The Issue The issue in this case is whether the Petitioner, the Department of Health and Rehabilitative Services (HRS), should fine the Respondent, William Loiacano, d/b/a Gulf Coast Food Distributors, Inc., for maintaining a sanitary nuisance.2/
Findings Of Fact In 1990,6/ the Respondent, William Loiacano, d/b/a Gulf Coast Food Distributors, Inc., purchased property at 8402 Lemon Road, Port Richey, Florida, for purposes of relocating his on-going food distributing business. The prior owner operated a carpet business, with approximately five employees, at the location. The Respondent had about 45-50 employees. Shortly after the Respondent started doing business at the new location, he began to have problems with the existing septic tank system. The problem seemed to relate to the increased use of the toilets in the building by the added number of the Respondent's employees. In September, 1990, an HRS environmental health specialist inspected the premises and observed evidence of raw sewage bubbling to the surface from the septic system's drain field and flowing into a stormwater retention pond on the property.7/ The Respondent was directed to abate the nuisance, and a discussion of the Respondent's alternatives ensued. The Respondent rejected the first proposed alternative of connecting to a central public sewer. The nearest connection was over 1000 feet away and would entail significant cost to the Respondent. (The cost would have been even higher if gravity flow was not possible, and it became necessary to pump to the connection point.) The Respondent chose, with HRS' permission, the next alternative of trying to solve the problem by installing a second septic tank system on the property. The second septic tank system for which the Respondent applied, and which he had built, was designed for domestic use by 15 employees. In addition, after installation of the second septic tank system, the Respondent began processing a relish pack and a salad mix on the premises. The processing method for these products required the use of a great deal of water. On or about February 7, 1991, another HRS environmental health specialist inspected the premises and again found evidence of raw sewage bubbling to the surface, this time from the new septic system's drain field, and flowing into the stormwater retention pond. The amount of water flowing into the drainfields, from a combination of the use of the toilets in the building, together with the new processing operations taking place in the building, had overtaxed the double septic tank system, and the system failed. Given the quantities of water needed to process the new products, the Respondent should have anticipated, and probably was aware of, the system failure. The Respondent was directed to fix the problem within a week or stop the processing the new products on the premises. The Respondent tried several water conservation methods in an attempt to address the problem without having to either stop processing the new products or incur the cost of connecting to the central public sewer system. He knew, or should have known, that his efforts were futile, given the quantities of water needed to process the relish pack and salad mix. HRS also referred the matter to the Florida Department of Environmental Regulation. DER inspected on or about February 18, 1991, and told the Respondent that he could not dispose of the industrial waste from the operation of his business in the on-premises septic system without an industrial waste disposal permit. In connection with this, DER apparently advised the Respondent that he would be required to test the water in the stormwater retention pond for certain contaminants. The Respondent was unable to understand what he needed to test for, and how, and sought assistance from DER and HRS. Although there is evidence that HRS tried to help the Respondent by referring him to certain individuals employed by the DER for answers, the Respondent did not follow HRS' guidance. In any case, the efforts would have been futile, as the Respondent did not have enough property to dispose of the industrial wastes from the operation of his business on-site using a septic tank system. On or about June 19, 1991, a neighbor complained to the Respondent about the smell of raw sewage coming from the Respondent's septic system. The Respondent did not receive his neighbor's observations kindly. The neighbor complained to HRS and the Pasco County Sheriff's office. An HRS inspection on June 20, 1991, confirmed the existence of a sanitary nuisance on the premises. Again, raw sewage was bubbling to the surface from the new septic system's drain field and was flowing into the stormwater retention pond. HRS arranged for another meeting with the Respondent on June 27, 1991. At the June 27, 1991, meeting, HRS required that the Respondent stop processing the relish pack and the salad mix until he could hook up to the central public sewer. It was felt that the septic tank systems might be adequate pending connection to the central public sewer if the quantities of water required for processing those products on the premises were eliminated and if other preventive measures were taken. From June 27, 1991, forward to the date of the hearing, the Respondent purchased relish pack and salad mix from other suppliers rather than process them on the premises at 8402 Lemon Road. In addition, the Respondent continued to attempt to conserve water, had the septic tanks pumped out as frequently as required (sometimes practically daily), and had his employees utilize portable toilets in an attempt to avoid additional septic tank failures. After learning that excessive water use at the premises was partially a result of plumbing leaks, the Respondent also had the plumbing fixed. The Respondent also immediately initiated the long process of connecting to the central public sewer. He had a meeting with the assistant county administrator for utilities service for Pasco County on July 3, 1991. They discussed alternatives for connecting the Respondent's business. Initially, the County wanted the Respondent to pay to run a sewer line over 1000 feet to the south of his property to enable the County to efficiently connect other businesses and property owners in that area. But this option would have been costly to the Respondent, and there was no guarantee that gravity flow was possible between the Respondent's property and the connection point. If not, the Respondent also would have to pay the cost of pumping to the connection point. The Respondent hired an engineer to design an alternative that would be less costly. He also sought the cooperation of his neighbors, who would be required to connect to central sewer when the Respondent did. The engineer also worked with those neighbors in designing an alternate connection. On or about September 9, 1991, another meeting was held among the Respondent and his engineer and the county's utilites construction team. As a result of this meeting, the County agreed to modify the connection route in accordance with the Respondent's proposal. The Respondent's engineer continued his work on the design of the connection. HRS inspections on or about September 11 and 25, 1991, revealed that the Respondent's septic system was failing again and that raw sewage again was bubbling to the surface from the new septic system's drain field and flowing into the stormwater retention pond. HRS arranged to meet with the Respondent again on October 4, 1991, along with a Pasco County deputy sheriff and a DER industrial wastewater compliance inspector. At this meeting, the Respondent felt that the deputy sheriff was threatening to arrest him for violation of the law, and he angrily terminated the meeting