09-006062 Department Of Health vs. Alex Macdonell, Jr. Status: Closed Recommended Order on Friday, April 2, 2010.

Summary: Petitioner proved that Respondent's septic system remained out of compliance by removal of a mound and drain field.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

)

Petitioner, )

)

vs. ) Case No. 09-6062

)

ALEX MACDONELL, JR., )

)

Respondent. )

)

RECOMMENDED ORDER

An administrative hearing was conducted in this case on

January 27, 2010, by video teleconference at sites in Orlando

and Tallahassee, Florida, before James H. Peterson, III,

Administrative Law Judge with the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: W. Patrick Westerfield, Esquire

Orange County Health Department

6101 Lake Ellenor Drive

Orlando, Florida 32809

For Respondent: No Appearance

STATEMENT OF THE ISSUE

Whether Respondent illegally and without permit removed a

drain field and now has an unapproved septic system on a

structure intended for human occupancy, and if so, what is the

appropriate correction and fine.

PRELIMINARY STATEMENT

On September 25, 2009, the Department of Health

(Petitioner) issued a citation to Alex MacDonell, Jr.

(Respondent), alleging violations of Florida law and rules

governing septic systems in Florida. By letter dated

October 14, 2009, Respondent denied the alleged violations and

timely requested an administrative hearing. Petitioner referred

the case to the Division of Administrative Hearings (DOAH) on or

about November 5, 2009.

At the administrative hearing in this matter held on

January 27, 2010, the Department presented the testimony of two

witnesses and offered 9 exhibits that were received into

evidence as Exhibits 1 through 9. Respondent did not appear or

participate in the administrative hearing.

The Proposed Recommended Order filed by Petitioner on

March 23, 2010, has been considered in the preparation of this

Recommended Order. Respondent did not file a proposed

recommended order.

FINDINGS OF FACT

1. On June 17, 2009, Department of Health employee

Stephanie Daughtery was driving down Lake Erie Road in

Groveland, Florida, past Respondent’s residence located at

6345 Lake Erie Road, when she noticed the sand mound that had

held the septic system drain field for Respondent’s home was no

longer there.

2. Ms. Daughtery was familiar with the mound that had been

located on Respondent’s land because, in her capacity as

Petitioner’s employee, she had previously conducted a

stabilization check on the mound.

3. A sand mound for Respondent’s drain field was required

under applicable law and regulations because, during the rainy

season, the water table in the area of Respondent’s home was ten

inches “below grade,” which means that the water level was just

ten inches below ground level during the rainy season.

Therefore, a sand mound was necessary for proper filtration of

the raw sewage (effluent) entering the septic system.

4. A septic system without a proper drain field will allow

effluent to escape and constitute a public health risk.

5. Upon returning to her office at the Lake County Health

Department that same afternoon, Ms. Daughtery told her

supervisor, Elias Christ, of her observation. One of

Respondent’s neighbors had already reported the situation

involving the removal of Respondent’s drain field to Mr. Christ.

6. The next day, one of Petitioner’s inspectors, Daniel

McColley, went out to Respondent’s property and met with

Respondent. Respondent told the inspector that the mound which

had been removed was just a pile of dirt. Contrary to

Respondent’s assertion, the mound that was removed had been part

of the drain field for Respondent’s septic system.

7. Respondent was responsible for the removal of the mound

and drain field.

8. On June 22, 2009, Petitioner sent, by certified mail to

Respondent, an Official Notice to Abate a Sanitary Nuisance,

which advised:

On 06/18/2009 an onsite investigation

disclosed that an approved drain field had

been removed and either not replaced or

replaced without a permit, which violates

Chapter 386.041(1)(a)(b)(e)(f) of Florida

Statutes.

You are hereby directed to contact this

Department within 24 hours of this notice to

discuss corrective action. A repair permit

must be applied for and a system installed

with Department approval.

9. Approximately a week to ten business days later, after

Respondent had failed to apply for a permit, Petitioner again

sent an inspector to inspect Respondent’s septic system and

found it to be still in nuisance condition, with no drain field.

10. In addition to being in an area with water just ten

inches below grade during rainy season, Respondent’s property is

adjacent to a lake.

11. Since the sand mound was removed, there is no proper

drain field and Respondent’s septic system is a sanitary

nuisance. As explained by Mr. Christ at the administrative

hearing, Respondent’s septic system without a drain field is a

threat to public health:

Because we have untreated sewage that we

have no idea where its going to. He has - -

he also has a lake behind his property, so

we don’t know if he’s somehow plumbed it

into dumping into the lake or if it’s just

dumping out on the ground.

12. Respondent told one or more of Petitioner’s employees

that he had connected his septic system to an old septic tank in

an adjacent house on the property. He did not, however, obtain

a permit to do so, and the old system was inadequate, without

renovation, to handle the additional effluent.

