The Issue The issue to be resolved in this proceeding concerns whether the Respondent installed certain septic tank and drainfield systems without having the appropriate permits from the Department of Health and Rehabilitative Services (HRS or Department) and without having the appropriate inspections performed before completing and being paid for the work in question. It is alleged, as well, that the Respondent engaged in advertising and performing septic tank contracting services under the name "Stone's Septic Services" without applying for and receiving an appropriate certificate of authorization from the Department to provide such services under that name.
Findings Of Fact On December 10, 1991, the Respondent installed a drainfield and septic system for Pam Matheny. He was paid $490.00 for that job, which was to include the cost of obtaining the required permit before the installation of the system. The Respondent obtained no such permit, but proceeded to install the system, which is currently operating. The Respondent performed drain line repair of a septic system for Mrs. Noel at 10 Royal Pines Drive, Pace, Florida. That job was also done without the required permit. A similar job was performed at 4844 Orleans Street, Pace, Florida, for a Mrs. Adams. No inspection of the work by the Department was obtained by the Respondent and no permit was issued to or obtained by the Respondent for the work, as established by the testimony of witness, Darla Ard, of the Santa Rosa County Health Unit of the Department. Mr. William Sirmans testified. He is Ms. Ard's supervisor in the Escambia County Health Unit of the Department. All permit applications for the installation and/or repair of septic tank and drainfield sewage disposal systems are processed and issued, if appropriate, by his office. He corroborated the testimony of Ms. Ard and witness, Pam Matheny, to the effect that no permits were ever issued for the three jobs in question which were performed by the Respondent. He discussed these matters with the Respondent during the investigation process underlying this complaint and the Respondent conceded that he had performed the three jobs in question without the required permits. The required inspections, as delineated above, were not obtained either.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that a Final Order be entered by the Department of Health and Rehabilitative services revoking the Respondent's septic tank contracting registration and authorization, as provided for in the above-cited legal authority. DONE AND ENTERED this 18th day of December, 1992, in Tallahassee, Leon County, 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 18th day of December, 1992. COPIES FURNISHED: Robert L. Powell, Agency Clerk Department of HRS 1323 Winewood Boulevard Tallahassee, FL 32399-0700 John Slye, Esq. General Counsel Department of HRS 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Rodney M. Johnson, Esq. Department of HRS District One P.O. Box 8420 Pensacola, Florida 32505-0420 Marcus E. Stone 11601 Chemstrand Road Pensacola, FL 32514
The Issue Whether Petitioner's application for a septic tank permit application should be granted?
Findings Of Fact On July 29, 1987, Petitioner applied for a septic tank permit for a proposed individual sewage disposal system to serve a single family residence on Lot 40, Block P, Killearn Lakes Unit I (Unit 1), in Leon County, Florida. A septic tank system consists of a tank and a drainfield which is wholly or partly underground. The decision of whether to grant a septic tank system permit is greatly influenced by the elevation of the wet season water table in the area where the septic tank system will be located. Under normal circumstances, the elevation of the wet season water table can be determined by taking a boring of the ground in question using an auger. If water is found at the time the boring is conducted, that is an indication of where the water table is located. If no water is found, the elevation of the wet season water table can be determined by examining the soil removed from the ground for signs of mottling. Mottling is the discoloration of the soil caused by the interaction of water with the minerals in the soil. The process of mottling takes place over hundreds of years. Therefore, a rapid change in conditions may cause the elevation of the wet season water table to be different than what would be indicated by mottling. Because of the development of Unit I and the drainage method used in Unit I (sheetflow), the elevation of the wet season water table in Unit I is estimated to be between 12 and 20 inches higher than what is indicated by mottling. On July 7, 1987, a boring was taken on an indeterminate area on Lot 40, by Certified Testing, Inc., a private engineering firm. The evaluation of the boring resulted in mottling being present at a depth of 60 inches. On August 3, 1987, Ms. Teresa A. Hegg, an Environmental Health Specialist with HRS, took two borings on Lot 40. The first boring was taken in an area other than where the septic tank system's drainfield would be located. This boring resulted in mottling being present at a depth of 45 inches. The second boring was taken in the area where the septic tank system's drainfield would be located. This boring resulted in mottling being present at a depth of 22 inches. Based on the boring taken at the proposed site for the septic tank system, showing mottling at 22 inches, and the estimate that the wet season water table in Unit I is from 12 to 20 inches higher than mottling would indicate, the estimated wet season water table for Lot 40 is between 2 to 10 inches below the ground surface. Unit I has a history of septic tank system failures. Unit I was platted prior to January 1, 1972. There exists a very high probability that any septic tank system, even a mound system, installed in Lot P-40 will fail.