04-002946 Department Of Health vs. Paul Montgomery-Ware Status: Closed Recommended Order on Tuesday, November 30, 2004.

Summary: Petitioner demonstrated that Respondent should be fined for installing a septic tank system without a permit.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

)

Petitioner, )

)

vs. ) Case No. 04 - 2946

)

PAUL WARE, a/k/a PAUL )

MONTGOMERY - WARE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pur suant to notice, this cause came on for formal

proceeding and hearing before Lawrence P. Stevenson, a

duly - designated Administrative Law Judge of the Division of

Administrative Hearings, on October 13, 2004, in Lakeland,

Florida. The appearances were as f ollows:

APPEARANCES

For Petitioner: Roland Reis, Esquire

Polk County Health Department

1290 Golfview Avenue, Fourth Floor

Bartow, Florida 33830 - 6740

For Respondent: No appea rance

STATEMENT OF THE ISSUE

At issue in this proceeding is whether a citation and

imposition of a $1,500.00 fine for installing a septic tank

without a permit was properly imposed on Respondent, Paul Ware,

a/k/a Paul Montgomery - Ware, by Petitioner , the Department of

Health, Polk County Health Department (the "Department").

PRELIMINARY STATEMENT

This cause arose on July 1, 2004, when the Department

served a citation on Respondent for failure to obtain a permit

before installing an on - site sewage tr eatment and disposal

system ("OSTD system"), commonly called a septic tank system, in

violation of Subsections 381.0065(4) and 386.041(1)(b), Florida

Statutes (2003), and Florida Administrative Code Rule

64E - 6.003(1). The citation assessed a fine and orde red

Respondent to pay $1,500.00 for the cited violations. The

citation further informed Respondent of his rights to a hearing

pursuant to Chapter 120, Florida Statutes (2003). Respondent

indicated that he did not accept the Department's intended

action, and the Department forwarded the case to the Division of

Administrative Hearings on August 17, 2004. The matter was set

for hearing on October 13, 2004.

On September 1, 2004, Respondent filed a "Petition for

Voluntary Dismissal," which was denied by Order dated

September 28, 2004. On October 7, 2004, Respondent filed a

pleading titled, "Notice and Demand In Re: Order," in which

Respondent raised constitutional issues beyond the scope of this

administrative proceeding and further challenged the style of

th e case, which at the time characterized Mr. Ware as the

Petitioner.

The final hearing was convened as scheduled. The

Department was present and prepared to proceed. Respondent did

not appear. The hearing was delayed for 20 minutes to afford

Respondent a n opportunity to appear. At the outset of the

hearing, the undersigned declined to address the constitutional

issues raised in Respondent's "Notice and Demand," but granted

Respondent’s motion to change the style of the case to reflect

the actual posture of the parties. At the hearing, the

Department proffered the testimony of Susan Patlyek, an

environmental specialist with the Department, and William A.

Walker, Respondent's neighbor and a witness to the construction

of the septic system in question. The Department's Exhibits 1

through 7 were proffered at the hearing.

Respondent never appeared during the course of the hearing.

On October 15, 2004, the undersigned issued an Order to Show

Cause, providing Respondent ten days in which to explain his

absenc e from the hearing. On October 28, 2004, Respondent filed

a reply that reasserted his constitutional issues, but otherwise

failed to explain his absence from the hearing. The

Department’s proffered testimony and exhibits are, therefore,

ADMITTED. Subseq uent to the hearing, the Department elected to

submit a Proposed Recommended Order which has been considered in

the rendition of this Recommended Order.

FINDINGS OF FACT

1. Respondent is the owner of three contiguous lots in

Polk County (Bevington Manor , PB 20 PG 47, Lots 100 through

102), purchased via tax deed recorded on October 21, 2003.

Respondent's lots are surrounded by property owned by Irma

Walker, whose son, William Walker, testified at the hearing.

2. Respondent apparently intended to develo p his lots as a

commercial enterprise and had erected a Quonset - type structure

on the property. From his mother's adjoining property,

Mr. Walker regularly observed Respondent's activities.

Mr. Walker testified that Respondent was using his property to

op erate a motorcycle repair shop.

3. On June 4, 2004, Mr. Walker observed Respondent using a

backhoe on his property. Mr. Walker testified that Respondent

was installing a septic tank. Mr. Walker told his mother, who

then initiated inquiries as to whether Respondent had a permit

to install a septic tank. When her inquiries met with a

negative response, Ms. Walker called in a complaint to the

Department.