13. In addition, although Respondent further claimed that

a septic contractor had pumped out his old system, Respondent

would not give the name of the alleged contractor.

14. On July 6, 2009, Petitioner sent, by certified and

regular mail, a “Notice of Intended Action” to Respondent which

advised:

You have not yet come to apply for a permit

to replace this system you removed. Failure

to do so will result in legal action and

possible revocation of your CO and further

Lake County Code Enforcement Action.

Please contact this office within 24 hours

of receipt of this notice to discuss a

corrective action plan at [phone] or

FAX [phone].

If this sanitary nuisance is not abated and

a proper septic tank repair permit applied

for and work is completed in a satisfactory

manor, inspected by this department, you may

be subject to fines up to $500.00 per day

authorized therein accordance with the

authority outlined in Section 381.0065(5)

Florida Statutes(F.S.). If you have further

questions please call Elias Christ or Russ

Melling at 352-253-6130.

15. Respondent came into the Lake County Health Department

on July 22, 2009, and was given an application and a checklist

for permitting the repair of his septic system. During that

visit, Respondent told Mr. Christ that the cows had destroyed

the mound. He also told Mr. Christ that he had been trying to

sell his house and that the mound had been an eye-sore that was

interfering with the sale. Later, in a telephone conversation

with Mr. Christ, Respondent advised that he really did not have

the money to replace the drain field, but he would be happy to

have it replaced if the county would pay for it.

16. By September 25, 2009, Respondent still had not

applied for a permit or repaired his septic system.

17. On September 25, 2009, Petitioner issued a Citation

for Violation Onsite Sewage Program/Sanitary Nuisance to

Respondent (Citation). Part 1 of the Citation alleges that

Respondent is in violation of Section 386.041(a), (e), and (f),

Florida Statutes, and Florida Administrative Code Rules 64E-

6.001(2) and 64E-6003(1), on the grounds that Respondent “[h]as

illegally and without any permits removed his drain field and

now [has] an unapproved system on a structure intended for human

occupancy.”

18. The Citation further provides:

The person named in this citation is hereby

ordered to correct the violation(s) listed

in Part 1 within 10 days [from] the service

of this citation.

The person identified in this citation is

hereby directed to pay a fine in the amount

of $500 plus $100 per [day] additionally

from receipt of this citation until the

drain field is repaired legally for the

violations listed in Part 1. Payment must

be made to the LAKE County Health Department

within 21 days of the receipt of this

citation, or you may choose the option

listed on Part 9.

19. Part 9 of the Citation provides for a request for an

administrative hearing and warned Respondent that if he

requested a hearing and then failed to appear to contest the

citation, he would waive the right to contest the citation. By

his signature dated October 1, 2009, in Part 9 of the Citation,

Respondent requested an administrative hearing. This

administrative hearing followed.

20. Respondent failed to attend or present any evidence at

the final hearing. Prior to the hearing, Respondent indicated

to Petitioner’s counsel that he was not financially able to put

the drain field back the way it was and that he did not see the

point in appearing at the administrative hearing.

21. On the other hand, the evidence presented by

Petitioner at the administrative hearing, as outlined in the

findings above, clearly and convincingly demonstrated that

Respondent removed a mound and drain field required by

applicable law and regulations for his septic system, and that

Respondent’s septic system has not been repaired as required to

comply with the law.

CONCLUSIONS OF LAW

22. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. See §§ 120.569, 120.57(1), 381.0065(5)(b)4., Fla.

Stat. (2009). 1 /

23. The Department, as the party asserting the affirmative

in this proceeding, has the burden of proof. See , e.g. , Balino

v. Dept. of Health & Rehabilitative Services , 348 So.2d 349

(Fla. 1st DCA 1977). Because the Department is seeking to prove

violations of a statute and impose administrative fines or other

penalties, it has the burden to prove the allegations in the

complaint by clear and convincing evidence.

24. The Department and its agents have the authority to

investigate and take action to abate conditions constituting a

sanitary nuisance. In particular, Section 386.041, found in

Part 1 of Chapter 386, Florida Statutes, provides:

(1) The following conditions existing,

permitted, maintained, kept, or caused by

any individual, municipal organization, or

corporation, governmental or private, shall

constitute prima facie evidence of

maintaining a nuisance injurious to health:

(a) Untreated or improperly treated human

waste, garbage, offal, dead animals, or

dangerous waste materials from manufacturing

processes harmful to human or animal life

and air pollutants, gases, and noisome odors

which are harmful to human or animal life.

(b) Improperly built or maintained septic

tanks, water closets, or privies.

(c) The keeping of diseased animals

dangerous to human health.

(d) Unclean or filthy places where animals

are slaughtered.

(e) The creation, maintenance, or causing

of any condition capable of breeding flies,

mosquitoes, or other arthropods capable of

transmitting diseases, directly or

indirectly to humans.

(f) Any other condition determined to be a

sanitary nuisance as defined in s. 386.01.

