The Issue Whether Respondent committed the violations as set forth in the Citation for Violation, Onsite Sewage Program/Sanitary Nuisance dated April 28, 2000.
Findings Of Fact Petitioner is authorized and given the jurisdiction to regulate the construction, installation, modification, abandonment, or repair of onsite sewage treatment and disposal systems, including drainfields, by septic tank contractors. At all times material hereto, Respondent was a registered septic tank contractor and, as such, he was authorized to provide septic tank contracting services, including the installation and repair of drainfields. On or about November 2, 1995, Petitioner issued a permit (Permit No. RP648-95) to Wilmar Rodriguez for the repair of a septic tank system at 417-421 Perry Avenue, Greenacres, Florida. The property was a triplex, which was purchased by Mr. Rodriquez in 1981. Mr. Rodriguez has no knowledge as to whether any drainfields were installed or replaced on the property, prior to 1981. The Permit included the installation of a new multi- chambered septic tank, a dosing tank, a lift station, and a new drainfield. The Permit was also for a filled system and called for the drainfield to be 700 square feet. Respondent was indicated as the "agent" on the Permit. Respondent and/or his employees performed the work under the Permit. Respondent was the septic tank contractor for the repair of the septic tank system under the Permit. On November 9, 1995, the construction of the septic tank system was approved by one of Petitioner's inspectors, who was an Environmental Specialist I. Petitioner's inspectors are not present during the entire construction or repair of a septic tank system or drainfield. Usually, inspections are made after the completion of the construction or repair of the septic tank system. Additionally, the inspection of a drainfield is usually performed after the rock has been placed on top of the drainfield. On February 2, 1996, the same inspector performed the inspection after the completion of the construction of the septic tank system, including after the placing of the rock on top of the drainfield. Even though the Permit reflects a filled system, the filled/mound system section on the inspection sheet was crossed out. The inspector considered the system to be a standard system, not a filled or mound system, and, therefore, inspected it as a standard system. In inspecting a drainfield, the inspection by an inspector includes checking to ensure that a drainfield has 42 inches of clean soil below the drainfield. An inspector uses an instrument that bores down through the rock and brings up a sample of the soil, which is referred to as augering. Augering is randomly performed at two locations. For the instant case, the inspector performed the augering in two random locations of the drainfield, which were in the area of the middle top and the middle bottom. The samples failed to reveal anything suspect; they were clean. On February 2, 1996, the inspector issued a final approval for the septic tank system. Final approval included the disposal of "spoil" and the covering of the septic tank system with "acceptable soil". The inspector mistakenly inspected the system as a standard system. He should have inspected the system as a filled system.1 After the repair and installation of the septic tank system by Respondent, Mr. Rodriguez continued to have problems with the septic tank system. He contacted Respondent three or four times regarding problems with the system, but the problems persisted. Each time, Respondent was paid by Mr. Rodriguez. Sewage water was flowing into the street where the property was located and backing-up into the inside of the triplex. Having gotten no relief from Respondent, Mr. Rodriguez decided to contact someone else to correct the problem. Mr. Rodriguez contacted Richard Gillikin, who was a registered septic tank contractor. On October 14, 1999, a construction permit was issued to Mr. Rodriguez for the repair of the septic tank system. Mr. Gillikin was indicated as the agent. Mr. Gillikin visited the property site of the triplex and reviewed the problem. He determined that the drainfield was not properly functioning, but he did not know the cause of the malfunctioning. With the assistance of Petitioner's inspectors, Mr. Gillikin and Mr. Rodriguez attempted to determine the best method to deal with the problem. After eliminating options, Mr. Rodriguez decided to replace the drainfield. To replace the drainfield, Mr. Gillikin began excavating. He began removing the soil cover and the rock layer of the drainfield. Mr. Gillikin also wanted to know how deep he had to dig to find good soil. After digging for that purpose and for 10 to 12 inches, he discovered a drainfield below Respondent's drainfield. The drainfield that Mr. Gillikin discovered was a rock bed 12 inches thick in which pipes were located and, as indicated, 10 to 12 inches below Respondent's drainfield. Mr. Gillikin also dug a hole two to three feet deep, pumped the water out of the hole, and saw the old drainfield. Mr. Gillikin determined that the old drainfield extended the full length of Respondent's drainfield. As a result of Mr. Gillikin's determining that the old drainfield was below Respondent's drainfield, both drainfields had to be removed and the expense of a new drainfield increased. Leon Barnes, an Environmental Specialist II for Petitioner, who was also certified in the septic tank program, viewed the drainfield site. He determined that the old drainfield was below Respondent's drainfield and that, therefore, Respondent had not removed the old drainfield. On or about November 6, 1999, Mr. Barnes' supervisor, Jim Carter, and co-worker, Russell Weaver, who is an Engineer, also visited the drainfield site. Mr. Weaver determined that the old drainfield covered a little more than 50 percent of the area under Respondent's drainfield. On November 8, 1999, a construction inspection and a final inspection of the system installed by Mr. Gillikin were performed. The system was approved. Respondent admits that a new drainfield is prohibited from being installed over an old drainfield. However, Respondent denies that he installed a new drainfield over the old drainfield on Mr. Rodriguez's property. In 1995, Respondent failed to completely remove the old drainfield before he installed the new drainfield. The soil and rocks from the old drainfield, which was not functioning, were contaminated spoil material. Because the old drainfield was not completely removed, the contaminated spoil material remained in the drainfield and was used as part of the material in the installation of the new drainfield. Leaving the contaminated spoil material in the new drainfield, prevented the sewage water from being able to percolate through the ground, which is a method of cleansing the sewage water. Without being able to percolate through the ground, the sewage water remained on the surface of the drainfield, creating a serious sanitary nuisance and health hazard. The sewage water spilled onto the street and backed-up into the triplex. Respondent was issued a Citation for Violation, Onsite Sewage Program/Sanitary Nuisance by Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Palm Beach County Health Department, enter a final order: Affirming the Citation for Violation, Onsite Sewage Program/Sanitary Nuisance and finding that Noel Sanfiel violated Section 381.0065, Florida Statutes (1995), and Rule 10D- 6.0571(4), now Rule 64E-6.015(6), and Rule 10D-6.0751(1)(l)1, now 64E-6.022(1)(l)1, Florida Administrative Code. Imposing a fine of $500. DONE AND ENTERED this 13th day of February, 2001, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 2001.
The Issue The issues determined in this proceeding are whether Respondent engaged in construction contracting without a license as alleged in the Amended Administrative Complaint; and, if so, the appropriate penalty.
Findings Of Fact Parties Petitioner is the state agency responsible for regulating the practice of construction contracting pursuant to section 20.165 and chapters 455 and 489, Florida Statutes. Petitioner has jurisdiction over the unlicensed practice of construction contracting pursuant to sections 455.227, 455.228, and 489.13. At all times material to this matter, Respondent was the owner of Advanced Connections, LLC. Neither he nor his company is licensed, registered, or certified to perform construction contracting services in Florida. Respondent holds only certification to perform backflow preventer testing. At the heart of this case is whether Respondent may perform backflow preventer repair without a license, certification, or registration. Facts Related to Work Performed It is undisputed that Respondent performed repair of backflow preventers for customers in Tallahassee, Florida. On July 25, 2014, Respondent performed a backflow prevention assembly test on two existing backflow preventers at Old Enrichment Center located at 2344 Lake Bradford Road, Tallahassee, Florida 32301. Respondent provided an invoice to Old Enrichment Center following the backflow test, which described the work performed as follows: “I was able to repair both units and they are Functioning [sic] properly. I had to replace one additional part on, AS #10896, the #2 check cage was cracked. Thank you For [sic] your business. Don’t forget to cover the backflows.” The invoice reflected that Respondent was compensated $343.00 for the worked performed and materials. On August 20, 2014, Respondent performed a backflow test on an existing backflow preventer for Li-Ping Zhang at a property located at 2765 West Hannon Hill Drive, Tallahassee, Florida 32309. Respondent provided an invoice to the customer describing the outcome of the test, and he provided an estimate for repair as follows: Invoice: Thank For this opportunity to serve you. The unit is failing. The #1 check valve is leaking across it. That means it is not holding pressure. The Manufacture of flowmatic no longer makes parts for your unit. But my supplier does have a repair kit available. Due to the Fact are no longer made for your device it may be better to have the unit replaced with a Wilkins 975-XL. Please See Quote * * * Quote for repair: Part: Complete Rubber Kit-$30.00 Labor: This unit may not be repairable due to the fact that there is a limited supply of parts. If there is damage to the #1 Check. I will not be able to repair the unit. If that happens I can return the parts but a labor charge would still remain. Please call with any questions. Thank you. (Quoted text from invoice without correction of grammar.) Respondent ultimately performed the repair on August 25, 2014. The invoice issued to Li-Ping Zhang reflected service provided as “[t]he repair was a success. The unit is Passing [sic]. Paid Cash $115.00 8.25.14 — signed Ian.” Both invoices include the Respondent’s company name, Advanced Connections, LLC. There was no evidence presented of financial or property harm caused by Respondent’s actions. On or about February 2, 2015, Petitioner received a complaint from City of Tallahassee filed against Respondent for his repair of backflow preventers in Tallahassee, Florida. Petitioner commenced an investigation into Respondent’s actions through its unlicensed activity investigation unit. At the conclusion of the investigation, Petitioner filed an Administrative Complaint alleging Respondent engaged in construction contracting without a license. Respondent disagrees with Petitioner and argues that he is eligible for an exemption under section 489.103(9), commonly known as the “handyman” exemption. Life-Safety Matter Respondent’s eligibility for the exemption hinges upon whether repair of a backflow preventer is considered a life- safety matter. The Florida Building Code provides minimum standards for building construction to “safeguard the public health, safety and general welfare.” See § 101.3, Florida Building Code, Building. The Florida Building Code, Plumbing, applies to “the installation, alteration, repair and replacement of plumbing systems, including fixtures, fittings and appurtenances where connected to a water or sewage system . . . .” See § 101.4.3, Florida Building Code, Building. The plumbing chapter of the Florida Building Code defines a backflow preventer as a device or means to prevent backflow of water from flowing from one system into the potable water system.2/ A potable water supply system shall be maintained in such a manner so as to prevent contamination from non-potable liquids, solids, or gases being introduced into the potable water supply through cross-connections or any other piping connections to the system. § 608.1 Building Code, Plumbing. To further explain the purpose of backflow preventers, Petitioner offered Frank Hagen as a plumbing expert. Mr. Hagen, who has 42 years of plumbing experience, has been licensed in Florida since 1981 and is also licensed in Georgia. He holds a certification in backflow preventer testing (issued by the University of Florida TREEO Center) and backflow preventer repair. Mr. Hagen has regularly conducted on-the-job plumbing training for 36 years. Mr. Hagen was accepted as a plumbing expert. Mr. Hagen testified that a backflow preventer is a life-safety device. He explained that this reference is accepted throughout the plumbing industry because the backflow preventer protects water systems by preventing chemicals and poisons from entering the public water system. Mr. Hagen provided examples of potential outcomes if a backflow preventer fails (e.g., three children died as a result of drinking water from a water hose where poison in the sprinkler system contaminated the water). Mr. Hagen also testified that only a licensed plumber is authorized to perform backflow repairs. Mr. Hagen’s testimony is credible. John Sowerby, P.E., a licensed professional engineer for 35 years, who previously worked in the Department of Environmental Protection’s (DEP) Source of Drinking and Water Program, also testified regarding the nature of backflow preventers. He testified that backflow preventers protect public health because they prevent contamination of potable water systems (i.e., water that is satisfactory for human consumption). Mr. Sowerby’s testimony is also found to be credible. Respondent’s testimony that a backflow preventer is not a life-safety fixture, is not supported by the evidence. Respondent testified that backflow preventers are “plumbing fixtures” that are installed between the public water supply line and the private water supply line. Respondent also testified that if a backflow preventer fails, it could cause contamination of the public water supply and public health would be at risk. More importantly, the applicable building codes and the testimony of Mr. Hagen and Mr. Sowerby establish that backflow preventers prevent contamination of public water supply and protect public health. Given that backflow preventers safeguard public health by protecting the public water supply, they involve life-safety matters. The Department has incurred investigative costs in the amount of $415.95 related to this matter. Ultimate Findings of Fact Respondent’s repair of a backflow preventer on a water service line is a life-safety matter and as a result, Respondent is not eligible for an exemption under section 489.103(9). The evidence is clear and convincing that Respondent’s repair of a backflow preventer at the two properties referenced herein constituted the practice of construction contracting without a license. As a result, Respondent is guilty of unlicensed contracting, as charged in Counts I and II of the Amended Administrative Complaint.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation issue a final order that: Finds Respondent guilty of unlicensed contracting in violation of section 489.13(1), as alleged in Counts I and II of the Amended Administrative Complaint; Imposes an administrative fine of $6,000 ($3,000 for each count); and Requires Mr. Tuttle to pay the Department’s investigative costs of $415.95. DONE AND ENTERED this 26th day of October, 2016, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN 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 26th day of October, 2016.