and asked all of them to leave the premises. In December, 1991, the Respondent arranged a meeting with the County and his neighbors to discuss sharing the cost of the connection route the Respondent was proposing to build. The neighbors, realizing the Respondent's weak bargaining position, refused to share the Respondent's costs. At this point, the County conceded to pay the approximate $9,000 to jack and bore under the road, but the Respondent was required to pay to run a sewer line approximately 300 feet to the south and to construct a manhole on his neighbors' side of the road, as well as on his side of the road. (The second manhole would be used by the neighbors to connect their properties to the line the Respondent was building when the County required them to connect.) The total cost to the Respondent for his part of the construction of the connection to the public sewer will be approximately $24,000. On January 17, 1992, the Respondent paid a $3,428 impact fee for connecting to the central public sewer, based on projected water use. On January 23, 1992, the Respondent applied for a force main interconnect permit. At the time of the final hearing, the jack and bore and the construction of the new sewer line connecting the Respondent's property to the central sewer were about to begin. The evidence indicates that, once HRS made it clear to the Respondent on or about June 27, 1991, that connection to the central public sewer was the Respondent's only remaining option, the Respondent moved with reasonable dispatch. The time it took to arrange to be connected to the public sewer was within normal ranges, and there is no evidence that the Respondent did anything to cause unnecessary delays. (Delays, if any, were caused by the need for the Respondent's engineer to work with and get cooperation from the Respondent's neighbors, who were not as anxious as the Respondent to have the new sewer line built.) There also is no evidence that the Respondent processed relish pack or salad mix on the premises after June 27, 1991. In addition, the Respondent continued to attempt to conserve water, had the septic tanks pumped out frequently (sometimes practically daily), and had his employees utilize portable toilets in an attempt to avoid additional septic tank failures. The evidence also indicates that, after June 27, 1991, all concerned were hopeful that the measures the Respondent was taking would prevent, or at least minimize, septic system failures pending connection to the public sewer. After June 27, 1991, HRS presented direct evidence of septic tank system failures only on two occasions in September, 1991. The evidence is that, after becoming aware of the system failures in September, 1991, HRS sought the imposition of a fine against the Respondent. The evidence suggests two other important motivating reasons for HRS' action: first, not being aware of the actions the Respondent took between June 27 and September, 1991, to connect to the central sewer, HRS mistakenly believed that the Respondent was ignoring its instructions; and, second, HRS mistook the Respondent's angry outburst at the meeting at the Respondent's place of business in September, 1991, when he felt he was being threatened with arrest for violation of the law, as being evidence that the Respondent was not genuine in his apparent concern and efforts to respond to HRS' guidance and instruction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Health and Rehabilitative Services (HRS) enter a final order fining the Respondent, William Loiacano, d/b/a Gulf Coast Food Distributors, Inc., in the amount of $5,000. RECOMMENDED this 29 day of April, 1992, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this day of April, 1992.
The Issue The issue addressed in this proceeding is whether Respondent should be fined for violating provisions of Chapters 381, 386 and 489, Florida Statutes, governing septic tank installation and licensure.
Findings Of Fact On August 3, 1989, and again in March, 1992, Respondent was hired by Janet Thompson to perform septic tank work on her septic tank system located at her home at 3168 Pins Lane, Gulf Breeze, Santa Rosa County, Florida. Her system was backing up into her house. Ms. Thompson contacted Mr. Burkett through his advertisement for Working Man Septic Tank in the Southern Bell Yellow Pages. Mr. Burkett recommended that a new drainline or finger be added to her septic system. Mr. Burkett did put in a new finger. However, the new finger was incorrectly installed, in that the drainline exceeded the maximum allowable width and did not have the minimum depth of aggregate in violation of the Rules of the Department regarding the installation of drainlines for septic tank systems. Mr. Burkett's work seemed to solve Ms. Thompson's backup problem. However, a few months later her septic tank system began backing up again. Ms. Thompson again called Mr. Burkett to come and fix the problem. Mr. Burkett recommended another drainline in an "L" shaped configuration. Mr. Burkett installed the new finger. However, he again installed the line incorrectly and violated the Department's Rules, in that the drainline exceeded the maximum allowable width and did not have the minimum depth of aggregate. Ms. Thompson's septic tank problem was corrected for a few months and then began backing up once more. Ms. Thompson called another contractor who finally solved the problem by properly installing an extensive drainline system by building the low area of the drainfield and utilizing three truckloads of aggregate. In May, 1990, William Davenport hired Respondent to do some preventive installation of a new drainfield to the septic tank system located at his home at 6220 East Bay Boulevard, Gulf Breeze, Santa Rosa County, Florida. Mr. Burkett only performed part of the work for which he was hired. The work Respondent did perform was incorrect and violated the Department's Rules regarding the installation of drainfields and lines for septic tank systems. Specifically, the work performed by Respondent was incorrect in that the drainfield exceeded the maximum allowable width, no barrier of building paper or other suitable material was installed to protect the infiltration bed and the aggregate did not meet the minimum depth required. Rules 10D-6.056(4)(a), (d) and (e), Florida Administrative Code. Finally, throughout the time period of the repair work on the Thompson and Davenport properties Respondent was not registered or licensed by the Department to perform such services and was advertising to provide such services under the name "Working Man Septic Tank Co." in the Southern Bell Yellow Pages. Both the lack of a registration and the advertisement of an unlicensed business violate the Rules of the Department. Rule 10D-6.075(4)(a), Florida Administrative Code.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is, accordingly, RECOMMENDED, that the Department impose on Respondent a fine of $2,000.00. DONE and ORDERED this 9th day of November, 1994, in Tallahassee, Florida. COPIES FURNISHED: Frank C. Bozeman, III Asst. District Legal Counsel D H R S 160 Governmental Center Pensacola, FL 32501 Kenneth P. Walsh Attorney at Law P. O. Box 1208 Shalimar, FL 32505 Robert L. Powell, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, FL 32399-0700 Kim Tucker General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, FL 32399-0700 DIANNE CLEAVINGER 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 9th day of November, 1994.
The Issue The issues to be resolved in this proceeding concern whether the Respondent has committed a violation of the "physical plant standards" contained in Rule 58A-5.023, Florida Administrative Code, contended by AHCA to be a Class II violation.
