Findings Of Fact At all times material to this proceeding, Sandra B. Frazier was a licensed real estate broker-salesman in the State of Florida, License No. 0185565, as an associate with Property Associates, Inc., Tallahassee, Florida. On July 1, 1989, Howard M. Burkholz, Leslie Burkholz, and Jacob H. Schiff entered into an Exclusive Right of Sale Agreement with Property Associates, through its agent, Frazier, for the sale of a house located in Forest Green Subdivision, at 2062 Pepperidge Way, Tallahassee, Florida. The Exclusive Right of Sale Agreement states in part: Seller further certifies and represents that the property has no latent defects except the following: septic tank is pumped monthly at Sellers request. [sic] Mr. and Mrs. Burkholz both told Frazier that the septic tank was not a problem, but Frazier had previous knowledge of septic tank problems in the vicinity and of the significance of needing septic tank pumping. Frazier sold the house across from the Burkholz's house. That house, at 2061 Pepperidge Way, was bought by Marcie Doolittle in December of 1988. The listing information and Notice to Prospective Buyers showed that, due to the composition of the soil and heavy rains, it was necessary to have the septic tank pumped. The seller offered an offset to the buyer for the cost of additional drainfield. Only after Doolittle bought the house did Frazier learn of the severity of the problems and the necessity for pump outs every two weeks. In a letter written by Frazier to Doolittle on February 9, 1989, Frazier indicated that "once a septic tank fails it does not correct itself. It then requires regular pumping." Frazier suggested that the only resolution was more drainfield or regular pumping. After Frazier listed the Burkholz house, she mentioned to Mrs. Doolittle that she could not show the Burkholz house during wet weather because the backyard, in which the septic tank and drainfield was located, was too boggy. Further, Frazier discussed with Mrs. Doolittle that the city was going to install sewer in the area because of the septic tank failures. In conformance with the Exclusive Right of Sale agreement with the Burkholzs, Frazier listed the house through the Multiple Listing Service. The data on the house was input on an input sheet. If there are defects, they can be listed on lines RE1-RE4 on the input form. Despite her knowledge about the Burkholz's septic tank and the Doolittle's septic tank, Frazier did not list this as a defect. Mary Wheatley, a sales associate with Bob Wolfe Real Estate, worked with Jesse and Susan Day to locate a house to purchase. She showed the Days the Burkholz house. Her only knowledge of that house came from the MLS listing, the brochure entitled Highlights of this Home prepared by Frazier, and from information verbally given by Frazier. Wheatley had no knowledge of the septic tank problems and Frazier did not tell her anything about the septic tank or the potential hook up to city sewer. After various offers and counteroffers, the Days and the Burkholtzs signed a contract for the sale and purchase of the house on November 24, 1989. The Contract states in paragraph 14: CONDITION OF PROPERTY: BUYER ACKNOWLEDGES THAT HE HAS NOT RELIED UPON ANY REPRESENTA- TIONS MADE BY A REALTOR(S) AS TO THE CONDI- TION OF THE PREMISES. . . .SELLER warrants that the . . . septic tank . . . shall be in working order on the date of closing. SELLER agrees to repair any of the preceding items not in working order. BUYER agrees to inspect the property prior to closing to determine condition of said items; . . . If BUYER fails to make inspections as required, BUYER agrees to accept property in "as is" condition. BUYER and SELLER will diligently learn and disclose to each other prior to closing all facts affecting the value of the property. On December 26, 1989, the night before the closing, the Days, the Burkholzs, Frazier, and Wheatley did the final walk through. While Wheatley and Susan Day were in another room measuring for curtains, Mr. Day flushed a toilet and noted that it went down very slowly. He asked if there were septic tank problems. Mr. Burkholz indicated that there were, but that sewer hookup was coming and the septic tank was pumped out monthly by the city at no cost. Mr. Day asked about the costs and was told that the pumpouts were free and the sewer would cost several hundred dollars. There is a clear conflict in the testimony of the various witnesses about the sewer cost estimate given to Mr. Day, but the exact figure is of no consequence to the ultimate outcome of the case. Therefore the conflict is not resolved. The Days discussed the septic tank and sewer hookup and decided to go through with the closing. After the walk through, they signed an inspection sheet in which they accepted the premises as inspected, without any noted exceptions, and they relieved the sellers and the realtor from further warranty or responsibility for the condition of the property. According to Thomas Bryant, an engineer with the City of Tallahassee, in December, 1989, no one knew whether there would be sewer installed in Forest Green or the potential cost of sewer hookup. No one knew that even on the date of hearing. The city did enter into an agreement to charge $650 for sewer hookup in Forest Green, but there are additional charges and costs to the homeowner which are as yet undetermined. The septic tank problems constitute a latent defect which should have been disclosed to the buyers before a contract was agreed upon. The failure to disclose is not egregious since the regular pumping of the septic tank is done at no cost to the homeowner and results in no liability to the homeowner. The projected sewer hook up was too uncertain to have required such disclosure.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Real Estate Commission enter a Final Order and therein: Find Sandra B. Frazier guilty of one Count of concealment in violation of Section 475.25(1)(b), Florida Statutes. Based on the mitigating factors set forth above and on the relatively minor nature of the offense, impose a fine of $100.00 on Sandra B. Frazier. Issue a written reprimand to Sandra B. Frazier. RECOMMENDED this 27th day of March, 1991, in Tallahassee, Florida. DIANE K. KIESLING 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 27th day of March, 1991. APPENDIX TO THE RECOMMENDED ORDER, CASE NO. 90-6189 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted in this case. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Sandra B. Frazier Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1). Proposed findings of fact 2-9 are subordinate to the facts actually found in this Recommended Order. COPIES FURNISHED: Janine B. Myrick Senior Attorney Department of Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32801-1772 William J. Haley Attorney at Law Post Office Box 1029 Lake City, FL 32056-1029 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Darlene F. Keller Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32801
The Issue Whether a septic tank construction permit should be issued by the Respondent, Department of Health and Rehabilitative Services, for use by the Respondent, Alex Rutkowski, owner of Lot number 6, Block E, Carlton Terrace Subdivision First Addition, in Clearwater, Florida. Whether the filling in of Lot number 6 and the construction of a septic tank will damage the residence of the Petitioner, Elinor Burger, on Lot number 5.
