Findings Of Fact At all times pertinent to the allegations herein, the Petitioner, Pinellas County Construction Licensing Board, (Board), was the Pinellas County agency responsible for the certification and regulation of construction specialties. Respondent was certified by the Board as an irrigation systems specialty contractor under license C-5997 in force at the time. Respondent was the qualifying contractor for Sun City Lawn Irrigation. On or about May 17, 1994, Respondent contracted with William J. Schneider, who resided at 5661 25th Avenue North in St. Petersburg, to install a lawn irrigation system in Mr. Schneider's front lawn. The automatic system was to incorporate 2 zones and was, according to the contract and the testimony of Mr. Schneider, to be connected to Schneider's then existing 1/2 horsepower electric pump which drew water from several wells on his property. Mr. Schneider claims there are four wells. No evidence was introduced to contradict that. On the day the system was installed, Mr. Schneider was not at home. Respondent's employees performed a test of the water capacity on Mr. Schneider's property. At first, the wells produced 10 gpm, which was adequate for the system, but after a few minutes of drawdown, they found that the wells were producing only 4 gpm, along with some air. At that time Mr. Freestone, Respondent's sales manager, spoke with Mrs. Schneider about the situation, advising her there were two options open. One was to install a larger pump and the second was to connect the system to the city water supply. Mrs. Schneider returned to the house, presumably to call Mr. Schneider to get his decision on the matter. He claims she did not reach him. Respondent claims that she thereafter returned with directions to install a water line for connection to the city system. This is completely contrary to what Mr. Schneider had wanted and to what is included in the contract. Mr. Schneider claims he did not want to connect to city water because of the added expense of doing so, and he claims he made this very clear to Respondent's employees at the beginning and at all times thereafter. In any case, the system was installed and was, somehow, connected to the city water system near the place where the water line enters the house. In addition, no backflow preventer was installed to insure against contamination getting into the water system as is required by the building code. Most, if not all, the work on this project was completed by Respondent's son and employee, Scott, who was not present at the hearing. Respondent attempted to introduce an unsworn written statement by Scott Bosworth, but it was not accepted. Scott advised Mr. Schneider, when he returned from work that day, that they had been unable to use his pump and wells. Nonetheless, Mr. Schneider paid Respondent in full for the work for which he had contracted, except for a supplemental charge in the amount of $190.95 for the tie in to the city water and the valves and other items connected therewith. Mr. Schneider claims that he made several calls to Respondent's office in an effort to correct the situation but was unable to reach anyone who could give him satisfaction. However, the evidence indicates that on at least one occasion, Mr. Schneider got through and was called back by Mr. Freestone with whom he discussed the situation and the additional charges. He was subsequently advised by counsel that he did not have to pay the additional sum and did not do so. Some time thereafter, Mr. Schneider was advised by the city that he would be fined because of the illegal installation. He then contacted another irrigation company, run by Mr. Williams, who examined the system and determined that the irrigation system installed by Respondent had been connected to the city water system and that no backflow preventer had been installed. A check with the city's building department revealed that no permit had been procured for this installation. Respondent's license to install irrigation systems does not include authority to connect that system with the public water system. That procedure must be done by a licensed plumber. Respondent and Mr. Freestone, the only individuals in the company who had the authority to arrange with a plumber to make the actual hook up to the city system, both deny that any arrangement was made by them to have the system connected to the city water system. Mr. Schneider arrived home on the day in question to find only Respondent's son, Scott, at work on the project. Scott indicated it would be necessary to move two bushes near the house to facilitate connection of the system with the water supply. Mr. Schneider contracted with Scott to move the bushes and remove them from the premises. Scott moved them but failed to remove them. In light of the fact that Scott was working on the system at the time Mr. Schneider arrived home, and the system was found to be connected to the city system thereafter without anyone else touching it, it must be concluded that the connection was made him. Respondent admits he did not come to the property in question while the system was being installed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be issued by the Board suspending the license of the Respondent for a period of six months with provision for withholding execution of the suspension for a period of one year conditioned upon such criteria as may be deemed appropriate by the Board. RECOMMENDED this 31st day of March, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 31st day of March, 1995. COPIES FURNISHED: William J. Owens Executive Director Pinellas County Construction Licensing Board 11701 Belcher Road Largo, Florida 34643-5116 Larry J. Bosworth 8901 14th Street North St. Petersburg, Florida 33716
The Issue Is Respondent responsible for alterations to a dam over which Petitioner has jurisdiction? Has Respondent performed these alterations without the benefit of a permit issued by Petitioner? Should Respondent be required to make changes to that structure?
Findings Of Fact One and one-half miles east of Crestview, Florida, which is in Okaloosa County, a dam has been constructed. The dam construction has formed an impoundment area thereby altering the course of a tributary to the Shoal River, an Outstanding Florida Water Body. Respondent contributed to the construction which formed the dam. He did so without benefit of a permit from Petitioner. No other person has obtained a permit from Petitioner for the dam construction. Respondent is a resident of Crestview, Florida. At present the impoundment of water created by the dam is more that 10 feet but less than 25 feet in height from the natural bed of the water course at the down stream tow of the barrier formed by the dam. The work which has been done on the dam by the Respondent is based upon his belief that he is entitled to an easement at the stream crossing. The dam impoundment has no agricultural purpose. John Rittenour claims ownership of the land at the stream crossing and takes issue with Respondent's belief that Respondent has an easement for that crossing. Mr. Rittenour did not authorize Respondent to do the work at the subject site nor was Mr. Rittenour responsible for performing work at the subject site independent of Respondent's activities. There is no dispute concerning Respondent's ownership of property in the vicinity of the stream crossing. Prior to March, 1990, Respondent had made certain changes at the subject site to maintain a vehicular crossing. The pre-March, 1990 changes were to a structure which used a culvert to allow the water in the stream to flow through the crossing. In addition Respondent was trying to create a water impoundment area behind that structure prior to March 1990. The nature of these activities was not such that the Petitioner had a basis for imposing the regulatory requirement that Respondent obtain a permit to conduct the alterations at the subject site. In March, 1990, the dam at the subject site breached. As a consequence, other structures down stream also failed. Those structures belonged to Mr. Rittenour. The breach created conditions unsafe to the public. In April, 1990, following the breach, Respondent reestablished the stream crossing. The work which he did created the present dam height which had been described. The stream crossing provides local residents with access to their homes. There is another route to those homes, but its future availability is in question. On July 30, 1993, Jerry Sheppard, Senior Field Representative for Petitioner, inspected the subject site. The findings that he made at that time are set forth in Petitioner's Exhibit No. 3. That Exhibit roughly describes the structure in question. In particular, it references the fact that the dam height is approximately 10.5 feet as observed through the form of measurement already described. The dam is 13 to 15 feet in depth. It's width is approximately 200 feet. It has horizontal culvert pipes to allow water flow through the dam. One pipe is 18 inches in circumference. The other pipe is 36 inches in circumference. The inspection which Mr. Sheppard made on July 30, 1993, revealed that the changes to the structure following the breach in March, 1990, had increased the water impoundment area as to the landward extent of that water. Mr. Sheppard was concerned with safety problems associated with the dam which he observed on July 30, 1993. He found the overall construction to be of poor quality. There were problems with vertical slopes on the dam faces, trees were observed to be on the slopes and the aggregate material used for construction was sandy in composition. All these conditions contributed to the substandard construction. Mr. Sheppard was also concerned about a change in the surface water volume that was created with the increase in the impoundment area. This could cause greater safety hazards in a future dam breach than had been occasioned by the March 1990 breach. The March experience released a lesser volume of water by comparison to the expected volume of water with a future breach. Lance Laird, P.E., had accompanied Mr. Sheppard on the inspection at the subject site that was conducted on July 30, 1993. Mr. Laird is an expert in agricultural engineering and design of small dams. Mr. Laird is employed by Petitioner and was in its employ in 1993. Mr. Laird's observations concerning the dam that were made on July 30, 1993 are memorialized in a document which Mr. Laird prepared on August 2, 1993. That document is Petitioner's Exhibit No. 5. Pertinent to this case, Mr. Laird notes that the method of establishing the dam height was done by shooting the dam centerline at 50 foot intervals and the elevation of the tow by examining the elevation of the normal ground at station 1+75. Specifically, the dam crest was found to be at a height of 10.48 feet to 11.04 feet. Therefore, it was established that the maximum impounding capacity would be at 11.04 feet of dam height. On September 7, 1993, Mr. Sheppard spoke with the Respondent. Respondent told Mr. Sheppard that the Respondent had an easement across the stream to allow access to property away from the stream. For that reason, Respondent told Mr. Sheppard that Respondent believed he could make alterations or repairs to the structure at the stream crossing that would be acceptable. Respondent also told Mr. Sheppard that the stream crossing structure was there