Findings Of Fact The Petitioner is an agency of the State of Florida charged with licensing and regulating adult living facilities. The Respondent, Blue Haven Retirement, Inc., owns and operates a 16 bed adult living facility, The Blue Haven Retirement Center, in Panama City, Florida. It was licensed by AHCA at all times material to this proceeding. On or about May 6, 2002, the Agency received a complaint regarding events and circumstances existing at the Respondent's facility. On May 7, 2002, the Agency surveyor, Ed Melvin, began investigating the complaint and spent approximately seven hours at the Blue Haven facility conducting an investigation by reviewing records, interviewing residents and others, and observing the operation and grounds of the facility. Mr. Melvin executed a survey report on May 7, 2002, detailing his findings. He cited the respondent for deficiencies including two deficiencies related to a hole in the backyard over the septic tank (where it had been pumped out in the past). These two deficiencies were for alleged failure to comply with "resident care standards" and with "physical plant standards". Although AHCA's pleadings charge that the Respondent had violated both specified regulatory resident care standards and the physical plant standards as observed by Mr. Melvin, on May 6 and May 7, 2002, the Agency withdrew the allegations regarding the resident care standards. Thus, the Agency continues to prosecute this case based upon violation of the physical plant standards only with regard to the circumstances and perceived effects of the hole in the backyard of the Blue Haven facility over its septic tank. The testimony and evidence adduced at hearing clearly focused on facts surrounding the existence of, and the circumstances pertaining to, the hole over the septic tank and its alleged danger or potential danger to residents of the facility. In the course of his investigation on May 7, 2002, Mr. Melvin observed a depression or hole in the ground over the lid to the facility septic tank. He believes the hole to be somewhere between a foot deep to 18 inches deep at its maximum depth. Mr. Fretwell, of the septic tank service company who had pumped the tank out, testified that the hole was already existing when he arrived to pump the septic tank out and he could see the top of the tank in the bottom of the hole about a foot to 14 inches below the ground surface. The hole over the septic tank lid had sloped sides so that the holes depth varied from a few inches to a foot or more at its deepest point. There is no photograph in evidence showing the exact configuration of the hole as it existed on May 7, 2002, when Mr. Melvin made his inspection. Thus the hole was between a foot and a foot and one-half deep at its deepest point, but was certainly more than a depression only two or three inches in depth as the Respondent seemed to claim at one point in the Respondent's case. The hole was between two feet square and three feet by two feet at the top or where the depression or hole began to descend from the grade level or ground surface of the yard surrounding the area in question. The hole was approximately 18 inches square at the bottom. There was a slope from the ground surface to the bottom of the hole. There is no evidence to clearly establish what degree of slope existed, but it was more than a gentle slope. There was no obstruction, shrubbery, brush, or structure blocking access to the hole although there were four to six boards or wooden slats covering the top of the hole, placed about four inches apart. There is no dispute that the septic tank lid was intact and in place and that there was no sewage leaking in the hole itself, even though the top of the concrete septic tank could be seen at the bottom of the hole. The residents of the facility are ambulatory and free to walk about the premises, including the backyard where the hole was located. The residents are a mix of people, some with mental disabilities who had previously been residents of the state hospital or various psychiatric facilities. There is no question that the residents are not of sufficient disability as to require immediate close supervision. There is no requirement that they be assisted in the normal activities of walking in a safe fashion. Although the residents have a variety of either psychological or physical problems or both, all are independent ambulators who are able to walk unassisted. The area of the hole was open, visible and well-enough marked because the boards were so placed over the hole as to draw anyone's attention who was walking in the area to the existence of the hole or at least the boards and to alert people of the hole's existence. There is no evidence that suggests that any person has stepped into this space and suffered any injury, or that there has been any complaint about the hole in the vicinity of the septic tank access point. Mr. Melvin opined that the risk of the hole's existence would be greater in hours of darkness or at night time because of the lack of light. The evidence showed, however, that there was ample light from two large overhead lights in the vicinity of this area in the backyard of the facility. Mr. Max Fretland who works for Hall Septic Tank Company pumped out the septic tank in April of 2002. He testified that he replaced the septic tank lid and covered the access point with some dirt and the boards. He testified that when he left in early April he did not perceive this area as a danger. Cham Hewitt is a case manager with the "Life Management Center." He had clients at Blue Haven and was familiar with the area and a frequent visitor to the facility. He testified that he was familiar with the boards across the hole area and had seen them. He did not perceive the area as a danger. Keith Peacock is a resident of Blue Haven retirement center and has lived there for approximately four years. Mr. Peacock was aware of the space or the hole but did not perceive it as a danger nor had he had any problems slipping or tripping or falling in this vicinity. He was unaware of anyone else having a problem with the area in dispute (i.e. the hole). Immanuel Connor is the husband of Verna Connor and is a co-owner and worker at the Blue Haven retirement center. He corroborated the fact that there were boards covering the septic tank access point or hole. He also established that when Mr. Melvin discovered the hole or deficiency involving the hole that Mr. Melvin insisted that a concrete block structure be built around the access point. Mr. Connor, with the assistance of another worker promptly accomplished this, blocking access to the hole (one wonders why the hole was not simply filled up and the location of the septic tank access point marked so that any future worker who was attempting to pump out the septic tank would readily find the access point). There is no question that, although a person could step into the hole and possibly suffer a foot, or ankle or leg injury, that an intervening event, such as a person failing to see the boards covering the hole, stepping into the area and turning their foot so that it would go between the four inch intervals of the boards would be a required event in order to cause any harm to a resident. There is no substantial evidence to clearly and convincingly suggest that the residents were not properly supervised with regard to use and access to this portion of the premises.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a Final Order be entered by the Agency for Health Care Administration finding that a Class III violation in the above particulars has occurred but, because the matter has been corrected, that no fine be imposed. DONE AND ENTERED this 30th day of May, 2003, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of May, 2003. COPIES FURNISHED: Thomas R. Moore, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Alvin L. Peters, Esquire Peters & Scoon 25 East Eighth Street Panama City, Florida 32401 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308
The Issue Whether Respondent, Virgil Cardin, d/b/a Virgil Cardin Septic Tank Service (Respondent or Cardin), committed the violations alleged in the Administrative Complaint for Imposition of Administrative Fines and Revocation of Septic Tank Contractor License and Business Authorization, dated December 28, 2012, and, if so, what penalty should be imposed.