Findings Of Fact The Respondent, Alex Rutkowski, and his wife own Lot number 6, Block E, Carlton Terrace Subdivision, First Addition, in Clearwater, Florida in which the sixteen (16) lots are approximately 70 feet wide and 105 to 150 feet deep. The soil in the area is Mayakka Fine Sand, a poorly drained soil which has a water table normally at a depth of ten (10) to thirty (30) inches below ground surface, but which rises to the surface for a short time during wet periods. After respondent Rutkowski's initial application for a permit to install a septic tank on Lot number 6 had been denied, he employed an engineer and filed a plan for proposed site modification. The plan was received by the Respondent, Department of Health and Rehabilitative Services, and Rutkowski was notified on December 6, 1979, that the plan to remove the existing land fill, replace it with Astatula Fine Sand and raise the building pad appeared to be acceptable for the issuance of a septic tank construction permit, but that no further action on the application for the permit could be taken until after an administrative ruling on a protest by a neighboring property owner (Respondent' Exhibits 1, 4 and 5). The Pinellas County Engineering Department had approved the drainage for the area on October 9, 1979 (Respondent's Exhibit 2). The Petitioner, Elinor Burger, has lived on Lot number 5, which adjoins Lot number 6, since 1957. When there is a heavy rain of three (3) to four (4) inches, her septic tank fails to operate, and water stands in her back yard. She has seen and smelled polluted water standing in the street in front of her home. Water also stands on a second lot she owns adjoining her residence after a heavy rain preventing the mowing of the lot for long periods of time. Ms. Burger has unsuccessfully sought to connect to a sewer system by petitions for sewer connection on at least- three (3) occasions and has laid additional drainage lines to help solve her problem. In the spring, summer and fall of 1979, she had severe water problems. Ms. Burger believes the elevation of Lot number 6 would cause further water damage to her property, and that a septic tank on Lot number 6 would add more sewage problems to the area A witness for Petitioner, Alan Flandreau, who lives with his wife and three (3) children on lot number 13 adjoining Lot number 5 in the subdivision, has a septic tank that fills up in rainy weather and runs into the street, resulting in a stench and green slime. Flandreau has had his septic tank pumped out a number of times since 1968, when he bought his home. His lot is low, and water drains onto his property from other lots. A witness for Petitioner, Burl Crowe, owns Lot number 11 and lives on Lot number 12. Lot number 11 adjoins Lot number 6, and Lot number 12 borders on the property of Petitioner Burger. Crowe has lived on Lot number 12 for fourteen (14) years and on many occasions had water entering his garage and standing in his yard when it rains. He has seen Lot number 6 under water and water standing on the street in front of his house, A witness for the Respondents was Gerald Goulish, the professional engineer who prepared the site modification plan (Respondent's Exhibits 4 and 8). Goulish has studied the site together with Rule 10D-6 of the Florida Administrative Code (infra) and believes the plan to fill the location of the septic tank site will cause the soil to percolate and evaporate and the proposed elevation of Lot number 6 two (2) feet will cause the water to drain toward the street and not onto adjoining property. He suggested that the adjoining and adjacent property owners cooperate and construct common swales to eliminate the surface water problems. A second witness for the Respondents was Burt Fraser, a sanitary supervisor for the Pinellas County Health Department, who denied the first application for installation of a septic tank on Lot number 6 but notified Respondent Rutkowski that the lot could be modified. Thereafter, he wrote Rutkowski that a modification plan had been received which meets the minimum requirements of the Florida Administrative Code. Fraser stated that he will issue a permit for construction of a septic tank upon completion of the administrative hearing procedure unless directed not to issue such a permit. Fraser agreed that the conditions as described by Petitioner Burger and her witnesses are accurate, and that the subdivision has problems which will not be solved until sanitary sewers are installed, but he believes that he has no alternative except to issue a permit if an applicant meets the requirements of Rule 10D-6.25 Florida Administrative Code. He knows of no requirement to make a study of adjacent and adjoining properties, and Respondent Department has not made a study. There are seven (7) houses in the sixteen (16) lot subdivision. The area is low and subject to flooding because of soil texture. There is an undisputed drainage problem in the area which causes a septic tank problem to the residents. The addition of more houses and septic tanks will increase the already serious drainage conditions which are public health nuisances. The Respondent, Department of Health and Rehabilitative Services, submitted proposed findings of fact, memorandum of law and a proposed recommended order. These instruments were considered in the writing of this order. To the extent the proposed findings of fact have not been adopted in or are inconsistent with factual findings in this order, they have been specifically rejected as being irrelevant or not having been supported by the evidence.