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent issue a final order denying Petitioner's application for a septic tank permit. DONE and ENTERED this 28th day of July, 1988, in Tallahassee, Florida. JOSE A. DIEZ-ARGUELLES Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4085 The Respondent has submitted proposed findings of fact which are addressed below. Paragraph numbers in the Recommended Order are referred to as "RO ." The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection First phrase accepted. Remainder of paragraph supported by competent evidence but unnecessary to the decision reached. First two sentences accepted. Third sentence supported by competent evidence but unnecessary to the decision reached. Accepted. Accepted. 5,6,7,8,9,10 Supported by competent evidence but unnecessary to the decision reached. Accepted. Accepted. 13,14 Supported by competent evidence but unnecessary to the decision reached. 15. First sentence accepted. Second sentence rejected; the wet season water table on Lot P-40 is from 2-10 inches below grade. Third sentence accepted. COPIES FURNISHED: Salvatore A. Carpino, Jr., Esquire One Urban Centre, Suite 750 4830 West Kennedy Boulevard Tampa, Florida 33609 John R. Perry, Esquire Assistant District II Legal Counsel Department of Health and Rehabilitative Services 2639 North Monore Street Suite 200-A Tallahassee, Florida 32303 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue is whether Respondent should approve Petitioner's application for a septic tank contractor registration, pursuant to Chapter 489, Florida Statutes.
Findings Of Fact Respondent granted Petitioner a septic tank contracting registration on or about January 8, 1990. On August 23, 1993, Respondent's predecessor served Petitioner with an Administrative Complaint. Said complaint alleged that Petitioner was guilty of committing the following violations: (a) violating Rule 10D-6.075(4)(m), Florida Administrative Code, by pumping a septic tank without a valid operating permit, after receiving notice that his company's operating permit had expired; and (b) violating Rule 10D-6.075(4)(n), Florida Administrative Code, by improperly disposing of septage. The complaint proposed a $1000 fine and revocation Petitioner septic tank contractor registration and authorization. The complaint advised Petitioner of his right to request an administrative hearing pursuant to Chapter 120, Florida Statutes. Petitioner did not request a hearing. On November 18, 1993, Respondent's predecessor entered a final order, case number 93-0038S, revoking Petitioner's registration and authorization to provide septic tank contracting services and imposing a fine in the amount of $1,000. Petitioner made the last payment on his administrative fine on February 10, 1995. On February 22, 1996, Petitioner submitted the instant application for septic tank contractor registration. Respondent denied Petitioner's application by letter dated March 13, 1996. The basis of Respondent's denial was Petitioner's failure to meet the minimum registration eligibility requirements as set forth in Chapter 10D-6, Florida Administrative Code. The letter cited Rule 10D-6.072(3)(d), Florida Administrative Code, which prohibits a person from being eligible to take the registration examination if he or she has had a septic tank contractor registration revoked by Respondent within the last five years.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent enter a final order denying Petitioner's application for septic tank contractor registration. DONE AND RECOMMENDED this 22nd day of July, 1997, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of July, 1997. COPIES FURNISHED: David A. West, Esquire Department of Health 1000 Northeast 16th Avenue, Box 3 Gainesville, Florida 32601 Wayne Carroll, Esquire 4010 Newberry Road, Suite A Gainesville, Florida 32607 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Pete Peterson, Esquire Department of Health Building 6, Room 102-E 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Dr. James Howell, Secretary Department of Health Building 6, Room 306 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner violated Florida Administrative Code Rules 64E-6.022(1)(b)2, 64E-6.022(1)(d), and 64E-6.022(1)(p) by making repairs to an on-site sewage disposal system without a permit, and by missing required inspections of the system, as outlined in the citation issued by the Respondent Agency dated August 29, 2005.
