00-000695 Department Of Health vs. Anthony Massaro
 Status: Closed
Recommended Order on Tuesday, June 20, 2000.


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Summary: Respondent failed to obtain an annual operating permit; no obligation on the part of Department of Health to advise applicant of various waste disposal options.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8DEPARTMENT OF HEALTH, )

12)

13Petitioner, )

15)

16vs. ) Case No. 00-0695

21)

22ANTHONY MASSARO, )

25)

26Respondent. )

28________________________________)

29RECOMMENDED ORDER

31Pursuant to notice, this matter was heard on May 23, 2000,

42in Bunnell, Florida, before Donald R. Alexander, the assigned

51Administrative Law Judge of the Division of Administrative

59Hearings.

60APPEARANCES

61For Petitioner: Charlene J. Petersen, Esquire

67Department of Health

70400 Fentress Boulevard

73Daytona Beach, Florida 32114

77For Respondent: Dr. Anthony Massaro, pro se

843402 North Oceanside Boulevard

88Flagler Beach, Florida 32136

92STATEMENT OF THE ISSUE

96The issue is whether Respondent should be required to obtain

106a current operating permit for his aerobic treatment unit and

116have a $500.00 fine imposed for violating an agency rule for the

128reason cited in the Citation for Violation issued by Petitioner

138on December 1, 1999.

142PRELIMINARY STATEMENT

144This matter began on December 1, 1999, when Petitioner,

153Department of Health, on behalf of the Flagler County Health

163Department, issued a Citation for Violation charging that

171Respondent, Dr. Anthony Massaro, had violated Rule 64E-

1796.003(5)(c), Florida Administrative Code, by failing to obtain an

188annual operating permit for his aerobic treatment unit, as

197required by law. For this violation, the agency proposes to

207impose a fine of $500.00 and require Respondent to obtain a

218permit.

219Respondent denied the allegation and requested a formal

227hearing under Section 120.569, Florida Statutes, to contest the

236charges. The matter was referred by Petitioner to the Division

246of Administrative Hearings on February 10, 2000, with a request

256that an Administrative Law Judge be assigned to conduct a formal

267hearing. By Notice of Hearing dated April 7, 2000, a final

278hearing was scheduled on May 23, 2000, in Bunnell, Florida. On

289May 22, 2000, the case was transferred from Administrative Law

299Judge Stephen F. Dean to the undersigned.

306At the final hearing, Petitioner presented the testimony of

315Benjamin D. Juengst, formerly an environmental specialist I with

324the Flagler County Health Department. Also, it offered

332Petitioner's Exhibits 1-9. All exhibits were received in

340evidence. Respondent testified on his own behalf and presented

349the testimony of Anita Cholmondeley, an environmental supervisor

357II with the Flagler County Health Department. Also, he offered

367Respondent's Exhibits 4-9, which were received in evidence.

375Finally, the undersigned took official recognition of Rules 64E-

3846.003(5)(c) and 64E-6.030(1)(m), Florida Administrative Code;

390Sections 381.0011(4), 381.006(7), 381.0065(2)(a), (2)(a)1., (4),

396and (5), 381.0655(1)(a), and 381.0066(1) and (2)(c), Florida

404Statutes (1999); and Section 3.03.05 of the Flagler County Land

414Development Code.

416There is no transcript of the hearing. Proposed Findings of

426Fact and Conclusions of Law were filed by Petitioner on June 9,

4382000. On June 8, 2000, Respondent filed a letter with twenty

449attachments numbered as Petitioner's Exhibits A-G and I-U.

457Petitioner has stipulated to the introduction of those documents.

466Both filings have been considered by the undersigned in the

476preparation of this Recommended Order.

481FINDINGS OF FACT

484Based upon all of the evidence, the following findings of

494fact are determined:

4971. In this dispute, Petitioner, Department of Health

505(Department), has alleged that Respondent, Dr. Anthony Massaro, a

514retired public health physician, failed to obtain an annual

523operating permit for an aerobic treatment unit (ATU) located at

533his residence at 3402 North Oceanside Boulevard, Flagler

541Beach, Florida. The Flagler County Health Department (Health

549Department) is charged with the responsibility of issuing such

558permits. That department is under the direction and control of

568Petitioner.