Recommendation Based on the foregoing Findings and Conclusions of Law, the Hearing Officer recommends that Respondent Rutkowski's application for a permit for the construction of a septic tank on Lot number 6 be denied without prejudice to the Respondent to reapply if there should be a change in circumstances. DONE and ORDERED this 10th day of April 1980, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED Barbara Dell McPherson, Esquire Department of HRS Post Office Box 5046 Clearwater, Florida 33518 William W. Gilkey, Esquire Richards Building 1253 Park Street Clearwater, Florida 33516 Mr. Alex Rutkowski 30 North Evergreen Clearwater, Florida
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 Whether Petitioner's site, Hughes Supply, Inc. located at 2920 Ford Street, Fort Myers, Lee County, Florida is eligible for restoration under Section 376.3072, Florida Statutes.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Hughes is a Florida Corporation in good standing and authorized to do business in the State of Florida. The Department's facility no. 36-8519331 (the Facility), owned and operated by Hughes and the subject matter of this proceeding, is located at 2920 Ford Street, Ft. Myers, Lee County, Florida, and is a "Facility" as defined in Section 376.301(5), Florida Statutes. The Facility consisted of (a) two underground storage tanks (USTs), one 4000 gallons UST (gasoline tank) and one 8000 gallons UST (diesel tank), and (b) four monitoring well, and is a "petroleum storage system" as defined in Section 376.301(15), Florida Statutes. At all times material to this proceeding, Hughes held, and was the name insured of, an effective third party pollution liability insurance policy (No. FPL 7622685 - Renewal No. FPL 7621566) applicable to the Facility that was issued in accordance with, and qualified under, Section 376.3072, Florida Statutes. Hughes paid annual premiums exceeding $20,000.00 for the above insurance. In accordance with Sections 376.3072, Florida Statutes, and Chapter 17- 769, Florida Administrative Code; the Department issued to Hughes a Notice of Eligibility pertaining to the Facility and the third party pollution liability insurance referred to in Finding of Fact 4 above. Lee County, Florida has a local program approved by the Department pursuant to Section 376.3073, Florida Statutes, to provide for the administration of the Department's responsibilities under certain sections of Chapter 376, Florida Statutes. Diesel fuel was placed into the diesel tank at the Facility on August 12, 1991, and no diesel fuel has been placed in the diesel tank at the Facility since that date. On Thursday, August 29, 1991, a contractor bidding on the removal of the tanks detected free product in one of the monitoring wells at the Facility and told Larry Carman, the Warehouse Manager for Hughes. Mr. Carman told Phillip Ross, the Branch Manager for Hughes, who in turn informed Gene Kendall, the Operations Coordinator for Hughes. All of this occurred on August 29, 1991. On Friday, August 30, 1991, an employee of IT Corporation, acting upon the request of Gene Kendall, sampled the four monitoring wells at the Facility and found six inches of free product in the northwest monitoring well. On Tuesday, September 3, 1991, Fred Kendall discussed the discharge with Bill W. Johnson, Supervisor, Lee County Storage Tank Local Program. During this discussion, Johnson learned that the diesel tank had not been emptied. Johnson advised Kendall that the diesel tank had to be emptied of its product and placed out of service. On Tuesday, September 3, 1991 Mr. Kendall completed the Discharge Reporting Form (DRF) pertaining to the discharge and mailed the DRF to Johnson on September 4, 1991. The DRF indicated August 30, 1992, the day that IT Corporation confirmed the discharge, as the day of discovery of the discharge. The discharge was diesel fuel as indicated by the DRF and a "petroleum product" as defined in Section 376.3-1(14), Florida Statutes. The discharge reported in the DRF constitutes a "discharge" as defined in Section 376.301(4), Florida Statutes, which constitutes an "incident" as defined in Section 376.3072(2)(c), Florida Statutes, and as described in Rule 17-769.600, Florida Administrative Code. On Wednesday, September 4, 1991, Mr. Kendall also mailed a letter to Johnson stating Hughes' intent to seek restoration coverage for the Facility, pursuant to Policy No. FPL 762285, Renewal No. FPL 7621566. On September 13, 1991 when Hooper, Inspector for the Lee County Storage Tank Local Program, inspected the Facility the diesel tank contained a total of 39 5/8 inches of diesel and water, of which 4 3/4 inches was water. On September 16, 1991 when Hooper again inspected the Facility, the diesel tank contained a total of 36 1/2 inches of diesel and water, of which 4 1/2 inches was water. On this date, Hooper advised Hughes that the diesel tank had to be emptied of its product. The inspection report issued on September 16, 1991 by Hooper advised Hughes that the Facility was not in compliance with Chapter 17-761, Florida Administrative Code. On September 17, 1991, Hughes had the diesel tank emptied of all its product. Although Hughes was in the process of emptying the diesel tank by giving diesel away, at no time between August 30, 1991 and September 16, 1991 was the diesel tank completely empty of its product. Between August 30, 1991 and September 16, 1991 Hughes did not test the diesel tank to determine if the diesel tank was leaking and, if so, to pinpoint the source of the leak. There was no evidence that either the Department or Lee County Storage Tank Local Program personnel ever informed Hughes before September 16, 1991 that there was a time frame within which the diesel tank had to be emptied of all of its product, and placed out of service in order for Hughes to be in compliance and eligible for reimbursement for restoration under the FPLIRP. Likewise, Hughes did not request any information from the Department or the Lee County Local Program personnel concerning any time frames within which the diesel tank had to be tested for leaks or emptied of its contents to prevent any further discharge in order to be eligible for reimbursement for restoration under the FPLIRP. Between August 29, 1991 and September 17, 1991 Hughes bailed the monitoring wells at the Facility on a daily basis, removed the free