but not frequent, cesspool failure with resulting spillage of raw sewage on the grounds of the trailer park. Respondent promptly corrected such failures when they occurred. Petitioner's representatives saw German cockroaches and palmetto bugs in the cesspools, and testified that these insects can carry dangerous diseases under these conditions. However, no tests were done to determine if, in fact, disease was present in this case. Residents at Marathon Trailerama have no concerns or complaints about their sewage disposal. There have been no noxious odors in the park and no adverse effects on the health of the residents. The parties have submitted posthearing proposed findings of fact pursuant to Section 120.57(1)(b)4, F.S. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order, except where such proposed findings of fact have been rejected as subordinate, cumulative immaterial, or unnecessary.
Recommendation Based upon the foregoing, it is recommended that Petitioner issue a Final Order imposing a $1500 fine against Respondent. DONE and ENTERED this 16th day of May, 1985 at Tallahassee, Florida. DONALD D. CONN, 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 16th day of May, 1985. COPIES FURNISHED: Morton Laitner, Esquire 1350 N.W. 14th Street Miami, Florida 33125 Alfred K. Frigola Esquire Post Office Box 177 Marathon, Florida 33050 David Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 Steve Huss Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
Findings Of Fact The County is a political subdivision of the State of Florida, and the Hillsborough County Sheriff's Office is a department of the County government. On or about January 18, 1989, a site evaluation for the County's application, on behalf of the Hillsborough County Sheriff's Department, for an onsite sewage disposal system (septic tank and drainfield) at Vandenberg Airport was conducted. A soil profile was prepared showing brown sand from the ground surface down 14 inches, a gray sand down another 2 inches, and a gray clay from 16 inches to 7 feet below the surface. The United States Department of Agriculture Soils Survey Book classifies the soils found at Vandenberg Airport as Manatee fine sandy loam, which is now called Chobee 10, and characterizes its permeability as "severe" with a seasonal high water table of from 0 inches at ground surface to 10 inches below the ground surface. By letter dated April 13, 1989, the Department formally denied the County's application due to the poor texture of the Chobee 10 soil and high water table found in the site evaluation, as well as the zoning of the property. This denial letter recognized the applicant's right to apply for a variance. Since the County anticipated denial of its application due to verbal indications from Departmental representatives, the County filed an application for variance with the Department on or about March 29, 1989. A Variance Review Board met and considered the County's variance application, and then recommended approval. However, the variance application was denied by the Department on June 1, 1989, due to the nature of the activities to be conducted on the site, as well as the severe soil conditions on site. The denial of the County's variance request effectively denied its application for this permit. The County has timely sought this review of the Department's denial of its application for a permit for a septic tank and drainfield system at Vandenberg Airport for use by the Sheriff's Department. The parties stipulated that the County's application included the redesign plans and report of its consulting engineers. They further stipulated that the location for which this permit is sought is imperative to the duties of the Sheriff's Department, and there is no alternative to this location without greatly increasing the response time of the Sheriff's Department to emergencies and other calls for service. The Hillsborough County Sheriff's Department has been operating its aviation unit out of a hangar at Vandenberg Airport for several years, and in March, 1989, the County entered into a ten year lease with the Hillsborough County Aviation Authority for approximately 103,126 square feet of land (2.37 acres) located at the Vandenberg Airport for a new hangar for storage and maintenance of aircraft used in conjunction with the services provided by the Sheriff's aviation unit. The site was formerly used for three residences which were served by septic tanks. This lease specifically provides that the County is responsible for obtaining all necessary permits and for securing necessary utility services for the use of this Sheriff's hangar. Thus, the Aviation Authority is not responsible for providing sewage treatment facilities for this site. The Hillsborough County Aviation Authority is not a unit within Hillsborough County government, but is an independent entity established by Special Act. The County has no control or authority over the Aviation Authority's creation of development plans, but the County may approve or disapprove these plans after they have been created by the Aviation Authority and submitted to the County. The Authority's development plans for expansion of Vandenberg Airport provide for runway expansion, taxiways, aprons and parking for aircraft and hangar expansion. As part of this expansion, the Aviation Authority has removed 51 individual septic tanks from homes located on lands which have been acquired, and which now comprise part of Vandenberg Airport. There is no record of any problems with the three residential septic tanks formerly located on this site for 25 to 30 years. The Aviation Authority's plans do not include construction of a sewage treatment plant or providing sewage treatment services in any manner other than with septic tanks, the permits for which must be obtained by its lessees. No centralized wastewater service is available to the proposed Sheriff's hangar at the Vandenberg Airport, and the closest sewer main will be more than 10,000 feet away upon its completion in 1990. The County's five year capital improvement plan does not include extension of this sewer line to the Airport. The location for the Sheriff's hangar is currently zoned SPI-AP-V, which is a special airport district zoning classification created in September, 1989, for Vandenberg Airport. In this zoning district, manufacturing, processing and assembly activities are prohibited. Retail activities are also prohibited, as well as hotels, motels, repair services, physician and dental offices, bus and train terminals, lumberyards, warehouses, publishing and printing, and rental and leasing activities. This district is to be used for public use facilities, wastewater treatment plants and lift stations, aircraft landing fields, airport and airport related activities. "Airport" activities are defined to include fuel storage and transmission facilities, hangars, aircraft service, repair and maintenance facilities. "Airport related" activities are defined as: Uses which are dependent upon proximity to the airport for effective performance, or which provide services to the airport..., including but not limited to airport maintenance facilities and associated administrative offices; sales of new and used aircraft and aircraft parts; sales of aircraft fuels, lubricants, and other aircraft supplies; ... and other airport-related uses compatible with the operation of airports for public and private use. Based upon five soil borings taken at the boundaries of, as well as within, the proposed hangar site, Darrell Hanecki, a geotechnical engineer who was accepted as an expert in engineering, found that the groundwater table was 3 to 4 feet below the existing ground surface in October and November, 1988. The seasonal high groundwater table was estimated to be approximately 12 inches above the existing ground water table at that time, but significant fluctuations in the groundwater level were anticipated due to seasonal variations in rainfall, runoff, and other site specific factors. The borings upon which Hanecki's findings are based were performed in general compliance with accepted procedures for standard field penetration tests. Hanecki concluded that the soil conditions are suitable for the proposed