5692. While Respondent readily admits that he failed to obtain

579a permit, he contends that he was misled by the Health Department

591when he first installed an ATU at his residence; the Health

602Department is not enforcing the law regarding ATUs and thus

612another system would be more appropriate; and the law, as he

623interprets it, allows him to install another type of on-site

633sewage disposal unit on his property.

6393. Respondent purchased his property in Flagler County in

6481997. The property is located in Ocean View Estates Subdivision

658(subdivision), which has an Urban Single-Family Residential

665District (R-1b) zoning classification under the Flagler County

673Land Development Code (Code). Section 3.03.05A of the Code

682requires that owners within the R-1b classification use "public

691or community water and sewer facilities," but makes an exception

701for "[s]mall R-1b subdivisions, fifty (50) lots or less,

710utilizing a public community water system," in which case

719residents "may utilize Class I aerobic onsite sewage disposal

728systems." Further, "[t]he use of individual onsite sewage

736disposal systems must be consistent with adopted county policies

745and standards."

7474. Because the subdivision has 50 lots or less, and public

758or private sewer facilities were not available in the area, the

769subdivision's Plat Agreement recorded in 1995 provided that

"777[ i] ndividual aerobic onsite sewage disposal systems are to be

788permitted and constructed as each lot is developed."

7965. Another type of onsite sewage disposal system is the

806anerobic system, which has a septic tank and larger drainfield,

816is far less expensive, but does not conform with "county policies

827and standards" in this locale. Thus, this type of system

837requires a variance from the zoning regulations before one can be

848installed in the subdivision. Even so, Respondent says "all" of

858his neighbors have installed such a system.

8656. Because of the Plat Agreement, the zoning restriction,

874the difficulty in obtaining a variance, and the lack of a sewer

886line, Respondent had no choice except to use an ATU system for

898his residence. This meant that he had to apply for a permit from

911the Health Department. Once a permit is obtained and an ATU

922installed, the owner must renew his operating permit annually at

932a cost of $150.00, and he must enter into a maintenance agreement

944with a licensed contractor. The $150.00 fee is used to defray

955the costs incurred by the Health Department in making quarterly

965inspections and performing annual sampling and laboratory

972analysis of effluent.

9757. The record does not reflect precisely when a sewer line

986became operational across the street from Respondent's property,

994but the sewer project was accepted "for service" in April 1998,

1005or before Respondent's ATU was installed in August 1998. Had

1015Respondent known this, he would have obviously chosen that option

1025rather than an ATU.

10298. The evidence reflects that in November 1997 Respondent

1038made application for an ATU with the Health Department, a permit

1049was issued in December 1997, and the system was installed and

1060approved in August and September 1998, respectively. In early

1069April 1998, the Health Department was advised by the private

1079utility company that it would accept new sewer connections in a

1090service area that included Respondent's home. However, Health

1098Department representatives made no mention of this to Respondent

1107since they were under the impression that he desired to use the

1119ATU option, they do not normally "counsel" applicants on onsite

1129sewage disposal system options, and Respondent had made no

1138inquiry. Disclosure of this fact would have saved Respondent

1147considerable money (and grief) in the long run; unfortunately,

1156however, while good public relations would dictate otherwise, the

1165Health Department had no legal obligation to do anything other

1175than process the pending application. Likewise, it has no

1184obligation in law to now pay the costs for Respondent to hook up

1197to the line because of its non-disclosure.