product from the monitoring wells, and placed the free product in a sealed 55-gallon drum. When the discharge was discovered, Hughes made the decision to close the Facility by tank removal, and at this point did not intend to repair or replace the Facility. As a result of an inspection of the Facility by the Lee County Local Program personnel in May, 1991, Hughes was made aware that the Facility was not in compliance with Chapter 17-761, Florida Administrative Code, since the gasoline tank had not been used in over three years, and there had been no closure of the gasoline tank. This noncompliance with Chapter 17-761, Florida Administrative Code, concerning the gasoline tank was also a portion of the noncompliance report filed by Hooper on September 16, 1991. The gasoline tank comes within the definition of "unmaintained" as defined by Rule 17-761.200(2), Florida Administrative Code. Both the diesel tank and the gasoline tank were removed on October 28, 1991 by a Florida licensed storage tank system removal contractor, and the Facility permanently closed by IT Corporation on October 29, 1991. In December, 1991, Hughes filed a tank closure assessment report pertaining to the removal of the diesel and gasoline tanks from, and closure of, the Facility. The tank closure assessment report was prepared by IT Corporation upon a request made by Hughes to IT Corporation on September 3, 1991 for a tank closure assessment proposal which was submitted by IT Corporation to Hughes on September 4, 1991. In April or May, 1992, Hughes filed with Lee County a contamination assessment report prepared by IT Corporation pertaining to the removal of the USTs from and closure of the Facility. Subsequent to discovery of the discharge. Hughes has expended approximately $60,000.00 as of June 10, 1992, on the Facility in connection with the USTs. Site rehabilitation costs for the Facility have been estimated in a range of $220,000.00 to $245,000.00 as of June 10, 1992. In the early part of 1991 water was present in the diesel tank, and approximately six months before discovering the discharge in August, 1991, Hughes had the water pumped out of the diesel tank. Hughes gave no explanation for the presence of water in the diesel tank. Neither the Department nor the Lee County Local Program personnel were notified of this unexplained presence of water in the diesel tank.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that the Department enter a Final Order denying Hughes application for restoration coverage under the Florida Petroleum Liability Insurance and Restoration Program. DONE and RECOMMENDED this 24th day of September, 1992, at Tallahassee, Florida. WILLIAM R. CAVE, 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 September, 1992. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 91-8334 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is the Finding(s) of Fact which so adopts the Proposed Finding(s) of Fact:(1); 2-3(2); 4-5(3); 6- 8(4); 9(5); 10(6); 11(8,9); 12(10,11); 14(15,22); 15(10); 16(19); 18(10); 19(13); 20-21(7); 22-23(24); 24(21); 25(17); 26-29(20); 30(15); 31(16); 32(22); 33(23); 35(23); 36(7); 37(23); 38(24); 39(25); 40(26); 41(27); 42-43(27); and 44(15,22). Proposed Findings of Fact 13, 17 and 34 are neither material nor relevant to the conclusion reached in the Recommended Order. Rulings on Proposed Findings of Fact Submitted by the Respondent 1. The following Proposed Findings of Fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is the Finding(s) of Fact which so adopts the Proposed Finding(s) of Fact:1-2(2); 3(3); 4-6(5); 7(6); 8(22); 9(7); 10(8); 11(9); 12(10); 13-16(11); 17(12); 18(13): 19(18); 20(17); 21-22(14); 23-24(15); 25-26(28); 27(16); and 28(23). COPIES FURNISHED: Scott E. Wilt, Esquire Maguire, Voorhis and Wells 2 South Orange Plaza Orlando, Florida 32801 Brigette A. Ffolkes, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Carol Browner, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, Esquire General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue The issues are whether Respondent has violated the standards of practice in septic tank contracting, Florida Administrative Code rule 64E-6.022, and, if so, the penalty. (All references to Respondent are to Arlender Miller. All references to Ms. Rooter are to Ms. Rooter, Inc.)
Findings Of Fact At the times of the alleged jobs, Respondent was registered as a septic tank contractor and served as the qualifying agent for Ms. Rooter. At the time of all three jobs, Respondent had apparent authority to serve as the agent of Ms. Rooter in contracting for and performing the septic tank contracting work described below. However, nothing in the record establishes any relationship between Respondent and Ms. Rooter at the time of the issuance of the Administrative Complaint, so as to justify treating the notice of this proceeding, when served upon Respondent, as notice to Ms. Rooter. Hans Seffer, who testified, is the son of the woman who owns the apartment complex located at 14950 North Miami Avenue, Miami. Mr. Seffer found Ms. Rooter on the internet and spoke with Carolyn Futch, operations manager of Ms. Rooter, about septic tank contracting services needed at the apartment complex. Respondent later met with Mr. Seffer at the property. Initially, Mr. Seffer believed that the existing septic tank needed only to be pumped out. However, upon inspection, Respondent determined that the system also required a new drainfield, pump, and dosing tank. Accordingly, on February 20, 2008, Respondent, as "technician," and either Mr. Seffer or his mother signed a one-page contract on a form identifying the contractor as Ms. Rooter, license number SA0071430. The contract describes the following work: Install 1,000 sq. ft. drainfield with 300 gallon dosing tank including immediate (2/21/08) tank pump out. Additionally if tank requires pumpout prior to securing all necessary permits, Ms. Rooter will perform pumpout at no additional cost. Manhole cover included. Respondent and either Mr. or Mrs. Seffer initialed this section of the contract. The contract states that the total due for this work is $10,500. Ms. Seffer paid $5,000 by check on February 21, 2008, leaving a $5,500 balance due. On March 1, 2008, Respondent, as agent for Ms. Rooter and on behalf of the property owner, submitted to Petitioner an application for a construction