hangar if constructed on a shallow footing foundation with special site preparations. William Fernandez, who was accepted as an expert in civil engineering, developed a redesign of the County's septic tank and drainfield in support of its variance request in order to address concerns expressed by the Department's representatives concerning soil conditions on site. It is proposed that the septic tank and drainfield site will be excavated to a depth of 6 feet, and all clays will be removed. The site will then be backfilled with clean materials in order to allow the drainfield to percolate through these clean materials from three mounded drains which will be located in a two foot high mound constructed above the original grade. A pump will be used to lift the effluent from the tank to the drainfield. The septic tank will have a 750 gallon capacity. It is projected that 8 people will use this septic tank each day, and that each person will cause 25 gallons of sewage per day to be deposited in the system, or a total of 160 gallons of sewage per day. Only domestic wastes from the hangar restrooms will go into the system. Oils, greases and other substances used in aircraft maintenance and repair will be separated and carried to a retention pond through a system of trenches. After hearing the testimony of the County's expert witnesses about the surface water management system to be constructed on site, the Department's environmental specialist, Gary Schneider, testified that he was no longer as concerned about the possibility of oils, greases and other hazardous materials getting into the septic tank system. The County has also applied to the Southwest Florida Water Management District for a surface water management permit, and must receive that permit for this proposed hangar at Vandenberg Airport. The Department seeks to rebut the expert testimony offered by the county primarily with the testimony of Robert Blanco, supervisor of the county health department's septic tank permit program, who was neither tendered nor accepted as an expert, as well as a letter from Richard Ford, resource soil scientist with the Soil Conservation Service, dated September 18, 1989, who took one soil boring and concluded that the soil identified was poorly drained to very poorly drained Chobee loamy sand. Ford was not present to testify. Blanco agreed with Ford's conclusion, expressed in his letter, that the seasonal high water table on this site will come to the surface, or within 10 inches of the surface, for 2 to 6 months each year, causing ponding to occur. Based upon the demeanor and qualifications of the witnesses who testified at hearing, it is specifically found that the testimony offered in support of the County's application, and in particular the expert testimony of Hanecki and Fernandez, is more credible and is given greater weight than the testimony offered on behalf of the Department, particularly the testimony of Blanco. Blanco was not qualified or tendered as an expert in any field, and therefore, he was only competent to offer fact testimony. He speculated, without any supporting evidence in the record, that the septic tanks formerly on this site were not built to Code specifications and probably did not work, although there is no evidence of any complaints about these septic tanks during the 25 to 30 years they were in operation. Blanco also insisted that standardized texts describing soil types over large geographic areas are more reliable than actual soil borings on site, although he could not render an expert opinion in this regard. The letter from Ford offered by the Department was not supported by other competent, substantial, credible evidence, and in any event was based upon only one soil boring as opposed to five borings conducted by Hanecki in accordance with generally accepted practices. Therefore, it is found that the groundwater table on this site is 3 to 4 feet below the existing ground surface, and the seasonal high groundwater table is approximately 12 inches above the existing groundwater table, although it does fluctuate. It was undisputed at hearing that the soils on site are Chobee 10, which is poorly to very poorly drained soil, but the County's redesign of the proposed septic tank and drainfield reasonably and adequately accounts for, and accommodates, this condition by excavating to a depth of 6 feet and backfilling with clean materials, and by placing three drains in a mounded drainfield built two feet above the existing ground level. This redesign complies with the requirements and provisions of Chapter 10D-6, Florida Administrative Code.
Recommendation Based upon the foregoing, it is recommended that the Department enter a Final Order granting the application of Hillsborough County for a permit for an onsite sewage disposal system (septic tank and drainfield) for the Sheriff's Department hangar at Vandenberg Airport. DONE AND ENTERED this 24th day of October, 1989 in Tallahassee, Florida. DONALD D. CONN 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 24th day of October, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-3776 Rulings on the County's Proposed Findings of Fact: 1. Adopted in Finding 1. 2-7. Adopted in Findings 6, 7. Adopted in Finding 8. Adopted in Finding 7. Adopted in Finding 10. Adopted in Findings 9, 12. 12-13. Adopted in Findings 2, 3. Adopted in Findings 10, 12. Adopted in Findings 3, 5, 10. Adopted in Findings 3, 4. Rulings on the Department's Proposed Findings of Fact: Adopted in Finding 6. Adopted in Finding 8. 3-4. Adopted in Finding 2. Adopted in Finding 11; Rejected in Finding 12. Rejected in Finding 12 as irrelevant and immaterial since the classification of the soils on site was not disputed at hearing. Adopted in Finding 5. Adopted and Rejected in part in Finding 12. COPIES FURNISHED: Michael J. Morrison, Esquire Assistant County Attorney 725 East Kennedy Boulevard Tampa, Florida 33602 Raymond R. Deckert, Esquire W. T. Edwards Facility 4000 West Buffalo Avenue Room 500 Tampa, Florida 33614 John Miller, General Counsel 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Sam Power, Agency Clerk 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory Coler, Secretary 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact At final hearing, the parties stipulated to the following facts: The Department of Environmental Regulation is an administrative agency of the State of Florida created by Chapter 75-22, Laws of Florida, and vested with the power and duty to implement and enforce the provisions of the Florida Air and Water Pollution Control Act, Part I, Chapter 403, Florida Statutes. Pursuant to these Acts, the Department is authorized to regulate the construction and operation of solid waste disposal facilities and stationary installations reasonably expected to be sources of pollution. Respondent, City [of North Miami], owns the property on which is located a solid waste facility known as "Munisport Sanitary Landfill" located at 14301 Biscayne Boulevard, North Miami, Dade County, Florida; latitude 25 degrees 54' 9" North, longitude 80 degrees 9' 5" West in Sections 21 and 22, Township 52 South, Range 42 East. Respondent, Munisport, operates a solid waste disposal facility under contract with the City. On March 7, 1977, the Department issued to the City of North Miami permit/certification number 13-31-028GM (hereinafter "dredge and fill permit") which modified and superseded permit/classification number 13-31-0286. The permit was issued under the provisions of Sections 253.123, 253.124, and 403.087, Florida Statutes, and Chapter 17-4, Florida Administrative Code. The permit also provided water quality certification required by Public Law 92-500. The dredge and fill permit was issued for the purpose of constructing a continuous 5,000 foot-long earthen dike with a modified top width of 12 feet aligned waterward of the mean high water line such that the waterward toe of the dike would be on or landward of the property line. Approximately 6,000 cubic yards of material would be dredged from the 63-acre tract located behind the dike and waterward of the mean high water line. Portions of the tract would be excavated to minus 35 feet mean low water to form nontidal lakes. Approximately 