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

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.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

)

Petitioner, )

)

vs. ) Case No. 00-0695

)

ANTHONY MASSARO, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

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

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

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Charlene J. Petersen, Esquire

Department of Health

400 Fentress Boulevard

Daytona Beach, Florida 32114

For Respondent: Dr. Anthony Massaro, pro se

3402 North Oceanside Boulevard

Flagler Beach, Florida 32136

STATEMENT OF THE ISSUE

The issue is whether Respondent should be required to obtain

a current operating permit for his aerobic treatment unit and

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

reason cited in the Citation for Violation issued by Petitioner

on December 1, 1999.

PRELIMINARY STATEMENT

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

Department of Health, on behalf of the Flagler County Health

Department, issued a Citation for Violation charging that

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

6.003(5)(c), Florida Administrative Code, by failing to obtain an

annual operating permit for his aerobic treatment unit, as

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

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

permit.

Respondent denied the allegation and requested a formal

hearing under Section 120.569, Florida Statutes, to contest the

charges. The matter was referred by Petitioner to the Division

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

that an Administrative Law Judge be assigned to conduct a formal

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

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

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

Judge Stephen F. Dean to the undersigned.

At the final hearing, Petitioner presented the testimony of

Benjamin D. Juengst, formerly an environmental specialist I with

the Flagler County Health Department. Also, it offered

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

evidence. Respondent testified on his own behalf and presented

the testimony of Anita Cholmondeley, an environmental supervisor

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

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

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

6.003(5)(c) and 64E-6.030(1)(m), Florida Administrative Code;

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

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

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

Development Code.

There is no transcript of the hearing. Proposed Findings of

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

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

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

Petitioner has stipulated to the introduction of those documents.

Both filings have been considered by the undersigned in the

preparation of this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of

fact are determined:

1. In this dispute, Petitioner, Department of Health

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

retired public health physician, failed to obtain an annual

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

his residence at 3402 North Oceanside Boulevard, Flagler

Beach, Florida. The Flagler County Health Department (Health

Department) is charged with the responsibility of issuing such

permits. That department is under the direction and control of

Petitioner.

2. While Respondent readily admits that he failed to obtain

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

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

Department is not enforcing the law regarding ATUs and thus

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

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

sewage disposal unit on his property.

3. Respondent purchased his property in Flagler County in

1997. The property is located in Ocean View Estates Subdivision

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

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

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

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

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

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

utilizing a public community water system," in which case

residents "may utilize Class I aerobic onsite sewage disposal

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

disposal systems must be consistent with adopted county policies

and standards."

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

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

subdivision's Plat Agreement recorded in 1995 provided that

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

permitted and constructed as each lot is developed."

5. Another type of onsite sewage disposal system is the

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

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

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

requires a variance from the zoning regulations before one can be

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

his neighbors have installed such a system.

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

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

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

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

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

installed, the owner must renew his operating permit annually at

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

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

the costs incurred by the Health Department in making quarterly

inspections and performing annual sampling and laboratory

analysis of effluent.

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

became operational across the street from Respondent's property,

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

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

Respondent known this, he would have obviously chosen that option

rather than an ATU.

8. The evidence reflects that in November 1997 Respondent

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

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

approved in August and September 1998, respectively. In early

April 1998, the Health Department was advised by the private

utility company that it would accept new sewer connections in a

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

Department representatives made no mention of this to Respondent

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

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

sewage disposal system options, and Respondent had made no

inquiry. Disclosure of this fact would have saved Respondent

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

however, while good public relations would dictate otherwise, the

Health Department had no legal obligation to do anything other

than process the pending application. Likewise, it has no

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

to the line because of its non-disclosure.

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

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

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

very noisy. Because of this, Respondent understandably wishes to

change to an anerobic system, which has a traditional septic

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

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

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

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

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

unlikely that Respondent can obtain a variance from the County.

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

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

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

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

the considerable investment he already has in an ATU, Respondent

does not consider this to be a viable alternative.

11. Respondent pointed out that, despite the requirement

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

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

compressor. He also pointed out that the Health Department has

consistently found numerous violations of such systems during its

inspections. He further asserted that while the $150.00 annual

fee is to defray certain sampling and laboratory analysis costs

associated with inspecting ATUs, the Health Department has done

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

to 1999 the regulations were enforced by sampling the compliance

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

rather than all systems, in the County. Given these

considerations, Respondent concludes that ATUs are the least

effective way to treat sewage, and that existing laws and

regulations have not been enforced. Assuming these allegations

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

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

not constitute a lawful basis for allowing Respondent to switch

to an anerobic system.

12. Respondent further contended that under his

interpretation of the general law, which was not fully understood

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

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

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

an anerobic system.

13. Finally, Respondent has cooperated with the Department

throughout this process. With his lengthy public health

background, Respondent initiated this action with good

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

and to remedy a problem which none of his neighbors apparently

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

imposed.

CONCLUSIONS OF LAW

14. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties hereto

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

15. As the party which issued the charging document,

Petitioner bears the burden of proving by a preponderance of the

evidence that the allegations in the Citation for Violation are

true.

16. The Citation for Violation alleges that Respondent

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

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

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

6.003(5)(c), Florida Administrative Code, which imposes the same

requirement.

17. The evidence clearly shows that Respondent failed to

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

Citation for Violation has been sustained.

18. In reaching the above conclusion, the undersigned has

considered the many contentions raised by Respondent.

Unfortunately, the relief which he requests is not available.

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

Department should have advised Respondent (and any other

similarly situated homeowners) in April 1998 that a utility

company had just been authorized to connect new sewer customers

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

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

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

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

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

such a system cannot be installed. Whether Respondent can make

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

proceeding.

19. In light of the foregoing, Respondent should be

required to obtain an annual operating permit for the current

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

not warranted.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Health enter a final

order sustaining the charge in the Citation for Violation and

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

civil penalty is not warranted.

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

Tallahassee, Leon County, Florida.

___________________________________

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 20th day of June, 2000.

COPIES FURNISHED:

Angela T. Hall, Agency Clerk

Department of Health

Bin A02

2020 Capital Circle, Southeast

Tallahassee, Florida 32399-1703

Charlene J. Petersen, Esquire

Department of Health

420 Fentress Boulevard

Daytona Beach, Florida 32114

Dr. Anthony Massaro

3402 North Oceanside Boulevard

Flagler Beach, Florida 32136

Amy M. Jones, General Counsel

Department of Health

Bin A02

2020 Capital Circle, Southeast

Tallahassee, Florida 32399-1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

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

this Recommended Order should be filed with the agency that will

issue the final order.