before Respondent purchased property in the area and that Respondent had been responsible for making the repairs which are under consideration in this case. On this occasion Respondent told Mr. Sheppard that there were three or four mobile homes further down the lane from the stream crossing, in addition to one house site located in the area of the stream crossing. Respondent's Exhibit No. 4 is a memorandum concerning the telephone conversation which was conducted between Mr. Sheppard and the Respondent on September 7, 1993. As described in the August 2, 1993 memorandum which reflected the findings on July 30, 1993, the road crossing was over a dam found at the perennial stream which goes under the roadway formed by the dam. As Mr. Laird observed, the effect of the two culverts is to back the water up to within 3 feet of the dam crest. A plywood stop-log is placed over the entrance of the 36 inch pipe that serves as a principal spillway. There is a plywood plug for the inch pipe; however, it was not installed on July 30, 1993. On that date Messrs. Sheppard and Laird noted a washed out area that serves as the emergency spillway that was approximately 20 inches wide. When Mr. Laird made his inspection on July 30, 1993, he was of the opinion that the dam would not meet current engineering standards for construction of an earthen impoundment dam. In particular, he believed that the utilization of horizontal pipes and the history of failure of the structure were indications that the dam did not have the hydraulic capacity to meet the design storms that are anticipated for this area. The location of the 36 inch pipe was such that it was canterlevered out from the road fill by about 5 feet. The side slopes were from steep to vertical on the back slope. The upstream slopes were not found to be as steep. In the August 2, 1993 report Mr. Laird expressed the opinion that the facility/dam needed to be modified to meet hydrological/hydraulic requirements and other construction standards for dams used as access roads. Mr. Laird specifically noted that a further dam breach would have adverse affect on Mr. Rittenour's property, and ponds which were down stream and possibly cause the failure of structures that Mr. Rittenour had put in place, all leading to the possibility of the release of sediments into the Shoal River. On November 3, 1994, Mr. Laird returned to the subject site for further inspection. He rendered a report of that inspection on November 4, 1994. That report is found as Petitioner's Exhibit No. 7. In the course of the November 3, 1994 inspection Mr. Laird observed that the appearance of the dam was similar to that on July 30, 1993. The principal difference was that logs and debris were now present in the inlet and outlet ends of both of the culverts/pipes. Some of the logs were fairly large. One log was estimated to be 12 to 14 inches in diameter and 20 to 25 feet long. This log was at the outfall of the 36 inch pipe. The consequence of this debris in the areas of the two pipes was to restrict the hydraulic capacity of the system. This was made more significant because the horizontal pipes had inherent limitations on their hydraulic capacity. Under the circumstances it was imperative that the debris be removed. On this visit Mr. Laird also noted that the pipes were uncoated and rusting, thus limiting their life span. On this visit Mr. Laird noted that the emergency spillway had now become filled with sediments that had eroded from the road leading down the hillside to the dam site. Mr. Laird expressed a concern about the method of construction and the material used in that construction and the susceptibility of those fill materials to erode. In particular, Mr. Laird observed that the material was sandy and for that reason susceptible to erosion. Finally, Mr. Laird noted upon this visit that the sizing of the culverts had not been proven to be adequate when considering their intended function in the dam. On November 15, 1993, Messrs. Morgan, Laird, Sheppard and Mitchell May met with the Respondent and his attorney at the subject site. The outcome of that meeting is memorialized in the memorandum from Mr. Morgan dated November 16, 1993, a copy of which is Petitioner's Exhibit No. 2 admitted into evidence. In the November 15, 1993 meeting, Respondent and his attorney were told about the various concerns which the Petitioner had about this dam consistent with the prior observations made by Petitioner's staff as described in this recommended order. Discussions were held concerning the means of correcting the problems. At this time Respondent indicated that he had been informed, by someone who was not identified, that the alternate route for residents in the area to gain access to their homes was being closed and that the stream crossing would then form the only means of ingress and egress to those properties. Respondent explained that he had spent $3,000 in improving the dam. Further he made mention that he had originally sold 12.5 acres of property around the impoundment created by the dam and no longer had any interest in the property. Although no resolution was reached concerning the proper disposition of the problem created by the dam, Mr. Morgan noted in his November 16, 1993 memorandum that this safety hazard that had resulted from the impoundment of water at the dam site by virtue of the deficiencies in the dam construction must be corrected if the crossing was to be used as the sole access route into the residences which have been described. On November 19, 1993, Mr. Laird prepared a memorandum in response to the request by Respondent's counsel through correspondence dated November 8, 1993, concerning the method of establishing Petitioner's jurisdiction over the dam pursuant to the dam height. The November 19, 1993 memorandum coincides with prior observations about the method to be employed in establishing that jurisdiction which are set forth in this recommended order. A copy of the memorandum is Petitioner's Exhibit No. 6. Petitioner's Exhibit No. 6 has a rough sketch and other calculations in support of the determination of the dam height. Concerning Mr. Laird's testimony at hearing, he reiterated that the establishment of the dam height was through a measurement of the down stream site in which the elevation difference between the impounded water and down stream elevation at the stream bed were critical factors in determining the potential hazard should there be a further breach of the dam. As established by Mr. Laird, proper methods of dam construction must be carried out in accordance with accepted engineering practices. In trying to determine acceptable engineering practices Mr. Laird relies on his experience as a professional engineer and expert in the design of small dams together a number of publications, to include publications from the Soil Conservation Services on design of dams, the U.S. Corps of Engineers and the Bureau of Land Reclamation. As Mr. Laird described at hearing, the dam design is deficient in that it is not made of suitable materials. Those materials are sandy. This allows water to migrate through the dam and to saturate the dam, thereby making the dam more prone to failure. The slopes on the back side of the dame are so steep that they cannot be maintained. The dam is eroding and two gullies have formed extending up to the crest of the dam. There is a third pipe in the dam face which is 18 inches in diameter and it is rusting. This pipe was there before the dam breach in March, 1990. It was left in place when repairs were made following that breach. Its existence could increase the flow of water in the event of a failure of the dam or if this third pipe collapsed it could form a void in the dam face. The principal spillway for the present dam is created by the use of the newer pipes that were placed horizontally. The placement of those two pipes creates limited capacity for flow-through and their rusty condition creates limitations on the effective life of those pipes. Those pipes could not be relied upon to handle storm events. In anticipation of a storm event, the pipes are placed so high on the dam face that they could not be used to evacuate water to meet the contingency of an upcoming storm or flood event. This arrangement unlike a head gate or control device below the water surface, which would allow the evacuation of water to meet the upcoming contingency of a storm or flood event, is without utility. The placement of the present pipes at the dam site is so high that they cannot be relied upon to dewater in anticipation of such a contingency. As has been verified by observations of these pipes, horizontal pipes are prone to be clogged by debris. An appropriate spillway would have a means of protecting the spillway against clogging. The emergency spillway is inadequate in that it continues to be filled in from erosion of the hill above the emergency spillway. On the dam surface, trees, weeds and other debris make it difficult for someone to perform an inspection of the dam condition, which is a necessary activity. Those same materials can penetrate the dam surface and cause erosion or in some instances if a tree were to fall and break the surface of the dam could cause further erosion. In summary, the dam does not meet generally accepted engineering standards for design nor comply with the requirements of safety for small dams as established by the opinion of Mr. Laird. The dam poses a safety hazard to people using the dam to cross the stream and for the down stream landowners should the dam breach as it did in March 1990. Mr. Rittenour would not be opposed to having a stream crossing at the subject site to allow access to nearby properties. He is opposed to a dam at the site with its associated impoundment. Under the circumstances the appropriate means of addressing the problem of the dam would be to remove the dam and its associated impoundment of water and replace that structure with a crossing which would allow vehicular traffic. This disposition is consistent with the order for corrective action. This would involve the safe removal of water behind the present dam structure and reduce the risk of sudden release of an increased volume of water from a future breach when contrasted to the 1990 breach. In this solution the spillway pipes would be lowered to an elevation at the natural level of the stream, thus the impoundment would be ended with the new structure which would allow vehicular traffic to cross the stream. A one to two foot fill would need to be placed over the pipes to maintain the crossing as a roadway. This would lower the crest of the structure to an elevation just above the stream bed. During the course of any construction, sediment barriers would need to be placed downstream and in areas where the construction was ongoing to prevent problems with sedimentation. Grass would need to be placed on any disturbed areas and on the slopes of the new structure. Alternatively, the entire structure could be removed with proper controls being placed to protect against sedimentation and erosion in the area in question. Maintenance of the structure as a dam with its associated impoundment is not contemplated by this administrative action and would only be appropriate in the event that the dispute over the ownership of this site is resolved by informal settlement between Respondent and Mr. Rittenour or through litigation.