The Issue The issue in this case is whether Respondent created a sanitary nuisance by installing drainfield pipes too far apart in a septic tank drainfield and failing to seal the lid to a septic tank, failing to call for a required inspection before covering an onsite sewage disposal system, and engaging in gross misconduct by assaulting two of Petitioner's employees.
Findings Of Fact Respondent is registered with Petitioner as a septic tank contractor and authorized to provide septic tank contracting services. On May 4, 1994, pursuant to a previously issued permit, Respondent completed the installation of a new drainfield at 204 West DelMonte Avenue in Clewiston. He asked Petitioner's office for an inspection for approval to cover the system. Jim Rashley, an environmental specialist employed by Petitioner, inspected the system on the morning of May 4. No one was at the site during the inspection. Mr. Rashley discovered a violation concerning the type of header pipe. He also discovered that the drain lines were more than 36 inches apart and 18 inches from the side of the field. Mr. Rashley determined that the drainfield pipes were three feet and four inches apart. Examining the septic tank itself, which Respondent had pumped, Mr. Rashley found that the lid had not been properly resealed, which would allow rain or dirt to enter the tank or effluent to escape from the tank if the drainfield failed. Returning to his office, Mr. Rashley informed his supervisor, Steve Havig, that he was failing the system and called Respondent and told him the same thing. Respondent asked Mr. Rashley to come out to the site so they could both examine the system, and Mr. Rashley agreed. When they met at the site, Respondent asked Mr. Rashley to point out the three violations, which he did. Respondent's response was to tell him that he was sick and tired of college kids telling him how to install septic tank systems. Mr. Rashley said that he could not ignore violations of the rules. After Respondent became more upset, he moved to within inches of Mr. Rashley's face and asked him if he would approve the system. Mr. Rashley answered he would if Respondent fixed the violations. While Respondent yelled at Mr. Rashley only a few inches from his face, Mr. Rashley, feeling very uncomfortable, retreated to his vehicle and started to drive back to his office. Respondent got into his vehicle and tailgated Mr. Rashley the entire way. When they arrived at Mr. Rashley's office, Respondent told the secretary to call Mr. Rashley's boss. Claiming that Mr. Rashley had unfairly disapproved the system, Respondent asked Mr. Havig to visit the site himself. Mr. Havig agreed to do so. Mr. Havig visited the site on the morning of May 5 outside the presence of Respondent. He confirmed the violations. At their closest point, the drain lines were three feet four inches apart, and the septic tank lid was not sealed. Mr. Havig left a message for Respondent with this information. At Respondent's request, Mr. Havig agreed to meet Respondent at the site at 1:30 pm. Returning from lunch with two other men, Mr. Havig stopped off at the site to meet Respondent. He found that the header pipe violation had been corrected, but the other violations had not been. Mr. Havig and Respondent talked about the separation of the drain lines. Respondent said he could not move the pipe without disturbing the elevation, which is crucial to the functioning of the drainfield. Mr. Havig said he could either move the pipe or add another line so as to reduce the maximum separation between lateral lines to below 36 inches. Respondent complained that he could not maintain the position of the flexible pipe when pouring gravel over the pipes. Respondent became angry. He grabbed a section of the plastic pipe and said that he would show Mr. Havig. The gravel fell in behind the place where the pipe had rested. Respondent declared that he would get the homeowner's approval to cover up the system rather than modify it. Mr. Havig went to his car to get a camera, and Respondent began using a lot of vulgarity. As Mr. Havig took pictures of the installation, Respondent became angrier. His face turned red and he accused Mr. Rashley and Mr. Havig of harassing him. He warned Mr. Havig that, if they did not stop, they would have to suffer the repercussions. Moving very close to Mr. Havig and pounding his fist into his hand, Respondent asked Mr. Havig if he knew what Respondent meant. Mr. Havig said yes, that it was time for him to go. Respondent covered the system up shortly after Mr. Havig departed. Respondent did not allow a reinspection of the system to determine if he corrected either the separation of the drain lines, which he admits he did not correct, or if he sealed the septic tank lid, which he claims he did correct. Respondent has worked as a septic tank contractor in the area for 18 years. The likelihood of system failure is high if a septic tank lid is not properly sealed before the system is covered and placed into operation. Respondent appears to have been a responsible contractor. Based on these facts, there is enough doubt on the lid-sealing issue to preclude finding that Petitioner proved by clear and convincing evidence that Respondent did not seal the lid before covering the system. The pipes constituting the drain lines are manufactured to allow 18 inches of effluent to escape from either side of the pipe. By installing lines with more than 36 inches between each other or 18 inches between a line and a side, Respondent reduced the efficiency of the drainfield because parts of the drainfield, which lies beneath the lines, will not receive as much effluent as other parts of the drainfield. For awhile, due to safety concerns, Petitioner had to send two inspectors to inspect Respondent's work sites. Respondent never apologized to either Mr. Rashley or Mr. Havig until, acknowledging his unprofessional behavior, he apologized during the hearing. Respondent also noted that Petitioner has dealt with him professionally since the incidents in question. Petitioner and Respondent have had troubled dealings in the past. On one occasion, Petitioner insisted on the placement of a drainfield adjacent to an existing, failed drainfield, even though the existing and proposed drainfields drained directly into a canal. Respondent wanted to locate the drainfield well away from the canal. Unable to secure approval locally, Respondent took an appeal to Petitioner's representatives in Tallahassee, who approved Respondent's original, more sensible plan to relocate the drainfield. On the other hand, Respondent violated the minimum- separation rule for drain lines in 1993. Petitioner fined Respondent for the violation.
Recommendation It is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of violating Rule 10D-6.056(4)(b) and thus 10D- 6.075(2)(a) by installing a drainfield with excessive separation between drain lines, Rule 10D-6.075(4)(d) by failing to call for a required inspection, and Rule 10D-6.075(4)(l)1 by engaging in gross misconduct in his behavior toward two of Petitioner's employees. It is further recommended that the final order impose an administrative fine against Respondent in the amount of $500. ENTERED on July 14, 1995, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Floirda 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on July 14, 1995. APPENDIX Rulings on Petitioner's Proposed Findings All adopted or adopted in substance except that Respondent failed to seal the septic tank lid, which is rejected as unsupported by the appropriate weight of the evidence. COPIES FURNISHED: Susan Mastin Scott Senior Health Attorney Department of Health and Rehabilitative Services P.O. Box 60085 Ft. Myers, FL 33906 Attorney Melanie A. McGahee 333 S. Commercio, Suite B Clewiston, FL 33440 Robert L. Powell Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Martha Valiant, M. D. Director, Hendry County Public Health Unit P.O. Box 70 LaBelle, FL 33935
The Issue This case concerns the entitlement of Petitioner to be granted a permit to operate a .0075 MGD wastewater treatment facility with reclaimed water applied through spray irrigation. See Chapter 403, Florida Statutes, and Chapter 17- 610, Florida Administrative Code.
