The Issue The issue in this case is whether the Department should grant and approve Petitioner’s application as a septic tank contractor.
Findings Of Fact The Department of Health is the agency responsible for the registration of septic tank contractors and the authorization of septic tank companies. The Department of Health enforces the statutes and rules pertaining to the registration and authorization of septic tank contractors and septic tank companies pursuant to Chapters 381 and 489, Part 3, Florida Statutes, and Rule 10D-6, Florida Administrative Code. The Petitioner, Gerald D. Thompson, applied to the Department of Health to be a registered septic tank contractor. The Department received his application on July 3, 1996. The Petitioner’s application indicates that he had been convicted of a crime related to septic tank contracting and had had an enforcement action taken against him. The attachment to the application reflected that both events had occurred to the Petitioner. The Petitioner had been adjudged guilty, in Flagler County Circuit Court, on January 18, 1997, of the attempted felony littering by disposing of domestic sewage on private property in an area not permitted for such use. Petitioner’s previous septic tank contracting registration had been revoked for two (2) years in a settlement agreement between the Petitioner and the Department of Health and Rehabilitative Services. The revocation was effective June 1, 1994. The Settlement Agreement stipulated that the Petitioner could reapply for registration as a septic tank contractor upon the expiration of the two (2) years stipulated in the agreement under the rules in effect at the time of the new application. The Settlement Agreement was signed by Petitioner and by Petitioner’s counsel. On September 6, 1996, the Petitioner issued its denial of the Petitioner’s instant application on the grounds that he failed to meet the qualifications listed in Rule 10D- 6.072(3)(d)(e)(f), Florida Administrative Code. It is uncontroverted that the Petitioner had his prior registration as a septic tank contractor revoked and that he was adjusted guilty of attempted felony littering in a case-related septic tank contracting.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Petitioner’s application for registration as a septic tank contractor be denied because he was convicted of a crime involving contracting and his license had been revoked within five (5) years prior to his application. DONE AND ENTERED this 17th day of November, 1997, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Jerry D. Thompson 500 Walker Street Holly Hill, Florida 32117 Charlene Petersen, Esquire Chief Legal Counsel Department of Health 420 Fentress Boulevard Daytona Beach, Florida 32114 Angela T. Hall, Agency Clerk Department of Health 1317 Winewood Boulevard Building 6 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 17th day of November, 1997. Tallahassee, Florida 32399-0700 Dr. James Howell, Secretary Department of Health 1317 Winewood Boulevard Building 6, Room 306 Tallahassee, Florida 32399-0700 Pete Peterson, Esquire Department of Health 1317 Winewood Boulevard Building 6, Room 102E 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 The issue in this case is whether Respondent, Larry C. Garner, should be fined $500 for misstating the size of a septic tank and drain field.
Findings Of Fact Respondent, Larry C. Garner, is the licensed septic tank contractor who owns and operates A. Carver Septic Tank. (The Citation for Violation erroneously referred to the company as “E. Carver Septic Tank,” but the error was corrected without objection at final hearing. There was no evidence to support Respondent’s suggestion that the Department may have taken disciplinary action against him because it erroneously thought Respondent was another licensee.) On December 6, 2001, an employee of Respondent pumped out a septic tank and measured a drain field located at 847 Matthews Road, Maxville, Florida. The resident there wanted to enlarge her residence and needed Respondent's services in order to obtain Department approval of the existing septic tank system for the enlarged residence. After services were provided, Respondent's office gave the resident a receipt stating that Respondent's company had pumped out a 900 gallon septic tank and that the drain field measured 360 square feet. (Respondent's office actually dealt with the resident's adult daughter.) Respondent's office staff also prepared Form 4015 (a Department form entitled “Onsite Sewage Treatment and Disposal System Existing System and System Repair Evaluation”) and gave it to the resident for use in getting approval of the system for the enlarged residence. The form stated that the septic tank was 900 gallons and that the drain field was 360 square feet. When the resident applied for approval of her septic tank system for her enlarged residence, the Department inspected the system and found that the septic tank actually was 750 gallons and the drain field actually was only approximately 110 square feet. The Department issued the Citation for Violation based on the magnitude of the discrepancy. Respondent denied that he personally had any contemporaneous knowledge of the services provided by his employee or the receipt of Form 4015 prepared by his office, and there was no evidence that he did. Respondent personally investigated after issuance of the Citation for Violation. At final hearing, Respondent questioned whether the Form 4015 actually stated that the septic tank was 900 gallons. From the handwriting on the form itself, it appears possible that the number could read 700, not 900. But based on the written