1,000,000 cubic yards of fill material would be enplaced as follows: Clean fill to be utilized to produce an elevation of a minimum of two feet above the calculated ground water table, after which fresh refuse and a two-foot final cover of clean fill would be placed. Within a zone of 100 feet from the landward crest of the dike, yard trash and construction debris would be the only types of solid waste acceptable as fill, and A ten-foot wide by three-foot deep circulation canal would be dredged on the outside perimeter of the dike. General condition 13 of the dredge and fill permit provides that the permit does not indicate an endorsement or approval of any other Department permit/approval that may be required for other aspects of the total project. A solid waste operation permit would also be required. On June 8, 1979, the City and Munisport received from the Department Operation Permit No. SWO-13-5152 (hereinafter "solid waste operation permit"). The purpose of the solid waste operation permit was to allow and regulate the placement of solid waste (refuse, yard trash and construction debris) in the area behind the dike described above and on adjacent uplands in order to generate an appropriate elevation for a golf course. General condition number two of the solid waste operation permit states that: This permit is valid only for the specific processes and operations indicated in the attached drawings or exhibits. Any authorized deviation from the approved drawings, exhibits, specifications, or conditions of this permit shall constitute grounds for revocation and enforcement action by the Department (emphasis added). Specific condition number six of the solid waste operations permit provides that the subject facility be operated at all times at the maximum level of efficiency so as to minimize the adverse effect on the environment of contaminated storm water runoff or leachates which cause degradation of surface or ground waters. Specific condition number nine of the solid waste operation permit provides that "no solid waste shall be placed within thirty feet of any existing or future lake". Prior to the issuance of the solid waste operation permit, Respondents' permit application was subjected to a de novo review during a Section 120.57(1), Florida Statutes, hearing requested by the Florida Audubon Society and others. The record of these proceedings explained and expanded upon the application and, therefore, became a part thereof. Respondents' consultant testified in these proceedings as follows: We have an agreement with the Department of Environmental Regulation that goes back several years that we would not dig up any old land fill material nor would we place any land fill material in an area that would eventually become a lake. Testimony of Mr. Thomas Joseph Checca on October 18, 1978; Transcript of proceedings in Florida Audubon Society, et al. v. State of Florida, Department of Environmental Regulation, City of North Miami, Florida and Munisport, Inc., DOAH Case No. 78-316. On October 25, 1979, an inspection of the above-described facility was made by Mr. Scott Quaas, an employee of the Department, who observed that two lakes had been constructed in old waste on the site without the required 30-foot setback as required by the aforementioned permit conditions. A letter of notice was issued by the Department regarding that and other violations on November 16, 1979. On December 18, 1979, a follow-up inspection of the subject facility was made by Mr. Quaas, at which time it was observed that two more lakes had been excavated through waste previously deposited at the site, thereby causing such waste to come in direct contact with the water in the lakes adjacent thereto. It was also observed that no 30-foot setback was provided at the new lakes. Notice of these additional violations was provided to Munisport on January 16, 1980. An on-site meeting regarding the above-described violation was held on January 24, 1980, at which time it was agreed that Respondents would reply by February 1, 1980, as to whether corrective actions would be taken regarding the aforementioned violations. As of the date of final hearing in this cause, corrective action had been taken to eliminate these violations. Specific condition number 13 of the solid waste operation permit requires the posting of a performance bond or other security acceptable to the Department which adequately covers the cost of monitoring and final closing procedures required under the permit and Chapter 17-7, Florida Administrative Code, and procedures listed in the application for permit which may become necessary to correct any pollution detected at the site in violation of Department rules. No such bond or security has been posted with the Department. Extensive discussions between the Department and representatives of the City and Munisport have failed to produce agreement regarding the terms of a performance bond or security. The parties were notified of this violation and were given an opportunity to respond. Leachate (runoff containing pollutants) has been allowed to enter lakes on the site. A leachate plume containing ammonia has been detected beneath the subject sanitary landfill site, which plume has reached ground waters of the State and is being observed to be moving off the site in an east- southeast direction, toward Biscayne Bay. This leachate plume contains total Ammonia-Nitrogen (NH3-N) in amounts which are substantially in excess of the water quality standards of .5 milligrams per litre for Dade county, Florida. See, Chapters 24-11(4), Dade County Code. It was not anticipated when Operation Permit Number SWO-13-5152 was issued that leachate would be allowed to enter the lakes or that a leachate plume would form in the manner which is presently being observed. In addition to being a pollutant, Ammonia-Nitrogen is the first substance generally observed when a leachate plume forms. There exists a significant possibility that other pollutants contained in solid waste deposited at the site will also begin to reach ground waters of the State and the waters of Biscayne Bay. General condition number eight of the solid waste operation permit states that: This permit does not relieve the permittee from liability for harm or injury to human health or welfare, animal, plant, or aquatic life or property and penalties therefore caused by the construction or operation of this permitted source, nor does it allow the permittee to cause pollution in contravention of Florida Statutes and department rules, except where specifically authorized by an order from the department granting a variance or exception from department rules or state statutes. Specific condition number 15 of the solid waste operation permit states that: These permit conditions do not exempt the applicant from complying with pollution control requirements of other Federal, State, Municipal, County or Regional water pollution control rules, regulations, ordinances or codes, nor does it authorize any violation thereof.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered revoking the permits and certification which are the subject of this proceeding in their entirety or such lesser action as may be deemed appropriate by the Department in the exercise of its discretion as the State agency charged with the power and duty to control and prohibit the pollution of air and water under Section 403.061, Florida Statutes, and as the agency responsible for the implementation and enforcement of the provisions of the Florida Resource Recovery and Management Act which regulates the appropriate disposal of solid waste and landfill operation in this State. DONE and ENTERED this 24th day of February, 1981, in Tallahassee, Leon County, Florida. WILLIAM E. WILLIAMS, 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 February, 1981. COPIES FURNISHED: William P. White, Jr., Esq. Deputy General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32301 Willard K. Splittstoesser, Esq. 776 N.E. 125th Street North Miami, FL 33161 Marvin P. Sadur, Esq. 2000 L. Street, N.W., Suite 612 Washington, D.C. 20036
The Issue Whether Petitioner’s application for a variance to permit an onsite treatment and disposal system should be approved.