Findings Of Fact The exceptions filed by Cordes are deficient either in lacking materiality or in failing to cite to any Support in the record. The Department cannot substitute its interpretation of the facts unless a review of the whole record shows that the findings made by the Hearing Officer are not supported by competent and Substantial evidence. See, e.g., Tuveson v. Florida Governors Council on Indian Affairs, Inc., 495 So.2d 790, 793 (Fla. 1st DCA 1986), rev. denied, 504 So.2d 767 (Fla. 1987). A review of the record in this case shows that, with one exception, competent and substantial evidence does support each of the findings of fact to which Cordes takes exception. Exception 1 objects that contrary to the finding in paragraph 5 of the Recommended Order, Cordes submitted the information requested by the Department, on time. The exception also urges that the Department misled Cordes, because the additional information requested by the Department to complete the first application (the short form) for renewal differed from the bases ultimately relied on by the Department in denying the application. The Hearing Officer found that the Department had denied the first application for renewal because of a delay in providing the additional information. Cordes points to no evidence in support of his exception to the finding that there was a delay. The transcript of the hearing in this matter reveals that Cordes's own witness admitted that there was a delay in providing the requested information, leading to the denial of the short-form application and a request for submittal of the long-term application, instead. As for the charge that the Department misled Cordes, Exception 1 confuses the two permit proceedings. The request for information on the short-form application is irrelevant to the denial of the long-form application at issue. The alleged discrepancy between the additional information requested and the bases for ultimately denying the application is also immaterial. The Department cannot estop itself from denying an application on one ground (on which the information originally submitted with the application is adequate) merely by requesting additional information on another ground. See generally State Department of Revenue v. Anderson, 403 So.2d 397 (Fla. 1981). I therefore reject all of Exception 1. Exception 2 attacks the findings in paragraphs 9-12 of the Recommended Order on pollution problems resulting from Cordes's Spray irrigation System. Cordes argues that because the Department (and a complaining neighbor) allegedly suggested that Cordes change his method of spray irrigation to a garden hose and sprinkler system, the Department should be estopped from denying the permit. The testimony on whether a Department representative suggested the use of a garden hose is conflicting. Likewise, although Cordes's engineer testified that no pollution problems had resulted from using the garden hose for Spray irrigation, the engineers from the Department testified that ponding and consequent nutrient-loading problems would result from that method and had actually been observed at the facility in question. Because competent Substantial evidence Supports the findings in paragraphs 9-12 of the Recommended Order, I will not disturb them. As for the estoppel argument, that is addressed below, in the rulings on the exceptions to conclusions of law. I therefore must reject Exception 2. I accept Exception 3, which challenges the Hearing Officer's finding in paragraphs 15-18 of the Recommended Order that Cordes' expert witness stated in the first application for permit renewal that the system had a storage capacity of three days, yet testified at the hearing that the Storage capacity was Sixteen hours. Neither the exception nor the finding, however, is material to the decision in this case, because other grounds form the basis for the decision, as explained below. RULINGS ON EXCEPTIONS TO CONCLUSIONS OF LAW Cordes's exceptions to the conclusions of law fare no better. At the outset, I note that Cordes did not number his exceptions to the conclusions of law. I shall take them up in the order in which Cordes presented them. The first such exception to the conclusions of law conclusorily asserts that the decision in State Department of Revenue v. Anderson, 403 So.2d 397 (Fla. 1981), is distinguishable but fails to identify the specific basis for distinguishing it. See Fla. Admin. Code Rule 17-103.200(1) (requiring that the grounds for exceptions be bet forth with particularity). The Hearing Officer cited the Anderson case in support of his conclusion that the Department did nothing to estop it from denying the application at issue. The court in Anderson noted that estoppel will be applied only rarely to the state and only in exceptional circumstances. The court set forth the general test for finding such an estoppel, requiring (1) a representation of material fact contrary to a position asserted later by the person or entity to be estopped, (2) reasonable reliance on that representation by the person claiming the estoppel, and (3) detriment to that person as a result of relying on the representation. Id. at 398. The court specifically pointed out that the state cannot be estopped through mistaken statements of the law. Id. (citing Department of Revenue v. Hobbs, 368 So.2d 367 (Fla. 1st DCA), appeal dismissed, 378 So.2d 345 (Fla. 1979); Austin v. Austin, 350 So.2d 102 (Fla. 1st DCA 1977), cert. denied, 357 So.2d 184 (Fla. 1978)). Even assuming (contrary to the finding of the Hearing Officer supported by competent substantial evidence) that a representative of the Department told Cordes at some point that the use of a garden hose would satisfy the legal requirements for spray irrigation as asserted by Cordes, that mistaken statement of law would provide no basis for estoppel. Moreover, the inadequate storage capacity of the system and its proximity to a potable well provide other grounds that require disapproval of the application. In any event, the complaint that the Department misled Cordes is contrary to the Hearing Officer's well-supported findings of fact. I reject this exception. Cordes then attacks the Hearing Officer's conclusion of mixed fact and law that the evidence presented by Cordes at the hearing did not overcome the showing of the problems associated with the lack of sufficient capacity of the storage system and the proximity of the irrigation field to a potable well. Cordes argues that the Department allows an exemption from the storage capacity requirement in some circumstances and implicitly granted Cordes such an exemption by approving the permit for the facility in 1983. But the record does not show that Cordes ever requested an exemption or even addressed the issue at the hearing. Moreover, the provision of exemptions by rule for applicants in general (who comply with the requirements for the exemption) does not demonstrate the adequacy of the storage system at Cordes's facility. Nor does the granting of a permit for the facility in 1983 necessarily imply that the Department granted any exemption for the facility. Rather, the Department may well have made a mistake of law in issuing the permit then without addressing the question of an exemption. On the record before me, and in light of the well-settled law as explained above, I cannot conclude that Cordes has shown any basis for estopping the Department on this issue. The complaint by Cordes that the Department never advised him that it would require a larger storage tank until he received the permit denial letter overlooks the existence of the rule requiring three days storage capacity. See Fla. Admin. Code Rule 17- 610.414(2)(c). The complaint that the Department did not request additional information on this point is immaterial. The information submitted with the permit application and confirmed at the hearing showed clearly that the storage capacity (sixteen hours) failed to satisfy the rule, in the absence of an exemption. I reject the exception to the Hearing Officer's conclusion on the adequacy of the storage capacity of the facility. Likewise without merit is' Cordes's exception to the Hearing Officer's conclusion that the spray irrigation field is located too close to a potable well to meet the requirements of rule 17- 610.421(3) of the Florida Administrative Code. The evidence showed that the field is only 200 feet from a potable well. Cordes's complaint that the application form did not request information about the proximity of the field to potable wells but only to shallow water supply wells of any kind is immaterial. Regardless of the form of the application, an applicant must meet the requirements of the rules to show entitlement to a permit. The Department did not deny the application for lack of information but for lack of a sufficient buffer zone between the irrigation field and the potable well. The information submitted was sufficient for the Department to determine that the facility would not meet the buffer zone requirement. Without explication, Cordes quotes from a letter granting his nursing center an exemption from monitoring requirements in 1983. Cordes fails to show the relevance of that exemption from monitoring to the adequacy of the buffer zone in question, given the specific requirements of rule 17-610.421(3). I therefore reject this final exception.
Recommendation Upon the consideration of the facts and the conclusions of law, it is, recommended that a Final Order be entered which denies the permit to operate a .0075 MGD wastewater treatment facility with reclaimed water applied by spray irrigation. RECOMMENDED this 19th day of June, 1990, in Tallahassee, Florida. CHARLES C. ADAMS, 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 19th day of June, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-4461 The following discussion is given concerning the proposed facts of the parties. Petitioner's Facts All sentences in Paragraph 1 save the second sentence are not necessary to the resolution of the facts. The second sentence is subordinate to facts found. Paragraph 2 is subordinate to facts found. In Paragraph 3 the suggestion by Dr. Nayak that he does not believe that the treatment plant is polluting at present begs the question. What is incumbent upon Petitioner is a requirement that the facility meet the rules. It does not. Likewise, remarks attributable to Mr. Reining to the effect that he saw no problems at the time of his visit does not supply an adequate answer to address reasonable assurances. Paragraph 4 in discussing the opinion held by Mr. Morrissette about whether he would have permitted operation in 1983 is not relevant. What is relevant is whether the most recent application should be granted. It should not. Paragraph 5 is subordinate to facts found except to the extent that it suggests that reasonable assurance has been given. In that respect, it is contrary to facts found. Paragraph 6 is recitation of testimony. It is not fact-finding. Paragraph 7 is unacceptable in that it does not address inclement conditions. It also fails to recognize that the present disposition of the effluent is not uniform. Paragraph 8 has been addressed by consideration of the testimony de novo. This clarified that the purposes of the final hearing was to consider the case de novo as opposed to appellate review of the agency's preliminary response to the application. Likewise, in Paragraph 9 although it would have been advantageous to have the wetted area better described in the attached map, that was clarified at hearing and has been reported in the fact-finding set forth in the Recommended Order. As to Paragraph 10 the explanation of the use of Rule 610.423, Florida Administrative Code, is set out in the fact-finding and conclusions of law in the Recommended Order and puts to question the applicant's response to the requirements in that rule. As to Paragraph 11 the reference to Rule 610.423, Florida Administrative Code, is not the critical rule that pertains to potable water wells. That requirement is announced at Rule 17-610.421(3), Florida Administrative Code. Concerning Paragraph 12 in the same way that it would have been helpful for the applicant to designate the wetted area, it would have been helpful for the [agency to remind the applicant to make that designation. That failing does not preclude consideration of those matters at hearing and that was done. Paragraph 13 is subordinate to facts found with the exception of reference to Mr. Morrissette in his lack of licensing in Florida. That lack of license does not preclude his testimony. Paragraph 14 is subordinate to facts found with the exception that suggestion by Dr. Nayak that there is an even distribution by the use of a hose is rejected. Paragraph 15 as described in the fact-finding the resort to the above- ground spray heads can be had absent problems with the sizing in the reclaimed water storage system. Paragraph 16 is addressed in the Recommended Order. Paragraph 17 is addressed in the Recommended Order as is Paragraph 18. Paragraph 19 is subordinate to fact found. The reference at Paragraph 20 to the exemption set out in Rule 17- 610.414(1), Florida Administrative Code, was not spoken to at hearing. The project does not contemplate the use of an alternative system which discharges surface water through deep wells. Paragraph 21 is contrary to facts found. The requirements in the rules are not site specific. Concerning Paragraph 22, while DER issued a permit under similar conditions in 1983 that does not preclude them refusing to issue the permit in 1988. Concerning Paragraph 23. The issuance of the permit in 1983 is seen as not being an exemption. It is seen as an oversight. Paragraph 24 is not necessary to the resolution of the