Findings Of Fact The State of Florida, Department of Health and Duval County Health Department (Department) is an Agency of the State of Florida, charged with enforcing the statutory and regulatory provisions regarding septic tank and drain field installations and repairs, in Florida, in accordance with Section 381.0065, Florida Statutes, and Florida Administrative Code Rule Chapter 64E-6. The Petitioner is the qualifying registered septic tank contractor for All Florida Septic Tank Service, Inc. (All Florida). He holds registration number SR00011389. He has 15 years of experience in the field of septic tank system construction and repair. All repairs of on-site sewage treatment and disposal systems (septic systems), are required to be performed under the supervision and control of a registered septic tank contractor. Mr. David Adeeb is president of United Properties of North Florida, Inc. He owned property (a residence) at 375 North Cahoon Road, in Duval County Florida. He was informed by his tenants at that residence that the septic tank and drain field were malfunctioning and needed to be repaired or replaced, sometime in April 2004. He therefore contacted All Florida, asking them to inspect the septic system at that residence and advise what repairs might be needed. He was advised by some representative of All Florida that the drain field needed to be replaced and was quoted a price of $2,000.00. All Florida requested that payment be made before the work was performed. Since Mr. Adeeb was out-of-town at the time he asked his tenant to temporarily pay All Florida for the cost of the repairs and/or installation, which they agreed to do. All Florida then issued a contract/proposal to United Properties on April 12, 2004. It was signed by a representative of All Florida, Michael Carver. Mr. Carver was an employee of All Florida. The contract/proposal indicated that a 360 square foot drain field would be installed at 375 Cahoon Road, for a price of $2,000.00, to be paid in cash. The contract/proposal was on All Florida letterhead and included a warranty. Mr. Adeeb was told by his tenant that the Petitioner, who is personally known to that tenant, was on the property while the work was being performed. No one applied for a permit to make any repairs to the septic system and the work was completed without a permit being obtained. Some five months later the system began leaking sewage from the new drain field. It had malfunctioned. Mr. Adeeb therefore again called All Florida to demand that they repair any malfunctions pursuant to the warranty. All Florida informed Mr. Adeeb that a new drain field with a mounded system and pump was needed. When Mr. Adeeb told a representative of All Florida that they had just replaced the drain field in April of that year, he was told that another $2,000.00 would be required to correct the drain field problem. Mr. Adeeb had just recently entered into a contract to sell the property at 375 Cahoon Road so, time being of the essence in closing the sale of the property, he felt he had no choice but to ask All Florida to go ahead with the repair work on the system which All Florida had been asked by him to repair five months previously in April of 2004. After the new system was installed Mr. Adeeb found that a permit had never been obtained for the first drain field work which he had requested from All Florida and that All Florida had done the work incorrectly. Mr. Adeeb objected to paying another $2,000.00 for the second repair job, performed in approximately September of 2004 and after much discussion with All Florida's representatives agreed to pay $1,000.00 dollars for the second stint of repair work. He made the payment and he received a warranty from All Florida for one year, good through September 22, 2005. The warranty was signed by Mr. Wayne Joyner, operations manager for All Florida. Mr. Joyner is also the qualifying registered septic tank contractor for AA Septic Tank Service, Inc., apparently a second corporation domiciled at the same facility and address as All Florida Septic Service, Inc. In May of 2005 Mr. Adeeb was again contacted by the now former tenant who had purchased the property from Mr. Adeeb. He was thus informed that the system had failed again and sewage was leaking onto the surface of the property from the drain field. Mr. Adeeb again contacted All Florida on May 23, 2005. A representative of All Florida informed him that he should fax a copy of the paid receipt and the warranty to them and that they would take care of the problem. On June 20, 2005, the home owner again contacted Mr. Adeeb and told him that no one from All Florida had repaired the drain field as yet. A faxed copy of the paid receipt and warranty was requested once again by All Florida. After numerous phone calls with representatives of All Florida, Mr. Adeeb was told that the problem was not due to All Florida's repair work and that Mr. Adeeb would need to get someone else to repair the system. The Petitioner, James L. Smith, the registered qualifying septic tank contractor for All Florida, testified that Michael Carver had performed the initial repair job in April of 2004 for Mr. Adeeb without the knowledge of the Petitioner or All Florida. He claims