Findings Of Fact The lot of land for which the Bank seeks a variance for an onsite sewage treatment and disposal system is located at 341 Compass Lake Drive in Jackson County, Florida. The lot is approximately 40 feet wide and 300 feet deep, with approximately 40 feet of frontage on Compass Lake. Prior to its severance in 2010, the lot was part of a larger parcel of land with an address of 343 Compass Drive in Jackson County. The larger parcel was owned by Charles Paulk and had substantial improvements consisting of a house, boathouse, and dock. In 2004, Mr. Paulk borrowed money from the Bank and gave the Bank a mortgage lien on the entire larger parcel to secure the loan. At some point, a survey was prepared which subdivided the larger parcel into two lots -- the first containing the substantial improvements, and the other consisting of the approximately 40-foot by 300-foot lot at issue, which is .28 acres in size, with no improvements. There is no indication that the survey was ever recorded in the public records. Later, in 2010, Mr. Paulk decided to sell the lot with the substantial improvements for $330,000. Because the Bank had a lien on the entire larger parcel, Mr. Paulk requested that the Bank release its lien on the lot with the substantial improvements. The Bank agreed to release its lien on the lot with substantial improvements and, after receiving what the Bank felt was a “sufficient pay-down” on the loan, shifted its lien to the smaller, unimproved lot that is at issue in this case. The sale and release of lien transaction “substantially reduced the loan versus the collateral value” that the Bank previously had. According to the Bank’s Senior Vice President, James Goodson, after the sale transaction, there was “not a lot of money left on the loan ” Mr. Goodson testified that, at the time that the Bank agreed to release its lien on the substantially improved lot and shift its lien to the remaining unimproved lot, it was unaware that a variance would be required for an onsite sewage treatment and disposal system (septic tank) on the unimproved lot. The facts as outlined above, however, demonstrate that the Bank was an active participant and beneficiary of the transaction that ultimately resulted in the creation of the two lots, one of which was the approximately 40-foot by 300-foot unimproved lot at issue in this case. In 2012, Mr. Paulk experienced financial problems and was having difficulty paying back the loan to the Bank secured by the unimproved lot. Because it was easier than foreclosure, the Bank agreed to take a deed to the unimproved lot in lieu of foreclosure.1/ At the time of the Bank’s release of lien in 2010, as well as at the time of the deed in lieu of foreclosure, the 40- foot by 300-foot lot size of the unimproved lot was too small to meet the statutory requirements for a septic permit. Mr. Goodson testified that, at the time that the Bank accepted the deed in lieu of foreclosure, the Bank was aware that the lot was too small and would need a variance for a septic tank. He did not explain, however, why the Bank had earlier been unaware of the need for a variance when it agreed to release its lien on the substantially improved lot in 2010. After the Bank acquired title to the unimproved lot, a third party offered to purchase it on the condition that the Bank could obtain a permit. The Bank went to Jackson County to request a permit, knowing that its request would be denied because the lot size was insufficient for a septic tank without a variance. Nevertheless, the Bank believed that it would qualify for a variance on hardship grounds because it did not “intentionally” create the hardship. The Bank commenced the permitting process by submitting an application with the Jackson County Health Department on October 4, 2012. The County denied the application on the grounds that the lot was deficient in width and total area. Next, the Bank submitted a request to the Department for a variance. The request was considered by the Department’s Variance Review and Advisory Committee (Committee) on December 6, 2012. The Committee has only recommending authority to the State Health Officer. In a four to three vote, the Committee recommended approval of a variance. The members voting against a recommendation for approval were representatives of the State Health Office, the Department of Environmental Protection, and the County Health Department. Eight objections from adjacent property owners were provided to the Committee’s review and consideration. After considering the facts, including the decision of the County Health Department, objections filed by adjacent property owners, actions taken by the Bank, and the recommendations of all the members of the Committee, Gerald Briggs, Bureau Chief for Onsite Sewage Programs for the Department of Health, made the Department’s preliminary decision that the Bank’s variance request should be denied, concluding, among other things, that “[a]ny perceived hardship that [the Bank] might experience as a result of the obligation to meet established standards comes about as a direct result of your own proposed action.” Likewise, considering the facts and evidence as presented in this case, the undersigned finds, as a matter of fact, that the Bank intentionally participated in and benefitted from the transaction that resulted in the hardship posed by the small lot size that it now owns and for which it seeks a variance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a Final Order denying SunSouth Bank’s application for a variance. DONE AND ENTERED this 21st day of March, 2014, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of March, 2014.
Findings Of Fact Prior to November, 1987, Petitioners purchased adjoining Lots 56 and 57 located in West Vic Holiday Sands subdivision in Santa Rosa County. 1/ The two lots constitute substantially less than a fourth of an acre of land. Petitioners intended to place two two bedroom mobile homes on the lots for use as a weekend retreat for their families. When Petitioners purchased the two lots, the lots had an existing 900 - 1050 gallon septic tank on the property. The tank had been previously approved by the Department of Pollution Control in 1973 for Recreational vehicle/campsite use. The tank had never been permitted for use as a homesite, such as a two bedroom mobile home would require. A Recreational Vehicle (RV) is generally considered by HRS to be a motor vehicle with a maximum size of 8'x 35'. Anything substantially over that size, as Petitioners' two mobile homes were, would not be considered for RV use and would be required to obtain a homesite type permit. Petitioners were required by their proposed use of the property to obtain a homesite permit. However, Petitioners did not discover the homesite permit requirement until after they had purchased the two lots and after they had purchased two mobile homes at considerable monetary cost to themselves. The Petitioners did not think about investigating whether a septic tank permit would be required because the subdivision area had permanent residences already in place. However, the evidence demonstrated the majority of these residences are located on four lots. There are a few residences located on fewer than four lots and on lots the size of Petitioners. 2/ The residences with nonconforming septic tanks were permitted by HRS under a mistaken interpretation of the law by the local Health Department office. However, about a year prior to Petitioners' permit and at the request of the local office, the local office was audited and its interpretation was brought into compliance with state law. Petitioners were, therefore, no longer entitled to rely on the local office's previous misinterpretation of the law and in previously issuing permits authorized under that misinterpretation of the law. Petitioners applied for an existing septic tank permit on November 23, 1987. Because the existing tank did not have enough capacity or drainage area for the Petitioners' desired use and the size of the property was under one- quarter acre, Respondent informed Petitioners they would have to seek a variance from the usual septic tank permit requirements. 3/ Petitioners applied for a variance. Petitioners felt a hardship variance should be granted due to the amount of money they had spent on the property and the fact Respondent had granted other nonconforming permits under its mistaken interpretation of the septic tank law. Neither of the Petitioners appeared at the variance review committee meeting in Ocala, Florida, which considered their variance request. However, the local health official recommended approval of the variance since other tanks had been mistakenly approved previously. The committee reviewed Petitioners' application and other relevant information about the property. The committee determined that no hardship existed and denied the permit. Petitioners received the committee's letter of denial on February 20, 1988. The evidence showed that Petitioners had spent close to $14,000.00 in purchasing the property and preparing it for occupancy. However, monetary expenditures alone have never been considered sufficient to establish a hardship in permitting cases. Petitioners presented no evidence which would cause such expenditures to amount to a hardship. Use of their property is still available, although that use is not exactly what Petitioners had in mind. Moreover, Petitioners may still recoup the money spent on the mobile homes by renting or selling them. Under these facts, no hardship was shown by Petitioners. In essence, Petitioners failed to show any monetary losses as opposed to expenditures of a significant nature. Likewise, Petitioners failed to establish justifiable reliance on the Respondent's previous mistakes, i.e., estoppel. Respondent's mistakes were not known by Petitioners at the time the majority of Petitioners' expenditures were incurred. The evidence regarding the general appearance of the subdivision was insufficient to establish a basis for such reliance. Moreover, Petitioners had the opportunity and the initial burden to investigate any potential governmental requirements prior to their purchase of the property. Again, no hardship was established by Petitioners' utilizing the theory of estoppel. Finally, Petitioners failed to present any reliable evidence that the discharge from their septic tank would not adversely affect the health of the public or would not significantly degrade the ground or surface waters of the State. The fact that other nonconforming tanks are in place with relatively few observable problems does not support the further inference that one more nonconforming tank won't hurt in an already overloaded area. Under these facts, Petitioners are not entitled to a variance from the Department's septic tank requirements; and therefore, are not entitled to a septic tank permit.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Respondent request for a variance from the septic tank permit requirements be DENIED and the request for a septic tank permit be DENIED. DONE and ORDERED this 11th day of January, 1989, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The Oakland Building 2900 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of January, 1989.