receipt, which either was prepared contemporaneously with the Form 4015 or was the basis for preparation of the Form 4015 by Respondent's office staff, the greater weight of the evidence was that the Form 4015 stated and was intended to state 900 gallons as the size of the septic tank. As further support for this finding, Respondent himself testified to a conversation he had with his employee during which the employee explained that he sized the septic tank at 700 gallons based on its apparent depth and Respondent admonished him that the employee knew better--i.e., knew it was necessary to measure height, width, and depth to accurately measure the size of a septic tank. Respondent also attempted to explain how his employee may have made a forgivable error in measuring the drain field. According to the Form 4015, the employee measured the drain field as a rectangular bed, 12 feet by 30 feet. Actually, the drain field consists of two trenches (one 26 feet long and the other 29 feet long), which the Department's inspector measured as being two feet wide. Respondent testified that the drain field began at a distribution box and was approximately ten feet wide within a few feet of the distribution box. Respondent testified that it would be easy to incorrectly assume that the approximate ten-foot width continued as a bed for the entire length of the drain field, as his employee apparently did. However, the greater weight of the evidence was that the employee's error was not reasonable; to the contrary, to determine the configuration and size of a drain field, it is necessary to probe the ground at more than just one distance close to the distribution box. When Respondent himself went to the site to investigate the allegations against him, he probed both near the distribution box and further away southeast of the distribution box. He testified that he found solid rock ten feet in width near the distribution box; to the southeast, his probing revealed a trench which Respondent measured at between three and a half and four feet in width. Based on those measurements, Respondent assumed two trenches approximately 30 feet long and four feet in width each, for a total of approximately 240 square feet. It is difficult to reconcile Respondent’s testimony as to the width of the southeast trench with the testimony of the Department's inspector. The Department's inspector probed approximately ten feet and 20 feet from the septic tank and found two-foot wide trenches in four different places. The Department's inspector also testified without contradiction in response to Respondent's questions on cross-examination that backhoes used at the time this drain field was installed in 1973 generally had two-foot wide excavation buckets. Based on the greater care taken by the Department's inspector in measuring the drain field, and the kind of backhoe in general use in 1973, it is found that the Department's inspector's measurements were more accurate. Even if Respondent's measurements were accurate, and the Department inspector's were inaccurate, the measurements recorded on the receipt and on Form 4015 still would have been seriously overstated. While not seriously disputing the inaccuracy of the Form 4015 submitted in this case, Respondent stated "anyone can make a mistake" and that the Department should have asked Respondent to re-check the measurements instead of issuing a citation, especially in view of Respondent's disciplinary record in 29 years in the business in Clay County. (Respondent testified that his only "issues in Tallahassee" were one incident--not fully explained--involving a cow on someone's property and another when he had someone take a re- certification examination for him at a time when his mother was ill. The Department did not controvert this testimony. As already mentioned, there was no evidence to support Respondent's initial suggestion that the Department may have taken disciplinary action against him because it erroneously thought he was another licensee.) But the Department's witness testified that issuance of the citation was appropriate and consistent with agency policy because of the magnitude of the discrepancies on the Form 4015. Respondent testified that the employee involved in this case was his stepson, who has worked for Respondent for 14 years, since he was 11 years old, seven to eight years as a full-time employee. Respondent also testified that he recently fired his stepson, but the reasons for firing him were not directly related to his conduct in this case. Respondent also testified that he felt compelled to insist on a hearing although he knew the Form 4015 was inaccurate because he perceived the Department to be acting in this case as if it had "absolute power" over him. He apparently viewed his request for a hearing as a necessary challenge to government's assertion of "absolute power" over him.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final order finding Respondent guilty as charged and imposing a fine in the amount of $500. DONE AND ENTERED this 24th day of May, 2002, in Tallahassee, Leon County, Florida. ______________________________ J. LAWRENCE JOHNSTON 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 24th day of May, 2002. COPIES FURNISHED: Dr. John O. Agwunobi, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 John D. Lacko, Esquire Department of Health 420 Fentress Boulevard Daytona Beach, Florida 32114 Larry C. Garner 13950 Normandy Boulevard Jacksonville, Florida 32221
The Issue The issue is whether Petitioner created a sanitary nuisance in violation of Florida Administrative Code Rule 64E- 6.022(1)(d)(l) and (q) and, if so, the proper penalty.