that Michael Carver never worked for All Florida. He introduced into evidence a letter purported to be from Michael Carver which was dated September 30, 2005, but signed on October 5, 2005. That letter states that Mr. Carver performed the first drain field repair job without the knowledge of All Florida and that he had created the receipt form which was apparently given to either the tenants at the residence in question, or to Mr. Adeeb, on All Florida letterhead without the knowledge of any officer, employee, or representative of All Florida. That letter, however, was not authenticated because Mr. Carver was not present at the hearing and could not be examined concerning it, or the details of Mr. Carver's involvement with the initial repair project. Moreover, the Petitioner was unable to explain how Mr. Carver would have known about the job at all if he had never worked for All Florida. This is because Mr. Adeeb established that in obtaining all of the repair work during 2004-2005 he had only contacted representatives of All Florida. He had never had contact with Mr. Carver. The Petitioner denied ever telling counsel for the Department in a telephone conversation that Michael Carver had worked for him during the week (i.e. All Florida) but that he let Mr. Carver do "side jobs" on his own on weekends. He claimed that Mr. Carver did the job in question in April of 2004 because the tenants knew him personally and arranged for him to do the work. The testimony of Mr. Adeeb and the Department's evidence in the form of its composite exhibit, is accepted as more credible than the self-serving testimony of the Petitioner, and it is found that All Florida and the Petitioner were responsible for the repair jobs at issue in this case because Mr. Adeeb contracted with All Florida for the work in question. Even if the initial job was performed by Mr. Carver, it is determined that he did so as employee or agent of All Florida and the Petitioner. Under the authority cited herein the Petitioner was responsible, as the qualifying, registered septic system contractor for All Florida, with performance and supervision of the work in question.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Respondent Department finding that the violations charged have been established and that a fine of $2,500.00 dollars be imposed for the violations. DONE AND ENTERED this 30th day of March, 2006, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with Clerk of the Division of Administrative Hearings this 30th day of March, 2006. COPIES FURNISHED: James L. Smith 8300 West Beaver Street Jacksonville, Florida 32220 Catherine R. Berry, Esquire Department of Health 515 West Sixth Street Jacksonville, Florida 32206-4311 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Timothy M. Cerio, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
Findings Of Fact The Respondent, Hance B. Jones, is a registered septic tank contractor. The Petitioner is charged with regulating septic tanks, and may initiate charges against septic tank contractors which fail to comply with the statutes and rules regulating septic tanks. The Department's local inspector, Mr. Land, was asked by a representative of Best Septic Tank Contracting to meet with the Best representative and Ms. Inez Quiett at Ms. Quiett's home and confer about a proposed septic tank repair. On March 5, 1992, Mr. Land visited the site, observed water standing around an area which he was advised was the existing septic tank and drain field, and was asked what would have to be done. Mr. Land advised that they would have to obtain a permit, and that the new drain field would have to be separated by at least 24 inches from the wet season water table, and that this would entail placing the drain field in a mound. Mr. Land left the site expecting to have a representative of Best pick up a permit for the repairs within a few days. When Mr. Land did not see anyone come in about the permit, he drove by Quiett's, and observed disturbed soil in the area of the drain field. He stopped, went to the Quiett's house, and spoke with Ms. Quiett's son. The son advised that they had repaired the drain field. Mr. Land asked who had repaired the field, and the son advised him that Mr. Jones had repaired it. On April 22, 1992, Mr. Land then wrote a letter to the Respondent and advised Jones that he had violated the law by repairing Quiett's septic tank and not obtaining a permit for the repair. Mr. Jones spoke with Land at Land's office, and denied that he had repaired the septic tank. Mr. Jones stated he had provided the materials and equipment used to repair the tank. On April 22, 1992, Ms. Quiett called Mr. Land on the telephone, and told Land that Mr. Jones had helped her with the tank, but denied that Jones had been her contractor. The Respondent denied that he was the contractor of the job; denied he was on the site; denied he supervised the work; and denied he received any compensation from Quiett. He indicated that he knew Ms. Quiett's brothers, who were contractors, and admitted that he had provided the materials used on the job and had loaned them his backhoe. Ms. Quiett was asked about the repairs to the system and invoked her privilege against self-incrimination.