The Issue At issue in DOAH Case No. 04-4333 is whether Respondent committed the two violations of Florida Administrative Code Rule 64E-6.022 alleged in the citation issued on September 29, 2004, and, if so, whether the imposition of a $1,000.00 fine was properly imposed. At issue in DOAH Case No. 05-0695 is whether Respondent committed the three violations alleged in the Amended Administrative Complaint issued on February 21, 2005, and, if so, whether his septic tank contractor registration should be revoked or some lesser penalty imposed.
Findings Of Fact The Department is the state agency charged with enforcing the statutory provisions pertaining to the practice of septic tank contracting in Florida pursuant to Chapter 489, Part III, and Section 381.0065, Florida Statutes (2004). At all times relevant to this proceeding, Respondent Matt Beebe, was a registered septic tank contractor, having been issued registration number SR0971283, and was the qualifying contractor for his business, Southern Sanitation, Inc. ("Southern Sanitation"), having been issued registration number SA0970864. On June 7, 2001, Mr. Beebe was cited for installing a septic system without a permit, in violation of Florida Administrative Code Rule 64E-6.022, and paid a fine of $500.00 without contest. At all times relevant to this proceeding, Mr. Beebe also operated a septage disposal service business under the Southern Sanitation name, having been issued operating permit number 11-QN-0054. Improper Septage Disposal and Sanitary Nuisance On September 29, 2004, Kenneth Rech, the Department's environmental health and engineering director for Collier County, received a telephone complaint that a Southern Sanitation septage hauling truck had been seen emptying its contents onto a vacant lot at 295 Brandy Lane in Naples. Mr. Rech and his assistant, James Miller, drove out to the location to investigate the complaint. When he arrived at the location, Mr. Rech first spoke to the complainant, who lived across the street from the vacant lot. The complainant estimated that the Southern Sanitation truck left the lot about 20 minutes before Mr. Rech arrived. Mr. Rech and Mr. Miller investigated the site. Mr. Rech described the area containing the dumped contents of the truck as a low-lying wetland. The property was about ten acres in size. The owner kept horses on the lot. Mr. Rech testified that there was a strong smell of septage, though the dumped contents were light gray in color. Raw septage is generally black. Based on the smell, Mr. Rech concluded that the dumped contents included septage mixed with some other material. Mr. Rech telephoned Erin Kurbec to meet him at the dump site. Ms. Kurbec is a Department employee responsible for oversight of septage hauling and disposal businesses. Ms. Kurbec in turn phoned Mr. Beebe and asked him to come to the site. Mr. Rech testified that Mr. Beebe was "very agitated" when he arrived at the dump site, calling Ms. Kurbec a "liar," and protesting that the Department did not have the right to ask for his company's hauling logs. Because of Mr. Beebe's aggressive behavior, Mr. Rech phoned to request a Sheriff's deputy to come to the site. Mr. Beebe conceded that he was somewhat agitated because Ms. Kubec asked him to come to the site, but would not tell him why she wanted to see his truck. She would only say that it was a "spot check," which Mr. Beebe did not believe. By the time the Sheriff's deputy arrived, the situation had calmed down. Mr. Beebe told Mr. Rech that he had dumped approximately 3,000 gallons of "drillers' mud" on the site. Drillers' mud, or bentonite clay, is a colloidal clay sold under various trade names that forms a slick slurry, or gel, when water is added. The appearance of the material dumped at the site was consistent with that of drillers' mud. Mr. Beebe testified that the owner of the vacant lot asked him to dump the drillers' mud to fill in a low-lying, hard to reach area of the property. The liquid-like consistency of the drillers' mud made it ideal for filling this difficult portion of the property. Mr. Beebe's testimony as to having permission to dump materials on the property is credited. Mr. Rech took two samples of the dumped material from a pooled area about six inches deep. He used sterile sample equipment and containers. Because Mr. Beebe had alerted him to the possibility that there could be horse manure under the dumped material, Mr. Rech was careful to scoop the contents from the top of the dumped material. Mr. Rech provided one of the samples to Mr. Beebe to allow Mr. Beebe to have a laboratory of his choice analyze the material. Mr. Rech sent the other sample to the Department's Tampa laboratory, which found the sample to contain a fecal coliform count of 4,800 colonies per gram. The laboratory's report was stamped with the disclosure stating, "Sample does not meet the following NELAC requirements: 1) exceeds 6 hr. hold time; 2) this matrix is not certified under NELAC." NELAC is the National Environmental Laboratory Accreditation Conference, a voluntary association of state and federal agencies, the purpose of which is to establish and promote mutually acceptable performance standards for the operation of environmental laboratories. NELAC certifies environmental laboratories such as the Department's Tampa facility, which was not certified for solid matrices such as the sample provided by Mr. Rech. Dr. Philip Amuso is the director of the Department's Tampa laboratory. Dr. Amuso testified as to the testing procedures and the disclosure statement included on the laboratory report. He concluded that neither of the disclosures affected the validity of the fecal coliform count found in the sample. Dr. Amuso testified that the applicable testing standard calls for a sample to be analyzed for fecal coliform within six hours of the sample collection time. The sample in question was not tested within six hours. However, Dr. Amuso testified that the longer a sample is held, the lower the fecal coliform count will be, because the fecal coliform colonies tend to die off over time. Thus, Dr. Amuso testified that the fecal coliform count in the sample was likely understated, due to the failure to analyze the sample within six hours. Dr. Amuso testified that his laboratory chose to classify the sample as solid. The Tampa laboratory was required to note on its report that it is not NELAC-certified for solid matrices. However, Dr. Amuso testified that the classification of the sample had no impact on the analysis performed or the validity of the result. He explained that the laboratory could have classified the sample as a non-potable liquid, a matrix for which the Tampa laboratory is NELAC-certified, and the same analysis would have been performed and would have yielded the same result. Mr. Beebe forwarded his sample of the dumped material to Sanders Laboratories, Inc. ("Sanders"), a private environmental testing service. The Sanders laboratory classified the sample as a non-potable liquid and performed its analysis within six hours of the sample's collection. The Sanders laboratory report dated September 30, 2004, found the fecal coliform count to be 1,600,000 colonies per 100 milliliters. Placed in comparable terms to the Tampa laboratory's report, this sample showed a fecal coliform count of 16,000 colonies per gram, or about three times higher than the Tampa laboratory's sample. Dr. Amuso attributed this higher reading to the fact that Sanders ran its test within six hours of collection. Dr. Amuso testified that the fecal coliform count of 4,800 colonies per gram found in the Tampa laboratory's sample constituted "pretty significant" contamination. Mr. Rech testified that a count of 4,800 colonies per gram is about one-half of the count found in raw, untreated septage from a septic tank, and that such a count is "bad" in terms of public health significance. Mr. Rech testified that the fecal coliform count in the Sanders sample was "in the range" for raw untreated septage. Mr. Rech stated that the laboratory analyses led to the conclusion that there was a substantial amount of untreated septage mixed with the drillers' mud in the dumped materials. He concluded there was more septage than could reasonably be attributed to residue from a previous dump of septage in Mr. Beebe's truck. He added that it would be impossible to clean the tank of a septage disposal truck sufficiently to prevent fecal contamination of a subsequent non-septage load. Mr. Beebe conceded that Mr. Rech told him that he should not use a septage hauling truck for any other kind of load, especially where