Recommendation Based upon consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That a final order be entered which declares the dam and impoundment to be a public nuisance created by Respondent and informs the Respondent of the necessity to obtain a permit before removing the dam and impoundment and reestablishing the roadway at stream bed level. DONE and ENTERED this 12th day of December, 1994, 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 12th day of December, 1994. APPENDIX Petitioner's proposed facts are subordinate to the facts found in the recommended order. COPIES FURNISHED: Gary J. Anton, Esquire Stowell, Anton and Kraemer Post Office Box 11059 Tallahassee, FL 32302 H. S. Harrell 3153 Alpin Road Crestview, FL 32536 Douglas Barr, Executive Director Northwest Water Management District Route One, Box 3100 Havana, FL 32333
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 is whether Respondent violated Sections 455.227(1)(a) and 471.033(1)(g), Florida Statutes.
Findings Of Fact Mr. Maples is a licensed professional engineer in the State of Florida. He holds license no. PE 10214, and he practices engineering in the Panama City, Florida, area. During all times pertinent Mr. Maples held an active license and practiced pursuant to it. FEMC is charged with providing administrative, investigative, and prosecutorial services to the Board pursuant to Section 471.038, Florida Statutes. The Board exists pursuant to Section 471.007, Florida Statutes, and is authorized to discipline engineers under its authority by Section 455.225, Florida Statutes. Mr. Maples signed and sealed three pages of sprinkler system plans for the Wellness Center at Gulf Coast Community College (Wellness Center), located in Panama City, Florida. These plans were admitted as Petitioner's Exhibit No. 2. No date can be observed on the seal on Petitioner's Exhibit No. 2. It either is illegible or a date was never placed upon it. Hydraulic calculations, which use drawings as a source document, and which appear to coincide with Petitioner's Exhibit No. 2, were dated November 15, 2001. It is deduced, therefore, that Petitioner's Exhibit No. 2 was drawn on or about November 15, 2001. Petitioner filed an Administrative Complaint against Respondent on April 1, 2005. The Administrative Complaint alleged that the plans and calculations for the Wellness Center demonstrated negligence in the practice of engineering. That charge resulted in an final hearing conducted by Administrative Law Judge Stephen Dean on August 11, 2005. That case number was DOAH Case No. 05-2049PL. On October 13, 2005, Judge Dean recommended that the Complaint be dismissed. One of the allegations of negligence in 05-2049PL, related to a charge that inadequate water would be supplied to the hydraulically most demanding (HMD) area in the event of a fire. It was alleged, and proof was elicited, that a single 1 and 1/4-inch pipe traveling from a riser, across the men's shower area to the women's shower area, would be insufficient. This pipe is identified on Petitioner's Exhibit No. 2 as a line between Node 45 and Node 25. This pipe leads to a "T" intersection and further piping carries water, when activated, to the women's shower area. The matter of whether adequate water would be supplied to the HMD devolved into whether the plans called for one 61- foot long, 1 and 1/4-inch diameter pipe, or two 61-foot long, 1 and 1/4-inch diameter pipes. Because there was no pump provided on the drawings, and in fact there was no plan to install a pump, two 61-foot long, 1 and 1/4-inch diameter pipes were necessary to provide sufficient water in case of fire. As was illuminated in Case No. 05-2049PL, calculations were made, based on the drawings, in order to ensure that the HMD area will receive 1500 square feet of coverage per sprinkler head required by the contractor. The coverage required by the contractor exceeds that required by National Fire Protection Association-13 standards. HMD calculations are made at a point most remote from the source of water. The hydraulic calculations are produced through the use of a commercially produced computer program. Calculations from Case No. 05-2049PL became Petitioner's Exhibit No. 3 in this case. At the hearing in Case No. 05-2049PL, the allegation that the fire sprinkler plans signed and sealed by Mr. Maples would not provide adequate water pressure to the HMD area was rejected by Judge Dean. This is because Mr. Maples claimed that the plans, when viewed in light of the calculations, actually depicted two 61-foot long pipes, 1 and 1/4-inch and Judge Dean, while determining that the depiction was inadequate for that purpose, found in essence that adequate water would be provided to the HMD. Mr. Maples works closely with Chris Thomas, a sprinkler contractor whose license does not permit him to design a fire suppression system that consists of more than 49 heads. Their working arrangement is such that it would be expected that Mr. Thomas would understand Mr. Maples' drawings even if they were not as complete as they would be if the drawings were made for a contractor other than Mr. Thomas. In fact, Mr. Thomas participated in the production of the drawings signed and sealed by Mr. Maples. More than one set of drawings were used for the Wellness Center project. The project came under the jurisdiction of the Florida Department of Education. That agency approved the plans and the Florida State Fire Marshal approved the plans, although it is not certain that the plans those agencies approved were Petitioner's Exhibit No. 2. There were errors in the data entry on the hydraulic calculations. The building was completed prior to the time Case No. 05-2049PL was heard on August 11, 2005. Using the plans drawn by Mr. Maples, Mr. Thomas's foremen for the Wellness Center installed a single pipe between Node 45 and Node 25. On a weekend subsequent to the hearing in Case No. 05-2049PL, Mr. Thomas went to the Wellness Center and discovered that only one 61-foot long, 1 and 1/4-inch diameter pipe had been installed in the area represented to be between Node 45 and Node 25. Mr. Thomas immediately installed a second 61-foot long, 1 and 1/4-inch diameter pipe. Mr. Maples never went to the site and, accordingly, was unaware at the time he testified in Case No. 05-2049PL, that only one pipe had been installed. The Administrative Complaint lists five statements made by Mr. Maples in Case No. 05-2049PL that are alleged to express "an opinion publicly on an engineering subject without being informed as to the facts relating thereto." The five statements are further alleged to describe testimony that was, "untruthful, deceptive, or misleading in any professional statement or testimony." As noted above, the statements do not cite with particularity to the Transcript in Case No. 05-2049PL. The five statements read as follows: Respondent testified at the hearing that the line on the plans appearing as a single pipe, in fact, represented two pipes, 61 feet long with 1 1/4 inch diameters, running over the men's showers. Respondent testified at the hearing that the intent to install the sprinkler system with two pipes over the men's showers was obvious to anyone with experience in fire sprinkler systems. Respondent testified that he had signed and sealed revised plans showing a second parallel line over the men's showers. Respondent testified that the second 61 foot long 1 1/4 inch diameter pipe was represented in his calculations by a 3 foot length of pipe. Respondent testified that he used pipe lengths in the supporting calculations that match the pipe lengths shown in the plans. The actual testimony of Mr. Maples that addresses the pipes follows below. The initial questions were posed by Mr. Maples' attorney, Mr. Peters at page 260, line 13, of the Transcript in Case No. 05-2049PL. . Q. Okay. Now, the bulk of this allegation was that the hydraulically demanding design area did not have sufficient water pressure. Let's talk about that. Does the most hydraulically demanding area in this project show that it was receiving sufficient water pressure and distribution? A. Yes, the calculations show that specifically. Q. Do you have any concern that the most hydraulically demanding area is being under served? A. I do not. Q. Do the plans -- while they may not be perfect -- do they reasonably and competently show sufficient water pressure getting to the most hydraulically demanding area? A. Yes. (At this point there was a recess. Subsequently, the interrogation continued.) * * * Q. So do the plans and do the calculations show that there's sufficient water getting to the most challenging -- A. Yes, it does. Q. Okay. And let's take a minute to just make sure we review our nodal system. (At this point the Court interjected and moved the questioning away from the nodal system. The nodal system had been reviewed earlier in the hearing.) * * * Q. How is that? Okay. There is a segment called 20 to 25, which is an inch-and-a-quarter, 61 feet long. A. Correct. Q. And is there a parallel pipe in the same plane that runs along that same segment? A. Yes. Q. How can you tell that from this drawing and this set of calculations? A. I can tell on the calculations, because it tells me from 25 to 30, there's a connection. It tells me that 30 is connected to a three-inch main. Q. All right. Can you show these calculations and -- go over them with us and show us how you see that from these documents? A. Where is my set? Q. Right there. That's yours. THE COURT: Let me ask you this, sir. I see where it says that it's connected to that. But by [sic] my question is, it says that it's only 3-feet long. THE WITNESS: Three feet. Yes, sir. Let me -- can I address that? THE COURT: Surely. THE WITNESS: That is -- I will say an input error on it. But I want to tell you that it doesn't make any difference into the function of the system. BY MR. PETERS: Q. Tell us why not. A. It says 25 to 30 tells me there's a line, a connection to a 3-inch -- to node 30. What that tells me is that 3-inch line is feeding this row of sprinklers right here. Even though it says 3 feet, what it does, it has a short segment of line that just gushes water through there and makes those sprinklers flow a whole lot more than it needed. All right. When you put the right length, you put 61 feet in there, it comes back to