Findings Of Fact The Department of Health, Duval County Health Department (Department), is the agency charged with enforcing the statutory and regulatory provisions pertaining to septic tank installations and repairs in Florida, pursuant to Section 381.0065, Florida Statutes, and Florida Administrative Code Chapter 64E-6. Mr. Smith is a qualified contractor employed by All Florida Septic Tank Service, Inc. (All Florida). The citation issued on April 15, 2004, identifies Mr. Smith's registration number as SR0011389 and All Florida's registration number as SA0000956. The citation describes the alleged violations as follows: On March 8, 2004, a repair application was submitted to the Duval County Health Department (DCHD) for 8817 & 8821 Bellrose Avenue, Jacksonville, FL 32244. All Florida Septic Tank Service, Inc. was indicated as the agent for the applicant/property owner, Ben Lewis. On April 8, 2004, Robert Hoag, qualifying contractor for Plumbing and Contracting by Hoag, disconnected the stub out line running from the house to the existing septic tank prior to installation of new septic tanks thus creating a sanitary nuisance. The existing septic tanks were abandoned at said property by All Florida Septic Tank Service, Inc.; DCHD was not notified of tank abandonment as required for inspection. Water supply was not turned off during he time of construction. On April 9, 2004, Colleen Bierbach, DCHD inspector, observed and photographed prima facie evidence of untreated human waste discharge onto ground surface at 8817 & 8821 Bellrose Avenue. Mr. Smith accepted the citation on April 15, 2004. On the same date, Mr. Smith wrote a letter to Scott Turner of the Department of Health, in response to the citation. His letter reads as follows: Mr Scott Turner, On April 8, 2004 All Florida Septic Tank Service Inc. started a job at 8817 and 8821 Bellrose Avenue in which new tanks and drainfields were required. In order for the new drainfield to be installed the existing tank had to be abandon [sic] prior to any work being done. The two existing referenced tanks were properly pumped out an abandoned on April 8, 2004. The new septic tanks were scheduled to be installed that same day. Due to mechanical problems with the crane truck, the tanks were unable to be set that day, causing the contracted plumber, Robert Hoag, to be unable to tie in the new sewer line. On the following day April 9, 2004 tanks (1500 gallon septic tank) and (750 gallon dosing tank) were installed with a different truck. At that time the contracted plumber was onsite to immediately tie in the sewer line. In the mean time the Duval County Health Department came to do the required inspection of the new system, at which time Colleen Bierback of the Health Department observed a small amount of sewage on the ground and photographed the site. Mr. Hoag immediately tied the sewer in at the same time, fixing the sanitary nuisance within one hour after inspection. According to Mr. Smith, sanitary problems existed at this work site for months. That is, raw sewage had been coming out of the old septic system for a long time. In Mr. Smith's words, "I was there to fix the sanitary nuisance, not create it." The owner of the property in question engaged Mr. Hoag, of Plumbing and Contracting by Hoag, to accomplish the plumbing portion of the operation. While Mr. Smith's letter stated that the new septic tanks were actually installed on April 9, 2004, Mr. Smith testified at hearing that he performed excavation services, installed a new drainfield and set the new septic tanks on April 8, 2004. The sand and new drainfield had to be put in first and the new tanks installed last. The plumber, Mr. Hoag, would be responsible to make the necessary pipe connection on the new tanks. However, Mr. Hoag did not make the necessary pipe connection and the occupants of the residences used the facilities between April 8, 2004, and April 9, 2004. Mr. Smith did not call anyone to inspect the old septic tank upon abandonment. According to Mr. Smith, it is common practice in the Jacksonville area to not call for an "abandonment" inspection when the contractor has a permit to install a new tank. The Department's inspector, Colleen Bierbach, acknowledged that All Florida called for an installation inspection of newly installed tanks on April 8, 2004. On the morning of April 9, 2004, after the new tanks had been installed, Ms. Bierbach went to 8817 and 8821 Bellrose Avenue. She observed raw sewage on the ground flowing toward the septic tanks. She took photographs of what she observed, but the copies of the photographs received in evidence are too blurry to show the extent of what she saw. Mr. Smith arrived at the work site just after Ms. Bierbach arrived on April 9, 2004. The description of the violation in the citation states that Mr. Hoag, the plumber, "disconnected the stub out line running from the house to the existing septic tank prior to the installation of the new septic tanks thus creating a sanitary nuisance." The evidence is insufficient to prove that Mr. Smith's actions, as opposed to the actions of Mr. Hoag, caused the unsanitary conditions.