that load would be dumped on the ground. Before leaving the dump site on September 29, 2004, Mr. Rech and Ms. Kurbec handed Mr. Beebe the citation for failure to properly treat or dispose of septage and the creation or maintenance of a sanitary nuisance. The citation directed Mr. Beebe to pay a fine of $500.00 for each of the two violations. Mr. Rech testified that he and Ms. Kurbec were able to conclude from their on-site observations that Mr. Beebe had improperly disposed of septage and had created a sanitary nuisance. Mr. Rech stated that the subsequent laboratory analysis served to confirm those conclusions. Mr. Rech testified that untreated septage consists of human waste containing high levels of fecal coliform and viruses, bacteria, and parasites that cause a wide range of gastrointestinal and neurological conditions in humans. Mr. Rech stated that untreated septage dumped anywhere other than at a properly regulated disposal site constitutes a public health nuisance. He noted that the materials were dumped by Mr. Beebe within roughly 100 feet of residential drinking water wells. Mr. Beebe admitted that he dumped the contents of his disposal truck on the vacant lot, though he denied that it contained septage. He theorized that the high fecal coliform counts in the laboratory analyses were caused by animal manure beneath the drillers' mud that he dumped on the property. Dr. Amuso conceded that no testing had been performed to establish the ambient level of coliform on the property, and further conceded that the laboratory tests do not distinguish human from animal feces in measuring the coliform count. However, as noted above, Mr. Rech knew that there were animals on the property and carefully took his sample from the top of the dumped material. Mr. Rech testified that the strong smell of septage, and the high coliform count found by the subsequent laboratory analyses left no doubt that untreated human waste had been dumped on the property by Mr. Beebe. The Department established, by clear and convincing evidence, that Mr. Beebe dumped a mixture of drillers' mud and untreated septage on the lot at 295 Brandy Lane in Naples. Holding Tank On or before January 6, 2005, Mr. Beebe placed a 900-gallon domestic wastewater holding tank into a pre-dug hole at the newly built residence of Edward Ehlen at 616 Crescent Street on Marco Island. Mr. Beebe did not dig the hole, nor did he connect the holding tank to Mr. Ehlen's house. Mr. Ehlen testified that he contracted with the City of Marco Island in July 2004 to connect his new residence, an $800,000 house, to the city sewer system. The connection was to be completed no later than November 2004, when Mr. Ehlen and his family expected to take occupancy of the house. The city did not complete the connection and, therefore, allowed Mr. Ehlen to install a holding tank to be used until the sewer connection was completed. After the holding tank was installed, the city inspected the tank and gave Mr. Ehlen a temporary certificate of occupancy. On January 6, 2005, after Mr. Ehlen and his family had moved into their house, the Department discovered that the Ehlen home was using a holding tank to collect its wastewater. On January 7, 2005, the Department issued to Mr. Ehlen an "Official Notice to Correct and Abate a Sanitary Nuisance," finding that Mr. Ehlen was in violation of "Florida Statutes Chapters 381 and 386" because "plumbing discharge from your home is connected to a sewage holding tank which has not been permitted or inspected by this department." The Notice also provided, in relevant part: You are hereby directed to correct this condition by complying with all the conditions listed below. Apply for a "temporary" Holding Tank permit by close of business on Monday, January 10, 2005. [This permit will be valid for a maximum of 120 days, Permit fee is $185.00] Apply for an abandonment permit for the temporary holding tank by close of business Monday, January 10, 2005. [This permit will be valid for a maximum of 120 days. Complete tank removal will be required within 10 days of hook up to public sewer. Permit fee is $40.00] Have a licensed septic contractor excavate the holding tank for inspection of all connections and seals by this department by Wednesday, January 12, 2005. Sign and maintain a pump-out agreement with a licensed septage hauler until the temporary holding tank is properly abandoned and inspected by this department. Provide a copy of this agreement to the department by Wednesday, January 12, 2005. [Minimum required pump-out frequency to be every other day]. Complete hookup to Marco Island Utilities sewer system within 120 days of receipt of this notice. Failure to comply may result in administrative and/or civil enforcement action, including administrative fines of up to $500 per day per violation of law. On January 12, 2005, the Department issued a 120-day temporary permit to Mr. Ehlen for his holding tank. Also on January 12, 2005, Mr. Ehlen signed a contract with Southern Sanitation pursuant to which Mr. Beebe's company agreed to pump out the holding tank three times per week. Mr. Beebe conceded that he did not obtain a permit from the Health Department before he placed the holding tank in the hole on Mr. Ehlen's property. Mr. Beebe relied on Mr. Ehlen's statement that the City of Marco Island had approved the installation of the holding tank. Florida Administrative Code Rule 64E-6.0101(7) provides that a construction permit must be obtained before the placement or installation of any holding tank. The Department established, by clear and convincing evidence, that Mr. Beebe placed a 900-gallon domestic wastewater holding tank into a pre-dug hole at the Ehlen's residence without obtaining a Department permit. Mr. Beebe's good faith belief that Mr. Ehlen had obtained approval for the placement of the tank is noted as a mitigating factor, but cannot operate as a defense for a registered septic tank contractor's admitted failure to confirm the status of any permit with the Department prior to commencing work on the project. Collection and Hauling Log Mr. Beebe's annual operating permit from the Department authorizes him to pump septage from septic tanks and holding tanks and haul it to an approved treatment site for disposal and treatment. Florida Administrative Code Rule 64E-6.010(7)(e) requires a septage hauler to maintain a collection and hauling log "at the treatment site or at the main business location" and to retain that log for a period of five years. The rule lists the following items for inclusion in the log: Date of septage or water collection; Address of collection; Indicate whether the point of collection is a residence or business and if a business, the type of business; Estimated volume, in gallons, of septage or water transported; Receipts for lime or other materials used for treatment; Location of the approved treatment facility; Date and time of discharge to the treatment facility; and Acknowledgement from treatment facility of receipt of septage or waste. On September 29, 2004, the date on which the Department investigated Mr. Beebe's dumping of drillers' mud and sewage on the lot at 295 Brandy Lane in Naples, the Department requested that Mr. Beebe provide his septage collection and hauling log. On September 30, 2004, Mr. Beebe faxed to the Department a single-page, typed document titled, "RE: Southern Sanitation, Inc. Truck Log for Trucks 1 and 2." The document stated that on September 29, 2004, "Truck #1" transported 3,000 gallons of "Well Drillers Mud" from Southern Well Drillers Services drilling site and disposed of it at 295 Brandy Lane. The document stated that "Truck #2" did not haul materials on September 29, 2004. Mr. Rech testified that this document did not satisfy the rule criteria for collection and hauling logs. He noted that this was not a log kept by the drivers of the trucks, but merely a statement from Mr. Beebe attesting to what the trucks had hauled on a single day. Mr. Rech also pointed out that the Department had inspected and authorized Mr. Beebe to haul septage in two trucks identified by their vehicle identification numbers, but that Mr. Beebe's single-page "log" provided no information specifically identifying the trucks in question. On February 3, 2005, the Department sent a letter to Mr. Beebe requesting that he produce, among other documentation, "your original collection and hauling logs for all domestic sewage and food establishment sludge and/or septage you collected and disposed of from January 1, 2004 through February 2, 2005." On February 11, 2005, Mr. Beebe responded to the Department's