Findings Of Fact The Parties Petitioner is the state agency charged with the responsibility of administering the Standards for Onsite Sewage Treatment and Disposal Systems (SOSTDS). The installation, repair, and/or alteration of any septic tank system fall within the purview of Petitioner's authority. Public health concerns mandate that all septic tank systems be operated according to governing laws and rules. Respondent is a resident of the State of Florida and is registered by Petitioner to provide septic tank contracting services within the state. Respondent's registration number is SR0890865. Respondent owns and operates Virgil Cardin Septic Tank Service located in Lakeland, Florida, and the company is authorized to provide septic tank contracting services. The company's authorization number is SE093690. Septic tank contracting services are governed by SOSTDS. The Controversy It is undisputed that a permit must be obtained prior to performing repairs to a septic tank system. In Polk County (where all actions complained of occurred), a septic tank service company is required to apply for a permit before work is performed, obtain an inspection by appropriate authorities before beginning work, and complete all work in accordance with designated standards. A septic tank pump-out does not require a permit. Any work that would involve the exposure of the drain fields and/or the refitting of portions of the septic system would require a permit. The controversy in this case stems from Respondent's failure to obtain a permit before beginning repairs to a septic tank system located at 4931 Rolling Meadows Drive, Lakeland, Florida. It is undisputed that Respondent did not, in advance of starting work at the home, obtain a permit. The Arguments The Digans own a home located at 4931 Rolling Meadows Drive, Lakeland, Florida. For several years, the Digans have experienced problems with their septic tank system to the point that waste from the septic system has backed up into their home. Previously, Respondent addressed the Digans' septic tank system problems by pumping the waste from the tank, thereby eliminating pressure on the overwrought system. On or about August 24, 2012, Respondent went to the Digans' home and pumped out the septic tank. A permit for the work done that date was not required. Given the history of the problems with the Digans' system, it became apparent to the owners and Respondent that comprehensive repairs to the system were necessary. As there was no way to predict when another pump-out might be required, it was not surprising that approximately one week later Respondent returned to the Digans' property for additional work. On that date, September 1, 2012, Respondent could not pump out the Digans' tank, because his truck was already full. Instead, Respondent took a backhoe to the Digans' property and began to dig trenches for the drain field. Respondent's employee began to construct a septic drain line header pipe with drain field chamber end plates attached. Respondent exposed the Digans' septic system as if he were going to make repairs to the system. When confronted by two environmental supervisors who observed Respondent's actions, Respondent readily admitted he did not have a permit for the work. At first, Respondent stated that the homeowners could not afford permits. Later, Respondent maintained that the work he performed on September 1, 2012, did not require a permit. Petitioner maintains that Respondent went to the Digans' home on September 1, 2012, to make repairs to the septic tank system without prior inspection or a required permit. The Analysis Prior to September 1, 2012, Respondent knew or should have known that the Digans' septic tank system needed extensive repairs. Respondent had pumped out the tank several times and should have known that the system was not functioning as intended. Prior to September 1, 2012, Respondent knew or should have known that repairs to any septic tank system require an inspection and permit. On September 4, 2012, after being caught the prior Saturday on the Digans' property, Respondent applied for a permit for the repairs to the Digans' septic tank system. On September 5, 2012, a repair permit was issued for the Digans' property. On September 7, 2012, the repairs to the Digans' system were inspected and approved. There was no emergency on September 1, 2012, that necessitated repairs to the Digans' septic tank system on that date. Pumping out the Digans' tank on that date would have addressed any immediate concern. On-site inspections before septic tank systems are repaired are critical to public health because they assure that groundwater contamination is avoided, that the existing tank is sound and will function as intended, and that setbacks to other properties, wells, or systems are adequate. Respondent knew or should have known that performing any work before an inspection negates the safeguards to public health concerns. Respondent knew or should have known that the materials needed to adequately repair the Digans' septic tank system exceeded the chambers he took to the site on September 1, 2012. Digging up the Digans' system on September 1, 2012, created a sanitary nuisance. Respondent's History In the event a violation is found in this case, Respondent's disciplinary history would be relevant in considering what penalty, if any, should be imposed. To that end the following findings are made: Respondent has previously been found in violation of failing to call for a required inspection; and Respondent has previously been found in violation of practicing fraud or deceit, making misleading or untrue misrepresentations, or misconduct that causes no monetary harm to a customer.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent's authorizations to perform septic tank services be suspended for a period not less than 90 days. Additionally, it is RECOMMENDED that Respondent be required to pay an administrative fine in an amount not less than $2,000.00. DONE AND ENTERED this 6th day of May, 2013, in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 2013. COPIES FURNISHED: John H. Armstrong, M.D., F.A.C.S. State Surgeon General Department of Health Bin A00 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 Jennifer A. Tschetter, General Counsel Department of Health Bin A02 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 Althea Gaines, Agency Clerk Department of Health Bin A02 4052 Bald Cypress Way Tallahassee, Florida 32399-1703 Tony C. Dodds, Esquire Law Office of Tony C. Dodds 904 South Missouri Avenue Lakeland, Florida 33803-1034 Roland Reis, Esquire Polk County Health Department 1290 Golfview Avenue, Fourth Floor Bartow, Florida 33830-6740
Findings Of Fact At all times material to this proceeding, Respondent, James A. Tipton ("Tipton"), has been a registered professional engineer in the State of Florida, having been issued license number PE 0018147, which expires on January 31, 1987. Tipton employed the services of Robert Corno as a field man for taking samples to establish soil profiles, site characteristics and existing water tables for septic tank applications prepared and filed by Tipton. Corno had actual authority from Tipton to conduct tests, site examinations and evaluations and to submit his findings to Tipton. Sometime before April 8, 1985, Tipton was retained to perform professional engineering services in connection with the preparation and filing of an application for a septic tank on lot 168, block 3, Charlotte Ranchettes Subdivision in Charlotte County ("lot 168"), owned by Joseph Duseo. Tipton sent Corno to lot 168 on April 13, 1985, to examine and evaluate the site, take soil samples and make other observations that would have to be reported to Tipton in connection with Tipton's work. Corno completed his work and reported to Tipton. Corno did not bring Tipton the actual soil samples. On April 8, 1985, Duseo's general contractor told Corno about a well on lot 168. When Corno visited the site, he observed the well. The well is an artesian well, about 3 feet high and six inches in diameter. The well is an irrigation-type well and is non-potable. The well was within fifty feet of the drain field of the septic system Tipton proposed for lot 168. The well also is approximately 5 to 10 feet from the north property line. Corno knew at the time of his visit to the site that the well was not plugged. However, Corno understood that Duseo was in the process of arranging with the Southwest Florida Water Management District to have the well plugged. Corno did not tell Tipton about the well before Tipton prepared and filed the application for the proposed septic tank. Therefore, Tipton did not know there was a well on lot 168 when he was preparing the application for the septic tank permit. Tipton did not ask Corno any questions calculated to reveal whether there