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Duval County Health Department, dismiss the citation issued to Mr. Smith on April 15, 2004. DONE AND ENTERED this 26th day of April, 2006, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 26th day of April, 2006. COPIES FURNISHED: Catherine R. Berry, Esquire Department of Health 515 West Sixth Street Jacksonville, Florida 32206-4311 James L. Smith All Florida Septic Tank Service, Inc. 8300 W. Beaver Street Jacksonville, Florida 32220 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 Dr. M. Rony Francois, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701
The Issue The issue addressed in this proceeding is whether Respondents should be disciplined for violating provisions of Chapters 381, 386 and 489, Florida Statutes, governing septic tank installation and licensure.
Findings Of Fact Respondent, Susan Burkett, is registered with the Department as a septic tank contractor. She is registered to provide such contracting services under the name U.S.A. Septic Tank Company. Respondent, Ron Burkett, is married to Susan Burkett. She employs her husband in her septic tank business. In the past, Ron Burkett, has done business as Working Man Septic Tank. Neither Ron Burkett nor Working Man Septic Tank have ever been registered septic tank contractors. Mr. Burkett was previously disciplined for the unregistered practice of septic tank contracting. However, there was no non-hearsay evidence presented in this case which demonstrated that Mr. Burkett continues to perform unregistered septic tank work. Likewise there was no substantive evidence which demonstrated that Susan Burkett aided her husband in practicing as an unregistered septic tank contractor. Around March 29, 1995, U.S.A. Septic Tank was hired by Architectural Trends, Inc. to install an on-site 1500 gallon septic tank system for $1500.00. Respondent, Ron Burkett, dug the hole for the septic tank. The septic tank was delivered to the site and was actually placed in the ground by another company. The placement of the tank was difficult because of the layout of the structures on the lot and the soft sandy soil of the lot. Neither Respondent was present when the septic tank was placed in the hole. The company who placed the tank in the ground placed the tank backwards. Additionally, at some point in the process from the tanks supplier to its placement in the hole dug by Mr. Burkett the tank was cracked. For reasons not established by the evidence, the contractor contracted with the company who installed the tank to re-install a new tank and complete additional sewage work necessitated by the tanks elevation. The contractor paid $5081.00 for the second company's work. However, the evidence did not show that either Respondent walked off the job. Likewise, the evidence did not show that either Respondent was negligent in the installation of the tank or caused their employer any monetary harm. This lack of evidence was caused by the fact that the Respondents' employer for the job who had personal knowledge of the facts, could not be found and, therefore, did not testify at the hearing. Given the facts of this case, the Administrative Complaint against Respondents should be dismissed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is, accordingly, RECOMMENDED, that the Department dismiss the Administrative Complaint. DONE and ENTERED this 23rd day of October, 1996, in Tallahassee, Leon County, Florida. DIANNE CLEAVINGER 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 23rd day of October, 1996. COPIES FURNISHED: Ron Ringo, Esquire Department of Health and Rehabilitative Services 160 Governmental Center Pensacola, FL 32501 Susan Burkett U.S.A. Septic Tank Company Working Man Post Office Box 3648 Pensacola, FL 32516 Gregory D. Venz, Agency Clerk Department of Health and Rehabilitative Services Building 7, Suite 204-X 1317 Winewood Boulevard Tallahassee, FL 32399-0700 Richard Doran, Esquire Department of Health and Rehabilitative Services Building 7, Room 204 1317 Winewood Boulevard Tallahassee, FL 32399-0700
The Issue Whether Petitioner should take disciplinary action against Respondents for the reasons alleged in the Administrative Complaint?