just about what this line does, and it cuts the sprinkler flow down in those three areas. But it doesn't effect [sic] the function of the system because it doesn't effect [sic] the head loss in the main system where the pressure goes in the 3-inch line. Q. Head loss. Take a minute to try to explain that. A. The water -- it doesn't effect [sic] the pressure that the sprinklers are getting. What it does, when you put 61 feet in there, those three sprinklers that where it shows a 3-feet [sic] connection, it cuts them down from sprinkling a whole lot more water that's needed back to what's required. But as you go along this -- as you go along this line, go along this line where the 3-inch line is up here, at each place on the 3-inch line, there's a branch that goes towards the sprinklers. And each branch line is calculated separately. And the most demanding branch line is what puts the pressure that's required -- the flow -- required a 3-inch line. So what the 3-foot did, it made these three sprinklers right here flow considerably more, because it was just a little short piece of pipe and didn't have any friction loss going down through there. But it didn't effect [sic] -- it didn't effect [sic] the system head. Because that had less head loss than this one did. So when you put -- BY THE COURT: Q. Head loss is effected [sic] by, what? A. The length of pipe. Flow -- the length of pipe and size of pipe. Q. So will a longer piece of pipe -- assuming all the pipes are the same diameter -- does the pipe -- does the head loss on a short piece, is it greater than a long piece? A. Oh, no. Head loss on short pieces are considerably less than a long piece loss. The further it travels, the more pressure it loses. Q. Okay. And the pressure loss is transmitted, if you will, back to the 3-inch main? It effects [sic] the -- A. It effects [sic] what the flow comes from a 3-inch main. The 3-inch main effects [sic] it, because the three-inch main has the water supply, and has the pressure that's pushing it. Q. So the calculation for this system -- A. Yeah. Q.-- even though there's an error, the error is not a critical error? A. No, sir, it does not effect [sic] the function of the system. Q. It doesn't effect [sic] the function of the system. Thank you. A. What it does, it shows a little more water flow. THE COURT: Okay. DIRECT EXAMINATION (RESUMED) BY MR. PETERS: Q. So do the plans -- does it need a pump to get water to this area? A. No, sir. THE COURT: Now, let me ask you a follow up on that. THE WITNESS: All right. THE COURT: After Mr. Schmidt put his input in, and he was basically engaged to do exactly what he did, and that was, to go through the plans, catch any things that he was concerned about, and turn that back to the general contractor so the general contractor could go back to the people he needed to go back to? THE WITNESS: Yes. THE COURT: The general contractor came back to you, and you did whatever was necessary to generate the second set of plans that you-all put in, which is your Respondent's 1? MR. PETERS: Well, although Respondent's -- can I ask him a couple of questions? THE COURT: Sure. BY MR. PETERS: Q. Respondent's 1, this is the one that shows the second line, the parallel lines, right? A. Yes, if this is the plan we're looking at, it shows the second -- physically shows -- separated it so anybody could see. THE COURT: It also shows the point of service. THE WITNESS: Yes, it also shows a different point of service. It shows --bring it back up to the 5. BY MR. PETERS: Q. But these don't bear your signature. A. This particular set doesn't. We signed some, but I don't know where they are. That came from Gulf Coast College there. Q. All right. All right. In terms of what this case is directly about, then, do the plans provide pipes with adequate diameters for water pressure to provide protection for the area most remote from the main riser? A. Absolutely. Q. Do the plans provide -- do the plans need to show a pump to increase water pressure for the pipe design use? A. No. Q. And did you use pipe lengths in the supporting calculations that match the pipe lengths shown in the plans? A. Yes. (At this point Mr. Peters addresses another matter. Thereafter, Mr. Campbell proceeded with his cross-examination on Page 268, line 25.) * * * BY MR. CAMPBELL Q. Mr. Maples, there was no testimony about phantom pipes in that previous case, was there? A. No. Q. And you would admit that if there was no pipe underneath this Node 25 pipe, that this fork of six sprinkler heads would not adequately be served by 1-and-a-quarter inch diameter pipe; isn't that correct? A. That's correct, with a caveat. The NFPA 13 has a section that says on the density .1 in a 1500 square feet [sic] area, if it is - - if it says ceiling heights less than 20 feet, and this is 10, that you can reduce the area of sprinkling by 40 percent. So that means, if we did that, we would do 900 square feet, and that would be adequate. Now, if you went strictly by NFPA 13 -- Q. But that's not what you drew here. You drew or attempted to draw 1500 square feet. A. That's what we were told to do. But that's not in accordance with NFPA 13. NFPA 13 is less. And we agree NFPA 13 rules. Q. Now, you initially said this was your initial set of plans before you got any input such as being told to do 1500 square feet; is that correct? A. No, no, I was told to do that to start with. Q. All right. Was that part of the specifications on this job? A. I didn't see it. That was --according to the contractor, that was the specifications from Schmidt or whoever they were. Q. All right. Now, looking at the Respondent's 1 you did not sign. A. That one is not signed, but I know there were some that were signed. Q. Doesn't it appear that in these entries for pressures and static pressures, at some point, there was a whiteout and a reentry on the first page of the sheet? A. I can't tell you that. It may have been. Q. All right. Now, in fact, you have got two separate entries of written information where some of those are different. For instance, the required pressure is different -- A. Yes, because it's a different system. This is one that's not in contention right here. This was the gym. It's got the same static pressures and flows, but this is a different set of calculations of the gym. This has not been -- that was for the gymnasium, just to see if there was enough water. They asked us to do that. Q. Now, is the gymnasium a part of the Wellness Center? I thought that was what the Wellness Center was. A. Well, it's part of the Wellness, yes. But it's a separate part. But this has never been in contention. Q. Well, now, on the set of plans, your initial set of plans, there were no such double entries? A. No, they didn't ask for it then. Q. And this separate set of entries here for the gym -- well, this -– yeah -- is still used by the same riser and the same -- A. Yes, sir. Q. -- point of service. A. Yes, sir. Q. So there would be a separate set of calculations somewhere for the gym; is that what you're saying? A. My understanding, they asked Chris to do a set of calculations just so they would have plenty of water at the gym. That's never been in contention. Because one thing, it's located right at the riser. Q. Now, isn't it a fact, if someone never looked at the calculations but only looked at page 2 of Exhibit P-1, that where the node 25 seems to go up to node 45, there is only one line indicating one pipe? A. Depending on who looks at it. Anybody familiar with the calculations and sprinkler systems would know. Q. If they saw no calculations whatsoever, they just looked at this sheet -- A. I would assume so. If it was Joe Blow out there that knew nothing, he would have probably been, you know -- Q. He would think there's one pipe there. A. Who would do that? Q. So the basis of your statement that anyone that knew that there had to be more than one pipe is -- anyone with experience in fire protection systems would know you could not feed -- A. That's correct. Q. -- 6 heads 60 feet down from the 3-inch pipe on a one -- A. An inexperienced person, probably, correct. Q. Well, now, an experienced person would know automatically you couldn't feed it that way, right? You would have to have a second pipe; that's what you're saying? A. Well, you would have to go by the calculations. I didn't say that. Q. But if you didn't go by the calculations, if you didn't know anything about the calculations, would it be obvious to anyone with experience in fire protection sprinkler systems that at the end of 60 feet of a one-and-a-one-quarter-inch pipe you could not support 50 pounds pressure -- support 6 heads on 1 inch pipe? A. I wouldn't say that. Because if I was an experienced person in fire protection and installation, I would look at that, and I would look for something else to see if there was something else. Q. So that sheet of plans by itself is insufficient even with someone with experience in fire protection? A. No, I didn't say that. I said I would be looking for something else. Q. You said you would be looking for something else. A. He would know that there was something supporting it. And especially a licensed contractor that's licensed to design sprinklers, too. He would obviously know. The statement set forth in paragraph 7, of the Administrative Complaint does not appear in the Transcript in Case No. 05-2049PL. Mr. Maples said nothing about showers. He did not say that the single pipe represented two pipes each of which was 61 feet long. What he said was that the calculations told him that there is a parallel pipe in the same plan as the pipe shown on the drawings. He said he could tell that because the calculations showed from Node 25 to 30 a connection to a 3- inch main. Mr. Maples' testimony in this regard was confusing and difficult to follow but not untruthful, deceptive, or misleading. He was not giving fact testimony but was expressing an opinion. The statement set forth in paragraph 8, of the Administrative Complaint does not appear in the Transcript in Case No. 05-2049PL. Mr. Maples never said that the "intent to install the sprinkler system with two pipes over the men's showers was obvious to anyone with experience in fire sprinkler systems." What he said was, that, "Anybody familiar with the calculations and sprinkler systems would know." He further said that if