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 the Administrative Complaint against the Respondent be DISMISSED. DONE AND ENTERED this 26th day of August, 1992, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 26th day of August, 1992. COPIES FURNISHED: David West, Esquire District 3 Legal Office 1000 N.E. 16th Avenue Gainesville, FL 32609 Bobby Kirby, Esquire Route 2, Box 219 Lake Butler, FL 32054 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 John Slye, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
Findings Of Fact Petitioner Robert R. Waszak, a resident of Broward County, Florida, purchased Lot 258-A, a 1.25-acre lot in an unrecorded subdivision, Pinetree Estates Subdivision, in Parkland, Broward County, Florida. He cleared the property of a major portion of the sawgrass, pine trees, willows and other types of vegetation and placed thereon fill consisting of sand, rock, shell and other porous material. He obtained a test boring report from Nutting Engineers of Florida, Inc. (Petitioner's Exhibit 2). On December 16, 1980 he filed an application for a septic tank permit on a form provided by the Broward County Health Department together with residential plans and a survey of the property, which application was subsequently denied on January 15, 1981 by the environmental engineering section of the health department. Respondent made an on-site inspection of the Petitioner's lot on December 18, 1980 and at least one other inspection subsequent thereto. A report was filed as part of the notification of denial (Respondent's Exhibit 1). The uncompacted fill placed on the subject property by Petitioner created a mound considerably less than six (6) feet in depth on the obviously low, swampy property. Under the fill and the layer of top soil on the lot there is a layer of cap rock overlying the property. The largely impervious cap rock is visible in areas where the fill does not cover it (Respondent's Exhibit 1). Samples of the fill material and also of the cap rock were examined at the hearing by the Hearing Officer. The fill placed on the property has many rock fragments and rock fines in it which, according to the uncontroverted testimony of the Respondent's witness, are subject to chemical reaction which "cements up" a drainfield area when it comes in contact with septic tank effluent. This "cementing" would take from one to two (2) years after installation on the subject property. There was no evidence presented as to the depth of the water table at the wettest season. Petitioner did not dispute the testimony and evidence presented by the Respondent but was interested in further improvement so that he could use his property as a residential site. He noted that a new subdivision was being built near his property. Respondent pointed out that said subdivision had a central disposal system planned.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that the application of Petitioner Robert R. Waszak for a septic tank permit be denied. DONE and ORDERED this 29th day of June, 1981, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND, 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 29th day of June, 1981. COPIES FURNISHED: Mr. Robert R. Waszak 60 NW 56th Court Fort Lauderdale, Florida 33302 Alan W. Ludwig, Esquire Broward County Health Department 2421 SW Sixth Avenue Post Office Box 14608 Fort Lauderdale, Florida 33302 Alvin J. Taylor, Secretary Department of HRS 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue The issue in this case is whether Respondent should pay a fine of $500 for an alleged violation of Section 386.041, Florida Statutes (1997). (All chapter and section references are to Florida Statutes (1997) unless otherwise stated.)