was a well on lot 168. Corno held the belief that non-potable wells, especially those that were to be plugged, did not have to be shown on septic tank permit applications. There was evidence about a survey of lot 168 certified by a land surveyor employed by a firm of professional engineers which did not show any well on lot 168. However, Tipton did not have access to the survey before he prepared the septic tank permit application on lot 168. (The survey bears two dates, April 17 and April 18, and was not signed until April 25, 1985.) On or about April 15, 1985, Tipton signed and certified the septic tank permit application for lot 168. The application was filed at the Charlotte County Public Health Unit (Health Department) on April 16, 1985. The application indicates "none" in the space provided to indicate the "location of wells within 75 feet of property lines." The well on lot 168 is an important consideration which should have been depicted on the application. Septic tank drain fields could pollute a well. Even if Tipton had known that the well was supposed to be plugged, it was not plugged until July 1985. Failure to show the well was a serious omission. Tipton was negligent for relying on Corno without having an understanding whether Corno would report to him the existence of non-potable wells within 50 feet of the drain field of a septic system or within 75 feet of a property line if the well was likely to be plugged. If he had used due care, Tipton would have either made explicit inquiry of Corno sufficient to reveal the existence of the well or ascertained from Corno in advance that he would report to Tipton the existence of any well within 50 feet of the drain field of a proposed septic system or within 75 feet of property lines. Having failed to exercise due care, Tipton did not realize that Corno would not be reporting to him the existence of a non-potable well which was supposed to be plugged in the future. A few days after he filed the application, Tipton learned about the well on lot 168. But at about the same time, Duseo and his contractor began discussing construction alternatives that would change the septic system and require a new septic tank application. Therefore, Tipton did not immediately amend the April 15 application to show the well. In mid-May, Tipton filed a new application for the different septic system. The new application, not in issue in this case, showed the well. The application also contained a soil profile which probably is not accurate. However, Tipton's soil profile simply reflects the information reported to him by Corno. While Tipton's soil profile does not correspond with soil profiles from other test holes dug in the area of the proposed drain field by the Health Department and an expert witness, the information Corno reported to Tipton was well within the realm of possibilities for soil in the area of lot 168. Corno generally seemed to be a qualified and experienced field man who used proper tools to do his job. There was nothing suspicious about Corno's information, and there was no reason for Tipton to suspect that it was false or fraudulent. While it is the better practice for a professional engineer to require his field man to deliver the actual soil sample to support a soil profile report, this is not required of professional engineers if there is no reason to suspect that a field man's soil profile report is false or fraudulent. On the application, Tipton estimated the high water table on lot 168 at 2.2 feet below existing grade. While other expert witnesses estimated a higher high water table, the evidence did not prove that Tipton was negligent in his estimate. Some of the conflicting estimates were Health Department estimates which, the evidence indicates, tend to be high to be on the safe side. Others were estimates on permit applications which may have been influenced by the Health Department's desires and which may not reflect the engineers' actual estimates. Of all the estimates, only Tipton's was supported by testimony how the estimate was derived. (Tipton used what he called Darcy's Law.) Finally, Petitioner's own expert witness testified that Tipton's high water table estimate could not be called negligent.
Recommendation Based upon the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Board of Professional Engineers enter a final order holding Respondent, James A. Tipton, guilty of negligence in the practice of engineering under Count I of the Amended Administrative Complaint (but dismissing Count II of the Amended Administrative Complaint) and imposing an administrative fine in the amount of five hundred dollars ($500.00). RECOMMENDED this 19th day of May, 1986, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of May, 1986. COPIES FURNISHED: Ms. Sarah Logan Executive Director Board of Professional Engineers 130 North Monroe Street Tallahassee, FL 32301 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 Salvatore A. Carpino, Esq. General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 Wings Slocum Benton, Esq. Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 John Charles Heekin, Esq. C-1 Ocean Plaza 21202 Ocean Blvd. Port Charlotte, FL 33952 APPENDIX The following are specific rulings on all the parties' proposed Findings of Fact as required by Section 120.59(2), Florida Statutes (1985). Rulings on Petitioner's Proposed Findings of Fact Petitioner's Proposed Findings of Fact 1 through 3, 9, 10, 13 through 16, 19, 21 and 22 are accepted as substantially factually accurate and are incorporated in the Findings Of Fact in the same or similar format to the extent necessary. Petitioner's Proposed Finding Of Fact 4 would have been included in paragraph 1 above except that the last sentence is unnecessary. Petitioner's Proposed Finding Of Fact 5 would have been included in paragraph 1 above except that the third sentence is unnecessary. Petitioner's Proposed Findings Of Fact 17, 18 and 27 would have been included in paragraph 1 above except that they are unnecessary. Petitioner's Proposed Finding Of Fact 26 would have been included in paragraph 1 above except that whether Alligator Creek is a "significant" drainage feature would depend on the definition of "significant" which was not established by the evidence. In addition, Petitioner's Proposed Finding Of Fact 26 is unnecessary. Petitioner's Proposed Findings Of Fact 6 through 8 are rejected as conclusions of law and because the last sentence of Proposed Finding Of Fact 6 is cumulative. Petitioner's Proposed Finding Of Fact 11 is rejected because the first sentence is contrary to the greater weight of the evidence and Findings Of Fact and the second sentence is, subordinate to Findings Of Fact. Petitioner's Proposed Findings Of Fact 12, 20, 23 and 24 are rejected as subordinate to Findings Of Fact. Petitioner's Proposed Finding Of Fact 25 is rejected because the first sentence is subordinate to Findings Of Fact and the second sentence is contrary to the greater weight of the evidence. Rulings on Respondent's Proposed Findings of Fact. Respondent's Proposed Findings Of Fact 1 through 3, 5 and 12 are accepted as substantially factually accurate and are incorporated in the Findings Of Fact in the same or similar format to the extent necessary. Respondent's Proposed Finding Of Fact 4 would have been included in paragraph 1 above except that the second sentence is unnecessary. Respondent's Proposed Finding Of Fact 8 would have been included in paragraph 1 above except that it is unnecessary. Respondent's Proposed Finding Of Fact 9 would have been included in paragraph 1 above except that it is in part unnecessary. Respondent's Proposed Finding Of Fact 11 would have been included in paragraph 1 above except that it is contrary to the greater weight of the evidence and Findings Of Fact that there is "no way" for an engineer to avoid relying on a field man's error such as Corno's error in omitting to report the existence of the well. Respondent's Proposed Finding Of Fact 14 would have been included in paragraph 1 above except that it is irrelevant. Respondent's Proposed Finding Of Fact 6 is rejected because it is subordinate to Findings Of Fact and is unnecessary. Respondent's Proposed Finding Of Fact 7 is rejected because it is simply a recitation of conflicting evidence, some of which is accepted but some of which is rejected as contrary to the greater weight of the evidence and Findings Of Fact. Specifically, it was found that Corno did not tell Tipton about the well and that Tipton did not have the survey in his possession at the time the application was filed. Respondent's Proposed Finding Of Fact 10 is rejected as contrary to the greater weight of the evidence and Findings Of Fact. Specifically, the evidence supported a finding of negligence on the part of Tipton for failure to utilize due care and to have due regard for acceptable standards of engineering principles whether or not practicing in Charlotte County. In addition, Mr. Murray's expert testimony must be disregarded because it was given upon a hypothetical assumption that an engineer had possession of a sealed survey showing no improvements on the property as the time of the application, a fact not proved by the evidence. Respondent's Proposed Finding Of Fact 13 is rejected as contrary to the greater weight of the evidence and Findings Of Fact. Specifically, personnel in the Health Department, part of the "general public," were misled. (The general public also reasonably could have been led to a fallacious conclusion, but there was no "misconduct" on Tipton's part. See Conclusions of Law.) ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF PROFESSIONAL ENGINEERS DEPARTMENT OF PROFESSIONAL REGULATION, FLORIDA BOARD OF PROFESSIONAL ENGINEERS Petitioner, vs. DOAH CASE NO. 85-2684 DPR CASE NO.0058289 JAMES A. TIPTON, Respondent. /
