99-002639 Department Of Health vs. Shane Whitfield Status: Closed Recommended Order on Thursday, December 2, 1999.

Summary: Citation was properly issued where Respondent failed to obtain permit prior to repairing his septic tank. Recommended imposition of $500.00 fine.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

)

Petitioner, )

)

vs. ) Case No. 99-2639

)

SHANE WHITFIELD, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was

held in this case before Carolyn S. Holifield,

Administrative Law Judge, Division of Administrative

Hearings, on October 19, 1999, by telephone conference call

between New Port Richey, Florida and Tallahassee, Florida.

APPEARANCES

For Petitioner: Barbara A. McPherson, Esquire

300 31st Street North, Suite 338

St. Petersburg, Florida 33713

For Respondent: No Appearance

STATEMENT OF THE ISSUES

Whether Respondent violated Rule 64E-6.003, Florida

Administrative Code, by repairing a septic tank and/or

drainfield without a permit and, if so, what penalty should

be imposed on him.

PRELIMINARY STATEMENT

On May 18, 1999, the Pasco County Health Department

issued a citation to Respondent, Shane Whitfield, for

installing and/or repairing a septic tank and/or drainfield

without a permit. The citation indicated that on April 16,

1999, an initial notice of violation had been issued to

Respondent directing him to abate a sanitary nuisance.

Respondent contested the citation and requested a hearing.

On June 14, 1999, the matter was forwarded to the Division

of Administrative Hearings for assignment of an

Administrative Law Judge to conduct the hearing.

At hearing, Petitioner, the Department of Health

presented the testimony of one witness, Gregory Crumpton, an

Environmental Specialist with the Pasco County Health

Department and offered and had three exhibits received into

evidence. Respondent failed to appear at hearing and no

testimony or documentary evidence was presented on his

behalf.

The proceeding was recorded but was not transcribed.

The Department timely filed a Proposed Recommended Order.

No post-hearing submittal was filed by or on behalf of

Respondent.

FINDINGS OF FACT

1. Petitioner, the Department of Health (Department),

is the state agency charged with administering and enforcing

laws and rules relating to sanitation. Section 381.0011(4),

Florida Statutes.

2. Respondent failed to appear at the duly- appointed

time and place for the administrative hearing in this

matter.

3. On April 22, 1999, Gregory Crumpton, Environmental

Specialist with the Pasco County Health Department,

responded to a sanitary nuisance complaint regarding

Respondent's property located at 7111 Lofty Drive, Port

Richey, Florida. Based on that complaint, on April 22,

1999, Mr. Crumpton inspected Respondent's property. His

inspection revealed the presence of untreated or improperly

treated human waste from an improperly maintained septic

tank.

4. Based on his April 22, 1999, inspection of

Respondent's property and his determination that the

condition existing on Respondent's property constituted a

sanitary nuisance, Mr. Crumpton issued an Official Notice to

Abate a Sanitary Nuisance. The notice was left on

Respondent's property. Moreover, on April 22, 1999, a copy

of the notice was mailed to Respondent by certified mail.

Respondent signed the return receipt acknowledging that he

had received the notice.

5. On April 26, 1999, Mr. Crumpton received a second

complaint from a neighbor of Respondent who reported that

Respondent's septic tank was being repaired without a

permit. Upon inspecting Respondent's property on April 27,

1999, Mr. Crumpton observed that repair work was being

performed on Respondent's septic tank without a permit.

6. On April 27, 1999, Mr. Crumpton met with

Respondent regarding the inspection and issued to Respondent

a second Official Notice to Abate a Sanitary Nuisance, which

was sent by certified mail. This notice was issued to

Respondent because of the installation and/or repair to

septic tank and/or drainfield without a permit.

7. The April 27, 1999, notice advised Respondent that

his failure to secure a septic tank repair permit could

result in his being fined up to $500.00 per day until he

obtained the required permit.

8. Although Respondent was advised that he could be

fined up to $500.00 per day for failing to secure a permit

to repair his septic tank, as of May 18, 1999, Respondent

had not secured the permit.

9. On May 18, 1999, Mr. Crumpton issued a citation

alleging that Respondent had installed and/or repaired a

septic tank and/or drainfield without a permit.

10. As of the date of the final hearing in this

matter, October 19, 1999, Respondent had failed to secure a

septic tank repair permit.

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding pursuant to Section 120.57(1), Florida Statutes.

12. Petitioner, the Department of Health, is the state

agency charged with administering and enforcing laws and

rules relating to sanitation. Section 381.0011(4), Florida

Statutes.

13. Pursuant to its authority, the Department is

required to promulgate rules and to issue permits associated

with the repair of on-site sewage treatment and disposal

systems. Section 381.0065(3), Florida Statutes. That

section provides in relevant part the following:

(3) DUTIES AND POWERS OF THE DEPARTMENT

OF HEALTH.--The department shall:

(a) Adopt rules to administer ss.

381.0065-381.0067.

(b) Perform application reviews and

site evaluations, issue permits, and

conduct inspections and complaint

investigations associated with the

construction, installation, maintenance,

modification, abandonment, or repair of

an onsite sewage treatment and disposal

system for a residence or establishment

with an estimated domestic sewage flow

of 10,000 gallons or less per day, or an

estimated commercial sewage flow of

5,000 gallons or less per day, which is

not currently regulated under chapter

403.

14. Consistent with its rulemaking authority, the

Department promulgated Rule 64E-6.003(1), Florida

Administrative Code, which provides that no portion of an

on-site 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 DH4016.

15. Section 381.0065(5)(b), Florida Statutes,

authorizes the Department to issue citations that contain an

order to correct or an order to pay a fine or both for

violations of laws and rules related to the operation and

maintenance of sewage treatment and disposal systems. That

section provides in pertinent part the following:

(b)1. The department may issue

citations that may contain an order of

correction or an order to pay a fine, or

both, for violations of ss. 381.0065-

831.0067, part I of chapter 386, or part

III or 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.

381.0065-381.0067, 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.

16. In the instant case, the Department has

established by clear and convincing evidence that Respondent

made or attempted to make repairs to his septic tank without

first obtaining a permit for such repair.

17. The undisputed evidence also established that the

although the Department issued a citation to Respondent

advising him of the violation and allowing him time to

secure a permit, he failed to comply.

18. Furthermore, the evidence established that the

Department properly issued a second citation to Respondent

after he failed to secure a septic tank permit.

Nonetheless, as of the date of the final hearing in this

matter, Respondent had failed to obtain the required permit.

RECOMMENDATION

Based upon the foregoing Findings of Fact and

Conclusions of Law, it is, therefore:

RECOMMENDED that the Respondent be ordered to pay a

fine in the amount of $500.00, obtain a septic tank repair

permit, and effect repairs.

DONE AND ENTERED this 2nd day of December, 1999, in

Tallahassee, Leon County, Florida.

___________________________________

CAROLYN S. HOLIFIELD

Administrative L aw 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 2nd day of December, 1999.

COPIES FURNISHED:

Barbara A. McPherson, Esquire

Department of Health

300 31st Street North

Suite 338

St. Petersburg, Florida 33713

Shane Whitfield

7111 Lofty Drive

Port Richey, Florida 34668

Angela T. Hall, Agency Clerk

Department of Health

2020 Capital Circle, Southeast

Bin A02

Tallahassee, Florida 32399-1701

Pete Peterson, General Counsel

Department of Health

2020 Capital Circle, Southeast

Bin A02

Tallahassee, Florida 32399-1701

Dr. Robert G. Brooks, Secretary

Department of Health

2020 Capital Circle, Southeast

Bin A00

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 in this case.