Findings Of Fact Petitioner is the state agency responsible for issuing citations under Chapter 386. Respondent owns apartments located at 2014-2018 Dante Street, Lakeland, Florida. On August 8, 1997, Petitioner discovered a septic tank backing up at Respondent's apartments. Sewage had leaked out of the system and was flowing onto the adjacent area. The sewage included human waste and toilet tissue. Respondent attempted to hide the leaking system by covering up the pipe with a wooden board. Respondent had taken off the cap to the septic system. Petitioner had previously warned Respondent that the cap needed to remain on the system at all times. Respondent replaced the cap on August 8, 1997. She cleared the open sewage within the next day or two. On January 7, 1998, Petitioner again found the cap off of the system. Sewage had leaked out of the system an onto the adjacent area. Petitioner issued the citation that is the subject of this proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Petitioner enter a Final Order sustaining the citation issued on January 8, 1998, imposing a fine of $500, and denying the request to dismiss the citation. DONE AND ENTERED this 2nd day of July, 1998, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of July, 1998. COPIES FURNISHED: Donna Stark 2028 Dante Street Lakeland, Florida 33801 Roland Reis, Esquire Department of Health 1290 Golfview Avenue, 4th Floor Bartow, Florida 33830 Angela T. Hall, Agency Clerk Department of Health 1317 Winewood Boulevard Building 6, Room 136 Tallahassee, Florida 32399-0700 Dr. James Howell, Secretary Department of Health 1317 Winewood Boulevard Building 6, Room 306 Tallahassee, Florida 32399-0700
The Issue Whether Respondent is guilty of creating, keeping, or maintaining a nuisance injurious to health in violation of Section 386.041(1)(b), Florida Statutes, as set forth in the Citation for Violation, dated August 19, 1996.
Findings Of Fact Petitioner, Department of Health, the successor agency to the Department of Health and Rehabilitative Services, is the state agency charged with the responsibility of investigating and correcting sanitary nuisances in this state. The Respondent, Hyacinth D. Wynter, now known as Hyacinth D. Wallace, has owned a private residence and kennels located at 2323 Tuscawilla Road, Winter Springs, Florida, from 1996 to the present. On or about June 19, 1996, the Seminole County Public Health Unit received a complaint of a possible sanitary nuisance existing on the Respondent’s property. On June 21, 1996, an inspection of Respondent’s property revealed that the property contained a large home with a septic tank and drain field in the front yard and another in the back yard. A kennel for small animals and an apartment was also located in the rear of the property. The septic tank and drain field in the rear of the property was located in a low spot which was subject to the accumulation of surface water runoff from the kennel and during periods of above-average rainfall. Observation revealed standing water in the back yard. The water showed discoloration and had a pungent odor. However, no solid waste was visible. Subsequent tests for sewage contamination was inconclusive. This observation indicated the drain field had failed. Respondent was given a Sanitary Nuisance form letter which recommended that the septic tank be pumped, the ground disinfected and the drainfield be repaired within ten days. Respondent contacted two septic tank companies in late June and received estimates on pumping the septic tank and on the repair and improvement of the septic system. Respondent retained one of the companies to pump the septic tank. The septic tank company was unable to complete the job prior to Petitioner’s reinspection on July 2, 1997, because of above normal rainfall and the inability to get its truck into the Respondent’s back yard. Petitioner reinspected Respondent’s property on July 2, 1997 and observed the same conditions as was observed on June 21, 1997. A three day extension was granted to Respondent, in order for the tank to be pumped. On July 3, 1997, Orlando Septic Tank Service, Inc. pumped the septic tank and disinfected the area. It also advised Respondent that the drainfield had failed and would need to be replaced. On July 8, 1997, Respondent inspected the area again and observed the same conditions as on the prior inspections. An Official Notice to Abate a Sanitary Nuisance and a Notice of Intended Action was issued by Respondent on July 11, 1997. It was served on Respondent, by posting and by certified mail, on July 12, 1997. Respondent was directed to abate the nuisance within 7 days of the notice or an administrative fine would be imposed. Respondent began to disinfect the area with lime on a daily basis, until the drainfield was repaired. The low area with the standing water was bordered off with visible construction type ribbon and visitors coming to the premises were advised to stay clear of the area. Respondent authorized Orlando Septic Tank Service to submit a permit application to replace the drainfield in accordance with the