permit for an onsite sewage disposal system. The application describes the property improvements as a multifamily complex with ten bedrooms and 5,284 square feet of building space. The site plan attached to the application states: "Replace drainfield only." On April 2, 2008, Ms. Futch emailed Mr. Seffer to confirm an earlier discussion between them. The discussion addressed a requirement of Petitioner that Ms. Rooter install a second tank. The email states that the property owner will pay $5,600 for the installation of a "2nd tank (1,050-gal)," so the new total contract price is $11,100. This email restates the scope of the work as the installation of a 1,000-square-foot drainfield and 300-gallon dosing tank. By return email two days later, Mr. Seffer agreed to the additional work. On April 11, 2008, Petitioner issued to the property owner a construction permit that specifies a 2,575-gallon septic tank and a 1,000 square-foot drainfield. The permit states: "The licensed contractor installing the system is responsible for installing the minimum category of tank in accordance with sec. 64E-6.013(3)(f), F.A.C." This rule does not refer to tank capacities. On April 23, 2008, Petitioner issued a "construction inspection and final approval" form that shows the installation of two 1,200-gallon septic tanks and a 1,005-square-foot drainfield. The form states that items bearing an "X" are "not in compliance with statute or rule and must be corrected." The construction and final system are approved by Petitioner's inspector. During the course of the work, Respondent told Mr. Seffer that the existing tank was damaged and needed to be replaced, at an additional cost of $5,000, so the remaining balance rose to $16,100. Mr. Seffer agreed to this change. By email dated April 30, 2008, to Mr. Seffer, Ms. Futch confirmed the additional cost of $5,000 for the second septic tank and expressed "hope [that] Ms. Rooter has met your expectations." The email acknowledges, however, that "we must complete the electrical portion of the job." On May 2, 2008, Mr. Seffer sent Ms. Rooter two checks totaling $15,000, leaving a balance of $1,100. On the same date, Mr. Seffer sent Ms. Futch an email that, pursuant to their agreement, he would retain this amount for the "electric and final raking work." By email dated May 27, 2008, to Ms. Futch, Mr. Seffer noted that the manhole that Ms. Rooter had installed in the middle of the lawn was not level and was sunken, presenting a tripping hazard; the final grading was incomplete, leaving low spots and holes; a large rock remained near the palm tree and needed to be removed. Mr. Seffer sent Ms. Futch a reminder email on June 4, 2008, that resent the May 27 email. Mr. Seffer sent another email to Ms. Futch on June 21, 2008. In it, he notes that a Ms. Rooter employee worked on digging an electrical trench on June 13, but left mid-day, and no work had been performed since that day. In the meantime, recent rains had revealed a lack of compaction in the backfilling done by Ms. Rooter, as the fill had settled and undermined a sidewalk. After failing to obtain a response, on July 26, 2008, Mr. Seffer sent a final email to Ms. Futch warning her that he would file complaints with governmental agencies and advising that the unconnected pump was not pumping sewage throughout the entire system. The record does not contain the contracts for the septic tank contracting services involved in the second and third jobs alleged in the Administrative Complaint. Also, Petitioner did not present the testimony of the property owners involved in these jobs. The record for these jobs is limited to the permitting documentation. On September 26, 2008, as agent of Ms. Rooter and on behalf of the property owner, Shoreview Properties, Respondent submitted an application for a construction permit for an onsite sewage disposal system for 9999 Northeast 2nd Avenue, Miami Shores. This application describes the property as commercial with a 47,771 square-foot building. On October 1, 2008, Petitioner's inspector inspected the property. The inspector found an opened drainfield area with contaminated material and other conditions capable of hosting various disease vectors. He also found a backhoe and worker, who claimed that someone else had excavated the drainfield. The inspector immediately posted an ONASN, pursuant to the authority of chapter 386, Florida Statutes, that required the immediate abatement of the listed insanitary conditions. The inspector also determined that the existing onsite sewage disposal system exceeded Petitioner's jurisdictional threshold of 5,000 gallons per day. On September 10, 2008, as agent of Ms. Rooter and on behalf of the property owner, Lisa Mullin, Respondent submitted to Petitioner an application for a construction permit for an onsite sewage disposal system for 101 Northeast 195th Street, Miami. This application describes the property as 0.19 acres, on which is situated a single family residence comprising 1,663 square feet and three bedrooms. On September 22, 2008, an agent of the property owner called Petitioner and complained that Ms. Rooter had commenced the work without having first obtained a permit. Petitioner's inspector visited the site on the same day and found "very recent" earthwork. The owner informed the inspector that the contractor had installed three drainlines, cut an old water line, and installed a new water line over the drainfield. However, the record fails to establish the amount of time that elapsed between the work claimed to have been performed by Ms. Rooter and the report by the property owner. Respondent has paid numerous fines imposed by Petitioner for improper septic tank contracting. In 1999, Respondent paid a fine in an unspecified amount for performing an unpermitted drainfield repair and making the repair without the required filter sand. On January 27, 2000, Respondent paid a fine of $250 for performing unpermitted system repairs. On February 4, 2000, Respondent was assessed a fine of $1,000 for performing unpermitted and uninspected system repairs and failing to honor a warranty. On January 8, 2004, Respondent received a cease and desist order for qualifying more than one septic tank contracting business. In 2007, Respondent paid separate fines of $1,500 and $1,000 for illegal septic tank contracting work in Dade and Monroe counties, respectively.