request, providing copies of "Septic Receiving Logs" maintained by the North County Water Reclamation Facility ("NCWRF"), the Collier County wastewater facility at which Mr. Beebe disposed of his loads. There were log pages for January through June 2004, and October through December 2004. The logs included the dates of disposal, the number of gallons and type of waste in the load (septic or grease), and the signature of the Southern Sanitation driver who dropped off the load. On March 8, 2005, Mr. Beebe submitted to the Department supplemental information covering January 2005. It includes a typed "Pump Job List" for January 2005, prepared on March 3, 2005. The list contains dates, addresses, and approximate gallons collected, including eight entries for pumping out Mr. Ehlen's holding tank. Individual trucks were not identified on this list. The supplemental information also included an NCWRF Septic Receiving Log for January 2005. Mr. Beebe testified that the Department had never asked him for an accounting during the eight years he has operated his business and that the Department did so in this case only after he contested the allegations in the Brandy Lane dumping case. Mr. Beebe appeared to believe that the Department was acting punitively in requesting documents that Mr. Beebe, as the owner of a permitted septage disposal business, was required to keep. Mr. Beebe did not contest the apparent fact that he did not keep collection and hauling logs for his trucks in the normal course of business. Such documentation as he provided was insufficiently detailed to meet the requirements of Florida Administrative Code Rule 64E-6.010(7)(e), and in some instances was cobbled together well after the fact in order to provide the Department with some documentation of Southern Sanitation's activities. Mr. Rech testified that the Department requires accurate logs of collections and disposals to allow it to monitor compliance and investigate complaints. An accurate, detailed, and contemporaneously-created log would have allowed the Department to discover what Mr. Beebe's truck had collected and dumped prior to the Brandy Lane dumping incident and would have allowed the Department to reconcile the amounts of septage collected by Mr. Beebe from January 2004 through February 2005, with the amounts of septage Mr. Beebe properly disposed of during the same period. The Department established, by clear and convincing evidence, that Mr. Beebe did not maintain a septage collection and hauling log as required by Florida Administrative Code Rule 64E-6.010(7)(e). Improper disposal of septage The terms of Mr. Beebe's septage disposal service permit required him to dispose of his collected septage at the NCWRF. Dale Waller, the plant manager of the NCWRF, testified as to the procedures followed by sewage haulers at the facility. Mr. Waller testified that the facility has a computer capable of generating reports as to the quantity of disposals made by haulers, but that the computer system often does not operate correctly. Therefore, the facility's chief means of monitoring disposals is the "Septic Receiving Logs" discussed above. The Septic Receiving Log requires the hauler to record the date of disposal, whether the disposal consisted of septage or grease, the amount of disposed material in gallons, and the driver's signature and printed name. The number of gallons disposed is shown on a calibrated gauge when the waste is pumped out of the truck. Mr. Waller testified that this gauge is accurate within five per cent of the actual amount pumped. The county sends invoices each month to the hauler, based on the number of gallons and the type of waste disposed of at the facility. The Septic Receiving Log is maintained in the foyer of the NCWRF building, with a monthly sheet for each hauling company that uses the facility. No NCWRF employee monitors the haulers as they make their log entries. Mr. Waller testified that it is essentially an honor system for the haulers. Due to computer problems, the NCWRF had no computer records of disposals for the month of January 2005. The Septic Receiving Log for Southern Sanitation for that month showed six entries totaling 11,908 gallons of septage and grease, plus two early January 2005 entries of 3,450 gallons that were placed on the December 2004 log, for a total of 15,358 gallons. Mr. Waller testified that in March 2005, Mr. Beebe submitted a revised Septic Receiving Log for Southern Sanitation for the month of January 2005. Mr. Beebe also provided this revised log to the Department as part of his March 8, 2005, supplemental information for the month of January 2005. This revised log listed three additional disposals of septage in the month of January 2005: 2,550 gallons on January 17; 2,000 gallons on January 24; and 1,700 gallons on January 28. These additional 6,250 gallons brought the reported total disposals of septage and grease for January 2005 to 21,608 gallons. The NCWRF declined to accept the revised Septic Receiving Log as an official record of Southern Sanitation's disposals at the facility for the month of January 2005, because the NCWRF could not verify the additional disposals. Mr. Beebe was billed only for those disposals documented on the original Septic Receiving Log kept at the facility. As part of the March 8, 2005, submission of supplemental information, Mr. Beebe provided to the Department a "pump job list" for January 1 through 28, 2005. This list indicated that Southern Sanitation collected between 21,000 and 22,600 gallons of wastewater during the period specified, a number that roughly corresponds to the total number of gallons reported by Mr. Beebe in his revised Septic Receiving Log for the month of January 2005. At the hearing, the Department contended that because Mr. Beebe reported collecting between 21,000 and 22,600 gallons of waste, but could only verify the proper disposal of 15,358 gallons of waste, Mr. Beebe must have improperly disposed of at least 5,600 gallons and as much as 7,200 gallons of waste. In a similar fashion, the Department examined the amounts that Mr. Beebe reported pumping from Mr. Ehlen's holding tank, compared those amounts to the Ehlen household's water usage for the month of January 2005, and concluded that Mr. Beebe further underreported the amount of waste collected that month and, therefore, must have improperly disposed of even more than 5,600 to 7,200 gallons of waste. Mr. Beebe was forthright regarding the issues in these cases, even when his testimony was against his own interests. In light of his overall credibility, Mr. Beebe's denial that he made any improper disposals of waste is credited. No evidence was presented to show that Mr. Beebe actually made these improper disposals. The Department's contention was a surmise derived from discrepancies in Mr. Beebe's reports of collections and disposals. Based on all the evidence, the undersigned finds that the discrepancies in the reports were more likely due to Mr. Beebe's poor record-keeping and his after-the-fact efforts to create records complying with Florida Administrative Code Rule 64E-6.010(7)(e), rather than any illegal dumping of waste. The Department failed to establish by clear and convincing evidence that Mr. Beebe improperly disposed of septage during the month of January 2005.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, the Department of Health, enter a final order imposing a $1000.00 fine for the violations described above, relating to DOAH Case No. 04-4333, and imposing a fine of $1,500.00 and a 90-day suspension of Respondent's septage disposal operating permit for the violations described above, relating to DOAH Case No. 05-0695. DONE AND ENTERED this 7th day of July, 2005, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 7th day of July, 2005. COPIES FURNISHED: Michael F. Kayusa, Esquire Post Office Box 6096 Fort Myers, Florida 33911 Susan Mastin Scott, Esquire Department of Health 2295 Victoria Avenue, Room 206 Fort Myers, Florida 33901 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 The issue for consideration in the proceeding concerns whether the Petitioner is entitled to an on-site sewage disposal system permit ("OSDS") authorizing installation of an on-site sewage disposal system for property the Petitioner owns near the Suwannee River in Gilchrist County, Florida, in consideration of the relevant provisions of Section 381.272, Florida Statutes, and Chapter 10D-6, Florida Administrative Code, and whether the Petitioner should be entitled to pursue a variance from the permitting statute and rules embodied in that chapter of the code.