dispute. Paragraph 25 is subordinate to facts found as is Paragraph 26. Paragraph 27 has been spoken to in the Recommended Order as has Paragraph 28. Concerning Paragraph 29, while the application does not indicate that the buffer zone must be drawn per se, it could be fairly inferred that the designation is contemplated by the rule which requires the establishment of the buffer zone. Concerning Paragraph 30 see discussion of Paragraph 29. Paragraph 31 is subordinate to facts found. Concerning Paragraph 32, whatever the application form may say the requirements of Rule 17-610.421, Florida Administrative Code, must be complied with. The same response pertains to Paragraph 33. The suggestion that the exemption from monitoring that was granted on September 2, 1983, relieves the applicant of the requirements of Rule 17-610.421, Florida Administrative Code, is rejected. Respondent`s Facts Paragraphs 1-27 are subordinate to facts found, with the exception that any suggestion that the applicant is limited in its proof to those matters set forth in the application is rejected. The applicant is allowed to present necessary evidence in furthering the request for permit at final hearing. Paragraph 28 is not accepted in that the evidence indicated that the soaker hose was the principle method but not the sole method of effluent distribution. In Paragraph 29 it is acknowledged that the Petitioner claims that the change in the method of distribution was at the instigation of a neighbor's complaint. It is also acknowledged that there was no reference to a written communication from the Respondent to the Petitioner concerning the use of the alternative means of distribution. The problems associated with this communication are spoken to in the Recommended Order and they would attend the suggestions made in Paragraph 31. As set forth in Paragraph 32 it is acknowledged that the employees cannot create the authority for changes. Nonetheless, they may mislead an applicant into a course of conduct in pursuing the application. Any problems of that sort associated with this project have addressed in the Recommended Order. Paragraphs 33-56 are subordinate to facts found with the exception that suggestion to the effect that the application constitutes the sole basis for considering the entitlement to permit is rejected in favor of a consideration of evidence presented at the hearing de novo. The discussion in Paragraphs 57-59 as to the nature of the potable water well is acknowledged. The exemption from monitoring in 1983 does not preclude the agency's ability to examine the issue in the 1989 application. It is found that the potable well is a deep well. In Paragraph 60, while it is acknowledged that the preliminary intent to deny was based upon an examination of the permit in association with applicable statutes and rules, the decision reached in this Recommended Order was based upon the evidence presented at hearing. That decision is not reached in an attempt to appease concerns by neighbors as alluded to in Paragraph 61. Paragraph 62 is considered to be argument. COPIES FURNISHED: Steven K. Hall, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Baya Harrison, Esquire 400 North Meridian Street Tallahassee, FL 32301 Dale H. Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 =================================================================
The Issue Whether application 23181 for a consumptive use water permit should be granted, pursuant to Chapter 383, Florida Statutes. Prior to the hearing, 16 individuals in the Wabasso, Florida, community petitioned to intervene as parties in this proceeding. By Order, dated August 26, 1976, intervention was granted. Thereafter, counsel for the Wabasso Citizens Association, a private, unincorporated association that included the 16 prior intervenors, requested that intervention include all members of the association. There being no objection to the foregoing request, intervention was granted accordingly. The public hearing in this matter included 22 exhibits and the testimony of 21 witnesses, nine of whom were members of the public. Lists of the exhibits and public witnesses are attached hereto. On January 8, 1975, the Town of Indian River Shores, Florida (hereinafter "Town"), and Lost Tree Village Corporation, Indian Rivers Shores, Florida (hereinafter "Lost Tree"), filed application 23181 for a consumptive use water permit with the Central and Southern Florida Flood Control District (hereinafter "District"). The application requested a permit for the withdrawal of 393 acre feet per year of groundwater from two wells located on a parcel of land owned by Lost Tree at Wabasso, Florida. The requested use was for irrigation of two golf courses located on land owned by Lost Tree known as John's Island, a residential community located within the Town, and as an emergency public water supply for the Town. It was proposed that the water be transported by pipeline owned by Lost Tree from Wabasso to John's Island, a distance of several miles. Although the matter was set for public hearing to be held on February 4, 1975, an unfavorable staff report of the District, dated January 30, 1975, resulted in an indefinite postponement of the hearing. A hydrogeological report was prepared for Lost Tree by a consulting firm on February 12, 1976, and submitted by the applicant to the District. A subsequent staff report of the District was prepared on July 28, 1976. Thereafter, the matter was noticed for hearing to be held August 31, 1976. Pursuant to the request of intervenors, a continuance was granted until September 29, 1976. (Exhibits 5,6,7,8,19)
Findings Of Fact The Town is a municipality that was incorporated in 1953. It is located east of the Indian River on an island and extends from the north boundary of Vero Beach for over 4 miles along the Atlantic ocean. In 1969, Lost Tree commenced developing a 3,000-acre tract of land located within the Town as a residential community. Prior to the initiation of this project, there had been very little development in the Town. In order to attract residents to John's Island, two 36-hole golf courses were constructed on the property, known as the North and South Courses, covering approximately 180 acres. At the present time, John's Island comprises over 600 residences, consisting of single and multiple family units, ranging in price from $65,000 to $500,000. The Town has a population of about 1,200, with 65 percent residing at John's Island. The present assessed value of property located in the Town is about $160,000,000 of which almost $66,000,000 is attributable to property in John's Island. The private golf club at John's Island has approximately 500 members, including about 150 from Vero Beach. The golf courses are considered to be the "heart" and "life-blood" of the community (Testimony of Ecclestone, Miller; Exhibits 5,11,12). The water supply of the Town comes from the water system of the City of Vero Beach, pursuant to contract, via a 16" water main which crosses the Indian River and ends at the northern boundary of Vero Beach. There, it is tied into a 12" water main of the Town. The Town has a one million gallon capacity underground storage tank and a 100,000 gallon overhead tank. The 16" main is the only waterline that crosses the Indian River and, in the event of a rupture, the Town would be limited to its stored supplies (Testimony of Miller, Little, Exhibits 5,17). The John's Island golf courses require irrigation of approximately 70 acres. In the past, irrigation water has been obtained from a system of shallow wells on the property, treated sewage effluent from the surrounding community, and stormwater, all of which is discharged into two ponds located on the courses. Additionally, treated potable water is obtained from the City of Vero Beach through two two-inch water meters that were installed in 1975. Prior to that time, an undisclosed amount of city water was obtained for irrigation and other purposes through city meters installed on fire hydrants in the area. The use of city water was required in order to supplement the resources available on the John's Island property. During the period May, 1975, through August, 1976, the amount of water obtained from the City of Vero Beach that was used for golf course irrigation totaled 54,057,000 gallons, an average of some 110,000 gallons per day. At the present time there is no water problem, insofar as irrigation is concerned, on the South Course which obtains irrigation water from sewage effluent and a number of shallow wells. However, test samplings over the years have shown a gradual increase in the amount of chlorides in the water and it is questionable whether such water will continue to be suitable for irrigation in the foreseeable future. Recent tests show the chloride content of the water at 450 ppm. The type of Bermuda grass on the golf courses can grow satisfactorily with water containing not more than 1,000 ppm. City water is used only on the North Course. The water obtained from the shallow wells in that area is highly saline in content. A recent water test showed a chloride content of 3,800 ppm. Additionally, immediately before an eight inch rainfall which lowered the chloride content to the foregoing figure, the greens on the North Course tested at 6,300 ppm in chloride content (Testimony of Luke, Little, Exhibits 6,7). During periods of drought, the City of Vero Beach has requested John's Island and other water users to either curtail or stop the use of city water for non-domestic purposes. Such requests have been received approximately six times during the past year. In April, 1976, the city water used for golf course irrigation at John's Island was shut off for a period of eight days as a result of a request from officials of Vero Beach. If insufficient irrigation water is not received for a period of 10 days to two weeks, it is extremely probable that a golf course would have to be replanted at an approximate cost of $60,000.00 to $80,000.00 and would require a period of six months for suitable growth. Both the Town and John's Island always cooperated fully with the requests of Vero Beach to curtail water use (Testimony of Luke, Miller, Little, Exhibit 17). At the time irrigation water sources were being explored at John's Island, a test well was drilled to a depth of 2020 feet into the Floridan aquifer underlying the property, but an inadequate quantity of water was developed. Lost Tree owns some 25 acres of land at Winter Beach, Florida, which is located west of John's Island across the Indian River. Although test wells there produced satisfactory water, it was not feasible to use this source due to prohibitions against excavation for such purposes in the Indian River. Due primarily to economic considerations of the high cost of using treated city water for golf course irrigation, and the inconvenience and possible hazards of water interruptions from that source, Lost Tree decided to supplement its resources from water withdrawn from wells to be located on a 4.869 acre tract of land it purchased in Wabasso. Although a deep well was considered at that site, state agencies advised that the Floridan aquifer was overloaded in that area to a degree of 200 percent. Accordingly, in 1973, two ninety-foot deep wells were constructed on the site approximately 500 feet apart into the underlying shallow aquifer. Pump tests showed that the chloride content was within satisfactory limits. Thereafter, Lost Tree in its own name and that of The Town, obtained necessary rights-of-way and permits for the placement of a system of pipes for transportation of water from the Wabasso wells to John's Island. These consisted of a 16" water line from the Wabasso site east over a newly constructed bridge and several existing bridges to Highway A1A where the size of the line south to John's Island was decreased to twelve inches. An agreement was entered into between Lost Tree and the Town on December 19, 1974 whereby the former agreed to supply emergency needs of the Town from water obtained from the Wabasso wells. About that same time, the pipe system was completed and the present application filed with the District (Testimony of Lloyd, Ecclestone, Exhibits 2,6,9). The area immediately surrounding Lost Tree's land in Wabasso consists primarily of residences, groves, and trailer parks. The residents of the unincorporated Wabasso area depend solely upon the shallow aquifer for their domestic water needs since there are no utility services in the area. Grove irrigation normally is accomplished by deep wells to the Floridan aquifer. After the application herein was filed in January, 1975, numerous letters of objection to the proposed withdrawal were filed with the District by residents of the Wabasso community and from local organizations. These objections, for the most part, expressed apprehension that the applicants would be withdrawing far more water from the well field than their fair share based on the size of Lost Tree's land in Wabasso. The objectors also claimed that the requested withdrawal would have a serious detrimental effect on existing users. They further protested the concept of extracting potable water from one area and transporting it to another area for irrigation use on recreational facilities. The initial Staff Report of the District on January 30, 1975, took such objections into consideration and recommended denial of the application based on the unsuitability of the well field site. It found that withdrawal of the requested water for golf course irrigation was not a reasonable and beneficial use because it greatly exceeded the water budget for the site, harmed existing legitimate users in the area by creating drawdowns of several feet which would increase the possibility of potable