12049. Respondent has now invested more than $5,000.00 in his

1215ATU. This type of system is operated by a compressor in

1226Respondent's garage, which must be run 24 hours per day, and is

1238very noisy. Because of this, Respondent understandably wishes to

1247change to an anerobic system, which has a traditional septic

1257tank, larger drainfield, no unsightly "mound" in the yard, no

1267annual permits, and is far cheaper than an ATU. Also, it does

1279not require a noisy motor to sustain operations. However, this

1289type of system is prohibited by the Code except where a variance

1301from Flagler County (County) has been obtained. It appears to be

1312unlikely that Respondent can obtain a variance from the County.

132210. Because Respondent's property is so low in relation to

1332the sewer line, to achieve the proper gravity, he must install a

1344lift station and pay a connection fee, both totaling $3,540.00,

1355before hooking up to the sewer system. Given these costs, and

1366the considerable investment he already has in an ATU, Respondent

1376does not consider this to be a viable alternative.

138511. Respondent pointed out that, despite the requirement

1393that they do so, many ATU owners in the County are not running

1406their systems 24-hours per day because of the noise from the

1417compressor. He also pointed out that the Health Department has

1427consistently found numerous violations of such systems during its

1436inspections. He further asserted that while the $150.00 annual

1445fee is to defray certain sampling and laboratory analysis costs

1455associated with inspecting ATUs, the Health Department has done

1464neither on his ATU. Finally, Respondent pointed out that prior

1474to 1999 the regulations were enforced by sampling the compliance

1484of a very small percentage of total ATU systems (ten percent),

1495rather than all systems, in the County. Given these

1504considerations, Respondent concludes that ATUs are the least

1512effective way to treat sewage, and that existing laws and

1522regulations have not been enforced. Assuming these allegations

1530to be true, and they were not seriously disputed, they are

1541legitimate concerns. However, until the law is changed, they do

1551not constitute a lawful basis for allowing Respondent to switch

1561to an anerobic system.

156512. Respondent further contended that under his

1572interpretation of the general law, which was not fully understood

1582by the undersigned, he is not required to use an ATU. But local

1595zoning regulations clearly require that he do so, and until the

1606state or local regulations are changed or waived, he cannot use

1617an anerobic system.

162013. Finally, Respondent has cooperated with the Department

1628throughout this process. With his lengthy public health

1636background, Respondent initiated this action with good

1643intentions, seeking to point out the flaws in the ATU systems,

1654and to remedy a problem which none of his neighbors apparently

1665have. Given these considerations, a civil penalty should not be

1675imposed.

1676CONCLUSIONS OF LAW

167914. The Division of Administrative Hearings has

1686jurisdiction over the subject matter and the parties hereto

1695pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

170315. As the party which issued the charging document,

1712Petitioner bears the burden of proving by a preponderance of the

1723evidence that the allegations in the Citation for Violation are

1733true.

173416. The Citation for Violation alleges that Respondent

1742violated Section 381.0065(4), Florida Statutes (1999), by failing

1750to obtain an annual operating permit for his ATU. The Citation

1761further alleges that Respondent's conduct also violates Rule 64E-

17706.003(5)(c), Florida Administrative Code, which imposes the same

1778requirement.

177917. The evidence clearly shows that Respondent failed to

1788obtain the permit, as required by law, and thus the charge in the

1801Citation for Violation has been sustained.

180718. In reaching the above conclusion, the undersigned has

1816considered the many contentions raised by Respondent.

1823Unfortunately, the relief which he requests is not available.

1832First, at least from a public relations standpoint, the Health

1842Department should have advised Respondent (and any other

1850similarly situated homeowners) in April 1998 that a utility

1859company had just been authorized to connect new sewer customers

1869in Respondent's service area; however, it had no legal duty to do

1881so. Likewise, there is no legal basis by which to order the

1893Health Department to pay the costs for a connection to a sewer

1905line at this time. Finally, the use of an anerobic system is

1917currently prohibited by the Code; unless a variance is granted,

1927such a system cannot be installed. Whether Respondent can make

1937out a good case for a variance is beyond the scope of this

1950proceeding.

195119. In light of the foregoing, Respondent should be

1960required to obtain an annual operating permit for the current

1970year. Given the circumstances presented here, a civil penalty is

1980not warranted.