Recommendation It is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of the three violations identified in paragraphs 26, 27, and 29 above, dismissing the remaining charges against him, dismissing any charges against Ms. Rooter, and revoking Respondent's septic tank contracting registration. DONE AND ENTERED this 31st day of January, 2011, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 31st day of January, 2011. COPIES FURNISHED: Arlender Miller 640 Northwest 129th Street Miami, Florida 33168 Jenea Reed, Esquire Miami Dade County Health Department 8323 Northwest 12th Street, Suite 214 Miami, Florida 33126 R.S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 E. Renee Alsobrook, Acting General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Shairi Turner, Deputy Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701 Kim Berfield, Deputy Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701
The Issue Is Petitioner entitled to attorney's fees and costs under Section 57.111, Florida Statutes, the Florida Equal Access To Justice Act?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Stipulated Facts: The action in this case was initiated by the Department, a state agency. The Department was not a nominal party. ASI has incurred attorney's fees and costs in amount of $13,178.00 in defending the administrative proceeding brought against it in Department of Health and Rehabilitative Services v. Alpha Septic Industries, Inc., Case No. 91-0044. There is no dispute as to the reasonableness of the attorney's fees and costs. The attorney's fees and costs are as follows: James F. McCollum 62.4 hrs at $150/hr= $ 9,360 Gary R. Gossett 22.7 hrs at $100/hr= $ 2,270 Para Legal 7.4 hrs at $ 40/hr= $ 296 Costs $ 1,252 Total $13,178 There are no special circumstances which would make an award of attorney's fees and costs unjust. ASI is a corporation organized under the laws of the State of Florida, whose principal office is in Sebring, Florida and at all times material to this proceeding had not more than 25 full-time employees or a net worth of not more than $2 million. ASI is a "small business party" as that term is defined in Section 57.111(3)(d), Florida Statutes. The appellant court in Alpha Septic Industries, Inc., v. Department of Health and Rehabilitative Services, Case No. 91-03249, 2nd District Court of Appeal, reversed the final order entered by the Department in Department of Health and Rehabilitative Services v. Alpha Septic Industries, Inc., Case No. 91-0044, against ASI. That order was not appealed by the Department. ASI is a "prevailing small business party" as that term is defined in Section 57.111(3)(c), Florida Statutes. The action was commenced by the filing of an Administrative Complaint against Mr. Paul Poore d/b/a Alpha Septic Industries, Inc. on April 4, 1990. By an agreement reached during a hearing before a circuit judge, the original Administrative Complaint was amended on November 15, 1990 to delete Mr. Paul Poore from the Administrative Complaint. Facts Not Stipulated: Both the initial Administrative Complaint and the Amended Administrative Complaint allege that ASI violated Section 381.031(1)(g) Florida Statutes, and Rule 10D-6.055(2)(b), Florida Administrative Code, in that a septic tank manufactured by ASI, and serving 3727 Thunderbird Hill Circle, Sebring, Florida, was measured by the Department and found to be below the minimum thickness required by Rule 10D-6.055(2)(b), Florida Administrative Code. The complaint further alleges that the Department's measurements had been taken in three different places and found to be 0.162", 0.147" and 0.157" which were below the 0.187" minimum thickness required by the rule. The initial Administrative Complaint was signed by Kevin Sherin, M. D., Director, HRS-Highlands County Public Health Unit, the governmental entity charged with the responsibility of enforcing the Florida septic tank regulations. Dr. Sherin has the authority to authorize the filing of an Administrative Complaint and the responsibility of assuring that the complaint is valid. When Dr. Sherin authorized and signed the initial Administrative Complaint he was aware of the following facts: A complaint had been filed by Curtis Haberline, President, Thunderbird Homeowner's Association, on September 12, 1989, alleging that a fiberglass septic tank installed at 3727 Thunderbird Hill Circle, Sebring, Florida had "caved inwards". The 1050 gallon fiberglass septic tank had been installed by Dan Young, licensed septic tank contractor. Young recalled that all of the fiberglass septic tanks installed in Thunderbird Hill Village I, where this particular septic tank was installed, had been purchased and picked up from ASI. During the installation of the septic tank, Edward Dixon, Inspector, HRS-Highlands County Public Health Unit was on the site and inspected the septic tank installed by Young. The installation was approved on May 24, 1984. The tank was not measured for wall thickness at the time of the installation. Dixon did not recollect noticing any readily visible thin spots in the tank when he inspected it during installation. In response to the complaint, Edward Dixon visited the site on September 14, 1990 and inspected the septic tank then in place and the area surrounding the septic tank. Dixon drilled and removed a plug approximately one inch in diameter from a randomly selected area (not in the "caved-in part) on top of the septic tank. After Dixon removed the plug, he measured the tank's wall thickness around the drilled plug site with a micrometer. The tank wall thickness around the drill plug site measured between 0.140" and 0.150". The plug was taken to James B. Fisher. Neither Edward Dixon nor James B. Fisher, who was an employee of HRS- Highlands County Public Health Unit and also inspected the septic tank after the complaint was filed, recollect seeing any information on the tank that identified the manufacturer or the date of manufacture. However, there was no reason to suspect that the tank had been replaced since the life expectancy of a fiberglass tank is much longer than six years. Fisher measured the plug at three different locations with a micrometer. Those three measured thicknesses of the plug were 0.147", 0.157" and 0.162". The micrometer used by Fisher had been checked for accuracy, and found to be accurate within 0.0002". Three sixteenths of an inch is equal to 0.1875". The "caved in" portion of the tank appeared to have resulted from being impacted by a heavy weight, i.e., heavy equipment. The tank was not cracked and it did not appear that the "caving-in" had resulted from the tank being below specifications on wall thickness. There was no evidence that heat, light or caustic chemicals had affected the condition of the tank, i.e. wall thickness. ASI was on the State of Florida list of approved septic tank manufacturers. On October 10, 1989, ASI was advised of the complaint and requested to correct the alleged deficiency. ASI declined to take any action.
The Issue The issue in this case is whether the Department of Health properly denied Petitioner’s application for a master septic tank contractors (MSTC) registration.