The Issue Did Petitioner violate Section 386.041 and Section 381.0065, Florida Statutes, as alleged in the Citation for Violation Onsite Sewage Program/Sanitary Nuisance?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times pertinent to this proceeding, the Department, through the Polk County Health Department, was the agency of the State of Florida charged with the responsibility of issuing permits for the construction, installation, modification, abandonment, or repair of onsite sewage treatment and disposal systems. The property in question is a duplex apartment building owned by Respondent and located at 1101-1103 Old South Drive, Lakeland, Florida. The two apartments in the duplex are serviced by a single septic tank and drainfield. In the summer of 1997, Petitioner determined that the drainfield needed repair and engaged the services of an individual who was not licensed to repair drainfields. Additionally, Petitioner did not obtain a permit for the repair to the drainfield. During the fall of 1997, Petitioner continued to experience trouble with the drainfield. Thereafter, on two separate occasions, Petitioner engaged the services of Burns Septic Tank Company (Burns) and Central Fla. Septic Tank Co. (Central) to pump-out the septic tank. Both Burns and Central indicated on their invoices for pumping out the septic tank that the drainfield was in need of repair. On December 9, 1997, after receiving a complaint from one of Petitioner’s tenants, the Department’s Environmental Specialist, Wade Schulz, made an inspection of the septic tank and drainfield at 1101-1103 Old South Drive, Lakeland, Florida. Schulz’s inspection revealed that the septic tank was backing up at the duplex apartments and that the septic tank D-box, old rock, and the drainfield pipe were exposed to the ground. Additionally, it was discovered that septage was flowing directly from the system to a wet drainage ditch. On December 9, 1997, Schulz verbally notified Petitioner that the system was in violation of: (a) Section 386.041, Florida Statutes (Nuisance injurious to health); (b) Section 381.0065, Florida Statutes (Prior approved system shall remain in operating condition); and (c) Section 381.0065, Florida Statutes (No person shall repair without permit). A written copy of the Citation for Violation Onsite Sewage Program/Sanitary Nuisance (Citation) was mailed to Petitioner but was returned as undeliverable. A copy of the Citation was personally served on Petitioner on January 23, 1998. After receiving the verbal citation from Schulz, Petitioner engaged Robby’s Septic Tank Service and had the septic tank pumped out. Other than pumping out the septic tank, Petitioner has made no other effort to correct the problem. After receiving the Citation, Petitioner met with the Department’s representative in an attempt to work out a solution. However, Petitioner contended that there was nothing wrong with the drainfield and refused to pay any fine. On July 9, 1998, the Department visited the site again and found that nothing had been done to correct the problem. Furthermore, the Department found that the system was still being improperly maintained. It was the opinion of both Schulz and Tony Warr, the Department’s Environmental Supervisor, that the only way to correct the problem was to completely repair the drainfield. It was Petitioner’s contention that the drainage ditch was clogged up resulting in a high water table around the drainfield and that if Polk County cleaned out the drainage ditch, allowing the water to flow off, it would resolve the problem of the drainfield. While the drainage ditch may be a problem, there was insufficient evidence to show that unclogging the drainage ditch would resolve the problem of the drainfield. It is clear that Petitioner’s drainfield is not operating properly and is in need of repair.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order finding the Petitioner guilty of the violations as charged and requiring Petitioner to pay a fine in the amount of $1,500.00 as set forth in the Citation for Violation Onsite Sewage Program/Sanitary Nuisance, Part 6. DONE AND ENTERED this 11th day of August, 1998, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 1998. COPIES FURNISHED: Angela T. Hall, Agency Clerk Department of Health Bin AO2 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1703 Dr. James Howell, Secretary Department of Health 1317 Winewood Boulevard Building 6 Room 306 Tallahassee, Florida 32399-0700 Glenn E. Woodard, pro se Post Office Box 2000 Eaton Park, Florida 33801 Roland Reis, Esquire Department of Health 1290 Golfview Avenue, Fourth Floor Bartow, Florida 33830
Findings Of Fact The Respondent, Hance B. Jones, is a registered septic tank contractor. The Petitioner is charged with regulating septic tanks, and may initiate charges against septic tank contractors which fail to comply with the statutes and rules regulating septic tanks. The Department's local inspector, Mr. Land, was asked by a representative of Best Septic Tank Contracting to meet with the Best representative and Ms. Inez Quiett at Ms. Quiett's home and confer about a proposed septic tank repair. On March 5, 1992, Mr. Land visited the site, observed water standing around an area which he was advised was the existing septic tank and drain field, and was asked what would have to be done. Mr. Land advised that they would have to obtain a permit, and that the new drain field would have to be separated by at least 24 inches from the wet season water table, and that this would entail placing the drain field in a mound. Mr. Land left the site expecting to have a representative of Best pick up a permit for the repairs within a few days. When Mr. Land did not see anyone come in about the permit, he drove by Quiett's, and observed disturbed soil in the area of the drain field. He stopped, went to the Quiett's house, and spoke with Ms. Quiett's son. The son advised that they had repaired the drain field. Mr. Land asked who had repaired the field, and the son advised him that Mr. Jones had repaired it. On April 22, 1992, Mr. Land then wrote a letter to the Respondent and advised Jones that he had violated the law by repairing Quiett's septic tank and not obtaining a permit for the repair. Mr. Jones spoke with Land at Land's office, and denied that he had repaired the septic tank. Mr. Jones stated he had provided the materials and equipment used to repair the tank. On April 22, 1992, Ms. Quiett called Mr. Land on the telephone, and told Land that Mr. Jones had helped her with the tank, but denied that Jones had been her contractor. The Respondent denied that he was the contractor of the job; denied he was on the site; denied he supervised the work; and denied he received any compensation from Quiett. He indicated that he knew Ms. Quiett's brothers, who were contractors, and admitted that he had provided the materials used on the job and had loaned them his backhoe. Ms. Quiett was asked about the repairs to the system and invoked her privilege against self-incrimination.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that the Administrative Complaint against the Respondent be DISMISSED. DONE AND ENTERED this 26th day of August, 1992, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of August, 1992. COPIES FURNISHED: David West, Esquire District 3 Legal Office 1000 N.E. 16th Avenue Gainesville, FL 32609 Bobby Kirby, Esquire Route 2, Box 219 Lake Butler, FL 32054 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 John Slye, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner violated Florida Administrative Code Rules 64E-6.022(1)(b)2, 64E-6.022(1)(d), and 64E-6.022(1)(p) by making repairs to an on-site sewage disposal system without a permit, and by missing required inspections of the system, as outlined in the citation issued by the Respondent Agency dated August 29, 2005.