1982RECOMMENDATION

1983Based on the foregoing Findings of Fact and Conclusions of

1993Law, it is

1996RECOMMENDED that the Department of Health enter a final

2005order sustaining the charge in the Citation for Violation and

2015requiring that Respondent obtain an annual permit for his ATU. A

2026civil penalty is not warranted.

2031DONE AND ENTERED this 20th day of June, 2000, in

2041Tallahassee, Leon County, Florida.

2045___________________________________

2046DONALD R. ALEXANDER

2049Administrative Law Judge

2052Division of Administrative Hearings

2056The DeSoto Building

20591230 Apalachee Parkway

2062Tallahassee, Florida 32399-3060

2065(850) 488-9675 SUNCOM 278-9675

2069Fax Filing (850) 921-6847

2073www.doah.state.fl.us

2074Filed with the Clerk of the

2080Division of Administrative Hearings

2084this 20th day of June, 2000.

2090COPIES FURNISHED:

2092Angela T. Hall, Agency Clerk

2097Department of Health

2100Bin A02

21022020 Capital Circle, Southeast

2106Tallahassee, Florida 32399-1703

2109Charlene J. Petersen, Esquire

2113Department of Health

2116420 Fentress Boulevard

2119Daytona Beach, Florida 32114

2123Dr. Anthony Massaro

21263402 North Oceanside Boulevard

2130Flagler Beach, Florida 32136

2134Amy M. Jones, General Counsel

2139Department of Health

2142Bin A02

21442020 Capital Circle, Southeast

2148Tallahassee, Florida 32399-1701

2151NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

2157All parties have the right to submit written exceptions within 15

2168days from the date of this Recommended Order. Any exceptions to

2179this Recommended Order should be filed with the agency that will

2190issue the final order.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 09/10/2004
Proceedings: Final Order filed.
PDF:
Date: 09/03/2004
Proceedings: Agency Final Order
Date: 07/13/2000
Proceedings: Order on Motion for Extension of Time (Dept. of Health) filed.
PDF:
Date: 07/05/2000
Proceedings: Order on Motion for Extension of Time (Dept. of Health) filed.
PDF:
Date: 06/20/2000
Proceedings: Recommended Order
PDF:
Date: 06/20/2000
Proceedings: Letter to A. Hall and C. Peterson from Judge Alexander regarding enclosed Recommended Order and Exhibits filed.
PDF:
Date: 06/20/2000
Proceedings: Recommended Order sent out. CASE CLOSED. Hearing held May 23, 2000.
PDF:
Date: 06/09/2000
Proceedings: (Petitioner) Proposed Recommended Order (filed via facsimile).
Date: 06/08/2000
Proceedings: Response to May 23, 2000 hearing (exhibits Tagged) filed.
Date: 05/23/2000
Proceedings: CASE STATUS: Hearing Held; see case file for applicable time frames.
PDF:
Date: 05/02/2000
Proceedings: Letter to CCA from A. Massaro Re: Discovery requests to written questions and the production of pertinent documents w/exhibits filed.
PDF:
Date: 04/07/2000
Proceedings: Notice of Hearing sent out. (hearing set for May 23, 2000; 10:15 a.m.; Bunnell, FL)
PDF:
Date: 03/09/2000
Proceedings: Joint Response to Initial Order (filed via facsimile).
Date: 02/17/2000
Proceedings: Initial Order issued.
PDF:
Date: 02/10/2000
Proceedings: Agency Referral Letter filed.
PDF:
Date: 02/10/2000
Proceedings: Notice filed.
PDF:
Date: 02/10/2000
Proceedings: Citation for Violation Onsite Sewage Program/ Sanitary Nuisance; Request for Administrative Hearing filed.

Case Information

Judge:
D. R. ALEXANDER
Date Filed:
02/10/2000
Date Assignment:
05/22/2000
Last Docket Entry:
09/10/2004
Location:
Bunnell, Florida
District:
Northern
Agency:
ADOPTED IN TOTO
 

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