someone familiar with sprinkler systems would know that two pipes were necessary looked at the plans without the calculations that he "assumed" they would know there should be two pipes. With regard to the statement set forth in paragraph 8, when offered to agree with the statement, ". . . an experienced person would know automatically you couldn't feed it that way, right? You would have to have a second pipe; that's what you are saying?" Mr. Maples declined. In response to the question he said, "Well, you would have to go by the calculations. I didn't say that." Mr. Maples' testimony in this regard was not untruthful, deceptive, or misleading. He was not giving fact testimony but was expressing an opinion. The statement alleged as paragraph 9 does not appear in the Transcript. With regard to other plans, he said in response to a question about Respondent's Exhibit No. 1 that, ". . . it shows the second--physically shows--separated so any body could see." He noted that Respondent's Exhibit No. 1 did not bear his signature but said that he had signed some similar plans. There is no proof in the record that his testimony in this regard was untruthful, deceptive, or misleading. The allegation in paragraph 10 of the Administrative Complaint was that Mr. Maples said that the second 61-foot long, 1 and 1/4-inch diameter pipe "was represented in his calculations by a 3 foot length of pipe." Mr. Maples never uttered that statement. In response to a question from Judge Dean, with regard to the 3-foot long pipe, Mr. Maples said, "That is--I will say an input error on it." Mr. Maples' testimony in this regard was confusing and difficult to follow but not untruthful, deceptive, or misleading. The allegation in paragraph 11 of the Administrative Complaint was that Mr. Maples said that, "he used pipe lengths in the supporting calculations that match the pipe lengths shown in the plans." This allegation approximates a verbatim statement made by Mr. Maples. However, he had earlier noted, and thus qualified the statement when he stated that there was input error. Mr. Maples' testimony in this regard was not untruthful, deceptive, or misleading. The allegations contained in the Administrative Complaint at paragraphs 7 and 8, were fairly alleged as the opinions of Mr. Maples. The opinions alleged are in essence that a person with experience in the fire suppression business could determine from the plans and calculations that a second 61-foot long, 1 and 1/4-inch pipe would run parallel to the pipe shown from Node 25 to 45. After an exhaustive study of the plans and calculations in this case, the Administrative Law Judge has not been able to conclude that the testimony as to the second pipe is borne out by Petitioner's Exhibit 2 or the calculations that are Petitioner's Exhibit 3. Moreover, Judge Dean found that the intent to have two pipes, "was not adequately shown in the original drawings." The foremen sent by Mr. Thomas to install the system did not conclude that two parallel pipes were required. They installed only one. An expert called by FEMC, Larry Simmons, an expert in professional engineering, stated unequivocally in this case that using Mr. Maples' drawings and calculations, he could not determine that a second 61-foot long, 1 and 1/4-inch pipe was called for by the plans. Judge Dean was not misled by Mr. Maples' testimony in Case No. 05-2049PL, with regard to the pipe. This was indicated by his acknowledgement in Finding of Fact 8 in his Recommended Order that the intent to have two pipes, "was not adequately shown in the original drawings." Judge Dean was not called as a witness so that he could reveal if he was misled based on the information that became available after the hearing in Case No. 05-2049PL. It was not proven by clear and convincing evidence that Mr. Maples was "untruthful, deceptive, or misleading in any professional statement or testimony." As will be discussed in detail below, Mr. Maples engaged in misconduct in the practice of engineering by expressing an opinion publicly on an engineering subject without being informed as to the facts relating thereto.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board find that Respondent Lester M. Maples did not violate Section 455.227(1)(a), Florida Statutes, but that he offered an opinion publicly on an engineering subject without being informed as to the facts relating thereto in violation of the prohibitions contained in Section 471.033(1)(g), Florida Statutes. It is further recommended that he be reprimanded, placed on two years' probation, and ordered to pay an administrative fine of $1,000. DONE AND ENTERED this 28th day of April, 2006, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 28th day of April, 2006. COPIES FURNISHED: Bruce Campbell, Esquire Florida Engineers Management Corporation 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267 Alvin L. Peters, Esquire Peters & Scoon 25 East 8th Street Panama City, Florida 32401 Paul J. Martin, Executive Director Board of Professional Engineers Department of Business and Professional Regulation 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267 Doug Sunshine, Esquire Vice President for Legal Affairs Florida Engineers Management Corporation 2507 Callaway Road Tallahassee, Florida 32303-5267 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue Are Petitioner’s outside water supply connections in violation of Rule 10D-26.120(2) and (3)(a), Florida Administrative Code, and, if so, should Petitioner be assessed an administrative fine for such violation?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Petitioner is permitted by the Department in accordance with Chapter 513, Florida Statutes, to operate the Peace River Campground, (Campground) which is a Recreational Vehicle (RV) Park (182 spaces) and a Mobile Home (MH) Park (15 spaces), annual permit number 14-010-97. The Campground’s water is supplied by a community public water utility company. Each RV and MH space has an outside water tap as required by Chapter 10D-26, Florida Administrative Code. Many of the outside water taps do not have a backflow or back-siphonage prevention device installed on them. On February 6, 1997, the Department conducted a routine inspection of the campground and determined that the campground was in violation of Rule 10D-26.120(2) and (3)(a), Florida Administrative Code, for failing to have the required backflow or back-siphonage prevention. The citation required Petitioner to install backflow or back-siphonage prevention by February 28, 1997, the next scheduled inspection date. On February 28, 1997, the Department conducted a follow-up inspection of the Campground’s water system and determined that the alleged violation had not been corrected. Petitioner disagreed with the Department’s determination that the Campground’s water system was not in compliance with Rule 10D-26.120(2) and (3)(a), Florida Administrative Code, for failing to have the Campground’s water system designed or constructed to prevent backflow or back-siphonage. On February 28, 1997, the Department issued a citation of violation (citation) to Petitioner alleging a violation of Rule 10D-26.120(2) and (3)(a), Florida Administrative Code, for failing to have the Campground’s water supply connection designed or constructed to prevent backflow or back-siphonage. The Campground’s water connections at each RV and MH site have water taps which are above ground and have standard water shut-off valves. The Campground’s water system has good water pressure of approximate 70-100 pounds pressure per square inch (psi). The Campground’s outside water taps are neither constructed nor designed to prevent backflow or back-siphonage in the event the water pressure drops to a point which would allow backflow or back-siphonage, such as if the water main feeding the Campground’s water system broke. If the water pressure in the Campground’s water system should drop allowing backflow or back-siphonage, hazardous material could possible be injected in the water system. Although there has never been a recorded incident of backflow or back-siphonage into the Campground’s water system, without the some type of backflow or back-siphonage preventer being installed there remains a potential for this to happen. The Campground’s outside water connections would not prevent backflow or back-siphonage under certain conditions and are not in compliance with Rule 10D-26.120(2) and (3)(a), Florida Administrative Code. There are six basic types of devices that are recognized by the Environmental Protection Agency and the engineering profession which prevent backflow and back-siphonage. These devices are: (a) air gaps; (b) barometric loops; (c) vacuum breakers--both atmospheric and pressure type; (d) double check with intermediate atmospheric vent; (e) double check valve assembler; and (f) reduced pressure principle devices. The Department does not mandate which device the Petitioner must install, only that a proper device be installed which will prevent backflow or back-siphonage. A hose bib vacuum breaker such as Department’s Exhibit 3 provide the minimum protection against backflow or back-siphonage and is considered acceptable for compliance with Rule 10D- 26.120(2) and (3)(a), Florida Administrative Code.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a Final Order assessing an administrative fine in the amount of $150.00. DONE AND ENTERED this 27th day of August, 1997, in Tallahassee, Leon County, Florida. _ WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 1997. COPIES FURNISHED: Susan Martin Scott, Esquire Department of Health Post Office Box 60085 Fort Myers, Florida 33906 George Lempenau, pro se Peace River Campground 2998 Northwest Highway 70 Arcadia, Florida 34266 Angela T. Hall, Agency Clerk Department of Health 1317 Winewood Boulevard Building 6 Tallahassee, Florida 32399-0700
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 The issues to be resolved in this proceeding concern whether an application to construct and operate an on-site sewage treatment and disposal system (OSTDS), within the Suwannee River flood plain, meets the requirements of Section 381.0065(4)(t), Florida Statutes (2007), and relevant Department of Health (Department) rules, and whether the department applied an un-adopted rule in denying the permit application.