water supply wells running dry, harming potential future legitimate users by lowering the water table and exporting the water that they might have utilized, and because it threatened to harm such users and the resource itself by "upconing" saline water from the bottom of the aquifer into the fresh water producing zone of the aquifer. Although the report stated that there would be no objection to permitting an allocation on the order of 7.5 acre feet per year, which was the equivalent to the water crop, it was not recommended because such an allocation would do little to meet the applicant's needs for irrigation water (Exhibit 6, Composite Exhibit 20). Recognizing the need for further studies to support its application, Lost Tree hired a firm of consulting groundwater geologists and hydrologists to conduct an investigation of potential sources of irrigation water for both the John's Island and the Wabasso sites. The study confirmed prior conclusions that it was not practicable or feasible to develop the necessary irrigation water from sources available at John's Island. As to the Wabasso area, the report found that the shallow aquifer was not being fully utilized and that extraction of the proposed quantity of water would not exceed the capacity of the aquifer to provide it. It also determined that the presence of a continuous layer of impermeable clay within the Hawthorn formation effectively separates the Floridan from the shallow aquifer. No interference in the water levels of the Floridan aquifer should occur nor is it likely there would be salt water intrusion into the shallow aquifer. However, based on the formulation of a "mathematical model," it was predicted that the proposed withdrawal could adversely affect existing shallow wells within a few hundred feet of the applicant's well field by "drawdown" which could lessen the pumping ability of centrifugal pumps. Nearby existing wells, such as those located in a trailer park immediately west of Lost Tree's well field, could lose suction in pumping and thereby owners might experience delay in extracting water from the wells (Testimony of Amy, Exhibits 4, 8). Although one Wabasso resident who owns property near Lost Tree's wells has experienced a decrease in pressure in her well and poor quality water, and another nearby resident's well went dry, there is no clear evidence that Lost Tree's drilling of its two wells and consequent testing thereof caused these problems. Testimony of other Wabasso residents expressed their apprehension as to possible salt water intrusion and unavailability of water in the shallow aquifer if the requested withdrawal is approved. Other residents and public witnesses challenged the fairness of permitting one land owner to deplete local water supplies by withdrawals for transport to another area for recreational purposes (Testimony of Chesser, McPherson R., Pangburn R., Jackson, Mrs. S.B., Kale, Stout, Wintermute, Pangburn, K., Bidlingmayer, Willey, Gertzen). The District Staff Report, dated July 28, 1976, as supplemented by an addendum, dated August 30, 1976, reviewed the hydrogeological study submitted by the applicants and concluded that withdrawal of a specified amount of water from Lost Tree's Wabasso wells would represent a reasonable and beneficial use of the resource that did not appear to harm either the resource or existing users. It calculated the "crop requirement" for the golf courses on the basis of 135 acres. Testimony at the hearing established that the area required to be irrigated was only 70 acres. Consequently, the report's recommendation as to the annual water allocation for golf course irrigation was scaled down accordingly. Recommendations as to daily withdrawals were based upon the maximum billing by the City of Vero Beach for a 22-day period in January and February, 1975, plus a 20 percent allowance to provide a reasonable degree of operational flexibility. The conclusion of the staff that the withdrawal would not harm existing users is questionable in the light of the applicant's own hydrogeological study and testimony of its experts (Testimony of Winter, Exhibits 6,7,22). The Staff Report recommended that certain conditions be imposed upon any issuance of the requested permit. The following findings are made as to the reasonableness of such proposed conditions: Annual allocation of no more than 51.044 million gallons. FINDING: Reasonable. This permit shall expire 5 years after permit issuance. FINDING: Reasonable. The use may require reevaluation based upon developing needs of the area of withdrawal for higher priority uses of the resource. The total maximum monthly withdrawal from the two wells in Wabasso shall not exceed 6.931 million gallons. FINDING: Reasonable. The total daily withdrawal from the two wells in Wabasso shall not exceed 378,000 gallons. FINDING: Reasonable. Daily pumpage on a monthly basis shall be reported to the District during the following month. This data must be obtained through the use of an in line totalizing meter or meters at the well field. FINDING: Reasonable. Prior to the initiation of any pumping from the wells in Wabasso the permittee must survey all existing wells (with the owners' permission) located within 800 feet of each of these wells. Should it be determined that the permittee's pumping as recommended may adversely affect an existing well the permittee is to be held responsible for making timely corrective measures as deemed necessary at no expense to the owner, in order to preserve the water supply capability of that facility. A complete and detailed report of the survey and corrective measures taken by the permittee shall be submitted to the District. The District will then issue a notice authorizing the permittee to begin pumping as required. FINDING: Unreasonable. Although it is conceded by the applicants that adverse effects upon nearby wells may well occur, attempts to make determinations as to actual effects prior to full operation of Lost Tree's wells would only be speculative in nature. It is noteworthy in this regard that upon issuance of a temporary authorization to Lost Tree to withdraw water commencing in August, 1976, a similar precondition was imposed with a report of a survey and corrective measures taken to be submitted to the District prior to authorization to begin pumping. A cursory survey was performed by a representative of Lost Tree that consisted merely of attempting to locate surrounding wells by off-premises observation. No attempt was made to contact well owners or to obtain information as to the types of pumps on the wells. Such a survey is patently inadequate for the purposes desired by the District and it is considered impracticable and onerous to saddle the applicant with the burden of such a condition. Although withdrawals of water under the temporary permit commenced on September 18, 1976, and continued thereafter, there is no evidence that any complaints were registered by adjacent well owners as a result of the withdrawals (Testimony of Pearson, Exhibits 13, 14). For a period of 18 months after the first full week of operation in which no substantive complaints of adverse impact are received by the District, the permittee must assume full responsibility for taking the appropriate corrective to rectify any adverse impact their withdrawals create on any existing users within the area influenced by their withdrawal. Upon receiving a substantive complaint of adverse impact upon an existing user, the Executive Director of the District will issue a notice prohibiting any further withdrawals from the wells in Wabasso until corrective measures are taken by the permittee at no expense to the existing user, or until the permittee proves that their withdrawal is not the cause of the problem. The Executive Director of the District will issue a notice to resume withdrawals when the District has been satisfied that the situation is remedied. FINDING: Reasonable in part. The condition should be modified to extend the period of the permittee's responsibility for corrective action as to adverse impact on existing users to the entire life of the permit rather than for a period of only 18 months. Further, the District's prohibition of withdrawals after the receipt of a complaint is arbitrary and inconsistent with the method of administrative enforcement procedures as specified in Section 373.119(1), Florida Statutes. To help define the actual impact of the permittee's withdrawal a total of at least seven observation wells shall be installed. The observation wells shall be located between the permittee's wells and Indian River, two shall be located to the west and the remaining two shall be located either to the north or south of the permittee's wells. The locations and depths of these wells shall halve District concurrence. A continuous water level recording device shall be installed on one off these wells. FINDING: Reasonable. Although the installation and monitoring of a number of observation wells imposes a financial burden on the applicants, it is considered a proper requirement to assist in determining the impact of any withdrawal. The time for installation and specifications thereof should be set forth in any permit issued. Hydrographs from the recording device on one of the observation wells and from weekly hand measured water levels on the remaining observation wells shall be submitted to the District on a monthly basis. This data shall be submitted in the month following the period of record. All water level data shall be measured and recorded to the nearest hundredth of a foot and referenced to mean sea level. FINDING: Reasonable. By acceptance of this permit the permittee acknowledges that this permit confers no prior right to the permittee for the use of water in the amount allocated and for the purpose stated. FINDING: Unreasonable. The condition is ambiguous and involves legal aspects that are not proper for determination at this time. Any future application involving the use of the withdrawal facilities permitted herein, shall be considered as an application for a new use and it shall be reviewed accordingly. FINDING: Unreasonable. See comment in I above. All existing Floridan wells located on the applicant's properties must be abandoned in accordance with the current applicable standards of the Department of Environmental Regulation. Abandonment procedures must be carried out within 6 months of the date of issuance of this permit. FINDING: Unreasonable. The abandonment of existing Floridan wells involves subject matter not embraced within the application. An officer of the Lost Tree Village Corporation shall submit with each report required by the District a sworn and acknowledged affidavit that the report reflects the actual measurements or readings taken. FINDING: Reasonable. The Permittee shall obtain a water sample from a pumping well at the Wabasso well field site once a month, within five days of the end of the month. This sample shall be analyzed for chloride content, and the results reported to the District within 14 calendar days after collection. Should the District determine that a significant change has occurred in the chloride content of the water being withdrawn from the Wabasso well field, the District shall initiate a new review of the application. FINDING: Reasonable. Upon installation of the observation wells, a water sample shall be obtained from these wells and analyzed for the following parameters: Chloride Total Dissolved Solids Conductivity Sulfate Calcium Magnesium Sodium Bicarbonate This analysis shall be submitted to the District within 14 days after collection. During the last five days of the months of May and November of each year, during the duration of this permit, the permittee shall obtain one water sample from each of the installed observation wells. These samples shall be analyzed for Chloride content, and the results reported to the District within 14 days after collection. FINDING: Reasonable. If the permittee can demonstrate to the satisfaction of the District that the groundwater withdrawn by the south golf course well point system is no longer suitable for the irrigation of the golf course, the annual allocation shall be increased to 82.942 million gallons. FINDING: Unreasonable. Future needs should be the subject of modification of permit terms at an appropriate time, pursuant to section 373.239, F.S. An emergency authorization was issued to the applicants by the governing board of the District on August 30, 1976. This authorization contains certain special conditions including a requirement to conduct and submit a preauthorization survey and report concerning existing wells located within 800 feet of the applicant's wells. In addition, a condition of the authorization was that no withdrawals shall be made unless the City of Vero Beach had ordered the applicant to stop the use of water from its system for golf course irrigation. The evidence shows that neither of these conditions was met by the applicant, but yet withdrawals were made during the month of September, 1976 without District authorization (Testimony of Winter, Rearson, Exhibit 13). The applicant's disregard of these requirements indicates the need for a further special condition if a permit is granted, to ensure that adjacent land owners are protected in the event of adverse effects upon their water supply. To accomplish that, it is found that the following additional condition is reasonable and necessary: P. The Board shall require the applicant to furnish a bond in an appropriate amount, as authorized by Rule 16K-1.061, F.A.C. It is found that insufficient evidence has been presented to determine the merits of the request of the Town of Indian River Shores for an emergency water supply from the Wabasso wells.