Findings Of Fact The Petitioner owns certain real property located in Gilchrist County, Florida on the east bank of the Suwannee River, adjoining the river. The property is more particularly described as Lot 9, Block B, Two River Estates. The property was purchased on January 3, 1985 and was platted as a subdivision on January 5, 1959. The lot in question upon which the OSDS would be installed should a permit be granted, is approximately one acre in size. On April 30, 1990, the Petitioner made application for an OSDS seeking authorization to install such a conventional septic tank and drain-field system for disposing and treating household sewage effluent on the subject property. The system would be designed to serve a single-family residence, containing approximately two bedrooms, and approximately 1,200 heated and cooled square feet of living space. Upon making application, the Petitioner was informed that he would have to obtain a surveyed elevation of his property, as well as the ten-year flood elevation for his property for the river mile of the Suwannee River at which his property is located. The Petitioner consequently retained Herbert H. Raker, a registered land surveyor, who surveyed the elevation for his property. Mr. Raker established a bench mark elevation of 29.24 feet above mean sea level ("MSL"). The site of the proposed OSDS installation on that lot has an elevation at the surface grade of 28.5 feet. The subsurface of the lot at the installation site is characterized by appropriate, "slight-limited" soil extending 72 inches below the surface grade of the lot. The wet season water table is 68 inches below the surface grade of the lot. Consequently, there is more than adequate slight-limited soil to handle disposal and treatment of the sewage effluent from a single-family residence, such as is proposed, since the wet season water table is 68 inches below the surface of the property. Thus, a more than adequate treatment space and appropriate soil beneath the bottom surface of any proposed drain field to be installed at the site would exist so as to comply with the pertinent rules cited herein. The problem with a grant of the subject permit consists only of the fact that the property lies beneath the ten-year flood elevation, that is, it is approximately 1.5 feet beneath that elevation. The Suwannee River Water Management District report submitted to the Respondent agency by the Petitioner in the application process for the OSDS permit (in evidence) reveals that the ten-year flood elevation for the property in question is 30 feet above MSL. The soils prevailing at the proposed installation site, the great depth of the wet season water table, and the fact that the lot is approximately one acre in size and above the minimum size requirements for the installation of an OSDS, all militate in favor of a grant of the permit, except for the basis for its denial initially, that is, that it is simply beneath the ten-year flood elevation for purposes of the prohibition contained in Rule 10D-6.047, Florida Administrative Code. Although located within the ten-year flood elevation, the site is not located within the regulatory flood way so that if a mounded system or other raised OSDS alternative system were proposed and installed, an engineer's certification would not be required regarding the issue of raising the base flood level by the deposition of fill at the installation site for purposes of Rule 10D-6.047(6), Florida Administrative Code. There is no central water system available to the property; however, although there was conflicting testimony about the distance the proposed installation site would be from a neighbor's potable water well, the testimony of the Petitioner is accepted as being most certain in establishing that more than the required distance from that potable water well exists between it and the proposed septic tank and drain-field installation site, since the Petitioner established that approximately 110 feet is the actual separation distance. The Petitioner purchased the property to construct a single-family residence for himself and his family. He expended a substantial sum of money for the property and is unable to use it for its intended purpose without the subject permit or at least a variance so as to authorize him to install an OSDS. The Petitioner offered no concrete proposals or plans for an alternative system which might reasonably accomplish treatment and disposal of the sewage effluent in question without harm to ground or surface waters or the public health. No substantial proof was offered of a system which would either dispose of and treat the effluent at a location above the ten-year flood elevation or, if still below it, would adequately treat and dispose of the effluent sewage to safeguard the public health and the ground or surface waters involved, such that its existence slightly beneath the ten-year flood elevation would only be a "minor deviation" from that portion of the permitting rules. In point of fact, it would seem that a mounded system would be feasible on a lot this size, especially in view of the fact that the bottom surface of the proposed drain-field trenches or absorption beds would only have to be raised slightly over 1.5 feet from the surface grade of the subject lot and installation site in order to comply with the ten-year flood elevation parameter, which was the only basis for denial of this permit application. No proof was offered concerning how such a mounded system would be designed, installed and otherwise accomplished, however. Upon denying the initial application for the OSDS permit, the Respondent advised the Petitioner that he should pursue a formal administrative hearing process rather than make application for a variance and proceed through the internal variance board mechanism operated by the department in order to obtain a variance from the requirements of Rule 10D-06.47(6), Florida Administrative Code. The Respondent advised the Petitioner of this because the subject property was located within the ten-year flood elevation of the Suwannee River; and as the Respondent interpreted the Governor's Executive Order Number 90-14, which incorporated by reference the "Suwannee River Task Force Report" commissioned by the Governor, the Order absolutely prohibited the granting of any variances authorizing installation of OSDS's beneath the ten-year flood elevation of the Suwannee River or the granting of any OSDS permits themselves authorizing such installations.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that a Final Order be entered denying the Petitioner's application for an OSDS permit. DONE AND ENTERED this 5th day of March, 1991, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 1991. APPENDIX TO RECOMMENDED ORDER The Petitioner did not file a Proposed Recommended Order. Respondent's Proposed Findings of Fact 1-10. Adopted. COPIES FURNISHED: Sam Power, Agency Clerk Department of HRS 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Linda K. Harris, Esq. General Counsel Department of HRS 1323 Winewood Boulevard Tallahassee, FL 32399-0700 John Gary Wilson P.O. Box 2061 Lake City, FL 32055 Frances S. Childers, Esq. Department of HRS 1000 N.E. 16th Avenue Gainesville, FL 32609