Findings Of Fact Daniel Sevick is the owner of two lots, consisting of a total of 1.24 acres, within the flood plain of the Suwannee River. The lots are lots 12 and 13 in "Log Landing Subdivision." The Petitioner applied for a construction permit for the installation of an OSTDS on that property. The application for the permit was submitted to the Dixie County Health Department, which forwarded it to the Department of Health for review, in accordance with Section 381.0065(4)(j), Florida Statutes (2007). The Respondent, Department of Health, (Department) is an Agency of the State of Florida charged with implementing and enforcing the provisions of Chapter 381, Florida Statutes, and Florida Administrative Code Chapter 64E. Among its duties are the review of and issuance of permits for construction of OSTDS. The permit application was reviewed by the Department and was subsequently denied, based upon the following reasoning contained in the denial letters: Our engineer has reviewed your proposal. Based on the site elevation submitted (16.8 feet) and the 10 year elevation (22 feet) the proposal is not in compliance with 381.0065(4)(t), Florida Statutes, and must be denied. Certain of the facts have been stipulated to by the parties. The parties thus agree that the 10-year flood elevation for the property is 22 feet; the site elevation of the property is 16.8 feet and the two-year flood elevation for the property is 16.00 feet. The bottom of the proposed drainfield is at an elevation of 14.30 feet. The Petitioner thus proposes to install the OSTDS system with the bottom of the drainfield 1.70 feet below the two-year flood elevation. The proposed system consists of a conventional septic tank system connected to a "no mound" drainfield system. No Mound System The no mound drainfield system is an innovative drainfield system. No Mound was granted a permit for its design as an "innovative system" by the Department, initially authorizing installation of five systems in Florida, starting on December 23, 1998. An "innovative system" is defined as an "onsite sewage treatment and disposal system that, in whole or in part, employs materials, devices, or techniques that are novel or unique and that have not been successfully field tested under sound scientific and engineering principles under climatic and soil conditions found in this state." See § 381.0065(4)(2)(g), Fla. Stat (2007). Innovative systems, by definition are considered to be "performance-based systems" which have additional requirements placed on them depending on the performance level of the effluent treatment. The design of the OSTDS system submitted with the permit application included several changes intended for this particular property, based upon discussions between the Petitioner's representatives and the Department. The changes include relocation of the OSTDS and drainfield to the highest elevation of the property; addition of a solar-recharge battery alternative power supply; the obtaining of additional information with regard to soil borings; and the performance of an evaluation to confirm the capacity of the soil anchors in saturated soil. The OSTDS, including the no mound drainfield, was designed by Harry Wild, PE, specifically for the Petitioner's property. The proposed OSTDS is considered by the Department to be an "engineer-designed" system. Over approximately the last 10 years No Mound has been issued innovative permits authorizing the installation of approximately 250 no mound drainfield systems. The no mound system is an innovative system which does not employ a conventional drainfield. Instead, based upon principles of physics and engineering, the drainfield system is designed to be installed underground, with air pumped into the system to depress the groundwater elevation or "water table," so as to provide the required separation or distance between the absorption surface of the drainfield (bottom of the drainfield) and the groundwater. In Florida the separation required is 24 inches. The drainfield system is designed to retain air pumped into it, for depression of the groundwater level, by being covered with pieces of geo-fabric and a p.v.c. membrane designed to retain air within the system under a certain level of pressure. The air pressure is designed to depress the water level of groundwater directly beneath the area of the drainfield, much like the principle of a "diving bell." The drainfield system would be covered with two pieces of geo-fabric on either side of a 30 mill. p.v.c. membrane, the same material used as a liner for hazardous waste landfills. The geo-fabric material protects the p.v.c. membrane from damage or puncture during construction. Once in operation the membrane is unlikely to tear under normal conditions, unless through intentional puncture with an extremely sharp implement or through some catastrophic event, such as a large tree falling on the surface above the membrane. The membrane is held in position by a patented ballast and anchor system. The ballast material consists of pre- stressed concrete beams, spanning the width of the drainfield. At each end of each beam is a soil anchor. The 20 pre-stressed ballast beams are held in place with 40 helically shaped screw anchors, which screw into the soil. Each anchor is intended to withstand 5,000 pounds of upward force. The screw anchors are designed to hold the concrete beams in place in saturated soil. The soil anchors are threaded with a washer and nut on both the top and the bottom of the concrete beam which prevents the beam from moving vertically, downward or upward, so that the beam can resist any uplifting force. Air is pumped into this system by a continuous air pump which would be wired into the power system of the residence to be on the property. There would also be an emergency power supply. The air pressure inside the system would vary in response to the level of water outside the system whether groundwater or surface water. As the water outside the system rises or subsides, the water inside and beneath the system is supposed to remain lowered, as the pressure inside the system is designed to increase or decrease. The Petitioner maintains that the ballast system is designed to contain the pressure (air pressure) which would be required to continue to suppress any groundwater or flood water associated with a ten-year flood event. The system has an "air bleed," which is intended to maintain aerobic conditions in the drainfield. If surface waters overflow the top of the drainfield system in a flood event, the air bleed system is designed to continue functioning. The air would enter the soil beneath the ground surface and bubble up through any water above the ground surface. If both the primary and backup power supplies should fail, the Petitioner maintains that the air bleed would "shut off" so that no air would escape from the system and thus maintain the pressure within the system, much like a diving bell. This characteristic is designed to maintain the separation between the groundwater surface and the bottom of the drainfield in the event of a power failure. The Department has interpreted the operative statute, Section 381.0065(4)(t), Florida Statutes (2007), as providing that the absorption surface of a drainfield for any OSTDS system cannot lie below the 10-year flood elevation, if it is located within the floodways of the Suwannee or Aucilla Rivers, unless the system meets all the exceptions contained in Section 381.0065(4)(t)1.a.b. and c., Florida Statutes. One of these exceptions requires that the bottom of the drainfield, the absorption surface, be at least 36 inches above the two-year flood elevation for the site. The two-year flood elevation at the subject site is 16 feet. The proposed installation would have the bottom of the drainfield or absorption surface located 1.70 feet below that two-year flood elevation, thus not complying with that exception. The applicant's system is not in compliance with the portion of paragraph (c), referenced above as an exception, concerning a system approved by the county health department, pursuant to department rule, which is "other than" a system using "alternative drainfield materials." This system would apparently use so-called "alternative drainfield materials." Innovative systems are those which represent new technology that has not been completely field-tested in Florida. The Petitioner has applied for the permit as an innovative permit application, which contains a requirement that the system be replaced with an alternative system in case it fails within a five-year test period. No mound systems are site specific, with each one being specifically designed for a particular property with its unique characteristics. There are approximately 50 no mound systems approved, permitted and operating in Florida at the present time. The evidence does not reflect which, if any, of those systems are installed below flood elevations. The drainfield portion of such a system works in the same way as a conventional drainfield, that is, the soil and piping which lies below the membrane. The membrane system is the unique characteristic of the no mound system. Because of the membrane and ballasting system designed to retain air pressure over and in contact with the drainfield absorption surface, the system is different and more complex than the standard drainfield system, although it treats affluent in the same way. Two significant problems arose with the installation of the first five innovative permit, no mound systems. The testimony of Sam Averett, who is a septic system contractor, described an installation of a no mound system on his own property in 1999. The system was installed in accordance with Mr. Hassett's specifications and recommendations, and he was present during the installation. Mr. Hassett testified in support of the petition in this case as an engineering expert. Within a few days or weeks the Averett system developed a problem. Apparently, with a substantial rain event, the system "floated" that is, the air pressure contained within the membrane rose to the surface of the ground, similar to a "bubble." This would have amounted to a failure to maintain the air pressure necessary to ensure that a 24-inch separation between the absorption surface of the drainfield and the groundwater table elevation was maintained. That system was re- designed and a different ballasting system or buoyancy package was used, involving the use of "railroad iron" (rails), and plywood spanning the drainfield in order to hold the membrane beneath in place, with the whole arrangement being recovered with dirt. Thereafter, on January 1, 2003, after a substantial rainfall event, the system floated out of the ground once again. After that second failure of the Averett system, Mr. Averett installed a "hoot" system, which involves a "drip irrigation" drainfield installation, with the delivery piping and the drainfield being much closer to the ground surface or within six inches of the surface. The system described by Jack Murray in his testimony was