Findings Of Fact The State of Florida, Department of Health and Duval County Health Department (Department) is an Agency of the State of Florida, charged with enforcing the statutory and regulatory provisions regarding septic tank and drain field installations and repairs, in Florida, in accordance with Section 381.0065, Florida Statutes, and Florida Administrative Code Rule Chapter 64E-6. The Petitioner is the qualifying registered septic tank contractor for All Florida Septic Tank Service, Inc. (All Florida). He holds registration number SR00011389. He has 15 years of experience in the field of septic tank system construction and repair. All repairs of on-site sewage treatment and disposal systems (septic systems), are required to be performed under the supervision and control of a registered septic tank contractor. Mr. David Adeeb is president of United Properties of North Florida, Inc. He owned property (a residence) at 375 North Cahoon Road, in Duval County Florida. He was informed by his tenants at that residence that the septic tank and drain field were malfunctioning and needed to be repaired or replaced, sometime in April 2004. He therefore contacted All Florida, asking them to inspect the septic system at that residence and advise what repairs might be needed. He was advised by some representative of All Florida that the drain field needed to be replaced and was quoted a price of $2,000.00. All Florida requested that payment be made before the work was performed. Since Mr. Adeeb was out-of-town at the time he asked his tenant to temporarily pay All Florida for the cost of the repairs and/or installation, which they agreed to do. All Florida then issued a contract/proposal to United Properties on April 12, 2004. It was signed by a representative of All Florida, Michael Carver. Mr. Carver was an employee of All Florida. The contract/proposal indicated that a 360 square foot drain field would be installed at 375 Cahoon Road, for a price of $2,000.00, to be paid in cash. The contract/proposal was on All Florida letterhead and included a warranty. Mr. Adeeb was told by his tenant that the Petitioner, who is personally known to that tenant, was on the property while the work was being performed. No one applied for a permit to make any repairs to the septic system and the work was completed without a permit being obtained. Some five months later the system began leaking sewage from the new drain field. It had malfunctioned. Mr. Adeeb therefore again called All Florida to demand that they repair any malfunctions pursuant to the warranty. All Florida informed Mr. Adeeb that a new drain field with a mounded system and pump was needed. When Mr. Adeeb told a representative of All Florida that they had just replaced the drain field in April of that year, he was told that another $2,000.00 would be required to correct the drain field problem. Mr. Adeeb had just recently entered into a contract to sell the property at 375 Cahoon Road so, time being of the essence in closing the sale of the property, he felt he had no choice but to ask All Florida to go ahead with the repair work on the system which All Florida had been asked by him to repair five months previously in April of 2004. After the new system was installed Mr. Adeeb found that a permit had never been obtained for the first drain field work which he had requested from All Florida and that All Florida had done the work incorrectly. Mr. Adeeb objected to paying another $2,000.00 for the second repair job, performed in approximately September of 2004 and after much discussion with All Florida's representatives agreed to pay $1,000.00 dollars for the second stint of repair work. He made the payment and he received a warranty from All Florida for one year, good through September 22, 2005. The warranty was signed by Mr. Wayne Joyner, operations manager for All Florida. Mr. Joyner is also the qualifying registered septic tank contractor for AA Septic Tank Service, Inc., apparently a second corporation domiciled at the same facility and address as All Florida Septic Service, Inc. In May of 2005 Mr. Adeeb was again contacted by the now former tenant who had purchased the property from Mr. Adeeb. He was thus informed that the system had failed again and sewage was leaking onto the surface of the property from the drain field. Mr. Adeeb again contacted All Florida on May 23, 2005. A representative of All Florida informed him that he should fax a copy of the paid receipt and the warranty to them and that they would take care of the problem. On June 20, 2005, the home owner again contacted Mr. Adeeb and told him that no one from All Florida had repaired the drain field as yet. A faxed copy of the paid receipt and warranty was requested once again by All Florida. After numerous phone calls with representatives of All Florida, Mr. Adeeb was told that the problem was not due to All Florida's repair work and that Mr. Adeeb would need to get someone else to repair the system. The Petitioner, James L. Smith, the registered qualifying septic tank contractor for All Florida, testified that Michael Carver had performed the initial repair job in April of 2004 for Mr. Adeeb without the knowledge of the Petitioner or All Florida. He claims that Michael Carver never worked for All Florida. He introduced into evidence a letter purported to be from Michael Carver which was dated September 30, 2005, but signed on October 5, 2005. That letter states that Mr. Carver performed the first drain field repair job without the knowledge of All Florida and that he had created the receipt form which was apparently given to either the tenants at the residence in question, or to Mr. Adeeb, on All Florida letterhead without the knowledge of any officer, employee, or representative of All Florida. That letter, however, was not authenticated because Mr. Carver was not present at the hearing and could not be examined concerning it, or the details of Mr. Carver's involvement with the initial repair project. Moreover, the Petitioner was unable to explain how Mr. Carver would have known about the job at all if he had never worked for All Florida. This is because Mr. Adeeb established that in obtaining all of the repair work during 2004-2005 he had only contacted representatives of All Florida. He had never had contact with Mr. Carver. The Petitioner denied ever telling counsel for the Department in a telephone conversation that Michael Carver had worked for him during the week (i.e. All Florida) but that he let Mr. Carver do "side jobs" on his own on weekends. He claimed that Mr. Carver did the job in question in April of 2004 because the tenants knew him personally and arranged for him to do the work. The testimony of Mr. Adeeb and the Department's evidence in the form of its composite exhibit, is accepted as more credible than the self-serving testimony of the Petitioner, and it is found that All Florida and the Petitioner were responsible for the repair jobs at issue in this case because Mr. Adeeb contracted with All Florida for the work in question. Even if the initial job was performed by Mr. Carver, it is determined that he did so as employee or agent of All Florida and the Petitioner. Under the authority cited herein the Petitioner was responsible, as the qualifying, registered septic system contractor for All Florida, with performance and supervision of the work in question.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Respondent Department finding that the violations charged have been established and that a fine of $2,500.00 dollars be imposed for the violations. DONE AND ENTERED this 30th day of March, 2006, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with Clerk of the Division of Administrative Hearings this 30th day of March, 2006. COPIES FURNISHED: James L. Smith 8300 West Beaver Street Jacksonville, Florida 32220 Catherine R. Berry, Esquire Department of Health 515 West Sixth Street Jacksonville, Florida 32206-4311 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Timothy M. Cerio, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