Findings Of Fact On behalf of his brother, Mr. Howell Parish, who lives in Orange Park, Florida, Mr. James A. Parish contracted with Respondents to restore efficient of operation the septic tank system at 5469 Soundside Drive in Santa Rosa County, premises owned by Howell Parish. Respondents agreed to make the restoration by providing a fiberglass approved tank with a fiberglass lid, install a new drain field and haul in dirt to build up a low area of the existing drain field. Respondents undertook repair activities but without a permit. Respondents did not obtain an inspection of their work after they had finished. On June 10, 1992, after the repairs were supposed to have been done, James Parish paid Respondent Harmon for the job with a personal check in the amount of $1,498.48. On the same date, Respondent Harmon signed a receipt for payment. The receipt shows as work performed, "Demucking and Installing one 1050 Gal Tank & 200 Sq.' Drain Field." Ms. Jo Ann Parish, spouse of Howell Parish, reimbursed James Parish for the work done on Soundside Drive. Shortly thereafter, the septic tank "caved in and the waste was boiling to the surface." (Tr. 16.) Howell Parish met with Larry W. Thomas, Environmental Health Supervisor for the Santa Rosa County Health Department, to discuss the situation. Following the meeting, Mr. Parish called Respondent Harmon and told that him that the problem needed to be straightened out and that he should contact Mr. Thomas promptly because his license could be in danger. Respondent promised to correct the problem and to reimburse Mr. Parish for the job but he did neither. He did not contact Mr. Thomas either. Mr. Thomas, on behalf of the County, investigated the site of the septic tank repair. He found that Respondents had installed a broken fiber glass tank when fiberglass tanks are not allowed at all in Santa Rosa County because of their structural inadequacy. In addition to the tank being cracked, it had a cracked lid. Another hole in the tank that should have been covered with a lid was covered with a piece of plywood. The plywood was kept in place by dirt fill. The drain field did not meet the minimum standards required by the County. Most significantly, it was installed beneath the water table. There was a laundry discharge pipe which was not connected to the tank as required. The site of the septic tank repair by Respondents was a sanitary nuisance. The broken condition of the tank allowed raw sewage to overflow. The drain field was emptying raw sewage directly into ground water. The laundry discharge was discharging into the ground rather than being hooked up to the septic tank. Mr. Parish was forced to hire another septic tank service to restore the system to good working order. The work, performed by Bettis Septic Tank Service, was billed to Mr. Parish at a cost of $6400.00.
Recommendation It is, accordingly, RECOMMENDED, that Respondents' certificates of registration be revoked and that the Department impose on Respondents a fine of $2000.00. DONE and ENTERED this 28th day of October, 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 32505-0420 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 DAVID M. MALONEY 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 28th day of October, 1994.
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 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.)