also one of the original five systems installed in Florida by No Mound, Inc. That system was designed to maintain a 30- inch separation between the absorption surface of the drainfield (bottom of drainfield) and the groundwater elevation or water table. According to Mr. Murray it never maintained that separation. He was aware of the lack of a 30-inch separation being maintained because of the onsite monitors installed with the system. He described the actual separation which the system provided as being only .9 feet. The onsite monitors by which he was able to observe the actual separation failed after about two years of operation. He brought the separation issue to the attention of the contractor or representative of No Mound, which patented the system and oversaw the installation. According to Mr. Murray, however, they never satisfactorily addressed the problem. When the air pump failed, after approximately two years of operation, he called the manufacturer of the air pump and was informed that the air pump had been the incorrect type or size for the no mound system which he had installed. Although these two referenced problems concerning the Murray system and the Averett system represent two of the first five innovative no mound systems installed in Florida, the problems associated therewith may have been corrected since, because each system installed at a given site is specifically and uniquely designed by an engineer for that site and its physical, hydrologic and operating circumstances. Thus, the referenced problems involving buoyancy or "floating-up" of the drainfield membrane system and the failure to maintain adequate pressure so as to achieve the legally-mandated 24-inch differential between groundwater elevation and the bottom of the absorption surface, may not be construed to be direct predictors of what will occur with the installation of the Sevick system. The problems do point up, however, the fact that the air pressure maintained at different groundwater levels in the system is a critical component of the system's function and also that the ballasting system and design is critical in order to maintain the integrity of the membrane system or air chamber overlying the drainfield surface, at different water levels and conditions. This is a particular concern with regard to flood conditions. It also true that the proposed air pressure to be maintained in the system at issue, the Sevick system, would be five pounds per square inch. Earlier systems, possibly including the Murray system, maintained a pressure of two pounds per square inch. However, aside from the rather conclusory testimony of the Petitioner's expert witnesses, who opined generally that the air pressure and the integrity of the membrane system and ballast system would be adequate to maintain the legally- mandated 24-inch differential of unsaturated soil below the absorption surface, there was no definitive evidential showing of what air pressure would actually be necessary to perform that function adequately under all conditions. This is particularly problematic under conditions of flooding, since the proposed drainfield would be beneath both the 10-year flood elevation and the two-year flood elevation. Although there was testimony which indicated that the air pressures would vary, would increase or decrease depending upon the water levels beneath the drainfield and outside of the membrane, there was no definitive showing in the evidence as to what pressures under those varying water level conditions would still enable the 24-inch differential to be maintained. Under the Department's interpretation of its statutes and rules, a 24-inch differential is deemed adequate and necessary for treatment of the sewage effluent entering the drainfield. The electric power necessary for operation of the air pump which pressurizes the system would be derived from connection with the residence to be constructed on the lots. The emergency power system would be designed to accommodate situations where there is a power outage, for instance in a storm situation. The alternative system would be dependent upon solar-rechargeable battery power. If the air pump ceased operation due to a power outage and the backup system was not adequate, or adequately charged, to operate the pump sufficiently or for a sufficient period of time to maintain the required air pressure, then the 24-inch differential might not be maintained. The evidence does not reveal a practical way to monitor the air inflow or the air pressure condition inside the membrane in the event of a power outage. The Petitioner's witnesses maintained that if there was a power outage the air bleed device would close down, thus maintaining the required air pressure (akin to a diving bell circumstance). There was no persuasive evidence, however, to show what air pressure would thus be statically maintained and whether it would maintain the required 24-inch separation. Harry Wild was the design engineer who designed the no mound system for the Sevick property. Mr. Wild, however, was unaware, apparently, that Dr. Jeffrey Evans, a geotechnical expert and expert in the design of helical anchors for the ballast system for the Sevick property, had recommended that at least one boring be made for each site or each of the two lots to a depth of 20 feet. This was recommended in order to verify what the sub-surface conditions were, so that the conditions assumed in the system design could be verified. Mr. Wild testified that he only took borings to a depth of 10 feet. Mr. Hassett on the other hand testified that he thought the borings had only been done to six feet. In fact, the site evaluations submitted to the Department demonstrated soil boring had been performed to a depth of six feet below ground surface, and the cross-sectional drawing indicates that the anchors, designed to hold down the beams and the membrane, would only begin approximately four feet below the ground surface. Thus, even though Mr. Wild was the expert designer of the No mound system for the Sevick project, he was unaware of whether the ballast system was a new type of system which had been specifically designed for that property. He did acknowledge that it was the first time he had employed that type of ballast system. In spite of the higher operating pressure, five PSI versus two PSI, to be maintained in the Sevick no mound system over that normally maintained in previous no mound systems, Mr. Wild did not perform calculations or evaluations as to the beam strength and design requirements of the new ballast system. He did not perform calculations or evaluations that addressed the issue of membrane deflection requirements, which relates to how much the membrane would move upward under various pressures. This in turn could relate to how much downward pressure must be exerted by the anchoring system, to counteract the buoyancy of the membrane bulging upward under different pressure circumstances, associated with different water levels. Mr. Hassett did not know what membrane deflection was acceptable for the Sevick no mound system other than "a fair amount" which he acknowledged varied "depending on the geo- synthetic or the geo-grid that was specified for that particular project." It is understandable that this is an innovative system which requires certain revisions at times before it is installed, or during the course of installation, to adapt its design to the particular site. However, the evidence presented at hearing, as shown by Mr. Hassett's testimony, and Mr. Wild's as well, in this regard, is somewhat indefinite and does not show a substantial likelihood that the membrane and concrete beam and anchor ballasting system proposed will work as planned from a structure and strength standpoint. As Mr. Hassett testified "they will be tested before installation." As shown by Mr. Wild's testimony, the soil of the Petitioner's lots is composed of fine sand at the installation site. There is no evidence concerning any erosion study or concerning what the erosion experience might be in a flooding situation, in order to determine the effect on the helical anchors and ballasting system in the event of floods of varying severities, including a 10-year flood. Dr. Evans established in his deposition testimony that the helical anchors get their resistance to upward force from the sheer strength of the soil, which is a frictional value combined with the effective stress on the soil. If a certain amount of soil is eroded away, then the holding capacity of the anchors is correspondingly reduced. Dr. Evans, however, assumed that the applied load per anchor was 5,000 pounds, with the anchor handling 5,000 pounds of upward force if it was 10 feet underground. Therefore, the designers of the system would need to assure that the anchors are 10 feet underground and that the applied load is 5,000 pounds, according to Dr. Evan's testimony. He opined that if erosion of varying amounts occurred that could affect the anchors' holding capacity. In fact, the evidence shows that the anchors or the top of the anchors may only be proposed to be installed four feet below the surface. Therefore, the evidence does not clearly establish that the beam/anchor system is adequate to maintain the stability of the drainfield membrane system in the event of a flooding situation. Gerald Briggs testified on behalf of the Department. He described the growing concern that nitrogen levels in the effluent of OSTDS systems represent, in terms of potential environmental degradation of ground or surface waters, which the Department is charged with addressing by the statutory authority cited below. The no mound system, like any conventional OSTDS system, has no specific provision that would treat or reduce nitrogen levels in the effluent from the system. The 24-inch separation between the absorption surface of the drainfield and the groundwater elevation is designed to be unsaturated soil, which provides treatment of only a primary nature for essentially the public health/pathogenic components of the OSTDS system effluent (i.e. sanitary treatment). Although there is not such a monitoring requirement, the Department has requested data from the Petitioner regarding the quality of the effluent that would leave the system. If the system were ever installed, it should be done with the condition that effluent sampling and testing of the effluent should be performed, in order to ascertain that the system operates properly, in terms of public health and environmental degradation, on an ongoing basis. The Petitioner's witnesses, Mr. Wild and Mr. Sayko, acknowledged that the system proposed is not infallible and there are certain risks posed by the installation. For instance, if a pump was broken then the water level would start to rise inside the no mound system, according to Mr. Sayko's testimony. Moreover, the absorption surface in the drainfield as proposed, would likely be "subject to flooding" in a situation of power outages and erosion during a flood event. It must be remembered that the ground surface is