Findings Of Fact Petitioner and her husband jointly own a parcel of property in Ezell Beach, Taylor County, Florida, which lies contiguous to the Gulf of Mexico. On February 1, 1985, Petitioner made application to DER for a dredge and fill permit and water quality certification to construct a pile supported house with a mounded septic tank and drain field on her property. The 768 sq. ft. house was to be 32 ft. x 24 ft. and the mounded septic tank and drainfield would have covered a 2,250 sq. ft. area with approximately 300 cu. yds. of fill. For all practical purposes, Petitioner's property is covered entirely by salt marsh areas dominated by smooth cordgrass (Spartina alterniflora), black needlerush (Juncus roemerianus), salt grass (Distichlis spicata), sea daisy (Borrichia frutescens), and marsh elders (Iva frutescens). On November 25, 1985, DER issued its Intent to Deny the permit for both the house and the mounded septic tank system. After that date the house was constructed; the septic tank system was not. DER stipulated at hearing, based upon the particular facts of this case, that it no longer objected to the construction of the house. The proposed fill would permanently eliminate approximately 2,250 sq. ft. of tidal marsh within the landward extent of the Gulf of Mexico. This kind of salt marsh provides detritus for support of the aquatic based food chain and provides essential feeding and nursery grounds for fish and acuatic organisms. It is also important in maintaining water quality through the filtration uptake and transformation of pollutants from upland runoff, as a result of the assimilative capacity of the detrital microbial population and benthic micro-organisms, as well as the adsorptive and absorptive capacity of the soils. Elimination of the tidal marsh and its associated vegetation by filling would reduce the capability of the system to perform its vital functions and therefore the filling associated with the project could be expected to have a long-term detrimental impact on water quality and biological resources. The proposed filling would further result in water quality degradation by replacing the periodically inundated areas, which help maintain water quality in waters of the state, with uplands containing a septic tank with the potential for adding pollutants to waters of the state. Based on evidence provided by Petitioner, the proposed project does not provide reasonable assurances that turbidity, nutrient, dissolved oxygen, biological integrity, bacteriologioal quality and biochemical oxygen demand water quality standards will not be violated. To the contrary, the evidence presented by Respondent suggests that the immediate and long-term impact of the filling would result in violation of State Water Quality Standards. The placement of the fill and septic tank would result in turbidity and an overabundance of bacteria and nutrients. This overabundance would lead to depletion of the oxygen dissolved in the water and an increase in BOD, along with the production of algae or some other less desirable plant life than that ordinarily found in a fully functioning salt marsh. The filling would also adversely affect invertebrate and marine animals which negatively impacts the biological integrity of the marsh. Petitioner did not provide reasonable assurances that the project is not contrary to the public interest in accordance with Section 403.918(2), Florida Statutes. To the contrary, the evidence presented by Respondent suggests that the project will adversely affect certain of those criteria. Public health, safety and welfare would be negatively affected because septic tanks in wetlands become inundated and release improperly treated septage into the environment. Fish and wildlife are negatively affected by eliminating the habitant of juvenile fish, invertebrates and other creatures which are food chain constituents. Marine productivity will decrease to some degree since the filling will eliminate a productive area. The proposed project poses cumulative impact concerns. If others similarly situated to Petitioner also placed mounded septic tank systems in close proximity to the Gulf of Mexico, the total negative environmental impact would be very extensive. The only evidence presented by Ms. Gibson regarding her entitlement to the fill placement necessary for septic tank installation was her testimony that other similar houses in similar areas have septic tanks. She specifically discussed a house built by a Mr. Rogers in Dekle Beach, Florida, which she stated had a similar septic tank system. However, no evidence was presented to show that in fact the Rogers project was similar to this project. In fact, DER presented evidence that Rogers may have installed a septic tank and fill, but in fact Rogers had no permit to do so.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Regulation enter a Final Order granting Sallie P. Gibson a permit for construction of a house and denying the dredge and fill permit for installation of a mounded tank and drainfield. DONE AND ENTERED this 27th day of May, 1987, in Tallahassee, Florida. DIANE K. KIESLING 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 27th day of May, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-0818 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. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Sallie P. Gibsons Each of the following proposed findings of fact are 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(2); 2(4); 3(4); 4(5); 5(12); and 6(13). Proposed finding of fact 7 is rejected as irrelevant and immaterial. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, State of Florida, Department of Environmental Regulation Proposed findings of fact 1-13 are adopted in substance as modified in the Recommended Order in Findings of Fact 1-13. COPIES FURNISHED: Ms. Sallie P. Gibson 1003 North Washington Street Perry, Florida 32347 William Congdon, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301-82419 Dale Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