Recommendation That a consumptive water use permit, with conditions as specified herein, be issued to applicant Lost Tree Village Corporation for the irrigation of its two golf courses at John's Island. DONE and ENTERED this 9th day of November, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of November, 1976. COPIES FURNISHED: John H. Wheeler, Esquire Post Office Box V West Palm Beach, Florida Sherman N. Smith, Jr., Esquire Post Office Box 1030 Vero Beach, Florida 32960 William T. McCluan, Esquire 65 East Nasa Boulevard Post Office Box 459 Melbourne, Florida 32901 =================================================================
Findings Of Fact At all times material to this proceeding, Sandra B. Frazier was a licensed real estate broker-salesman in the State of Florida, License No. 0185565, as an associate with Property Associates, Inc., Tallahassee, Florida. On July 1, 1989, Howard M. Burkholz, Leslie Burkholz, and Jacob H. Schiff entered into an Exclusive Right of Sale Agreement with Property Associates, through its agent, Frazier, for the sale of a house located in Forest Green Subdivision, at 2062 Pepperidge Way, Tallahassee, Florida. The Exclusive Right of Sale Agreement states in part: Seller further certifies and represents that the property has no latent defects except the following: septic tank is pumped monthly at Sellers request. [sic] Mr. and Mrs. Burkholz both told Frazier that the septic tank was not a problem, but Frazier had previous knowledge of septic tank problems in the vicinity and of the significance of needing septic tank pumping. Frazier sold the house across from the Burkholz's house. That house, at 2061 Pepperidge Way, was bought by Marcie Doolittle in December of 1988. The listing information and Notice to Prospective Buyers showed that, due to the composition of the soil and heavy rains, it was necessary to have the septic tank pumped. The seller offered an offset to the buyer for the cost of additional drainfield. Only after Doolittle bought the house did Frazier learn of the severity of the problems and the necessity for pump outs every two weeks. In a letter written by Frazier to Doolittle on February 9, 1989, Frazier indicated that "once a septic tank fails it does not correct itself. It then requires regular pumping." Frazier suggested that the only resolution was more drainfield or regular pumping. After Frazier listed the Burkholz house, she mentioned to Mrs. Doolittle that she could not show the Burkholz house during wet weather because the backyard, in which the septic tank and drainfield was located, was too boggy. Further, Frazier discussed with Mrs. Doolittle that the city was going to install sewer in the area because of the septic tank failures. In conformance with the Exclusive Right of Sale agreement with the Burkholzs, Frazier listed the house through the Multiple Listing Service. The data on the house was input on an input sheet. If there are defects, they can be listed on lines RE1-RE4 on the input form. Despite her knowledge about the Burkholz's septic tank and the Doolittle's septic tank, Frazier did not list this as a defect. Mary Wheatley, a sales associate with Bob Wolfe Real Estate, worked with Jesse and Susan Day to locate a house to purchase. She showed the Days the Burkholz house. Her only knowledge of that house came from the MLS listing, the brochure entitled Highlights of this Home prepared by Frazier, and from information verbally given by Frazier. Wheatley had no knowledge of the septic tank problems and Frazier did not tell her anything about the septic tank or the potential hook up to city sewer. After various offers and counteroffers, the Days and the Burkholtzs signed a contract for the sale and purchase of the house on November 24, 1989. The Contract states in paragraph 14: CONDITION OF PROPERTY: BUYER ACKNOWLEDGES THAT HE HAS NOT RELIED UPON ANY REPRESENTA- TIONS MADE BY A REALTOR(S) AS TO THE CONDI- TION OF THE PREMISES. . . .SELLER warrants that the . . . septic tank . . . shall be in working order on the date of closing. SELLER agrees to repair any of the preceding items not in working order. BUYER agrees to inspect the property prior to closing to determine condition of said items; . . . If BUYER fails to make inspections as required, BUYER agrees to accept property in "as is" condition. BUYER and SELLER will diligently learn and disclose to each other prior to closing all facts affecting the value of the property. On December 26, 1989, the night before the closing, the Days, the Burkholzs, Frazier, and Wheatley did the final walk through. While Wheatley and Susan Day were in another room measuring for curtains, Mr. Day flushed a toilet and noted that it went down very slowly. He asked if there were septic tank problems. Mr. Burkholz indicated that there were, but that sewer hookup was coming and the septic tank was pumped out monthly by the city at no cost. Mr. Day asked about the costs and was told that the pumpouts were free and the sewer would cost several hundred dollars. There is a clear conflict in the testimony of the various witnesses about the sewer cost estimate given to Mr. Day, but the exact figure is of no consequence to the ultimate outcome of the case. Therefore the conflict is not resolved. The Days discussed the septic tank and sewer hookup and decided to go through with the closing. After the walk through, they signed an inspection sheet in which they accepted the premises as inspected, without any noted exceptions, and they relieved the sellers and the realtor from further warranty or responsibility for the condition of the property. According to Thomas Bryant, an engineer with the City of Tallahassee, in December, 1989, no one knew whether there would be sewer installed in Forest Green or the potential cost of sewer hookup. No one knew that even on the date of hearing. The city did enter into an agreement to charge $650 for sewer hookup in Forest Green, but there are additional charges and costs to the homeowner which are as yet undetermined. The septic tank problems constitute a latent defect which should have been disclosed to the buyers before a contract was agreed upon. The failure to disclose is not egregious since the regular pumping of the septic tank is done at no cost to the homeowner and results in no liability to the homeowner. The projected sewer hook up was too uncertain to have required such disclosure.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Real Estate Commission enter a Final Order and therein: Find Sandra B. Frazier guilty of one Count of concealment in violation of Section 475.25(1)(b), Florida Statutes. Based on the mitigating factors set forth above and on the relatively minor nature of the offense, impose a fine of $100.00 on Sandra B. Frazier. Issue a written reprimand to Sandra B. Frazier. RECOMMENDED this 27th day of March, 1991, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of March, 1991. APPENDIX TO THE RECOMMENDED ORDER, CASE NO. 90-6189 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted in this case. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Sandra B. Frazier Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1). Proposed findings of fact 2-9 are subordinate to the facts actually found in this Recommended Order. COPIES FURNISHED: Janine B. Myrick Senior Attorney Department of Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32801-1772 William J. Haley Attorney at Law Post Office Box 1029 Lake City, FL 32056-1029 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Darlene F. Keller Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32801
The Issue Whether Petitioners, Charles and Andrea Abraham, were subject to a discriminatory housing practice by Respondent, Sandy Cove 3 Association, Inc., based on their national origin, in violation of Florida's Fair Housing Act. 1 All statutory references are to Florida Statutes (2020), unless otherwise noted.
Findings Of Fact Sandy Cove 3 ("Sandy Cove") is a small development of condominiums located in Sarasota, Florida. Sandy Cove was built in 1973 and consists of 16 units. Sandy Cove is governed and operated by the Association. Petitioners own a two-bedroom condominium in Sandy Cove. Petitioners purchased their unit (#220) in 2009. They primarily use their condominium as rental property. At the final hearing, Petitioner Charles Abraham testified that he and his wife, Andrea, reside primarily in Maryland and Hungary. The focus of this dispute centers on a corkscrew of copper water pipes that runs from the top of the water heater in Petitioners' condominium into the primary water pipes within the unit's walls. This matter specifically concerns who should pay to replace these pipes. Each party believes that the other side should bear the costs. In their initial housing discrimination complaint filed with the Commission, Petitioners attribute the Association's refusal to replace the copper pipes in their condominium to discrimination based on their national origin (Hungarian). At the final hearing, Mr. Abraham testified that, sometime in 2016, Petitioners noticed that the water pipes connected to their water heater were beginning to show ominous signs of age and wear. The bends and joints of several pipe sections had turned green and were developing a buildup of corrosion. Petitioners felt that the pipes were a "disaster" waiting to happen. Mr. Abraham stated that initially he attempted to repair the pipes himself by applying glue to several connections. However, because he noticed a small amount of water leakage "from time to time," he believed that the pipes were in real danger of cracking or popping open. In 2018, Petitioners turned to the Association for assistance in fixing the potential plumbing problem. On November 28, 2018, Petitioners wrote the Association requesting it to repair their pipes. Thereafter, according to Mr. Abraham, the parties exchanged "around 100 emails" discussing how the pipes should be fixed, and who should pay for the repairs. Eventually, in the summer of 2019, Sandy Cove management contacted Daniel's Plumbing Service to inspect Petitioners' plumbing situation. On July 29, 2019, a plumber from Daniel's Plumbing Service examined Petitioners' water heater and the pipes attached to it. Following his inspection, the plumber wrote on the service invoice: Arrived and found corrosion on copper adapters to water heater. Water heater is 30 gallon electric that is 19 years old. Water heater should be replaced. Relief valve is 1/2" which should be changed to 3/4". Gate valve to water heater is no good and also needs to be replaced. No leaks at this time. The plumber then added: Notes-Dylan from management said to pick up-no further work is to be done at this time. He said work that is to be done is homeowners responsibility. Mr. Abraham testified that, after the plumbing inspection, the Association informed him that the pipes located inside his condominium were his responsibility as the unit owner, not the Association's responsibility. Mr. Abraham declared that the Association has refused to pay to replace the copper pipes in his unit. Mr. Abraham claimed that the Association's response was contrary to what he had seen and heard regarding the water pipes in other units. He insisted that the Association has paid to replace pipes for other condominium owners within Sandy Cove. Mr. Abraham specifically believed that in 2016, the Association repaired or replaced pipes with similar issues in units 115, 116, 117, 215, and 216. To support his position, Mr. Abraham relayed that, in 2017, the Association collected a special assessment from every unit owner specifically to cover the plumbing issues at Sandy Cove. Mr. Abraham recounted that he personally paid the Association $2,100. Consequently, Petitioners were quite frustrated that, after paying the Association several thousand dollars specifically for Sandy Cove plumbing problems, the Association refused his request for assistance to fix his own copper pipes. Seeking to confirm the necessary repairs, Petitioners hired two additional plumbers to inspect the water pipes in their unit. A plumber from Michael Douglas Plumbers visited Petitioners' condominium on September 9, 2020, and documented the following: Proposal to replace copper piping in water heater closet (very corroded and recommend replacing) * * * All piping from wall to water heater to be in PEX with new ballvalves Water heater is 20 yrs old 30 gal low (30 amp breaker) recommended replacement. * * * Replacement will cost … $1511.76 … this price includes replacing pipes as well. Petitioners also introduced the testimony of Robert DeForge, the current Operations Manager for Daniels Plumbing Service. Mr. DeForge was not the plumber who inspected Petitioners' water heater in July 2019. However, as a Master Plumber with over 30 years of plumbing experience, he credibly expounded on the description written on the July 29, 2019, invoice. Mr. DeForge explained that copper pipes are no longer favored within the plumbing industry. Instead, the current industry standard is to use PVC pipes (polyvinyl chloride – a synthetic plastic) for cold water pipes and CPVC pipes for hot water (CPVC is designed to handle a hotter temperature range). Regarding the status of Petitioners' pipes, Mr. DeForge confirmed that copper pipes can corrode over time. Following his review of a photograph of Petitioners' copper pipes and water heater, Mr. DeForge opined that the corrosion about which Petitioners complain did not result from a water leak, but is due to electrolysis from metal on metal contact (galvanized pipe to copper pipe). Mr. DeForge further remarked that corrosion can lead to water leaks, which will require the pipes to be replaced. At that point, if Petitioners are experiencing leaking pipes, Mr. DeForge would recommend that the current copper pipes be replaced with PVC/CPVC pipes. Mr. DeForge also commented that a pipe replacement job would likely increase the size of the pipes connected to the water heater. The 1/2" copper pipes currently attached to Petitioners' water heater would be replaced with 3/4" PVC/CPVC pipes. Mr. DeForge added that the pipes could be replaced without having to displace Petitioners' current water heater. The procedure would require an adapter to connect the 3/4" PVC pipe to the 1/2" relief valve affixed atop the existing water