some five feet below the 10-year flood elevation at the installation site and the absorption surface or bottom of the drainfield is over seven feet below the 10-year flood elevation. Thus, in the circumstance of power outages or flood-caused erosion, the absorption surface of the proposed drainfield could be "subject to flooding." The Department denied the subject permit application because the site elevation is 16.8 feet and the 10-year flood elevation at the site is 22 feet. Thus, the proposal was to install the absorption surface below the 10-year flood elevation (more than seven feet below it). In denying the requested permit the Department denied it based upon its interpretation of the subject statute, Section 381.0065(4)(t)(1), Florida Statutes (2007). It did not actually employ an un-adopted rule or "agency statement of general applicability" in making this interpretation. Rather, it interpreted the statute, applying it to the particular facts of the permit application and the situation prevailing at the proposed installation site. It was not applying an interpretation or policy statement of general applicability enforced throughout its jurisdiction, or throughout the flood plain area of the Suwannee and Aucilla Rivers, but rather was applying the statutory language and its interpretation of it to the particular site and circumstances of the proposed system and its contemplated operation. A variance from the above-referenced statutory requirements and related rules is not at issue in this case because the Petitioner has not sought a variance. Although variances have been granted in the Suwannee River flood plain area, in accordance with Section 381.0065(4)(h), Florida Statutes (2007), the grant of such variances has usually carried the concomitant requirement of more advanced treatment of the effluent in the system to be installed, as allowed by the granted variance. Thus, an aerobic treatment unit (ATU) or performance-based septic treatment system, such as an advanced secondary treatment system (AST), as well as the use of drip drainfields, such as the hoot system, have been required in accordance with the statute. An ATU introduces air into the treatment unit in order to enhance the treatment and generally employ filters as well, according to witness Briggs. An AST type system reduces the biochemical oxygen demand (BOD), total suspended solids, as well as treating the nitrogen and phosphorus contents of the effluent. Historically, the Department has only approved variances in the Suwannee or Aucilla River flood plains for vacant lots with the use of ATU or AST type systems. A drip drainfield reduces the required height of the drainfield by some 12 inches because it is only buried six inches into the soil. This is done because it is designed to be buried in the shallow root zone of trees and plants which allow trees and plants to uptake the nutrients in the effluent water and thus prevent them from being deposited in the ground or surface waters. In the Suwannee River basin area, most of the variances granted by the Department have required such drip drainfield systems. One of the statutory considerations for granting of a variance is that the Petitioner for a variance should not have created the hardship involved, resulting in the need for the variance. The Department maintains that the Petitioner, Mr. Sevick, has created the hardship in this case by purchasing the lot knowing of the restrictions on OSTDS systems that were legally prevailing. The evidence, however, does not really establish that the Petitioner intentionally created the hardship by purchasing a lot knowing of all the restrictions that were in place and their effects. One can infer, for instance, that he was aware of advertisements by No Mounds, that lots in the Suwannee River basin or flood plain area could be developed by using its OSTDS system without even necessitating the use of fill. The Department's evidence simply does not establish that the Petitioner, Mr. Sevick, intended creating the hardship, on his own volition, by purchasing the lot with knowledge that the specific restrictions were in place, from a legal standpoint. Thus it was not proven that the Petitioner is unable to establish a hardship for purposes of seeking a variance pursuant to Section 381.0065(4)(h), Florida Statutes (2007), on the basis that the Petitioner created the hardship. As established by witness Briggs, nitrogen and phosphorus elements of OSTDS effluents are of growing concern for ground and surface waters in Florida. Nitrogen and phosphorus enhance algae growth in surface waters, which can lead to reduced dissolved oxygen content and other factors harmful to fish and wildlife. There is thus a deleterious environmental impact from nitrogen and phosphorus levels in surface waters or groundwaters, in addition to the pathogens which can characterize effluent from OSTDS systems, related to human waste. Advanced septic systems such as ATUs or ASTs have been required in the grant of variance-based septic system permits in flood plains of the rivers because of the potential of their being flooded and because of the locations of the systems. The Department, in consideration of its statutory charge, has sought to seek as much treatment as possible for the effluent, in such situations, in order to prevent significant degradation of ground or surface water. A no mound system is a drainfield dispersal system, so it itself poses no additional treatment capability than does a conventional OSTDS system, as established by both witnesses Wild and Briggs.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and pleadings and arguments of the parties, it is, therefore, RECOMMENDED that the Amended Petition be denied. DONE AND ENTERED this 16th day of February, 2009, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of February, 2009. COPIES FURNISHED: Kenneth J. Plante, Esquire Tana D. Storey, Esquire Brewton Plante, P.A. 225 South Adams Street, Suite 250 Tallahassee, Florida 32301 Mark Dunn, Esquire Lisa M. Raleigh, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399 Lucy M. Schneider, Esquire Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399 John M. Lockwood, Esquire Rutledge, Ecenia & Purnell, P.A. 215 South Monroe Street, Suite 420 Tallahassee, Florida 32301 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Dr. Ana M. Viamonte Ros, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue Did Petitioner violate Section 386.041 and Section 381.0065, Florida Statutes, as alleged in the Citation for Violation Onsite Sewage Program/Sanitary Nuisance?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times pertinent to this proceeding, the Department, through the Polk County Health Department, was the agency of the State of Florida charged with the responsibility of issuing permits for the construction, installation, modification, abandonment, or repair of onsite sewage treatment and disposal systems. The property in question is a duplex apartment building owned by Respondent and located at 1101-1103 Old South Drive, Lakeland, Florida. The two apartments in the duplex are serviced by a single septic tank and drainfield. In the summer of 1997, Petitioner determined that the drainfield needed repair and engaged the services of an individual who was not licensed to repair drainfields. Additionally, Petitioner did not obtain a permit for the repair to the drainfield. During the fall of 1997, Petitioner continued to experience trouble with the drainfield. Thereafter, on two separate occasions, Petitioner engaged the services of Burns Septic Tank Company (Burns) and Central Fla. Septic Tank Co. (Central) to pump-out the septic tank. Both Burns and Central indicated on their invoices for pumping out the septic tank that the drainfield was in need of repair. On December 9, 1997, after receiving a complaint from one of Petitioner’s tenants, the Department’s Environmental Specialist, Wade Schulz, made an inspection of the septic tank and drainfield at 1101-1103 Old South Drive, Lakeland, Florida. Schulz’s inspection revealed that the septic tank was backing up at the duplex apartments and that the septic tank D-box, old rock, and the drainfield pipe were exposed to the ground. Additionally, it was discovered that septage was flowing directly from the system to a wet drainage ditch. On December 9, 1997, Schulz verbally notified Petitioner that the system was in violation of: (a) Section 386.041, Florida Statutes (Nuisance injurious to health); (b) Section 381.0065, Florida Statutes (Prior approved system shall remain in operating condition); and (c) Section 381.0065, Florida Statutes (No person shall repair without permit). A written copy of the Citation for Violation Onsite Sewage Program/Sanitary Nuisance (Citation) was mailed to Petitioner but was returned as undeliverable. A copy of the Citation was personally served on Petitioner on January 23, 1998. After receiving the verbal citation from Schulz, Petitioner engaged Robby’s Septic Tank Service and had the septic tank pumped out. Other than pumping out the septic tank, Petitioner has made no other effort to correct the problem. After receiving the Citation, Petitioner met with the Department’s representative in an attempt to work out a solution. However, Petitioner contended that there was nothing wrong with the drainfield and refused to pay any fine. On July 9, 1998, the Department visited the site again and found that nothing had been done to correct the problem. Furthermore, the Department found that the system was still being improperly maintained. It was the opinion of both Schulz and Tony Warr, the Department’s Environmental Supervisor, that the only way to correct the problem was to completely repair the drainfield. It was Petitioner’s contention that the drainage ditch was clogged up resulting in a high water table around the drainfield and that if Polk County cleaned out the drainage ditch, allowing the water to flow off, it would resolve the problem of the drainfield. While the drainage ditch may be a problem, there was insufficient evidence to show that unclogging the drainage ditch would resolve the problem of the drainfield. It is clear that Petitioner’s drainfield is not operating properly and is in need of repair.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order finding the Petitioner guilty of the violations as charged and requiring Petitioner to pay a fine in the amount of $1,500.00 as set forth in the Citation for Violation Onsite Sewage Program/Sanitary Nuisance, Part 6. DONE AND ENTERED this 11th day of August, 1998, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 1998. COPIES FURNISHED: Angela T. Hall, Agency Clerk Department of Health Bin AO2 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1703 Dr. James Howell, Secretary Department of Health 1317 Winewood Boulevard Building 6 Room 306 Tallahassee, Florida 32399-0700 Glenn E. Woodard, pro se Post Office Box 2000 Eaton Park, Florida 33801 Roland Reis, Esquire Department of Health 1290 Golfview Avenue, Fourth Floor Bartow, Florida 33830