specifications approved by the Petitioner. The application was submitted on July 17, 1996. The permit was issued on July 24, 1996. On July 25, 1997, Respondent received a proposal from Orlando Septic Service to install an elevated drainfield on the site for the sum of $4,288.50. Respondent was not able to financially afford to authorize this work without obtaining financing for the project. When financing was obtained, Respondent accepted the proposal and then authorized the work on August 8, 1996. Due to other obligations, Orlando Septic was not able to give a proposed starting date for the project until August 26, 1996. On August 13, 1996, Petitioner inspected the Respondent’s property again and observed the same conditions as on previous inspections. Petitioner was informed of the projected starting date for repair of the drainfield, however, a Citation for Violation was issued on August 16, 1996 calling for corrective actions to abate the condition by 4:00 p.m. August 19, 1996. On August 27, 1996, the septic tank was pumped again. Orlando Septic Service was scheduled to begin work on the repair of the drainfield on August 26, 1996. On that same date, the company called Respondent and informed her that they were delayed on another job and could not begin repair of Respondent’s drainfield until sometime in September. Respondent immediately called another company and gave them the contract. The repair was completed on September 10, 1996. The evidence was insufficient to establish that a sanitary nuisance existed on Respondent’s property on August 16, 1996.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED as follows: The Respondent, Hyacinth D. Wynter, be found not guilty of violations Sections 386.041(b), Florida Statutes. The Notice of Intended Action be revoked. DONE and ENTERED this 30th day of May, 1997, in Tallahassee, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of May, 1997. COPIES FURNISHED: Sonia Nieves Burton, Esquire Department of Health 400 West Robinson Street Orlando, Florida 32801 Michael D. Jones, Esquire Atrium II Building 301 West State Road 434, Suite 317 Winter Springs, Florida 32708 Catherine H. Berry Legal Office Duval County Health Department 515 West 6th Street Jacksonville, Florida 32206-4397 Gregory D. Venz, Agency Clerk Department of Children & Families Building 2 Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Pete Peterson, Esquire 1317 Winewood Boulevard Building 6 Room 102-E Tallahassee, Florida 32399-0700
The Issue Whether Respondent committed the violations as set forth in the Citation for Violation, Onsite Sewage Program/Sanitary Nuisance dated April 28, 2000.
Findings Of Fact Petitioner is authorized and given the jurisdiction to regulate the construction, installation, modification, abandonment, or repair of onsite sewage treatment and disposal systems, including drainfields, by septic tank contractors. At all times material hereto, Respondent was a registered septic tank contractor and, as such, he was authorized to provide septic tank contracting services, including the installation and repair of drainfields. On or about November 2, 1995, Petitioner issued a permit (Permit No. RP648-95) to Wilmar Rodriguez for the repair of a septic tank system at 417-421 Perry Avenue, Greenacres, Florida. The property was a triplex, which was purchased by Mr. Rodriquez in 1981. Mr. Rodriguez has no knowledge as to whether any drainfields were installed or replaced on the property, prior to 1981. The Permit included the installation of a new multi- chambered septic tank, a dosing tank, a lift station, and a new drainfield. The Permit was also for a filled system and called for the drainfield to be 700 square feet. Respondent was indicated as the "agent" on the Permit. Respondent and/or his employees performed the work under the Permit. Respondent was the septic tank contractor for the repair of the septic tank system under the Permit. On November 9, 1995, the construction of the septic tank system was approved by one of Petitioner's inspectors, who was an Environmental Specialist I. Petitioner's inspectors are not present during the entire construction or repair of a septic tank system or drainfield. Usually, inspections are made after the completion of the construction or repair of the septic tank system. Additionally, the inspection of a drainfield is usually performed after the rock has been placed on top of the drainfield. On February 2, 1996, the same inspector performed the inspection after the completion of the construction of the septic tank system, including after the placing of the rock on top of the drainfield. Even though the Permit reflects a filled system, the filled/mound system section on the inspection sheet was crossed out. The inspector considered the system to be a standard system, not a filled or mound system, and, therefore, inspected it as a standard system. In inspecting a drainfield, the inspection by an inspector includes checking to ensure that a drainfield has 42 inches of clean soil below the drainfield. An inspector uses an instrument that bores down through the rock