heater. Addressing the cost of the plumbing services to rectify the problem, Mr. DeForge testified that simply replacing the pipes above the water heater will cost about $150. To replace everything (new pipes and new water heater), the plumbing services would cost approximately $1,000 to $1,200. Mr. Abraham expressed that Petitioners' ultimate goal is to have the Association pay to replaced the copper pipes in his unit. Regarding the water heater, Mr. Abraham stated that he understands that the old water heater is his responsibility as the unit owner. Therefore, Petitioners are prepared to bear that expense. That being said, Mr. Abraham asserts that the water heater is functioning perfectly fine at present. Therefore, the only problem that needs to be remedied at this moment is the condition of the aging copper pipes. In doing so, however, Mr. Abraham added that the current plumbing situation is complicated by the fact that, to install new PVC/CPVC pipes, the relief valve connecting the water heater to the (new) pipes should be replaced. And, if the relief valve must be replaced, then Mr. Abraham asserts that the water heater should be replaced, as well. Mr. Abraham estimates that the entire service job will cost between $1,500 and $2,000. John Meuschke testified on behalf of the Association. Mr. Meuschke currently serves as president of the Association's board of directors, a position he has held for over 11 years. He also owns a unit in Sandy Cove. Mr. Meuschke stated that, generally, the Association assumes all financial responsibility for maintaining and repairing the "common elements" within Sandy Cove. Mr. Meuschke explained that the "common elements" consist of everything outside the individual condominium units. Conversely, the individual owners are responsible for the maintenance and repair costs for issues occurring inside their units' walls. Regarding Petitioners' specific complaint, Mr. Meuschke recounted that the Association received Petitioners' 2018 correspondence regarding a water leak in their unit. Mr. Meuschke advised, however, that the Association declined to pay for the requested repairs because the copper pipes which Petitioners sought to replace were located inside Petitioners' unit, directly above the water heater to be precise. Accordingly, Mr. Meuschke contended that Petitioners were responsible for any costs associated with the pipes' repair or replacement. Conversely, Mr. Meuschke stated that if the water pipes were leaking inside the walls that divide the separate units, the Association would have assumed financial responsibility for any plumbing costs. Because the inspection by Daniels Plumbing Service revealed, "no leaks at this time," however, Mr. Meuschke asserted that nothing indicated that the Association should pay for any repairs involving Petitioners' copper pipes. Further, replacing a unit's water heater is the sole responsibility of each condominium owner, because it too is located within the confines of an individual unit at Sandy Cove. To support the Association's position, Mr. Meuschke referenced the Declaration of Condominium of Sandy Cove 3 (the "Declaration"). In determining who is financially responsible for repairs, Mr. Meuschke pointed to Article 6, entitled Maintenance, Alteration and Improvement, which provides: By the Association. The Association shall maintain, repair and replace at the Association's expense: All portions of a Unit, except interior surfaces, contributing to the support of the Unit, which portions shall include but not be limited to load- bearing columns and load-bearing walls. All … plumbing, … and other facilities for the furnishing of utility services contained in the portions of a Unit maintained by the Association, and all such facilities contained within a Unit that service part or parts of the Condominium other than the Unit within which contained. * * * By the Unit Owner. The responsibility of the Unit Owner shall be as follows: To maintain, repair, and replace, at his expense, all portions of his Unit except portions to be maintained, repaired and replaced by the Association. Such shall be done without disturbing the rights of other Unit Owners. * * * 6.5) Common Elements, By the Association. The maintenance and operation of the common elements shall be the responsibility of the Association as a common expense. Mr. Meuschke pithily explained that a unit owner owns everything from the paint on the Unit's walls inward, and the Association is responsible for everything from the walls out. Mr. Meuschke also voiced that the Association collects a monthly assessment from each condominium owner in Sandy Cove. This money is designated for the Association's annual operating budget. The assessments also pay for the upkeep of the Sandy Cove "common elements," as well as any necessary repairs of the same. Mr. Meuschke relayed that occasionally the Association imposes a special assessment against the unit owners to generate additional funds for the Association's operating budget. Pertinent to Petitioners' dispute, in March 2017, the Association levied an additional charge on all Sandy Cove condominiums. Mr. Meuschke confirmed that owners of one-bedroom units were assessed in the amount of $1,908, and two-bedroom units (including Petitioners) were tasked to pay an additional $2,100. The purpose of the Special Assessment was to replenish the Association's reserves, as well as pay for several unexpected plumbing issues. Mr. Meuschke explained that these plumbing issues concerned the original cast iron pipes that ran within the walls between the units. Several of these pipes had deteriorated and burst causing a number of active leaks. Because the cast iron pipes were not located inside the individual units, the Association considered them "common elements" and assumed the repair/replacement costs as an Association responsibility. None of the special assessment funds, however, were designated for repairs to Petitioners' unit or to pipes inside any other unit. To conclude, Mr. Meuschke steadfastly refuted Petitioners' allegation that the Association's decision regarding Petitioners' request for plumbing repairs was unfair. He specifically rejected Petitioners' claim that the Association took any action against Petitioners, or denied them services, based on their national origin. On the contrary, Mr. Meuschke asserted that the Association would have made the same decision regarding any unit owners' request to replace the copper pipes above the water heater located inside the boundaries of their condominium. Mr. Meuschke maintained that the Association's common and consistent practice has been to only pay to repair plumbing issues located in the Sandy Cove "common elements." Mr. Meuschke maintained that the Association has never paid to replace pipes or repair plumbing problems that have occurred inside an individual unit. Instead, the unit owner has always been responsible for that repair or maintenance activity. Petitioners offered no evidence to prove otherwise. Based on the competent substantial evidence in the record, the preponderance of the evidence does not establish that the Association discriminated against Petitioners based on their national origin. Accordingly, Petitioners failed to meet their burden of proving that the Association committed unlawful discrimination in violation of the FHA.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order determining that Respondent, Sandy Cove 3 Association, Inc., did not commit a discriminatory housing practice against Petitioners and dismissing their Petition for Relief. 4 See, e.g., Gooden v. Internal Rev. Serv., 679 Fed. Appx. 958, 966 (11th Cir. 2017)(“[G]eneral allegations, based on mere speculation and hunches, in no way establish that any alleged [discriminatory activity] was race-, gender-, or disability based.”). DONE AND ENTERED this 10th day of February, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Charles Abraham Andrea Abraham Post Office Box 162 Highland, Maryland 20777 Brett Stolson Argus Property Management, Inc. 2477 Stickney Point Road, Suite 118A Sarasota, Florida 34231 Robert Braland 4413 Claybrooke Drive Lothian, Maryland 20711 S J. BRUCE CULPEPPER Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 2021. Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Paul Edward Olah, Esquire Law Offices of Wells Olah, P.A. 1800 Second Street, Suite 808 Sarasota, Florida 34236 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399
The Issue The issue in the case is whether the Petitioner is entitled to variances from the requirements of Rule 40D-0.27(2), Florida Administrative Code.
Findings Of Fact William E. Klein (Petitioner) owns two water wells, both in Tampa, Florida. Each water well serves three rental units which are also owned by the Petitioner. One well is located at 302 East North Bay Street. The second well is located at 4113 North Suwanee Street. Each water well is classified as a "limited use community public water system" as defined by Rule 10D-4.024(13)(b), Florida Administrative Code. The wells have been in existence for perhaps as long as eighty years. As of January 1, 1993, limited use community public water system wells must obtain permits to operate. Permits are issued by the Department of Health and Rehabilitative Services. The relevant permit requirements include water testing, submission of an application and a site plan, and payment of a fee. By February 23, 1996, the Department was aware of the Petitioner's wells and had provided notice of the permit requirements to the Petitioner. The Petitioner has met the water testing requirements, but has not submitted applications, site plans, or applicable fees related to these two wells. On May 30, 1996, the Petitioner filed applications for variances, seeks to be excused from submitting the applications, site plans and fees. On June 3, 1996, the Department denied the Petitioner's requests for variances. As grounds for the variance requests, the Petitioner cites financial hardship which will be imposed by payment of the fees. According to the stipulation filed by the parties, the application fee for each well is $110. Of the fee, $75 is retained by the state and $35 is retained by Hillsborough County, where the Petitioner's wells are located. The evidence fails to establish that the Petitioner is entitled to the requested variances. The evidence fails to establish that there are any costs related to submission of site plans. The Petitioner may prepare and submit site plans without assistance. The evidence fails to establish that there are any costs related to submission of a completed applications for permits. The evidence fails to establish that the total fee of $220 related to the issuance of well permits for six rental units will cause a financial hardship for the Petitioner. At most, the evidence indicates that the payment of the fee may reduce the Petitioner's profit from the rental units.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Health and Rehabilitative Services enter a Final Order denying the Petitioner's requests for the variances at issue in this case. DONE and ENTERED this 18th day of November, 1996, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 18th day of November, 1996. COPIES FURNISHED: Gregory D. Venz, Agency Clerk Department of Health and Rehabilitative Services 1317 Winewood Boulevard Building 2, Room 204X Tallahassee, Florida 32399-0700 Richard Doran, General Counsel Department of Health and Rehabilitative Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700 William E. Klein, Pro Se Thomas Lewis, Representative 8716 Ruth Place Tampa, Florida 33604 Raymond R. Deckert, Esquire Department of Health and Rehabilitative Services 4000 West Martin Luther King Jr., Boulevard Tampa, Florida 33614
Findings Of Fact On October 15, 1982, Hal Thomas Reid Associates applied for a septic tank permit to serve a 16-room motel. On February 2, 1983, this application was amended to a 5,800 gallon septic tank to serve a 32-unit condominium and office. The lot on which this drain field is to be located is 70 feet by 100 feet. When the application was filed, the lot was inspected by the Citrus County Health Department. The elevation of the land averaged 2.5 to 2.9 feet above mean sea level. The 10-year flood plane in this area is 4.9 feet. Occasional high tides inundate this area; however, the water drains off rapidly and no one testified that water ever remained standing as long as seven consecutive days. Usually the water drains off in less than 24 hours. On March 1, 1983, an extremely high tide flooded this area and roads in the vicinity to a depth of approximately one foot. This water remained on the site less than 24 hours. The site is not located adjacent to state waters, is not an area designated as wetlands, and is without the dredge and fill permitting jurisdiction of the United States Army Corps of Engineers and the Florida Department of Environmental Regulation (Exhibits 20 and 21). By adding five feet of fill to the site, the bottom of the gravel below the drain pipes will be above the 10-year flood plane. The drain field capacity is adequate to handle the flow from 33 bathrooms of residential units. In approving this permit, the Citrus County Health Department used the 150 gallons per day discharge for residential units rather than the 100 gallons per day discharge from a motel unit. The water table at this location is two feet above mean sea level. This is determined by the elevation reached at high tides for 14 consecutive days. As a condition to Citrus County withdrawing as an intervenor in these proceedings, Applicant agrees: To revegetate and restore any alleged wetlands affected by the permit to a like or similar condition; To install three shallow draft monitor wells around the drain field towards the wetlands area adjacent to the site and towards Woods 'n Waters subdivision, establish an existing level of bacteria count prior to the activation of the septic tank, and to monitor said wells through the Citrus County Health Department on a quarterly basis; and In the event any monitor wells shall test at an unsatisfactory level, Applicant will forthwith correct this condition to the satis- faction of the Citrus County Health Department. This application meets all of the code requirements of Chapter 10D-6, Florida Administrative Code.