Findings Of Fact The Department of Health is the agency responsible for the registration of septic tank contractors, the authorization of septic tank companies, and the enforcement of the statutes of rules pertaining to the registration and authorization of septic tank contractors and companies pursuant to Chapters 381 and 489, Part 3, Florida Statutes and Chapter 10D-6, Florida Administrative Code. The registration as a master septic tank contractor was recently enacted by the Legislature. Master septic tank contractor is held to a higher standard of scrutiny by the Department because a MSTC can perform certain functions in the field without Department of Health supervision. Further, a MSTC can advertise his special certification to the public. Gregory Thompson, Petitioner, applied to the Department of Health to be registered as a MSTC. At the time of his application, Petitioner was registered with the Florida Department of State as the president of Rayco Properties, Inc. At the time the cases against the corporation referenced above were brought, the Petitioner was the president of Rayco; however, the requested contractor who was the company’s qualifier was Donald P. Roberts, who was the sole qualifier for the company. See paragraphs 2 and 3 of the Recommended Order in Case Numbers 95-5973 and 96-0573 Final Order issued 2/28/97. At the time of the Petitioner’s application for MSTC, Rayco had been found guilty of several septic tank contracting violations and an enforcement action was taken by the Department against Rayco and Donald R. Roberts. See DOAH Case Numbers 95-5973 and 96-0573. Pursuant to the Final Order, penalties were assessed against Rayco including a fine of four thousand four hundred fifty dollars ($4,450.00) and suspension of the corporation's Certificate of Authorization for one hundred-twenty (120) days. At the time of the application by the Petitioner, neither of these penalties had been resolved. The previous action was against Rayco and its qualifier, Donald R. Robert. As the Administrative Law Judge concluded in paragraph 82 of her order, “Revocation of the company’s authorization would effect the livelihood of numerous company principals and employees not directly involved in any of the proven violations.” The Department denied the Petitioner’s application for MSTC for three (3) reasons. The Petitioner’s corporation had been adjudicated guilty of minor or moderate infractions pertaining to on site sewage treatment and disposal systems (See paragraph 82 of the Recommended Order in Case Numbers 95-5973 and 96-0573), a copy of which is attached as Appendix 1. There was an outstanding fined assessed against Rayco Properties and the one hundred-twenty (120) day suspension of Rayco had not been resolved as required by the Florida Administrative Code. At the time of the formal hearing, the fine had been paid and the corporation had served and completed the one hundred-twenty (120) days' suspension.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Department grant the request for certification by the Petitioner for master septic tank contractor. DONE AND ENTERED this 3rd day of November, 1997, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 1997. COPIES FURNISHED: Gregory B. Thompson Post Office Box 251307 Holly Hill, Florida 32135 Charlene Petersen, Esquire Volusia County Health Department 420 Fentress Boulevard Daytona Beach, Florida 32114 Angela T. Hall, Agency Clerk Department of Health Building 6 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Dr. James Howell, Secretary Department of Health Building 6, Room 306 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
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 Whether Respondent John M. Williams deposited fill in waters of the state without a permit from the Department of Environmental Protection. If so, what is the appropriate corrective action and penalty?
Findings Of Fact Mr. Williams and the Cowford Subdivision Petitioner John M. Williams is a retired mechanic. In 1992, he became acquainted with the Cowford subdivision in Walton County, near Bruce, Florida. The subdivision fronts the Choctawhatchee River. Mr. Williams purchased lot 29 of the subdivision. Three or four years later, he bought lot 30. All told, Mr. Williams paid approximately $47,000 for the lots, an electric power line and an "above-ground" septic tank. The purchase price of the lots was $38,000. Running an electric line and installation of an electric light pole cost about $4,000. Mr. Williams paid about $5,000 for the septic tank and its installation. Mr. Williams' ultimate goal in purchasing the lots and adding the improvements was to build a house on the property for use in his retirement. Attempt to Obtain the Necessary Permits The septic tank was not purchased by Mr. Williams until after he had obtained a permit for its construction. At the county offices where he went to obtain the necessary permit, he was "sent over to the power company." (Tr. 216). At hearing, he described what happened there: I paid my money to get my power and they -- well, they informed me . . . once I got my power on I had 6 months to get my septic tank in the ground or they would turn my lights off. So here I had a $3,500 light pole put up and I couldn't very well see this thing going down. So, I went ahead to the Health Department. (Id.) Mr. Williams' testimony is supported by a Walton County Environmental Health Notice dated March 8, 1999, that states, "The Walton County Building Department will not be issuing approval for power for any residence until final approval of the septic system is obtained from the Walton County Environmental Health Office." P7, the first page after Page 3 of 3, marked in the upper right hand corner as PAGE 10. At the Health Department, on April 12, 1999, Mr. Williams applied for an "Onsite Sewage Treatment and Disposal System" permit on a form bearing the following heading: STATE OF FLORIDA DEPARTMENT OF HEALTH ONSITE SEWAGE DISPOSAL SYSTEM APPLICATION FOR CONSTRUCTION PERMIT Authority; Chapter 381, FS & Chapter 10D-6, FAC P7, page 1 of 3. According to the form, he paid the $200 fee for the permit on April 29, 1999. The payment was made within a month or so after the installation of the power line. An attachment to the "Walton County Environmental Health Onsite Sewage Treatment and Disposal System Application," made out by Mr. Williams on April 12, 1999, contains the following warning: OTHER AGENCY PERMITS: As the owner or agent applying for an OSTDS permit it is my responsibility to determine if the proposed development is in compliance with the zoning requirements of Walton County. I further assume responsibility to obtain any applicable permits from other State and Local Government Agencies. P15, page 2. (emphasis supplied) (See also P7, the second page after Page 3 of 3, marked in the upper right hand corner as PAGE 11). On May 5, 1999, about three weeks after Mr. Williams submitted the construction permit application, the site where the septic tank would be installed was evaluated by an EH Specialist, an inspector. On the same day, an Onsite Sewage Treatment and Disposal System Construction Permit was issued for an "above-ground" 900-gallon septic tank. Installation With county personnel present and under county supervision, the septic tank was installed on a ridge on Mr. Williams property about 17 feet above mean sea level. Fill dirt was brought onto the site and placed on top of the tank to create a septic tank mound. No dredging of the property was done in connection with the installation. Chance Discovery After a complaint was registered with DEP about dredge and fill activity on one of the lots near Mr. Williams, Gary Woodiwiss, then an environmental specialist in the Department assigned to conduct inspections in Walton and Holmes Counties, visited