Findings Of Fact Franklin T. and Barbara Snow acquired the NE corner of the S-1/2 of the SE-1/4 of Government Lot 3 in Section 14, Township 19 South, Range 16 East near Ozello in Citrus County. This property was acquired by Petitioner at a public sale by the U.S. Government who had acquired the property in a tax delinquency proceeding. Petitioner purchased the property to use as a homesite for a doublewide prefabricated home he desired to place on the property. Before a building permit will be issued by Citrus County, Petitioner is required to have access to water and to sewage disposal facilities. No central sewage treatment facility serves this area and other developed lots in the vicinity use septic tanks. Petitioner's application for a septic tank permit was denied by the Citrus County Health Department because there was an insufficient buffer zone between the proposed drain field and surface water. Section 381.272, Florida Statutes, provides onsite sewage disposal systems shall be placed no closer than 75 feet from surface waters. Because the lot owned .by Petitioner was platted prior to 1972, the minimum setback for this property is 50 feet from surface waters. Petitioner appealed to the Review Group for Individual Sewage Disposal, DHRS, for a waiver from this setback requirement. By letter dated March 9, 1984, Petitioner was advised that his request for variance was denied. Following discussions with Citrus County Health Department officials who issue septic tank permits, on May 11, 1984, Petitioner applied to DER for a dredge and fill permit to place some 750 cubic yards of fill into a wetland area on Petitioner's property to provide a sufficient buffer or setback zone for a proposed septic tank and drain field installation. The subject property is located at the northeast corner of a marsh approximately 1,200 feet from the open waters but within the landward extent of the St. Martins River. The marsh area consists principally of black rush and salt grass and is interlaced with small tidal creeks which flow into the two adjacent canals or into St. Martins River. Petitioner's property contains an upland parcel approximately 50 feet in width between existing canals which resulted from dredging these canals. The "upland" configuration was larger at one time than its present configuration, but was reduced to its present size through enforcement action by environmental agencies. The area which Petitioner seeks to fill had fill removed therefrom in these enforcement proceedings. The waters surrounding and including the project site are classified as Class III waters. Soil borings taken at the site shows the salt marsh underlain by 8 to 12 inches of sand, which overlays an organic mat of decaying anerobic black rush. Beneath this organic layer is limerock. Petitioner's application for a permit to fill this property was denied by Respondent because of the proposed septic tank installation. Respondent suggested chemical sewage disposal systems could be used at this site; however, the only witness qualifying as an expert in waste disposal facilities is familiar with other waste disposal systems and testified none of those systems can be used at this site. Before a building permit will be granted, household water supply is required and treatment of this water after use for bathing, washing, etc., will still be necessary and this treatment cannot be accomplished in a chemical system. Septic tank systems are regulated by DHRS and applications therefor are approved by DHRS specialists at the county health department level. The property here involved is within the 10-year flood plain and in order to obtain septic tank approval the site must be elevated above that plain. Here, that is 4.9 feet above sea level. The site is 3.5 feet above sea level. The bottom of the drain field is required to be 24 inches above the water table. If the fill permit is granted and approximately three feet of fill is placed over the 4,500 square feet, this will raise the property sufficiently so it will not be subject to tidal action and will provide a buffer zone sufficient to allow Citrus County to issue a septic tank permit. One objection raised by DER is that filling the area over existing vegetation will create another organic mat of decaying vegetation which will leach laterally into adjacent surface waters where it will contribute nutrients and exert an oxygen demand on the water column. Citrus County Health Department has authority to require the existing detritius be removed before new fill is applied and to require the perimeter of the fill area to be constructed with clayey soils to inhibit leachate escaping from the site. Removal of salt grass would precede removal of the decaying vegetation under the 8 to 12 inches of sand and leave nothing to add to the nutrient level of adjacent surface waters or impose an oxygen demand on the water column. The black rush and salt grass which presently dominate the proposed fill site perform a significant water quality function in trapping sediments, filtering runoff and assimilating nutrients. The presence of adjacent canals increases the value of this function. The proposed fill site also functions as a productive habitat for numerous aquatic species which comprise a portion of the estuarine food chain and ecosystem. More than a dozen aquatic organisms were turned up by a singe scoop of a dip net in an area nearly in the center of the proposed fill site. Leaving the site in its present condition creates a public benefit to the State. Adding fill to the area as requested will allow the site to comply with the regulations for septic tank installation. The U.S. Army Corps of Engineers will issue a federal dredge and fill permit to Petitioner if this application is granted. Therefore, the granting of this application for a dredge and fill permit will allow Petitioner to use the property he purchased for a home site. Respondent called one witness who qualified as an expert in the field of public health microbiology. This witness testified that studies have shown dead end canals and septic tank leachate to be significant contributors to high fecal coliform densities in adjacent waters. This witness opined that the statutory buffer zone is inadequate to prevent violations of Class III water standards in adjacent surface waters from such sources. Proposed finding No. 16, while not technically incorrect, is misleading. Bradley did represent that a buffer zone whose perimeter is composed of clay will keep leachate from escaping the site; that if a 50-foot setback could be maintained from surface waters, the county would grant the permit; and he believed the fill permit should be granted.