The Issue Whether Respondent's permit for disposal of septic tank sludge should be revoked, as set forth in letter of the Volusia County Health Department, dated February 15, 1979. This case was originally set for hearing on June 21, 1979, pursuant to Notice of Hearing, dated March 30, 1979. On June 20, Respondent Philip G. Koan orally advised the Hearing Officer that he wished to withdraw his request for hearing. He was advised by the Hearing Officer to submit a written withdrawal of the petition and that the scheduled hearing would be cancelled pending receipt. On June 21, Respondent orally advised the Hearing Officer that he had changed his mind after reflection and now desired that the hearing be rescheduled. Since no written withdrawal of the petition or voluntary dismissal had been filed, the case was renoticed for hearing to be held on September 10, 1979. At the commencement of the hearing on that date, Petitioner moved to dismiss the case for lack of jurisdiction claiming that the petition had been dismissed by Respondent by his oral communication to the Hearing Officer on June The motion was denied because the proceeding had never been formally terminated by action of the Respondent or the Hearing Officer.
Findings Of Fact On October 5, 1978, Respondent Koan Septic Tank, Inc., Deland, Florida, submitted an application to the Volusia County Health Department for a permit to operate a septic tank cleaning service and temporary privy service. The application reflected the equipment which the applicant intended to use for the operation. Petitioner's application form contained a block entitled "Method and Place of Disposal." The applicant inserted the words "Smith Farm and Greens Dairy Grove" on the form. On November 7, 1978, Larry Herman, a sanitation aide for the County Health Department, performed an inspection of Respondent's facilities and equipment, and prepared a report on a mimeographed form headed "Septic Tanks and Privy Pump Truck Inspection." This form had a block entitled "Method and Place of Disposal." The inspector entered the words "Smith Farm - Greens Diary (sic), dumped & tilled." Although Herman testified that he had made no special inquiry at the time of his inspection as to the intended method of sludge disposal, he was aware that Respondent's customary method at its Smith Farm location was to "bury" the sludge into the ground by spreading and mechanical tilling. However, he recalled having conversations with Respondent's owner, Philip G. Koan, concerning disposal of sludge by the action of worms, prior to and after his inspection. On the other hand, both Koan and another officer of the corporation testified that Koan advised Herman at the time of the latter's inspection that the worm method of disposal would be used at the Greens Dairy location and that he expressed no objections. It is found that Herman was advised of Respondent's proposed method of disposal at the time of the inspection; however, he was not authorized to approve or issue permits. (Testimony of Herman, Gnann, Koan, Page, Petitioner's Exhibits 1-2) On November 7, 1978, the Volusia County Health Department issued a permit authorizing Respondent to operate its establishment. The permit reflected an expiration date of September 30, 1979, and provided that violation of any applicable health law would revoke the permit. No conditions were attached to the permit, nor did it indicate any required method of sludge disposal. (Testimony of Page, Petitioner's Exhibit 3) Respondent has been in the business of manufacturing, installing and servicing septic tanks for approximately eighteen years. In addition, Koan conducted a business involving the sale of worms. In the fall of 1978, he had approximately 12,000 pounds worms on hand. He had conducted various experiments at his business premises utilizing worms to dispose of manure and septic tank sludge. He found that the worms would eat the sludge material and excrete the same, resulting in worm "castings" or material which resembles potting soil with no residual odor. He had also placed worms in clogged septic tank drain fields and found that they later became unclogged, thus resulting in his conclusion that worms had disposed of the septic tank material in the tank. He further discovered that odors associated with septic tank sludge dissipated in a very short time when worms were present in the material, and observed that one pound of worms would "digest" or dispose of one pound of sludge in approximately twenty-four hours. Therefore, prior to receiving the county permit, he deposited the 12,000 pounds of worms in a trench located at the Greens Dairy location. After receiving the permit, Respondent dumped septic tank sludge in the trench approximately three times a week. The trench was about four feet wide, one foot deep, and 200 feet long. A screen was placed over the top of the ditch. However, it did not prevent access to files. (Testimony of Koan, Warnock, Petitioner's Exhibits 8-9) On December 12, 978, the owner of a skating rink adjacent to Respondent's Green Dairy property complained to the County Health Department concerning the presence of odors and flies at her establishment which had been the subject of customer complaints. A county sanitarian inspected the sludge operation on that date and found that there was some odor and a few flies in the immediate vicinity, but no fly larvae was observed. The ditch was full of sludge at the time. Some spillage has occurred in the driveway on the property. The location is approximately two to three hundred feet from the rear of the skating rink. A further inspection by the county Director of the Environmental Health Section was made on December 27. As a result, he wrote Respondent on December 28 that, although the inspection showed that flies and odors were minimal at the time, he could foresee an escalation of the same during certain periods, together with increased complaints from local businessmen. The letter further stated that the use of septic tank sludge for enriching a "worm bed" was in violation of Chapter 10D6.29, Florida Administrative Code, and Chapter 386 Florida Statutes, and was a sanitary nuisance which must be abated. A further complaint in January, 1979, followed by another county inspection revealed essentially the same conditions that existed at the time of the prior inspection, and prompted a second letter from the Environmental Health Section director to Respondent on January 31, 1979, wherein he was advised to cease dumping septic tank sludge at the Greens Dairy location within fourteen days and commence using the county sanitary landfill for such purposes. As a result of this letter, Respondent stopped dumping at the location on or about February 2. On February 15, another county letter was sent to Respondent which advised that its permit for disposal of septic tank sludge was revoked, subject to a request for hearing, as being in violation of Chapter 10D6.29(1) and (3)(c), Florida Administrative Code, and Chapter 386.041(1)(e), Florida Statutes. The stated grounds for proposed revocation were that Respondent was employing an unsatisfactory and unacceptable method and place for disposal of waste, and was maintaining a condition capable of breeding flies, mosquitoes and other insects capable of transmitting diseases. The letter further stated that Respondent was not tilling the sludge as had been stated on the permit application and that the potential for breeding flies was evident due to concentration and lack of covering with soil. (Testimony of Tyndall, Van Ulzer, Page, Camp, Koan, Petitioner's Exhibits 4-7) During the approximate three-month period from November 1978 through January 1979 when Respondent was dumping sludge, a strong and distinctive odor and an unusually large number of flies were experienced on the skating rink premises nearby. After the dumping stopped in early February, both problems disappeared. However, other odors incident to the presence of hogs and chickens at farms in the area also produced a noxious odor in and around the skating rink. The odor produced by the dumping of sludge dissipates rapidly after dumping. The absence of fly larvae in and around the ditch shows that flies were not breeding there during the period of dumping operations, but does not rule out the potential for such breeding in the future. (Testimony of Munshower, Tyndall, Coffin, Branton, Tontone, Warnock, Hunt, Stipulation) The Volusia County Health Department issues permits involving the disposal of sludge only when a treatment method of burial, incineration, or sanitary landfill is used in the operation, as prescribed by Respondent's Rule 10D-6.29, Florida Administrative Code. However, long-standing policy permits disposal by mechanical tilling of the sludge into soil as a "modified" method of burial. This method cuts the sludge with a disc and harrow and mixes it into the soil to a depth of approximately four inches. It also produces a temporary odor when the sludge is first spread on the soil. The county has no policies concerning the use of worms to dispose of sludge and does not consider it to be an acceptable method of disposal. The County Health Department has not conducted any scientific tests to determine the presence of pathogens in soil which has been mechanically tilled with sludge. (Testimony of Page) When sludge is placed over a "worm bed" and has settled, the material begins moving as the worms eat the sludge. The residue of the digestive process is sold as a soil conditioner which meets State Department of Agriculture requirements and which contains plant nutrients. Earth worms multiply rapidly when feeding on sludge. Respondent had approximately 50,000 pounds of worms in its trench when it ceased operations in February 1979. This method of sludge disposal has not been accepted generally by health authorities as a recognized and acceptable procedure. (Testimony of Koan, Warnock, Hunt, Tontone, Nemeyer, supplemented by Respondent's Exhibit 1)
Recommendation That Respondent's Permit No. 18362 be permitted to remain in effect until its expiration date provided that it disposes of sludge and/or contents from septic tanks in an acceptable method, as provided in Rule 10D-6.29, F.A.C. DONE AND ENTERED this 26th day of September, 1979, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 904/488-9675 COPIES FURNISHED: Robert Eisenberg, Esquire Department of HRS District IV Counsel 5920 Arlington Expressway Post Office Box 2050 Jacksonville, Florida Craig James, Esquire Post Office Drawer DD Deland, Florida 32720 Department of HRS Attn: Eric J. Haugdahl 1317 Winewood Boulevard Tallahassee, Florida 32301