4. On June 7, 2004, the Department sent environmental

specialist Susan Patlyek to the site. Ms. Patly ek observed

infiltrator chambers on the site. Infiltrator chambers are used

only in connection with OSTD systems. Ms. Patlyek also observed

a recently excavated area and a rented backhoe, commonly used to

dig out areas for septic tank installation. It w as obvious to

Ms. Patlyek that a septic tank and drainfield had been installed

on Respondent's property, though no permit had been issued by

the Department allowing installation of an OSTD system.

5. Installation of an OSTD system without a permit

constit utes a sanitary nuisance. The Department sent a letter

to Respondent dated June 8, 2004, advising him of the need to

abate the nuisance by obtaining a permit. With the letter, the

Department enclosed a blank application form that Respondent

could have co mpleted and returned to the Department's permitting

office.

6. Respondent replied by contending that the Department

lacked jurisdiction over activities on his land and suggested

that the Department initiate court action. Respondent also

returned the appl ication form in its original blank form.

7. The Department then issued Respondent a citation for

violations of Subsection 381.0065(4), Florida Statutes (2003),

and Florida Administrative Code Rule 64E - 6.003(1), constructing

an OSTD system without a permit ; and for a violation of

Subsection 386.041(1)(b), Florida Statutes (2003), maintaining a

sanitary nuisance. The citation provides for a $1,500.00 fine.

8. The Department's citation also informed Respondent of

his right to a hearing pursuant to Chapter 1 20, Florida Statutes

(2003). Respondent contends that the relegation of this matter

to an administrative forum is unconstitutional.

CONCLUSIONS OF LAW

9. The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding. §§ 1 20.569 and 120.57(1), Fla. Stat. (2004).

Respondent's constitutional claims as to the jurisdiction of

this tribunal are beyond the scope of this proceeding. Key

Haven Associated Enterprises, Inc. v. Board of Trustees of the

Interna l Improvement Trust Fund , 427 So. 2d 153, 157 (Fla. 1982)

(circuit court, not administrative tribunal, is the proper forum

to adjudicate facial constitutionality of a statute).

Department of Revenue v. Young American Builders , 330 So. 2d

864, 865 (Fla. 1s t DCA 1976).

10. The Department has the authority granted by Section

381.0065, Florida Statutes (2003), to issue permits, inspect

sites, issue citations, and impose fines for violations of

adopted rules, which govern OSTD systems and their installation

an d operation.

11. Subsection 381.0065(4), Florida Statutes (2003),

provides as follows, in relevant part:

A person may not construct, repair, modify,

abandon, or operate an onsite sewage

treatment and disposal system without first

obtaining a permit appr oved by the

department. . . .

12. Florida Administrative Code Rule 64E - 6.003(1) states

in part:

No portion of an onsite sewage treatment and

disposal system shall be installed,

repaired, altered, modified, abandoned or

replaced until an 'onsite sewage t reatment

and disposal system construction permit' has

been issued on Form DH4016. . . .

13. Subsection 386.041(1)(b), Florida Statutes (2003),

provides as follows:

(1) The following conditions existing,

permitted, maintained, kept, or caused by

any indi vidual, municipal organization, or

corporation, governmental or private, shall

constitute prima facie evidence of

maintaining a nuisance injurious to health:

* * *

(b) Improperly built or maintained septic

tanks, water closets, or privies. . . .

14. A person or property owner who occupies a dwelling

which has an illegal, un - permitted connection or suffers a

dwelling on the permitted premises to be served by a sewage

system, or portion thereof, which is not properly permitted and

approved, is subject to an Order of Correction and a fine in

accordance with Subsection 381.0065(5), Florida Statutes (2003).

The fine may not exceed $500.00 for each violation. Each day of

a violation constitutes a separate violation for which a

citation may be issued. In th e instant situation, the

Department issued a single citation and, therefore, may impose

only a $500.00 fine.

RECOMMENDATION

RECOMMENDED that Petitioner, the Department of Health, Polk

County Health Department, enter a final order imposing a $500.00

fine for the violations described in the above Findings of Fact

and Conclusions of Law.

DONE AND ENTERED this 30th day of November, 2004, in

Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

Administrative Law Judge

D ivision 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 30th day of November, 2004.

COPIES FURNISHED :

Roland Reis, Esquire

Polk County Health Department

1290 Golfview Avenue, Fourth Floor

Bartow, Florida 33830 - 6740

Paul Ware

6557 Crescent Lake Drive

Lakeland, Florida 33813

R.S. Power, Agency Clerk

D epartment of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

Quincy Page, Acting General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All partie s 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.