(2) The Department of Health, its agents

and deputies, or local health authorities

are authorized to investigate any condition

or alleged nuisance in any city, town, or

place within the state, and if such

condition is determined to constitute a

sanitary nuisance, they may take such action

to abate the said nuisance condition in

accordance with the provisions of this

chapter.

25. Florida Administrative Code Rule 64E-6.001(2),

provides:

(2) Structures used or intended for human

occupancy, employment or service to the

public and locations where people

congregate, such as construction sites,

fairs, and field locations for agricultural

workers shall provide approved wastewater

treatment and disposal systems. Except for

the provisions of Rule 64E-6.0101, F.A.C.,

permanent structures shall not rely upon the

use of holding tanks and portable toilets

for wastewater treatment and disposal.

26. Florida Administrative Code Rule 64E-6.003(1) provides

in pertinent part:

(1) System Construction Permit – No portion

of an onsite sewage treatment and disposal

system shall be installed, repaired,

altered, modified, abandoned or replaced

until an “Onsite Sewage Treatment and

Disposal System Construction Permit” has

been issued on Form DH 4016.

* * *

27. Section 381.0065(5), Florida Statutes, provides in

pertinent part:

(b)1. The department [of Health] may issue

citations that may contain an order of

correction or an order to pay a fine or

both, for violations of ss. 391.0065 –

381.0067, part I of chapter 386, or part III

of chapter 489 or the rules adopted by the

department, when a violation of these

sections or rules is enforceable by an

administrative or civil remedy, or when a

violation of these sections or rules is a

misdemeanor of the second degree. A

citation issued under ss. 381.065 -

381.0067, part I of chapter 386, or part III

of chapter 489 constitutes a notice of

proposed agency action.

2. A citation must be in writing and must

describe the particular nature of the

violation, including specific reference to

the provisions of law or rule allegedly

violated.

3. The fines imposed by a citation issued

by the department may not exceed $500 for

each violation. Each day the violation

exists constitutes a separate violation for

which a citation may be issued.

4. The department shall inform the

recipient, by written notice pursuant to ss.

120.560 and 120.57, of the right to an

administrative hearing to contest the

citation within 21 days after the date the

citation is received. The citation must

contain a conspicuous statement that if the

recipient fails to pay the fine within the

time allowed, or fails to appear to contest

the citation after having requested a

hearing, the recipient has waived the

recipient’s right to contest the citation

and must pay an amount up to the maximum

fine.

* * *

7. The department, pursuant to ss. 381.0065

– 381.0067, part I of chapter 386, or part

III of chapter 489, shall deposit any fines

it collects in the county health department

trust fund for use in providing services

specified in those sections.

* * *

28. Despite Respondent’s request for an administrative

hearing and notice of the administrative hearing, Respondent

failed to attend or offer any evidence rebutting the clear and

convincing evidence offered by Petitioner in support of the

Citation.

29. The evidence clearly demonstrated that Respondent was

aware that he was required to maintain a sand mound for the

septic tank for his residence, but did not. Despite warnings

and an opportunity to reinstall a sand mound and drain field for

his residential septic system prior to the issuance of the

Citation, Respondent failed to correct the problems.

30. In sum, the clear and convincing evidence submitted by

the Petitioner in this case demonstrated that Respondent

violated the provisions of Section 386.041(a),(e), and (f),

Florida Statutes, and Florida Administrative Code Rules 64E-

6.001(2) and 64E-6003(1), recited above, and that Respondent has

allowed his septic system to remain out of compliance since he

removed the mound and drain field.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Health enter a Final

Order finding that Respondent illegally and without permit

removed a drain field and now has an unapproved septic system on

a structure intended for human occupancy, and ordering

Respondent to pay a fine in the amount of $500.00 for deposit

into the county health department trust fund, obtain a septic

system repair permit, and effect repairs on his septic system to

correct the violations of Section 386.041(a)(e)(f), Florida

Statutes, and Florida Administrative Code Rules 64E-6.001(2) and

64E-6.003(1), within forty-five (45) days from the Final Order.

DONE AND ENTERED this 2nd day of April, 2010, in

Tallahassee, Leon County, Florida.

S

JAMES H. PETERSON, III

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2nd day of April, 2010.

ENDNOTE

1 / Unless otherwise indicated, all references to the Florida

Statutes are to the 2009 version.

COPIES FURNISHED :

Alex MacDonell

6345 Lake Erie Road

Groveland, Florida 34736

William Westerfield, Esquire

Orange County Health Department

6101 Lake Ellenor Drive, Suite 1083

Orlando, Florida 32809

R. S. Power, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399

Josefina M. Tamayó, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399

Dr. Ana M. Viamonte Ros, Secretary

State Surgeon General

Department of Health

4052 Bald Cypress Way, Bin A00

Tallahassee, Florida 32399

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 in this case.