and brings up a sample of the soil, which is referred to as augering. Augering is randomly performed at two locations. For the instant case, the inspector performed the augering in two random locations of the drainfield, which were in the area of the middle top and the middle bottom. The samples failed to reveal anything suspect; they were clean. On February 2, 1996, the inspector issued a final approval for the septic tank system. Final approval included the disposal of "spoil" and the covering of the septic tank system with "acceptable soil". The inspector mistakenly inspected the system as a standard system. He should have inspected the system as a filled system.1 After the repair and installation of the septic tank system by Respondent, Mr. Rodriguez continued to have problems with the septic tank system. He contacted Respondent three or four times regarding problems with the system, but the problems persisted. Each time, Respondent was paid by Mr. Rodriguez. Sewage water was flowing into the street where the property was located and backing-up into the inside of the triplex. Having gotten no relief from Respondent, Mr. Rodriguez decided to contact someone else to correct the problem. Mr. Rodriguez contacted Richard Gillikin, who was a registered septic tank contractor. On October 14, 1999, a construction permit was issued to Mr. Rodriguez for the repair of the septic tank system. Mr. Gillikin was indicated as the agent. Mr. Gillikin visited the property site of the triplex and reviewed the problem. He determined that the drainfield was not properly functioning, but he did not know the cause of the malfunctioning. With the assistance of Petitioner's inspectors, Mr. Gillikin and Mr. Rodriguez attempted to determine the best method to deal with the problem. After eliminating options, Mr. Rodriguez decided to replace the drainfield. To replace the drainfield, Mr. Gillikin began excavating. He began removing the soil cover and the rock layer of the drainfield. Mr. Gillikin also wanted to know how deep he had to dig to find good soil. After digging for that purpose and for 10 to 12 inches, he discovered a drainfield below Respondent's drainfield. The drainfield that Mr. Gillikin discovered was a rock bed 12 inches thick in which pipes were located and, as indicated, 10 to 12 inches below Respondent's drainfield. Mr. Gillikin also dug a hole two to three feet deep, pumped the water out of the hole, and saw the old drainfield. Mr. Gillikin determined that the old drainfield extended the full length of Respondent's drainfield. As a result of Mr. Gillikin's determining that the old drainfield was below Respondent's drainfield, both drainfields had to be removed and the expense of a new drainfield increased. Leon Barnes, an Environmental Specialist II for Petitioner, who was also certified in the septic tank program, viewed the drainfield site. He determined that the old drainfield was below Respondent's drainfield and that, therefore, Respondent had not removed the old drainfield. On or about November 6, 1999, Mr. Barnes' supervisor, Jim Carter, and co-worker, Russell Weaver, who is an Engineer, also visited the drainfield site. Mr. Weaver determined that the old drainfield covered a little more than 50 percent of the area under Respondent's drainfield. On November 8, 1999, a construction inspection and a final inspection of the system installed by Mr. Gillikin were performed. The system was approved. Respondent admits that a new drainfield is prohibited from being installed over an old drainfield. However, Respondent denies that he installed a new drainfield over the old drainfield on Mr. Rodriguez's property. In 1995, Respondent failed to completely remove the old drainfield before he installed the new drainfield. The soil and rocks from the old drainfield, which was not functioning, were contaminated spoil material. Because the old drainfield was not completely removed, the contaminated spoil material remained in the drainfield and was used as part of the material in the installation of the new drainfield. Leaving the contaminated spoil material in the new drainfield, prevented the sewage water from being able to percolate through the ground, which is a method of cleansing the sewage water. Without being able to percolate through the ground, the sewage water remained on the surface of the drainfield, creating a serious sanitary nuisance and health hazard. The sewage water spilled onto the street and backed-up into the triplex. Respondent was issued a Citation for Violation, Onsite Sewage Program/Sanitary Nuisance by Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Palm Beach County Health Department, enter a final order: Affirming the Citation for Violation, Onsite Sewage Program/Sanitary Nuisance and finding that Noel Sanfiel violated Section 381.0065, Florida Statutes (1995), and Rule 10D- 6.0571(4), now Rule 64E-6.015(6), and Rule 10D-6.0751(1)(l)1, now 64E-6.022(1)(l)1, Florida Administrative Code. Imposing a fine of $500. DONE AND ENTERED this 13th day of February, 2001, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 2001.