the Cowford subdivision in July 2000. During the visit, Mr. Woodiwiss noticed the septic tank mound on Mr. Williams' property and that the mound, in part, consisted of fill dirt. Being of the opinion that the both the fill dirt and the septic tank system constituted "fill" and that the fill may have been deposited in jurisdictional wetlands, that is, "waters of the state," Mr. Woodiwiss consulted with DEP personnel about the status of the site and DEP jurisdiction. Ultimately, DEP determined that the site of the septic tank mound, within the flood plain of the Choctowhatchee River, was jurisdictional wetlands. The Department took action. DEP Action On November 16, 2000, Mr. Woodiwiss issued a memorandum to the DEP file with regard to "John Williams. Unauthorized Fill in Flood Plain." The memo states: Site is located next to Charles Riley who is the subject of Department action for filling jurisdictional wetlands. Williams was erroneously given a permit by Walton County health Dept. to install a septic system in 1999, which he subsequently installed. I visited the site with the administrator for the septic tanks program in Walton and she indicated that they would pay for the installation of a new system on a new lot for Mr. Williams. I recommend that the removal of the system and relocation of the inhabitants of the lot to an area outside of the immediate flood plain. P6. (emphasis supplied) Five days later, on November 21, 2002, a warning letter was generated by Mr. Woodiwiss under the signature of Bobby A. Cooley, Director of District Management for DEP. The letter advised Mr. Williams as follows: Recent Department survey data established at your property has determined that your entire lot is below the mean annual flood line of the Choctawhatchee River and is subject to dredge and fill jurisdiction of the Department. Any construction on the property including placement of a mobile home, septic tank and drainfield or other structures must first receive a dredge and fill permit from the Department. Preliminary assessment of your proposed development of the property indicates that you may not meet the public interest criteria of Chapters 403 and 373 Florida Statutes for qualifying for a permit. R5. By this letter the Department informed Mr. Williams both that he was in violation of the law by not having secured a permit for the filling of the site and warned that, on the basis of a preliminary assessment, it was not likely that he would be eligible for an after-the-fact permit. The assessment of whether the site was eligible for a permit was re-stated in writing again, but with added certainty in a Compliance Assessment Form (the Form) prepared by DEP personnel. In Section V. of the form, there appears, together with the signature of the "Section Permit Processor and a date of "11/09/2000", the following: Project is not permittable due to type of wetland system being impacted and project must not be "Contrary to the Public Interest". The project could affect the public health, safety and welfare and property of others. The project is of a permanent nature. P13. Although the permit processor entered her assessment on November 9, 2000, and other sections of the form were entered on November 1, 2000, by Mr. Woodiwiss, the Compliance Assessment Form bears a final date of February 1, 2001. The Form shows the "Event Chronology" that led to the issuance of the NOV. The chronology, consistent with the testimony at hearing, reveals the following: 25 Jul.00. Complaint inspection for fill in wetlands on adjacent lot. Found isolated fill areas in a slough and adjacent to an apparent upland area. Vegetation is 100% jurisdictional but soil is composed of alluvial deposits in ridge like configurations, one of which the respondent wished to live on. Solicited the jurisdictional team for a district assist in determining jurisdiction. 21 Aug.00. District assist. Hydrologic indicators and vegetation present in sufficient quantities to establish jurisdiction. John Tobe PhD. Requested that the mean annual flood be established on the site in order to augment his determination. October 11, 2000. District assist by Bureau of Survey and mapping and the establishment of a survey line of the 2.33 year (16.42 feet above MSL) mean annual flood elevation on the adjacent violation site. The whole site is clearly under the MAF, which extends approximately 200 meters up grade towards SR 20. The elevation of the MAF is consistent with hydrological indicators (porella pinnatta) that indicate such a flood elevation, as reported in previous studies. November 7, 2000. Met with Crystal Steele and Mike Curry of Walton County DOH to establish why Mr. Williams has a septic tank permit. They indicated that the permit was issued in error and that they would require the system to be moved. Ms. Steele stated that the County would pay for Mr. Williams to have a new system installed on another site because of the oversight. There are currently two moveable vehicles on the site, one of which is connected to the system, the other has a contained service for sewage. November 21, 2000. WLI [presumably Warning Letter Issued] November 27, 2000. Call to Mr. Williams. He wants to get money back or swap property for higher. I advised him to approach the owner Mr. Martin and make his situation known. January 22, 2000. Mr. Williams has refused to remove the fill and requests an NOV. P13, (emphasis supplied) MAF and Wetland Delineation There was considerable testimony introduced at hearing about establishment of the mean annual flood ("MAF") line for the purpose, among others, of its relationship to the elevation of the septic tank mound. The issue stemmed, no doubt, from Dr. Tobe's request that MAF be established in order to "augment his determination" with regard to DEP jurisdiction based on employment of the methodology in DEP's wetland delineation rule, see paragraph 13, above. Resolution of the issue is not necessary to augment the determination that all of lots 29 and 30 of the Cowford subdivision are located in wetlands that constitute "waters of the state." That the septic tank and the fill dirt were deposited on wetlands under the jurisdiction of DEP was clearly established by Dr. Tobe in his testimony at trial and the evidence in support of it. Petitioner concedes as much in his Proposed Final Order. Environmental Harm and Human Health Exposure Wetlands whose surface area is covered by the septic tank mound have been filled. The filling has caused environmental damage. An assessment of the damage was not offered at hearing but it appears from this record that the damage is minimal. During the time the septic tank has been on Mr. Williams' property, it has never been below the flood waters of the Choctawhatchee River and therefore has not yet caused direct hazard to human health. Corrective Action and Penalty It will be expensive to remove the septic tank; the expense will be more than the cost of installation. Petitioner fears, moreover, that it will render his property worthless. There is no evidence that Petitioner's violation of Department permitting requirements was willful. He has no history of violations previous to this one. Options to continued retention of a septic system through use of a portable wheeled waste remover or use of an upland drain field on another property are either not viable or so problematic as to be impractical. DEP Modification of its Position At the outset of the hearing, DEP announced that it no longer intended to seek civil penalties of $1,500 as it had intended when the NOV was issued. All that is sought by DEP by way of corrective action or penalty is removal of the septic tank and monetary reimbursement for the cost of the investigation of $250 (see Tr. 9, lls. 17-25, and Tr. 10, lls. 1-5.)
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
